Scottish Civil Law Reports, issue 6, December 2016 by Thomson Reuters

Elections— Leaked confidential memo Morrison v Carmichael (EC)

643

718

Human Rights— Judicial review —Assisted suicide Ross v Lord Advocate (IH)

764

Medical records—Confidentiality WF, Petitioner (OH)

694

Interpretation of statutes— British citizenship Romein v Advocate General for Scotland (IH) 789 Judicial review— Human rights—Assisted suicide Ross v Lord Advocate (IH) 764

Legal aid— Human rights—Medical records— Confidentiality WF, Petitioner (OH) 694 Reparation— Duty of care—Fire service AJ Allan (Blairnyle) Ltd v Strathclyde Fire Board (IH) 659 Duty of care—Whether solicitor owes duty of care to other party in transaction NRAM Plc v Steel (IH) 736

SCOTTISH CIVIL LAW REPORTS

Expenses— Protected expenses order Gibson, Petitioner (IH)

December 2016 2016 S.C.L.R. 643−806

Human rights—Medical records— Confidentiality RWF, Petitioner (OH) 694

2016 S.C.L.R. 643–806

Scottish Civil Law Reports Edited by Sheriff Michael J Fletcher AJ Allan (Blairnyle) Ltd v Strathclyde Fire Board (IH) 659 Gibson, Petitioner (IH) 718 Morrison v Carmichael (EC) 643 NRAM Plc v Steel (IH) 736

*657946*

Romein v Advocate General for Scotland (IH) 789 Ross v Lord Advocate (IH) 764 WF, Petitioner (OH) 694

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A ELECTION COURT

9 December 2015

Lady Paton and Lord Matthews TIMOTHY DENIS MORRISON and others

Petitioners

against

ALISTAIR CARMICHAEL MP ALISTAIR BUCHAN

First respondent Second respondent

Elections—Parliamentary election—General election—Leaked confidential memo—Candidate falsely denying responsibility for leak—Whether words amounted to “false statements of fact . . . in relation to personal character or conduct”—Whether words uttered for “the purpose of affecting the return of any candidate”— Representation of the People Act 1983 (c.2), s.106 Section 106, of the Representation of the People Act 1983 provides, inter alia: “False statements as to candidates (1) A person who . . . (a) before or during an election, (b) for the purposes of affecting the return of any candidate at the election,

makes or publishes any false statements of fact in relation to the candidate’s personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, that statement to be true . . . .” Section 144 of the 1983 Act provides, inter alia: “Conclusion of trial of Parliamentary election petition (1). At the conclusion of the trial of a Parliamentary election petition, the election court shall determine whether the member whose election returns complained of . . . was duly returned or elected, or whether the election was void, and determination so certified shall be final to all intents as to the matters at issue on the petition. (2) The election court shall forthwith certify in writing the determination to the Speaker . . . .” Section 158 of the 1983 Act provides, inter alia: “Report as to candidate guilty of a corrupt or illegal practice. (1) The report of an election court under s.144 . . . shall state whether any corrupt or illegal practice has or has not been proved to have been committed by or with the knowledge and consent of any candidate at the election, and the nature of the corrupt or illegal practice . . . .”

A petition was lodged by the petitioners petitioning the court to determine whether the election of Alistair Carmichael, MP for Orkney and Shetland, was void. Evidence was led to determine whether words complained of in the petition amounted to “false statements of fact . . . in relation to the personal character or conduct” of the respondent within the meaning of s.106 of the G 643

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Act and whether the words complained of were uttered, “for the purpose of affecting the return of any candidate at the election”. The court was satisfied beyond reasonable doubt that the special adviser to the first respondent had been authorised by the first respondent to share a memo with the press, which claimed that the First Minister had informed the French ambassador that she “would rather see David Cameron remain as Prime Minister (and did not see Ed Miliband as prime minister material.)” This was published in various newspapers and categorically denied by the First Minister. When asked whether he had been aware of the leaking of the memo, the first respondent avoided answering the question and he did not admit to being involved in the leaking of the memo until after the election had taken place and he had been elected with a greatly reduced majority. Prior to his admission a Cabinet Office inquiry had published findings that the first respondent had been aware of the leaking of the memo and that he had accepted that he ought to have stopped it. He subsequently wrote a letter of apology to the First Minister. The petition averred that the words used were ‘Yes, and listen. That’s why I’m telling you, I will cooperate fully with Sir Jeremy Heywood’s enquiry, but it has to be Sir Jeremy Heywood’s enquiry and that’s why I will answer the questions to him, I told you the first I became aware of this, and this is already on public record, was when I received a phone call on Friday afternoon from a journalist making me aware of it.’ Held (1) that it had not been proved beyond reasonable doubt that the words used by the first respondent amounted to a “false statement of fact in relation to his personal character or conduct” and it followed that it had not been proved beyond reasonable doubt that an essential element of s.106 had been proved (para.59); and (2) that it had been proved beyond reasonable doubt that the first respondent made the false statement of fact for the purpose of affecting (positively) his own return at the election (para.61); and prayer of petition refused. Cases referred to:

Erlam v Rahman [2015] EWCH 1215 (QB) Jugnauth v Ringadoo (Mauritius) [2008] UKPC 50 Morrison v Carmichael, 2015 S.L.T. 675 R v Rowe, ex parte Mainwaring [1992] 1 W.L.R. 1059; [1992] 4 All E.R. 821 R (Woolas v Parliamentary Election Court [2012] Q.B. 1; [2011] 2 W.L.R. 1362. The full circumstances of the case are to be found in the following determination delivered by Lady Paton on 9 December 2015. LADY PATON [1] We refer to our previous decision. That decision is adopted herein, and forms part of this determination.

The two remaining issues

[2]This court ordered that evidence be led to assist in the resolution of the two remaining issues, namely: 1. 2. G

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Do the words complained of in the petition amount to “false statements of fact . . . in relation to the personal character or conduct” of the first respondent, within the meaning of section 106? Were the words complained of uttered “for the purpose of affecting the return of any candidate at the election”?

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Relevant sections of the Representation of the People Act 1983

[3] [Her Ladyship quoted the sections as set out above and continued:] Evidential hearing

[4] Evidence was led on Monday, 9 and Tuesday, 10 November 2015. Submissions were presented on Wednesday, 11 November 2015. [5] The evidence comprised: (i) witnesses led by counsel for the petitioners, namely Fiona Grahame, the third petitioner; Tavish Scott, MSP; and Alistair Carmichael MP the first respondent; (ii) one witness led by counsel for the first respondent, namely ProfessorJohn Curtice of the University of Strathclyde; (iii) productions; (iv) a joint minute No 29 of Process, in which counsel agreed that “copy productions lodged as Nos 6/1–6/24 and 7/1–7/24 of Process are to be treated as principals and as what they bear to be”; and (v) a video clip of the first respondent’s interview on Channel 4 news. [6] A shorthand writer from Hansard recorded the entire proceedings. Transcripts of both the evidence and the submissions are available. Onus and standard of proof

[7] At a by order hearing on 12 October 2015, counsel, while acknowledging that the law might require future clarification standing views expressed in Jugnauth v Ringadoo (Mauritius), agreed that the onus of proof lay upon the petitioners, and that the standard of proof to be applied in this case was the criminal standard of “beyond reasonable doubt” (cf, R v Rowe, ex parte Mainwaring).

Credibility and reliability

[8] We had no concerns about the credibility and reliability of the witnesses, with one exception: that related to the first respondent’s evidence that, in the context of questions about the source of the leak, he was not concerned about his reputation or his standing in the constituency. In our opinion the evidence generally, and in particular the evidence about the furious reaction to the leak, the immediate investigation into its source, and the first respondent’s disingenuous approach when responding to the Cabinet Office inquiry, taken with the first respondent’s own evidence in court, proved beyond reasonable doubt that the first respondent hoped not to be identified as being involved with the leak, all as further discussed in paras 65 and 68–70 below. We accordingly did not accept the first respondent’s evidence on that matter.

Objections

[9] There was an objection to the evidence of the third petitioner, relating to an interview of the first respondent on Shetland Radio. In fact the evidence was given before the objection could be taken. In the event, we have excluded that evidence from our consideration. [10] The only other objection ultimately insisted upon was an objection by senior counsel for the first respondent to a line of evidence relating to the first respondent’s response to the Cabinet Office inquiry. We allowed the evidence, reserving all questions of competency and relevancy.We were further addressed on the matter in submissions. In our opinion the objection is without merit: see para.67 below. However we intend to assess the evidence in two stages, the first stage being evidence excluding the evidence objected to.

The evidence

[11] We are satisfied beyond reasonable doubt that the evidence established the following facts.

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[12] A general election was to take place on 7 May 2015. The first respondent was the Liberal Democrat candidate defending his seat in Orkney and Shetland. That constituency had been held by Liberals and Liberal Democrats since 1950. The first respondent had been the Member of Parliament for Orkney and Shetland for 14 years. [13] There were four other candidates: Danus Skene, Scottish National Party (SNP); Donald Cameron, Scottish Conservative and Unionist Party; Gerry McGarvey, Scottish Labour Party; and Robert Watt Smith, UK Independence Party. [14] The constituency of Orkney and Shetland was regarded as a safe seat for the Liberal Democrats. However the SNP was making progress. In evidence, the first respondent agreed with the position as set out in the Press & Journal online on 26 March 2015 (No 6/12 of Process) as follows: “Scottish Secretary Alistair Carmichael has admitted he is facing a battle to hold onto the Liberal Democrats’ northern isles stronghold in May. Orkney and Shetland is often described as the safest Lib Dem seat in Scotland, with Mr Carmichael winning 62 per cent of the vote in 2010. But the senior UK Government minister indicated yesterday that he believed the SNP surge was evident on the islands. He predicted that the Nationalists would be his main challengers . . . .” [15] The first respondent’s special adviser, Euan Roddin, was assisting him in his electoral campaign. Mr Roddin read a confidential memo dated 6 March 2015 prepared by a civil servant in the Scotland Office (No 7/1/1 of Process). That memo recorded Nicola Sturgeon, the First Minister and leader of the SNP, as reportedly having told the French ambassador that “she’d rather see David Cameron remain as PM (and didn’t see EdMiliband as PM material)”. Mr Roddin considered that information highly significant as the First Minister’s stated policy was pro-Labour (not pro-Conservative). The memo seemed to confirm a growing suspicion that the First Minister wished the Conservatives to remain in office, as that would alienate many Scots and enhance the “Yes” vote in any future referendum on Scottish independence. Accordingly Mr Roddin considered that the information should be in the public domain. [16] Importantly, however, the memo contained a caveat. The author had added: “I have to admit that I’m not sure that the FM’s tongue would be quite so loose on that kind of thing in a meeting like that, so it might well be a case of something being lost in translation.” [17] In March 2015, on a flight to the Faroe Islands, Mr Roddin drew the contents of the confidential memo to the first respondent’s attention. The first respondent was not shown the actual memo, and it appears that he was not aware of the caveat. The first respondent authorised Mr Roddin to share the information contained in the memo with the press. MrRoddin was to liaise with Simon Johnson of the Daily Telegraph, a pro-Conservative newspaper. [18] On Wednesday, 1 April 2015 Mr Roddin provided the Daily Telegraph with a copy of the memo. He had discussed it with Mr Johnson on several occasions. [19] On Thursday, 2 April 2015 a televised “Leaders’ Debate” took place. The result of the debate was favourable to the First Minister and to the SNP. [20] On Friday, 3 April 2015 the Daily Telegraph published online an article reporting that the First Minister had told the French ambassador that she would prefer David Cameron to remain in Downing Street.

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[21] The Herald noted online (No 7/13/1 of Process): “. . . The allegation is politically explosive as Sturgeon has repeatedly said she wants to see Miliband as prime minister, not Cameron . . . .” Similarly The Guardian newspaper online subsequently explained (No 6/6 of process): “. . . The memo was potentially hugely damaging to the SNP leader because it suggested she was misleading voters about her preferred election outcome . . . .” [22] The First Minister issued an almost immediate denial of the accuracy of the memo, stating that it was “categorically, 100%, untrue”. That denial was confirmed by the French ambassador. The First Minister requested an inquiry. [23] On Saturday, 4 April 2015, the Cabinet Secretary Sir Jeremy Heywood ordered a Cabinet Office inquiry into the leaked memo. The two issues to be investigated were: (i) how the memo came to be written; and (ii) how it got into the public domain. At an early stage, the first respondent confirmed that ministers and special advisers would cooperate with the inquiry. [24] On Sunday, 5 April 2015 the first respondent gave an interview to Channel 4 News. The interview took place in the Edinburgh West Liberal Democrat Headquarters, Corstorphine. The first respondent introduced himself as the Liberal Democrat candidate for Orkney and Shetland. In the course of the interview, the first respondent was asked four times whether he had been aware of the memo, the fourth question being: “Surely it’s a fair question to ask what you were aware of?” The first respondent’s reply is noted in transcript No 7/3 of Process as follows: “Yes and listen that’s why I’m telling you I will co-operate fully with Sir Jeremy Heywood’s inquiry, but it has to be Sir Jeremy Heywood’s inquiry and that’s why I will answer the questions to him, I told you the first I became aware of this, and this is already on public record, was when I received a phone call on Friday afternoon (i.e. 3April 2015) from a journalist making me aware of it.” The interview was published online at 10 am. [25] That same day, Sunday, 5 April 2015, The Daily Record published an article at 10 pm on its website No 6/4 of Process) with the headline “Scottish Secretary Alistair Carmichael: ‘I know who wrote Nicola Sturgeon memo but I’m not telling’.” That article included the following passage: “A SCOTLAND Office civil servant was behind the leaked memo that claimed Nicola Sturgeon wants David Cameron to remain as Prime Minister. “Scottish Secretary Alistair Carmichael has fingered an official in his own department for writing the note. “But the Lib Dem refused to name the individual now at the centre of a Whitehall inquiry and a furious political row. “Carmichael, who remains in charge of the Scotland Office during the general election campaign, said yesterday: ‘I know the person involved but I’m not going to go beyond that. “This is not somebody in public life, it’s a civil servant—so he’s entitled to the inquiry being done properly.”

[26] On Sunday, 5 April 2015, a spokesman for the Scottish Liberal Democrats advised the press (No 7/13/2 of Process): “Alistair did not know anything about the memo until it was brought to his attention by the Telegraph.” On Wednesday, 8 April 2015 the Independent newspaper published an interview with Nick Clegg, the then leader of the Liberal Democrats. Mr Clegg stated the first respondent’s position as follows:

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“Alistair Carmichael’s been absolutely clear—of course he didn’t leak them.” No one in the Liberal Democrat party, other than the first respondent and Mr Roddin, knew how the leak had occurred. [27] Subsequently, on or about Sunday, 12 April 2015, the first respondent completed and submitted the questionnaire which had been issued to him as part of the Cabinet Office inquiry. That questionnaire is dealt with in greater detail in paras 68 et seq below. For present purposes, it is sufficient to note that the first respondent’s completed questionnaire did not result in the resolution of the matters being investigated by the inquiry. Some 28members of staff in the Scotland Office had to complete questionnaires and attend interviews. [28] Some time before the election on 7 May 2015, the Cabinet Office inquiry examined all relevant official phone records, emails, and print logs relating to the 28 persons in the Scotland Office who had had contact with the memo. By this method, the inquiry traced MrRoddin’s contacts with Simon Johnson of the Daily Telegraph, as Mr Roddin had used his government mobile phone to contact Mr Johnson. Mr Roddin was interviewed by the inquiry before the election, although the precise date was not elicited in evidence. While precise details of that interview are not known, it seems likely that Mr Roddin explained his involvement with the memo and the Daily Telegraph. [29] The general election took place on Thursday, 7 May 2015. In Orkney and Shetland, 9,407 constituents voted for the Liberal Democrat candidate (the first respondent). 8,590constituents voted for the SNP candidate. The other candidates attracted fewer votes. Thus the Liberal Democrat majority was 817, whereas in 2010 it had been 9,928. [30] On Sunday, 10 May 2015 the first respondent had a conversation with Tavish Scott, MSP. The first respondent told Mr Scott that statements which he had made to Channel 4 News were wrong, and that a Cabinet Office inquiry into the leak was underway. The conversation did not go into any further detail. [31] On Tuesday, 12 May 2015 the first respondent was interviewed as part of the Cabinet Office inquiry. At that interview, the first respondent gave details of his involvement with the memo. In particular he confirmed that he had authorised Mr Roddin to release the contents of the memo to the Daily Telegraph. [32] On Friday, 22 May 2015 the Cabinet Office inquiry published its findings (No 6/2 of Process). Those findings included the following passages: “The memo “. . . The Cabinet Secretary has concluded that there is no reason to doubt that (the civil servant who was the author of the memo) recorded accurately what he thought he had heard. There is no evidence of any political motivation or ‘dirty tricks’. “The leak “In investigating the source of the leak, the investigation team searched all relevant official phone records, emails and print logs. Those who had access to the memo were asked to complete a questionnaire on what they did with the memo when they received it. They were then interviewed. “The investigation established the following facts: • an official mobile phone was used to make telephone calls to one of the authors of the Daily Telegraph story. This phone was held

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by Euan Roddin, previously special adviser to the then Secretary of State for Scotland, Alistair Carmichael; Mr Roddin confirmed that he provided a copy of the Scotland Office memo to a Daily Telegraph journalist on 1 April 2015, and discussed the memo with the journalist on a number of occasions. He told the investigation team that he acted in what he saw as the public interest and that in his view the public needed to be aware of the position attributed to the First Minister Alistair Carmichael confirmed that he had been asked by Mr Roddin for his view of the possibility of sharing the memo with the press. Mr Carmichael agreed that this should occur. He recognises that, as a Secretary of State, he was responsible for his own conduct and that of his special adviser. He could and should have stopped the sharing of the memo and accordingly accepts responsibility for what occurred. no-one else had any involvement in the leaking of the memo.

“The investigation team has therefore concluded that Mr Roddin, with the assent of MrCarmichael in the circumstances described above, was the direct source of the Daily Telegraph story. The Cabinet Secretary has accepted their findings in full. MrCarmichael and Mr Roddin have also accepted the conclusions. “Neither Mr Carmichael nor Mr Roddin will take their severance pay.” [33] On the same day, Friday, 22 May 2015, the first respondent wrote a letter of apology to the First Minister (No 6/1 of Process) in the following terms: “Dear First Minister, “I am writing regarding the publication in the Daily Telegraph of an account which reported a conversation between you and the French Ambassador. I understand the Cabinet Secretary is publishing a statement in respect of his findings from his inquiry today. “I wish to inform you that I am taking full responsibility for the publication of that document when I was Secretary of State. “I accept that its publication was a serious breach of protocol and that the details of that account are not correct. I am clear that this was an error of judgement on my part and wish to offer you my sincerest apologies for the embarrassment caused to you and the French Ambassador. “Yours truly, “Alistair Carmichael.” [34] As The Guardian reported online on 22 May 2015 at 17.14 (No 6/6 of Process): “Speaking to the BBC, Carmichael said: ‘It was something that I could have stopped and very much should have stopped. That was an error of judgment on my part, I deeply regret it, and for the consequences of that error of judgment, I’ve apologised to the first minister and to the French ambassador. “If I were still a cabinet minister at this point, I would tender my resignation; obviously the Liberal Democrats are no longer in government, so I’ve not. But I have said to the cabinet secretary that I will not accept the ministerial severance payment that is normally offered to ministers when they leave office.’ “Losing their severance pay will cost Carmichael £16,876 and Roddin at least £15,500 . . . .”

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[35] In the first respondent’s weekly column in the newspaper The Orcadian dated Thursday, 28 May 2015 (no 6/5/3 of Process), the headline read: “My apology is comprehensive and without reservation”, and in the body of the text the first respondent wrote: “. . . I understand that my behaviour has done damage to the relationship of trust that I have with many of you, as your Member of Parliament. “I regret that more than I can say, and I am truly sorry for what I have done— not just giving my agreement to the disclosure of the Scotland Office memo but also for not subsequently being truthful about it . . . . “One of my biggest regrets about my current position is that I have inevitably contributed to the already low esteem in which politics is held . . . .” [36] The publication of the inquiry’s findings caused disbelief, shock, anger, and outrage amongst constituents in Orkney and Shetland. [37] Fiona Grahame, the third petitioner, explained in her evidence (transcript 9 November 2015 pp.12–13, abbreviated): “. . . I was very shocked, actually, and my first reaction was really kind of how stupid was that, but also I really couldn’t—it was hard to get your head around that someone you had trusted and respected so much and had such an important position as Secretary of State for Scotland as well would do such a thing . . . as lie to us, as to lie to the people of Orkney and Shetland . . . I have a very high regard for politicians. I do not believe they all tell lies and I did believe that Alistair was a hard-working, honest person put in a very difficult position, working in a coalition he said he didn’t like being within, but he did it, he said, for the good of the country. So I was very shocked at that, that he lied to us . . . (After the disclosure on 22 May there was much discussion in Orkney) . . . and . . . I couldn’t find anybody that wasn’t shocked . . . disbelief . . . that he had been so involved and he had basically lied about this memo . . . After . . . the whole memo had been exposed as being false, why did he just not say there and then (in April) instead of waiting until after the election? . . . all the way through the election we had believed that he had not known . . . (that) he hadn’t been the instigator of this leak, and we did truly believe he was defending somebody in his office and that he was still the honest man we thought he was.” [38] Similarly the Independent Highlands and Islands MSP Jean Urquhart was reported in The Orcadian newspaper dated 28 May 2015 (No 6/5 of Process) as saying: “Mr Carmichael’s actions go far beyond a simple ‘error of judgment’— this was a calculated and deeply cynical attempt to undermine the integrity of Scotland’s First Minister during the election campaign. “It was a deliberate attack on a fellow politician, and this incident seriously calls into question Mr Carmichael’s fitness to continue as MP for Orkney and Shetland . . . “Politics is all about best judgment and integrity, and he has failed his constituents on both counts—by . . . leaking [the memo] in the first place, and then by delaying his admission of guilt until after the election. “Mr Carmichael is the Liberal Democrats’ ‘last man standing’ in Scotland—but only as a result of intentionally deceiving them about his role in this underhanded attempt to undermine Nicola Sturgeon.” [39] The newspaper further reported that Mrs Urquhart had spoken to a number of Shetland residents who were “shocked and appalled” by

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Mr Carmichael’s behaviour. She said: “It is incredible that he believes he can continue to represent the constituents he has openly misled . . . .” [40] There were many calls for the first respondent’s resignation. [41] On 29 May 2015 the current petition to the election court was lodged, seeking to have the first respondent proved to have committed an illegal practice in terms of s.106 of the Representation of the People Act 1983, such that the court should determine (and report to the Speaker of the House of Commons) that the first respondent was not duly elected, and that his election was void.

Whether the words uttered by the first respondent amounted to a false statement of fact in relation to his personal character or conduct made for the purpose of affecting his return at the election such as to engage section 106 of the 1983 Act The false statement of fact

[42] The words complained of in the petition are set out in para.24 above, being part of the interview for Channel 4, namely: “Yes and listen that’s why I’m telling you I will cooperate fully with Sir Jeremy Heywood’s inquiry, but it has to be Sir Jeremy Heywood’s inquiry and that’s why I will answer the questions to him., I told you the first I became aware of this, and this is already on public record, was when I received a phone call on Friday afternoon from a journalist making me aware of it.” [43] There is no dispute that the statement was made before an election. [44] There is no dispute that the words “I told you the first I became aware of this, and this is already on public record, was when I received a phone call on Friday afternoon (i.e. Friday, 3 April 2015) from a journalist making me aware of it” constituted a false statement of fact, in other words, a lie. Obviously the first respondent had been aware of the existence of the memo and its contents as described to him by Mr Roddin since the flight to the Faroe Islands in March 2015. Moreover he had authorised Mr Roddin to release the memo to the Daily Telegraph. The memo had been given to Mr Johnson of the Daily Telegraph on 1 April 2015. Thus it is not suggested that the first respondent had “reasonable grounds for believing, and did believe, that statement to be true”. [45] The two issues in dispute are: (a) whether the lie was a false statement of fact “in relation to (the first respondent’s) personal character or conduct”; and (b) whether the lie was uttered “for the purpose of affecting the return of (the first respondent) at the election”. Only if those two elements are proved beyond reasonable doubt are the petitioners able to rely upon s.106. (a) Whether the first respondent made a false statement of fact “in relation to [his] personal character or conduct”

[46] Many of the leading authorities in this area of election law focus upon the distinction between false statements in relation to “political” or “public” matters on the one hand, and “personal” or “private” matters on the other. The distinction is important, as it is considered that members of the public are able to assess and, if necessary, discount false criticisms of political or public matters, whereas false allegations about candidates’ private lives and conduct (perhaps seriously damaging their standing with the electorate) are much less easy for members of the public to verify or refute, particularly in the relatively short time available in an election campaign. Equally, on the view which we

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have taken in our earlier decision (namely that s.106 may be engaged where a statement could be regarded as positive and in favour of the candidate), an inaccurate laudatory or exculpatory or vindicating statement in relation to the personal character or conduct of a candidate for the purpose of affecting his return at the election may be less easy for members of the public to verify or refute. [47] In one leading judgment, R (Woolas) v Parliamentary Election Court Thomas LJ at paras 110 et seq explained: “110 In our view, the starting point for the construction of section 106 must be the distinction which it is plain from the statutory language that Parliament intended to draw between statements as to the political conduct or character or position of a candidate and statements as to his personal character or conduct. It was as self-evident in 1895 as it is today, given the practical experience of politics in a democracy, that unfounded allegations will be made about the political position of candidates in an election. The statutory language makes it clear that Parliament plainly did not intend the 1895 Act to apply to such statements; it trusted the good sense of the electorate to discount them. However, statements as to the personal character of a candidate were seen to be quite different. The good sense of the electorate would be unable to discern whether such statements, which might be highly damaging, were untrue; a remedy under the ordinary law in the middle of an election would be difficult to obtain. Thus the distinction was drawn in the 1895 Act which is re-enacted in section 106 of the 1983 Act and which is reflected in the decisions to which we have referred at para 87(ii) above. 111 In our judgment, as Parliament clearly intended that such a distinction be made, a court has to make that distinction and decide whether the statement is one as to the personal character or conduct or a statement as to the political position or character of the candidate. It cannot be both. 112 Statements about a candidate which relate, for example, to his family, religion, sexual conduct, business or finances are generally likely to relate to the personal character of a candidate . . . .” [48] Further guidance has been given by Commissioner Mawrey QC in Erlam v Rahman: “113. . . (Thomas LJ in Woolas) . . . drew a distinction between statements made about a candidate in his political capacity and those made about his personal character and conduct. The court accepted, however, that a statement might start out as being purely political but might go further and attack the candidate’s personal character . . . .” [49] We agree. As stated in para.32 of our previous decision: “[W]e consider that a false statement of fact may be ‘in relation to the candidate’s personal character or conduct’ even although it is made in a political context by someone who is the holder of an office in a particular party and relates to events involving politicians, political campaigning, political parties’ offices, staff, publications and so on. Each case must be considered on its own facts, and the question may often be one of fact and degree. Circumstances can be envisaged where a false statement of fact is of such a nature that the effect in relation to a candidate’s personal character or conduct transcends the political context. . . . We consider therefore that it is necessary for this court to examine the facts surrounding the statement and its context with some care. The question of the type of relationship between the statement and the personal character and conduct of the first respondent is one which requires evidence, including evidence as to the

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653

motive or reason for giving the false statement . . . we consider that, in a case such as this, there may be subtle but significant inferences and nuances to be drawn from evidence when heard.” [50] A significant feature of the present case is that the catalyst for the false statement was a leak of confidential but inaccurate information, generally accepted as being damaging to the First Minister and the SNP. The leak was made to the Daily Telegraph on 1 April 2015, and was used by that newspaper at a time of its choice (in fact 3 April 2015) as the basis of an article designed to undermine voters’ confidence in the SNP. [51] Previous reported cases have not dealt with such a catalyst. Evidence about the practice of leaking in Westminster was therefore of considerable assistance. [52] The practice of leaking information, particularly false information, in order to embarrass political opponents, may strike many members of the public as by definition dishonest and reprehensible. However the evidence led in the present case suggested that in British politics, certainly in Westminster, the leaking of information in order to achieve a political goal is not uncommon. A House of Commons Public Administration Select Committee Report “Leaks and Whistleblowing in Whitehall” (10th report of session 2008–09, No 7/23 of Process) contains the following passages: “Political leaking and self-authorisation 32. We were told by David Hencke that the majority of leaks tended to be political in origin, primarily coming from special advisers or ministers, and undertaken with political goals in mind. Similarly, Professor Hennessy said that one reason for leaking was a desire to embarrass other government departments. Again, he attributed this form of leaking primarily, but not exclusively, to political sources . . . . 33. Ministers have much more scope to authorise or self-authorise the release of information than civil servants and it is therefore harder to speak of a minister ‘leaking’ information. Two of our witnesses cited the saying ‘I brief, you leak’ to illustrate this difference of authority. 35. The partial, premature or anonymous disclosure of information damages trust and morale within government; in particular, leaking against ministers or departments undermines Cabinet-based government. This applies to the anonymous release of departmental information by ministers as much as it does to leaks by special advisers or civil servants. However, no government has seemed able or willing to stamp out this practice. 36. Special advisers are, in theory, subject to the same rules regarding the disclosure of information as other civil servants. However, only the responsible minister has the power to discipline a special adviser for leaking information. In practice, this is unlikely where the adviser has been acting in what they believe to be the minister’s interests.We do not believe this is a desirable situation . . . However, political leaking is a problem that can only be tackled by a change in political culture . . . .” [53] That report suggests that the practice of leaking information by special advisers and ministers, for the purpose of achieving a political goal or goals, is not uncommon. It suggests that leaking with a view to embarrassing others involved in politics, while regarded as undesirable and damaging for trust and morale within government, is not regarded as so morally reprehensible that the person responsible for the leak becomes a social or political outcast. The fact that the practice of leaking appears to be part of politics, and indeed if undertaken by a minister may be regarded as “briefing”, rather than “leaking”, suggests that participation in a leak would not necessarily be regarded as

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654 A

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2016 S.C.L.R.

dishonest or dishonourable. No matter how much members of the public might personally disapprove of the practice, it appears at present to be part of the Westminster culture. Members of the public cannot therefore assume that a member of Parliament or office-holder will never be involved in a politicallymotivated leaking exercise, all the more so during an election campaign. [54] Against that background, we turn to consider whether the lie told by the first respondent in the course of the Channel 4 interview can properly be characterised as a false statement of fact “in relation to (his) personal character or conduct”. Did the first respondent in some way, either expressly or by implication, give a description in relation to his personal character or conduct which was false? [55] At the outset, we note that the word “statement” is defined in the Oxford English Dictionary as “something which is stated . . . a written or oral communication setting forth facts”. A definition in the Chambers Dictionary is “a thing stated, especially a formal written or spoken declaration”. Accordingly a communication of some sort is required, whether written or oral. Conduct alone will not satisfy the requirements of s.106, although conduct may shed light on the meaning or import of the statement given. [56] In our opinion it is a crucial part of the offence in terms of s.106 that the false statement must be “in relation to . . . personal character or conduct”. The restriction was no doubt imposed by Parliament for the reasons referred to by Thomas LJ in Woolas quoted above. Thus an example of what was perceived to be a lie was given in evidence by Tavish Scott, MSP (namely the statement given by Alex Salmond that Scotland had legal advice about an independent Scotland’s membership of the European Union). In our view, that would not be caught by s.106, as it was not a statement in relation to personal character or conduct. It is of the essence of s.106 that it does not apply to lies in general: it applies only to lies in relation to the personal character or conduct of a candidate made before or during an election for the purpose of affecting that candidate’s return. [57] If a candidate, in the course of an election campaign, made a false statement to the effect that he had “never been convicted of forgery/bribery/ extortion” (when in fact he had been so convicted), it is likely that we would be persuaded that the words amounted to a false statement “in relation to (his) personal character or conduct”. Again, if a candidate made a false statement that he “would never be involved in any type of fraudulent or dishonest financial dealing” (when in fact he had), it is likely that we would be similarly persuaded. Bringing matters closer to the present case, if a candidate made a false statement that he “would never leak an internal confidential memo, no matter how helpful that might be to his party, as he regarded the practice of leaking confidential information as dishonest and morally reprehensible (all the more so if the information was inaccurate), and he personally would not stoop to such tactics”, when in fact that candidate had leaked an internal confidential memo containing material which was inaccurate and highly damaging to an opponent, we would be likely to conclude that the candidate had given a false statement “in relation to (his) personal character or conduct”, because he would be falsely holding himself out as being of such a standard of honesty, honour, trustworthiness and integrity that, in contrast with what others in Westminster might do, he would never be involved in such a leaking exercise. [58] In the present case, when speaking to the Channel 4 interviewer, the first respondent did not make such an express statement about his personal character or conduct. He did not, for example, describe himself as a trustworthy, straightforward, and honourable individual who would not be involved in

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2016 S.C.L.R.

Morrison v Carmichael (EC)

655

any leak, far less an inaccurate leak. His constituents might, as a result of their own experience of him as their MP over the past 14 years, have formed their own view about his character and conduct, and might have thought that he was indeed of such character that his code of conduct would not permit him to be involved in such a leak. They would, of course, be entitled to that view. But on 5 April 2015 in the Channel 4 interview, the first respondent did not expressly make a false statement to the effect that his personal character and conduct was such that he would never be involved in a leaking exercise. What he said was a blatant but simple lie about his lack of awareness of one particular leak. We accept that the lie was intended to imply his non-involvement in that leak. What is less clear, however, is whether his lie can be construed as proof beyond reasonable doubt that he was making a false statement about himself to the effect that he was someone who was upright, honourable, trustworthy, and straightforward, and therefore would not be involved in the leak. [59] On this matter, we are left with a reasonable doubt. That doubt is whether the false statement was a general one in relation to his personal character or conduct, or whether it was more specific and limited to a false statement that he was not involved in that particular leak. Put another way, insofar as this issue is a legal one, or rather a question of mixed fact and law, we are not persuaded that the false statement proved to have been made was in relation to anything other than the first respondent’s awareness (or lack of awareness) of a political machination. Accordingly we are not satisfied beyond reasonable doubt that the words used by the first respondent amounted to a “false statement of fact in relation to (his) personal character or conduct”. It follows that we are not satisfied beyond reasonable doubt that an essential element of s.106 has been proved. Even if we were to apply a lesser standard of proof (ie, the civil standard of “on a balance of probabilities”), we would not be satisfied that the first respondent has been proved to have made a “false statement of fact in relation to (his) personal character or conduct” in the course of the Channel 4 news interview, a fortiori bearing in mind the desirability of a strict interpretation of s.106: cf, Bennion, Statutory Interpretation (6th edn), ss.271–282; Thomas LJ in R (Woolas) v Parliamentary Election Court, paras 82 et seq and 94–95. [60] That is sufficient for the resolution of this case. However for completeness, we give our views on other matters.

(b) Whether the first respondent made the false statement of fact for the purpose of affecting his return at the election

[61] On this issue, we are satisfied that it has been proved beyond reasonable doubt that the first respondent made the false statement of fact for the purpose of affecting (positively) his own return at the election. We have reached that view for two reasons. [62] The first respondent explained in evidence that his aim was to keep the attention of the media (and the public) focused on an important revelation about the First Minister and the SNP which the leaked memo was intended to support. That revelation was summarised by the first respondent in his first answer to the Channel 4 interviewer No 7/3/1 of Process) as follows: “. . . the self-evident truth is of course that we know that Nicola Sturgeon would like to have the Conservatives in government on their own at Westminster because the one thing that matters more to the Nationalists than anything else is getting independence and they would see that as an opportunity to create a wedge between Scotland and the rest of the United Kingdom”.

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Morrison v Carmichael (EC)

2016 S.C.L.R.

[63] As the first respondent said in evidence, he wanted public attention to remain focused on that important political message, rather than becoming side-tracked by revelations that it had been he and his special adviser Mr Roddin who had leaked the memo to the Daily Telegraph. In his view, if public attention remained focused on that political message, voters who had anxieties about Scottish independence might find voting for the SNP a less attractive prospect. The inescapable inference, in our opinion, is that if the SNP became a less attractive prospect, the first respondent’s chances of a comfortable majority in what had become a “two-horse race” in Orkney and Shetland would be enhanced. [64] Thus we are satisfied beyond reasonable doubt that the false statement of fact was made for the purpose of affecting (positively) the return of the first respondent as a Liberal Democrat in the constituency of Orkney and Shetland. [65] Furthermore, we consider that the evidence established that there was another purpose underlying the false statement, namely a desire not to be identified as being involved in the leak. The rebuttal of the content of the memo had been so furious, and the First Minister’s prompt denial so clearly corroborated by the French senior diplomats, that the interest of the public and the media quickly focused on the fact that an inaccurate leak damaging to the First Minister and the SNP had emanated from the Scotland Office in the course of a hard-fought election campaign. As the Channel 4 interviewer asked the first respondent (No 7/3/2 of Process) “Do you think it’s embarrassing for you and the Scotland Office?” Accordingly from the point of view of the first respondent, the leak, instead of being successful, had to a large extent backfired. A Cabinet Office inquiry into the source of the leak had begun (on Saturday, 4 April 2015, the day before the Channel 4 interview). The media were speculating about who might have leaked the memo, and for what purpose. The first respondent stated in evidence that these inquiries very rarely established the source of a leak, and also that he wished to protect MrRoddin. One inference from his evidence in court and from his actions at the time (see paras 66 et seq below) was that he could foresee that the consequences of being identified as someone involved in the leak would be unpleasant and detrimental to him. Moreover the nature of the rebuttals issued by Nick Clegg and the spokesperson for the Liberal Democrats might be thought to imply that, in the party’s view, no Liberal Democrat candidate (or certainly not the first respondent) would have been involved in such a leak. Thus on the basis of all the evidence led before us we are satisfied beyond reasonable doubt that another purpose underlying the false statement was self-protection (a self-protection extending to Mr Roddin, provided that neither of them could be identified). Such self-protection would avoid attracting critical comment, losing esteem in the public eye, and being the subject of any disciplinary consequences, all at a very inconvenient time during the lead-up to the election. Such self-protection would avoid his presenting as a less attractive electoral candidate for the voters in Orkney and Shetland. For this reason also, we consider that the first respondent made the false statement “for the purpose of affecting (his) return . . . at the election”. The first respondent’s response to the Cabinet Office inquiry

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[66] As noted in para.10 above, the line of evidence relating to the first respondent’s response to the Cabinet Office inquiry was objected to. Evidence on that matter was allowed subject to competency and relevancy. While it is not strictly necessary for us to rule on the matter, again we do so for completeness.

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2016 S.C.L.R.

Morrison v Carmichael (EC)

657

[67] We consider that senior counsel for the petitioners was entitled to explore the first respondent’s response to the Cabinet Office inquiry, despite the lack of detailed averments on that matter, for two reasons. First, it was a matter peculiarly within the knowledge of the first respondent. The petitioners had no way of discovering, prior to the court hearing, the details which emerged during evidence. The inquiry was confidential. Only the ultimate findings were published (No 6/2 of Process). The first respondent had not volunteered any additional information either within the court process or outside. Secondly, as we indicated in para.34 of our earlier decision, it is our opinion that: “. . . the proceedings in an election petition and answers are indeed sui generis. The proceedings are not an ordinary action in the Court of Session or in a sheriff court. The election court is a United Kingdom statutory body which has taken over certain functions of a committee of Parliament. The election court does not ultimately issue an executive judgment, but reports to the House of Commons. As an election petition must, in terms of the 1983 Act, be presented to the Court of Session, it is necessary to have some rules of court governing procedure (chapter 69): but those rules do not, in our opinion, result in the imposition of the strict rules of relevancy and specification applicable to ordinary actions raised in the Court of Session or the sheriff court. Thus we do not accept that strict rules of pleading . . . must be applied to election petitions’. In the present case, the petitioners aver that a Cabinet Office inquiry was ordered on 4 April 2015. The petitioners also aver that the inquiry published its findings on 22 May 2015, and the findings are quoted in para.7 of the petition. There is a further reference to the inquiry in para.9. In our opinion, those averments are sufficient in terms of Rules of Court 69.13 and 69.14 in election court proceedings such as these for an exploration in evidence of the first respondent’s role in and response to the inquiry. On any view, the evidence was relevant to the second question which we had to address, as it was of assistance in assessing the first respondent’s purpose in making the false statement. [68] The relevant evidence demonstrated, in our view, that the first respondent’s role in and response to the inquiry were unimpressive. The first respondent stated in evidence that he had agreed at the outset of the inquiry that “ministers and special advisers would co-operate with the inquiry” (transcript 10 November 2015, p.21). Yet in our opinion his evidence relating to the questionnaire issued by the inquiry demonstrated a lack of candour and cooperation on his part. As he explained, he received the questionnaire on or about 12 April 2015. There were four fairly general questions. Two questions which he could recall were along the lines of whether he had received the memo, and if so, what had he done with it. The first respondent said that he felt entitled to answer the first question in the negative, as he had never physically received or seen the memo. As a result, he considered that the second question became “largely redundant” (transcript 9 November 2015, p.75). He commented that answers depended on the questions asked, and that the choice of question was for those conducting the inquiry. By adopting this approach, he “thought that it might have been possible to avoid the whole truth”. He acknowledged that he had answered the questionnaire “less than fully truthfully” (transcript 9 November 2015, p.68). We are satisfied beyond reasonable doubt that it was only after Mr Roddin was identified by means of telephone records as the person who leaked the memo to the Daily Telegraph, and only when the first respondent was interviewed face-to-face on Tuesday,

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2016 S.C.L.R.

12 May 2015 (some five days after the election), that the first respondent admitted his involvement in the leak. [69] In evidence, the first respondent gave the impression that the timing of his admission was purely as a result of the rate of progress of the Cabinet Office inquiry. In our opinion however, the first respondent’s approach to the inquiry was at best disingenuous, at worst evasive and self-serving. We consider that he could and should have been straightforward and candid in his response to the inquiry. That would have been likely to reveal his involvement in the leak at some time prior to the election, so that his constituents, when voting, would have been “in full possession of the facts during the election” (in the third petitioner’s words, transcript 9 November 2015, p.20). It is our opinion that his failure to be straightforward and candid with the inquiry resulted from his hope that he would not be identified as being involved in the leak— preferably not identified at all, but at least not identified until after the election on 7 May 2015, as otherwise his chances of electoral success might be prejudicially affected. [70] On the evidence, the subsequent revelation of what could be seen as a deliberate “cover-up” by the first respondent very much enhanced the shock, outrage and upset felt by his constituents when the inquiry published its results on 22 May 2015, a fortnight after the election.We refer to the comments of the third petitioner and the Independent Highlands and Islands MSP, quoted in paras 37 and 38 above. Ultimately however the first respondent’s unimpressive response to the inquiry, although showing him in a bad light, and resulting in his constituents being initially misled and then justifiably shocked and dismayed on discovering that they had been so misled, cannot alter our conclusion that section 106 does not, on a proper application of the law to the facts proved, apply in this case. Conclusion

[71] For the reasons given above, we refuse the prayer of the petition. We give our determination in terms of s.144 and s.158 of the Representation of the People Act 1983 as follows: 1. E

2. 3.

the first respondent has not been proved to have committed an illegal practice in terms of s.106 of that Act; the first respondent was duly elected; and the first respondent’s election was not void.

For the petitioners: J J Mitchell QC, Irvine, instructed by Balfour + Manson LLP, Solicitors, Edinburgh. For the first respondents: R Dunlop QC, R Anderson, instructed by Gilson Gray LLP, Solicitors, Edinburgh. For the second respondent: No appearance. F

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A COURT OF SESSION

13 January 2016

Inner House (Extra Division) Lady Paton, Lady Dorrian and Lord Drummond Young A J ALLAN (BLAIRNYLE) LTD and another

Pursuers (Respondents)

against STRATHCLYDE FIRE BOARD

Defenders (Reclaimers)

Reparation—Duty of care—Fire service attempting to extinguish fire—Fire reigniting after fire service left—Whether duty of care— Scope of duty C

Section 9 of the Fire (Scotland) Act 2005 provides: “Fire-fighting. (1) Each relevant authority shall make provision for the purpose of— (a) extinguishing fires in its area; and (b) protecting life and property in the event of fires in its area. (2) In making provision under subsection (1) a relevant authority shall in particular— (a) secure the provision of the personnel, services and equipment necessary to meet efficiently all normal requirements; (b) secure the provision of training for personnel; (c) make arrangements for— (i) dealing with calls for help; and (ii) summoning personnel, in the event of fire; (d) make arrangements for obtaining information required or likely to be required for the purpose mentioned in that subsection; (e) make arrangements for ensuring that reasonable steps are taken to prevent or limit damage to property resulting from action taken for the purpose mentioned in that subsection.” Section 25 of the 2005 Act provides: “Powers of authorised employees in relation to emergencies. (1) An employee of a relevant authority authorised in writing by the authority for the purposes of this section (an ‘authorised employee’) and on duty may – (a) if the employee reasonably believes that a fire has broken out, do anything the employee reasonably believes to be necessary for the purpose of— (i) extinguishing the fire; or (ii) protecting life or property; (b) if the employee reasonably believes that a road traffic accident has occurred, do anything the employee reasonably believes to be necessary for the purpose of— (i) rescuing people; or (ii) protecting them from serious harm;

659

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660 A

AJ Allan (Blairnyle) Ltd v Strathclyde Fire Board (IH) 2016 S.C.L.R. (c) if the employee reasonably believes that an emergency, other than a fire or road accident has occurred, do anything the employee reasonably believes to be necessary for the purpose of carrying out any function conferred on the authority in relation to the emergency; and (d) do anything, the employee reasonably believes to be necessary for the purpose of preventing or limiting damage to property resulting from any action taken as mentioned in paragraph (a), (b) or (c).

(2) An authorised employee may, in particular under subsection (1)— (a) enter premises or a place (by force if necessary); (b) move a vehicle without the consent of its owner; (c) force open and enter a lockfast vehicle; (d) close a road; (e) stop and regulate traffic; (f) restrict the access of persons to premises or a place.” The defenders attended a fire in the pursuer’s kitchen. They extinguished the fire, which involved a Rayburn stove and a chimney and left in the early afternoon. Subsequently, in the early hours of the following morning the fire reignited. The pursuers averred that this occurred as a result of smouldering rotten timbers in the roof space, and the farmhouse burned down. The pursuers raised an action for damages based on alleged negligence on the part of the fire brigade. The pursuer averred that once the fire appeared to be extinguished the fire fighters should have used a thermal imaging camera to locate any questionable areas and should have maintained a regular check on the farmhouse to make sure that the fire was truly extinguished. The defenders pled that the action was irrelevant and the Lord Ordinary allowed a proof before answer. The defenders reclaimed. The defenders argued that the scope of any duty of care which was owed to the public at large was restricted. There was a duty to take reasonable care not to make things worse; not to inflict a fresh injury. The case for the pursuers rested on the concept of assumption of responsibility, but the performance of a statutory function did not necessarily equate to an assumption of responsibility. Counsel for the pursuers pointed out that it was not suggested that there was a common law duty of care, parasitic on a statutory duty or a statutory power, but the case for the pursuer was based on ordinary principles of common law negligence on the basis that the fire service had “actually done acts or entered into relationships or undertaken responsibilities” which had given rise to a common law duty of care. The facts averred were sufficient to disclose an assumption of responsibility and relationship of proximity between pursuers and the fire service as was described in the authorities. There could be circumstances in which the fire service should be held to owe both broad duties to the public and specific duties to individuals. The pursuers were entitled to a proof rather than a proof before answer and the reclaiming motion should be allowed to the extent of allowing a proof rather than a proof before answer and otherwise, it should be refused. Held (1) that the carefully developed, policy-based, more restrictive approach currently approved and adopted by the Supreme Court had to be followed by the Scottish courts (para.26); (2) that the fire service owed a duty of care to the general public, including the pursuers, but that duty had been to take care not negligently to add to the damage which the pursuers would have suffered if the fire service had done nothing; in other words, not negligently to inflict a fresh injury (para.32);

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AJ Allan (Blairnyle) Ltd v Strathclyde Fire Board (IH) 661

(3) that the averments had not disclosed anything amounting to an â&#x20AC;&#x153;assumption of responsibilityâ&#x20AC;? on the part of the defenders in the instant case and the action was irrelevant in (para.32); and (4) (per Lord Drummond Young) that public policy had to be an essential ingredient in assessing whether there existed a duty of care of a given scope, and policy was of vital importance in determining the scope of a duty of care and had to be applied on an essentially casuistic basis (para.93); and action dismissed. Observed (per Lord Drummond Young) that it was to be hoped that in an appropriate case, the law might develop in such a way that, at least in clear cases where action can be taken without danger to the rescuer, the officers of the public service, such as the fire service or police were obliged to take action to rescue persons in danger, and although that had to have required a further exception to the general rule that there was no liability for a pure omission, policy considerations could have been made to have prevailed over a mechanical application of the rule (para.96). Burnett v Grampian Fire and Rescue Services [2007] CSOH 3; (O.H.) 2007 S.C.L.R. 192; 2007 S.L.T. 61, Duff v Highlands and Islands Fire Board, 1995 S.L.T. 1362 and Gibson v Orr, (O.H.) 1999 S.C.L.R. 661; 1999 S.C. 420 disapproved.

C Cases referred to: Alexandrou v Oxford [1943] 4 All E.R. 328 Anns v Merton London Borough Council [1978] A.C. 728; [1977] 2 W.L.R. 1024; [1977] 2 All E.R. 492 Antonucci or McConnell v Ayrshire and Arran Health Board, 14 February 2001, unreported Barrett v Enfield London Borough Council [2001] 2 A.C. 550; [1999] 3 W.L.R. 79; [1999] 3 All E.R. 193 Burnett v Grampian Fire and Rescue Services [2007] CSOH 3; (O.H.) 2007 S.C.L.R. 192; 2007 S.L.T. 61 Caparo Industries plc v Dickman [1990] 2 A.C. 605; [1990] 2 W.L.R. 358; [1990] 1 All E.R. 568 Capital & Counties plc v Hampshire County Council [1997] Q.B. 1004; [1997] 3 W.L.R. 331; [1997] 2 All E.R. 865 Duff v Highlands and Islands Fire Board, 1995 S.L.T. 1362 East Suffolk Rivers Catchment Board v Kent [1941] A.C. 74 Furnell v Flaherty [2013] EWHC 377 (QB) Geddis v Prprietors of Bann Reservoir (1878) 3 App. Cas. 430 Gibson v Orr, (O.H.) 1999 S.C.L.R. 661; 1999 S.C. 420 Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] 1 W.L.R. 1057; [2004] 2 All E.R. 326 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] A.C. 465; [1963] 3 W.L.R. 101; [1963] 2 All E.R. 575 Henderson v Merrett Syndicates Ltd [1995] 2 A.C. 145; [1994] 3 W.L.R. 761; [1994] 3 All E.R. 506 Home Office v Dorset Yacht Co Ltd [1970] A.C. 1004; [1970] 2 W.L.R. 1140; [1970] 2 All E.R. 294 Jamieson v Jamieson, 1952 S.C. (H.L.) 44; 1952 S.L.T. 257 K2 Restaurants Ltd v Glasgow City Council [2013] CSIH 49 Kent v Griffiths [2001] Q.B. 36; [2000] 2 W.L.R. 1158; [2000] 2 All E.R. 474 Kent v London Ambulance Service (No.2) [1999] P.I.Q.R. 192 Knightley v Johns [1982] 1 W.L.R. 349; [1982] 1 All E.R. 851 MacDonald v Aberdeenshire Council [2013] CSIH 83; (I.H.) 2014 S.C.L.R. 111 2014 S.C. 114; 2014 S.L.T. 2

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Mackay v Scottish Fire and Rescue Service [2015] CSOH 55; 2015 S.L.T. 342 Maloco v Littlewoods Organisation Ltd (sub nom Smith v Littlewoods Organisation Ltd), (H.L.) 1987 S.C.L.R. 489; 1987 S.C. (H.L.) 77; 1987 S.L.T. 425 Marc Rich& Co AG v Bishop Rock Marine Company Ltd [1996] A.C. 211; [1995] 3 W.L.R. 227; [1995] 3 All E.R. 307 Michael v Chief Constable of South Wales Police [2015] UKSC 2; [2015] A.C. 1732; [2015] 2 W.L.R. 343; [2015] 2 All E.R. 635 Mitchell v Glasgow City Council [2009] UKHL 11; (H.L.) 2009 S.C.L.R. 270; 2009 S.C. (H.L.) 21; [2008] CSIH 19; (I.H.) 2008 S.C.L.R. 375; 2008 S.C. 351; 2008 S.L.T. 368 Murphy v Brentwood District Council [1991] 1 A.C. 398; [1990] 3 W.L.R. 414; [1990] 2 All E.R. 908 Ogopogo, The [1970] 1 Lloyds Rep. 257; [1971] 2 Lloyds Rep. 410 OLL Ltd v Secretary of State for the Home Department [1997] 3 All E.R. 897 Oâ&#x20AC;&#x2122;Rourke v Camden London Borough Council [1980] A.C. 188; [1997] 3 W.L.R. 86; [1997] 3 All E.R. 23 Philcox v Civil Aviation Authority, The Times, 8 June 1995 Rigby v Chief Constable of Northamptonshire [1985] 1 W.L.R. 1242; [1985] 2 All E.R. 985 Rowley v Secretary of State for Work and Pensions [2007] 1 W.L.R. 2861 Stovin v Wise [1996] A.C. 923; [1996] 3 W.L.R. 388; [1996] 3 All E.R. 801 Sutherland Shire Council v Heyman (1985) 60 A.L.F. 1 Ultramares Corporation v Touche (1931) 174 N.E. 441 Van Colle v Chief Constable Hertfordshire Police [2008] UKHL 50; [2009] 1 A.C. 225; [2008] 3 W.L.R. 593; [2008] 3 All E.R. 977; Watson v British Boxing Board of Control Ltd [2001] Q.B. 1134; [2001] 2 W.L.R. 1256 X v Hounslow London Borough Council [2009] EWCA Civ 286; [2009] P.T.S.R. 1158 X (Minors) v Bedfordshire County Council [1995] 2 A.C. 633; [1995] 3 W.L.R. 152; [1995] 3 All E.R. 353. On 13 January 2016 the following opinions were issued. The full circumstances of the case and the arguments of counsel are to be found in the opinion of Lady Paton. LADY PATON Whether fire service liable in damages when a fire, apparently extinguished, re-ignited

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[1] In this action for damages, it is averred that the first pursuer owned a farmhouse at Gartocharn, Alexandria, Dunbartonshire. The second pursuer, a director of the first pursuer, lived in a caravan but used the farmhouse kitchen. On 31October 2008, there was a fire involving the Rayburn stove in the kitchen, and a chimney. The second pursuer called the fire brigade. Fire tenders arrived and extinguished the fire.They left at about 3pm. Subsequently, in the early hours of the following morning (1 November 2008), the fire re-ignited. The pursuers aver that this occurred as a result of smouldering rotten timbers in the roof space. The farmhouse burned down. [2] The pursuers now seek to recover damages on the basis of alleged negligence on the part of the fire brigade. It is averred, inter alia, that once the fire appeared to be extinguished, the fire fighters should have used a thermal imaging camera to locate any questionable areas. Further it is averred that the

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fire fighters should have maintained a regular check on the farmhouse to make sure that the fire was truly extinguished. [3] In para.28 of his opinion dated 2September 2014, LordBrailsford allowed a proof before answer, although the interlocutor of that date repelled the defenders’ preliminary pleas. The defenders reclaimed.

Submissions for the defenders

[4] Senior counsel submitted that the action as pled was irrelevant. While the defenders owed a duty of care to the public at large, including the pursuers, the scope of that duty was restricted. It was a duty to take reasonable care not to make things worse, in other words not to inflict a fresh injury (East Suffolk Rivers Catchment Board v Kent; Capital & Counties plc v Hampshire County Council). As the fire service were not liable in damages if they failed to attend a fire (East Suffolk Rivers Catchment Board, p.88; Capital & Counties plc, p.1030, subsequently approved in the House of Lords at para.32 of Gorringe v Calderdale Metropolitan Borough Council), it would be unprincipled to suggest that a fire service which attended and sought to extinguish a fire could be liable in damages (except of course where they negligently caused fresh injury). An analogy could be drawn with rescuers: there was no general duty to rescue, and if a rescuer made a negligent rescue attempt but did not negligently cause fresh injury, he incurred no liability. [5] The pursuers’ case rested on the concept of assumption of responsibility. However performance of a statutory function did not necessarily equate to an assumption of responsibility (Rowley v Secretary of State for Work and Pensions; X v Hounslow London Borough Council). In any event, the existence of a duty of care was not enough: its scope had to be ascertained (cf, Lord Hope of Craighead at paras 11, 14, 23, and 26 of Mitchell v Glasgow City Council (2009)). The recent Supreme Court decision in Michael v Chief Constable of South Wales Police gave further support to the defenders’ position. Previous Scottish decisions had to give way to guidance from the Supreme Court. [6] In the present case, it was accepted that nothing that the defenders did made matters worse, or inflicted a fresh injury. In law, there were no duties of the scope averred by the pursuers. The action was irrelevant. The reclaiming motion should be allowed and the action dismissed.

Submissions for the pursuers

[7] Counsel for the pursuers emphasised that it was not suggested that there was a common law duty of care parasitic on a statutory duty or a statutory power. The pursuers’ case was based on ordinary principles of common law negligence, and was of the type described by Lord Hoffmann in para.38 of Gorringe v Calderdale Metropolitan Borough Council, namely a case where the fire service had “actually done acts or entered into relationships or undertaken responsibilities which [gave] rise to a common law duty of care” (Barrett v Enfield London Borough Council; K2 Restaurants Ltd v Glasgow City Council, paras 39–42). What was criticised was the manner in which the statutory duty was performed (Lord Browne-Wilkinson’s category(b) at p.735F of X (Minors) v Bedfordshire County Council). As the pursuers’ case was not parasitic on a statutory duty, the dicta cited from Rowley v Secretary of State for Work and Pensions, para.54, Mitchell v Glasgow City Council (2008), para.79, and X v Hounslow London Borough Council, para.90, were not in point. [8] The facts as averred were sufficient to disclose an assumption of responsibility and a relationship of proximity between the pursuers and the fire service such as was described in para.38 of Gorringe. The Outer House

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decision Burnett v Grampian Fire and Rescue Services was entirely in point, and was correctly decided. Further support for the pursuers could be found in Duff v Highlands and Islands Fire Board. Moreover Gibson v Orr constituted a major problem for the defenders: if a duty of care was owed by the police in Gibson, it was inconceivable that a duty of care was not owed by the fire service in the present case. [9] While it was accepted that different considerations might apply to the ambulance service (Kent v Griffiths), there could nevertheless be circumstances in which the fire service should be held to owe both broad duties to the public and specific duties to individuals. This was such a case. [10] On the basis of Burnett and Gibson, and to a lesser extent Duff, the pursuers had pled a relevant case and were entitled to a proof (rather than a proof before answer). The reclaiming motion should be allowed, but only to the extent of allowing a proof rather than a proof before answer. Otherwise the Lord Ordinary’s interlocutor should be adhered to and the reclaiming motion refused. Discussion

[11] The Fire (Scotland) Act2005 set up fire-fighting authorities. Duties were imposed and powers granted. In particular, sections 9 and 25 of the 2005 Act provide: [Her Ladyship quoted the sections as set out above and continued:] [12] Thus the defenders are a statutory body with a “general public law duty to make provision for efficient fire-fighting services” (Lord Hoffmann at para.32 of Gorringe v Calderdale Metropolitan Borough Council), a duty sometimes referred to as a “target duty” (LordRodger of Earlsferry at para.89 of Gorringe). The defenders have been given certain statutory powers to enable them to deal with fires, floods, road traffic accidents, and other emergencies. But there is no statutory duty owed to private individuals such as might give rise to a private claim for damages. [13] In this case it is not disputed that a private common law duty of care does not arise from the general public law duty (cf, dicta of LordHoffmann at paras 19 et seq of Gorringe). However emergency services—including fire, police, and ambulance—have, in certain circumstances, been held liable in damages to private individuals for negligence in the performance of their duties. As LordWoolf MR explained in Kent v Griffiths at para.42: “. . . The starting point is the fact that even when a statute only establishes a power for a body to act in a particular manner the body can be liable for negligence if there also a common law duty created on the particular facts of the case. As Lord Browne-Wilkinson states in his significant examination of this subject in X(Minors) v Bedfordshire County Council, [p.]735: “ ‘It is clear that a common law duty of care may arise in the performance of statutory functions. But a broad distinction has to be drawn between: (a) cases in which it is alleged that the authority owes a duty of care in the manner in which it exercises a statutory discretion; (b) cases in which a duty of care is alleged to arise from the manner in which the statutory duty has been implemented in practice.” ’ See too StuartSmith LJ in Capital & Counties plc v Hampshire County Council at p.1031D–E: “. . . where the rescue/protective service itself by negligence creates the danger which caused the plaintiff’s injury there is no doubt in our judgment the plaintiff can recover”.

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[14] When ascertaining the current state of the law in this context, it is necessary to bear in mind:

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“[T]he history of the approach of the courts to the relationship between public failures and private claims in negligence over the last seventy years or more . . . [as] care needs to be taken chronologically to place any given authority firmly in the judicial context in which it was decided” (Turner J at para.53 of Furnell v Flaherty). Significant authorities to date (being decisions of the House of Lords or the Supreme Court unless otherwise indicated, and listed in chronological order) include East Suffolk Rivers Catchment Board v Kent; Anns v Merton London Borough Council; Murphy v Brentwood District Council; X(Minors) v Bedfordshire County Council; Duff v Highland and Islands Fire Board (Lord Macfadyen, Outer House); Stovin v Wise; Capital & Counties plc v Hampshire County Council (Court of Appeal); Gibson v Orr (Lord Hamilton, Outer House); Gorringe v Calderdale Metropolitan Borough Council; Burnett v Grampian Fire and Rescue Service (Lord Macphail, Outer House); Mitchell v Glasgow City Council; Furnell v Flaherty (Turner, Queens Bench); Michael v Chief Constable of South Wales Police; and Mackay v Scottish Fire and Rescue Service (Lord McEwan, Outer House). [15] In my opinion, in a case such as this (concerning the possible liability in delict on the part of a public service body namely the fire brigade), three matters of note arise from the authorities cited above. The first matter is discussed in paras 16–21 below; the second in paras 22–24; and the third in para.25. [16] The first matter is the change and development since the 1940s in the courts’ approach to the nature and scope of any liability on the part of public authorities to individuals who make private claims in respect of the authorities’ alleged negligence in the performance of their public duties. In1941, a clearly defined and fairly restricted approach could be found in East Suffolk Rivers Catchment Board v Kent, where a sea wall had been breached and the river catchment board (a statutory authority with certain powers) attempted, not very successfully, to deal with the ensuing flooding. At pp.84, 85 and 87, ViscountSimon LC reasoned as follows: “(p.84) . . . The question is whether . . . the appellants are liable to the respondents in damages to such amount as would represent the net loss to the respondents due to the delay in abating the flood . . . It is not, of course, disputed that if the appellants, in the course of exercising their statutory powers, had inflicted fresh injury on the respondents through lack of care or skill, they would be liable in damages for the consequences of their negligent act (p.85) . . . But . . . nothing of this sort happened . . . the respondents cannot point to any injury inflicted upon them by the appellant Board, unless it be the Board’s want of success in endeavouring to stop the flooding at an earlier date. In order that the respondents should succeed in this action, it is necessary that they should establish, not only that the appellants were wanting in care and skill when exercising their statutory powers, but that they inflicted injury and loss upon the respondents by their negligence . . . In the present case, the damage done by the flooding was not due to the exercise of the appellants’ statutory powers at all. It was due to the forces of nature which the appellants, albeit unskilfully, were endeavouring to counteract. Supposing, for example, that after the appellants had made their first unsuccessful attempt they had decided to abandon their efforts altogether, the respondents could have had no legal claim against them for withdrawing, even though the result might have been to leave the respondents’ land indefinitely flooded. This shows, I think, how different is the relation

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between the Catchment Board and individual owners or occupiers like the respondents, and the relation between a contractor employed by the respondents to mend the wall . . . (p.87) . . . I agree with du Parcq LJ (who gave the dissenting opinion in the Court of Appeal) that (Lord Blackburn’s passage in Sheppard v Glossop Corporation) would be misapplied if it were supposed to support the proposition that a public body, which owes no duty to render any service, may become liable at the suit of an individual, if once it takes it upon itself to render some service, for failing to render reasonably adequate and efficient service. On the other hand, if the public body by its unskilful intervention created new dangers or traps, it would be liable for its negligence to those who suffered thereby . . . .” Similarly Lord Romer at p.102 explained: “ Where a statutory authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power. If in the exercise of their discretion they embark upon an execution of the power, the only duty they owe to any member of the public is not thereby to add to the damages that he would have suffered had they done nothing. So long as they exercise their discretion honestly, it is for them to determine the method by which and the time within which and the time during which the power shall be exercised; and they cannot be made liable, except to the extent that I have just mentioned, for any damage that would have been avoided had they exercised their discretion in a more reasonable way . . . .” [17] However, subsequent decisions tended to favour the finding of liability on the part of public bodies. A high point was reached in 1977 with the decision in Anns v Merton London Borough Council. As Lord Neuberger observed in his address “Reflections on the ICLR Top Fifteen Cases: a talk to commemorate the ICLR’s 150th Anniversary” (6 October 2015): “37. As often happens, the pendulum then swung too far the other way. Having been too restrictive before Donoghue (v Stevenson 1932 SC (HL) 31), the scope of duty of care not merely developed as I have just described, but became too expansive. This was principally as a result of the 1977 decision of the House of Lords in Anns (v Merton London Borough Council), whose effect was to create a risk of ‘liability in an indeterminate amount for an indeterminate time to an indeterminate class’ (Ultramares Corp v Touche (1931) 174 NE 441) to quote from the great US Judge Cardozo J. 38. The House of Lords in Caparo identified a three-part test which has to be satisfied if a negligence claim is to succeed, namely (a) damage must be reasonably foreseeable as a result of the defendant’s conduct, (b) the parties must be in a relationship of proximity or neighbourhood, and (c) it must be fair, just and reasonable to impose liability on the defendant . . . .” cf paras 106–107 in Michael v Chief Constable of South Wales Police. Anns was subsequently overturned in Murphy v Brentwood District Council, and thereafter there appears to have been a policy-based reversion to a more restrictive approach. [18] Recently, in Mitchell and Michael, the House of Lords and the Supreme Court have emphasised the need for a careful approach to the liability of public authorities to private individuals, particularly bearing in mind the possible financial burden which private claims might have upon the restricted resources of public authorities (see, for example, the dicta of LordToulson JSC at para.122 of Michael).

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[19] Circumstances in which a public body might currently be found liable to an individual for negligence in the courts in England have been usefully summarised by TurnerJ in Furnell v Flaherty as follows: “60 There are two broad circumstances of case in which a public body remains vulnerable to an action in negligence notwithstanding the state of the law now governed by Gorringe. The first arises where the careless acts of the defendant have left the claimant in a worse position than if it had done nothing at all . . . 61 The second category of case in which ordinary private law principles could apply in a relevant way is that in which there has been an assumption or attachment of responsibility. In the context of the Caparo approach, this is, at least in part, an aspect of the test of ‘proximity’ . . .” I agree. [20] Some examples of public service bodies themselves creating an unnecessary danger, or unnecessarily causing damage or injury, include Knightley v Johns (a police officer at the scene of a road traffic accident carelessly creating an unnecessary danger); Rigby v Chief Constable of Northamptonshire (a police officer attending a break-in and carelessly causing damage to the premises); the first and second cases in Capital & Counties plc v Hampshire County Council at pp.1022B–1023A, 1031D–H, 1031H–1032B, and 1034E–G (fire officers attending a fire in block A and turning off the sprinkler system, resulting in the fire going rapidly out of control and spreading not only in block A but also to other blocks B and C); and also a hypothetical example based on East Suffolk Rivers Catchment Board v Kent described at p.1034E–G of Capital & Counties plc v Hampshire County Council, where Stuart-Smith LJ reasoned as follows: “We think that the true analogy between the Hampshire case (where the fire officers switched off the sprinkler system, and as a result the fire spread out of control) and the East Suffolk case (see para.16 above) would be this. Suppose that after the main sea wall had been breached, the plaintiff had constructed a temporary wall which contained the flood water to a relatively small area, and that the defendants then came upon the land to repair the main wall and negligently destroyed the plaintiff’s temporary wall so that the area of the flooding increased before the repairs were completed. In such circumstances the defendants would at least prima facie be liable for the extra damage unless they could show—and the burden would be upon them—that the damage would have occurred in any event, even if they had never come upon the scene. If they were unable to discharge that burden, then they would be liable . . . .” [21] Some examples of relationships giving rise to an assumption of responsibility are described in para.100 of Michael v Chief Constable of South Wales Police. They include relationships in which a duty to take positive action typically arises: contract, fiduciary relationships, employer and employee, school and pupil, health professional and patient. [22] The next matter of importance arising from the authorities cited in para.14 above is the fact that the circumstances in the third case in Capital & Counties plc v Hampshire County Council were very similar to the circumstances in the present case. The circumstances in the third case in Capital & Counties plc were described at p.1023 (under the heading “The London Fire Brigade Case”) as follows: “The second defendants, a company specialising in creating special effects for film and television, caused a deliberate explosion on wasteland

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near the plaintiffs’ industrial premises. Burning debris was scattered over a wide area and small fires broke out. Some of the debris was seen to fall onto the plaintiffs’ premises and smoke was observed coming from a corner of the plaintiffs’ yard. Members of the public made emergency calls to the fire brigade, who responded by sending to the scene within a short time four fire engines complete with a leading fire fighter and fire crews. The members of the fire brigade attending the scene were employed by the defendant fire authority. “When the fire brigade arrived, the second defendants’ staff had already extinguished the fires on the wasteland and there was no visible evidence of any continuing conflagration. The fire brigade’s officers took steps to satisfy themselves that all fires had been extinguished and that there was no residual danger, and they left the scene about 20 minutes after the initial explosion without inspecting the plaintiffs’ premises, which abutted one side of the wasteland, where combustible material was to be seen. It was likely that there would also have been smouldering debris. No member of the plaintiffs’ staff was present and there was no record of any conversation between the fire crews and the plaintiffs’ staff. “Later that evening a fire broke out at the plaintiffs’ premises, which were severely damaged. The plaintiffs issued a writ against the fire authority alleging negligence by their servants or agents in failing adequately to inspect the wasteland and the premises, and failing to ensure that all fires and risk of further fires in the area had been eliminated before leaving . . . .” [23] For the reasons set out in their opinions, the Court of Appeal gave the following guidance in the context of the fire service: “ . . . the fire brigade (are) not under a common law duty to answer (a) call for help, and are not under a duty to take care to do so. If, therefore, they fail to turn up, or fail to turn up in time, because they have carelessly misunderstood the message, got lost on the way, or run into a tree, they are not liable (p.1030A) a fire brigade does not enter into a sufficiently proximate relationship with the owner or occupier of premises to come under a duty of care merely by attending at the fire ground and fighting the fire; this is so, even though the senior officer actually assumes control of the firefighting operation (p.1038E–F) . . . (if) we had found a sufficient relationship of proximity (in the third case) . . . we do not think that we would have found the arguments for excluding a duty of care on the ground that it would not be ‘just, fair and reasonable’ convincing . . . .” [24] In the result, the Court of Appeal in the third case in Capital & Counties plc found the fire brigade not liable in respect of the plaintiffs’ loss and damage. Importantly, when Capital & Counties plc was discussed in the House of Lords in Gorringe v Calderdale Metropolitan Borough Council, the conclusion reached by the Court of Appeal at p.1030A was specifically approved in para.32. Furthermore when Capital & Counties plc was discussed in the Supreme Court in Michael v Chief Constable of South Wales Police (particularly paras 71 et seq), the appeal court’s approach in respect of the third case was not criticised. The result reached (namely that there was, in the circumstances, no liability on the part of the fire brigade) was not said to be erroneous or unacceptable. That in our view strengthens the arguments for the defenders in the present case. [25] The third matter arising from the authorities cited in para.14 above is the marked divergence between Scottish and English lines of authority in the context of the potential liability of a fire brigade. The Scottish Outer House

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decisions of Duff; Gibson; and Burnett criticised and departed from important aspects of the English authorities, and concluded that certain averments of alleged negligence were (in those cases) relevant for proof in circumstances where an English court, faced with the same averments, would be likely to have struck the cases out as irrelevant. [26] Against the background of the authorities referred to in para.14 above, and the three matters arising from the case law (paras 16–25 above) it is my opinion that the carefully developed, policy-based, more restrictive approach currently approved and adopted by the Supreme Court must be followed by the Scottish courts (contrary to the views expressed in the Outer House in Duff; Gibson; and Burnett, but in keeping with a recent opinion of Lord McEwan in Mackay v Scottish Fire and Rescue Service, particularly paras 32, 33, and 37). I have reached that conclusion for the following reasons. [27] First, I do not accept that the fire service should be regarded as having undertaken an “assumption of responsibility” in the sense defined in the authorities, for example, by LordHamilton in Gibson v Orr at p.434F: “That concept (of assumption of responsibility with reliance) may be traced back to Hedley Byrne & Co Ltd v Heller & Partners Ltd where the concept is of voluntary assumption of responsibility with associated reliance.” The suggestion that the fire service have voluntarily “assumed responsibility” on the basis of answering a 999call or attending the scene of a fire or taking steps to extinguish a fire or to save lives or property, is, in my opinion, inaccurate. Those actions represent, in my opinion, the fire service carrying out their statutory functions and public duty: cf, ViscountSimon LJ at p.87 of East Suffolk Rivers Catchment Board v Kent; DysonLJ at para.54 of Rowley v Secretary of State for Work and Pensions; LordReed at paras 79, 127 of Mitchell v Glasgow City Council (2008); LordHope at para.29, LordScott at para.40, and LordBrown of Eaton-under-Heywood at para.82 of Mitchell v Glasgow City Council (2009); and SirAnthony ClarkeMR at paras 60–65, 90 of X v Hounslow London Borough Council. In so doing, the fire service are not, in my opinion, carrying out acts or entering into relationships or undertaking responsibilities “giving rise to a duty of care on an orthodox common law foundation” in the words of Lord Toulson JSC at para.111 of Michael, referring to para.38 of Gorringe v Calderdale Metropolitan Borough Council. [28] Secondly, general policy considerations must be taken into account (cf, Murphy; Stovin; Gorringe; Michael para.115). As LordToulson JSC pointed out at paras 110, 115 and 122 of Michael: “110 Lord Hoffmann (with whom Lords Goff and Jauncey of Tullichettle agreed (in Stovin v Wise) observed that it is one thing for a public authority to provide a service at the public expense, and quite another to require the public to pay compensation when a failure to provide the service has resulted in a loss. Apart from possible cases involving reliance on a representation by the authority, the same loss would have been suffered if the service had not been provided in the first place, and to require payment of compensation would impose an additional burden on public funds. There would, he said, have to be exceptional grounds for a court to hold that the policy of a statute required compensation to be paid because a power was not exercised . . . . 115 The refusal of the courts to impose a private law duty on the police to exercise reasonable care to safeguard victims or potential victims of crime, except in cases where there has been a representation and reliance, does not involve giving special treatment to the police. It is consistent with

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the way in which the common law has been applied to other authorities vested with powers or duties as a matter of public law for the protection of the public. Examples at the highest level include Yuen Kun Yeu v Attorney General of Hong Kong [1988] AC 175 and Davis v Radcliffe [1990] 1 WLR 821 (no duty of care owed by financial regulators towards investors), Murphy v Brentwood District Council [1991] 1 AC 398 (no duty of care owed to the owner of a house with defective foundations by the local authority which passed the plans), Stovin vWise and Gorringe v Calderdale Metropolitan Borough Council (no duty of care owed by a highway authority to take action to prevent accidents from known hazards) . . . . 122 The only consequence of which one can be sure is that the imposition of liability on the police to compensate victims of violence on the basis that the police should have prevented it would have potentially significant financial implications. The payment of compensation and the costs of dealing with claims, whether successful or unsuccessful, would have to come either from the police budget, with a corresponding reduction of spending on other services, or from an increased burden on the public or from a combination of the two . . . .” While LordToulson was concerned with the police, his observations are equally applicable to the fire service. Whether one focuses on the existence of a duty of care, or the nature and scope of an accepted duty of care, it is appropriate to take into account such public policy considerations. Also relevant are the dicta of LordBrowne-Wilkinson at para.79 of Mitchell v Glasgow City Council (2009), and the fact that it would be unfortunate if a defensive approach were to be adopted by the fire service as a result of an appreciation that their efforts might be followed by actions for damages (cf, the observations of Lord Toulson in Michael v Chief Constable of South Wales Police at paras 61 and 65). [29] Thirdly, while analogies may be drawn with the provision of medical services, or with the ambulance service, they are of limited assistance. In relation to medical services, Stuart-Smith LJ explained in Capital & Counties plc v Hampshire County Council, at pp.1035A–B and 1036A–B: “. . . There is no doubt that once the relationship of doctor and patient or hospital authority and admitted patient exists, the doctor or the hospital owe a duty to take reasonable care to effect a cure, not merely to prevent further harm. The undertaking is to use the special skills which the doctor and hospital authorities have to treat the patient . . . . . . (But) we consider that Mr Munby (counsel for the defendants in the first and second cases) is right when he submitted that the fire brigade’s duty is owed to the public at large to prevent the spread of fire and that this may involve a conflict between the interests of various owners of premises. It may be necessary to enter and cause damage to A’s premises in order to tackle a fire which has started in B’s . . . . (emphasis added)” As for the ambulance service, as LordWoolf explained at para.45 of Kent v Griffiths: “. . . the arguments based on public policy are much weaker in the case of the ambulance service than they are in the case of the police or the fire service. The police and fire services’ primary obligation is to the public at large. In protecting a particular victim of crime, the police are performing their more general role of maintaining public order and reducing crime. In the case of fire, the fire service will normally be concerned not only to protect a particular property where a fire breaks out but also to prevent fire spreading. In the case of both services, there is therefore a concern to protect the public generally. The emergency services that can be summoned

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by a 999 call do, in the majority of situations, broadly carry out a similar function. But in reality they can be very different. The ambulance service is part of the health service. Its care function includes transporting patients to and from hospital when the use of an ambulance for this purpose is desirable. It is therefore appropriate to regard the LAS (London Ambulance Service) as providing services of the category provided by hospitals and not as providing services equivalent to those rendered by the police or the fire service. Situations could arise where there is a conflict between the interests of a particular individual and the public at large. But, in the case of the ambulance service in this particular case, the only member of the public who could be adversely affected was the claimant. It was the claimant alone for whom the ambulance had been called . . . .” See too Michael v Chief Constable of South Wales Police, para.112. [30] Fourthly, as senior counsel for the defenders submitted, there is no general duty to rescue. If a rescuer makes a negligent rescue but does not negligently create a fresh injury, then he incurs no liability in damages (StuartSmith LJ at p.1037A–C of Capital & Counties plc). The fire service, with their statutory powers and duties, have been held not to be liable if they fail to attend a fire (East Suffolk Rivers Catchment Board, Viscount Simon LC at p.88, LordRomer at p.102; Capital & Counties plc v Hampshire County Council, Stuart-Smith LJ at p.1030A–B, subsequently approved in the House of Lords at para.32 of Gorringe v Calderdale Metropolitan Borough Council). It would therefore seem unprincipled to suggest that a fire service which did attend a fire and sought to extinguish it could be held liable for their actions, other than in circumstances where they negligently inflicted fresh injury (Lord Hoffmann at p.196G–H of O’Rourke v Camden London Borough Council; LordReed at para.166 of Antonucci or McConnell v Ayrshire and Arran Health Board). [31] Fifthly, the line of English authority relevant to the liability of public bodies including fire services (East Suffolk Rivers Catchment Board in 1941 to Michael in 2015, see para.75 of Michael) is well established and of considerable authority. It would be unfortunate to adopt a different approach north of the border: cf, the observations of LordHope of Craighead at para.25 and of Lady Hale JSC at para.78 in Mitchell v Glasgow City Council (2009). [32] In conclusion, therefore, I consider that, in the present case, the fire service owed a duty of care to the general public, including the pursuers (cf, Stuart-Smith LJ at p.1036A–B of Capital & Counties plc), but that duty was to take care not negligently to add to the damage which the pursuers would have suffered if the fire service had done nothing; in other words, not negligently to inflict a fresh injury (cf, East Suffolk Rivers Catchment Board v Kent; Knightley v Johns; Rigby v Chief Constable of Northamptonshire; Capital & Counties plc v Hampshire County Council; Mitchell v Glasgow City Council (2009); Michael v Chief Constable of South Wales Police). No breach of that duty of care is averred to have occurred in the present case. Further, as indicated above (para.27), I do not accept that the averments disclose anything amounting to an “assumption of responsibility” on the part of the defenders in this case. Accordingly the case as pled is, in my opinion, irrelevant, and should be dismissed. [33] It follows that this court must disapprove of the Scottish authorities of Duff; Gibson; and Burnett. It is notable that the courts in these cases did not have the benefit of the guidance given by House of Lords and the Supreme Court in Mitchell and Michael. But some further points may be made, as follows. [34] In Duff v Highlands and Islands Fire Board, the relevant expression of opinion is given in the last paragraph. It is brief and obiter, and in my view

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gives too wide a definition of the scope and content of the duty owed to the public. [35] As for Burnett v Grampian Fire and Rescue, I am unable to agree with views expressed in para.51 (drawing a parallel with medical services); para.52 (suggesting that the duty owed by the fire service is not owed to the public at large); paras 41, 64 (a rejection of the parallel with a rescuer and a dismissal of the possibility of operational difficulties arising from a defensively-led fire service); para.65 (concluding that it would be fair, just and reasonable to impose the duties contended for by the pursuer upon the fire service); paras 66,72 (views expressed in relation to other emergency services). I note that Murphy v Brentwood District Council (which overturned Anns v Merton London Borough Council) appears not to have been cited or discussed in Burnett, and the court did not have the benefit of the guidance given by the House of Lords and the Supreme Court in Mitchell and Michael. [36] In relation to Gibson v Orr (commented on by LordHope of Craighead at paras 79-81 of Van Colle v Chief Constable of the Hertfordshire Police), I agree with the defenders’ senior counsel that it is possible that the result achieved was correct, but the reasoning does not accord with the line of authority from East Suffolk Rivers Catchment Board to Michael. The court did not, of course, have the benefit of the guidance given in Gorringe; Mitchell; and Michael. Decision

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[37] In this case, there are no averments that the defenders made matters worse or that they inflicted a fresh injury when they arrived at and dealt with the fire at the farmhouse. Nor are there any averments of circumstances which could, in my view, properly be categorised as an assumption of responsibility giving rise to a common law duty to exercise reasonable care. Further it seems to me that it would not be fair, just or reasonable to impose a duty of care of the scope contended for by the pursuers on the fire service. In the result, I am persuaded that the pursuers’ case will necessarily fail even if all the pursuers’ averments are proved—in other words, that the case as pled is irrelevant (Jamieson v Jamieson, LordNormand at p.50). I therefore propose that the reclaiming motion should be allowed; the LordOrdinary’s interlocutor of 2September 2014 recalled; and the action dismissed. I also propose that the question of expenses be continued. LADY DORRIAN [38] I agree that the reclaiming motion should be allowed. In advancing his argument that the reclaimers had pled a relevant case, counsel for the respondents accepted that responsibility could not arise directly from any statutory duty incumbent upon the defenders. Furthermore, the duty was not parasitic upon any statutory duty. Nor is the case based on the type of assumption of responsibility, coupled with reliance, under the principles of Hedley Byrne v Heller& Partners Ltd, discussed in Michael v Chief Constable of South Wales Police (Lord Toulson, para.100) as one of the exceptional circumstances where the law will impose liability for a careless omission. That is not the basis of the present case, rather it was argued as an example of the situation described by LordHoffmann in Gorringe v Calderdale Metropolitan Borough Council, para.38, where, noting that the issue in that case was confined to circumstances where an attempt was made to impose a common law duty solely on the existence of a broad public law duty, he went on to say: “We are not concerned with cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities

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which give rise to a common law duty of care. In such cases the fact that the public authority acted pursuant to a statutory power or public duty does not necessarily negative the existence of a duty.” The respondents’ case was that the fire service in the present case had indeed done acts, entered into a relationship and undertaken responsibilities such as to bring them within the scope of that paragraph. [39] The arguments advanced for the reclaimers relied on a line of authority running from East Suffolk Rivers Catchment Board v Kent, through Capital & Counties plc v Hampshire County Council and culminating in Michael. Insofar as Scottish authorities—Gibson v Orr; Duff v Highlands and Islands Fire Board; and Burnett v Grampian Fire and Rescue Services—were at odds with these cases they were wrongly decided. On the other hand, the respondents argued that these cases were correctly decided, that the East Suffolk case was of limited application, and that Capital & Counties was wrongly decided, at least in respect of the third of the four cases there decided: it had no application to cases where the fire service attended a fire in response to a call, but was limited to circumstances where they took no action at all. [40] East Suffolk, according to the respondents’ argument, was limited to cases where the authority was vested with a statutory power, with associated discretion. It had no application in cases where there was a statutory duty laid upon the authority. I accept that the question whether an authority acts under a statutory power or duty may be of some importance, and that in particular, it may be easier to impose liability following the exercise of a statutory duty rather than from the exercise of a discretion conferred by a statutory power. However, in cases such as the present, I consider that the difference is of limited relevance. The duties placed upon the local authority are target duties expressed at a high level of generality, and their execution on the ground is carried out by firefighters under the statutory powers conferred on them. The duties under s.9 of the 2005Act are very similar to the duties which were imposed by s.1 of the Fire Services Act1947 which was under consideration in Capital & Counties, with the powers to firefighters provided under s.25 echoing those available under s.30 of the 1947Act. The statutory duties available in this case, and in Capital & Counties, are of such a degree of generality that I see no basis to consider that the reasoning in East Suffolk does not apply equally to those duties as to the powers under which the authority acted in that case. This appears to me to be the way in which the matter was approached by the Court of Appeal in Capital & Counties, where the duties were categorised as “ ‘target’ duties providing in general terms for the organisation and administration of national fire service”. [41] In that case, in which one of the examples was directly analogous to the present one, the final conclusion (p.1038E–F) reached by the court, was firmly in favour of the reclaimers, namely that: “In our judgement a fire brigade does not enter into a sufficiently proximate relationship with the owner or occupier of premises to come under a duty of care merely by attending at the fire ground, and fighting the fire; this is so, even though the senior officer actually assumes control of the fire-fighting operation.” The Court of Appeal concluded that the duties imposed upon the fire authorities were duties owed to the public at large, and that the statutory provisions conferring control of operations upon the senior officer present were also for the benefit of the public generally, in situations where there may be conflicting interests. The court determined that by taking control the senior

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officer was not to be seen as undertaking a voluntary assumption of responsibility to the owner of the premises on fire, regardless of whether or not the owner was reliant on it (p.1036F–G). I see no basis for considering that the court erred in its application of East Suffolk. [42] It is true that in Capital &Counties the first question was whether there was a common law duty to answer calls to fires or to take reasonable care to do so. In discussing a passage from Alexandrou v Oxford, where the decision concentrated on the question whether there was a duty to respond to a call, the court noted that on the facts of the case the police had in fact answered the call and attended the premises, but had inadequately inspected them. It considered that in the fact that the police in fact intervened, albeit inefficiently, would not have been overlooked. It does not seem to me that the court in Capital & Counties failed to understand the case of Alexandrou. It relied on it in the first place as clear authority for the proposition that the making of an emergency call does not create the necessary proximity. It then proceeded to consider the question which arises in the present case. It was aware of the decision in Duff. It accepted that where the fire service created the danger which caused the injury, liability would follow. It was clearly well aware that the East Suffolk case had involved the exercise of a power rather than a duty. I see no basis for concluding that the court either misunderstood or misapplied any of the cases to which it was referred. [43] The limitation in Alexandrou, later applied in Kent v Griffiths, was essentially that its application was restricted to the core duties of the police and did not extend to any civil responsibility undertaken, such as helping someone across the road. That is not inconsistent with the approach adopted in Capital & Counties, and, as I note below, explains the approach of LordHamilton in Gibson v Orr. [44] In Michael, the majority opinion (delivered by LordToulson, JSC with whom LordsNeuberger, Mance, Reed and Hodge agreed—any reference to Michael is a reference to that opinion) repeated that the core duty of the police was owed to the public at large and did not involve the kind of close or special relationship necessary for the imposition of a private law duty. The duty of a fire service in respect of suppression of fires seems analogous to the duty on the police in relation to preservation of the peace. It is a duty owed to members of the public at large. The context of Michael was a failure to answer a call, but there seems no basis for confining the reasoning to such a situation. [45] As was pointed out in Michael, claims against other emergency services—save the ambulance service—have been treated in the same way as claims against the police. Specific consideration was given to the Capital & Counties case. It was submitted for the respondents that, in Michael, the result in Capital & Counties was considered to apply only to cases where there had been a complete failure to engage, but I do not read the observations in Michael as being limited in such a way. The Capital & Counties case is not restricted to situations where the fire service failed to attend, or failed to act at all: it extends to cases where they did take action to fight the fire, so long as their intervention did not make the situation worse than it would have been had there been no intervention at all. As has been noted, the third scenario in Capital & Counties was identical to the circumstances of the present case, and there is no indication in Michael that the UKSC thought that the conclusion reached in that case was other than the correct one. The ratio was described as lying in the difference that in the Hampshire case, as opposed to the other three, the fire service aggravated the situation by causing the sprinklers to be turned off, whereas “in the other cases the failures of the fire brigade made

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things no worse than they were.” (Michael, para.75). It was noted that a comparison had been made with the case of Rigby v Chief Constable of Northamptonshire where liability was established because the actions of the rescue service created additional danger. That accords with the conclusions reached by the UKSC in the case of Michael itself, and supports the argument for the reclaimers that the scope of the duty resting upon them is restricted to refraining from making the situation worse, and does not have the reach contended for by the respondents. [46] The duties which are set out in s.9 are target duties of the widest kind, similar to those which were under consideration in Gorringe. In para.32 of that case LordHoffmann said this: “Speaking for myself, I find it difficult to imagine a case in which a common law duty can be founded simply upon the failure (however irrational) to provide some benefit which a public authority has power (or a public law duty) to provide. For example, the majority reasoning in Stovin v Wise was applied in Capital & Counties plc v Hampshire County Council to fire authorities, which have a general public law duty to make provision for efficient fire-fighting services: see s.1 of the Fire Services Act 1947. The Court of Appeal held, in my view correctly, that this did not create a common law duty.” The fact that he proceeded to quote a passage from Capital & Counties dealing with failure to answer a call does not in my view detract from the general approval of the proposition that any common law duty on the fire brigade in such circumstances is restricted in scope to circumstances where their intervention creates a new danger or makes the situation worse than it would have been but for that intervention. [47] It was argued that the law of Scotland was explained in cases such as Duff; Burnett; and Gibson, rather than Michael. However, the principles which underlie the reasoning in Michael are the same as those which underlie the law of Scotland in this area. The cases which are elsewhere relied upon for the reasoning in Michael (for example in paras 97 and101) include the two Scottish cases of Maloco v Littlewoods Organisation Ltd and Mitchell v Glasgow City Council (2008). It has repeatedly been noted that the law on this matter is the same in both jurisdictions. Moreover, the discussion of Duff and Burnett at paras 77 and78 of Michael impliedly questions the validity of the reasons given in Burnett for declining to follow Capital & Counties. [48] In Michael the UKSC said that to impose a duty which could not rationally be confined would be contrary to the ordinary principles of the common law. The difficulty in confining the duty in circumstances such as the present case may not be quite so extreme as those which might be envisaged in circumstances such as Michael but they are nevertheless significant. The same point arose in Capital & Counties. Noting that the fire service’s duty in respect of firefighting was owed to the public at large, the court pointed out the difficulty in limiting the spread of any alleged duty, which would have to extend to bystanders, and to the owners and occupiers of adjoining property, and perhaps those of the property adjoining that, or any property to which the fire might spread, if only by a spark or burning debris. The submission was that the duty might extend to a whole district which was at risk if the fire got out of hand. In other words, in negligently failing to extinguish the fire at Pudding Lane, they would be responsible for the destruction of StPaul’s Cathedral. [49] The respondents placed significant emphasis on the cases of Gibson; Duff; and Burnett. Gibson may be distinguished on several grounds. It was a

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case in which the police were not acting within the scope of their core duty to prevent and detect crime, but within the scope of their civil function in relation to road traffic operations. That accords with LordHope’s analysis of the case in Van Colle v Chief Constable of the Herefordshire Police at paras 79–80. Such a point was also noted in Kent v Griffiths by LordWoolf who observed at para.25 that there were a “great variety of situations where the police provide assistance to the public because they decide to do so.” As LordMacphail was later to do in Burnett, LordHamilton rejected the suggestion that the duties of the police were owed to the public at large, but of course did so in the context not of considering their core duties, but the civil functions which they were carrying out. [50] Further, Gibson may not unreasonably be analysed as a case where their taking control of and then abandoning a known hazard was at least analogous with a situation where the authority created the damage or made the situation worse, having regard to the reference to the cases of Knightley v Johns and Rigby. It was a case in which the court was satisfied that there could be identified only a limited class of individuals at particular risk from the hazard (see p.433G–I). [51] As to the case of Duff the observations of LordMacfadyen are obiter, and shortly stated. Moreover, the case was decided before the important cases of Capital & Counties and Gorringe, his Lordship noting that he had been cited no authority which supported the central argument for the defenders. He distinguished East Suffolk on the basis that it concerned statutory powers rather than duties, a distinction which, as explained above, I find less than persuasive given the broad nature of the statutory duties involved. The arguments in Duff, relating to the equiparation of a fire service and a police service, were subtly different to those advanced before us, being advanced largely on the basis of an argument in favour of immunity, which does not arise in the present case. The rejection of the argument based on LordGoff’s observations in Maloco v Littlewoods was fairly cursory. The case of Duff related to s.1 of the 1947Act, exactly the same provision considered in Capital & Counties. The underlying duty upon which his Lordship would have proceeded to reach the conclusion that by attending the fire and fighting it the fire brigade created the conditions necessary for the imposition of liability was the statutory duty “to secure the services of a fire brigade and efficient arrangements for dealing with calls for assistance”. This might tend to suggest that he would even have held that there was a duty to answer a 999 call, had he been asked to do so. Not even the respondents’ arguments go that far. [52] Part of the basis upon which the Lord Ordinary in Burnett declined to follow Capital & Counties was that the law of Scotland did not draw a distinction between acts and omissions comparable to that drawn in England. The extent to which this is an over-simplification was pointed out by LordReed in Mitchell. [53] In Mitchell, LordReed, whose minority opinion in the Inner House was endorsed by the House of Lords, recognised that in Scots law as well as English law there was a general reluctance to impose affirmative duties to protect others, emphasising (para.88) that, in relation to the distinction between acts and omissions, it was necessary to be able to say on common-sense principles of causation that the damage was caused by something which the defender did. He quoted with approval the observations of BrennanJ in Sutherland Shire Council v Heyman: “[T]hat the general principle expresses a duty to take reasonable care to avoid doing what might cause injury to another, not a duty to prevent injury

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being done to another by that other, by a third party, or by circumstances for which nobody is responsible.”

Lord Reed’s views were endorsed in the House of Lords by LordHope (para.34) and the same point is reflected in para.97 of Michael: “It is one thing to require a person who embarks upon an action which may harm others to exercise care. It is another matter to hold a person liable in damages for failing to prevent harm caused by someone else.” In Mitchell, Lord Hope (para.25) observed that: “the law of liability for negligence has developed on common lines both north and south of the border”. The point is picked up in Michael: “78 The Burnett case was cited in Mitchell v Glasgow City Council (2009), to which I refer below. The Burnett case was not mentioned in the judgments, but the distinction between acts or omissions was central to Lord Hope’s reasoning, and he observed that the law of liability for negligence has developed on common lines both north and south of the Border: para.25.”

C [54] This reluctance to impose liability for failing to prevent harm caused by someone, or something, else, is consistent with a conclusion that the duties incumbent upon the fire service in the present circumstances are restricted in scope, and that liability is limited to the situation where the intervention has created a new danger or made the situation worse. LordMacphail’s observations relating to the importance to be attached to the control exercised by the reclaimers over the fire site (para.69) did not take account of the important observations in Capital & Counties (p.1036F–G) that the reason for conferral of such control was “for the benefit of the public generally where there may be conflicting interests”. I am thus unable to agree with the conclusion reached by LordMacPhail in Burnett. [55] The view that it was arguable that in fighting fire the fire brigade owed a duty not to the public at large but to a limited class of those whose lives and property are endangered (para.52), is inconsistent with a weight of authority beyond the Capital & Counties case. (For example, Kent v London Ambulance Service (No. 2), p.199; Kent v Griffiths (Lord Woolf, paras 24, 45; Watson v British Boxing Board of Control Ltd, para.77; Gorringe, para.32). [56] The ambulance cases do not assist the respondents. The role of the ambulance service has repeatedly been distinguished from that of the police and the fire service. As was noted in Kent v London Ambulance (p.199), once a call has been accepted by an ambulance, the service undertakes to deal with, indeed to treat if necessary, a named individual at a specific address. The relationship which is thus created has been described as “highly personal”. The duty becomes one owed not to the public at large but one specifically aimed at one individual. The same does not apply to the fire service. The duty prayed in aid here remains to the public at large, even if the primary beneficiary may be an individual householder. In Kent v Griffiths the distinction was maintained, the court noting (Lord Woolf MR, para.45) that: “The police and fire services’ primary obligation is to the public at large. In protecting a particular victim of crime, the police are performing their more general role of maintaining public order and reducing crime. In the case of fire the fire service will normally be concerned not only to protect a particular property where a fire breaks out but also to prevent the fire spreading. In the case of both services, there is therefore a concern to protect the public generally.”

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[57] For the reasons given above, I am of the opinion that the reclaiming motion should be allowed and the action should be dismissed. LORD DRUMMOND YOUNG [58] I agree that this reclaiming motion should be allowed. The question in issue is the extent to which a fire authority comes under a duty of care when it attempts to tackle a fire. I should note at the outset that the dispute between the parties relates to the scope of the fire service’s duty of care, not its existence. The fire board accept that in fighting a fire they may be liable for negligence if they create fresh damage beyond the fire that they are tackling, or if they make matters worse than would have occurred had they done nothing. In the present case, however, they contend that they did not make matters worse, and that contention is not challenged. [59] The pursuers argue that the fire board were under a duty to take reasonable care to extinguish all traces of fire in the premises, and that if they failed to do so there is liability in negligence. That proposition was accepted by the Lord Ordinary. In my opinion the duty of care incumbent on a fire authority does not extend so far. I reach this view for two reasons. First, if the pursuers were correct, a fire authority would be liable for what is generally referred to as a “pure” omission, and for sound policy reasons the law has set itself against such a position, at least in respect of damage to property. Secondly, a number of other policy reasons, related to the nature of a fire authority and the circumstances under which it operates, support the view that the liability in negligence of such an authority should be restricted. I will consider these in turn. In doing so, however, I should emphasise that the present case is concerned with damage to property, not injury to the person. What I say should be read in that context. Pure omissions

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[60] An important feature of the work of the fire service is that normally it attempts to control and extinguish sources or threats of danger or damage that have been caused by others or by the forces of nature. A similar point can be made about the police: at least in fulfilling their function of preventing and detecting crime, the police deal with the wrongdoing of third parties or threats of wrongdoing caused by third parties. Other rescue services such as the coastguard and lifeboat services also seek to resolve problems created by others or by the forces of nature. Thus a failure by such an authority will not amount to a positive act but merely to an omission to deal with a situation created by others or by natural forces. It has been repeatedly held that there is no general duty to prevent a third party or natural forces from causing harm. The leading statement of Scots law is that of Lord Goff in Maloco v Littlewoods Organisation Ltd, at pp.75–76: “[A] problem arises when the pursuer is seeking to hold the defender responsible for having failed to prevent a third party from causing damage to the pursuer or his property by the third party’s own deliberate wrongdoing. In such a case, it is not possible to invoke a general duty of care; for it is well recognised that there is no general duty of care to prevent third parties from causing such damage. . . . The fundamental reason is that the common law does not impose liability for what are called pure omissions.” An analogy was drawn with the parable of the good Samaritan, where the priest and the Levite who passed by on the other side of the road would not have incurred any civil liability under the legal systems of the UK. The point

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is taken up by LordToulson in Michael v Chief Constable of South Wales Police, para.97: “It is one thing to require a person who embarks on action which may harm others to exercise care. It is another matter to hold a person liable in damages for failing to prevent harm caused by someone else.” [61] It follows that an omission in the course of active conduct, as by a driver who omits to keep a proper lookout or apply his brakes, or by a surgeon who omits to follow proper procedures, may be actionable, but without such active conduct there is generally no liability. Otherwise, it has been pointed out, a person who sees another person about to walk over a cliff with his head in the air and does not shout a warning would be liable for negligence: Mitchell v Glasgow City Council (2009), para.15. Thus in general there is no duty to act to save others from harm caused by a third party or natural forces or the victim’s own acts. It follows that there is no liability in such circumstances for the consequences of mere inaction. Moreover, if there is no liability for inaction, it follows logically that there can be no liability for acting negligently, provided that the ultimate result is no worse than would have occurred without intervention. On the latter point, there is no direct British authority, but the proposition was accepted in Canada in The Ogopogo, in a passage which was referred to with approval by the Court of Appeal in Capital & Counties plc v Hampshire County Council (see para. [71] below). All of the foregoing assumes that the defender played no part in creating the hazard to the pursuer; if, on the contrary, the defender did play such a part, there may be a duty to intervene and liability if the intervention is negligent, but that obviously does not apply to the emergency services. [62] Nevertheless, as Lord Toulson indicates in Michael, the rule that there is no liability for pure omissions is not absolute. It seems that four categories of case exist where the rule has been held not to apply. 1. If there is no duty to act there can be no liability for the consequences of mere inaction. If, however, the defender does act and makes matters worse than they would have been if he had done nothing, there may be liability. This applies both to an exacerbation of the damage caused and to the creation of a new danger. 2. Where the defender is in control of the wrongdoer; he may be under a duty to control the wrongdoer’s actions; this is exemplified by Home Office v DorsetYacht Co Ltd. The same may be true where the defender is in control of a situation that presents a danger to others; in such a case the fact of control carries responsibility to take reasonable steps to avoid the danger of harm. An example of this can be found, I think, in Gibson v Orr. In that case heavy rainfall caused the collapse of a bridge carrying a public road. On being advised of this, police placed warning cones in position on the north side of the bridge but failed to do anything on the south side. A car approaching from the south then fell into the river, killing all but one of its occupants. It was held that liability existed. The police constables who attended the locus had taken charge of the situation, which presented “a grave and immediate risk of death or serious injury to road users likely to be affected by the particular hazard” (p.433). Lord Hamilton remarked (at pp.434–435) that the case could be regarded as one where the necessary proximity was brought into existence through an assumption of responsibility. The same approach might well be taken where the police undertake the direction of traffic; once again there is an assumption of control of a situation which may present a hazard. The notion of control also underlies the liability of roads authorities in Scots law to take reasonable care to remove hazards, as exemplified by the numerous cases discussed in MacDonald v Aberdeenshire Council.

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3. Liability for a failure to act may also be imposed where there has been an undertaking of responsibility on the part of the defender to safeguard the pursuer. This is essentially an application of the well-known principle established in Hedley Byrne v Heller & Partners Ltd. A fiduciary relationship may give rise to this sort of liability: see Michael v Chief Constable of South Wales Police, para.100. The same is true of contractual relationships, where it is possible to infer a duty to take care of the pursuer’s property, a matter discussed in Maloco, although in the case of both fiduciary relationships and contractual relationships the liability may be said to originate in an express or implied contractual term to use reasonable care in the performance of a task. Under the law of contract, obviously, a duty to act and liability for failure to do so can be regarded as the norm. 4. In some cases where acts of a third-party harm the pursuer, liability for failing to act may be imposed on the defender because of the relationship between the defender and the pursuer. Such relationships include parent and child, school and pupil and employer and employee. It is the first and second of these categories, and to some extent the third, that are potentially relevant to the present case. I should observe that, although the first category is discrete, the second and third are not clearly differentiated from each other. Taking charge of a situation might in some circumstances be regarded as involving an undertaking of responsibility, and giving an undertaking of responsibility can involve taking charge.The difference between these situations is thus one of emphasis: in one case the defender acts to deal with a situation and the law draws the inference that there is responsibility, whereas in the other the defender’s actings involve some sort of undertaking of responsibility. [63] The first category, the principle that liability attaches to a person who is under no duty to intervene but does so and makes matters worse, is discussed in East Suffolk Rivers Catchment Board v Kent, a case which involved the liability of a statutory drainage board for the inefficient repair of a breach in a sea wall. It was held that the board were under no statutory duty to repair the breach. The original breach and the consequential flooding were caused by acts of nature, and the board’s want of skill did not cause such damage. If, however, the board had not shown want of skill in trying to repair the wall, the gap would have been closed sooner and the flooding of the plaintiffs’ land would have been more promptly abated. Viscount Simon LC stated (pp.84–85): “It is not, of course, disputed that if the appellants, in the course of exercising their statutory powers, had inflicted fresh injury on the respondents through lack of care or skill, they would be liable in damages for the consequences of their negligent act. If, for example, the appellants, by their unskilful proceedings had caused a further area of the respondents’ land to be flooded, or had prolonged the period of flooding beyond what it would have been if they had never interfered, they would be liable . . . . “In order that the respondents should succeed in this action, it is necessary that they should establish, not only that the appellants were wanting in care and skill when exercising their statutory powers, but that they inflicted injury and loss upon the respondents by their negligence. . . . In the present case the damage done by the flooding was not due to the exercise of the appellants’ statutory powers at all. It was due to the forces of nature which the appellants, albeit unskilfully, were endeavouring to counteract.” [64] The issue can thus be treated as one of causation. If loss is caused by the acts of third parties or the forces of nature, a public authority such as

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the board cannot be said to have caused the loss. Where the authority’s actings create further damage, however, causation can be said to exist, and with it liability. The analysis in terms of causation is apparent in the distinction drawn (p.86) from Geddis v Proprietors of Bann Reservoir. Nevertheless, analysis in terms of causation will only go so far. If there is negligence on the part of the authority it can be said that two distinct matters are causally significant: the underlying flooding or fire, caused by the forces of nature or third parties, and the negligence of the authority. The main reason for the exception is one of policy: if the authority makes matters worse through its negligence, it is reasonable that it should be liable for the damage caused by its actions. [65] Viscount Simon further observed that the relationship between an authority such as the board and the individual owners or occupiers of property was quite different from the relationship between those owners and occupiers and a contractor employed by them to mend the wall. In the latter case a contractual remedy in damages would exist for negligent performance of the work, if damage resulted. The board was different, however; it had responsibilities over the whole of its area to consider, and in its judgment it might find it necessary to use skilled staff in mending other breaches, or the outlay involved in making a good job of one particular repair might be more than its limited finances would permit (pp.85–86). That indicates the need to consider the overall position of a public authority in assessing the scope of its liability; I return to this point subsequently. Lord Romer expressed views that were similar in their result (pp.102–103). His reasoning is somewhat different, however, in that he laid particular stress on the fact that the board was a statutory authority entrusted with a mere power, rather than a duty, to make good the damage. In my opinion this factor cannot now be decisive in assessing the delictual liability of public authorities; it is now clear that liability for negligence can exist even though the authority is acting under statutory powers and duties, and even though the relevant statute may confer a statutory discretion on the authority: Gorringe v Calderdale Metropolitan Borough Council, para.3 per Lord Steyn, para.38 per LordHoffmann and para.71 per Lord Scott. [66] East Suffolk Rivers Catchment Board v Kent has been followed in a number of cases, including in relation to the fire service Capital & Counties plc v Hampshire County Council, the case that contains the most detailed discussion of the delictual liability of a fire authority. In that case four distinct claims were considered. The first two were taken together; they were claims made by the lessees and underlessees of premises which were destroyed by fire where the fire brigade had attended but an officer turned off the sprinkler system in the building; at the time that was the only effective means of fighting the fire. It was held that that was negligent and that it resulted in a total rather than a partial loss of the building. The third claim related to premises destroyed by fire following a fire at adjacent premises which was attended by the fire brigade. The fire brigade satisfied themselves that that fire had been extinguished and left without checking the plaintiffs’ premises or adjoining waste land. A fire subsequently broke out in the plaintiffs’ premises, which were severely damaged. This claim presents an obvious analogy with the facts of the present case. The fourth claim related to a fire in a chapel. A fire had been seen in a classroom attached to the chapel, and the fire brigade attended, but they were unable to fight the fire effectively owing to the absence of a proper supply of water. It was held that the fire brigade owed a duty of care in respect of the first two claims, but not in respect of the third and fourth.

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[67] The Court of Appeal’s analysis began by considering whether there was a common law duty on the fire brigade to answer calls to fires or to take reasonable care to do so (p.1026). They concluded (p.1030): “In our judgment the fire brigade are not under a common law duty to answer the call for help, and are not under a duty to take care to do so. If, therefore, they fail to turn up, or fail to turn up in time, because they have carelessly misunderstood the message, got lost on the way or run into a tree, they are not liable.”

In reaching that conclusion, the court considered the principle of general reliance which had been developed in Australian case law; the essence of this principle is that in some areas the public rely on a public authority’s performing its function with due care, with the result that there is a right of action if due care is not taken. It was observed that that principle had received little if any support in English law, and in two cases, Marc Rich & Co AG v Bishop Rock Marine Company Ltd and Philcox v Civil Aviation Authority, it had not been applied. The former case related to a marine classification society, and the latter to the inspection of aircraft for airworthiness by the defendant authority. Furthermore, in Stovin v Wise, Lord Hoffmann (pp.954–955) had expressed some scepticism about the doctrine, and suggested that it was not obvious that there should be a right to compensation from a negligent fire authority which would ordinarily enure by right of subrogation to an insurance company. [68] The court then considered the decision of the Court of Appeal in Alexandrou v Oxford, dealing with the duty of the police to respond to an emergency call. In the latter case it was said that if the police were under a duty to respond to a single emergency call they would be under a similar duty to respond to any such call relating to suspected crime. On that basis it could not be said that there was any special relationship between the person making the call and the police; the duty was too wide. Furthermore, in Alexandrou the court had held that as a matter of policy it was not fair, just or reasonable to impose a duty of care on the police in these circumstances; that would expose them to potential actions for negligence by every disappointed or dissatisfied maker of a 999 call. That case was followed in Capital & Counties, and consequently it was held that there could not be a duty of care simply on the basis that an emergency call had been sent (pp.1028–1030). [69] The next issue in Capital & Counties was whether the fire brigade owed a duty of care to the owner of property on fire, or owners of neighbouring properties, once they had arrived at the fire ground and started to fight the fire. Two possible bases for liability had been suggested: first, that such cases involved the direct infliction of foreseeable physical damage, which was an established category of case where a duty of care existed; and secondly, that sufficient proximity would arise where someone possessed of a special skill undertook, quite irrespective of contract, to apply that skill for the assistance of another person who relied upon such skill. In relation to the first of these contentions, it was held (p.1031) that: “The peculiarity of fire brigades, together with other rescue services, such as ambulance or coastal rescue and protective services such as the police, is that they do not as a rule create the danger which causes injury to the plaintiff or loss to his property. For the most part they act in the context of a danger already created and damage already caused, whether by the forces of nature, or the acts of some third party or even of the plaintiff himself, and whether those acts are criminal, negligent or non-culpable.

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AJ Allan (Blairnyle) Ltd v Strathclyde Fire Board (IH) 683

But where the rescue/protective service itself by negligence creates the danger which caused the plaintiff’s injury there is no doubt in our judgment the plaintiff can recover.” The critical point was that a new or different danger should have been created. In the first and second claims under consideration by the Court of Appeal, switching off the sprinkler system created a fresh danger, and this resulted in the fire’s rapidly going out of control and spreading to other blocks that had been deprived of their own sprinkler protection. This is accordingly a straightforward application of the first of the qualifications at para.62 above on the general proposition that there is no liability for pure omissions: there is liability if the fire service, police or other rescue service makes matters worse. [70] The second way in which a fire brigade might come under a duty of care to the owner of property was where there was an assumption of responsibility and reliance by the owner (the third of the categories discussed above). The Court of Appeal (pp.1034–1035) accepted that as a general rule a sufficient relationship of proximity will exist when someone possessed of a special skill undertook to apply it for the assistance of another person, who relied on such skill: Hedley Byrne & Co Ltd v Heller & Partners Ltd and Henderson v Merrett Syndicates Ltd were cited in support. An analogy had been drawn with the relationship of doctors or health authorities and patients. Nevertheless this line of argument was rejected. A fire brigade did not grant any undertaking or assume responsibility to deal with fires. Moreover, the fire brigade’s duty was owed to the public at large to prevent the spread of fire, and that might involve a conflict between the interests of various owners of premises; the analogy given was that during the great fire of London the Duke of York required to blow up a number of houses not yet affected by fire to make a fire break. Consequently, in asserting any such duty as a result of an undertaking, it was in practice impossible to identify to whom any duty might be owed. The owner of the building on fire would not be sufficient, because the owners and occupiers of neighbouring premises could also be affected by a fire. Ultimately the duty would have to extend, potentially at least, to an entire town or district on the basis that that was the extent of the potential risk. That was too wide a responsibility to give rise to a sufficient relationship of proximity. [71] It can I think be said that the arguments rejected in this way by the Court of Appeal amounted to a reworking of the doctrine of general reliance, which has generally been rejected by courts in the UK. The court went on to hold that by simply attending a fire and conducting firefighting operations the fire brigade did not, save in exceptional circumstances such as the first two claims in Capital & Counties, create or increase the danger. On that basis, unless there were an increase in the danger, there could be no liability. An analogy was drawn with a rescuer (p.1037): “It is not clear why a rescuer who is not under an obligation to attempt a rescue should assume a duty to be careful in effecting the rescue merely by undertaking the attempt. It would be strange if such a person were liable to the dependants of a drowning man who but for his carelessness he would have saved, but without the attempt would have drowned anyway. In Canada it has been held that he is not: The Ogopogo. This is consistent with the East Suffolk case. It is also, as we have pointed out, the effect of Alexandrou v Oxford because the ineffective intervention by the police in incompetently inspecting the plaintiff’s premises did not create a relationship of proximity.”

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The analogy with a rescuer is in my opinion a logical extension of the principle that there is no liability for pure omissions unless matters are made worse. The important point is perhaps that a rescuer should not be taken to undertake responsibility to use due skill and care merely by the fact of attempting the rescue. The Court of Appeal then referred to a number of cases where it had been held that a special relationship had been established between the police and a particular member of the public. These were described as cases where the court has considered on the special facts of the case that there was a sufficiently close relationship of proximity to give rise to a duty of care (p.1038). But they did not come anywhere near the circumstances that arose in the appeals that were under consideration. The court concluded: “In our judgment, a fire brigade does not enter into a sufficiently proximate relationship with the owner or occupier of premises to come under a duty of care merely by attending at the fire ground and fighting the fire; this is so, even though the senior officer actually assumes control of the fire-fighting operation.” On this basis, in the third and fourth of the claims under consideration in Capital & Counties, the plaintiff failed owing to lack of sufficient proximity. As I have already observed, the third claim appears to me to be indistinguishable from the present case. [72] The Court of Appeal then went on to consider the question of whether it was just, fair and reasonable to impose a duty of care, as a matter of policy. Because of their decision on proximity, it was unnecessary to reach a definite decision on the matter, but it was indicated (p.1044) that the arguments for excluding a duty of care on the ground that it would not be just, fair or reasonable did not seem convincing. The analogy with the police exercising their functions of investigating and suppressing crime was not close, and many of the arguments would apply to public services, such as the National Health Service, which is potentially liable for negligence. I return to this issue below at para.82. [73] The fundamental ground of decision in Capital & Counties is accordingly that there is no duty on a fire authority to take reasonable care to answer an emergency call and, if it does, any liability can only arise under one of the exceptions to the general rule that there is no liability for pure omissions. In Scotland a different view has been advanced in two cases, Duff v Highland and Islands Fire Board and Burnett v Grampian Fire and Rescue Service. I consider these cases further at paras 85–91 below. Capital & Counties was followed in the High Court in England, in OLL Ltd v Secretary of State for the Home Department and was referred to with no hint of disapproval by Lord Toulson in Michael v Chief Constable of South Wales Police, paras 71–75. In Michael, Duff and Burnett were also cited (paras 76–78). LordToulson observed that a key feature of the reasoning in Burnett was the claim that no distinction is drawn in Scots law between acts and omissions. That distinction had, however, been central to the reasoning of the House of Lords in Mitchell v Glasgow City Council (2009). That is a clear criticism of the decision in Burnett. [74] In Michael the issue was the liability of a police force on receipt of a 999 call. The general propositions of law that applied were set out first at paras 97 et seq, where it is pointed out that English law did not as a general rule impose liability on a defendant for injury or damage to the person or property of a claimant caused by the conduct of a third party; Maloco v Littlewoods Organisation Ltd was cited in support.

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“The fundamental reason, (as explained in the latter case), is that the common law does not generally impose liability for pure omissions. It is one thing to require a person who embarks on action which may harm others to exercise care. It is another matter to hold a person liable in damages for failing to prevent harm caused by someone else.” Nevertheless, the rule is not absolute. Apart from statutory exceptions, two well-recognised types of situation existed in which the common law might impose liability for a careless omission. The first of these was where the defendant was in a position of control over the third party and should have foreseen the likelihood that the third party might cause damage to someone else in close proximity if care were not taken in controlling them; Home Office v DorsetYacht Co Ltd was an example of this. The second general exception was where the defendant assumed a positive responsibility to safeguard the claimant. This could include cases of contract, fiduciary relationships, employer and employee, school and pupil and health professional and patient. In substance these are the second and third qualifications on the general rule regarding pure omissions that have been described previously. Furthermore, the rule and its qualifications were applicable both to private litigants and to public bodies. [75] Lord Toulson then examined decided cases relating to the liability of a range of different public authorities, and observed (paras 114–115): “It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law. “The refusal of the courts to impose a private law duty on the police to exercise reasonable care to safeguard victims or potential victims of crime, except in cases where there has been a representation and reliance, does not involve giving special treatment to the police. It is consistent with the way in which the common law has been applied to other authorities vested with powers or duties as a matter of public law for the protection of the public.” Furthermore, if the police when they intervened owed a duty of care to victims or potential victims of crime, there were difficulties about the range of the responsibility involved (paras 117 et seq). Potentially the duty was owed to almost anyone who claimed to be a victim. This difficulty underlined the fact that the duty of the police for the preservation of the peace is owed to members of the public at large, and does not involve the kind of closer special relationship (“proximity” or “neighbourhood”) necessary for the imposition of a private law duty of care. Furthermore, the imposition of liability on the police to compensate victims of violence on the ground that the police should have prevented it would have potentially significant financial implications (para.122). Thus the reasoning in Michael in relation to the police can be said to parallel to a significant extent the reasoning in Capital & Counties in relation to the fire service.

Negligence and the emergency services

[76] In Michael Lord Toulson addressed certain general issues of public policy in relation to the imposition of liability in negligence on public authorities, in particular the danger of a virtually unlimited duty and the possible financial

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implications. In Capital & Counties, by contrast, the Court of Appeal based its decision on the absence of proximity, and was generally unpersuaded by considerations of public policy. This distinction may well reflect the state of development of the law in 1997 as against 2015. In Capital & Counties the court approached the scope of the duty of care of the fire service on the basis of the well-known tripartite analysis of negligence found in the speech of Lord Bridge in Caparo Industries PLC v Dickman, pp.617–618. For a duty of care to exist, three elements were necessary: foreseeability, proximity (or neighbourhood), and whether it was fair, just and reasonable that the law should impose a duty of a given scope. Of these three requirements, the first, the foreseeability of damage, can be seen as a necessary but not a sufficient condition. Later developments have focused on the second and third requirements. These are reflected in Michael, where Lord Toulson expressed the view (at paras 131 et seq) that proximity was not a sufficient criterion for the existence of a duty of care; the concept was circular, and left the question of closeness or proximity open-ended. A contrary view was put forward by Lord Kerr (at paras 144 et seq) with specific reference to the facts of that case. [77] For present purposes it is unnecessary to enter into the details of this controversy. The important point is that it has come to be recognised that proximity together with foreseeability cannot, by themselves, provide a universal solution to every question involving the existence and scope of a duty of care. Instead policy must also be taken into account. It is this, I think, that is meant by the expression “fair, just and reasonable” in LordBridge’s formulation in Caparo. Proximity points to the closeness in fact of the relationship, and also to the question, which underlies the decision in Capital & Counties, of whether the relationship of the defender is with a small group of persons or the public generally. But policy introduces wider considerations. Moreover, it has in my view come to be recognised that proximity and policy cannot be looked at separately: they form parts of a single evaluative exercise which is designed to determine whether a duty of care exists and, if so, what its scope is. To the extent that Capital & Counties proceeds on the basis of proximity alone, without regard to questions of policy, I consider that it reflects the state of the law in 1997, when the tripartite test in Caparo was treated as providing a general scheme for the analysis of duties of care. Assuming foreseeability, the next question was whether proximity existed. If it did, the third question was whether there were policy considerations that tended to negative or limit the scope of such a duty of care. Today, however, it has come to be seen that proximity and policy are interdependent; except in established cases it is impossible to say that proximity exists without evaluating the relevant policy considerations. In a sense a finding that there is proximity is a statement of a result. The notion of proximity does not, except at a very general level, give much guidance as to how that result is reached; that is where policy is important. [78] Relevant policy considerations can take many different forms, and will inevitably vary from case to case. For present purposes it is the considerations relevant to the liability of public authorities that are important. At a very general level, one consideration is the need to avoid what was described, in Cardozo CJ’s celebrated formulation in Ultramares Corporation v Touche as “liability in an indeterminate amount for an indeterminate time to an indeterminate class”. While the requirement of proximity will tend to avoid such a result, the need to keep delictual liability under reasonable control should still be kept in mind.That is a factor that in my opinion is of considerable

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importance in considering the liability of a public authority that operates for the benefit of the entire public. [79] More specifically, a public authority will generally act for the benefit of the public as a whole. This is particularly true of the emergency services, where the functions of the fire service and police, in particular, are very obviously public in nature. In the case of the fire service, their public duty is owed to any member of the public whose property is affected by fire, including the owners of neighbouring properties which are threatened by a fire. In some cases the interests of members of the public may conflict. For example, a fire may break out in one property and threaten to spread along a row of properties. To prevent this, the fire service may consider that it is necessary to demolish the property adjacent to the fire to save the properties further along the row. Consequently the potential liability of the fire service is extremely wide and may involve sharp conflicts, where one member of the public is preferred over another. In such circumstances the warning in Ultramares Corporation v Touche is relevant; care must be taken to avoid indeterminate liability. [80] When a public authority is said to be liable for negligence as a result of the performance of its functions, statutory or otherwise, any liability to pay compensation will fall on the public purse. While that may in some cases be an appropriate means of bearing such a cost, there is a danger that potential liability for negligence may inhibit the authorityâ&#x20AC;&#x2122;s performance of its public functions, which will result in further hidden costs to the public. For these reasons it will frequently be appropriate for courts to restrict the private law liability of authorities. Perhaps a more important consideration is that it is generally economically desirable that the costs of any particular activity should fall on the participants; if it is a commercial activity they will obviously be passed on to customers, and if the activity is the ownership of property, they will form part of the general costs of owning that type of property. Those costs may be covered by insurance (although obviously the premiums for the insurance are a cost of the activity or property ownership in question). If, however, a public authority is liable for the costs of an incident, they will fall on the general public rather than the participants. That may be a reason for curtailing the liability of public authorities. The general rule that there is no liability for pure omissions, when applied to public services, tends to achieve this result. [81] When a claim is made against one of the emergency services, including the fire service, two further factors may be relevant. The first of these is the complexity of the operational demands that are typically made on such services, particularly the police but also the fire service. More than one emergency may arise at the same time, and difficult decisions will have to be made as to the allocation of resources among them. It can be said that it is inherently undesirable that decisions of this nature should be the subject of negligence claims. Frequently such decisions are made on the basis of incomplete information about what is happening, and the controlling officers may well be placed in acute dilemmas as to whether one incident rather than another should receive a response and as to precisely what that response should be in each individual case. This is a factor that was considered at length in Michael v Chief Constable of South Wales Police in relation to the police at paras 29 et seq, and in relation to other emergency services at paras 71 et seq. The second relevant factor is the difficulty faced by an emergency service in dealing with a particular incident. If the incident is truly an emergency, rapid action is required, on the basis of what will usually be incomplete information. Judgments have to be made quickly in conditions that are both dangerous and

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uncertain. Any potential liability must reflect this. Of course it applies to emergency services when they are performing their essential function: fighting fires, combating crime and the like. It is less obviously relevant when, for example, the police are directing or warning traffic, in a situation that is known and understood and where the resources are adequate to the task in hand. More generally, the peculiar difficulties that confront the emergency services are less relevant in cases where they can be said to have taken charge of a situation, at least where adequate resources are available. [82] The fire service and the police have, in Capital & Counties and Michael, been held to be subject to relatively restricted duties of care. This approach has not been extended to the ambulance service, however, which has been held subject to ordinary duties of care: Kent v Griffiths. Two reasons are advanced for the distinction. First, the ambulance service functions as part of the health service, and thus provides services equivalent to those provided by doctors and nurses; this distinguished it from the police and fire service: para.45. Secondly, the ambulance service normally deals with patients on an individual basis, just as a doctor does, and the risk of conflict among commitments is therefore less. The police and fire services, by contrast, owe their primary duties to the public at large; in the case of the police to achieve the prevention of crime and the detection of the perpetrators and in the case of the fire service to deal with outbreaks of fire wherever they occur. For these reasons the liability of the ambulance service cannot in my opinion provide a good guide to the liabilities of the fire service. [83] I am accordingly of opinion that good reasons exist for restricting the duty of care incumbent on the emergency services. The solution that has been adopted is based on the fact that the emergency services generally act to deal with situations that are not of their own making. Consequently the common law limitation on liability for pure omissions applies, subject to the various qualifications on that principle. Where the emergency service makes matters worse than would have been the case had it not intervened, liability exists; that is clear from the first two claims were considered in Capital & Counties, and in my opinion that is a fair result, which is in any event conceded by the fire board in the present case. [84] The other qualifications may present somewhat greater difficulties in individual cases. Thus where the fire service arrives at a fire and begins to fight it, it might be argued that it has “taken control” of the situation, or has assumed some form of responsibility to the owners of the property or affected neighbouring properties. It is at this point in my opinion that the policy considerations discussed above are important. When it fights a fire, the fire service’s primary duty remains to the public as a whole. Even in the vicinity of the fire, the duty may be owed to a number of proprietors whose interests are in conflict. Perhaps more importantly, the fire service is almost invariably dealing with a hazard created by others or by the forces of nature, in an emergency situation and with incomplete information. In that situation it cannot in my opinion be said that the fire service is in a situation of “control”, on any sensible meaning of that word. The notion of control may become relevant where, for example, the police are performing functions such as directing or warning traffic, when the situation is known and understood and the police are able to take charge of matters. It does not, however, apply to matters such as the fighting of a fire and the consequences of that task; fighting a fire is usually an attempt to achieve control. It follows in my opinion that the argument that the fire service is in control of the situation when it fights a fire should normally be rejected. That must I think apply to the present case.

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AJ Allan (Blairnyle) Ltd v Strathclyde Fire Board (IH) 689 A

Scottish authority

[85] We were referred by counsel to four Scottish cases dealing with the liability of public authorities, and I should say something about each of these. The first case was Duff v Highland and Islands Fire Board, where Lord Macfadyen held, obiter, that East Suffolk was distinguished on the ground that in that case the authority was exercising a mere power whereas in Duff they were acting under a statutory duty. That argument cannot I think be supported, on the authority of Gorringe v Calderdale Metropolitan Borough Council, para.3 per Lord Steyn, para.38 per Lord Hoffmann and para.71 per Lord Scott, where it was held that the existence of statutory powers and duties was irrelevant to common law negligence. Lord Macfadyen further held, again obiter, that if the destruction of the pursuers’ house had been caused by the fire authority’s negligent failure to extinguish a chimney fire completely, he would have regarded the causal connection between the negligence and the loss as clear, and that the authority, by attending the chimney fire and fighting it, placed themselves under a duty to the owners of the property and neighbours to exercise reasonable care to extinguish the fire. That is contrary to the decision in Capital & Counties. [86] In Burnett, Lord Macphail held that a fire authority whose officers had been called to a fire might be liable in negligence for failure to extinguish it properly, with the result that it reignited, causing significant damage. Proof before answer was accordingly allowed. Lord Macphail’s opinion is careful and thorough, and provides a helpful analysis of the authorities in this area. It was of course followed by the Lord Ordinary. Nevertheless it proceeds, I think, on a misunderstanding of the notion of pure omission (paras 33–36). Lord Macphail expresses the opinion that “the law of Scotland does not draw a distinction between acts and omissions comparable to that which appears to exist in the English law of tort between misfeasance and non-feasance”. Even if some distinction were recognised between acts and omissions along the lines of English law, when firefighters attended at the scene of the fire they could not be said to be “doing nothing”; they were taking active steps to fight the fire. Consequently what was involved was not a pure omission as understood in English law. [87] The problem with that analysis is that it does not recognise the underlying feature of the work of the fire service, namely that it deals with situations created by others or by the forces of nature. That is why any failure to act by the fire service is considered a pure omission; there is in general no duty to act to prevent damage caused by third parties or by the forces of nature. It also explains why, if a member of the emergency services or other rescuer intervenes and does so negligently, there will be no liability unless the result is worse than would have occurred without intervention: compare The Ogopogo, referred to at para.61 above. Furthermore, I am of opinion that the foregoing propositions, that a failure to act by the fire service is properly characterised as a pure omission, that there is in general no duty to act, and that if there is intervention there is no liability in negligence unless the result is worse than would have occurred without intervention, all follow from the nature of the task confronted by the fire service: dealing with a hazard created by another person or by the forces of nature. That is an inevitable feature of the task, and it does not depend in any way on specialties of Scots or English law. For that reason I must respectfully disagree with this part of Lord Macphail’s analysis. [88] Lord Macphail then considered the statutory framework within which the fire service operated, and indicated that the pursuer’s case was not founded

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on breach of statutory duty but on common law negligence. The argument had been that in carrying out their statutory functions the fire service had brought about a relationship between themselves and the pursuer sufficient to give rise to a duty of care at common law. The negligence founded on was said to have occurred in the course of a routine operation, the containment and extinction of a fire, and the existence of a common law duty was entirely consistent with the fire serviceâ&#x20AC;&#x2122;s due performance of their statutory duties. Nor was such a duty liable to discourage such performance (para.41). It is correct that a common law duty of care is consistent with statutory duties. Nevertheless, for such a duty to arise, I am of opinion that one of the four exceptions to the general rule of non-liability for pure omissions, as set out in para.62 above, must exist. That follows from the characterisation of inaction by the fire service as a pure omission, as explained above. [89] The question of proximity was considered at some length (paras 46 et seq). Lord Macphail was critical of the reasoning in Capital & Counties, observing that he did not understand the role of proximity in that case. In particular, it had been said that there was insufficient proximity for the creation of a general duty of care to the property owner but nevertheless sufficient proximity to give rise to a duty not make matters worse. I consider that there is some force in this criticism; the reasoning in Capital & Counties proceeds almost entirely on the basis of proximity, whereas it has, I think, now been accepted that policy must play a part as well as proximity, and that is certainly how I would prefer to analyse the position of the fire service and other emergency services. As a matter of policy, I would prefer to say that a duty is owed by the fire service but, for reasons of policy, the scope of that duty is confined to cases where matters are made worse by intervention. LordMacphail then referred to the East Suffolk case, and observed that it did not appear to have been followed in Scotland so far as it restricted liability to making matters worse. That may well be correct, but the absence of Scottish authority does not mean that the underlying principle is unsound; that principle is based on the fundamental fact that the damage tackled by an emergency service is normally caused by someone else or by the forces of nature. [90] Thereafter Lord Macphail observed that it was arguable that, when a fire brigade was fighting a fire, it owed a duty not to the public at large but to the limited class of those whose lives or property were endangered, including neighbouring proprietors (para.52). For reasons already discussed I consider that that would be dependent on holding that the fire brigade had taken control of the situation or had in some way undertaken responsibility, but that normally such a conclusion should be resisted because there is no â&#x20AC;&#x153;controlâ&#x20AC;? in any proper sense: see para.84 above. This is founded on policy considerations that apply to the emergency services, and in particular the fire service when it is fighting a fire. Finally, at paras 57 and 58 Lord Macphail indicated that it was inappropriate to proceed on the basis of assumption of responsibility because the elements of a Hedley Byrne relationship did not exist. It was also inappropriate to proceed on the basis of general reliance (the Australian doctrine) because it had been disapproved in Stovin v Wise. It might be better, he thought, to say that the pursuer was dependent on the fire service for the protection of his property against damage or destruction by fire. Whether property was vulnerable to fire depended entirely on the skills of the firefighters. Consequently they should have sought possible causes of reignition, acting as firefighters of ordinary competence exercising reasonable skill and care. The problem with this analysis in my opinion is once again that it assumes that

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2016 S.C.L.R.

AJ Allan (Blairnyle) Ltd v Strathclyde Fire Board (IH) 691

there was a duty to act to deal with a hazard that had been caused by the actings of a third party or the forces of nature. [91] Although I have expressed disagreement with part of the reasoning in Burnett, I should pay tribute to a carefully reasoned opinion which casts considerable light on the problems that arise in this area of law. A further Scottish case dealing with the liability of the emergency services is Gibson v Orr which dealt with the liability of the police for failing to give any warning of a serious hazard on the road. I have already commented on this case at para.62 above; it appears to me that it is a case where the police took control of a situation in such a way that a duty of care was assumed. In my opinion that analysis is one that may frequently apply to work performed by the police in controlling traffic or dealing with hazards on the roads. It would not, however, normally apply to work performed in the prevention of crime and the detection of the perpetrators of crime. [92] Finally, I should mention the last Scottish case, Mitchell v Glasgow City Council. This case involved a claim by the widow and daughter of a tenant of the local authority who had died of wounds following an assault by another tenant. The other tenant had previously threatened to kill the deceased, and the local authority was aware of a long history of threatening and aggressive behaviour by the other tenant towards the deceased. It was claimed that the authority was, in consequence of its common law duty of care, under an obligation to evict the assailant and to warn the deceased about the threats. That argument was rejected, essentially on the ground that the law does not impose a positive duty to protect others against harm inflicted by a third party. The decision is accordingly entirely consistent with the approach taken in Capital & Counties and Michael. The general approach adopted by Lord Hope, who delivered the leading opinion, was the tripartite test propounded by Lord Bridge in Caparo, although it was emphasised (para.26) that that test should be directed not merely to whether a duty of care existed but to the scope of any duty of care. It was the scope of the duty that was in issue in Mitchell; it was accepted that the local authority owed duties to its tenant and his family in relation to matters such as the state of the property leased and the common parts. Nevertheless that duty did not extend so far as protecting him from harm threatened by a third party. [93] Although the tripartite test was followed, it is clear from the opinions that policy considerations were taken into account. Lord Hope (para.15) emphasised the reasons for the principle that there is no liability for mere inaction where the defender has played no part in the harm that has occurred. At paras 21 et seq he emphasised that something more than foreseeability was required for liability, together with the inability of any single general principle to provide a practical test that could be applied in every case. Consequently the whole circumstances of the case must be examined in determining whether a duty of care should exist, and if so what its scope should be. At para.29 he suggested that public policy should govern the scope of any duty of care. I respectfully agree with such an approach; it seems to me that for reasons already discussed public policy must be an essential ingredient in assessing whether there exists a duty of care of a given scope. Lord Brown (paras 79â&#x20AC;&#x201C;80) emphasised the general significance of the decision and the question of whether it was appropriate, as a matter of policy, that any landlord who knows about a dispute involving one of its tenants should owe a common law duty of care to protect the tenantâ&#x20AC;&#x2122;s safety. Thus the case can be seen as supporting the view that policy is of vital importance in determining the scope of a duty of care, and that policy must be applied on an essentially casuistic basis.

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Conclusion

[94] For the foregoing reasons I am of opinion that the reclaiming motion should be allowed, and the action dismissed. I would add two final observations. [95] First, the issue in this case relates to damage to property, not injury to the person, and the foregoing discussion of the law proceeds on that basis. In a number of English cases it has been said that no distinction can be drawn between injury to the person and damage to property. Logically that is no doubt correct; the principle that there is generally no liability for a pure omission, if used literally and without modification, must apply to any form of injury or damage caused by a third party or the forces of nature. Nevertheless this result troubles me. In my opinion a distinction might properly be drawn between injury to the person and damage to property. In part this reflects the fact that the latter is usually covered by insurance whereas the former is not. More important, however, is the fact that the life, health and safety of the individual possess a greater moral significance than the security and integrity of any property; a normal person will attach greater importance to his safety than to his property. The parable of the good Samaritan would lose nearly all of its force if the man who went down from Jerusalem to Jericho had merely dropped his purse, which the Samaritan saw and returned to him. [96] Consequently I hope that in an appropriate case the law might develop in such a way that, at least in clear cases where action can be taken without danger to the rescuer, the officers of a public service such as the fire service or police are obliged to take action to rescue persons in danger. I realise that this must require a further exception to the general rule that there is no liability for a pure omission. I think, however, that policy considerations can be made to prevail over a mechanical application of the rule. I note that such a result has been achieved in French law by art.223-6 al 2 of the Code pĂŠnale, which makes it an offence deliberately to fail to help a person in peril where there is no risk to oneself or to others in doing so. While this provision of itself imposes criminal liability, breach of the duty gives rise to civil liability. German law is similar; s.323c of the Strafgesetzbuch (the German criminal code) provides that a person who fails to provide help in cases of disaster or imminent danger or distress, although such help is necessary and reasonable under the circumstances and does not involve substantial danger for the rescuer, is guilty of an offence. As in France, breach of the criminal provision gives rise to civil liability in delict. If our law of delict were to develop in that direction, there would obviously have to be an imminent danger to a person and rescue would have to be possible without serious risk to the rescuer, but a rule could be developed around those limitations. Justice in my opinion requires nothing less. [97] Any such development would mean that policy considerations prevailed over the literal and mechanical application of established law. This leads on to the second observation that I would like to make: the importance of policy in this area. The main development in the law of negligence over the last 25 years or so has perhaps been a recognition that the notion of proximity is limited in its usefulness, and that the question of whether there is sufficient to give rise to a duty of care of a given scope must depend ultimately on policy considerations. Thus an evaluative exercise is required, which takes account both of proximity, in the narrower sense of physical or causal connection, and policy considerations that are specific to the type of case under consideration. The result is that, as Lord Bridge stated in Caparo (p.618), â&#x20AC;&#x153;the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognizable situations as guides to the existence,

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AJ Allan (Blairnyle) Ltd v Strathclyde Fire Board (IH) 693

the scope and the limits of the varied duties of care which the law imposesâ&#x20AC;?. Those varying situations, perhaps many in number, will determine the policy considerations that should govern the existence and scope of any particular duty of care. Such development may be incremental and by analogy with established categories, as suggested by BrennanJ in Sutherland Shire Council v Heyman, pp.43â&#x20AC;&#x201C;44. Thus the past may guide the future. The critical point is that rules derived from existing case law should not be applied mechanically to new situations: instead it should be asked whether, as a matter of policy directed to the specific situation under consideration, a new analysis is required. The result would be a law of negligence that was less unified than in the past but which dealt more fairly with individual cases. That would in my opinion be a desirable development.

For the pursuers and respondents: Balfour, instructed by Blm, Solicitors, Edinburgh. For the defenders and reclaimers: R Dunlop QC, E Campbell, instructed by Clyde & Co, Solicitors, Edinburgh. C

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A COURT OF SESSION

9 February 2016

Outer House Lord Glennie B

Petitioner

Human rights—Application in criminal proceedings for recovery of complainer’s medical records—Confidentiality —Whether complainer has right to be heard and represented—Whether legal aid should be granted—European Convention for the Protection of Human Rights and Fundamental Freedoms, art.8

Legal Aid—Application in criminal proceedings for recovery of complainer’s medical records—Confidentiality—Whether complainer has right to be heard and represented—Whether legal aid should be granted—Legal Aid (Scotland) Act 1986 (c.47), s.4(2)(c) Judicial review—Human rights—Application in criminal proceedings for recovery of complainer’s medical records—Confidentiality— Whether complainer has right to be heard and represented—Whether legal aid should be granted—European Convention for the Protection of Human Rights and Fundamental Freedoms, art.8

Article 8 of the European Convention for Protection of Human Rights and Fundamental Freedoms provides: “Right to respect for private and family life (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.” Section 301A of the Criminal Procedure (Scotland) Act 1995 provides, inter alia: “Recovery of documents. (1) It is competent for the sheriff court to make, in connection with any criminal proceedings mentioned in subsection (2) below, the orders mentioned in subsection (3) below. (2) The proceedings are— (a) solemn proceedings in that sheriff court; (b) summary proceedings— (i) in that sheriff court; (ii) in any JP court in that sheriff court’s district. (3) The orders are— (a) an order granting commission and diligence for the recovery of documents; (b) an order for the production of documents. 694

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WF, Petitioner (IH)

695

(4) An application for the purpose may not be made— (a) in connection with solemn proceedings, until the indictment has been served on the accused or the accused has been cited . . .; (b) in connection with summary proceedings, until the accused has answered the complaint. (5) A decision of the sheriff on an application for an order under subsection (1) above may be appealed to the appropriate Appeal Court. (6). . . (7) The prosecutor is entitled to be heard in any— (a) application for an order under subsection (1) above; (b) appeal under subsection (5),

even if the prosecutor’s party to the application or (as the case may be) appeal. (8) The competence of the High Court to make, in connection with criminal proceedings, the orders mentioned in subsection (3) above, is restricted to making them in connection with proceedings in that court.” In an indictment brought in the sheriff court the petitioner, a complainer incriminal proceedings, applied for legal aid so as to enable her to be represented at a hearing before the sheriff of the accused’s petition for recovery of her medical records. She argued that recovery of such documents engaged her Convention rights to private and family life. The Scottish Ministers refused to make legal aid available for this purpose, arguing that she had no right to be heard, or be represented in front of the sheriff on that application. She applied for judicial review of that decision and sought reduction of the decision. She also sought declarator that the failure of the Scottish Ministers to promulgate such legislation as may be required to enable her to be represented before the sheriff in opposition to the application for recovery of her medical records was incompatible with, and a breach of, her Convention rights under art.8 and/or arts 6 and 14 ECHR. In the criminal proceedings the accused sought to recover from the NHS and other havers all medical, psychiatric and psychological records relating to the complainer from 2007 to 2014. In November 2014, the sheriff allowed his petition for commission and diligence to be received and authorised intimation on all interested parties. The petition sought an order for intimation on the Lord Advocate, the procurator fiscal, responsible officers within the NHS and other havers, and the complainer. The petition was intimated to all these parties, including the complainer and the date was assigned for a hearing of the petition. Following intimation of the petition on her the complainer sought legal advice and an application was made on her behalf to the Scottish Legal Aid Board for legal aid to enable her to be represented in the petition proceedings for recovery of her medical records based on her right to respect for her private and family life under art.8. Legal aid was refused on the basis that there was no provision in the legal aid legislation and regulations for legal aid to be granted for such proceedings. The complainer then applied for legal aid to the Scottish Ministers in terms of s.4(2)(c) of the Legal Aid (Scotland) Act 1986, which gives the Scottish Ministers power to direct the grant of legal aid in circumstances not otherwise covered by the rules. That application was refused. They considered that it was not appropriate to make a payment out of the legal aid fund on the basis that the court required to take account of relevant ECHR case law and required to take account of the interests of the person whose art.8 rights might be affected by disclosure of medical records. In support of her application for legal aid the complainer had supplied information that she would not be able to represent herself, including information from her medical practitioner and a note by counsel, based in part on her own observations of the complainer when they met outside the

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WF, Petitioner (IH)

2016 S.C.L.R.

court at the calling of the petition, speaking to the complainer’s vulnerability, her lack of understanding of the legal process, and of how to assert her art.8 rights, and her inability to speak on her own behalf in a formal court setting. The Scottish Ministers’ decision was based largely on the view that the complainer had no right to appear or be represented in the petition proceedings before the sheriff and therefore did not need to appear or be represented in order for her art.8 rights to be adequately protected and so these latter matters were not taken into account. The main issue in the petition for judicial review was whether the complainer had any locus to appear and be represented in the sheriff court petition procedure. Counsel for the petitioner argued that her art.8 rights were engaged by the petition for recovery of her medical records which were highly sensitive and the person to whom they related was entitled to seek to protect their privacy. It followed that she was entitled to seek to vindicate those rights by appearing in court in opposition to their production. Her right to appear did not depend upon the existence of any statutory provision or rule of court entitling her to appear but was inherent in her art.8 rights which would be breached if she were not given the opportunity to be heard. The proceedings in the sheriff court were not to be regarded as part of the criminal proceedings against the accused. Section 301A of the Criminal Procedure (Scotland) Act 1995 made it clear that the recovery proceedings were proceedings “in connection with” criminal proceedings, not part of them. The proceedings in Scotland, unlike in many continental systems, were adversarial and it was not the job of the court to know the law and to give effect to the complainer’s art.8 rights in circumstances where she was not present to articulate her objections. The interests of the procurator fiscal in proceeding to a fair trial were not necessarily the same as those of the complainer. Counsel for the respondent argued that the petition assumed that the complainer had a right to be heard in the sheriff court in opposition to the application for disclosure of her medical records. The court was not therefore concerned with whether there ought to be a right if there was not one, and if so, what should be done about it. The 1986 Act conferred on the Scottish Ministers very broad discretion. The application in the sheriff court for recovery of documents was not a common law application but was part of the criminal process. It was clear that the Scottish criminal justice system did not allow complainers or witnesses to participate in criminal proceedings, other than as witnesses. The court should not make any “declarative incompatibility”. Held (1) that a haver and any person whose art.8 rights might have been infringed by an order for recovery of medical records and other sensitive documents had to have the application for recovery intimated to them and had to be given the opportunity to be heard in opposition to the application before an order was made, or at least before the documents were handed over to the party seeking them (para.45); (2) that until new rules had been devised, it would be a matter for the sheriff hearing the application to determine how best to ensure that the party seeking to vindicate his Convention rights was heard before medical and other sensitive records were allowed to be released (para.45); and (3) that the letter refusing to direct the grant of legal aid had focused entirely on the question of whether the complainer had a right to be heard and represented in the proceedings for recovery of her medical records and although material had been presented to the Scottish Ministers concerning the complainer’s means and her ability to represent herself, those matters had not been addressed by the Scottish Ministers in the letter, and in those circumstances the appropriate course was for the court simply to reduce the decision, founded as it was on an error of law as to the complainer’s right to be heard, leaving the Scottish Ministers to make a new decision on a correct legal basis (para.48); and decision of the Scottish Ministers reduced.

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2016 S.C.L.R.

WF, Petitioner (IH)

697

Cases referred to:

Galbraith v HM Advocate, 2001 S.C.C.R. 551; 2002 J.C. 1; 2001 S.L.T. 953 HM Advocate v Ashrif, 1998 S.C.C.R. 197; 1988 S.L.T. 567 HM Advocate v Porch [2015] HCJAC 111; 2016 S.C.C.R. 55; 2016 S.L.T. 149 M v HM Advocate [2015] HCJAC 4 McDonald v HM Advocate [2008] UKPC 46; 2008 S.C.C.R. 954; 2010 S.C. (P.C.) 1; 2008 S.L.T. 993 McLeod v HM Advocate, 1998 S.C.C.R. 77; 1998 J.C. 67; 1998 S.L.T. 233 M v Director of Legal Aid Casework [2014] EWHC 1354 (Admin). P, C and S v United Kingdom (2002) 35 E.H.R.R. 31 R (B) v Crown Court at Stafford [2007] 1 W.L.R. 1524 R (Gudanaviciene) v Director of Legal Aid Casework [2015] 1 W.L.R. 2247 Scottish Criminal Cases Review Commission v Swire [2015] HCJAC 76; 2015 S.C.C.R. 333; 2015 S.L.T. 556 Steel and Morris v United Kingdom (2005) 41 E.H.R.R. 403 X and Y v The Netherlands, 1985 E.H.R.R. 235 Z v Finland (1997) 25 E.H.R.R. 371. The full circumstances of the case and the arguments of counsel are to be found in the following opinion of the Lord Ordinary, which was issued on 9 February 2016.

LORD GLENNIE Introduction

[1] This petition for judicial review arises in respect of criminal proceedings against an accused (“the accused”) brought on indictment in the sheriff court in September 2014. The petitioner, a complainer in the criminal proceedings, has applied for legal aid so as to enable her to be represented at a hearing before the sheriff of the accused’s petition for recovery of her medical records. She argues that recovery of such documents would infringe her Convention rights to private and family life. The Scottish Ministers have refused to make legal aid available for this purpose, arguing, inter alia, that she has no right to be heard or represented in front of the sheriff on that application. [2] In this petition the petitioner seeks reduction of that decision. She also seeks declarator that the failure of the Scottish Ministers to promulgate such legislation as may be required to enable her to be represented before the sheriff in opposition to the application for recovery of her medical records is incompatible with, and a breach of, her Convention rights under art8 and/or arts.6 and 14.

Outline facts

[3] There are seven charges on the indictment, all containing allegations of assault and domestic abuse in the period from 2008 to 2011. The petitioner in these judicial review proceedings is the complainer and, no doubt, the principal witness in respect of the first five charges. To avoid confusion which might arise from the fact that this petition for judicial review involves consideration of a separate petition procedure in the sheriff court, in which the present petitioner is an interested party, I shall refer to her throughout this opinion as “the complainer”. [4] To assist with his defence to the charges brought against him, the accused seeks to recover from the NHS and other havers all medical, psychiatric

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2016 S.C.L.R.

and psychological records relating to the complainer from 2007 to 2014. In November 2014 the sheriff allowed his petition for commission and diligence—brought in terms of s.301A of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) —to be received and authorised intimation thereof “on all interested parties”. The petition sought an order for intimation on the Lord Advocate, the procurator fiscal, responsible officers within the NHS and other havers, and the complainer. The sheriff’s order must be taken as authorising intimation to all of those parties. At all events, it is clear that the petition was in fact intimated on all of those parties, including the complainer. The sheriff assigned a date in December 2014 for a hearing on that petition. [5] Following intimation of the petition on her, the complainer sought legal advice. An application was made on her behalf to the Scottish Legal Aid Board (“SLAB”) for legal aid to enable her to be represented in the petition proceedings before the sheriff in opposition to the petition for recovery of her medical records based on her right to respect for her private and family life under art.8 ECHR. SLAB refused to grant legal aid on the basis that there was no provision in the legal aid legislation and regulations for legal aid to be granted for such proceedings. That refusal on that ground is not challenged. [6] Thereafter, in May 2015, the complainer applied to the Scottish Ministers in terms of s.4(2)(c) of the Legal Aid (Scotland) Act 1986 (“the 1986 Act”), which gives the Scottish Ministers the power to direct the grant of legal aid in circumstances not otherwise covered by the rules. That application was refused. By letter dated July 2015 the Scottish Ministers noted that, before any hearing took place before the sheriff, a preliminary issue required to be considered “as to whether your client has a locus to appear in relation to the specification of documents”. The letter went on to say that the Scottish Ministers did not consider that it was appropriate to make a payment out of the Legal Aid Fund, and gave these reasons for that decision: “The court must be satisfied that the release of documents will serve a proper purpose and that it is in the interests of justice to grant an order for their release (McLeod v HM Advocate at 80). The court requires to be satisfied that the material sought will be of material assistance in these circumstances. In considering this matter, the court will require to balance the interests of the accused with the right of the complainer to respect for private life – DM v HM Advocate. The court will require to take account of relevant ECHR case law. For example, Z v Finland in relation to the process for taking account of the interests of the person whose art.8 rights may be affected by a disclosure of medical records. “Scottish Ministers consider that the decision-making process in these types of cases enables the views of complainer or (sic) to be taken into account sufficiently and for their interest to be protected for the purposes of ECHR, including art.8, without the need for them to participate and be represented at the hearing to determine the matter. Scottish Ministers also consider that this applies in the specific circumstances of your client’s case. “In light of this consideration a determination to the Scottish Legal Aid Board to make legal aid available will not be provided.” That is the decision which is challenged in these judicial review proceedings. [7] It is apparent from that letter that the refusal of legal aid is based upon the proposition that the complainer has no right to appear or be represented in the petition proceedings before the sheriff and does not need to appear or be represented in order for her art.8 rights to be adequately protected. It is probably for that reason that no consideration appears to have been given to

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2016 S.C.L.R.

WF, Petitioner (IH)

699

the question of the complainer’s financial means or of her ability to appear and argue her case in person if she had a right to attend but was not able to obtain legal representation. I was shown documents which were submitted to the Scottish Ministers in support of the application for legal aid, including: (a) a certificate from a medical practitioner stating that the complainer suffers from recurrent depression and should avoid stressful situations; and (b) a note by counsel, based in part on her own observations of the complainer when they met outside court at a calling of the petition, speaking to the complainer’s vulnerability, her lack of understanding of the legal process and of how to assert her art.8 rights, and her inability to speak on her own behalf in a formal court setting. The letter of July 2015 makes no mention of these matters. [8] The petition for recovery of the documents has called before the sheriff on at least 13 occasions. The next hearing is due to take place early in February 2016. The trial itself was originally fixed for October 2014 but the trial diet has been deserted more than once. It is presently due to take place late in February 2016, about two weeks after the hearing on the petition for recovery of documents. Whether it will in fact take place then must be open to doubt.

The main issue in the present proceedings

[9] Although the decision under review concerns the refusal of legal aid, the reasons for that refusal raise the issue of whether the complainer has any locus to appear and be represented in the sheriff court petition procedure. That was the main issue focused in the submissions before me. I therefore propose to deal with that issue first before going on to consider: (a) whether the determination not to grant legal aid should be reduced; and (b) the more general question of whether legal aid should now be granted. D Submissions

[10] Ms Bain QC appeared for the complainer. Ms O’Neill appeared for the Scottish Ministers. Pursuant to leave granted by the court on an earlier occasion, Rape Crisis Scotland participated as interveners. They did not appear by counsel but lodged detailed written submissions to which both parties made reference in the course of their own submissions. I am grateful to them all for their assistance. E

Complainer

[11] Ms Bain’s submissions started with the uncontroversial proposition that the complainer’s art.8 rights (right to respect for private and family life) were engaged by the petition for recovery of her medical records. Medical records are highly sensitive and the person to whom they relate is entitled to seek to protect their privacy. She referred to Murdoch and Reed, Human Rights Law in Scotland (3rd edn), para.6.116. It followed, she submitted, that the complainer was entitled to seek to vindicate those rights by appearing in court in opposition to their production. She referred to English authority in support of the proposition that a person whose rights were potentially affected in this way has a right to be heard: R(B) v Crown Court at Stafford and M v Director of Legal Aid Casework. The right to be heard did not depend upon the existence of a statutory provision or rule of court entitling the complainer to appear; it was inherent in her art.8 rights which would be breached if she were not given the opportunity to be heard. The case of X and Y v The Netherlands showed that art.8 might in certain circumstances require the state to adopt measures designed to secure respect for private life: see particularly para.23. That was the case here. The decision of the ECHR in Z v Finland was to be distinguished,

5343.indd 699

07/12/16 8:10 AM

700 A

5343.indd 700

WF, Petitioner (IH)

2016 S.C.L.R.

for the reasons explained in Stafford Crown Court. The petition had, quite properly, been intimated on the complainer; that gave her a right to be heard. Ms Bain rejected the argument, advanced by the Scottish Ministers, that the petition proceedings in the sheriff court were in some way to be regarded as part of the criminal proceedings against the accused. Section 301A of the 1995 Act made it clear that the recovery proceedings were proceedings “in connection with” the criminal proceedings, not part of them. She sought to distinguish two cases relied upon by the Scottish ministers, namely Scottish Criminal Cases Review Commission v Swire and HM Advocate v Porch. Swire turned on the construction of s.303A of the 1995 Act while Porch (distinguishing Stafford Crown Court) turned on the fact that the complainer was not a party to the proceedings. [12] Turning to the Scottish Ministers’ letter of July 2015 refusing legal aid, Ms Bain characterised the argument there made that the complainer could rely upon the court knowing the law and protecting her interests as “remarkable” and as displaying a lack of understanding of the adversarial system. Unlike in many continental systems (cf, Galbraith v HM Advocate at para.21), it was not the job of the court to know the law and to give effect to the complainer’s art.8 rights in circumstances where she was not present to articulate her objections. The court was required to be satisfied that recovery of the documents would serve a proper purpose and that it would be in the interests of justice to grant the relevant order. As part of this exercise it was required to balance the interests of the accused in obtaining the medical records with the right of the complainer to respect for her private life under art.8: D M v HM Advocate, para.3. But how was the court to do that effectively? How was the sheriff to know whether there were any particular sensitivities within the medical records which would weigh more heavily in the balance in this case as compared with other cases? Who was to exercise any right of appeal if the complainer was dissatisfied with the sheriff’s decision? Nor was it the role of the procurator fiscal to represent the views of the complainer. The interests of the procurator fiscal in proceeding to a fair trial were not necessarily the same as those of the complainer. If an order was made for the recovery of her medical records without the complainer having an opportunity of making representations to the court, her art.8 rights would be infringed. It was notable that the NHS, one of the havers on whom intimation was made, had made it clear that they did not intend to appear or be represented at the hearing and did not intend to present any argument on behalf of the complainer in support of her objection to her medical records being produced. [13] There was no authority as to how the discretion conferred on the Scottish Ministers under s.4(2)(c) of the 1986 Act was to be exercised. Ms Bain drew my attention to the position in England under comparable legislation as set out in the judgment of the Court of Appeal in R (Gudanaviciene) v Director of Legal Aid Casework, para.72, disapproving in this respect what was said in M v Director of Legal Aid Casework. This guidance was helpful, though obviously not in any way binding. She also relied on the duty imposed on the Scottish Ministers, amongst others, in carrying out their functions in relation to a person who is or appears to be a victim or witness in relation to criminal proceedings, to ensure, insofar as appropriate, that the victim or witness should be able to participate “effectively” in the proceedings: Victims and Witnesses (Scotland) Act 2014 (“the 2014 Act”), s.1. I should note that is clear from s.1(1) of that Act that the term “victim” is intended to include someone who appears to be a victim, without pre-judging the issue of guilt. By a refusal of legal aid in these circumstances the Scottish Ministers were

07/12/16 8:10 AM

2016 S.C.L.R.

WF, Petitioner (IH)

701

preventing the petitioner from participating effectively in a case where her own rights were involved.

Scottish Ministers

[14] For the respondents, the Scottish Ministers, Ms O’Neill emphasised that the petition before the court was directed towards a specific decision of the Scottish Ministers. Many other important matters were touched upon by Ms Bain, but they were not for decision here. Further, the petition assumed that the complainer had a right to be heard in the sheriff court in opposition to the application for disclosure of her medical records. The court was not, therefore, concerned with whether there ought to be a right if there was not one and, if so, what should be done about it. [15] Ms O’Neill argued that s.4(2)(c) of the 1986 Act conferred on the Scottish Ministers “a very broad discretion”. There was no “legislative flesh” around it. Unlike the position in England, there were here no detailed schemes or written ministerial statements to be used as a guide. It was necessary, therefore, to note the context in which legal aid was being sought in the present case. The accused’s application in the sheriff court for recovery of documents was not a common law application. It was part of the criminal process. In this connection she referred to HM Advocate v Ashrif, in which it was held that (at that time) only the High Court had power to order recovery of documents required for use in a sheriff court trial: see at p.570B–D. The effect of s.301A of the 1995 Act was to transfer that jurisdiction to the sheriff court. The right of appeal under s.301A(5) from the decision of the sheriff was to the High Court. It was all part of the criminal process in the criminal courts. [16] Under reference to decisions of the appeal court in Swire and Porch, Ms O’Neill submitted that it was clear that the Scottish criminal justice system did not allow complainers or witnesses to participate in criminal proceedings other than as witnesses (or in limited other circumstances such as submitting victim impact statements in connection with sentencing). Article 8 did not require there to be a right of participation in the proceedings themselves; nor did it require the grant of legal aid. Z v Finland showed that there could be an adequate system safeguarding the rights of someone in the position of the complainer which did not involve them having a direct say in the proceedings. Individual states could find their own way of ensuring that a person’s art.8 rights were respected. The principles to be taken from Z v Finland were of more general application than its treatment in the Stafford Crown Court case might suggest. It was open to the complainer to make her views known to the court, either directly to the sheriff or through the procurator fiscal. The passage in Murdoch and Reed at para.6.116 supported the proposition that intimation to the complainer in such circumstances was sufficient since it informed the complainer of the application to be made and gave her notice of her right to make her views known to the court in this way. If the complainer was dissatisfied with the decision reached by the sheriff, it was always possible for her to judicially review his decision afterwards before it was acted upon. [17] So far as concerned the 2014 Act, Ms O’Neill referred to the EU Directive 2012/29/EU from which it sprang. That showed, at Recital (20), that practice across the EU varied. In some countries the victim is a party to the criminal proceedings and may participate in them. In others the victim is entitled to participate albeit that he or she is not a party to the proceedings. In yet others, of which Scotland is an example, the victim is under a legal obligation, if requested, to participate actively, for example as a witness, but is not a party. Nothing in the Directive required the introduction of procedural

5343.indd 701

07/12/16 8:10 AM

702 A

WF, Petitioner (IH)

2016 S.C.L.R.

rules allowing any particular form of participation: see art.10. Nor was there anything requiring the provision of legal aid except where the victim had the status of a party: see art.13. [18] Referring to the English cases cited by Ms Bain, Ms O’Neill submitted that they did not support the requirement for a general entitlement to legal aid in all such cases (even if there was a right of representation before the sheriff). There was no systematic flaw in the Scottish legal aid regulations. The Scottish Ministers were given a discretion to be exercised on a case-by-case basis. It followed that there was no need for the Scottish Ministers to promulgate new legislation covering cases such as that in issue on this application for judicial review. M v Director of Legal Aid Casework was not authority for the proposition that the complainer’s art.8 rights would inevitably be infringed if she was not represented before the sheriff. Stafford Crown Court was not authority for there being in all cases the right to be represented. The court there was careful to confine its decision to the facts of the case before it. [19] Ms O’Neill submitted that the court should not make any “declarator of incompatibility”. That was a term of art found in s.4 of the Human Rights Act 1998 and was relevant only to legislation of the UK Parliament at Westminster. In any event, even if the complainer had a right to be heard before the sheriff on the petition for recovery of her medical records, there was no necessary incompatibility between the Scottish legal aid provisions and her Convention rights. The discretion given to Scottish Ministers under s.4(2)(c) to direct the grant of legal aid in circumstances not otherwise covered by the rules provided a framework within which the complainer could have effective representation, if representation was needed, at the public expense, if that was justified. If a decision was taken which was not Convention compliant, that decision would be susceptible of review—but it did not follow that the system itself was not compatible with the Convention. Interveners

5343.indd 702

[20] I should note certain points from the written submission lodged by the interveners. The purpose of their intervention was to give the court the benefit of their experience in matters not specifically addressed in the petition. In their experience there had been an increasing use of complainers’ medical or other sensitive records within the context of sexual offence prosecutions, often to ascertain whether the complainer had a history of mental health issues. It was already well known that women were deterred from making complaints about being raped by someone with whom they had had a relationship, because of the risk of humiliation by questions directed to their previous sexual history and the risk of further humiliation if the case resulted in an acquittal. Without adequate safeguards to protect them, the risk of disclosure of confidential medical and psychiatric records would be another reason why victims of sexual assaults would not report such assaults to the police. The interveners had consistently advocated improvements in the position of complainers in sexual cases and had recently supported a proposed amendment to the Criminal Justice (Scotland) Bill seeking to provide for legal aid to be made available for complainers in sexual offence prosecutions so as to enable them to oppose applications to release their medical or other sensitive records.That amendment was not passed. The circumstances of the present petition illustrated the weaknesses of the present system for the protection of privacy rights of complainers in sexual offence prosecutions. I should note that the charges against the accused in the present case are not charges of sexual assault as that expression would normally be understood; but they are certainly charges of

07/12/16 8:10 AM

2016 S.C.L.R.

WF, Petitioner (IH)

703

violent assault and domestic abuse to which the same considerations may be thought to apply. [21] In s.5 of their intervention, the interveners say that requests by the defence for access to the medical records of complainers are now “relatively commonplace”, particularly in prosecutions for sexual offences. This appears to build on the statement in s.3 that, in recent years, in their experience, there has been an increasing use of complainers’ medical and other sensitive records within the context of sexual offence prosecutions. Counsel expressed some reservations about how commonplace this had become. I note that in McDonald v HM Advocate, decided in 2008, Lord Rodger remarked, at para.66, that applications for commission and diligence had been “far from usual in criminal proceedings”. The point may not matter, but it can sometimes be useful to assess the scale of any particular problem. [22] Dealing in s.5 with the practice surrounding the recovery of personal or sensitive records in Scottish criminal procedure, the interveners referred to the Crown’s policy published in a document entitled “Policy on obtaining and disclosing sensitive personal records in the investigation and prosecution of sexual crime cases” (“the Crown Policy”) published originally in July 2011 and in its current form in April 2014. A copy of which was lodged in process by the Scottish Ministers. The “General approach” is set out at paras 4–15. The interveners quote from para.4, which describes the purpose of obtaining health, social work, educational or other sensitive personal records as being to consider whether the material contains information which supports or undermines the Crown case or supports the defence case. It goes on to say: “Sensitive personal records should be obtained by the Crown only were their recovery is necessary for the proper investigation and prosecution of crime.” That statement appears to assume that if the sensitive personal records are necessary for the proper investigation and prosecution of the crime, they will be obtained and, presumably, disclosed to the defence. The interveners comment (in para.5.3) that that policy contains a presumption operating in favour of recovery in certain circumstances. Where the Crown holds the medical records of a complainer, the disclosure scheme set out in Pt.6 of the Criminal Justice and Licensing (Scotland) Act 2010 applies. There is no requirement in that scheme for the views of the complainer to be sought before disclosure to the defence of her private medical records. However, para.48 of the Crown Policy does identify the need to keep the complainer fully informed and to ensure that her rights to privacy under art.8 are given proper consideration, giving her an opportunity to express her views on the recovery of her sensitive records. The interveners go on to say this (at paras 5.5 and 5.6): “The views of the complainer are obtained at a meeting with a representative from Victim Information and Advice (VIA) service of the Crown and Procurator Fiscal Service who will seek her consent for recovery. The Crown policy may be explicit in its aim of giving proper consideration to the complainer’s right to privacy. Yet, in practice a complainer who does not wish her records recovered may be asked effectively to choose between consenting to their recovery, on the one hand, and undermining the prosecution on the other. Indeed, she faces the further possibility that the Crown will seek to recover her records against her wishes, under authority of the petition warrant. In most cases the complainer must take this decision without the benefit of legal advice. Further, she (has) no opportunity to formally challenge the assertion that her records are necessary for the

5343.indd 703

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704 A

5343.indd 704

WF, Petitioner (IH)

2016 S.C.L.R.

prosecution, or complain that insufficient weight has been given to her privacy rights. 5.6 Once such records are obtained, the Crown may then hold information which triggers its duty of disclosure to the defence. That will be complied with by the sensitive material being handed over to the defence without further recourse to the complainer. It is not regulated in any way. . . .” [23] In s.6 of the intervention, the interveners describe the petition for commission and diligence in the criminal context. They suggest that the procedure to be followed in such a case is “entirely unregulated”. That is not quite right, since the matter is now covered by s.301A of the 1995 Act, but they are correct to point out that the procedures laid down (whether at common law or in terms of the Act) do not require intimation upon the person whose private information might be contained within the documents sought to be recovered. In the present case intimation was made both to the havers and to the complainer; and I was told by counsel that intimation is in fact routinely made to havers and those, such as the complainer, whose rights might be affected by disclosure of the documentation. The interveners are, as I understand it, incorrect in stating that service upon the complainer is unusual. But they are correct to say that, “it remains unclear what the scope of her rights are”. While it might be presumed that with intimation comes the right to make substantive representations, the position “is not certain”. And if the complainer does have a right to make substantive representations, the scope of that right is also uncertain. Does it extend to addressing the sufficiency of the reasons underlying the request for the documentation? Does it extend to addressing the relevance of the material sought to be recovered? Does it extend to making submissions on the applicability of s.274 of the 1995 Act? [24] After discussing what is in issue at the hearing of a petition for recovery of documents, which I need not set out in any detail, the interveners go on to pose the question whether the interests of the complainer can be protected by some means other than independent representation before the sheriff. The idea that the haver has an interest or role in presenting submissions on the complainer’s behalf is rejected. The interveners discuss the potential role of the court in protecting the complainer’s art.8 rights but reject it on essentially two grounds: first, because of doubts about how the court, balancing the interests of the parties to the petition, could at the same time robustly advocate the privacy interests of the complainer; and, second, because of uncertainty as to how the views of the complainer could be made known to the court, absent some opportunity to address the court and, in the case of a vulnerable complainer or a complainer requiring additional support, a right to representation. As to the role of the Crown, the interveners noted that the Crown prosecute in the public interest and have a duty to ensure that the accused’s fair trial rights are respected. They are thus faced with a potential conflict between those obligations and any obligation they might otherwise have to represent the complainer’s legitimate interest in non-disclosure. They quote Professor Raitt as saying that the balancing of the multiple interests for which the Crown have responsibility “invariably gives primacy to the accused’s right to a fair trial”. Professor Raitt adds that, “it cannot be otherwise”. She goes on to say that the difficulty with that position is that there is no opportunity for the complainer’s legitimate privacy interests to be canvassed forcefully and competitively against other interests by an independent legal representative with all the entitlements of partiality that that entails. (I should note that Ms O’Neill said that the Crown do not accept that their balancing of those interests “invariably” gives primacy to the accused’s right to a fair trial; the Crown would always be concerned

07/12/16 8:10 AM

2016 S.C.L.R.

WF, Petitioner (IH)

705

to balance competing interests.) The interveners go on to say that in most cases the Crown will not have had sight of the complainerâ&#x20AC;&#x2122;s medical records prior to the hearing of the petition for their recovery; and, accordingly, may well not be in a position to oppose the application by reference to the content and specific sensitivity of the records. There are many circumstances where the significance of the information to the complainer, and the corresponding damage to her privacy were it to be revealed, will be unknown to the Crown. While such information could probably be obtained by the Crown, there was no formal requirement nor any mechanism for resolving disputes between the Crown and the complainer on the relevancy or significance of the records. [25] In a short comparative survey, the interveners say that they found a high level of independent legal representation for complainers within EU states but a more limited provision throughout common law jurisdictions. In Canada there was now an entitlement to representation for a complainer when her sensitive records were sought to be recovered. In the Republic of Ireland complainers now have a right to be represented where an application is made equivalent to one in Scotland under s.275 of the 1995 Act. In England the relevant criminal procedure rules now require service on the complainer or other person whose rights are affected of any application for recovery of confidential records; and they also provide an opportunity for that person to object. [26] So far as concerns the availability of legal aid, the interveners refer to Steel and Morris v United Kingdom and P, C and S v United Kingdom in support of the proposition that the question whether legal aid is necessary for a fair hearing must be determined on the facts of the particular case. However, in certain circumstances art.8 may require the provision of legal aid. They also refer to the test set out in para.72 of the judgment in Gudanaviciene and note that the Court of Appeal in that case disapproved the more limited approach of Coulson J in M v Director of Legal Aid Casework.

Discussion and Decision A right to be heard?

[27] Article 8 ECHR is concerned with the right to respect for private and family life. It provides, in para.(1), that: [His Lordship quoted the article as set out above and continued:] Para.2 sets out the qualifications or exceptions to this right. It provides as follows: [His Lordship quoted the article as set out above and continued:] Although the introductory wording of para.2 is directed towards interference by a public authority, it is clear that Art.8 does not merely compel the state itself to abstain from such interference but, in addition, may place a positive obligation on the state to adopt measures designed to secure respect for private life even in the sphere of relations between individuals: X and Y v The Netherlands, para.23. [28] There is no doubt that the potential disclosure to any third party of medical records pertaining to the complainer engages the complainerâ&#x20AC;&#x2122;s art.8 rights. Medical records are likely to contain highly sensitive information about an individual. Any disclosure to a third party requires to be justified. The matter is discussed in Reed and Murdoch at paras 6.112â&#x20AC;&#x201C;6.116. Respecting the confidentiality of health data is a vital principle in the legal system of all contracting parties to the Convention, not only for protection of privacy of the patient also to preserve his or her confidence in the medical profession and in the health services in general: Z v Finland, para.95.

5343.indd 705

07/12/16 8:10 AM

706 A

5343.indd 706

WF, Petitioner (IH)

2016 S.C.L.R.

[29] The need to take account of the art.8 rights of a person whose medical records are sought to be recovered in criminal proceedings has been recognised in Scotland in the context of an application by an accused for commission and diligence. The governing principles applicable to such applications are set out in McLeod v HM Advocate: the court will only grant an application by an accused person for commission and diligence for the recovery of documents if it is satisfied that the recovery of such documents will serve a proper purpose and is in the interests of justice, in the sense that the documents are likely to be of material assistance to the proper preparation or presentation of the defence. In M v HM Advocate the appeal court upheld the decision of the sheriff to refuse an application by the accused for the recovery of a psychiatric report relating to his wife. The accused had already obtained his wife’s medical records. At para.3, the court summarised the sheriff’s approach to the application in this way: “. . . The sheriff had regard to the test in McLeod v HM Advocate (LJG (Rodger) at p.80), to the effect that a party seeking the recovery of documents requires to explain why he wants them. The court will not grant an order for recovery unless it is satisfied that that recovery will serve a proper purpose and that it is in the interests of justice to grant the relevant order. The court requires to be satisfied that the materials sought will be of material assistance in the proper preparation or presentation of the defence. The sheriff noted that the appellant had already obtained the medical records and determined that it had not been shown that recovery was likely to be of material assistance in these circumstances. He balanced the interest of the appellant with the right of the complainer to respect for her private life under art.8 of the European Convention. He had regard to the specific purpose for which the report had been obtained. He did not consider that the interests of justice required recovery.” At para.5 the court said that the sheriff “applied to the correct test and did so in a satisfactory manner”. It is clear that the appeal court approved the carrying out of the balancing exercise in terms of which the interests of the appellant were balanced with the right of the complainer to respect for her private life under art.8. Strictly speaking, this point did not arise, since the sheriff had already determined that the accused had failed to show that recovery was likely to be of material assistance to his defence. None the less the approval by the appeal court of the sheriff conducting this balancing exercise is important. It is an exercise which requires to be carried out in every case where an application is made by an accused person for recovery of such records; and it requires to be carried out in particular in a case where, unlike in M v HM Advocate, the court is persuaded that recovery of the documents is likely to be of material assistance to the preparation or presentation of the defence. It is in those circumstances that the point becomes critical. [30] I was not shown any case in which the court had in fact decided that the documents sought were likely to be of material assistance to the defence and had also, whether at the same time or at a second stage in its reasoning process, considered the art.8 rights of the complainer (it will usually be the complainer, though the point no doubt arise in respect of medical records pertaining to others). No doubt this does happen but is not reported. It does raise a potential problem as to the scope of the balancing exercise to be conducted by the court if it has already formed the view that the documents sought are potentially of material assistance in the proper preparation or presentation of the defence. The art.8 right to respect for private life is not, of course, unqualified. Disclosure can be justified in a number of circumstances,

07/12/16 8:10 AM

2016 S.C.L.R.

WF, Petitioner (IH)

707

such as it being necessary in a democratic society in the interests of the prevention of crime. But it cannot be assumed that such interests will always outweigh the right to respect for privacy. Much may depend on the individual circumstances, including the seriousness of the offence and the importance and sensitivity of the records whose production is sought. It may be that measures can be taken (limited disclosure, redaction, etc.) to minimise the risk of detriment to the complainer while protecting the right to a fair trial. However, the requirement for a balancing exercise to be carried out must presuppose the possibility that the court, having decided that the documents are potentially relevant, will none the less refuse the application for recovery on grounds of the complainer’s art.8 rights. [31] The relevance of art.8 to an application for recovery of medical records has been noted also in a number of English cases. The English case law is summarised in Stafford Crown Court at paras 16–19, a case to which I shall refer in some detail below. [32] Given that the complainer’s art.8 rights are engaged whenever there is an application by the accused for records of this kind, the question arises as to how her interests are to be protected. Must she have the right to appear and argue her case in opposition to the application for recovery of her records; or are her rights sufficiently protected without that? That question has not been answered in Scotland. But it has been addressed in England and Wales in the case to which I have just referred. [33] The facts of the Stafford Crown Court are stark. The claimant was a 14-year-old girl who was to be the main prosecution witness in the trial of a defendant on a charge of sexually abusing her. She was in the position of the complainer in a Scottish trial. In the period leading up to the trial she received psychiatric treatment; and she had taken overdoses of prescription drugs on three occasions. The accused sought to recover her medical and hospital records. He argued that they were relevant to her credibility. The hospital trust opposed that application, arguing that confidentiality was essential, particularly when dealing with child abuse victims, and that the confidentiality belong[ed] to the patient, not the trust. The judge held that the defendant’s right to a fair trial took precedence over confidentiality issues and ordered disclosure of the psychiatric records. The official solicitor became involved. She notified the defendant’s solicitors that she now represented the claimant in connection with a possible infringement of her art.8 rights. The judge was asked to state a case for the consideration of the High Court. Concerned that it would delay the trial, the judge invited the claimant to attend court to see that she understood the implications of her actions in terms of delaying the trial. The claimant attended court, unrepresented, and reluctantly agreed to disclosure of the records because she did not want to see the trial delayed. Subsequently the claimant brought judicial review proceedings against the Crown Court, seeking declarations that she had been entitled to have [the] defendant’s application for her medical records served on her and, further, that she had the right to make representations to the court on what order should be made on that application. She argued that the Crown Court had acted unlawfully in proceeding with the hearing of the application without securing those entitlements. Her claim succeeded. The court held, inter alia, that there ought to be rules requiring the application to be notified to someone in the position of the complainer; and that procedural fairness in the light of art.8 required that the claimant should have been given notice of the application as well as the opportunity to make representations before the order for disclosure was made.

5343.indd 707

07/12/16 8:11 AM

708 A

WF, Petitioner (IH)

2016 S.C.L.R.

[34] In giving judgment, May LJ, with whom Forbes J agreed, noted at para.16 that medical records, and in particular psychiatric records, were confidential between the medical practitioner and the patient. The patient undoubtedly had a right of privacy within art.8 of the Convention. The Crown Court was a public authority and it was unlawful for a public authority to act in a way which was incompatible with a Convention right: see s.6(1) of the Human Rights Act 1998. It followed, therefore, that: “[if], therefore, the court was to consider ordering disclosure in breach of confidentiality of B’s medical records, it could only do so if this was proportionate, in accordance with the law and necessary, I suppose, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. In simple terms, it required a balance between B’s rights of privacy and confidentiality and W’s right to have his defence informed of the content of her medical records”. See para.20. He noted at para.21 that it would be wrong to approach the question with a predisposition to suppose that applications for disclosure of medical records of a prosecution witness will usually succeed even in the face of art.8 objections. He then dealt in para.22 with the point that the existing legislation and rules did not expressly oblige the court to give notice of the application to a person in a position of the complainer. In this context he referred to the overriding objective set out in the English Criminal Procedure Rules “that criminal cases are dealt with justly” which, he observed, included respecting the interests of witnesses, victims and jurors. Against this background he expressed the view that the rules ought to have required notice of the accused’s application to be given to the complainer: “The court was being invited to trample on B’s rights of privacy and confidentiality. B was both a witness and a victim of the then alleged crime. The court was obliged to respect her interests and these were some of them.”

He went on in paras 23–28 to say this: “23. More generally, although art.8 contains no explicit procedural requirements, the court will have regard to the decision-making process to determine whether it has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by art.8. The process must be such as to secure that the views of those whose rights are in issue are made known and duly taken account of. What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the person whose rights are in issue has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will be a failure to respect their family life and privacy and the interference resulting from the decision will not be capable of being regarded as ‘necessary’ within the meaning of art.8.

... 25. In my judgment, procedural fairness in the light of art.8 undoubtedly required in the present case that B should have been given notice of the application for the witness summons, and given the opportunity to make representations before the order was made. Since the rules did not require this of the person applying for the summons, the requirement was on the court as a public authority, not on W, the defendant. B was not given due notice or that opportunity, so the interference with her rights was not

5343.indd 708

07/12/16 8:11 AM

2016 S.C.L.R.

WF, Petitioner (IH)

709

capable of being necessary within art.8(2). Her rights were infringed and the court acted unlawfully in a way which was incompatible with her Convention rights. This in substance is what the requested two declarations seek and I would grant them. 26. Mr Fordham, B’s counsel, explains that the first draft declaration was framed with a view to a right to make oral representations; for that is what the person to whom the summons will be directed, if he seeks to be heard, is entitled to under the present rules. In the light of the present rules, that seems to me to be correct in the present case.”

I should explain that that last paragraph is a reference to the fact that, under the rules as they then existed, the person who had the documents and to whom the application was directed (in our language, the haver) had a right to be heard. As I understand it, May LJ is there saying that the complainer should also have a right to be heard. He went on to say this: “27. I would firmly reject the suggestion that it would have been sufficient for the interest of B to be represented only by the NHS trust. The confidence is hers, not theirs. Their interests are different. They have a wider public interest in patient confidentiality generally and may have particular interests relating to her care which could conflict with hers. Mr Lock (who appeared for the NHS trust) submits that the trust should be able to advance these wider public interest submissions against disclosure without having the role cast on it of acting also as an advocate for the patient’s confidentiality. I agree. I agree also that the trust should not be saddled with the heavy burden of making enquiries of the patient, finding reasons why he or she might object and putting those reasons before the court. Further, there may be material in the notes which the trust can legitimately withhold from the patient under (data protection legislation). 28. In my view, the burden of protecting B’s privacy should not be placed on the trust. The burden resides with the court and she herself was entitled to notice and proper opportunity for representation.”

May LJ went on in his judgment to consider what changes ought to be made to the rules. He was aware that the Rule Committee was consulting and that the court should not usurp its functions. Among the potential difficulties in framing new rules, he identified at para.30(d) the question whether the person with art.8 rights should be entitled to make oral representations. He comments that he had supposed that they would be so entitled under the present rules since the person to whom the summons was directed (ie, the haver) presently had that opportunity. He cast some doubt upon the adequacy of the draft rules circulated as part of the consultation exercise. He returned to the issue in the case before him in para.35: “I end by reiterating that my decision is limited to the facts of this case. It would not be right to pre-empt the more general decisions that the Rule Committee may make. I am quite clear, however, that in the present case B should have been given notice of the application and given the opportunity to make representations, orally if she had wished. It was not sufficient for the court to delegate her representation to the NHS trust alone. In fact, her independent views were not received in any form before the order was made. There was an oral hearing, but she was not given the opportunity to attend it. . . .” I shall come back later in this opinion to his discussion of the case of Z v Finland. [35] Ms Bain naturally relied upon this judgment as a very strong expression of the need for a person in the position of the complainer, whose medical

5343.indd 709

07/12/16 8:11 AM

710 A

5343.indd 710

WF, Petitioner (IH)

2016 S.C.L.R.

records are sought to be obtained by the accused, to be given the opportunity of addressing the court in person. Ms O’Neill, as was to be expected, emphasised the fact that May LJ expressly stated that his decision was limited to the facts of the particular case. That is, of course, true, but he was saying that in the context of emphasising that he should not be dictating to the Rule Committee what form the revised rules should take. At all events, in stating that his decision was limited to the facts of the case, May LJ clearly did not mean that it was influenced in any way by the precise name, age or characteristics of the particular complainer. He must have intended his decision to apply at least to anyone in the position of a complainer or witness in respect of that type of charge who was not, for whatever reason, able, through age or other vulnerability, adequately to make her views known in a cogent and coherent way. He may have had in mind that there will be cases where a person in that position does not object to her medical records being disclosed. In such a case there might be no need for that person to be heard in person at any hearing of the application. But he could not have had in mind that a person who wished to object should not have the opportunity to be heard in opposition to the application. His comments about the impossibility of her interests being properly represented by the NHS trust (the haver) make it clear that the court was not going to be informed of her views through this means. Nor could he have had in mind the possibility that her views would simply be made known to the court by the prosecution. He does not mention that possibility at all. In those circumstances, although he does emphasise that the decision is a decision on the facts of the particular case, it is difficult to see why it should not be regarded as one of wider application. [36] This is how that decision was treated by Coulson J in M v Director of Legal Aid Casework. That case was principally about whether M, who was in the position of a complainer to a charge of rape, should be granted legal aid to oppose an application by the Crown Prosecution Service for recovery from a charity of records of her counselling sessions with that charity. By the time that case came before the courts, the new rules mentioned by May LJ had come into force. Those rules required the party applying for a witness summons (ie, a summons requiring the haver of a document to produce it) to serve the application not only on the haver but also on any person to whom the proposed evidence related; and stated that the court must not issue a witness summons unless everyone served with the application had had at least 14 days within which to make representations and the court was satisfied that it had been able to take adequate account of the rights, including rights of confidentiality, of any such person. That, therefore, was how the Rule Committee interpreted May LJ’s judgment in Stafford Crown Court. Coulson J said that the new rules gave the complainer “a clear and unequivocal entitlement to be heard on a witness summons which seeks to go behind the confidentiality of her medical records”: see at paras 16 and 17. But in para.15, in introducing extensive quotes from May LJ and then the new rules, Coulson J referred to May LJ’s judgment as “[setting] out in detail how and why a complainant was entitled to have the summons served on him or her, and was entitled to make representations about the disclosure”. It is clear from that that he had no doubt that the remarks in Stafford Crown Court were intended to be of general application. [37] Ms O’Neill relied on the decision of the Strasbourg court in Z v Finland in support of her argument that art.8 did not necessarily involve the person whose medical history was to be disclosed being afforded an opportunity of being heard directly by the court before it made an order. That was a case

07/12/16 8:11 AM

2016 S.C.L.R.

WF, Petitioner (IH)

711

in which the applicant, Z, was the wife of an accused person, X, who was on trial for counts of attempted manslaughter allegedly committed by him by sexually assaulting a number of females whilst he was HIV positive. A critical question was whether at the relevant times X knew that he was HIV positive. Z invoked her right not to give evidence at his trial. Faced with this difficulty, the prosecutor sought and obtained orders from the court of obliging the medical advisers treating both X and Z to give evidence. At the same time, the police seized medical records concerning Z. X was convicted on three counts by the first instance court and on two further counts by the Court of Appeal. Z complained that her art.8 rights had been violated, inter alia, by the orders obliging her medical advisers to disclose information about her and by the seizure of her medical records and their inclusion in the investigation file. On these two issues the Strasbourg court held that there had been no violation of her art. 8 rights. The relevant passage for present purposes begins at para.94 of the court’s judgment. The court held that in determining whether the impugned measures were necessary in a democratic society, the court would consider whether, in the light of the case as a whole, the reasons adduced to justify those measures were relevant and sufficient and whether the measures were proportionate to the legitimate aims pursued. The court emphasised the fundamental importance of a person’s medical records both to that person’s enjoyment of her right to respect for private and family life and also to the preservation of confidence in the medical profession, ensuring that those in need of medical assistance should not be deterred from revealing personal and intimate information to medical practitioners when they sought medical assistance. That was so particularly in the case of information about a person’s HIV infection. Any measures compelling disclosure of such information without the consent of the patient called for the most careful scrutiny on the part of the court. However, the court accepted that the interests of a patient in protecting the confidentiality of her medical records might be outweighed by the interest in investigating and prosecuting the crime and also by the interests in the court proceedings being public. It emphasised that in weighing all these factors a margin of appreciation should be left to the national authorities. It examined the issues in light of those considerations. It then said this, at para.101: “101. Before broaching these issues, the Court observes at the outset that, although the applicant may not have had an opportunity to be heard directly by the competent authorities before they took the measures, they had been made aware of her views and interests in these matters. “All her medical advisers had objected to the various orders to testify and had thus actively sought to protect her interests in maintaining the confidentiality of her medical data. At an early stage, her letter to senior doctor L, urging him not to testify and stating her reasons, had been read out to the City Court. “In the aforementioned letter, it was implicit, to say the least, that she would for the same reasons object also to the communication of her medical data by means of seizure of her medical records and their inclusion in the investigation file, which occurred a few days later. According to the applicant (ie, Z) her lawyer had done all he could to draw the public prosecutor’s attention to her objections to her medical data being used in the proceedings. . . . “In these circumstances, the Court is satisfied that the decision-making process leading to the measures in question was such as to take her views sufficiently into account for the purposes of art.8 of the Convention. Thus, the procedure followed did not as such give rise to a breach of that article.

5343.indd 711

07/12/16 8:11 AM

712 A

5343.indd 712

WF, Petitioner (IH)

2016 S.C.L.R.

“In this connection, the Court takes note of the fact that, according to the Government’s submissions to the Court, it would have been possible for the applicant to challenge the seizure before the City Court. . . .” [38] It is correct to say, as Ms O’Neill does say, that in that judgment the Strasbourg court found that there had been no breach of art.8 by the disclosure of the applicant’s medical history (by oral evidence from her doctors and by recovery of her medical records) without the applicant herself having had the opportunity to be heard directly in opposition to that disclosure. But the unusual nature of that case is then spelt out by the court. The court had been made aware of her views. Her medical advisers had objected to the orders to testify and had actively sought to protect her interests in maintaining the confidentiality of her medical data. Her letter urging her doctor not to testify had been read to the court. Her lawyer had done all he could to draw her objections to the attention of the public prosecutor. And she had had the right to apply to the court to challenge the seizure of her medical records. Those various matters led May LJ in the Stafford Crown Court case, at para.34, to describe Z v Finland as: “a decision on its facts, which cannot be used to support a general position either that a person whose art.8 rights are in issue need not be notified; or that representations by medical advisers alone are sufficient; or that oral representation is unnecessary”. He went on to say this: “It was a strong combination of factors, not present in B’s case, which contributed to the result. It is one thing to find that, in a combination of particular circumstances, there has been no breach of art.8; quite another to frame rules on an assumption that those circumstances will always arise in combination in every case.” I respectfully agree. To my mind Z v Finland simply confirms that there will not inevitably be a breach of a complainer’s art.8 rights if an order for recovery of her medical records is made without her having had the opportunity to be heard in opposition to it. There might be exceptional circumstances justifying that course. But it does not support the proposition that giving the complainer (or other person whose rights may be affected by the disclosure of the medical records) a right to be heard is generally unnecessary. For the reasons given by May LJ in the Stafford Crown Court case, I consider that intimation to the complainer and the provision of an opportunity to be heard before an order for recovery of her medical records is made is required if there is not to be a breach of the complainer’s art.8 rights. [39] There are good practical as well as legal reasons for this. If the complainer is not given the opportunity to be heard, how is the court to carry out the balancing exercise required of it? The defence cannot be expected to argue, on her behalf, her likely objections to their own application for recovery of the documents. Nor, for the reasons given by May LJ at para.27 of his judgment in the Stafford Crown Court case (and supported in this case by the submissions of the interveners), would it be adequate for her interests to be represented by the NHS or other haver. Without enquiry of the complainer, they would not necessarily be aware of any particular concerns which she might have. The interests of the NHS as havers might be different from those of the complainer. And, as is evident from the material lodged in this case, the NHS will usually be content to leave the decision to the court without wishing to be heard. What about the court itself? Of course, as the Scottish Ministers

07/12/16 8:11 AM

2016 S.C.L.R.

WF, Petitioner (IH)

713

say in their July letter, the court will be expected to be aware that its decision has to take into account the art.8 rights of the complainer. But how is the court to know whether there are any particular sensitivities to be taken into account in making its decision, unless it gets this information from the complainer or her representatives. It is not enough, in my opinion, and does not satisfy the requirements of art.8, for the court to treat every case in the same way, balancing the accused’s interest in obtaining the medical records against a typical complainer’s art.8 privacy rights. But that is what it would have to do if it did not give the complainer in every case an opportunity to be heard. [40] This does not mean that there would have to be a hearing in every case attended by the complainer or her representatives. It would be adequate, in my view, for rules to be introduced along the lines of those in England and Wales, in terms of which: intimation is given to the havers and to the complainer (and any other person to whom the records relate) of the petition for commission and diligence; they are given a short period, say 14 days, within which to indicate whether they wish to be heard in opposition to the petition; and there can then be a hearing on the petition, with or without appearance by the havers and/or the complainer depending upon whether, within that period, they have indicated that they wish to be heard. [41] There are at present no rules requiring either intimation on any such persons or affording them a right to be heard. The matter is covered by s.301A of the 1995 Act. This provides, so far as material, as follows: [His Lordship quoted the section as set out above and continued:] That section contains no obligation to intimate the petition on any havers or anyone whose Convention rights may be affected by recovery or production of the documents. It does, however, impliedly require intimation on the prosecutor; and it expressly entitles the prosecutor to be heard on the application. On the strength of this Ms O’Neill argued that the complainer had no present right to be heard. That is wrong. There may be no express provision in any statute or any rule requiring intimation to be made on the complainer or requiring her to be given an opportunity to be heard. But she has that right by virtue of art.8, and the absence of any specific provision in a statute or in court rules cannot take away that right. What is required is for the lack of any specific provision to be addressed by the appropriate rule-making body. [42] Ms O’Neill referred to the decisions of the appeal court in Swire and Porch as demonstrating that no one who was not a party to the criminal proceedings could participate in any part of those proceedings. I do not understand the appeal court to have been going that far. Certainly in Swire, which concerned the right of relatives of two of the victims of the Lockerbie bombing to apply to the Scottish Criminal Cases Review Commission for a review of the conviction for that crime, the appeal court stated that: “the Scottish criminal justice system does not, at present, allow victims or relatives of victims to be direct participants in criminal proceedings”. However, as the court noted at para.18, the decision turned on a short point of statutory interpretation, viz s.303A of the 1995 Act. Porch concerned the right of a complainer to be heard in opposition to a bail condition imposed upon her partner, pending his trial for assaulting her, that he should not approach or contact her. Again, the decision turned upon the construction of the relevant statutory provision. At para.33, the court said this: “A compatibility issue does not arise simply because the art.8 rights of another may be affected by a decision taken in a criminal process not

5343.indd 713

07/12/16 8:11 AM

714 A

5343.indd 714

WF, Petitioner (IH)

2016 S.C.L.R.

relating to that person. The consequence of this argument is that every complainer, indeed every family member who might be affected by the bail decision, would be entitled to independent representation at every stage of the bail process, and that would be so whether or not he or she contested the imposition of the conditions, which would impose an impossible or disproportionate burden on the system.” The court held that the complainer had no right to participate in the proceedings. The fact that the proceedings were intimated on her did not make her a party. And her views were made known to the court by the Crown. But that decision, again, turned on the particular circumstances. In para.35 the court distinguished between, on the one hand, a person who was entitled to participate in a court process for the purpose of obtaining an order or determination in their favour and, on the other, an individual who was not so entitled. It distinguished the case before it from cases such as the Stafford Crown Court case, the latter being a case of someone who was entitled to participate. In the same way, so it seems to me, the position in Porch is distinguishable from the present case. In the present case, just as in Stafford Crown Court, the complainer is entitled to participate, notwithstanding the absence of a particular rule or statutory provision entitling her to do so, and not because the petition proceedings in the sheriff court were intimated on her, but because her art.8 rights entitle her to be heard. [43] In this connection, it should be borne in mind that there is no question of the complainer participating in the criminal trial itself other than as a witness. As the wording of s.301A(1) makes clear, the petition proceedings before the sheriff for commission and diligence are not part of the criminal proceedings against the accused. Rather they are petition proceedings brought “in connection with” the solemn proceedings in the sheriff court. Before that section was introduced in 2007, only the High Court had power to order recovery of documents required for use in a sheriff court trial: HM Advocate v Ashrif. Those proceedings in the High Court were obviously separate from the solemn proceedings in the sheriff court. The effect of s.301A is to allow the application for recovery of documents to be made in the sheriff court; but that application is still made in separate proceedings. Intimating those proceedings for recovery of documents on the havers and on someone in the position of the complainer whose rights may be affected by an order for recovery, and giving them the opportunity to be heard before any such order is made, does not make any substantial inroad into the general principle enunciated in cases such as Swire and Porch that the Scottish criminal justice system does not, at present, allow victims to be direct participants in criminal proceedings. Insofar as the petition proceedings for commission and diligence are indeed criminal proceedings, and I do not think that it was suggested that they were not criminal proceedings, they are wholly separate from the substantive criminal proceedings against the accused and are focused entirely upon an issue, viz the recovery of medical records, in which persons such as the complainer have a direct interest. [44] In McDonald v HM Advocate Lord Rodger described the use of commission and diligence both in civil and criminal procedure in terms which appear to recognise that the principles governing the application in each case are the same: see paras 65–67. If that is right, and I see no reason why it should not be, that too provides a reason for saying that a person whose rights are potentially affected by the making of an order should have the opportunity of being heard before the documents are made available to the party seeking their recovery. In civil procedure the motion for commission and diligence will be

07/12/16 8:11 AM

2016 S.C.L.R.

WF, Petitioner (IH)

715

intimated on the other party to the proceedings. They will usually be the only parties represented at the hearing of the motion. If an order is made, the haver will be required to produce the documents. However, if he wishes to insist on rights of confidentiality (eg, legal professional privilege, commercial sensitivity, etc.) he may produce the documents under reservation of his right to argue the point before they are handed over. Typically this is done by putting the documents in respect of which confidentiality is claimed into an envelope which is not to be opened until the court has ruled on the question, but there are other ways in which the matter can be dealt with. And the same process applies where the documents sought to be recovered raise issues of confidentiality not in the haver but in a third party. To afford the haver or the complainer an opportunity to be heard when the documents are sought to be recovered in connection with criminal proceedings simply applies the same principle in this different setting. [45] I conclude, therefore, that a haver and any person whose art.8 rights may be infringed by an order for recovery of medical records and other sensitive documents must have the application for recovery intimated to them and must be given the opportunity to be heard in opposition to the application before an order is made or, at least, before the documents are handed over to the party seeking them. I put it in this way because there may be many stages at which that person may be heard. It may be that they should be heard on every application. It may be that they should only be heard if, having had the application intimated on them and been given the opportunity of objecting, they indicate that they wish to be heard. Or it may be that they should only be heard once the court has determined that the documents pass the test of relevancy and should be recovered subject to any objection on art.8 grounds. In this connection it may be possible to devise rules applying to applications in the criminal process a procedure similar to that which exists in civil proceedings. That is a matter for the framers of any new rules to determine. In the meantime it will be a matter for a sheriff hearing the application to determine how best to ensure that a party seeking to vindicate his or her Convention rights is heard before medical and other sensitive records are allowed to be released. Legal aid?

[46] If the complainer has a right to be heard, whether initially [or] at some later stage, it must follow that she is entitled to legal representation. That raises the question of whether she is entitled to be publicly funded for such representation. [47] It is common ground that the case does not fall within any of the categories for which legal aid is available according to the current regulations. That is why the complainer has made an application to the Scottish Ministers under s.4(2)(c) of the 1986 Act. That provides, reading short, that there shall be paid out of the Scottish Legal Aid Fund (“the Fund”) “such other payments as the (Scottish Ministers) may determine”. That section, therefore, gives the Scottish Ministers a wide discretion as to whether or not to direct the grant of legal aid to someone in the position of the complainer. The Act is silent as to how that discretion should be exercised. That is a matter, in the first instance at least, for the Scottish Ministers. But of course its exercise is subject to review by the courts. [48] The letter of July 2015 refusing to direct the grant of legal aid focused entirely on the question of whether the complainer had a right to be heard and represented in the proceedings for recovery of her medical records. Although

5343.indd 715

07/12/16 8:11 AM

716 A

5343.indd 716

WF, Petitioner (IH)

2016 S.C.L.R.

material was presented to the Scottish Ministers concerning the complainer’s means and her ability to represent herself, those matters were not addressed by the Scottish Ministers in the letter. In those circumstances the appropriate course for this court is simply to reduce the decision, founded as it is on an error of law as to the complainer’s right to be heard, leaving the Scottish Ministers to make a new decision on a correct legal basis. I propose to take that course. [49] I should, however, make two points which the Scottish Ministers may find of assistance in coming to any new decision about the matter. [50] The first is that as a matter of Convention jurisprudence, the complainer is entitled to have her ECHR rights protected effectively. This is reinforced by the obligations placed on Scottish Ministers by s.1(3)(d) of the Victims and Witnesses (Scotland) Act 2014 which provides that “in so far as it would be appropriate to do so, a victim or witness should be able to participate effectively in the . . . proceedings.” I have already explained that the reference to a “victim” must mean someone who is alleged to have been a victim, otherwise it would prejudge the question of guilt. I do not suggest that that section gives a victim or witness a right to participate in the trial other than as a witness if called to give evidence. But it does lend support to the proposition that insofar as the complainer has a direct right to be heard on an application for recovery of her medical records, that right must be made effective. If the grant of legal aid—both for representation in court and, perhaps, also at the earlier stage of taking advice on the petition for commission and diligence so as to understand its potential consequences—is necessary to make that right effective, that is a factor which must be taken into account in arriving at a decision. [51] The second point is that the Scottish Ministers may wish to have regard to the approach set out by the Court of Appeal in Gudanaviciene at para.72, disapproving the more demanding test suggested by Coulson J in M v Director of Legal Aid Casework: “Whether legal aid is required will depend on the particular facts and circumstances of each case, including (a) the importance of the issues at stake; (b) the complexity of the procedural, legal and evidential issues; and (c) the ability of the individual to represent himself without legal assistance, having regard to his age and mental capacity.” That, of course, was said having regard to the provisions in England and Wales governing legal aid, but it seems to me to have equal application in Scotland. That is consistent with the Strasbourg decisions cited by the interveners. I would just add that the decision must obviously take into account not only the individual’s age and mental capacity but also his vulnerability and continuing distress insofar as this too may affect his or her ability to represent himself. If, as the material presented to Scottish Ministers appears to show, the complainer here is vulnerable and terrified by the whole court process so that she cannot be expected to speak up for herself in court and present her arguments coherently and forcefully, that will be a strong reason for the application for legal aid to be favourably regarded. [52] I should note two final points. First, in addition to relying upon art.8, Ms Bain also referred briefly to arts 6 and 14. In light of my decision, I do not need to say anything about these articles. The points will be available to be argued should the case go further. Secondly, in light of my decision, I do not consider it necessary at this stage to make any declarator about the compatibility of the current rules (or lack of them) regulating the ability of someone in the position of the complainer to be heard in defence of her Convention rights and

07/12/16 8:11 AM

2016 S.C.L.R.

WF, Petitioner (IH)

717

to be granted legal aid for that purpose. There is a right to be heard, and there is a discretion as to whether to grant legal aid for representation at any such hearing. The absence of rules, though they would be desirable, does not make the current system incompatible with the complainerâ&#x20AC;&#x2122;s Convention rights. That is not to say that circumstances will never arise in which it is appropriate for the court to make some general declaration as to the compatibility of the existing legislation and/or the interpretation of it by the Scottish Ministers with the Convention, but the question does not arise on the present application.

Disposal

[53] I shall pronounce an interlocutor reducing the decision of the Scottish Ministers, in their letter of July 2015, to refuse to make a determination for legal aid under s.4(2)(c) of the Legal Aid (Scotland) Act 1986. [54] I shall reserve all questions of expenses. For the petitioner: Bain QC, C Mitchell, instructed by Drummond Miller LLP, Solicitors, Edinburgh. For the respondents: C Oâ&#x20AC;&#x2122;Neill, Solicitor advocate, Scottish Government Legal Directorate. Intervenors (Rape Crisis Scotland): Kelly, Ewing, Solicitor advocates instructed by Balfour + Manson LLP, Solicitors, Edinburgh.

5343.indd 717

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A COURT OF SESSION

10 February 2016

Inner House (Extra Division) Lady Paton, Lord Menzies and Lady Clark of Calton J MARK GIBSON B

Petitioner (Reclaimer)

Expenses—Protected expenses order—Subjective and objective test— Test of reasonableness—Factors to be taken into account—Whether protected expenses order should be granted Words —”prohibitively expensive”

Rule 58A.2 of the Rules of the Court of Session, before January 2016 amendment, provided: “Availability of protective expenses orders. (1) Subject to paragraph (2), a petitioner in an application or, as the case may be, an appellant in an appeal to which this Chapter applies may apply for a protective expenses order. (2) The applicant must be— (a) an individual; or (b) a non-governmental organisation promoting environmental protection (3) A protective expenses order is an order which regulates the liability for expenses in the proceedings (including as to the future) of all or any of the parties to them, with the overall aim of ensuring that proceedings are not prohibitively expensive for the applicant. (4) Subject to paragraph (6), where the court is satisfied that the proceedings are prohibitively expensive for the applicant, it must make a protective expenses order. (5) For the purposes of this rule, proceedings are prohibitively expensive for an applicant if the applicant could not reasonably proceed with them in the absence of a protective expenses order. (6). The court may refuse to make a protective expenses order if it considers that— (a) the applicant has failed to demonstrate a sufficient interest in the subject matter of the proceedings; or (b) the proceedings have no real prospects of success.” Rule 58A.3 of the above Rules provided, inter alia: “Applications for protective expenses orders (1) An application for a protective expenses order shall be made by motion. . . . (3) An application for a protective expenses order may be made in relation to a reclaiming motion at any stage of the proceedings, whether or not an application for such an order was made, or an order granted, at first instance. (4) A motion mentioned in paragraph (1) shall— (a) set out why the applicant is seeking the order; (b) be accompanied by any supporting evidence, which the applicant intends to refer to in making the application. (c) set out the terms on which the applicant is represented; 718

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2016 S.C.L.R.

Gibson, Petitioner (IH)

719

(d) be accompanied by a schedule estimating— (i) the expenses of the applicant in relation to the proceedings in respect of which the order is sought; and (ii) the expenses of each other party for which the applicant may be liable in relation to the proceedings in respect of which the order sought; (e) in the case of an application for liability in expenses to be limited to an amount lower, or, as the case may be, higher than a sum mentioned in rule 58A.4, set out the grounds on which that lower or higher figure is applied for. . . .” Rule 58A.5 of the above Rules provided: “Determination of terms of the protective expenses order (1) In deciding the terms of a protective expenses order, the court shall (subject to rule 58A.4(1)) take into account all the circumstances, including— (a) the need to ensure that it is not prohibitively expensive for the applicant to continue with the proceedings; (b) the extent to which the applicant would benefit (whether financially or otherwise) if successful in the proceedings to which the order would apply; (c) the terms on which the applicant is represented; (d) whether and to what extent the applicant is acting on behalf of another person, which would have been able to bring the proceedings, himself, herself or itself; and (e) whether and to what extent the applicant is willing to limit the expenses which he or she would be able to recover from another party if successful in the proceedings to which the order would apply.

(2) the court shall not make a protective expenses order until it has given all of the parties an opportunity to be heard.” Scottish Power Renewable (UK) Ltd applied for consent under s.36 of the Electricity Act 1989 for the construction and operation of a wind farm development. A public enquiry was not held in respect of the application and consent was granted subject to conditions. The petitioner raised a petition for judicial review and enrolled a motion for a protective expenses order in terms of Rule of Court 58A.3. He sought to have his liability in expenses to the respondents and the interested party limited to a cumulative total of £5,000 and limiting the liability of the respondents and interested party and expenses to the petitioner to £30,000. The motion was opposed and the Lord Ordinary refused the motion. The petitioner reclaimed. The petitioner was a chartered surveyor who bought an estate called Craigengillan in about 2000. At that time it was derelict and he restored it and used it as a catalyst for community regeneration in the former mining community of Dalmellington. It is included in the inventory of Historic Garden and Designed Landscapes compiled by Historic Scotland. It is one of only four designed landscapes in the country to achieve the highest rating. In 2009 the International Dark Sky Association designated a large part of the Galloway Forest, which adjoins the estate, as the first gold tier Dark Sky Park in Britain. The petitioner produces organic lamb and manages the woodlands. He had no scope to raise any finance on the estate. However, the Lord Ordinary was not satisfied that the petitioner had made out that he could not reasonably proceed with the proceedings in the absence of a protected expenses order. Counsel for the petitioner argued that if the court was satisfied that the proceedings were prohibitively expensive it had to make the order. These words were not defined. With regard to the importance of what was at stake for

5343.indd 719

07/12/16 8:11 AM

720 A

Gibson, Petitioner (IH)

2016 S.C.L.R.

him the petitioner was not seeking to protect his own economic interests, but rather his purpose in raising the proceedings was solely to protect the environment. What was at stake for the environment was considerable. The Lord Ordinary erred in his approach because he had failed to consider whether the total cost of the expenses was objectively reasonable. In any event, subjectively it was not reasonable to expect the petitioner to raise money to meet litigation costs of the amount expected. To sum up the Lord Ordinary had fallen into error in several respects. First, he failed to address the objective test. Second, he erred in his approach to the subjective test by reaching unreasonable conclusions regarding the petitioner’s ability to fund the litigation by bank borrowing from his pension. Thirdly, he asked himself the wrong question, namely whether the petitioner was able to raise the funds when the proper question was whether it was reasonable for him to be required to do so. Counsel for the respondents argued that the issue was whether the proposed proceedings were prohibitively expensive for the applicant. The Lord Ordinary properly focused his attention on the reclaimer’s financial resources. The objective test was intended to protect those who subjectively could afford to proceed with litigation at the estimated level of expenses; even they are not to be exposed to prohibitive costs. The question was whether the amount of the expense went beyond what it was reasonable to expect the petitioner, with his particular resources, to pay and that was a matter for the discretion of the Lord Ordinary. Counsel for the interested party submitted that it was for the applicant to decide what case was to be advanced in support of the motion. He did not seek to rely on the objective test before the Lord Ordinary and the Lord Ordinary could not be criticised for not considering the test. The Lord Ordinary did not err in law in his interpretation and application of Rule of Court 58A. Held (1) that when considering whether proceedings were prohibitively expensive for the applicant in terms of Ch.58A of the Rules of Court the court had to apply both a subjective and objective test (para.52); (2) that the Lord Ordinary fell into error in failing to consider the objective test and he had appeared to have addressed himself to the wrong issue when considering the subjective test in that he appeared to have addressed the question of whether the petitioner had been able to meet the expenses; whereas the test was not the petitioner’s ability to pay, but whether it was reasonable in all the circumstances that he should be required to do so (para.54); and (3) having regard to all the factors and to the fact that it was not disputed that the likely total costs of the proceedings might have exceeded £170,000, in applying the objective test the proceedings were prohibitively expensive, and in these circumstances the court had to make a protective expenses order (para.69); and reclaiming motion granted. Cases referred to:

5343.indd 720

Carroll v Scottish Borders Council [2014] CSOH 30; 2014 S.L.T. 659 European Commission v United Kingdom, EU:C:2014:67; [2014] Q.B. 988; [2014] 3 W.L.R. 853; [2014] 3 C.M.L.R. 6 Health Care at Home Ltd v Common Services Agency [2014] UKSC 49; 2014 S.C. (U.K.S.C.) 247; 2014 S.L.T. 769 John Muir Trust v Scottish Ministers [2014] CSOH 172A R (Edwards) v Environment Agency(No.2), EU:C:2013:221; [2013] 1 W.L.R. 2914; [2013] UKSC 78; [2014] 1 W.L.R. 55. The full circumstances of the case and the arguments of counsel are to be found in the following opinion of the court which was delivered by Lord Menzies on 10 February 2016

07/12/16 8:11 AM

2016 S.C.L.R.

Gibson, Petitioner (IH)

721

LORD MENZIES

Introduction

[1] The petitioner lives at Craigengillan House, on the Craigengillan estate near Dalmellington in Ayrshire. On 27 April 2005 Scottish Power Renewables (UK) Ltd (“the interested party”) applied for consent under s.36 of the Electricity Act 1989 for the construction and operation of Dersalloch Wind Farm (“the wind farm development”). The wind farm development is approximately 4.2km from Craigengillan House. The nearest proposed turbine in the wind farm development would be 4.6km from the Scottish Dark Sky Observatory, which is located within the boundary of the Craigengillan Estate and is said to be one of only eight dark sky parks in the world. [2] The Scottish Ministers, who are the respondents, received about 4,746 public representations about the wind farm development; of these, 4,723 were objections to the application, and 23 were letters of support. The objectors included South Ayrshire Council, East Ayrshire Council, local community councils, Historic Scotland, community bodies, and many individuals, including the petitioner. [3] By letter dated 23 July 2014 the respondents decided not to hold a public inquiry in respect of the application, and granted consent, subject to conditions, under s.36 of the Electricity Act 1989 for construction and operation of the wind farm development, and directed under s.57(2) of the Town and Country Planning (Scotland) Act 1997 that planning permission be deemed to be granted for the wind farm development. [4] East Ayrshire Council raised proceedings for judicial review to challenge the respondents’ decision not to hold a public inquiry, and to grant consent for the development. In light of this, the petitioner decided not to raise proceedings for judicial review himself. A hearing in East Ayrshire Council’s petition was set for 18 and 19 December 2014, but on the afternoon of 17 December 2014 East Ayrshire Council decided to withdraw. On 24 December 2014 the petitioner raised the present petition for judicial review. [5] In early 2015 the petitioner enrolled a motion for a protective expenses order (“PEO”) in terms of Rule of Court 58A.3, in which he sought to have his liability in expenses to the respondents and the interested party limited to a cumulative total of £5,000 and limiting the liability of the respondents and interested party in expenses to the petitioner to £30,000. This motion was opposed on behalf of the respondents and the interested party; after a hearing in March 2015, by interlocutor dated 14 April 2015 the Lord Ordinary refused the petitioner’s motion. It is against this interlocutor that the petitioner now reclaims.

Chapter 58A of the Rules of the Court of Session

[6] There was no dispute that the petitioner’s application for a PEO was made in terms of Rule of Court 58A.2, nor that Ch.58A applied. (It should be noted that Ch.58A has been subject to significant amendments with effect from 11 January 2016). Rule of Court 58A.2 before amendment, as it applied at the time of the application to and decision of the Lord Ordinary and at the time of the hearing of the reclaiming motion before this court, is in the following terms: [His Lordship quoted the rules as set out above and continued:]

The evidential material before the Lord Ordinary

[7] A very significant amount of documentary material was provided on behalf of the petitioner, relating to his financial circumstances and his interest in

5343.indd 721

07/12/16 8:11 AM

722 A

5343.indd 722

Gibson, Petitioner (IH)

2016 S.C.L.R.

Craigengillan Estate and the Dark Sky Observatory. We do not consider it appropriate for us to set out at length the content of this material, much of which might be described as confidential to the petitioner. However, it was indicated at the hearing before us that the petitioner consented to the inclusion in this opinion of such material as we considered necessary to give the factual context for this opinion. The following is a summary of the salient points in the documentary materials before the Lord Ordinary. [8] The petitioner lodged two affidavits setting out the background of his involvement with Craigengillan, and his financial circumstances. He described himself as a chartered surveyor, organic sheep farmer and forester. He bought the Craigengillan Estate in about 2000, funding the purchase from his own earnings as a chartered surveyor. At the time of purchase Craigengillan was in a derelict state; the petitioner has restored it and used it as a catalyst for community regeneration in the former mining community of Dalmellington. Craigengillan is included in the inventory of Historic Gardens and Designed Landscapes compiled by Historic Scotland. It is described as a rare example of a complete and unfragmented estate landscape started in the 16th century and held in one family for almost 400 years. It is one of only four designed landscapes in the country to achieve the highest rating (outstanding) for each of the seven criteria employed by Historic Scotland in its assessments. It lies within the Galloway and Southern Ayrshire UNESCO Biosphere; the petitioner is a board member of the Biosphere Partnership Board and chair of the Galloway and Southern Ayrshire Biosphere Scottish Charitable Incorporated Organisation. [9] In 2009 the International Dark Sky Association designated a large part of the Galloway Forest which adjoins Craigengillan, as the first gold tier Dark Sky Park in Britain and only the second in Europe. The petitioner was the founder, and remains a trustee, of the Scottish Dark Sky Observatory; he owns the land on which the Observatory is sited, and lets it to the Observatory at a rent of £1 per annum. The Observatory attracts increasing numbers of visitors and brings employment and economic benefits to the community. [10] The petitioner farms the Craigengillan Estate, producing organic lamb and managing the woodlands. He has developed a riding stable and has restored two cottages for holiday letting. The petitioner practises as a sole practitioner chartered surveyor in addition to running the Craigengillan Estate; all his income as a chartered surveyor goes into the Craigengillan account. He draws a personal income of £18,000 per annum from the estate. He has a SIPP pension fund created from his savings over the last 35 years, which should provide an income of about £20,000 a year when he is aged 65. He has no other capital or sources of income. He has three separate borrowing facilities—(1) a bank overdraft currently standing at about £116,000 (with a borrowing limit of £140,000) which provides emergency funding for the running of the estate, (2) a short-term bank loan of £330,000 which currently has a balance outstanding of £76,000 for the specific purpose of planting new native woodland on the estate and, (3) a term loan of £146,000 to fund a new biomass heating system. [11] The petitioner sees no scope to raise funds by breaking up Craigengillan Estate and selling parts of it—first, because to do so would reduce the modest income which he derives from the estate and requires to meet his living expenses, and second because Craigengillan’s value as a heritage asset is intrinsically linked to the fact that it is intact, and to sell off all or parts of the estate to meet the costs of these proceedings would destroy the very thing he is trying to protect.

07/12/16 8:11 AM

2016 S.C.L.R.

Gibson, Petitioner (IH)

723

[12] The petitioner lodged a schedule of anticipated expenses, which estimated that his legal expenses for a three-day hearing were estimated at around £54,000; the expenses of the respondents and the interested party were each estimated at about £59,000, giving a total anticipated expense of over £170,000. From the petitioner’s annual income of £18,000, he had to meet annual outgoings of about £17,700. His financial circumstances were vouched by accounts for the years to 30 November 2013 and 2014, tax returns for the years to 5 April 2013 and 2014, and statements of taxable earnings for the years ended 2013 and 2014. These last showed that his total taxable earnings (after loss claimed and personal allowance) amounted to £2,288 in the year 2012/13, and £644 in the year 2013/14. [13] The productions before the Lord Ordinary included two letters from the petitioner’s bankers. The first, dated 23 February 2015, was from the agricultural director of the bank and confirmed the three borrowing facilities mentioned above. The author stated that he had a working knowledge of the petitioner’s account for approximately eight years, and considered the petitioner to be a trustworthy and reputable individual. The second, dated 3 March 2015, confirmed that one of the loans was available only to fund the approved forestry costs and is expected to be repaid in full on receipt of the relevant grant on completion. It also confirmed that the bank would not fund any additional borrowing for potential litigation/legal costs due to lack of ability of existing business to evidence debt serviceability. (We were also provided with a third letter from the bank, dated 18 August 2015, which was not before the Lord Ordinary. The author of this letter was the same as the author of the two previous letters. The letter confirmed that although the author knew the petitioner well and had knowledge of his assets, liabilities and annual accounts, he confirmed that the bank would not be prepared to provide additional facilities for the purposes of meeting legal fees, for an action which will not improve the financial viability of Craigengillan/the petitioner). [14] Included in the documentary materials before the Lord Ordinary was a valuation report dated 19 February 2015 instructed by the interested party, which expressed the opinion that the market value of the estate as at that date with vacant possession was within the range of £2.85 –£3.65 million. [15] There was conflicting material provided on behalf of the petitioner and the interested party as to the ability of the petitioner to withdraw money from his pension fund. As at March 2015 the fund had a value of £694,942. Brewin Dolphin advised that this would be sufficient to allow payment to the petitioner of a pension in the gross sum of £19,049 per annum. However, if the petitioner withdrew approximately £173,000 to meet the costs of litigation, the pension payable would be reduced to about £14,000 per annum gross. However, Barral Sheppard, financial advisers instructed on behalf of the interested party, took issue with these figures; they were of the opinion that if the petitioner used £180,000 of his pension fund to cover legal expenses, this would leave him with a fund of £514,942, which, if invested in a fairly cautious fund, could provide an annual income of £24,000 gross per annum. In response, Brewin Dolphin challenged the assumptions underlying the opinion of Barral Sheppard, and adhered to their earlier opinion.

The Lord Ordinary’s assessment and decision

[16] After summarising the factual background, the Lord Ordinary indicated that there was no dispute that Lord Drummond Young properly set out the manner in which Rule of Court 58A.3 is to be interpreted in light of Directive 2011/92/EU in the case of Carroll v Scottish Borders Council. He also made

5343.indd 723

07/12/16 8:11 AM

724 A

Gibson, Petitioner (IH)

2016 S.C.L.R.

reference to the case of John Muir Trust v Scottish Ministers. Having summarised the competing submissions for parties, the Lord Ordinary discussed the issues at paras 57–64 of his opinion. He agreed with Lord Drummond Young’s view in Carroll that account should be taken of capital which is actually or potentially liquid, but that it is not realistic to take account of an applicant’s home or business assets. With regard to the petitioner’s argument that the estate could not realistically be broken up as this would reduce the petitioner’s income and would have an adverse effect on its value as a heritage asset, he observed that certain lands were disposed of in 2006 and that it was averred that the boundary of Craigengillan was extended in April 2012; he concluded that the extent of the lands had not been static. He also observed that it was not for him to undertake a minute examination of the various entries in the accounts, and that at best he could only adopt a broad-brush approach. He pointed out that the draft accounts for the year to November 2014 referred to substantial expenditure on legal and professional fees, building repairs and maintenance and fencing, roads and bridges. It appeared to him that there exists the potential to expend large sums of money and to dispose of parts of the estate when required. He found that the criticisms of the letter from the petitioner’s bank in relation to the provision of a facility to pay legal fees were well founded, and indicated that it was not clear to him that the bank was aware of the value of any securities which they might hold. [17] The Lord Ordinary did not think that the pension fund could be ring fenced from his consideration of the petitioner’s financial position, and observed that if the funds which are represented in it were to be found in a savings account he had no doubt that they would have to be taken into consideration, albeit that the savings might have been put aside over many years to assist in the petitioner’s retirement. Assuming the estimates for the expenses of the litigation are accurate, it appeared to the Lord Ordinary that a withdrawal from the pension pot of sums to meet those expenses would leave a fund “which might be a few thousand less or a few thousand more than the income which the petitioner currently draws”. The Lord Ordinary left the observatory out of consideration, but stated that: “nonetheless I do not think that the petitioner has established that he would be unable to meet the expenses when I look at his assets as a whole. Doubtless the risk of incurring a six-figure sum in judicial expenses is a disincentive to proceeding but that is not the test”. Having regard to the petitioner’s financial position as a whole, the Lord Ordinary was not satisfied that he had made out that he could not reasonably proceed with the proceedings in the absence of a PEO, and he refused the motion. Submissions for the parties in the reclaiming motion

[18] Each of the parties helpfully submitted a very full written note of argument, which we have taken into account but which we do not seek to rehearse in detail. The parties’ submissions may be summarised as follows. Submissions for the petitioner and reclaimer

5343.indd 724

[19] If the court is satisfied that the proceedings are prohibitively expensive, it must make a PEO. The words “prohibitively expensive” are not defined in the rule, so must be construed in light of Directive 2011/92/EU and the case law. Counsel relied on the observations of the CJEU in R (Edwards) v Environment Agency (No.2), in which the court observed (at para.40):

07/12/16 8:11 AM

2016 S.C.L.R.

5343.indd 725

Gibson, Petitioner (IH)

725

“That assessment cannot, therefore, be carried out solely on the basis of the financial situation of the person concerned but must also be based on an objective analysis of the amount of the costs, particularly since, as has been stated in para.32 of the present judgment, members of the public and associations are naturally required to play an active role in defending the environment. To that extent, the cost of proceedings must not appear, in certain cases, to be objectively unreasonable. Thus, the cost of proceedings must neither exceed the financial resources of the person concerned nor appear, in any event, to be objectively unreasonable”.

[20] This point was reiterated in European Commission v United Kingdom, in which the advocate-general observed that “even applicants with the capacity to pay may not be exposed to the risk of excessive or prohibitive costs”, and the court (particularly at para.47) observed that “the court cannot limit its assessment to the financial situation of the person concerned, but must also conduct an objective analysis of the amount of the costs”. The same point was made by the UK Supreme Court in R (Edwards) v Environment Agency (No.2), particularly at paras 23 and 28. [21] Considering the issues raised by Lord Carnwath JSC at para.28 in Edwards, it was not contended in the present case that the petitioner did not have a reasonable prospect of success. With regard to the importance of what is at stake for the claimant, the petitioner is not seeking to protect his own economic interests—his purpose in raising these proceedings was solely to protect the environment. His own economic interests would not be significantly affected by the wind farm development. His sheep farming and forestry activities will be no less productive if the development proceeds. With regard to any possible effect of the development on the value of the Craigengillan Estate (which both the respondents and the interested party assert will not occur) the petitioner does not intend to sell the estate but rather intends to pass it to a charitable organisation. The valuation report does not suggest that the wind farm development would reduce the value of the estate. With regard to any possible economic impact on the petitioner’s letting income from the two cottages used for holiday lets, the respondents’ position is that wind farms do not affect tourism, so it cannot be argued that any such impact would be significant. [22] By contrast, the importance of what is at stake for the protection of the environment is considerable. The principal reason for East Ayrshire Council’s objection to the wind farm development was environmental, and the petitioner adopts the council’s reasoning in this regard, as well as South Ayrshire Council’s concerns about adverse impact on the integrity of the Dark Sky Park. [23] Counsel submitted that the total estimated expense of about £170,000 went well beyond what is objectively reasonable for an ordinary member of the public. The Lord Ordinary erred in his approach because he failed to consider whether this sum was objectively reasonable. Despite the fact that the issue of objective reasonableness was raised in submissions for the petitioner before the Lord Ordinary, and despite the court’s obligation to apply the EU Directive, the Lord Ordinary did not carry out any objective analysis at all. It did not matter whether the court dealt with the objective test or the subjective test first, but the court did require to consider both. If the proceedings were prohibitively expensive on either the objective or the subjective test, the court required to grant a PEO, even if the applicant was wealthy. [24] Applying the subjective test, although the petitioner owns an estate and has farming and holiday letting interests, it is not reasonable to expect him to raise money to meet litigation costs of £170,000. The profits from the

07/12/16 8:11 AM

726 A

Gibson, Petitioner (IH)

2016 S.C.L.R.

estate are very limited, and so is the petitioner’s income; the total tax which he was liable to pay in the year to April 2013 was £457.80, and in the following year this fell to £128.80. When the petitioner was working full time as a chartered surveyor, all his income was devoted to the estate; since then, the estate has contributed to his past tax liabilities. There is nothing to suggest that he is able to raise a large sum of money. He has installed a biomass heating system only with financial assistance from his bankers; similarly, expenditure on estate fencing was funded by means of a bank loan. It is clear from the letters from the bank that the bank will not fund any additional borrowing for potential legal costs. The sale of land would risk breaking up the designed landscape, which is one of the things which the petitioner seeks to preserve; it would also reduce his ability to obtain an income. [25] The Lord Ordinary also erred in his approach to the petitioner’s pension. The arguments advanced for the interested party were based on legislation that was not yet in effect when the hearing on the motion for a PEO was held. Moreover, the pension which the petitioner would receive is relatively modest. It is not reasonable that an individual should have to forego an element of his pension in order to bring proceedings to protect the environment. Moreover, the availability of funds depends on the age of the individual; it is arguably unlawful to discriminate against the petitioner when a younger person would not suffer the same fate. By virtue of art.21 of the EU Charter, discrimination based on any ground such as age “shall be prohibited”; in any event, the right to non-discrimination on grounds of age is a general principle of EU law. The Lord Ordinary has taken into account the “lump sum” which the petitioner is able to access by virtue of the amendments brought about by the Taxation of Pensions Act 2014, which applies only to individuals aged 55 or over. By taking this into account, the Lord Ordinary has acted contrary to EU law including art.21 of the Charter. [26] The Lord Ordinary also erred in undertaking an intrusive investigation into the petitioner’s assets and income/expenditure. The court should not second-guess the motives and actions of a law-abiding, responsible individual— see para.25 of Lord Philip’s opinion in the petition of the John Muir Trust. [27] Counsel for the petitioner submitted that the Lord Ordinary had fallen into error in several respects. First, he failed to address the objective test. Second, he erred in his approach to the subjective test by reaching unreasonable conclusions regarding the petitioner’s ability to fund the litigation by bank borrowing or from his pension. Third, he asked himself the wrong question, namely whether the petitioner was able to raise the funds, when the proper question was whether it was reasonable for him to be required to do so. For all these reasons counsel submitted that the reclaiming motion should be allowed, and a PEO granted as sought. Submissions for the respondents

5343.indd 726

[28] Senior counsel for the respondents accepted that when considering whether the proceedings are prohibitively expensive for the applicant, the court requires to apply both an objective test and a subjective test. However, the issue for the Lord Ordinary was “whether the proposed proceedings were prohibitively expensive for the applicant” (emphasis added). The hearing before the Lord Ordinary was concerned only with the “financial resources of the person concerned”. The Lord Ordinary properly focused his attention on the reclaimer’s financial resources. [29] The factors identified in Edwards are only factors—some may not be relevant, and additional factors may arise in a particular case. These are factors

07/12/16 8:11 AM

2016 S.C.L.R.

Gibson, Petitioner (IH)

727

which may, if appropriate, be taken into account. In the present case the Lord Ordinary adopted the approach of Lord Drummond Young in Carroll v Scottish Borders Council, particularly at paras 12 et seq.The four features there identified are derived from the case of Edwards in the CJEU. Senior counsel confirmed that in the present case there was no issue between the parties on the first (that the proceedings fall within the scope of the rule), the second (sufficient interest) and the third (no real prospect of success) features. The real issue before the Lord Ordinary was the fourth feature, namely the financial resources of the applicant and the likely expenses of the proposed proceedings. The petitioner did not submit to the Lord Ordinary that the estimates of the costs of litigation were unreasonable (see para.19 of the Lord Ordinary’s opinion). However, senior counsel accepted that there was very little in the Lord Ordinary’s opinion regarding an objective assessment of reasonableness—the only place that this may be found is in para.19. [30] Senior counsel went on to address those features mentioned by Lord Carnwath JSC at para.28 of Edwards in the UK Supreme Court which are in dispute in the present case. With regard to the importance of what is at stake for the claimant, the submission for the reclaimer that this relates only to economic importance is too narrow. This is clear from the terms of r.58A.5(1) (b), which makes it clear that the court shall take into account all the circumstances, including the extent to which the applicant would benefit (whether financially or otherwise). Non-financial benefit is relevant to this exercise. The petitioner would derive economic benefit from the wind farm development not proceeding, as described by the Lord Ordinary in paras 17 and 25 of his opinion. [31] Turning to what is at stake for the protection of the environment, the petitioner’s concerns focus on three aspects: (i) the effect on the Dark Sky Park, which is considered at pp.8 and 9 of the decision letter; (ii) the effect on the Scottish Dark Sky Observatory, which is considered at pp.10–12 of the decision letter; and (iii) the effect on the Craigengillan Estate itself, which is addressed at pp.13–14 of the decision letter. It should be noted in this last regard that both Scottish Natural Heritage and Historic Scotland withdrew their objections; close consideration has been given to these environmental concerns by various bodies, and the court should conclude that the proposal would not have a particularly serious impact on the environment. [32] Bearing these factors in mind, how is the objective test to be applied? It is intended to protect those who, subjectively, can afford to proceed with litigation at the estimated level of expense; even they are not to be exposed to prohibitive costs. The starting-point is to consider what the anticipated cost is in the particular jurisdiction; art.3(8) of the Aarhus Convention expressly states that “this provision shall not affect the powers of national courts to award reasonable costs in judicial proceedings”. The rule requires that a motion for a PEO shall be accompanied by a schedule estimating the expenses of the applicant and each other party in relation to the proceedings in respect of which the order is sought. The assessment of reasonableness is an entirely objective exercise, and is not a matter of impression: Health Care at Home Ltd v Common Services Agency at para.3. Various factors identified by the CJEU may be used to increase or reduce what may be reasonable expenses in a particular case; for example, if there is a lot financially at stake for the applicant, it may be fair to increase the level of expense considered to be reasonable, and conversely, if the public interest and the effect on the environment are very great, it would be fair to reduce what is regarded as “reasonable expense”. The overall objective was to preserve the public interest in the protection of the environment.

5343.indd 727

07/12/16 8:11 AM

728 A

Gibson, Petitioner (IH)

2016 S.C.L.R.

[33] Turning to the subjective test, the question is whether the amount of likely expense goes beyond what it is reasonable to expect the petitioner, with his particular resources, to pay. The assessment of this was a matter for the Lord Ordinary in the exercise of his discretion. The key paragraphs in this respect begin at para.58 of the Lord Ordinary’s opinion. When looking at the financial circumstances of the petitioner, he owned a sizeable estate (over 1,000 hectares) and it was apparent from the accounts before the court that there were a number of facets of the petitioner’s business. The Lord Ordinary was well entitled on the evidence before him to conclude that there was a potential for the petitioner to sell assets. There is nothing to suggest that his decision was plainly wrong, or that he exercised his discretion on the wrong principle. The Lord Ordinary’s conclusion at para.65 cannot be faulted. Submissions for the interested party

5343.indd 728

[34] Senior counsel submitted that it was for the applicant to decide what case to advance in support of a motion for a PEO, and on what grounds to advance it. The petitioner did not seek to rely on the objective test before the Lord Ordinary. With regard to the subjective test, the court must consider details of the applicant’s capital and income, and assess the extent to which the capital is actually or potentially liquid and whether a capital asset is essential to the applicant’s existence. In relation to income, the applicant’s living expenses and liabilities should be considered on the basis of this information, the court must decide whether the likely expenses of the proceedings exceed the applicant’s means. [35] The objective test allows applicants who do not succeed on the first test—ie, applicants who have a capacity to pay—to argue that the expenses are objectively unreasonable when taking account of the public interest in environmental protection in the case at issue. In this regard the court may take into account the prospect of success, the importance of what is at stake for the applicant and for the protection of the environment, the complexity of the relevant law and procedure, and the potentially frivolous nature of the claim at its various stages. Where there is an extensive individual economic interest at stake in the proceedings, the applicant may reasonably be expected to bear higher risks in terms of cost. [36] Because the petitioner made no submissions to the Lord Ordinary on the objective test, the Lord Ordinary cannot be criticised for not considering arguments not put before him. He was not informed of the extent to which the petitioner represented the public interest, but he was told that Scottish National Heritage and Historic Scotland had withdrawn their objections to the proposal, that East Ayrshire Council had not progressed with its challenge to the decision, and South Ayrshire Council lodged a late objection in relation to one issue, which was not supported by any expert report. The petitioner stated in his reasons for applying for a PEO that he acted on his own behalf and not on behalf of anybody else, and that he was directly affected by the development. He averred that he objected on the basis of an unacceptable impact on Craigengillan. [37] The Lord Ordinary had before him evidence on the various components of the petitioner’s capital and their market value; it was clear that the petitioner had substantial capital assets. The Lord Ordinary also had before him evidence on the petitioner’s income, expenditure and liabilities. This showed that the petitioner had considerable income, and was able to withdraw a substantial amount of money. It was not suggested on behalf of the petitioner that the Lord Ordinary had made any factual errors in his summary of evidence. On

07/12/16 8:11 AM

2016 S.C.L.R.

Gibson, Petitioner (IH)

729

any view of the petitioner’s assets he is a wealthy individual. His assets are between £3 million to over £4 million, and he can realise assets, borrow against them or spend his income. The Lord Ordinary was entitled to reach the view that the proposed litigation was not prohibitively expensive for a person with the applicant’s resources of income and capital. [38] The Lord Ordinary was correct to include the petitioner’s pension in his assessment of whether the litigation would be prohibitively expensive. He had financial information from Brewin Dolphin and Barral Sheppard about the liquid nature of the asset and the extent to which the use of that asset would affect the petitioner’s future income. No argument was advanced before the Lord Ordinary about age discrimination. It is an inherent feature of pension schemes (and legislation) that they benefit people later in their lives. Any assessment of resources could be argued to be discriminatory because older people have had the opportunity to build up resources because of their age and are therefore less likely to obtain an PEO than younger people. [39] With regard to the possibility of bank borrowing, the letters from the bank do not indicate whether the author of the letters was aware of the market value of the estate or the individual components of it. There is no indication as to whether the author of the letters was aware of the most up-to-date profit and loss accounts or the extent to which the petitioner chooses to put his income back into the estate. There is no indication that the author knows the petitioner’s pension position or the extent to which he could have access to his pension. In the circumstances the Lord Ordinary was entitled to find (as he did at para.60): “that the criticisms of the letter from the petitioner’s bank in relation to the provision of a facility to pay legal fees are well-founded. It is not at all clear to me that the bank is aware of the value of any securities which they might hold.” The letter from the bank dated 18 August 2015 which is before this court still does not clarify whether the bank is aware of the market value of the petitioner’s property. [40] Senior counsel submitted that the Lord Ordinary did not err in law in his interpretation and application of Rule of Court 58A, and that the conclusions which he reached on the basis of the submissions and evidence before him were not unreasonable. It cannot be said that he exercised his discretion upon a wrong principle or that he exercised it wrongly. The submissions on behalf of the petitioner in the reclaiming motion differ significantly from those advanced before the Lord Ordinary. [41] Senior counsel advanced a final argument on the basis that Rule 58A.2(6) gives the court a discretion to refuse to make a PEO if it considers that the proceedings have no real prospects of success. He pointed out that work started on the wind farm development shortly after the respondent’s decision was intimated in July 2014. In these proceedings the petitioner has never applied for interim interdict or interim suspension. The decision of the Scottish Ministers is now 16 months old; in the intervening period, senior counsel informed the court that 20.5 kilometres of site roads had been completed, about 147,000 cubic metres of stone have been extracted, 16 crane hard standings have been completed, ten foundation levels have been excavated, and the interested party has spent £19.8 million and has committed itself to spend a further £45.8 million, from a total estimated spend of £74.1 million. The first export of electricity from the development will commence in July 2016. At any substantive hearing on the petition for judicial review, the

5343.indd 729

07/12/16 8:11 AM

730

Gibson, Petitioner (IH)

2016 S.C.L.R.

court will have to consider whether it is likely that the Scottish Ministers would refuse to grant consent for the development if the existing approval were to be reduced and a further application made. Standing the advanced stage at which the development has already reached, senior counsel submitted that it was highly unlikely that the Scottish Ministers would, in those circumstances, refuse to grant consent for the development. This is a relevant factor for this court to take into account when considering an application under r.58A.

Reply on behalf of the petitioner

5343.indd 730

[42] Counsel submitted that the approach of the respondents was unduly restrictive and started from the wrong point. The correct starting-point is the public interest in the protection of the environment. As it was put in para.31 of the advocate-general’s opinion in European Commission v United Kingdom: “The public interest in the protection of the environment is considerably better served if actions with some merit but whose success is uncertain are furthered. In general, those cases are based on a legitimate interest in the protection of the environment but as their outcome is uncertain the risks in terms of cost are particularly substantial.” [43] Although senior counsel for the respondents referred to the discretion enjoyed by individual member states, that is not unlimited —see the observations of the CJEU in Edwards at paras 23–25. The Lord Ordinary was not exercising some general discretion, but was rather obliged to apply the law as set out by the CJEU and the UK Supreme Court. Properly categorised, this was not a discretionary judgment. [44] The likely level of expenses in a litigation is just one factor in the objective test—see the opinion of the advocate-general at para.43 and the judgment of the court at para.47 of Edwards, and Lord Carnwath JSC at para.23 of Edwards in the UK Supreme Court. It must be borne in mind that Lord Drummond Young’s opinion in Carroll v Scottish Borders Council predated the case of European Commission v United Kingdom, and also predated Edwards in the UK Supreme Court. [45] Contrary to the submission of senior counsel for the respondents, the primary focus when considering the personal interests of the petitioner is on his economic interests. This is clear from para.45 of the advocate-general’s opinion in Edwards before the CJEU, and reiterated by Lord Carnwath JSC at point (ii) of para.28 of Edwards in the UK Supreme Court. [46] Senior counsel took issue with three aspects of the submissions for the respondents regarding the objective test. First, he said that Mr Johnston had put a gloss on Lord Carnwath’s distillation of the proper approach to the objective test. There was no need to do this—Lord Carnwath’s suggestions were clear and should be applied. It was important to bear in mind that the purpose of both the objective and subjective tests was to ensure that environmental challenges should be facilitated. Second, Mr Johnston had placed too much importance on the likely cost. Cost is just one of the factors to which Lord Carnwath had regard. Third, the observations of the court in Healthcare at Home were made in a different context. We have the guidance given by Lord Carnwath in this context—see particularly point (ii) of para.23 of Edwards in the UK Supreme Court. There is no need to go to Healthcare at Home for guidance. [47] Mr Johnston drew attention to the Lord Ordinary’s remarks at para.60, and in particular to his conclusion that there exists the potential to expend

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2016 S.C.L.R.

Gibson, Petitioner (IH)

731

large sums of money. However, the petitioner obtained bank loans for specific projects which brought economic benefits—the installation of a biomass boiler, the erection of fencing and the planting of woodlands. That is not an indicator of cash being readily available; the loans were made for particular purposes, in circumstances in which the bank was confident that they would be repaid and could be serviced. The payment of tax liability arose from the petitioner’s previous income as a chartered surveyor, and bank borrowing was obtained to facilitate the payment of this tax burden. The petitioner draws a salary of £18,000 per annum; it would not be possible to afford to employ someone to run the estate. The reason that the estate is more or less breaking even is because the petitioner is drawing a very reduced salary. With regard to the possibility of a bank loan to fund the cost of litigation, the Lord Ordinary had more information than just the letter from the bank dated 3 March 2015—he knew that the author of the letters had a working knowledge of the account for about eight years and had approved these loans. [48] With regard to the submissions for the interested party, counsel disputed that no argument had been advanced before the Lord Ordinary about an objective test. The Lord Ordinary was referred to Lord Drummond Young’s observations about an objective test at para.18 of his opinion in Carroll v Scottish Borders Council, and reference was made to the need for an objective test in both Edwards before the CJEU and in European Commission v United Kingdom. In any event, the matter was a point of European law and the court was obliged to apply it. On a fair reading of the petition, the petitioner’s affidavits and the motion for a PEO, it is clear that the petitioner’s motivation is not to protect his own economic interests but to protect the public interest. [49] Mr Armstrong suggested that the petitioner had sold and purchased parts of the estate recently, and drew attention to the last two sentences of para.58 of the Lord Ordinary’s opinion. Since the petitioner purchased the estate, only two derelict cottages have been sold. Apart from these, there have been no sales of land, and Historic Scotland still considers the estate to be unfragmented. There have been no purchases of land; all that happened in 2012 was that the boundary of the defined landscape was extended to include the whole estate. [50] The question of age discrimination regarding withdrawal from pensions is a matter of European law, to which the court is obliged to give effect. It was clear from the correspondence that the assumptions about growth rate and the effect of sums withdrawn from the pension which were made by the advisers instructed by the interested party were much more ambitious and optimistic than those adopted by Brewin Dolphin. [51] Mr Armstrong’s final point about the ability of the court to refuse to make a PEO if it considers that the proceedings have no real prospects of success is a new one—it was not advanced before the Lord Ordinary, nor was it contained in the note of argument for the reclaiming motion nor even in Mr Armstrong’s speaking note. It was made at the bar on the second day of the reclaiming motion, and some eight months after the submissions to the Lord Ordinary. In any event, there is no force in the argument. East Ayrshire Council lodged their legal challenge to the decision on 23 October 2014, having informed the respondents that they were contemplating a challenge to the decision on 1 October 2014. East Ayrshire Council’s challenge was withdrawn on 17 December 2014, and the petitioner raised the present proceedings within days of this happening. Accordingly, the interested party have been aware of a challenge to the decision since October 2014, yet they have chosen to proceed with the development pending the present proceedings.

5343.indd 731

07/12/16 8:11 AM

732 A

Gibson, Petitioner (IH)

2016 S.C.L.R.

If the decision is quashed and goes back to the Scottish Ministers, they will have a duty to determine whether it will have adverse effects on the environment, and, if appropriate, to refuse it. There is no substance to the point. Discussion

5343.indd 732

[52] It is clear from the authorities to which we were referred (in particular, Edwards in the CJEU at para.40, European Commission v United Kingdom at para.47, and Edwards in the UK Supreme Court at paras 23 and 28) that when considering whether proceedings are prohibitively expensive for the applicant in terms of Ch.58A of the Rules of the Court of Session, the court must apply both a subjective and an objective test. This was not disputed by any of the parties before this court. [53] Lord Drummond Young’s opinion in Carroll v Scottish Borders Council was issued before much of the guidance contained in the above authorities was published. However, Lord Drummond Young touched on the argument that an objective test should be applied where an application is brought by a wealthy person that was clearly conceived in the public interest, in order that the underlying purpose of the Directive should not be frustrated. The Lord Ordinary in the present case referred to the decision in Carroll with approval; moreover, his decision post-dated the decisions in the CJEU and the UK Supreme Court to which we have referred. However, we are unable to find any analysis of the objective test (such as the points discussed by Lord Carnwath JSC at para.28 of Edwards in the UK Supreme Court) in the Lord Ordinary’s opinion. He set out his views on several factors which may be relevant to a subjective test, but he does not appear to have considered the objective test. [54] Moreover, we consider that there is force in the point raised in the sixth ground of appeal for the reclaimer that the Lord Ordinary appears to have addressed himself to the wrong issue. At para.64 of his opinion he stated that: “I do not think that the petitioner has established that he would be unable to meet the expenses when I look at his assets as a whole.” When considering the subjective test, it appears that the Lord Ordinary addressed the question of whether the petitioner was able to meet the expenses; we agree with counsel for the petitioner that the test is not the petitioner’s ability to pay, but whether it is reasonable, in all the circumstances, that he should be required to do so. The focus of the Aarhus Convention, the 2011 Directive and the authorities to which we have referred is the protection of the environment, and the removal of unreasonable financial barriers which may act as a disincentive to members of the public (whether individuals or organisations) from playing an active role in protecting and improving the quality of the environment. [55] In these respects, we consider that the Lord Ordinary fell into error, and that the matter is open to us to review. We propose to consider the petitioner’s application for a PEO under both the subjective and objective tests. If the court is satisfied that the proceedings are prohibitively expensive for the applicant, (and provided that the court does not consider that the applicant has no real prospect of success), the court must make a PEO. It may not matter in which order these tests are considered. However, in the circumstances of the present case, it is convenient to consider first the issue of prohibitive expense applying the subjective test. [56] No doubt by many standards the petitioner may be said to be a wealthy man. Craigengillan House is an A listed mansion, set in its own estate of over

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2016 S.C.L.R.

Gibson, Petitioner (IH)

733

1,000 hectares. The petitioner has a pension with a value of about £695,000 which Brewin Dolphin, who manage the portfolio for the petitioner, consider would produce an estimated gross income of about £19,000. Taking the petitioners’ assets as a whole, it appears that they may amount to between £3 million and £4 million. He draws an income from the estate of £18,000 per annum. He has been able to borrow quite significant sums from his bankers in the past. Prima facie it might be thought that the petitioner is able to pay expenses estimated in total at about £170,000. [57] However, it does not follow from the above that it is reasonable that he should be required to meet this cost. Craigengillan Estate may properly be described as unusual, in that its importance and value lies in the fact that it is unfragmented; it is a nationally important designed landscape, and to sell off parts of the estate in order to fund these proceedings would be to destroy the very thing which the petitioner seeks to preserve in these proceedings. [58] The Lord Ordinary observes that it is obvious that the extent of the lands has not been static. However, there have been only two insignificant plots (namely derelict cottages) which have been sold; we are not persuaded that these two small sales have detracted from the unfragmented character of the estate, nor can it be inferred from these two small sales that it is reasonable to expect the petitioner to sell off other parts of the estate to meet the costs of litigation. The Lord Ordinary appears to have understood that the estate was added to or extended in April 2012; having regard to the letter from Historic Scotland dated 25 January 2012 we consider that this is a misunderstanding, and that the only thing that happened in 2012 was an extension of the boundaries of the designed landscape. The Lord Ordinary’s conclusion that “the extent of the lands has not been static” is in our view not justified; we consider that the extent of the lands has indeed been substantially static. [59] The Lord Ordinary concluded from the estate accounts and the letters from the petitioner’s bankers that it would be open to the petitioner to borrow more money from his bank in order to fund the litigation. It appeared to him that there exists the potential to expend large sums of money and to dispose of parts of the estate when required. [60] On the basis of the materials available, we do not consider that this conclusion is justified. The bank has been prepared to lend money to the petitioner, but only for projects which result in economic benefit to the estate and where they are satisfied that the loan can be serviced (eg, by receipt of government grant funding). The loans were made for the installation of a biomass boiler, for fencing, and for planting of woodlands. The author of the letters from the bank has a detailed knowledge of the petitioner’s business extending over approximately eight years; he stated that the bank would not fund any additional borrowing for potential litigation/legal costs. We see no reason to doubt that statement. [61] With regard to the petitioner’s income, it is not disputed that his only income is the sum of £18,000 which he draws annually from the estate. This income is not such as to allow him to fund costs of £170,000. He has liabilities and living expenses which consume almost all of his income. The schedules and tax assessments for the years to 2013 and 2014 are supportive of the assertion that the petitioner has relatively modest income. [62] Despite the submissions for the petitioner regarding age discrimination, we consider that it is appropriate to include the petitioner’s pension fund in the assessment of the petitioner’s assets and liabilities. However, having included them, we are not persuaded that it is reasonable to require the petitioner to withdraw £170,000 from his pension fund to pay for the costs of

5343.indd 733

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734 A

5343.indd 734

Gibson, Petitioner (IH)

2016 S.C.L.R.

these proceedings; this would result in a significant diminution of the annual pension ultimately payable. Matters might be different if the pension fund were significantly larger than it is; however, whether on the more “ambitious” or optimistic assumptions adopted by Barral Sheppard, or the more cautious approach of Brewin Dolphin, the value of the pension fund and the annual pension ultimately payable from it are not such as to persuade us that it would be reasonable to require the petitioner to withdraw £170,000 from the fund to pay for litigation costs. [63] Having regard to all the information before us about the petitioner’s individual financial circumstances we are satisfied by applying the subjective test that the proceedings are prohibitively expensive for the applicant. It follows that we must make a PEO. [64] We turn now to the objective test, as it is discussed in paras 23 and 28 of Edwards in the UK Supreme Court. It is not suggested in this case that the claim at any stage is potentially frivolous. We address the other points mentioned in Lord Carnwath’s para.28 as follows. [65] The importance of what is at stake for the claimant. We agree with the submission for the petitioner that the principle focus of this point is directed at the petitioner’s individual economic interests, and not to wider, perhaps less tangible, benefits. The impact of the wind farm development on the petitioner’s economic interests appears to us likely to be small. The development will have no impact on the organic sheep farming business, nor on the forestry business. To the extent that it might have some impact on the holiday letting business of two cottages, standing the position of the respondents that wind farms have no negative impact on tourism, and in the absence of any arguments or evidence to the contrary, we consider that any adverse impact on the petitioner’s income from this source may be regarded as insignificant. There is no evidence, in the valuation report or elsewhere, to suggest that the wind farm development would have an adverse impact on the value of the Craigengillan Estate. We conclude that the petitioner’s individual economic interests are unlikely to be significantly affected by either the wind farm development or these proceedings. [66] We have rehearsed the importance of what is at stake for the protection of the environment. Essentially, this appears to fall into three parts—impact on the Dark Sky Park, impact on the Dark Sky Observatory, and impact on the designed landscape of the Craigengillan Estate. Concerns about these issues have not been confined to the petitioner; they were referred to in the objections on behalf of South Ayrshire Council and East Ayrshire Council and we note that there were 4,723 objections to the application. As AdvocateGeneral Kokott observed, the environment cannot defend itself, but needs to be represented by concerned citizens or organisations acting in the public interest. We are persuaded that the petitioner may properly be described as one of these concerned citizens. [67] No party has suggested that the petitioner has no reasonable prospects of success in the present proceedings. However, senior counsel for the interested party advanced an argument, for the first time at the end of his submissions to this court, to the effect that even if the petitioner was successful in the present proceedings, having regard to practical realities and the fact that when the Scottish Ministers came to consider a fresh application for this development it would have been completed, it would be producing electricity, and some £74 million would have been expended on it, they would be most unlikely to refuse to grant consent for the project. [68] We are not persuaded by this argument, for two reasons. First, in the event that the petitioner is successful in these proceedings and that the decision

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2016 S.C.L.R.

Gibson, Petitioner (IH)

735

is reduced, the respondents would be obliged to consider any fresh application on its merits.We do not consider that it should be assumed that the respondents will ignore this obligation and simply â&#x20AC;&#x153;rubber stampâ&#x20AC;? approval of the development because of the amount already expended on it and the fact that it may by then be operational. Such an argument might be said to betray an element of cynicism. We note that it was not advanced by the respondents themselves. Second, and in any event, the discretion conferred on the court to refuse to make a PEO if it considers that the proceedings have no real prospects of success is directed at the prospects of success in these proceedings. The court is not enjoined to look to the prospects of success in future or hypothetical proceedings, nor to possible consequences resulting from success in these proceedings. What may or may not happen in the event that the petitioner is successful in these proceedings is not a matter for our consideration. [69] Having regard to all of these factors, and to the fact that it is not disputed that the likely total costs of these proceedings may exceed ÂŁ170,000, in applying the objective test we are satisfied that the proceedings are prohibitively expensive. [70] It follows from the above that the court must make a PEO. We shall accordingly grant the reclaiming motion, recall the interlocutor of the Lord Ordinary dated 14 April 2015, and grant a PEO in the terms sought by the petitioner. We shall continue the question of expenses to another date. [71] By way of postscript we express our concern about the length of time that this application for a PEO has taken, and the expense incurred by the lengthy hearings before the Lord Ordinary and this court. Applications for a PEO have been few and far between in Scotland, but we consider that in the particular circumstances of this case, a more expeditious disposal should have been achieved. Looking to the future, we express the hope that such applications can be disposed of much more quickly. They are dealt with by motion, with a limited amount of documentary material being required in support of the motion. It is not an opportunity for a respondent to subject an applicant to intrusive and detailed investigation of financial circumstances. In most cases, we do not consider that it will be appropriate for the court to look behind this material, or (as happened in this case) to require parties to provide competing valuations of assets such as pension funds. In exercising its powers under Ch.58A, the court is not engaged in an analysis of evidence, nor is it hearing a proof. In most applications for a PEO we would expect submissions for all parties to be capable of being concluded within a total of about one and a half hours (as is the case in an application for leave to appeal), with the court usually being able to give an immediate ex tempore judgment. For the petitioner: Finlay, Burnet, instructed by Morton Fraser LLP, Solicitors, Edinburgh. For the respondents: Johnson QC, M Ross, instructed by the Scottish Government Legal Department, Edinburgh. For the interested party: Armstrong QC, A Sutherland, instructed by MacRoberts LLP, Solicitors, Edinburgh.

5343.indd 735

07/12/16 8:11 AM

A COURT OF SESSION

19 February 2016

Inner House (Extra Division) Lady Smith, Lord Brodie and Lady Clark of Calton B

NRAM PLC

Pursuers (Reclaimers)

against JANE STEEL BELL AND SCOTT LLP

First Defender (Respondent) Second Defenders and (Respondents)

Reparation—Duty of care—Conveyancing transaction—Solicitor acting for seller of part of property secured to bank—Lenders not represented— Solicitor making misstatement that whole sum secured repaid—Bank relying on misstatement and discharging whole property—Whether duty of care—Whether solicitor assumed responsibility The pursuers granted a loan to a client of the first defender, who was a solicitor, in relation to its purchase of four commercial units in Hamilton. In return a standard security was granted over the whole property. The pursuers were misled into discharging the entire security at a stage when it ought to have been left in place in relation to two of the commercial units. The pursuers claimed that that was due to negligent misstatements for which the first defender should be held responsible. The client had gone into liquidation and there was little or no prospect of the loan being recovered. The pursuers raised an action to make good their losses against the first defender. The Lord Ordinary held that in the circumstances, the first defender did not owe a duty of care to the pursuers. The pursuers reclaimed. The issues in the reclaiming motion were: (1) did the Lord Ordinary err in law in holding that the first defender owed no duty of care to the pursuers, when she made the erroneous statements that led to the discharge of their entire security? and (2) did the Lord Ordinary err in law in assessing damages on the basis of assuming that the pursuers would recover £70,351.50 from the liquidator of the client (HCL)? HCL decided to sell two of the units which they had purchased with the help of the loan from the pursuers. The pursuers did not have solicitors acting for them in the transactions. After the sale of the two units the first defender instructed the proceeds of sale to be paid to the pursuers and sent them discharges for signing and return on the basis that the whole loan was being repaid. She informed the pursuers that the whole proceeds of the loan were being repaid and, without checking their files, the pursuers signed the discharges and returned them and they were subsequently recorded. In fact only part of the sum lent was repaid. Counsel for the reclaimers argued that a key feature of the case was that the first defender was acting wholly without instructions, on her own and outwith her mandate, which set the case apart from other cases. She also did so in circumstances where her client and the pursuers were not at arms’ length since they had a common interest in achieving the sale of the units. In these circumstances there had been an assumption of responsibility by the first defender but the Lord Ordinary had failed to apply the test of assumption of responsibility properly in the circumstances. He had also erred in placing so much emphasis on the pursuers’ failure to check the file before relying on the first defender’s email. 736

5343.indd 736

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2016 S.C.L.R.

NRAM Plc v Steel (IH)

737

Counsel for the respondent argued that, insofar is the reclaimers’ attack was on the Lord Ordinary’s evaluation of the facts, the court required to exercise caution. It was necessary to show that the Lord Ordinary had gone plainly wrong or that he had reached findings or conclusions that no reasonable judge could have made, or that his findings could not reasonably be explained. Regarding the assumption of responsibility, it was a high-level test, but the conclusion depended on low-level issues which were whether it was reasonable for the pursuers to rely on the first defender’s email without checking their file and whether it was reasonably foreseeable that they would do so. The first defender had not assumed responsibility for advising the pursuers about the terms of the loan agreed between them and the borrower. Held (1) that reasonable foreseeability might be regarded as a mechanism which excludes claims on the basis that no reasonable person in the shoes of the defender would have foreseen the loss in question and it followed that it was sufficient if a reasonable person in those shoes would have foreseen such an outcome and, in the instant case, it was plainly within the reasonable contemplation of a solicitor in the position of the first defender that her email would be relied on as being accurate and that it would have caused the execution and return of the discharges attached to it and the facts simply could not support the proposition that no reasonable solicitor would have foreseen reliance by the pursuers on the misstatements and that being so, the question of whether in law, the first defender was to have been taken as having assumed responsibility for her misstatements had to be answered in the affirmative (para.50); (2) that it was clear from the authorities that there were elements that required to be viewed as clear signposts, including whether there had as a matter of law, been an assumption of responsibility, and whether loss was reasonably foreseeable, and whether the imposition of a duty of care would be fair, just and reasonable, and the Lord Ordinary’s decision-making failed to follow the signposts and if it had done the result would inevitably have been finding that the first defender owed the pursuers a duty of care; (para 54) and reclaiming motion allowed; and (3) (per Lord Brodie dissenting) that the Lord Ordinary had not made any error in his approach to the evaluation of what were unchallenged findings of primary fact and, in such a situation, the court should be hesitant about reversing a first instance judge on the result of such an evaluation, and in the instant case should not substitute its judgment for that of the Lord Ordinary on the critical issues and his decisions on the key issues of reasonable foresight and reasonable reliance were not plainly and obviously wrong (para.76).

Cases referred to: Al-Kandari v J R Brown & Co [1988] Q.B. 665; [1988] 2 W.L.R. 671; [1988] 1 All E.R. 833 BCCI (Overseas) v Price Waterhouse (No. 2) [1998] P.N.L.R. 546 Biogen Inc v Medeva plc [1997] R.P.C. 1 Caparo Industries plc v Dickman [1990] 2 A.C. 605; [1990] 2 W.L.R. 358; [1990] 1 All E.R. 568 Customs and Excise Commissioners v Barclays Bank plc [2006] UKHL 28; [2007] 1 A.C. 181; [2006] 3 W.L.R. 1; [2006] 4 All E.R. 256 Dean v Allin & Watts [2001] 2 Lloyd’s Rep. 249 Fardon v Harcourt-Rivington (1932) 146 L.T. 391 Frank Houlgate Investment Co plc v Biggart Baillie LLP [2009] CSOH 165; 2010 S.C.L.R. 527; 2010 S.L.T. 527; [2011] CSOH 160; 2012 S.L.T. 256 George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 A.C. 803; [1983] 3 W.L.R. 163; [1983] 2 All E.R. 737

5343.indd 737

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738 A

NRAM Plc v Steel (IH)

2016 S.C.L.R.

Gran Gelato Ltd v Richcliff (Group) Ltd [1992] Ch. 560; [1992] 2 W.L.R. 867; [1992] 1 All E.R. 865 Grayan Building Services Ltd, Re [1995] Ch.241; [1995] 3 W.L.R. 1 Hamilton v Allied Domecq plc [2006] UKHL 33; [2006] 4 All E.R. 490 Hedley Byrne & Co v Heller & Partners Ltd [1964] A.C. 465; [1963] 3 W.L.R. 101; [1963] 2 All E.R. 575 Henderson v Foxworth Investments Ltd [2014] UKSC 41; 2014 S.C.L.R. 692; 2014 S.C. (U.K.S.C.) 203; 2014 S.L.T. 775 McCullagh v Lane Fox & Partners Ltd [1996] P.N.L.R. 205 McGraddie v McGraddie [2015] UKSC 1; 2014 S.C. (U.K.S.C.) 12; 2015 S.L.T. 69 Midland Bank plc v Cameron,Thom, Peterkin & Duncans, (O.H.) 1988 S.C.L.R. 209; 1988 S.L.T. 611 Nocton v Lord Ashburton [1914] A.C. 932 North Shore City Council v Attorney General, 3 N.Z.L.R. 341 Phelps v Hillingdon London Borough Council [2001] 2 A.C. 619; [2000] 3 W.L.R. 776; [2000] 4 All E.R. 504 Piglowska v Piglowski [1999] 1 W.L.R. 1360; [1999] 3 All E.R. 632 Reynell v Sprye [1852] 1 De G.M. & G. 660 Royal Bank of Scotland plc v Carlyle [2015] UKSC 13; 2015 S.C. (U.K.S.C.) 93; 2015 S.L.T. 206 Smith v Eric S Bush [1990] 1 A.C. 831; [1989] 2 W.L.R. 790; [1989] 2 All E.R. 514 Thomas v Thomas, 1947 S.C. (H.L.) 45; 1947 S.L.T. (Notes) 53 United Central Bakeries Ltd v Spooner Industries Ltd [2012] COSH 111 White v Jones [1995] 2 A.C. 207; [1995] 2 W.L.R. 187; [1995] 1 All E.R. 691. On 19 February 2016 the following opinions were issued. The full circumstances of the case and the arguments of counsel are to be found in the opinion of Lady Smith. LADY SMITH

Introduction

[1] NRAM plc, the pursuers and reclaimers, are commercial lenders.Jane Steel, the first respondent, is a solicitor and, until 1 September 2006, was a partner in Clairmonts, solicitors.Clairmonts was, on that date, taken over by Bell and Scott, the second respondents, and MsSteel then became a partner in that firm. [2] NRAM granted loan facilities to Headway Caledonian Ltd (“HCL”), a client of Ms Steel’s, in relation to its purchase of four commercial units at Cadzow Business Park in Hamilton, in return for which HCL granted security over the whole property.NRAM were misled into discharging the entire security at a stage when it ought to have been left in place in relation to two of the units.NRAM say that that was due to negligent misstatements for which Ms Steel should be held responsible. HCL has since gone into liquidation and NRAM says that there is little or no prospect of their recovering the outstanding loan.NRAM looks to the respondents to make good their losses which, they aver, amount to £458,723.99 plus relevant interest. The issue

5343.indd 738

[3] There are two issues in the reclaiming motion:

07/12/16 8:11 AM

2016 S.C.L.R.

NRAM Plc v Steel (IH)

739

(i) did the Lord Ordinary err in law in holding that Ms Steel owed no duty of care to NRAM when she made the erroneous statements that led to the discharge of their entire security? (ii) did the Lord Ordinary err in law in assessing damages on the basis of assuming that NRAM would recover £ 70,351.50 from the liquidator of HCL? It was not disputed that Ms Steel’s conduct fell below the requisite professional standard.What, according to the Lord Ordinary, prevented NRAM from recovering their losses from the respondents was that she did not, in the circumstances, owe them a duty of care.

Background

[4] The facts agreed and as found by the Lord Ordinary—who heard evidence—can be summarised as follows. Ms Steel, HCL and Cadzow Business Park

[5] By 2006, Ms Steel had acted for Hamish Munro for many years.Mr Munro had interests in various companies including HCL. In 1997 HCL bought Cadzow Business Park; there were four units—Units 1, 2, 3 and 4—and the property was held on two separate titles both registered in the Land Register. HCL borrowed money from NRAM and granted an “all sums due and to become due” standard security over all four units when it was acquired. [6] It also, on 27 June 2002, granted a floating charge over all its assets in favour of NRAM.

Sale of Unit 3, Cadzow Business Park

[7] In May 2005, HCL sold Unit 3.Ms Steel acted for HCL in the transaction in the course of which she sent NRAM two deeds of restriction—to release Unit 3 from NRAM’s security—for execution by them. NRAM executed those documents, returned them to MsSteel and following settlement of the sale of Unit 3, received a capital repayment reducing HCL’s overall indebtedness but leaving it secured over Units 1, 2 and 4. Lossiemouth sale

[8] In November 2005, HCL sold a property that it owned in Macdonald Drive, Lossiemouth.Once more, Ms Steel acted for HCL.NRAM held a standard security over the subjects of the Lossiemouth sale. Ms Steel sent NRAM a draft discharge for signature, which they signed.They received funds in repayment of the whole of that loan.

Sale of Unit 1, Cadzow Business Park

[9] In May 2006, HCL entered into heads of terms for the sale of Unit 1 at Cadzow Business Park.Ms Steel was instructed by HCL to act for it in that sale.The price was to be £560,000.Ms Steel was instructed to obtain the release of Unit 1 from the standard security.By September 2006, Mr Munro had agreed a partial redemption figure with NRAM.On 17September 2006, he forwarded to her an email he had received from Mr John Lindsay of NRAM: “Subject: Headway Caledonian Ltd Hamish, Further to last week’s discussions, I confirm we shall be satisfied to receive £495,000 coming in permanent loan reduction from the sale of Unit 1 Cadzow Business Park, Hamilton.When Clairmonts require a

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740 A

NRAM Plc v Steel (IH)

2016 S.C.L.R.

formal figure, can you please ask them to write to Edinburgh office at the same timing advising the likely completion date. I am away over the next fortnight but either Julie or Patricia will address any queries. Units 2 and 4: what sum comes in reduction will basically depend on which unit goes first.We now have up to date valuation figures from D M Hall and, subject to there being no major market movements over the next three–six months, will use these as the basis for our calculation. John Commercial Finance Manager Northern Rock Commercial Finance . . . .” The repayment figure of £495,000 was stated in a “partial redemption pro forma” which had an expiry date of 9 October 2006. No further pro forma was prepared or issued in relation to the sale of Unit 1 or any other unit. [10] The sale was delayed pending preparation and execution of a deed of conditions and the consequent revisals of various leases. By February 2007, that work appears to have been completed and on 10 February 2007, Mr Munro emailed Ms Steel in the following terms: “Subject: Unit 1 Hamilton Jane In case this settles whilst I am away—please pay free proceeds after Northern Rock—they taking £470k to Headway Caledonian Ltd ......... . . . .00 . . . . . . . . Bank . . . . . . . . Thanks Hamish M Munro Briar Hall Estates Ltd ......... Glasgow. . . . .” Ms Steel’s email of 22 March 2007 and subsequent events

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[11] The transaction for the sale of Unit 1 was due to settle on 23 March 2007. At 5 pm, on 22 March 2007, Ms Steel emailed NRAM’s case management team in the following terms: “Subject: headway caledonian limited sale of Pavillion 1 Cadzow Park Hamilton (title nos LAN 6421 and LAN 124573) Helen/Neil I need your usual letter of non crystallisation for the sale of the above subjects to be faxed through here first thing tomorrow am if possible to 0141 . . . . . . . marked for my attention—I have had a few letters on this one previously for various other units that have been sold. I also attach discharges for signing and return as well as the whole loan is being paid off for the estate and I have a settlement figure for that. Can you please arrange to get these signed and returned again asap. Many thanks Jane A Steel Partner For Bell & Scott LLP”. Neil Atkin, one of the addressees in that email, forwarded it to Martin Clarke, the head of NRAM’s loan review team; he read it and it caused him to authorise both a letter of non-crystallisation and the execution and release of the discharges. [12] On 27 March 2007, NRAM posted the executed discharges to Ms Steel and, on that day, they received from her firm the sum of £495,000. A

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substantial part of HCL’s loan remained outstanding; despite that, on 29 March 2007, Ms Steel forwarded the discharges of the entire security to the purchaser’s solicitor and they were duly registered.

The misstatements

[13] NRAM did not have solicitors acting for them in any of these three transactions.The persons to whom the email of 22 March was addressed were not solicitors. Ms Steel knew that the persons she dealt with at NRAM in relation to the sale of Unit 3 and in relation to the Lossiemouth transaction were not solicitors.The Lord Ordinary (para.56) was satisfied that she either knew or ought to have known that NRAM would not instruct solicitors to act for them in relation to the sale of Unit 1. [14] Mr Munro had not instructed Ms Steel that he was intending to repay the whole of the outstanding loan. He did not provide her with a settlement figure for repayment of the whole of the outstanding loan.He had not instructed her to seek or obtain discharges of the entire security.HCL were not entitled to seek discharges of the entire security.Nor had MrMunro instructed Ms Steel that any unit other than Unit 3 had previously been sold.Accordingly, the email of 22 March 2007 contained a series of very significant misstatements and called on NRAM to execute discharges of the entire security but Ms Steel had no actual or ostensible authority from her client to make the statements or require wholesale discharge of the security; none of it emanated from HCL. The only source was Ms Steel (Lord Ordinary at paras 66 and 68). The Lord Ordinary inferred (para.67) that the purpose of the misstatements was to explain to NRAM “why it was that discharges were appropriate”. NRAM’s reliance on the misstatements

[15] The Lord Ordinary (at para.73) found that the email of 22 March 2007: “(i) contained no disclaimer; (ii) had a degree of urgency in its tone; (iii) was communicated directly to the pursuers, rather than to professional advisers; and (iv) . . . came from a solicitor—a trustworthy source”.

He accepted that those were factors which favoured the view that there was “the requisite foreseeability and reasonable reliance”. HCL after the sale of Unit 1, its liquidation and the outstanding debt due to NRAM

[16] HCL continued to make interest payments to NRAM until 14 April 2010. It was put into liquidation in July 2010.Meanwhile, HCL had sold Unit 4 in September 2007 and Unit 2 in December 2007, for £750,000 and £325,000 respectively.Ms Steel acted for HCL in relation to each sale and her contact with NRAM was limited to seeking and obtaining letters of noncrystallisation. When HCL went into liquidation, the outstanding balance of its loan from NRAM was over £½m.The liquidator made one payment to them, of £50,000, in July 2014 but no further payments had been made by the date of proof; we were advised that, as at 20 October 2015, the final distribution to NRAM was not likely to be more than £2,500–3,000. [17] In evidence, which the Lord Ordinary appears to have accepted, Mr Clarke stated, in chief (per his witness statement and supplementary witness statement): “12.1 To my knowledge, we have never had any other issues with discharges being registered when full redemption funds have not been provided. I do not think that NRAM were at fault here. NRAM acted on Jane Steel’s instructions and I think it was reasonable to expect full proceeds to be remitted following her email of 22March 2007.

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742 A

NRAM Plc v Steel (IH)

2016 S.C.L.R.

12.2 . . . the request which came from Jane Steel on 22 March 2007 for letters of non-crystallisation and discharges to be signed and sealed was clear in that she stated that she had a full redemption figure.There was nothing in this email to raise concern or cause us to question this.As a solicitor, we would be content to rely on her word. ... 1.7 I have no reason to suppose that any reasonable policy would require a solicitor’s assertion of fact to be double-checked as a matter of course.” [18] In cross-examination, he agreed that if, on receipt of the email of 22 March he had looked at the customer file, he would have seen that what had previously been requested was a figure for partial redemption but, as the Lord Ordinary records (para.27), his evidence continued, “given the clear terms of the email there had been no need to check the file. If there had been any ambiguity in the email he would have checked the file, but there had been no such ambiguity”. [19] Whilst, on further questioning, Mr Clarke conceded that there was a discrepancy between the subject heading of the email and the body of the text when read together, he said he did not have clear recollection of what he thought at the time. He did, however, believe that his understanding would have been in accordance with the evidence he gave which was that there was no ambiguity; the discharges were executed on the basis that the whole loan was being repaid. Banking practice

[20] There was no expert or other evidence about banking practices in general or about what a prudent bank would have done in the circumstances in which NRAM received Ms Steel’s email of 22 March 2007. Briar Hall

[21] Briar Hall was another company owned by Mr Munro. It owed money to HCL. The liquidator of HCL provided two witness statements; the first was pessimistic about recovery of the Briar Hall debt.The second, dated 14 September 2014, indicated that he had had further discussions with Mr Munro, that the company expected its financial position to be clarified in around September 2014, and that he anticipated the Briar Hall loan being repaid in full but that that was dependent on that company’s ongoing trading position. The Lord Ordinary’s opinion

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[22] The Lord Ordinary held that Ms Steel did not owe NRAM a duty of care because: “[78] In the whole circumstances I have no real difficulty in concluding that it was not reasonable for a bank in the position of the pursuers to rely on the misstatement information without checking its accuracy; and that a solicitor in the position of the first defender would not foresee that such a bank would reasonably rely on that information without carrying out such a check.Any prudent bank taking the most basic precautions would have checked the information provided by seeking clarification from the first defender and/or looking at their file.It follows that whether the test applied is the threefold one in Caparo, or the assumption of responsibility test, the pursuers’ primary case fails. It also follows, given that the pursuers’ reliance was unreasonable and that that reliance and the resulting loss were unforeseeable, that the claim fails to satisfy the criteria discussed in Midland Bank plc v Cameron, Thom, Peterkin & Duncans and Frank Houlgate Investment Co Ltd plc v Biggart Baillie LLP . . . .”

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743

Before reaching that conclusion, the Lord Ordinary had addressed two questions which he regarded as being of central importance (see para.72), namely: (i) whether it was reasonable in the circumstances for NRAM to rely upon the misstatements without checking them by seeking clarification from Ms Steel and/or looking at its file; and (ii) whether it ought to have been foreseeable by Ms Steel that NRAM might reasonably rely on the misstatements without checking them and thereby suffer loss. The questions were asked and answered by him in that order (see para.78, above); it was not, he said, reasonable for NRAM to rely on the email without checking its file and, therefore, a solicitor in Ms Steel’s position would not foresee them doing so. [23] Before that, at paras 63, 65, and 66, the Lord Ordinary had recognised that it was relevant to consider whether or not Ms Steel was, on an objective assessment, to be regarded as having assumed responsibility.However, other than observing—in NRAM’s favour—that it was not open to Ms Steel to say that she was only transmitting information that came from her principal on that principal’s behalf (para.66) and rejecting a submission for NRAM that the circumstances of the present case were comparable to those in Dean v Allin & Watts, he did not, at that point, determine whether or not she was, in all the circumstances, to be regarded as having assumed responsibility.That may, it seems, be because of the distraction of an issue not raised by parties at any stage but raised by him in the course of submissions, namely whether or not Ms Steel was in breach of an implied warranty of authority (see paras 68 and 69).Having observed that if it had been open to him to determine that issue he would have concluded that she was in breach of that warranty, he moved on to the questions in para.72 referred to above and didnot return to assumption of responsibility other than in passing, at para.78 where he dismissed it because he considered it not reasonable for NRAM to have relied on Ms Steel’s statements without checking them and that a solicitor in her position would not have foreseen that they would do so. [24] Regarding damages, the Lord Ordinary took £440,162.80 as his starting-point and then, “wielding a broad axe”, deducted £70,351.50 to allow for, as he put it, NRAM’s prospect of further recovery from the liquidation. £70,351.50 amounted to one-half of the outstanding sum due to HCL from Briar Hall.

Parties’ submissions

Reclaimer

[25] The case for the reclaimer can be summarised as follows.The relevant authorities demonstrated the importance of considering the precise circumstances of the individual case when determining whether or not a duty of care arose. A key feature of this case was that Ms Steel was acting wholly without instructions, on her own and outwith her mandate. That feature set this case apart.Further, she did so in circumstances where her client and NRAM were not at arms length; they had a common interest in achieving the sale of Unit 1. There had plainly been an assumption of responsibility by Ms Steel but the Lord Ordinary had failed to apply the test of assumption of responsibility properly in the circumstances of this case and bearing in mind the guidance in Customs and Excise Commissioners v Barclays Bank plc.The Lord Ordinary relied on authorities relating to circumstances where the solicitor had been acting with the client’s authority. [26] Even if it was necessary or appropriate to go on and consider the “threefold” test discussed in the Customs and Excise case, the Lord Ordinary

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2016 S.C.L.R.

had erred in placing so much emphasis on NRAM’s failure to check their file before relying on Ms Steel’s email. Senior counsel accepted that that failure was a relevant consideration but it was wrong to place it head and shoulders above all other considerations. For the reasons explained in, for instance, Dean v Allin & Watts by Lightman J, at para.28, the lack of authority was a relevant, important and weighty factor; the Lord Ordinary had failed, when reaching his decision, to give it weight at all, however, as was demonstrated by its absence from his list of the four relevant factors that favoured NRAM’s case (para.73). There were in fact seven such factors and, taken together, they showed that a duty of care arose. They were: (i) the community of interest between the parties; (ii) the trust engendered from previous dealings; (iii) the unequivocal terms of the body of the email; (iv) that Ms Steel could have but did not qualify her assertions as being based on information provided by her client; (v) the fact that the information in the email was conveyed in an unequivocal and unqualified manner; (vi) the urgency and clear impression that Ms Steel expected a prompt response; and (vii) that Ms Steel had no instructions that the loan was being wholly repaid, or that she had a redemption figure for that or that discharges were required.In any event, on the evidence and in all the circumstances, the Lord Ordinary had no basis for his conclusion that any prudent bank would have checked its file first and no basis on which he could properly conclude that a reasonable solicitor in Ms Steel’s position would have foreseen that NRAM would do so.Mr Clancy, for NRAM, relied on passages in BCCI (Overseas) v PriceWaterhouse (No. 2), in the opinion of Sir Brian Neill, at pp.582–588 and Smith v Eric S. Bush, and the references there to the need to consider the degree of reliance which the adviser should, in the particular circumstances, reasonably have anticipated would be placed on its accuracy by the recipient of the information.He submitted that it was clear that the reasonable reliance/requisite foresight criterion was satisfied. Even if, despite the lack of evidence, the Lord Ordinary was entitled to conclude that a prudent bank would have checked its file, that was not decisive of the issue. It placed far too much weight on the failings of the bank and little or no weight on the clear culpability of the defender. [27] Mr Clancy also submitted that, in applying the “threefold test”, the LordOrdinary had failed to address its third limb namely whether it was fair, just and reasonable to impose the duty, in any meaningful way, that being a “filter by which otherwise tenable cases of liability in negligence may be excluded” (Dean v Allin & Watts per Sedley LJ at para.48). Here, the fact that Ms Steel was acting without authority pointed strongly to it being fair, just and reasonable to impose liability. As for the first and second limbs of the threefold test, it was clear from the facts that Ms Steel ought to have foreseen that NRAM would rely on her email, reposing a default level of trust and confidence in her and there was no doubt that there was sufficient proximity between them. The imposition of a duty of care would be a sensible and just outcome. [28] In a brief reply to Mr Duncan’s submissions (for the respondents), Mr Clancy said that, in his reliance on a series of authorities beginning with Piglowska v Piglowski, Mr Duncan had gone far beyond his note of argument. Further, Mr Clancy stressed that he was not seeking to challenge any of the Lord Ordinary’s findings in fact; rather, his case was rooted firmly in a submission that the Lord Ordinary had failed to apply the law correctly to the facts of the case. He was not challenging the facts found by the Lord Ordinary; whilst he raised some points which might be described as ‘mixed fact and law’, his challenges were legitimate ones. His central argument was that when it

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745

came to the legal part of his analysis, the Lord Ordinary had fallen into error. This was not Thomas v Thomas territory nor were the observations about interfering with an exercise of judicial discretion in Piglowskarelevant. Insofar as his challenges concerned weight they did not depend on factors available only to the judge of first instance; it was, accordingly, a case where an appellate court could consider matters of weight for itself. [29] Mr Clancy presented a separate submission in relation to the Lord Ordinary’s indication that if he had held that Ms Steel owed a duty of care, he would not have sustained the respondents’ plea of contributory negligence; the argument was, essentially, that that disclosed that his entire approach was illogical. The submission was not, however, pressed and Mr Clancy was, I consider, wise to refrain from doing so; the issue was a separate one demanding of a different analysis and I do not see that the Lord Ordinary’s conclusion on that issue is necessarily at odds with his conclusion on the main duty of care point. [30] Turning to damages, Mr Clancy submitted that the evidence did not support the Lord Ordinary’s finding. The liquidator of HCL had provided two contradictory witness statements; in one he was pessimistic about the prospects of recovery of a debt owed to HCL by Briar Hall.In the second, he gave a more optimistic view, but that was only based on having had further contact with Mr Munro. The information was too scant and did not provide any proper basis for the Lord Ordinary’s arbitrary assumption.

Respondent

[31] The response to the reclaimer’s case can be summarised as follows. Insofar as the reclaimer’s attack was on the Lord Ordinary’s evaluation of the facts, this court required to exercise caution. Whilst the decision in this case was not a discretionary one, the observations in Piglowska at p.1372D were relevant. Insofar as the attack was on his reasons, this court should not be quick to find them inadequate. To succeed, NRAM required to show that the Lord Ordinary had gone plainly wrong or that he reached findings and/or conclusions that no reasonable judge could have made or that his findings cannot reasonably be explained. [32] Although not foreshadowed in his note of argument or by means of their inclusion in the list of authorities, senior counsel for the respondents made passing reference to McGraddie v McGraddie; Henderson v Foxworth Investments Ltd; and Hamilton v Allied Domecq plc to, it seemed, reinforce his submission that it was not for this court to interfere with the Lord Ordinary’s evaluation of the facts or the inferences drawn by him and that the rule in Thomas applied as much to secondary conclusions of fact as it did to primary findings. [33] Regarding assumption of responsibility, it was a high-level test but the conclusion depended on low-level issues.They were those of whether it was reasonable for NRAM to rely on Ms Steel’s email without checking their file and whether it was reasonably foreseeable that they would do so.The Lord Ordinary’s conclusion that it was not reasonable to do so was one which was open to him and based on him having found the email to be vague and ambiguous and that it cried out for clarification. Further, Ms Steel did not cause NRAM to enter into an agreement with HCL; rather she got the terms of their contract wrong. The Lord Ordinary had not concluded that there was any particular potency in the fact that the email came from a solicitor and it was a solicitor who was sending the discharges to be signed. Were it to decide now that there was such potency, this court would be entering into forbidden

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NRAM Plc v Steel (IH)

2016 S.C.L.R.

territory. He referred to the guidance in the Customs and Excise case but cautioned the court against applying it of new. Whilst it would be open to the court to determine that on the facts, the only answer open to the Lord Ordinary was that a duty of care existed, it could only do that if it based its decision on the LordOrdinary’s assessment of primary facts and the inferences drawn from them. [34] Mr Duncan said that the respondents relied on the assumption of responsibility test; on that test, duty of care was not established. Ms Steel did not assume responsibility for advising NRAM about the terms of the loan agreed between them and the borrower.That was a matter for the individuals who had actually discussed and agreed it namely Mr Munro and NRAM. Thus put, the argument seemed to be that she had not acted alone. If he was wrong about that and Ms Steel was not, in truth, acting for her client, that did not get NRAM “home and dry” because questions of reasonable foresight then came into play.The test was an objective one.The court could not go behind the finding that it was not reasonable to rely on the email. [35] As for the threefold test, its constituent parts were blunt tools, the focus had to be on the facts of the individual case, the four questions discussed by Lord Jauncey in Midland Bank plc v Cameron, Thom, Peterkin & Duncans were relevant, as was the fact that Ms Steel was not passing information that lay within her area of skill. [36] Dean v Allin & Watts could be distinguished since it involved joint enterprise and was of no assistance, the reclaimer’s criticisms were essentially ones of weight, the LordOrdinary had taken account of Ms Steel being taken to be trustworthy, and there was a primary finding that the email was not unequivocal. On the matter of lack of authority, MrDuncan added a new submission—not foreshadowed in his note of argument or averments and not explored at proof—that Ms Steel had ostensible authority because she was not inducing a fresh loan agreement. [37] Regarding damages, it was a matter for the Lord Ordinary. There was evidence about future uncertainty and he had to swing a broad axe. His decision was not open to challenge. Discussion

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Duty of care to NRAM

[38] It is not disputed that NRAM relied on the email and that it caused not only the issue of a letter of non-crystallisation but, critically, the execution and return oftwo discharges the effect of which was to leave a substantial debt that was owed to it by HCL, unsecured. As a generality, the law imposes a duty not to cause unintentional but foreseeable harm. Where, however, that harm is economic loss, the court has, since Hedley Byrne & Co v Heller & Partners Ltd been faced with the need to decide whether, as a matter of policy, a duty of care should be held to have existed and in a case such as the present one, the question becomes whether or not the law recognises or imposes, in the particular circumstances of the case, a legal duty not to cause economic loss by means of a careless or negligent communication. [39] Normally, a solicitor acting for one party in a property transaction does not owe a duty of care to another party (Gran Gelato Ltd v Richcliff (Group) Ltd, per Sir Donald Nicholls V-C at p.570D; White v Jones, pp.223A– B and 256D; McCullagh v Lane Fox & Partners Ltd, pp.233F–234B; Frank Houlgate Investment Co Ltd plc v Biggart Baillie LLP (2010), para.13; (2012), para.23). However, Mr Duncan accepted, it was not, in the circumstances of this case,

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open to them to rely on that general rule.That concession was, we consider, well made. Ms Steel had no actual or ostensible authority for making the series of critical statements in the email of 22 March or, importantly, to call for discharges to be executed by NRAM.The Gran Gelato shield was not, accordingly, available to her. [40] Insofar as Mr Duncan may also, at one point, have sought to advance a case of ostensible authority, I would reject it. No such case was averred, no such case was explored at proof, and there was no cross-appeal against the Lord Ordinary’s conclusion that Ms Steel did not have actual or ostensible authority (para.68). [41] Returning to the normal situation where a solicitor communicates with the party on the other side of a transaction, it is also evident from the discussions in the authorities that even where a solicitor is acting as agent for a principal, that mere fact may not be sufficient to prevent a duty of care being owed to another party in the transaction. In McCullagh v Lane Fox & Partners Ltd, at p.229, Hobhouse LJ, when referring to the reasoning of the Vice Chancellor in Gran Gelato said: “With respect to the Vice Chancellor, when he says that ‘where the principal himself owed a duty of care to the third party, the existence of a further duty of care, owed by the agent to the third party is not necessary’, he appears to overlook that, in the relevant context, the duty in tort arises from the act of the solicitor in choosing to answer the inquiry. There is only one duty; it is the duty of the solicitor to take reasonable care in answering. The duty in tort is both created and broken by the solicitor.” Accordingly, as was noted by Lord Drummond Young, at para.15 of his opinion in the Frank Houlgate case: (i) the mere existence of agency is not of itself a reason for excluding liability; and (ii) liability may arise where the agent chooses to provide information and does so in such a way that it can reasonably be inferred that he undertook a duty of care in respect of it.Thus, the solicitor who has authority but volunteers to do that which he does not need to do— who chooses to convey information—may find himself being held to have owed a duty of care to a person other than his client. I draw attention to this because it seems to me thatthat it points to there being an even greater likelihood of it being concluded that a solicitor who makes representations to another party to a transaction—and/or calls on them to execute important documents—without having any authority to do so owes such a duty.To put it another way, if the solicitor ‘goes it alone’ or—as it was described by the Master of the Rolls, Lord Donaldson of Lymington, in Al- Kandari v J R Brown & Co,p.672—he “steps outside his role as solicitor for his client”—he runs a significant risk of the recipient of his communications being entitled to look to him alone to make good any loss that results if those are erroneous communications which mislead. Observations made by the Vice-Chancellor at pp.571–572 of Gran Gelato, indicate that he considered the Al-Kandari approach to be suitable for adoption in a property transaction context. He said: “[T]here will be special cases where the general rule does not apply and a duty of care will be owed by solicitors to a buyer. A good illustration is the New Zealand decision of Allied Finance and Investments Ltd. v Haddow & Co, [1983] N.Z.L.R. 22.There solicitors acting for a borrower certified to an intending mortgagee that specified documents had been duly executed and were fully binding on their client and that there were no other charges on the boat which was the intended security. The solicitors were held to owe a duty of care to the lender in connection with the giving of that

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748 A

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NRAM Plc v Steel (IH)

2016 S.C.L.R.

certificate. On any reasonable appraisal of that arrangement, the solicitors must be taken to have assumed personal responsibility to the mortgage for the accuracy of their certificate. That is a case in which, to adapt the language used by Lord Donaldson MR in Al- Kandari v J.R. Brown & Co, p.672, in the context of a solicitor acting in adversarial litigation, the solicitors had stepped outside their role as solicitors for their client and had accepted a direct responsibility to the lender . . . .” [42] A review of the relevant authorities demonstrates that assessing whether or not, as a matter of law, a person owes a duty of care not to cause economic loss is difficult and that, in this area suffused with policy considerations, there are no hard and fast rules. It is understandable why Lord Rodger of Earlsferry, at para.51 of Customs and Excise, suggested that appellate judges should follow the philosopher’s advice to, “Seek simplicity and distrust it” (at pp.751–752) and why many have observed that this is an area where the law recognises that pragmatism may play a part (see, for example, Lord Bridge of Harwich in Caparo Industries plc v Dickman, p.618). [43] Equally, however, as the speeches in the Customs and Excise case make clear, it is of critical importance, in what is essentially a search for a just result, to have regard to the precise circumstances in which the communication came to be made; a review of the authorities reveals factors which have been identified as—in most cases—likely to determine whether a duty of care arises. When that is done, it is apparent that the question of whether or not a solicitor in the position of Ms Steel could be said, on an objective assessment, to have assumed responsibility was of central importance. Lord Bingham observed that assumption of responsibility was a “sufficient but not necessary condition of liability” and “if answered positively, may obviate the need for further inquiry” (para.4). Lord Hoffmann considered it was “critical to decide whether the defendant rather than someone else assumed responsibility for the accuracy of the information”, that if, objectively, the defendant did assume responsibility and there was sufficient proximity there was no need to ask whether it was fair, just and reasonable to impose liability (para.35), and that assumption of responsibility was a useful notion because it drew attention to the fact that “a duty of care is ordinarily generated by something the defendant has decided to do” (para.38).Lord Rodger said that there was no doubt that passages in the earlier authorities provided support for the view that assumption of responsibility was “the touchstone of liability for pure economic loss” (para.49), that it had “very real value” as a “criterion of liability” in many cases and that it “may be decisive in many situations” (para.52). LordMance said that assumption of responsibility was “on any view a core area of liability for economic loss” (para.83). [44] Whilst their Lordships also observed that there may not, in practice, be much difference between the assumption of responsibility test and the threefold test (see: Caparo Industries plc v Dickman) of whether loss to the claimant was a reasonably foreseeable consequence, whether there was sufficient proximity between the parties and whether it is fair, just and reasonable to impose liability,that does not, I consider, detract from, as LordRodger put it, the very real value of the question of whether or not the defender assumed responsibility as a criterion of liability. [45] In these circumstances, the Lord Ordinary required, when applying the law to the facts, to give careful consideration to, and answer, the question of whether or not Ms Steel fell to be treated by the law as having assumed responsibility for the misstatements and their consequences. I readily accept that the particular circumstances weighed heavily in favour of NRAM’s

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NRAM Plc v Steel (IH)

749

contention that, on the question of assumption of responsibility alone, they were, when the email was written and sent, owed a duty of care by Ms Steel. The representations made in an email which she ‘signed’ in her capacity as a solicitor, particularly those to the effect that the circumstances were such as to require the attached discharges to be signed, were within her area of professional skill. The information was supplied—looking at matters objectively—for the purpose of being relied on by NRAM. Ms Steel had demonstrated in two previous transactions where NRAM did not have their own solicitor acting for them that she could be trusted. She knew that “Helen/Neil” were not solicitors and that NRAM did not have a solicitor acting for them in relation to the Unit 1 transaction; indeed, there was, on the Lord Ordinary’s findings nothing to afford NRAM justification for thinking she could not be trusted on this occasion.NRAM did infact rely on her word “as a solicitor” (see Lord Ordinary’s opinion at para.25). The representations made were, on the terms of the email, Ms Steel’s representations; they were not, for instance, qualified under reference to what her client had told her.Further, she had no authority for the representations of fact in the email or for the representation that NRAM required to sign and return discharge documents.The email was sent at close of business on 23 March and related to a transaction that was to settle the following day; there was a palpable sense of urgency in its terms. [46] Further, I consider that there is merit in Mr Clancy’s submission that, properly understood, this was not an arms’ length transaction.It was in the interests of both NRAM and HCL to ensure that the sale of the unit was completed. Both would benefit financially from the proceeds of sale.In these circumstances, the Lord Ordinary ought not, I agree, to have regarded the case of Dean v Allin &Watts as being of no assistance.It involved circumstances which, whilst not identical, were comparable and, furthermore, relevant observations about assumption of responsibility, in para.28, where Lightman J, having said that great caution was required in treating statements made by a solicitor on the instructions of his client in the course of a transaction as his own representations, went on to consider the position where the solicitor cannot be regarded as acting for his client and added: “The solicitor’s position in such a situation is to be contrasted with his position in a situation where the solicitor makes an express unequivocal statement to a third party which is not attributable simply to performing his role as the client’s adviser: for in the latter case the adviser may readily be held to have assumed responsibility to the third party since the explanation of his acting merely as a messenger would be inapplicable.” Those observations, relied on by Mr Clancy, were, in my view, very much in point. I cannot accept that the email can be regarded as equivocal in its terms. Insofar as the heading might, in hindsight, be regarded as conflicting with the body of the email (see: LordOrdinary at para.77), there was no evidence that it was regarded as such at the time.In any event, it must, I consider, be accepted that the key aspects of the email were unequivocal: NRAM needed to provide Ms Steel with a letter of non-crystallisation and signed discharges in the form attached, as a matter of some urgency, and they needed to do so in circumstances where the whole loan due (for which she had a settlement figure) was being paid off.That was the purpose of the email; its message was clear and unequivocal.It was also, of course, wrong but there was nothing in the body of the email to cause doubt as to the veracity of that message.For reasons which I explain below, resultant harm to NRAM in the form of economic loss was reasonably foreseeable.

5343.indd 749

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750 A

5343.indd 750

NRAM Plc v Steel (IH)

2016 S.C.L.R.

[47] In these circumstances, the Lord Ordinary required to ask whether this was one of those cases where the law attributes assumption of responsibility to the solicitor and, in doing so, provides a complete answer to the duty of care question, obviating the need for further inquiry including inquiry as to whether or not NRAM could or should have checked their file. I cannot read his opinion as indicating that he did so.Had that question been asked, I consider it to be inevitable that the conclusion would have been that this was one of those cases.The factors I have referred to—which are all drawn from the Lord Ordinary’s findings in fact and are more extensive than those listed by him in para.73—weigh heavily in favour of the law attributing assumption of responsibility to Ms Steel and thus, without further inquiry, imposing on her a duty of care. It being conceded that if she did owe the duty then it was breached, that would be an end of matters. [48] If, however, the threefold test was a relevant consideration, I note that it was not disputed that the requisite proximity existed.Accordingly, following the guidance in the Customs and Excise case, the questions were: (i) whether a reasonable solicitor would, in all the circumstances, have foreseen that if she sent the email of 22 March with its attachments there was an appreciable risk that NRAM would suffer loss? and (ii) whether, in all the circumstances it would be fair, just and reasonable to impose the duty of care? [49] The Lord Ordinary determined that a solicitor in Ms Steel’s position would not have foreseen NRAM relying on her misstatements without checking their file.That was because it was not reasonable for NRAM to have failed to check. There is, I accept, no doubt that NRAM could have checked and that if they had done so, the errors in the email would have been apparent but Mr Clarke did not accept that he ought to have done so, there was no expert or other evidence about the “basic precautions” (Lord Ordinary, para.78) that would have been taken by a prudent bank in the particular circumstances of this case and they are not, in my view, such as would fall within judicial knowledge.More importantly, the issue of reasonable foresight, which required to be assessed objectively, depended on a consideration of what ought to have been foreseen by Ms Steel when, as a solicitor but without her client’s authority, she urged NRAM to act in the manner and for the reasons set out in her email.There was nothing in the evidence or in the Lord Ordinary’s findings to indicate to her at that time that she need not foresee that there was an appreciable risk of her email being relied on and acted upon; that, after all, was precisely its purpose.Since she knew or ought to have known that she was not in fact entitled to call for discharges to be signed, the risk of loss to NRAM was an obvious one.Nothing in the fact that NRAM could or might check its file before acting in response altered that.Yet, as I read the Lord Ordinary’s opinion, his decision that loss to NRAM was not a reasonably foreseeable consequence rested ultimately, on that alone and he does not explain how or why that was destructive of all those factors which were indicative of there being, objectively, a likelihood that NRAM would simply rely on Ms Steel’s representations and call for action particularly her status as a solicitor, the commonality of interest between them and HCL, the prior trust engendered, the clear indication in the email of what NRAM needed to do and the sense of urgency. [50] The duty to be considered was the duty to guard against reasonable probabilities (Fardon v Harcourt-Rivington, Lord Dunedin); a multiplicity of outcomes may be reasonably foreseeable.So it is that reasonable foreseeability may be regarded as a mechanism which excludes claims on the basis that no reasonable person in the shoes of the defender would have foreseen the loss in

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2016 S.C.L.R.

NRAM Plc v Steel (IH)

751

question (see eg, North Shore City Council v Attorney-General, para.157 per Elias CJ). It follows that it is sufficient if a reasonable person in those shoes would have foreseen such an outcome.That which can be identified as reasonably foreseeable is not rendered not reasonably foreseeable in law on account of the possibility of an alternative scenario.As I read the Lord Ordinary that, however, was his approach and, in my view, it was, in the circumstances, an erroneous one. I accept Mr Clancy’s submission that, in the circumstances of this case, it was plainly within the reasonable contemplation of a solicitor in the position of Ms Steel that her email would be relied on as being accurate and, importantly, that it would cause the execution and return of the discharges attached to it.As I see matters, the facts simply cannot support the proposition that no reasonable solicitor would have foreseen reliance by NRAM on the misstatements and that, accordingly, an outcome whereby the discharges were signed and returned was also reasonably foreseeable. That being so, I can only conclude that the question of whether, in law, Ms Steel is to be taken as having assumed responsibility for her misstatements had to be answered in the affirmative. [51] We turn then to the Lord Ordinary’s rejection of NRAM’s claim as failingto satisfy the criteria discussed in Midland Bank v Cameron, Thom, Peterkin & Duncans, and Frank Houlgate Investment Co Ltd plc.These cases were, presumably, referred to because they both concerned claims by third parties against solicitors.The former is a first instance decision and is, I consider, of limited, if any, assistance given that it predated important authorities in this area such as Caparo Industries and that the discussion relates only to circumstances where a solicitor is acting within his authority. In any event, the present case does not, in my view, fall to be regarded as failing to satisfy the four factors discussed: for the reasons I have explained, I consider that it ought to have been concluded that there was an assumption of responsibility, Ms Steel’s email clearly indicated that, as HCL’s solicitor she was in a position to communicate as she did, NRAM relied on the information and, as I have also explained, such reliance was clearly within the ambit of reasonable foresight.The latter case involved, again, solicitors who were, for the critical period, acting on the authority of their client.The reference to these cases does not add to the Lord Ordinary’s reason for rejecting NRAM’s claim; ultimately it rested on the fact that they could have but did not check their file before signing and returning the discharges. [52] As a consequence of the Lord Ordinary’s approach, he did not go on to consider whether the imposition of a duty of care would be fair, just and reasonable. The context was, for the reasons I have explained, a background of assumption of responsibility and reasonable foresight of significant economic loss suffered by a bank in a sufficiently proximate relationship with a solicitor who had previously shown herself to be a trustworthy source.The context was also, importantly, that that solicitor whilst acting outwith her mandate and instructions made a serious error and put in train a series of events which caused the bank to suffer significant loss. What then of the fact that the loss could have been avoided if, having received the email, which ought never to have been written and the attachments which ought never to have been sent, the bank had checked its file?Does that mean that it would not be fair, just and reasonable to hold the solicitor liable? I cannot identify any policy reason for doing so. Nor can I conclude that that fact demonstrates that the solicitor should be relieved of liability.Indeed, it might be thought invidious to suggest that a solicitor can abrogate responsibility for a serious error because the recipients of her communication might have checked rather than relying on

5343.indd 751

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752 A

NRAM Plc v Steel (IH)

2016 S.C.L.R.

what she, as a hitherto trustworthy professional, communicating with them as a solicitor, told them, particularly when she herself took no action to correct the error when, on receipt of the signed discharges, it was within her power to do so. Damages

[53] I turn then to the question of damages.The Lord Ordinary required to determine what was a reasonable estimate of the loss and damage suffered by NRAM.I accept that, in the circumstances, he required to make some allowance for further recovery of the Briar Hall debt. They were the holder of a floating charge and would be entitled to be afforded priority if any such sums materialised.To put it another way, on the evidence, I can understand why he did not feel that he could be satisfied, on a balance of probabilities, that NRAM would not receive any further sums from the liquidator and that he therefore had to make some allowance for that against the principal sum. I note that the deduction made by him allowed, in effect, for recovery of half of the outstanding sums due by Briar Hall.Another Lord Ordinary might have deducted a smaller sum.I cannot, however, conclude that this Lord Ordinary erred in his approach to what he correctly, in my view, saw as beinga matter of wielding a broad axe. Decision

5343.indd 752

[54] I have approached my considerations on the basis that the fundamental question is whether or not the Lord Ordinary erred in his application of the relevant law to the facts of this case. I fully appreciate that this is an area of law characterised by flexibility and fluidity but do not see that as preventing an appellate court from interfering where its clear features have not been applied or have not been properly applied; to proceed otherwise may be productive of injustice of the very sort that the common law seeks to avoid. It is, moreover, clear from the authorities, as helpfully distilled in the Customs and Excise case, that there are elements that require to be viewed as clear signposts includingwhether there has, as a matter of law, been an assumption of responsibility, and whether loss was reasonably foreseeable and whether the imposition of a duty of care would be fair, just and reasonable.For the reasons I have sought to explain, I consider that the Lord Ordinary’s decision-making failed to follow these signposts and if it had done, the result would inevitably have been a finding that Ms Steel owed NRAM a duty of care. Insofar as my approach involvesaccepting that greater weight ought to have been attached to certain factors, I should confirm that I agree with Mr Clancy that this is not a case where weight depended on factors only available to the Lord Ordinary. Indeed, where considerations of weight have arisen, they are in relation to matters of fact which were largely not in dispute. [55] I would, accordingly, allow the reclaiming motion to the extent of sustaining the second plea-in-law for the pursuers, finding them entitled to damages of £369,811.18 and reserving, meantime, all questions of interest and expenses. LORD BRODIE [56] I have had the considerable advantage of seeing, in draft, the opinion of your Ladyship in the chair. Your Ladyship there sets out the circumstances in which the pursuers (referred to in the pleadings as “NR”) seek damages for what is alleged was a negligent misrepresentation contained in the email sent by the first defender (referred to in the pleadings as “MsSteel”) on 22March 2007.

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2016 S.C.L.R.

NRAM Plc v Steel (IH)

753

[57] The email is quoted and then summarised in article VI of condescendence.The summary characterises the email as containing: “[T]he explicit representation by the borrower’s solicitor, upon which NR were entitled to place reliance, that the whole loan was to be redeemed as part of the sale transaction and that, accordingly, NR were required to execute and return full discharges of the securities held by them.” [58] It is averred in article XIII of condescendence that at least two of the statements in the email were false, as the first defender ought to have known. These were: “the whole loan is being paid off for the estate” and “I have a settlement figure for (the whole loan being paid off)”. [59] Based on the terms of the email and the draft discharges attached to it, the pursuers aver at article VIII of condescendence that the responsible members of NR’s staff were misled into believing that the first defender would repay or arrange the repayment of the whole borrowings on receipt by her of the executed discharges and would not deliver the discharges to the purchasers of Unit1 or permit the discharges to be registered without effecting or arranging payment of the whole borrowings.If they had not been misled in this way the responsible members of staff would not have executed or returned the discharges. [60] The pursuers’ averments in support of the proposition that the misrepresentation contained in the email was negligent are found in article XIV of condescendence. They are as follows: “The misrepresentations were made negligently. The information contained in the email was given to NR with the intention that it be acted upon by them.They relied upon it in executing and delivering to Bell & Scott the discharges provided to them. But for the misrepresentation, NR would have granted no more than a partial discharge for Unit 1.In those circumstances, NR would have retained their security over Units 2 and 4 and would have been able, if necessary through enforcement of those securities, to recover the outstanding loan.Separatim in requesting the execution and delivery of the discharges in the circumstances in which she did, Ms Steel specifically undertook a responsibility to NR, independent of her status as solicitor for the borrower, not to release the discharges except in exchange for a sum sufficient to redeem these securities in full.Ms Steel was exercising professional skill as a solicitor when she sent the email and the draft discharges.NR relied on the information contained therein as a matter for which Ms Steel had assumed personal responsibility.Ms Steel was aware, or at least ought to have been aware, that such reliance by NR was likely. Said assumption of responsibility gave rise to a duty of care on her part, owed to NR, which she thereafter breached by releasing the discharges without receiving in exchange a sum sufficient to redeem the outstanding loan.” What appears in the sentence beginning “Separatim” is what the Lord Ordinary referred to as the pursuers’ secondary case. The Lord Ordinary’s rejection of the secondary case has not been reclaimed against.The other averments were available to instruct what the LordOrdinary referred to as the pursuers’ primary case.It was with the primary case that the reclaiming motion was principally concerned.In addition the pursuers take issue with the Lord Ordinary’s assessment of damages. [61] After proof, the Lord Ordinary found that the statement that “the whole loan is being paid off for the estate and I have a settlement figure for that” was indeed false and that the first defender had no basis for making it. In particular the first defender had not been instructed by her client, HCL,

5343.indd 753

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754 A

5343.indd 754

NRAM Plc v Steel (IH)

2016 S.C.L.R.

that the whole loan was being paid off. Thus, the misrepresentation was not of the nature of a transmission of information coming from the client.Rather, its source was the first defender;it was her misstatement.The Lord Ordinary accepted that the first defender expected the pursuers to check matters before they complied with any request which she made, but he equally accepted that she knew that she was writing to NR’s case management team and not to solicitors.He found that the pursuers had executed the discharges as a result of the head of the pursuers’ loan review team reading and acting on the email. Accordingly, reliance on the first defender’s misrepresentation with resulting loss was established. [62] What the Lord Ordinary did not find established was that it was reasonable for a bank in the position of the pursuers to rely on the misrepresentation and that a solicitor in the position of the first defender would reasonably foresee that such a bank would rely on the information contained in the email without carrying out such a check.He expresses the view that any prudent bank taking the most basic precautions would have checked the information provided by seeking clarification from the first defender and/or looking at their file.It followed, given the pursuers’ reliance was unreasonable and the resulting loss was unforeseeable, that in the opinion of the Lord Ordinary the first defender had not owed a duty of care to the pursuers and that, inaccurate and inexplicable as the terms of the email had been, they did not amount to a negligent misrepresentation. [63] The pursuers, and now reclaimers, say that in concluding that it was not reasonable for the pursuers to rely on the misrepresentation and not reasonably foreseeable that they would do so, the Lord Ordinary erred. [64] I would see it as useful to identify why the pursuers say that is so, in other words what precisely were the errors of which the pursuers maintain the Lord Ordinary was guilty. The pursuers invite this court to conclude that the Lord Ordinary was wrong in his evaluation of the facts. Senior counsel for the defenders reminded us, under reference to what LordHoffmann had said in Piglowska v Piglowski, p.1372 and Biogen Inc v Medeva plc, p.45, and what LordHamilton had said in Hamilton v Allied Domecq plc, p.242, about the need for appellate courts to be cautious in reversing evaluations of primary fact by judges at first instance who have heard the relevant evidence. In responding, senior counsel for the pursuers submitted that whether something was reasonably foreseeable was a question of mixed fact and law: United Central Bakeries Ltd v Spooner Industries Ltd, para.38. Senior counsel explained that there was no challenge to the Lord Ordinary’s findings in fact. It was “the legal parts” that he had got wrong. I would like to tease that out. I shall have to return to this point but it appears to me that unless the Lord Ordinary can be said in some way to have been wrong in deciding as he did, it is not open to the Inner House to reverse his decision. [65] For present purposes the only operative ground of appeal is the pursuers’ ground of appeal1, as developed in their note of arguments. It is the pursuers’ contention, as set out there, that the Lord Ordinary erred in failing to accede to their submission that the first defender owed the pursuers a duty to take reasonable care that the statements made in the critical email were accurate. That general proposition is then particularised in a number of respects in the following subparagraphs of the ground of appeal. Insofar as the subparagraphs specify errors on the part of the Lord Ordinary they are:the Lord Ordinary failed to take into account relevant factors in the pursuers’ favour et separatim to give sufficient weight to factors which were material to any consideration of whether a duty of care arose (subpara.1.4); the conclusions

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2016 S.C.L.R.

NRAM Plc v Steel (IH)

755

reached by the Lord Ordinary at para.78 of his opinion that it was not reasonable for a bank in the position of the pursuers to rely on the misrepresentations without checking its accuracy and that a solicitor in the position of the first defender would not foresee that such a bank would reasonably rely on that information without a check was not supported by a comprehensive analysis of the surrounding circumstances and, moreover, was inconsistent with his finding at para.81 that the pursuers’ conduct was not blameworthy (subpara.1.5);the LordOrdinary’s statement at para.78 that, “Any prudent bank taking the most basic precautions would have checked the information provided by seeking clarification from the first defender and/or looking at their file” was unsupported by any evidence whatsoever about what such a bank would have done in the circumstances (subpara.1.6); and in assessing whether a duty of care existed the Lord Ordinary has primarily focused on the assumption of responsibility test rather than the threefold test and in particular the thirdlimb of that test (subpara.1.7). In the pursuers’ written note of arguments there are set out what are there described as the pursuers’ “principal criticisms” of the LordOrdinary’s approach.These are: (1) a failure to notice and give effect to the extraordinary circumstance that in making what was a misrepresentation the first defender was acting contrary to her instructions; (2) an over-reliance on the assumption of responsibility test to the near exclusion of the threefold test; and (3) a failure to apply the assumption of responsibility test properly in the exceptional circumstances of this case. [66] I do not see in these various references to error on the part of the Lord Ordinary a suggestion that he got the applicable law wrong. If that were to be suggested, I would be unable to agree.In the course of his submissions senior counsel for the pursuers took us through what I took him to consider to be the salient points. I did not understand them to be controversial. The authorities disclose three tests which have been used in deciding whether in a particular case a duty of care to avoid economic loss was owed by one party to another.The tests are as follows: (1) voluntary (in the sense of conscious, considered or deliberate) assumption or deemed voluntary assumption of legal responsibility for what was said or done; (2) the threefold test; and (3) incremental development from an established category or fact situation: Customs and Excise Commissioners v Barclays Bank plc, LordBingham, p.189G, Lord Walker, p.210C. The Lord Ordinary understood that, as can be seen from para.62 of his opinion.The assumption of responsibility test is to be applied objectively; it is not dependent on the intentions of the person who may, by reason of the whole circumstances, be deemed as a matter of reasonable inference to have assumed responsibility for what was said or done:Customs and Excise, Lord Bingham, p.190H, LordHoffmann, p.199C. Again, the Lord Ordinary understood that para.63. Senior counsel for the pursuers criticised the Lord Ordinary for the formulation “the first defender’s view as to whether or not she was assuming responsibility is not determinative”. According to senior counsel the first defender’s view was simply irrelevant.With respect to senior counsel I prefer the Lord Ordinary’s formulation. It accords with the way the matter was put by LordBingham in Customs and Excise at p.190H (“is not answered by consideration of what the defendant thought or intended”) and had the evidence disclosed that the firstdefender thought that she was assuming responsibility I certainly would not have dismissed that as irrelevant. [67] A particular class of case is where it is claimed that a solicitor owed a duty of care to a party on the other side of a transaction.The general rule is that there can be no such duty: Gran Gelato Ltd v Richcliff Ltd, p.570D; Frank

5343.indd 755

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756 A

5343.indd 756

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2016 S.C.L.R.

Houlgate Investment Co Ltd v Biggart Baillie LLP (2010) at p.533, (2012) at p261H. However, while the court should be slow to find that the solicitor had assumed a duty of care to the other party to the transaction, the general rule is subject to exceptions: Midland Bank v Cameron, Thom, Peterkin & Duncans at pp.614E and 616D.The threetests identified by LordBingham may provide a tool in identifying whether a case is exceptional: Dean v Allin & Watts, p.259. It may be that the circumstances are such that, properly speaking, the rule does not apply.One such circumstance is where the solicitor, in doing or saying what she does or says, is not acting for her client and, in a case where what is in issue is a representation, the representation is therefore to be regarded as her representation and not that of the client. Again, all that is acknowledged by the Lord Ordinary at paras 64 and 66. [68] While it may not be that the pursuers argue that the Lord Ordinary got the applicable law wrong, I do take them to argue that he went wrong in how he applied the law. I would like to look at the ways in which that argument was developed. At subpara.1.7 of the grounds of appeal and number (2) of the principal criticisms in the note of arguments the pursuers complain that the Lord Ordinary primarily focused on the assumption of responsibility test rather than the threefold test, and that he was guilty of an over-reliance on the assumption of responsibility test to the near exclusion of the threefold test. I would accept that the Lord Ordinary did indeed focus on the assumption of responsibility test. In my opinion, he was entitled if not obliged to do so. Senior counsel for the pursuers drew a number of propositions from his consideration of Customs and Excise: the assumption of responsibility test should be applied flexibly whether on its own or as a means of cross-checking in order to determine whether a particular outcome is sensible and just; it is not a matter of selecting one of the threetests and applying it to the letter, they are all available; and in deciding whether there is a duty of care it is a matter of looking at the detailed circumstances of the case, the relationship between the parties and the underlying legal and factual situation. I have no difficulty with any of these propositions.The “tests” are high-level, abstract and overlapping ways of thinking about the question of whether, in a particular factual situation, the law should impose a duty of care on a particular person in respect of a particular action or statement to avoid another person suffering purely economic loss. That said, one test may appear to be more apposite in certain circumstances than another. As Lord Hoffmann put it in Customs and Excise, p.198H, “discrimination is needed to identify the factual situations in which they provide useful guidance”. Where what is in issue is making a statement or giving advice it might be thought that concentration on whether there had been an assumption of responsibility for the accuracy of what was said was very much to the point. Speaking generally, in Customs and Excise at p.213C LordMance describes assumption of responsibility as being “on any view a core area of liability for economic loss”. Lord Glennie found assumption of responsibility a useful means of analysis in Frank Houlgate Investments Co Ltd v Biggart Baillie LLP, paras 23–25. In the present case there is a particular reason why the Lord Ordinary should have concentrated on assumption of responsibility and that is, as appears from article XIV of condescendence, the fact that it is the only basis upon which negligence is specifically pled. That being so, I would find it difficult to criticise the LordOrdinary for asking, as he did at para.66 of his opinion, whether the firstdefender assumed responsibility for the information she transmitted by email.That is what the pursuers’ pleadings quite specifically required him to do.While the Lord Ordinary felt able to resolve the duty of care question by reference to the assumption of

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responsibility test, he also gave consideration to the other two tests, as senior counsel for the pursuers had invited him to do. He rejected Dean v Allin & Watts as providing the necessary platform for incremental development (Lord Bingham’s third test). It may have been implicit in the submissions of senior counsel for the pursuers that the Lord Ordinary had been wrong to do so but if that is so I would disagree.While analogies can no doubt be drawn between the facts in Dean v Allin & Watts and the facts in the present case, (inevitably) the facts are not the same.The Lord Ordinary viewed Dean v Allin & Watts as involving a very different scenario from that presented by the case before him. He was entitled to do so.The Lord Ordinary appreciated that senior counsel for the pursuers was also relying on the threefold test. He had regard to it, as he had been invited to do.The first limb of the test is whether loss to the claimant was a reasonably foreseeable consequence of what the defendant did or failed to do. As the Lord Ordinary did not find that a solicitor in the position of the first defender would foresee that a bank in the position of the pursuers would reasonably rely on the information in the email without checking it, the requirement of the first limb of the threefold test was not met and therefore, as the Lord Ordinary puts it at para.78 of his opinion: “It follows that whether the test applied is the threefold one in Caparo, or the assumption of responsibility test, the pursuers primary case fails.” [69] I pause to observe that it was not argued that if the Lord Ordinary had been entitled to conclude that the pursuers’ reliance on the first defender’s misrepresentation was not reasonable and that the first defender could not reasonably foresee that the pursuers would rely on her misrepresentation, it was nevertheless wrong of him to find that there had been no assumption of responsibility and therefore no duty of care. In this context, “assumption of responsibility” is a concept or conclusion arrived at by consideration of a variety of factors rather than a description of anyone’s state of mind. Speaking of it in Customs and Excise at p.191C Lord Bingham quoted Lord Slynn in Phelps v Hillingdon London Borough Council at p.654: “The phrase means simply that the law recognises that there is a duty of care. It is not so much that responsibility is assumed as that it is recognised or imposed by law.” However, within the concept, as with other formulations of the duty of care, there is the necessary component of reasonable foreseeability of consequent harm to the other party and, accordingly, where what is in issue is a statement, reasonable reliance by the other party as to its accuracy: Customs and Excise, Lord Hoffmann, p.199D, Charlesworth and Percy On Negligence (13th edn), para.2-194. That the misstatements were attributable to the first defender and not to her client takes the pursuers’ case forward but they must further establish that she should be held to have accepted legal responsibility for the accuracy of what appeared in the email and that involves consideration of reasonable foreseeability of harm and reasonable reliance. [70] At subpara.1.4 of the grounds of appeal the pursuers list seven factors which they contend the Lord Ordinary failed to take into account or at least give sufficient weight to.They were seven in number:(1) the community of interest between the parties in facilitating the sale of the security subjects in exchange for the appropriate redemption figure, this not being an adversarial process and not far removed from the circumstances of Dean v Allin & Watts; (2) the degree of trust engendered from past transactions; (3) the unequivocal nature of the operative statement within the body of the email which was of far greater significance than any inconsistency in the subject heading; (4) the fact that the first defender could have qualified the information she tendered with the use of introductory words such as, “Based on the information provided to

5343.indd 757

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758 A

5343.indd 758

NRAM Plc v Steel (IH)

2016 S.C.L.R.

me by HCL my understanding is . . . .” or the like but did not do so; (5) the fact that the information was conveyed in an unequivocal and unqualified manner; (6) the unavoidably brief period within which to undertake checks if the request was to be complied with in a manner consistent with the clear expectation that executed discharges would be made available prior to settlement of the transaction, it being clear from the terms of the email that, for this sale transaction, the first defender expected signature and return of the discharges “asap”; and (7) crucially, the accepted fact that the first defender had no instructions to seek a full discharge and did not possess the full redemption figure. The pursuers attach particular importance to factor7. Subpara.1.4 goes on to aver that the first defender had no reason to think that the loan was being discharged or that she had a full redemption figure. She could offer no explanation when giving evidence for either of those misrepresentations. These, the pursuers aver, are factors which are highly relevant to the existence of the duty of care even if they were not known or appreciated by parties at the time whereas the Lord Ordinary, having recognised this feature of the case at para.66 of his opinion, gives little or no effect to it in his reasoning. Factor7 is further emphasised by principal criticism (1) in the note of arguments:failure on the part of the Lord Ordinary to notice and give effect to the extraordinary circumstance that in making what was a misrepresentation the first defender was acting contrary to her instructions. [71] With the possible exception of factor 6, the factual basis and materiality of which seem to me to be doubtful, I do not accept that the Lord Ordinary failed to take into account the sevenfactors listed in the pursuers’ grounds of appeal and note of arguments. As for factor 1, I am not persuaded that there was a “community of interest” between the parties which was any different from the usual respective interests of parties to a commercial agreement that it be executed according to its terms, but for present purposes what is important is that at para.65 the Lord Ordinary considered the proposition that the making of the representation in question involved the advancement of the common interest of HCL and the pursuers at HCL’s behest. True, he did not see the facts of the present case as being equivalent to the arrangements in Dean v Allin & Watts (a conclusion I would see him as being entitled to come to) but it cannot be said that he ignored this supposed consideration. Factor2 is the degree of trust engendered from past transactions. At para.44 the Lord Ordinary records the pursuers’ reliance in argument on the circumstance that the first defender was a solicitor whom the pursuers had dealt with before.At para.73 the fact that the email came from “a solicitor—a trustworthy source” is specifically referred to by the Lord Ordinary as something which favours the pursuers’ contention that there was the requisite foreseeability and reasonable reliance.It cannot therefore be said that he failed to take this factor into account.Factors3, 4 and 5 all point in one way or another at the clear and unqualified nature of the text of the email, while acknowledging its inconsistency with the subject heading. I accept that the text was clear and unqualified, as did the Lord Ordinary. It also being inaccurate is what made it a misrepresentation. Once the Lord Ordinary had accepted that, as he does at paras 52 and 54, I see no need or purpose for him to labour the matter. Had the email been less unequivocal or in some way qualified, a question would have arisen as to whether it was indeed a misrepresentation, but once that question is decided there is little need to look further at the precise terms of the text.As for factor6, while I accept that it can be said that there was an unavoidably brief period within which to undertake any checks on the accuracy of what appeared in the email and that the Lord Ordinary does not make

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specific reference to that fact, I do not understand that the shortness of the period impacted either on the possibility or the practicality of carrying out a check. There is the unchallenged finding of fact at para.74 of the Lord Ordinary’s opinion that the critical information was factual and concerned matters that the pursuers could have checked very easily and very quickly. Another way of expressing the idea that if the first defender’s request was to be complied with that left a brief period for checking, is to say that there was a degree of urgency inherent in the first defender’s request. That is precisely how the submission of senior counsel for the pursuers is recorded at para.44 of the Lord Ordinary’s opinion and at para.73 the Lord Ordinary expressly takes the degree of urgency in the tone of the email into account as a factor in the pursuers’ favour. In this context the only relevance of an urgent tone is that it called for action at short notice with all the consequences of that. I would accordingly see this matter as having been taken into account by the Lord Ordinary. As far as factor 7 (absence of authority) is concerned, the Lord Ordinary notes at para.54 that not only were the critical misstatements false but that the first defender had no basis for making them and had certainly not been instructed to do so. At para.66 he notes that as the statements did not emanate from HCL, their only identified source was the first defender. That the first defender did not have the information she claimed to have is underlined by the Lord Ordinary at para.67. Having elaborated on the first defender’s absence of authority at paras 64, 68 and 69, at para.70 the Lord Ordinary explains that he is approaching the issue he has to decide assuming that because of the first defender’s lack of authority the pursuers would have no remedy against HCL (while at the same time assuming in their favour that the pursuers have no alternative remedy against the first defender based on her absence of authority should they have no remedy based on negligence). Accordingly, I do not see there to be any question of the Lord Ordinary failing to notice that the first defender was acting contrary to her instructions. Nor do I see any failure on his part to have regard to the fact. There was no question of the first defender benefiting from the general rule stated in Gran Gelato and referred to by the Lord Ordinary at para.64 that a solicitor acting on one side of a conveyancing or security transaction does not usually owe a duty to the party on the other side, and at paragraph at para.66 the Lord Ordinary explains that as this is not a case where the first defender was transmitting information from her client, she cannot escape imposition of a duty of care on the basis that she was no more than an agent. [72] I would simply reject the pursuers’ contention, put forward at subpara.1.5 of the grounds of appeal, that the Lord Ordinary’s finding at para.81 of his opinion that had he found the pursuers’ reliance on the misstatements to have been reasonable he would not have held the pursuers blameworthy for the purposes of determining the defenders’ pleas of sole fault and contributory negligence, was inconsistent with his conclusion that it was not reasonable for the pursuers to rely on the information provided in the email from the first defender. What the Lord Ordinary decided, on the basis of his evaluation of the primary facts, was that a notional reasonable bank in the position of the pursuers would have checked on the accuracy of the relevant information before acting upon it. On that assessment, in acting as they did the pursuers acted unreasonably. At para.81 the Lord Ordinary is addressing a hypothetical state of affairs which is contrary to his evaluation of the facts. On this contrary evaluation it would be reasonable for the notional bank not to check and therefore in not checking the pursuers would have to be regarded as having acted reasonably. I see nothing inconsistent in the Lord Ordinary’s analysis.

5343.indd 759

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760 A

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2016 S.C.L.R.

[73] At subpara.1.6 of the grounds of appeal the pursuers complain that the LordOrdinary’s statement at para.78 of his opinion that: “Any prudent bank taking the most basic precautions would have checked the information provided by seeking clarification from the first defender and/or looking at their file” was unsupported by any evidence whatsoever about what such a bank would have done in the circumstances. In submissions senior counsel for the pursuers maintained that the Lord Ordinary’s statement was unwarranted. Because he was sitting as a commercial judge did not put the LordOrdinary in a privileged position when it came to matters of banking practice. In my opinion the worst the Lord Ordinary is guilty of in what he says at para.78 is a slight degree of rhetorical excess.There had indeed been no evidence of banking practice. There was no need for such evidence. As far as reasonable foreseeability and reasonable reliance are concerned, which, as the Lord Ordinary observes at para.72, are to some extent two sides of the same coin and certainly interconnected, I would have thought that any such evidence would have been irrelevant unless it was being maintained that the first defender had special knowledge about what bankers do or do not do, and which therefore would have informed what she would have reasonably anticipated as being the response to her email. By “special knowledge” I mean something that would not be apparent to the reasonable man on the bench without the leading of evidence. I accept, as I understood senior counsel for the pursuers to submit, that a judge, even a commercial judge, is not an expert on banking practice who can draw on such expertise without hearing evidence, but that is not what the Lord Ordinary did in the present case. At para.78 of his opinion the LordOrdinary sets out his conclusions based on his evaluation of the evidence from the perspective that he was required to adopt, that is his experience as a reasonably well-informed man of the world. What he says in the first twosentences of the paragraph is this: “In the whole circumstances I have no real difficulty in concluding that it was not reasonable for a bank in the position of the pursuers to rely on the misstatement information without checking its accuracy;and that a solicitor in the position of the first defender would not foresee that such a bank would reasonably rely on that information without carrying out such a check. Any prudent bank taking the most basic precautions would have checked the information provided by seeking clarification from the first defender and/or looking at their file.” As I read the second sentence the LordOrdinary is doing no more than restating, in slightly stronger terms, what he has concluded in the previous sentence which was that it was not reasonable for a bank in the position of the pursuers to rely on the misstatement information without checking its accuracy.That was a matter that he had to make a decision about and one that as the reasonable man on the bench that he was equipped to make. [74]That leaves what I would see as one contention, albeit it is expressed by the pursuers in a variety of ways in the grounds of appeal and note of arguments: that the conclusion stated by the LordOrdinary in the first sentence of para.78 of his opinion was wrong because it was reached without giving sufficient weight to the seven factors listed at subpara.1.4 of the grounds of appeal or because it was not supported by a comprehensive analysis of the surrounding circumstances or because it resulted from a failure to apply the assumption of responsibility test properly in the exceptional circumstances of this case. That brings one, as it appears to me, to what is the nub of this reclaiming motion and that is whether this court, sitting in its appellate

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capacity, should entertain and, if so, sustain, an argument to the effect that what the judge at first instance who heard the evidence found not to have been reasonable was, on a proper evaluation of the primary facts, reasonable, with the result that the first defender should be held to have assumed legal responsibility for the accuracy of the relevant statement of fact, that being that her client proposed to pay off the whole of the outstanding loan. [75] As senior counsel for the defenders pointed out, the UK Supreme Court has recently provided serial reminders to this court of the limited power of an appellate court to reverse the judge who has heard the evidence: McGraddie v McGraddie, paras 1–4, Henderson v Foxworth Investments, paras 61–68, and Royal Bank of Scotland plc v Carlyle, paras 20–22. As LordHodge put it in Royal Bank of Scotland, “deciding the case as if at first instance is not the task assigned to . . . the Inner House”. However, this trilogy of cases, and the leading case of Thomas v Thomas on which they draw, are not in point in that they relate to review of primary fact. Neither, strictly speaking, is Piglowska, to which senior counsel for the defenders also referred.That case related to review of the exercise of a discretion. However, in Piglowska at p.1372D LordHoffmann referred to what he had said in Biogen Inc v Medeva plc, which, although Biogen concerned the validity of a patent, I would see as clearly apposite to the present case: “The question of whether an invention was obvious had been called ‘a kind of jury question’ . . . and should be treated with appropriate respect by an appellate court.It is true that in Benmax v Austin Motor Co Ltd [1955] A.C. 370, this House decided that, while the judge’s findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, were virtually unassailable, an appellate court would be more ready to differ from the judge’s evaluation of those facts by reference to some legal standard such as negligence or obviousness. In drawing this distinction, however, Viscount Simonds went on to observe, at p.374, that it was ‘subject only to the weight which should, as a matter of course, be given to the opinion of the learned judge’. The need for appellate caution in reversing the judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vérité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation. It would in my view be wrong to treat Benmax as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of witnesses is involved. Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge’s evaluation.” HoffmannLJ, as he then was, was to similar effect in Re Grayan Building Services Ltd (a director disqualification case) at p.254: “The judge is deciding a question of mixed fact and law in that he is applying the standard laid down by the courts (conduct appropriate to a person fit to be a director) to the facts of the case. It is in principle no different from the decision as to whether someone has been negligent or whether a patented invention was obvious: see Benmax v Austin Motor Co Ltd, [1955] A.C. 370. On the other hand, the standards applied by the law

5343.indd 761

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2016 S.C.L.R.

in different contexts vary a great deal in precision and generally speaking, the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge’s decision. So in George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd, Lord Bridge of Harwich was considering the application of the test of ‘fair and reasonable’ in the Unfair Contract Terms Act 1977. He said, at pp.815–816:

“ ‘It would not be accurate to describe such a decision as an exercise of discretion. But (such) a decision under any of the provisions referred to will have this in common with the exercise of a discretion, that, in having regard to the various matters to which . . . section 11 of the Act of 1977 direct[s] attention, the court must entertain a whole range of considerations, put them in the scales on one side or the other, and decide at the end of the day on which side the balance comes down. There will sometimes be room for a legitimate difference of judicial opinion as to what the answer should be, where it will be impossible to say that one view is demonstrably wrong and the other demonstrably right. It must follow, in my view, that, when asked to review such a decision on appeal, the appellate court should treat the original decision with the utmost respect and refrain from interference with it unless satisfied that it proceeded upon some erroneous principle or was plainly and obviously wrong.” ’

5343.indd 762

[76] I return then to the interlinked should-this-court-entertain and shouldthis-court-sustain questions which I posed earlier. I do not demur from the observation of your Ladyship in the chair that factors to which she refers weigh in favour of attributing an assumption of responsibility to Ms Steel. In para.17 of their note of arguments the pursuers cite two judicial dicta which I would see as having particular rhetorical force.They are taken from a passage in the judgment of SirDavid Nicholls VC in Gran Gelato which is referred to by the Lord Ordinary at para.81 of his opinion. The first is: “No man can complain that another has too implicitly relied on the truth of what he himself has stated”, Reynell v Sprye, Lord Cranworth atp.710.The second is: “No one is entitled to make a statement which on the face of it conveys a false impression and then excuse himself on the ground that the person to whom he made it had available the means of correction” Nocton v Lord Ashburton, LordDunedin at p.962. Had I been sitting at first instance in this case these and other considerations might have persuaded me that the first defender should be regarded as having assumed legal responsibility for the factual accuracy of her statements and therefore to have owed a duty of care towards the pursuers. However, I am not sitting at first instance. I have not been persuaded that the LordOrdinary, who was sitting at first instance, has made any error in his approach to the evaluation of what are unchallenged findings of primary fact. In such a situation I do not go the distance of saying that this court could not reverse a first instance judge on the result of such an evaluation but, agreeing with what was said by LordHoffmann in Piglowska; Biogen; and Grayan, I consider that it should be hesitant about doing so. Much depends on the precise nature of the evaluation that the judge at first instance has been required to carry out and the material he has had available to him for that purpose. However, in the present case I am not prepared to substitute my judgment for that of the Lord Ordinary on the critical issues.My (overlapping) reasons are as follows. First, the Lord Ordinary

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was the primary decision-maker; it was his decision to make.The function of the Inner House when hearing a reclaiming motion after proof is to review the Lord Ordinary’s decision and to reverse it and substitute their own decision if, but only if, they find the Lord Ordinary’s decision to have been in some sense of the word, wrong. In this case I am not satisfied that the Lord Ordinary was wrong. Second, what the Lord Ordinary had to decide, whether the first defender owed a duty of care, falls to be determined by reference to one or more rather vague standards through a process of weighing up a variety of competing considerations. Where, as I consider is so in this case, the Lord Ordinary’s approach to his decision-making cannot properly be criticised, I have no basis for supposing that my judgment and therefore my decision on the matter would be in any way better than that of the Lord Ordinary. Third, as compared with the Lord Ordinary I am at a disadvantage. I did not hear the evidence. He did. As Lord Hoffmann explains, evidence is never adequately reflected on the written page and loses much of its associated subtleties once reduced to findings in fact. A judge who has heard evidence is likely to have gained an impression of or feel for the case which is difficult to articulate but which nevertheless can legitimately inform his decision-making. That is not available to an appellate court. Finally, at risk of repetition, while I see that he might have taken a different view, I do not find the Lord Ordinary’s decisions on the key issues of reasonable foresight and reasonable reliance to be, in the words of Lord Bridge in George Mitchell (Chesterhall) Ltd, “plainly and obviously wrong”. [77] On the question of damages I respectfully agree with your Ladyship in the chair. [78] I would accordingly refuse the reclaiming motion.

D LADY CLARK OF CALTON [79] In this case I am grateful to your Ladyship in the chair and Lord Brodie for giving me the opportunity to consider their opinions in draft. I am content to agree with the disposal proposed by your Ladyship in the chair and adopt the reasoning. In that reasoning, particularly in paras 46–51, the errors in the approach of the LordOrdinary are clearly identified. For the pursuers: Clancy QC, Hawkes, instructed by TLT LLP, Solicitors, Edinburgh. For the first defender: Duncan QC, Paterson, instructed by Cameron McKenna LLP, Solicitors, Edinburgh.

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A COURT OF SESSION

19 February 2016

Inner House (Second Division) Lord Justice Clerk (Carloway), Lady Dorrian and Lord Drummond Young B

GORDON ROSS

Petitioner (Reclaimer)

against LORD ADVOCATE

Respondent

Human rights—Judicial review—Refusal to publish specific guidance relating to prosecution of individuals assisting suicide—Whether breach of European Convention for Protection of Human Rights and Fundamental Freedoms, art.8 Judicial review—Human rights —Refusal to publish specific guidance relating to prosecution of individuals assisting suicide—Whether breach of European Convention for Protection of Human Rights and Fundamental Freedoms, Art.8

Article 8 of the European Convention for Protection of Human Rights and Fundamental Freedoms (ECHR) provides: “Right to respect for private and family life (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.”

The petitioner, who was aged 65, suffered from a number of medical conditions such that he was unable to live independently. He lived in a care home and required assistance from others with all aspects of daily living. He was mentally unimpaired. He anticipated however that there would come a time when he would not wish to continue living and would require assistance to commit suicide because of his physical state. He was apprehensive that anyone who assisted him would be liable to prosecution and felt that he might be forced to take action to end his life himself earlier than he would otherwise wish to in order to avoid living on in an undignified and distressing condition. He applied for judicial review of the respondent’s failure or refusal to publish specific guidance on the facts and circumstances which would be taken into account in deciding whether to prosecute an individual who assisted another to commit suicide. He maintained that the failure or refusal to do so was a breach of his right to respect for his private life under art.8, ECHR. The Lord Ordinary dismissed the petition holding that the prosecution policy was sufficiently accessible and foreseeable and there was no evidence that it was being exercised in an arbitrary manner and any attempt to assist suicide, which amounted to an offence under the law of homicide would be very likely to be prosecuted. The petitioner reclaimed. 764

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2016 S.C.L.R.

5343.indd 765

Ross v Lord Advocate (IH)

765

Counsel for the petitioner argued that the position in Scotland was the same as that of England and Wales and the court should have ordered the respondent to produce offence specific guidance as had been done following the case of R (Purdy) v Director of Public Prosecutions. The petitioner had written to the respondent to request specific guidance on whether anyone who assisted him to commit suicide would be prosecuted. The current policy meant that anyone who assisted the petitioner to commit suicide would be liable to prosecution for murder or culpable homicide. The respondent therefore unlawfully interfered with the effective exercise of the petitioner’s fundamental right. Art.8(1) encompassed the right to respect for the way in which, and when, an individual wished to end his life provided that he was in a position freely to form his own view and the threat of criminal prosecution constituted an interference with that right.The lack of guidance meant that the proportionality of the interference could not be assessed. There was no margin of appreciation on legality. The court was being asked to assess whether the respondent was carrying out his duty in a Convention compatible manner. Counsel for the respondent submitted that the essential question was whether or not the reasoning of R (Purdy) v Director of Public Prosecutions required an order of the sort the petitioner sought. It did not. The law of homicide in Scotland had a much narrower ambit than that provided by the Suicide Act 1961 in England. The petitioner had confused the question of uncertainty, as to what the law provides, with the discretion left to the respondent to make difficult decisions in particular cases. The petitioner did not seek to challenge the substantive law of homicide. The issue was whether the requirement of legality required the respondent to issue offence specific guidance for that class of homicides which might be regarded as assisted suicides. In any particular case, the respondent had to consider whether there was a sufficiency of evidence and whether the public interest merited prosecution. Held (1) that there was no evidence to support the submission that the law was being applied arbitrarily and the respondent had expressed his policy in a clear manner and it could not be said that he was exercising his discretion in a way which was arbitrary and did not meet the requirements of legality (para.36); and (2) that the interference with the petitioner’s rights was in accordance with the law in terms of art.8(2) applying the test in R (Purdy) v Director of Public Prosecutions (para.37); and reclaiming motion refused.

Cases referred to:

Beghal v Director of Public Prosecutions [2015] UKSC 49; [2016] A.C. 88; [2015] 3 W.L.R. 344; [2016] 1 All E.R. 483 Carter v Canada [2015] 1 SCR 331; [2015] S.C.C. 5 Gillan v United Kingdom [2010] ECHR 28; (2010) 50 E.H.R.R. 45 Gross v Switzerland [2013] ECHR 429; (2014) 58 E.H.R.R. 7 Haas v Switzerland [2011] ECHR 2422; (2011) 53 E.H.R.R. 33 Kafkaris v Cyprus [2008] ECHR 143; (2009) 49 E.H.R.R. 35; (2008) 25 B.H.R.C. 591 Kane v HM Advocate [2009] HCJAC 8; 2009 S.C.C.R. 238; 2009 S.L.T. 137 Khaliq v HM Advocate, 1983 SCCR 483; 1984 J.C. 23; 1984 S.L.T. 137 Koch v Germany [2012] ECHR 1621; (2013) 56 E.H.R.R. 6 Law Hospital NHS Trust v Lord Advocate, 1996 S.C. 301; 1996 S.L.T. 848 Lord Advocate’s Reference (No 1 of 2001), 2002 S.C.C.R. 435; 2002 SLT 466 MacAngus v HM Advocate [2009] HCJAC; 2009 S.C.C.R. 238; 2009 S.L.T. 137 Millar v Dickson [2001] UKPC D 4; 2001 S.C.C.R. 741; 2002 S.C. (P.C.) 30

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2016 S.C.L.R.

Montgomery v HM Advocate, 2000 S.C.C.R. 1044; 2001 S.C. (P.C.) 1; 2001 S.L.T. 37 MM v United Kingdom [2012] ECHR 1906 Nicklinson v United Kingdom [2015] ECHR 709; (2015) 61 E.H.R.R. S.E.7 Pretty v United Kingdom [2002] ECHR 427; (2002) 35 E.H.R.R. 1 R (Nicklinson) v Ministry of Justice [2014] UKSC 38; [2015] A.C. 657; [2014] 3 W.L.R. 200; [2014] 3 All E.R. 843 R (Purdy) v Director of Public Prosecutions [2009] UKHL 45; [2010] 1 A.C. 345; [2009] 3 W.L.R. 403; [2009] 4 All E.R. 1147 R (T) v Chief Constable of Greater Manchester Police [2014] UKSC 35; [2015] A.C. 49; [2014] 3 W.L.R. 96; [2014] 4 All E.R. 159 Stransham-Ford v Minister of Justice [2015] Z.A.G.P.P.H.C. 230 The Sunday Times v United Kingdom [1979] ECHR 1; (1979–80) 2 E.H.R.R. 245. On 19 February 2016 the following opinions were issued.The full circumstances of the case and the arguments of counsel are to be found in the opinion of the Lord Justice Clerk. LORD JUSTICE CLERK [1] This is a reclaiming motion (appeal) from a decision of the Lord Ordinary on a petition for judicial review of the respondent’s failure or refusal to publish specific guidance on the facts and circumstances which he would take into account in deciding whether to prosecute an individual who assists another to commit suicide.The petitioner maintains that this failure or refusal is a breach of his right to respect for his private life under art.8 of the European Convention on Human Rights [Convention]. [2] Article 8 provides: [His Lordship quoted the article as set out above and continued:] The art.8 right is a qualified one. The state may legitimately interfere with the general art8(1) right, if the interference is in accordance with the law and in furtherance of one of the specified aims. The petitioner avers that the respondent’s interference with his art.8(1) right is not “in accordance with the law” under art.8(2). The Lord Ordinary disagreed.The reclaiming motion addresses the issues of whether he was correct in doing so. Background

5343.indd 766

[3] The petitioner is aged 65. He suffers from diabetes, heart problems, Parkinson’s disease, and peripheral neuropathy. He suffers episodes of shaking and muscle spasms many times each day. He cannot live independently. He resides in a care home. He requires assistance from others with all aspects of daily living. He is, however, mentally unimpaired. He anticipates that there will come a time when he will not wish to continue living, as he will find his infirmity and consequent dependence on others intolerable. He would require assistance to commit suicide because of his physical state. He is apprehensive that anyone who assisted him would be liable to prosecution. He considers that he may require to take action to end his life himself, sooner than he would otherwise wish to, in order to avoid living on in an undignified and distressing condition. This dilemma causes him uncertainty and anguish. [4] There are some preliminary points of importance about the scope of the petition which the petitioner was keen to stress. First, it does not address the issue of “mercy killing” or euthanasia. It is restricted to acts of suicide which

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Ross v Lord Advocate (IH)

767

require some form of assistance from a third party.Secondly, it does not overtly seek a review of the substantive criminal law, being the common law of murder and culpable homicide.Thirdly, it does not seek to challenge the settled will of Parliament. On two recent occasions, the Scottish Parliament has considered whether to legalise assisted suicide. On both occasions the draft bill was defeated by a significant majority. [5] It was accepted by both parties that art.8(1) was engaged by the petitioner’s circumstances. The petitioner had a right to determine certain aspects of his private life, including the determination of the final moment of his life.That was not to say that the petitioner had a “right to suicide”. The petitioner’s right under art.8(1) could be interfered with under art.8(2), if the requirements of legality and legitimate aim were met. At the hearing before the Lord Ordinary, the petitioner had sought to raise, for the first time, an issue of whether the criminalisation of a person who assisted another to commit suicide was necessary in a democratic society.Prior to that, the focus in the petition, the notes of argument, and the oral submissions had been legality; ie, whether the interference with the art.8(1) right had been in accordance with the law. The petitioner did not revisit the point in the course of the appeal.In any event, it is well established that the interference did have a legitimate aim; viz. the protection of the vulnerable from undue influence, or other acts which could circumvent their will. It is a common thread running through the European Court jurisprudence (Pretty v United Kingdom; Haas v Switzerland; Koch v Germany; Gross v Switzerland; Nicklinson v United Kingdom) and that of the courts in the UK (R (Purdy) v Director of Public Prosecutions; R (Nicklinson) v Ministry of Justice) that, not only is there a legitimate aim to the criminalisation, but also that it is a matter not for the courts but for the legislature to determine.In that regard, the legislature was afforded a wide margin of appreciation. [6] The issue raised is simply whether the interference with the right to determine the manner of a person’s death, by criminalisation of persons assisting in his suicide, is in accordance with the law.The “law” in this context encompasses not only legislation, but also secondary sources, including guidance promulgated by the respondent, such as the Prosecution Code. The Prosecution Code

[7] The respondent has published guidance (the Prosecution Code), which is not offence specific, on the factors which favour, or militate against, prosecution.There is a two-stage test. The first is the evidential stage. This concerns itself with the legal sufficiency of the evidence. The second is the public interest stage.This addresses whether, even if there is a sufficiency, it is in the public interest to prosecute. This involves the exercise of a discretion. The code lists 13 factors to take into account.These include the nature and gravity of the offence, the age and circumstances of the victim, the attitude of the victim, and the motive for the crime. [8] In addition to the code, the respondent has made public statements, specifically related to the prosecution of those who assist another to commit suicide. In particular, in his written response to the Justice Committee regarding the Assisted Suicide (Scotland) Bill, the Lord Advocate made it clear that, when there was a sufficiency of evidence that an individual had caused the death of another, it would be difficult to conceive of a situation in which it would not be in the public interest to prosecute, but each case would be considered on its own facts and circumstances (Written submission to the Justice Committee).

5343.indd 767

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768 A

Ross v Lord Advocate (IH)

2016 S.C.L.R.

Section 2 of the Suicide Act 1961

[9] The petitioner relied heavily on R (Purdy) v Director of Public Prosecutions. In England and Wales, a person who assists the suicide of another commits a specific statutory offence set out in s.2 of the Suicide Act 1961.This provides that a person commits an offence if he does any act which encourages or assists the suicide of another person where that act was intended to have that effect. The offence is a broad one.It encompasses many acts which would not be considered to be a cause of death under the Scots law of homicide.The context of s.2 of the 1961 Act is important. It follows s.1, which decriminalised suicide, and hence attempts at suicide, in that jurisdiction. [10] The claimant in Purdy had sought review of the refusal of the Director of Public Prosecutions [DPP] to publish clear guidance on the facts and circumstances that would be taken into account in determining whether or not to prosecute an individual under s.2 of the 1961 Act, specifically by taking a person to a country where assisted suicide was lawful. It was held that: (i) the claimant’s art.8(1) right was engaged; and (ii) the failure of the DPP to publish guidance was not an interference which was in accordance with the law in terms of art.8(2). The code for Crown prosecutors was not sufficiently accessible and precise as to allow the assisting person to foresee whether or not he would be prosecuted. DPP guidance

[11] The DPP published offence specific guidance (Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide, February 2010) listing 16 factors in favour, and six factors against, prosecution.Whilst the guidance discusses the offence under s.2 of the 1961 Act, it does not mention any overlap with homicide in English law, beyond stating that, where the conduct goes beyond assistance and involves the taking of life (or an attempt to do so), the public interest factors may have to be re-evaluated differently in light of the overall criminal conduct (Policy, para.48). Both the DPP guidance, and the ratio of the decision of Purdy, are silent on the extent to which the law of homicide in England should be subject to the same analysis as a s.2 offence. Lord Ordinary’s decision

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[12] The Lord Ordinary considered that it was clear that art.8(1) was engaged and that the right to respect for private life did encompass respect for an individual’s right to die, particularly to avoid an undignified and distressing death. The Lord Ordinary did not consider that it was necessary to determine whether there was a right to commit suicide, or to be assisted to commit suicide, under the Convention. The only question was whether the interference was in accordance with the law.The Lord Ordinary rejected a submission that necessity was in issue. The point had not been raised in the petition or in the written notes of argument. [13] The Lord Ordinary considered that the interference with the petitioner’s art.8(1) right was in accordance with the law under art.8(2). He noted two well-established principles.First, although the court could review a policy, it was not for the court to dictate the content of that policy (Nicklinson v Ministry of Justice, para.41).A range of policies could satisfy the requirement of clarity. Secondly, the certainty and foreseeability required of a prosecution policy was of a lesser and more indicative nature than that required of a statute which created a criminal offence (Nicklinson v Ministry of Justice, paras 239–241).The Lord Ordinary accepted the approach to legality in R (Purdy) v DPP, but considered that the circumstances before him were different in

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Ross v Lord Advocate (IH)

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three respects. First, s.2 of the 1961 Act had a broad ambit. It would criminalise conduct that could not be prosecuted under the law of homicide in Scotland. Secondly, although there was evidence in Purdy that there was a marked difference between law and practice, there was no equivalent material before him.Thirdly, although the DPP had distanced himself from the guidance in the code for Crown Prosecutors, and had conceded that this general guidance may be of little relevance, in the present case the respondent had not sought to distance himself from the Prosecution Code. He had pointed to the seriousness of the crime as an aspect of the guidance which would carry particular weight. [14] The Lord Ordinary found that the respondent’s prosecution policy was sufficiently accessible and foreseeable.There was no evidence that it was being exercised in an arbitrary manner. There was no suggestion that the substantive law was unclear. The absence of any divergence between law and practice demonstrated that any decision to prosecute would not turn on unpublished factors.There was no basis to conclude that the policy was inaccessible or unclear. The respondent had made his position clear. Any attempt to assist suicide, which amounted to an offence under the law of homicide, would be very likely to be prosecuted, although every case required to be considered on its own facts and circumstances. Finally, there was no suggestion that the behaviour on the part of the respondent was arbitrary. He had expressed his policy and intended to follow it.

Submissions Petitioner

[15] The petitioner submitted that the point in the appeal could be put very shortly. R (Purdy) v DPP had been correctly decided. As the constitutional position of the respondent paralleled that of the DPP, no relevant distinction could be drawn between the two jurisdictions.On that basis, the court should ordain the respondent to produce offence-specific guidance. The need for the DPP to do so in England had not been because of the nature of the offence in s.2 of the 1961 Act, but because assisting a suicide was criminal, as it was equally criminal in Scotland. The issue in Purdy had been that the DPP had a broad discretion on whether to prosecute. The court required him to give guidance on how he would exercise that discretion. The distinction between what would constitute assisted suicide and an intentional killing with the consent of the victim was not clear in Scots law. MacAngus v HM Advocate was not entirely in point. In MacAngus the victim had no intention of committing suicide. What would or would not constitute a break in the causal chain was unclear. [16] The petitioner had written to the respondent to request specific guidance on whether anyone who assisted him to commit suicide would be prosecuted. The respondent had stated that any incident involving a person who assisted another to take his own life would be reported to the procurator fiscal as a deliberate killing of another. It would be dealt with under the law of homicide. The respondent did not differentiate between assisted suicide, where a person was of sound mind but unsound body, and other cases. The respondent’s current policy meant that anyone who assisted the petitioner to commit suicide would be liable to prosecution for murder or culpable homicide. The respondent therefore unlawfully interfered with the effective exercise of the petitioner’s fundamental right. [17] In both Canada and South Africa, the courts had declared that there was a right to assisted suicide which should be protected by law (Carter v

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Canada; Stransham-Ford v Minister of Justice). Art.8(1) encompassed the right to respect for the way in which, and when, an individual wished to end his life, provided that he was in a position freely to form his own view (Pretty v United Kingdom; R (Purdy) v DPP; Haas v Switzerland; Koch v Germany; Gross v Switzerland. The threat of criminal prosecution constituted an interference with the right. [18] The art.8(1) right was not absolute. To be justified, however, any interference had to be in accordance with the law (“legality”). In R (Purdy) v DPP, para.40, it was said that three questions required to be addressed. First, was there a legal basis in domestic law for the restriction.Secondly, was the law sufficiently accessible and precise.Thirdly, was the law being applied in an arbitrary way.A law conferring a discretion was not in itself inconsistent with the legality requirement, provided that the scope of the discretion, and the manner of its exercise, were identified. A discretion should not be expressed in terms of an unfettered power.The law must indicate its scope (Gillan v United Kingdom). The Prosecution Code was not sufficiently specific and clear so as to avoid the risk that the power would be arbitrarily exercised. [19] Legality required safeguards to ensure that the proportionality of the interference could be examined.An over-rigid regime could breach the requirement (M M v United Kingdom).The absence of guidance meant that proportionality could not be assessed. States did not have a margin of appreciation on legality (R (T) v Chief Constable of Greater Manchester Police, para.115).The guidance in R (Purdy) v DPP was based on legality and not on the particular terms of the statutory offence in s.2 of the 1961 Act. [20] The Prosecution Code was indistinguishable from the pre-Purdy position of the DPP. The respondent’s policy made no distinction between a situation where an act was motivated by the wish to assist someone who was terminally ill and any other homicide. The respondent had to apply different criteria in the specific case of assisted suicide. In failing to do so, his policy was disproportionate. The respondent’s failure to explain why the policy was in its current form was a breach of the principle of legality, which obliged him to justify why his position was constitutionally different from that of the DPP. [21] There had been no reported cases of persons who had assisted the suicide of another being prosecuted in Scotland. Where lethal drugs were supplied to a person, the supplier was liable to prosecution for murder or culpable homicide. The prosecution in MacAngus v HM Advocate had not been proceeded with. The respondent had not prosecuted H C, who had taken her paralysed son to Dignitas in Switzerland, where he had received a lethal dose of drugs. There was a strong parallel between H C’s situation, and the case in England of D J, in which parents had taken their paralysed son to Switzerland.The DPP had concluded that, whilst there was a sufficiency of evidence, it would not be in the public interest to prosecute.The DPP had issued detailed reasons for that decision.The act of H C was a crime in Scotland, as the court had extraterritorial jurisdiction in cases of homicide (s.11(1) of the Criminal Procedure (Scotland) Act 1995). If it was not a crime in Scotland for a person to travel with another to a country where suicide was lawful, then the respondent ought to state that. The respondent ought to specify the factors that he took into account in deciding not to prosecute H C. His failure to do so had the appearance of an arbitrary exercise of discretion. [22] The petitioner did not want a change in the law. The respondent had previously promulgated offence-specific statements of policy, even in cases of homicide (Law Hospital NHS Trust v Lord Advocate; statement of policy recorded in 1996 SCLR 516). It was within the discretion of the respondent

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Ross v Lord Advocate (IH)

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to set out a policy to ensure that the law of homicide would be enforced in a manner which respected Convention rights. It was his duty to do so. It was irrelevant to the respondentâ&#x20AC;&#x2122;s duty to act in a Convention compatible manner that the Scottish Parliament had considered and rejected the Assisted Suicide (Scotland) Bill. The court was not being asked to hold that the substantive law was incompatible with the Convention, but rather to assess whether the respondent was carrying out his duty to act in a Convention compatible manner.

Respondent

[23] The respondent submitted that the essential question was whether or not the reasoning of R (Purdy) v DPP required an order of the sort which the petitioner sought.It did not.S.2(1) of the Suicide Act 1961 was of wide ambit. It caught acts that could not be prosecuted under the law of homicide. The law of homicide in Scotland had a much narrower ambit. The CPS Code for Cases of Assisted Suicide, now applicable in England and Wales, did not apply to cases of murder or manslaughter.Both the UK Supreme Court and the European Court had recognised that s.2 of the 1961 Act was within the margin of appreciation of Member States. The criminalisation of homicide, with no distinction for cases where the motive was to assist the suicide of the victim, was a fortiori within that margin. [24] The petitioner had confused the question of uncertainty, as to what the law provides, with the discretion left to the respondent to make difficult decisions in particular cases. The petitioner did not seek to challenge the substantive law of homicide.There was no suggestion that it was a breach of art.8 to have a law of that nature (Nicklinson v Ministry of Justice, Lord Neuberger at paras 63â&#x20AC;&#x201C;66).There was no challenge to the adequacy of the Prosecution Code as a generality.The issue was whether the requirement of legality required the respondent to issue offence-specific guidance for that class of homicides which might be regarded as assisted suicides.The fact that Parliament had decided not to change the law was the context in which the respondent had addressed his responsibilities. In any particular case the respondent had to consider whether there was a sufficiency of evidence and whether the public interest merited prosecution.In an area of controversial social and moral policy, it was not for him to confine the exercise of his discretion to a category of individuals and thus effectively give them immunity from prosecution. [25] All of the public interest factors, which the petitioner suggested should be taken into account, were capable of being considered under the Prosecution Code. The respondent had not sought to distance himself from his code, as the DPP had done prior to Purdy. The respondent had emphasised that, where there was a sufficiency of evidence, the nature and gravity of the offence would be important factors in determining whether there ought to be a prosecution. Where a party freely travelled to another country with an individual who took a lethal drug to end their own life, there was no crime.If there was any form of duress, which was applied to the individual who required assistance, there may be a crime. Particular cases could produce individual circumstances.The Prosecution Code listed the relevant factors that the respondent would consider in applying the public interest test.These included the attitude of the victim and the motive for the crime.The CPS Code did not consider these factors to be relevant. [26] The only issue was legality. The legality analysis required to be carried out before any proportionality or necessity considerations (R (T) v Chief

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Constable; Beghal v DPP). The petitioner’s submissions could not succeed if it was accepted that the substantive law was not in breach of art.8(1).The correct starting-point was that the law, which did not qualify the law of homicide to take account of cases where the motive was to assist the suicide, was not in breach of art.8.If the substantive law did not breach a Convention right, the respondent could prosecute to its full rigours. The respondent had a discretion to exercise, but it was one to be exercised within the boundaries of the law. [27] Individuals could, if so advised, take legal advice to see what acts and omissions could constitute a crime.The outer ambit of the respondent’s discretion was reasonably certain. It allowed him to mitigate the rigours of the law in appropriate circumstances. He had set out in the Prosecution Code the factors which he would take into account in exercising his discretion. There was no suggestion that the code did not satisfy the principle of legality for other criminal law offences. The respondent had endorsed the code. He had said that, if there was a sufficiency of evidence, there would be a prosecution, but for extraordinary circumstances. That was sufficient to satisfy the principle of legality. [28] R (Purdy) v DPP ought to be distinguished on the basis that its reasoning, which applied to s.2 offences, did not apply to homicide in Scotland. The Prosecution Code offered adequate guidance on the factors that would bear on whether or not there would be a prosecution. The respondent did not distance himself from the terms of his code. In Purdy, there had been an obvious gulf between the terms of s.2 and the way that it had been applied in practice. That was not the case in Scotland.There were 115 cases of assisted suicide in England which had not been prosecuted. In Scotland, there was a very small pool of cases to consider. In B, the accused had been prosecuted for murder, although a plea of culpable homicide was ultimately accepted. In H C, no proceedings had been taken because there was insufficient evidence of a crime. In MacAngus v HM Advocate a decision had been made, after that of the court, that a prosecution was unlikely to be successful. In the only other case there had been insufficient evidence in law. The respondent’s position was that he would consider the public interest in the prosecution of any case of assisted suicide amounting to homicide in accordance with the factors which he had identified in his Prosecution Code. The compelling factor would be likely to be the seriousness of the offence. Given the seriousness of homicide, it was very likely that a prosecution would follow. Decision

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[29] The criminal law in relation to assisted suicide in Scotland is clear. It is not a crime “to assist” another to commit suicide.However, if a person does something which he knows will cause the death of another person, he will be guilty of homicide if his act is the immediate and direct cause of the person’s death (MacAngus v HM Advocate, LJG (Hamilton), para.42).Depending upon the nature of the act, the crime may be murder or culpable homicide.Exactly where the line of causation falls to be drawn is a matter of fact and circumstance for determination in each individual case.That does not, however, produce any uncertainly in the law. [30] In relation specifically to a death caused by the ingestion of a lethal substance (which is what appears to be contemplated in the petitioner’s case), the administration of such a substance (eg, the injection of a first-time user with heroin) may amount to homicide (Kane v HM Advocate—Mr Kane pled guilty to culpable homicide, see p.264). Supplying a lethal substance for immediate use may conceivably fall into this category (MacAngus v HM

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Ross v Lord Advocate (IH)

773

Advocate), at least where there is certainty about its purpose and use (the prosecution of Mr MacAngus for the supply of ketamine to a user was discontinued). Nevertheless, the voluntary ingestion of a drug will normally break the causal chain. When an adult with full capacity freely and voluntarily consumes a drug with the intention of ending his life, it is this act which is the immediate and direct cause of death. It breaks the causal link between any act of supply and the death. [31] In the same way, other acts, which do not amount to an immediate and direct cause, are not criminal.Such acts, including taking persons to places where they may commit, or seek assistance to commit, suicide, fall firmly on the other side of the line of criminality. They do not, in a legal sense, cause the death, even if that death was predicted as the likely outcome of the visit. Driving a person of sound mind to a location where he can jump off a cliff, or leap in front of a train, does not constitute a crime.The act does not in any real sense amount to an immediate and direct cause of the death (MacAngus, LJG (Hamilton), at para.42). [32] There is no difficulty in understanding these concepts in legal terms, even if, as is often the case in many areas of the law, there may be grey areas worthy of debate in unusual circumstances.There is no need for the respondent to set these concepts out in offence-specific guidelines.They are clearly defined matters of law upon which, if necessary, an individual can seek legal advice. [33] As the Lord Ordinary correctly identified, R (Purdy) v DPP arose in circumstances which are materially different from the petitionerâ&#x20AC;&#x2122;s case in three respects.First, the underlying substantive criminal law in Scotland is different from that in England and Wales. There is no equivalent of s.2 of the Suicide Act 1961 in Scotland.That is because suicide, and hence attempted suicide, is not a crime in Scotland, albeit that the circumstances of an attempt may involve the commission of an act otherwise criminal (eg, a breach of public order).The conduct anticipated in R (Purdy) would not be criminal if prosecuted in Scotland.S.2 created a broad offence, which criminalised behaviour which would not otherwise be so.It was, and is, not applicable in Scotland. [34] Secondly, in R (Purdy) v DPP the DPP was consistently choosing not to prosecute those who had, on the face of it, committed an offence under s.2.There was an obvious gulf between law and practice. There is no such gulf apparent in the practice of the respondent. No instance was cited in which the respondent had considered that there was a sufficiency of evidence but had decided not to prosecute in the public interest.Only two instances of assisted suicide were identified by the respondent as having been reported to him.In both of those cases there was insufficient evidence of any crime having been committed. That is not at all surprising upon the above legal analysis. [35] Thirdly, the respondentâ&#x20AC;&#x2122;s Prosecution Code contains general guidance to allow the issues, which the petitioner submits are relevant, to be taken into account.The attitude of the victim, the motive for the offence and whether there are any mitigating factors are all present in the code. However, the respondent has gone further in stating that, although all of those factors may be relevant considerations, where there is a sufficiency of evidence (that a homicide has been committed), there will be a prosecution in the absence of exceptional circumstances.There is no attempt by the Lord Advocate to distance himself from his code. [36] The petitioner did not contend that the criminalisation of homicide lacked a legal basis in domestic law, or that the law in that respect was not sufficiently precise and accessible so as to enable a party to foresee the

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consequences of his actions and to allow him to regulate his conduct accordingly. The crux of the challenge was that the law was being applied by the respondent in a way which was arbitrary. There is simply no evidence to support that. The respondent has expressed his policy in a clear manner.He will prosecute cases which amount to homicide in the absence of exceptional circumstances.There is no evidence which undermines his public statements. It cannot be said that the respondent is exercising his discretion in a way which is arbitrary and does not meet the requirements of legality. [37] The only challenge was legality. The interference with the petitioner’s rights is in accordance with the law in terms of art.8(2), applying the test in R (Purdy) v DPP itself (Lord Hope at para.40). In these circumstances, the reclaiming motion must be refused. LADY DORRIAN [38] I am obliged to your Lordship in the chair for setting out the background circumstances of this case, and a summary of the submissions.I agree with the conclusions reached by your Lordship, but given the novelty of the case, would add a few observations of my own. [39] As parties have agreed, suicide is not a crime in the law of Scotland. Moreover, it seems that suicide has never been a crime in Scots law. [40] The position in England is markedly different.In English law, suicide was a crime, until it was decriminalised by the Suicide Act 1961.However, although it was no longer a crime to commit, or attempt to commit, suicide, it remained an offence to “aid, abet, counsel or procure” the suicide of another, in terms of s.2 of the 1961 Act.The Act was amended in 2010 so that the offence under s.2 is now committed where:

D (a) D does something capable of encouraging or assisting the suicide of another or attempted suicide of another; and (b) D’s act was intended to encourage or assist suicide or an attempt thereat.

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[41] The offence may be committed whether or not a suicide occurs, and the offence carries a maximum term of imprisonment of 14 years.No proceedings may be instituted except by or with the consent of the DPP. [42] Regarding acts capable of encouraging or assisting suicide, s.2A provides as follows: “(1) If D arranges for a person (‘D2’) to do an act that is capable of encouraging or assisting the suicide or attempted suicide of another person and D2 does that act, D is also to be treated for the purposes of this Act as having done it. (2) Where the facts are such that an act is not capable of encouraging or assisting suicide or attempted suicide, for the purposes of this Act it is to be treated as so capable if the act would have been so capable had the facts been as D believed them to be at the time of the act or had subsequent events happened in the manner D believed they would happen (or both). (3) A reference in this Act to a person (‘P’) doing an act that is capable of encouraging the suicide or attempted suicide of another person includes a reference to P doing so by threatening another person or otherwise putting pressure on another person to commit or attempt suicide.” [43] The result is the highly unusual one that in England it is an offence to encourage or assist in the commission of an act which in itself is not an offence. This is to be contrasted with the position in Scotland.Here, no question can arise of an individual being convicted of assisting or encouraging another to

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Ross v Lord Advocate (IH)

775

do an act which is not itself criminal. There is in Scotland no offence of “assisted suicide” despite the use of that term in argument. [44] In Scotland, acts which might assist another person to commit suicide would only become criminal if in themselves they constituted a criminal act on the part of the individual providing the assistance.It is important to bear in mind that this case is not concerned with questions of “euthanasia” or “mercy killing”, even at the behest of the victim. Strictly speaking, neither the compassionate nature of the motive, nor the desire of the victim to die are relevant considerations.A person who deliberately took the life of another may even be guilty of murder, and would at least be guilty of culpable homicide. Much would depend on the exact circumstances of the case. [45] We are not concerned with that kind of case.We are concerned here not with someone who himself takes an active part in ending a life, rather we are concerned with those who may take steps to facilitate a person to take his own life. It is beyond doubt that in certain circumstances such acts may constitute the crime of culpable homicide. However, the requirement of a direct causal link between those acts and the death mean that many acts which would apparently be criminal according to the law of England, would not be so in Scotland.The offence under s.2(1) is a much broader offence than culpable homicide, and may be committed even in circumstances where no suicide results. [46] The reclaimer relied heavily on the case of R (Purdy) v DPP, arguing that the position in Scotland currently reflected the pre-Purdy position in England.The general prosecutorial code relied upon in that case had been deemed to be insufficient for the purpose of identifying the law with sufficient clarity, leading to the issuing of an offence-specific code relating to assisted suicide. The same result should follow here, notwithstanding that there was no such offence as assisted suicide. [47] The Lord Ordinary rejected this argument, concluding that the circumstances which led to the decision in Purdy were in fact quite different from those currently existing in Scotland, and that the same result should not follow.He cited three main reasons for distinguishing the case of Purdy. I agree in general with those reasons. [48] In the first place, the Lord Ordinary noted (para.37) that: “[S.]2(1) of the Suicide Act1961 has a wide ambit. There are likely to be many situations where encouragement or assistance of suicide in England and Wales would contravene s.2(1) but would not be homicide if they occurred in Scotland (because one or more of the requisites of the crime of murder or culpable homicide was/were lacking).” [49] The very width of the scope of the offence under the 1961 Act was an important factor in the decision of the court that the existing guidance was not sufficient to enable those affected by it “to understand its scope and foresee its consequences” (Lord Neuberger, para.96). Moreover, it is clear that, notwithstanding the generality of some of the observations, the court was particularly concerned with the position of the relative who assisted someone to travel abroad, for example to Switzerland, where they could lawfully take their own life.That such an act might be the subject of prosecution was clearly an issue of concern for Lord Phillips. It was also of concern to Lord Hope, who, in relation to the scope of s.2(1) observed (para.18): “Its language suggests that it applies to any acts of the kind it describes that are performed within this jurisdiction, irrespective of where the final act of suicide is to be committed. So acts which help another person to

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make a journey to another country, in the knowledge that its purpose is to enable the person to end her own life there, are within its reach.” Lord Hope noted that no prosecution has ever been brought under s.2(1) in circumstances such as those which MrsPurdy contemplated, but he could not agree with the proposition that no such prosecution could be brought within the terms of the statute (para.23). He considered (para.25) that there was: “[A] substantial risk that the acts which Ms Purdy wishes her husband to perform to help her to travel to Switzerland will give rise to a prosecution in this country.” The state of the law was quite clear (Lord Hope, para.27): “It is an offence to assist someone to travel to Switzerland or anywhere else where assisted suicide is lawful. Anyone who does that is liable to be prosecuted. He is in the same position as anyone else who offends against s.2(1) of the 1961 Act.”

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Lord Hope noted that in relation to such another person the prosecutorial code would apply, and the individual may be prosecuted if there were a sufficiency of evidence against him and it was in the public interest that he be prosecuted.However he went on to add: “But the practice that will be followed in cases where compassionate assistance of the kind that Ms Purdy seeks from her husband is far less certain. The judges have a role to play where clarity and consistency is lacking in an area of such sensitivity.” [50] We can see from elsewhere in his opinion (eg, paras 30, 31, 41) that he was particularly exercised by cases of these kind but which as a generality would not be criminal in our law.Lord Phillips was concerned (para.12) that an individual in such a situation might be open to prosecution for the crime of murder. Yet, as the Dean of Faculty agreed during the hearing in this court, the clear situation of taking someone of sound mind and clear views to Switzerland to carry out a free and voluntary act would not even constitute the crime of culpable homicide in Scotland. [51] The third reason given by the Lord Ordinary was that the DPP had distanced himself from the relevance of some of the factors in the general code, whereas the Lord Advocate had not done so, and indeed (para.39): “On the contrary, he has identified the factor in the Code which is likely to prevail in cases where there is a sufficiency of evidence—that the serious nature of the offence makes it likely that the public interest will require a prosecution.” [52] I agree too with this observation, but I would add to it a factor associated with the first reason, namely that it was essentially because of concerns over the “compassionate relative” kind of case that the DPP was advised to reconsider his guidance, since it was precisely in relation to these “exceptional” cases that the current arrangements were lacking.The wide scope of the Act and the difficulty in these cases of ascertaining the degree of risk attaching to a helper, was a critical factor in the decision that greater guidance should be given.Lord Neuberger, in agreeing that guidance should be given, emphasised (para.102): “The very unusual features of this crime are that it involves the offender assisting an action by a third party which is not itself a crime, the third party who is being assisted is also the victim, the victim will almost always

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be willing, indeed will very often be the positive instigator of the crime, and the offender will often be a relatively reluctant participator, and will often be motivated solely by love and/or sympathy. In addition, the potential offender is not the person, or at least is not the only person, whose Convention rights are engaged: it is the victim whose art.8 rights are engaged, and he or she will almost always be unusually vulnerable and sensitive.” [53] Elsewhere the position of such a relative is again emphasised.For example, in para.45, Lord Hope noted the importance of consistency in the exercise of the DPP’s discretion, and that steps towards achieving that had been taken, namely that Crown Prosecutors acted under the direction of the DPP, and in accordance with a published prosecutorial code. However, he went on to say (para.47): “The question is whether it satisfies the requirements of accessibility and foreseeability where the question is whether, in an exceptional case such as that which Ms Purdy’s circumstances are likely to give rise to, it is in the public interest that proceedings under s.2(1) should be instituted against those who have rendered assistance.” That the need to ensure guidance was available to individuals in such exceptional circumstances was at the heart of the decision in Purdy can be seen also from the following passages from the opinion of Lord Hope: “53But it seems to me that, for anyone seeking to identify the factors that are likely to be taken into account in the case of a person with a severe and incurable disability who is likely to need assistance in travelling to a country where assisted suicide is lawful, these developments fall short of what is needed to satisfy the Convention tests of accessibility and foreseeability . . . . Conclusion 54 The Code will normally provide sufficient guidance to Crown Prosecutors and to the public as to how decisions should or are likely to be taken whether or not, in a given case, it will be in the public interest to prosecute. This is a valuable safeguard for the vulnerable, as it enables the prosecutor to take into account the whole background of the case. In most cases its application will ensure predictability and consistency of decision taking, and people will know where they stand. But that cannot be said of cases where the offence in contemplation is aiding or abetting the suicide of a person who is terminally ill or severely and incurably disabled, who wishes to be helped to travel to a country where assisted suicide is lawful and who, having the capacity to take such a decision, does so freely and with a full understanding of the consequences. There is already an obvious gulf between what s.2(1) says and the way that the subsection is being applied in practice in compassionate cases of that kind. 55The cases that have been referred to the Director are few, but they will undoubtedly grow in number. Decisions in this area of the law are, of course, highly sensitive to the facts of each case. They are also likely to be controversial. But I would not regard these as reasons for excusing the Director from the obligation to clarify what his position is as to the factors that he regards as relevant for and against prosecution in this very special and carefully defined class of case . . . . as the definition which I have given may show, it ought to be possible to confine the class that requires special treatment to a very narrow band of cases with the result that the Code will continue to apply to all those cases that fall outside it.” [54] It is true that Lord Brown addressed a slightly wider class of case than those referred to by Lords Hope and Phillips, but even so, I do not understand

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him to consider that the code would not be sufficient in the kind of case which in Scotland would be considered homicide, as opposed to the exceptional kind of case, criminal in England, but not so in Scotland. See for example, para.76: “Obviously no advance undertaking can be sought from the Director of Public Prosecutions that he will refuse consent to a prosecution in a particular case . . . . Surely, however, there can be no similar objection to the Director indicating in advance what will be his general approach towards the exercise of his discretion regarding the prosecution of this most sensitive and distressing class of case.”

5343.indd 778

Observations to similar effect are also contained within paras 83 and 86. [55] The Lord Ordinary’s other reason (para.38) for distinguishing the circumstances of Purdy was that: “[I]n Purdy it was clear to the Appellate Committee that the prosecution authorities were in practice applying a policy which resulted in the nonprosecution of most cases of contravention of s.2(1): but that that policy, and the factors which would in fact be taken into account in deciding whether to prosecute, were not publicly available.There was a marked inconsistency between the law and its application in practice.None of the material placed before me suggests that there is any similar divergence between the law and its application in practice in Scotland.Nor is there any indication that an unknown or unpublished policy is being applied.” [56] This divergence was indicative of there being unpublished policy factors taken into account.I agree too with this observation. It clearly became apparent in the course of argument in Purdy that, in compassionate cases of this kind, there was a clear gulf between the terms of s.2(1) under which such acts would be capable of constituting an offence, and the exercise of the prosecutorial discretion under s.2(4) and the prosecutorial code.The court was advised that over 100 people had travelled from England and Wales to Switzerland, for the purpose of ending their lives, yet none of those who had assisted them to do so had been prosecuted.Lord Hope noted (para.54) the obvious gulf which therefore existed between the statutory provision and prosecutorial practice in relation to such cases. [57] The Lord Ordinary observed that in argument before him there had been no suggestion that the law was inaccessible. During the hearing of the reclaiming motion there was some attempt to do so, on the basis that the distinction between what would constitute a criminal act was not entirely clear. [58] It is not part of this court’s function in this reclaiming motion to seek to identify those acts assisting suicide which might constitute a crime in the law of Scotland and those which might not, whether murder, culpable homicide, or even culpable or reckless conduct. It is clear that the question of causation is a central one, and whilst the voluntary act of the victim may not suffice to break the chain of causation in the particular circumstances of the case, the critical question is whether a direct causal link can be established. In MacAngus v HM Advocate the court summarised the position as follows: “[42] These Scottish authorities tend to suggest that the actions (including in some cases deliberate actions) of victims, among them victims of full age and without mental disability, do not necessarily break the chain of causation between the actings of the accused and the victim’s death. What appears to be required is a judgment (essentially one of fact) as to whether, in the whole circumstances, including the interpersonal relations of the victim and the accused and the latter’s conduct, that conduct can be said to be an immediate and direct cause of the death.”

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2016 S.C.L.R.

Ross v Lord Advocate (IH)

779

[59] MacAngus, it must be recalled, was a case argued on relevancy, where ultimately the decision of the court was merely that “depending on the facts and circumstances proved (which will include factors bearing on influence and knowledge) a causal link may be established” (para.51).In other words, it could not be said that this was a case in which the jury might not be able to find a direct causal link established, notwithstanding the voluntary ingestion of the drug. [60] There was little discussion before us on the subject of culpable and reckless conduct, which might be relevant if the suicide failed.However, even in such cases the voluntary act of the ingester remains relevant.In Khaliq v HM Advocate, another case on relevancy, the court, rejected an argument that the voluntary act did not break the causal chain on the basis that: “The causal link is not, of necessity, broken by that circumstance”, (emphasis added) the Lord Justice General (Emslie) pointing out (p.34) that: “The true question is whether the charge relevantly libels a causal connection between the alleged supply and the abuse and its consequences that is to say, whether it would be permissible for the judges of fact to conclude that the supply provided not merely the occasion for the abuse of the solvents by the recipients, but was a cause of that abuse.” [61] The requirement to establish a causal connection between the act in question and the death, or injury, is in either case clear.Whether that causality is established would be decided on the basis of all the circumstances, including, in my view, the nature, significance and intent behind the voluntary act. In cases such as Khaliq and MacAngus, the intent behind the voluntary act was not to die, rather it was to obtain some kind of “high” or perceived relief from the item ingested.It was not the settled intent of an individual of sound mind to end his own life. This may be an important consideration in a question of causation, as is perhaps reflected in MacAngus in the discussion of whether an alleged victim could be classed as a “fully informed” adult (para.44). [62] I agree with the Lord Ordinary that the way in which the law operates in this field is not inaccessible, capricious or lacking in clarity, and that it meets the test for foreseeability, namely, that the ordinary citizen would: “. . . be able—if need be with appropriate advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given course of action may entail” (Sunday Times v UK, para.49). LORD DRUMMOND YOUNG [63] The petitioner seeks a declarator that the Lord Advocate is in breach of art.8 of the ECHR in failing to promulgate a policy identifying the facts and circumstances which he will take into account in deciding whether or not to authorise the prosecution in Scotland of a person who helps another person to commit suicide, together with an order requiring the Lord Advocate to promulgate such a policy. The Lord Ordinary sustained a plea to the relevancy of the petitioner’s averments and dismissed the petition.The petitioner has now reclaimed. I agree with your Lordship and your Ladyship that the reclaiming motion should be refused. [64] In Scots criminal law, suicide is not a crime. Nor is assisted suicide a crime per se, but assisting in a suicide might, according to circumstances, involve liability for either murder or culpable homicide. It is possible that the offence of culpable and reckless conduct might also be relevant, but in the event that suicide actually occurs, I think it more likely that one of the two

5343.indd 779

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780 A

Ross v Lord Advocate (IH)

2016 S.C.L.R.

more serious offences would be in point. Liability for either murder or culpable homicide might be on an art and part, or accessory, basis, although that is not inevitable. The requirements of those two offences have been the subject of numerous judicial decisions and are reasonably well settled. Likewise, the requirements of art and part liability in Scots law are reasonably clear. [65] The argument for the petitioner is based on art.8 of the ECHR. It is, in essence, that art.8(1) entails a right to personal autonomy and selfdetermination; that the requirement in art.8(2) that any interference by a public authority with art.8(1) rights must be in accordance with the law requires that the relevant law should be both accessible and foreseeable in its application; and that Scots law in its existing state fails to satisfy those requirements of accessibility and foreseeability.For this purpose, it is submitted that regard must be had not merely to the terms of the substantive law but also to the terms of any policy applied by the prosecution authority in determining whether proceedings should be instigated. In Scotland Crown Office has published a Prosecution Code which sets out the criteria that will normally be applied when a decision whether to prosecute has to be made. This document, which is expressed in general terms, unrelated to any particular offence, has been supplemented by further statements made by the Lord Advocate to committees of the Scottish Parliament as to the policy that will be followed in cases involving attempted suicide.It is the code and further statements of prosecution policy that are the principal object of challenge.The petitioner claims that the factors set out in the Prosecution Code “wholly fail to satisfy the Convention requirements of foreseeability and accessibility”. The result of that, it is said, is that the interference with the petitioner’s art.8(1) rights is not “in accordance with the law” as required by art.8(2).

D Existing law and practice

5343.indd 780

[66] As already stated, the Scots law of homicide is well established and the relevant rules and concepts are reasonably clear, subject to an inevitable level of uncertainty which I discuss below at paras 71–73. Nevertheless, in assessing the compatibility of the law with art.8 of the Convention, the notion of “law” must be understood as a matter of substance rather than form: Kafkaris v Cyprus, para.139, cited in R (Purdy) v DPP, para.41, per Lord Hope. The result is that “law” in this sense encompasses statute law, at primary and secondary levels, and unwritten and customary law, as it would in the normal domestic signification of the word, and also statements of policy by actors at an official level, including prosecution agencies: para.47. The rationale for this is that the principle of legality, as enshrined in art.8, includes the critical elements of accessibility and foreseeability, and for the operation of the law to be truly foreseeable it must be possible to predict to a reasonable degree how the prosecution authority is likely to act in any particular case: this matter is discussed at length in Beghal v DPP, per Lord Hughes at paras 29–31. Furthermore, it must be possible to assess whether any actions taken by a prosecutor are arbitrary or disproportionate, and that would only be possible if prosecution policy were formulated with sufficient clarity; that is an aspect of the requirement of accessibility: Gillan and Quinton v United Kingdom, paras 76–77; R (T) v Chief Constable of Greater Manchester, per Lord Reed, paras 112–116; Beghal, paras 31 and 33.The result is that, as the UK Supreme Court held in R (Purdy) v DPP, prosecution policy must be formulated in such a way that the requirements of accessibility and foreseeability are adequately satisfied and so that it is possible to protect adequately against arbitrary or disproportionate actions by the prosecutor.

07/12/16 8:11 AM

2016 S.C.L.R.

Ross v Lord Advocate (IH)

781

[67] The Lord Advocate, exercising his power to prosecute crime in Scotland, enjoys a certain element of discretion as to whether to institute or abandon criminal proceedings in any particular case.Crown Office has published the Prosecution Code, which sets out the criteria that will normally be applied when such a decision has to be made, together with the range of options that are available to a prosecutor when dealing with a report of a possible crime. The code is intended to provide a general explanation of the various factors that may influence decisions in relation to prosecution or any alternative course of action.It is, inevitably, framed in relatively general terms, and it does not deal specifically with assisting in a suicide. The Lord Advocate has, however, provided further comments on assisted suicide in the form of written evidence to the Scottish Parliament’s Health and Sport Committee in response to a request dated 13 January 2015 and in a further written submission to the Justice Committee, both in respect of the Assisted Suicide (Scotland) Bill that was then before the Scottish Parliament.It is these documents that must be judged against the requirements of foreseeability and accessibility contained in art.8(2). [68] The Prosecution Code refers to a range of factors. First, it must be determined whether the conduct complained of constitutes a crime known to the law of Scotland and whether there is any legal impediment to prosecution. Secondly, the prosecutor must be satisfied that there is a sufficiency of evidence to justify proceedings; this includes an assessment of the admissibility, credibility and reliability of the available evidence. Thirdly, if sufficient evidence exists, the prosecutor must consider whether a prosecution is in the public interest.Thirteen specific factors are enumerated, with the warning that not all will apply in every case and the weight to be attached to any particular factor will depend on the circumstances of each case; all relevant factors must be considered. So far as material to homicide, the listed factors include the nature and gravity of the offence, the age, background and personal circumstances of the accused, the age, personal circumstances and attitude of the victim, the motive for the crime, mitigating circumstances, and the risk of further offending.In addition, it is indicated that in some cases prosecution may have the potential to affect the accused in a manner that is wholly disproportionate to the gravity of the offence. It is obvious that the relevance of these factors must be assessed in the circumstances of each individual case; each of the factors requires the application of judgment, and there is inevitably a limit to how far it is possible to constrain such an exercise. Indeed, if the limitations placed on the exercise of judgment are too rigid, the risk that results will be arbitrary or disproportionate is significantly increased; the assessment of proportionality and appropriateness (by which I mean the converse of arbitrariness) must inevitably be carried out on a case-by-case basis. [69] The Lord Advocate’s written evidence to the Health and Sport Committee is to the effect that, if someone assisted another to take their own life, the case would be dealt with under the law relating to homicide.As such, it would be necessary to consider the sufficiency of evidence for the relevant offence. The Lord Advocate continued: “In order to be satisfied that a crime had been committed the Crown would have to consider that there was a direct causal link between the actings of the accused and the deceased’s death. In other words, that it was a significant contributory factor to the death. There is a considerable amount of case law in Scotland of dealing with the issue of causation, which would require to be carefully considered in any such circumstances.

5343.indd 781

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782 A

Ross v Lord Advocate (IH)

2016 S.C.L.R.

“Thereafter consideration would have to be given to whether prosecution is in the public interest. The criteria for deciding whether prosecution is in the public interest are set out in the COPFS Prosecution Code . . . . There is a high public interest in prosecuting all aspects of homicide where there is sufficient available evidence.” Thereafter, it was pointed out, it would be a matter for a jury to determine whether the accused was guilty of homicide, including the element of a direct causal link between the accused’s actions and the deceased’s death. The statement that there is a high public interest in prosecuting homicide where sufficient evidence exists is reiterated in a further written submission made by Crown Office and the Procurator Fiscal Service to the Justice Committee of the Scottish Parliament. In this statement, after a reference to the high public interest, it is recorded that: “If the Crown considers there to be sufficient evidence that a person has caused the death of another it is difficult to conceive a situation where it would not be in the public interest to raise a prosecution but each case would be considered on its own facts and circumstances.”

C Thus the Lord Advocate’s general position is that, in view of the serious nature of homicide, if sufficient evidence exists the norm should be a prosecution. The requirement of legality in art.8(2)

5343.indd 782

[70] If interference by a public authority with the right to private life is to be justified under art.8(2), it must be “in accordance with the law”, and must in addition be necessary in a democratic society in the interests of one of a range of factors, including the protection of health or morals and the protection of the rights and freedoms of others.The first of these conditions is the requirement of legality, which is plainly necessary to secure the rule of law.It is implicit in the concept of legality that the basis on which a public authority is likely to act should be foreseeable, so that a citizen can, with advice if necessary, predict to a reasonable degree the consequences of a given action. It is in addition implicit in the concept of legality that the basis on which a public authority acts or is likely to act should be accessible, or understandable, to avoid the risk of arbitrary or disproportionate actions.The assessment of arbitrariness or disproportionality, however, has been held to be an aspect not of legality but of what is necessary in a democratic society in the interests of matters such as the protection of health or morals. [71] The concept of legality requires that the law should be stated in reasonably clear terms. It is important to recognise, however, that absolute certainty is impossible. Every legal concept and every legal rule will inevitably be surrounded by a penumbra of uncertainty. In part this is due to the inherent uncertainty of the language in which legal concepts are expressed. More specifically, and perhaps more importantly, legal rules and concepts do not exist in an abstract world of pure ideas; they exist in order to be applied to particular factual situations in the real world, and in the course of that application the concepts or rules may develop to a greater or lesser degree.It is obviously impossible to predict every possible factual situation to which a concept or rule might apply, and thus it is impossible to predict how the concept or rule might be applied in any possible case; some degree of uncertainty is inevitable.The most that can be hoped for is a degree of reasonable clarity. [72] This feature of the law was recognised by the European Court of Human Rights in Sunday Times v United Kingdom, para.49:

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2016 S.C.L.R.

Ross v Lord Advocate (IH)

783

“[A] norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able—if need be with appropriate advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences may not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.” In my opinion this is an important statement of the law and a valuable reminder of the impossibility of total certainty. It must apply to all statements of the “law”, in the Convention sense, including statements of practice by prosecutors. [73] Indeed, the level of certainty that is possible in a statement of practice is in principle less than is possible in the law as laid down in decided cases and, a fortiori, in statute. In Scots law the Lord Advocate enjoys an element of discretion in relation to individual prosecutions, a feature that is emphasised in the Prosecution Code.The same is true of the Crown Prosecution Service [CPS] in England and Wales: that is implicit in the opinions in in R (Purdy) v DPP, although the particular offence in that case, assisting suicide in terms of s.2 of the Suicide Act 1961, was subject to an express discretion conferred on the prosecutor by s.2(4) of the Act. Nevertheless, is difficult to conceive of a system of prosecution that does not permit some element of discretion to the prosecutor; otherwise a great deal of court time is likely to be wasted on prosecutions that are disproportionate or, in extreme cases, trivial. Any statement of prosecution practice must therefore itself incorporate or at least recognise this element of discretion. That is a further important factor that prevents anything like absolute certainty in a statement of prosecution practice. This factor must in my opinion weigh heavily in any assessment of the challenge that is now made to the Lord Advocate’s policy in relation to cases of assisted suicide.

Application to Scots law

[74] The concepts of Scottish criminal law that are relevant to assisted suicide are murder and culpable homicide. The essence of those concepts is reasonably clear; it emerges from a large number of decided cases. The same is true of art and part liability.For the reasons just stated, absolute certainty is impossible, but it is clear in my opinion that the standard of reasonable certainty has been reached.Counsel for the petitioner disavowed any intention to challenge the substance of the criminal law as incompatible with art.8. So far as the Lord Advocate’s policy is concerned, the general guidance that is given in the Prosecution Code is relevant to homicide. Several of the specific factors are also clearly relevant; these include the nature and gravity of the offence, the circumstances and attitude of the victim and the motive for the crime.In relation to assisted suicide, the Prosecution Code is supplemented by the statements by the Lord Advocate and Crown Office to the Health and Sport and Justice Committees of the Scottish Parliament. These indicate that the Lord Advocate attaches importance to the serious nature of homicide, and that if sufficient evidence exists the normal course of action will be a prosecution.The statements of policy make it clear that exceptional cases may exist where a prosecution will not be appropriate; in such cases the general discretion of the prosecution authority will be relevant.Nevertheless, it is apparent that the norm is to prosecute.It is of the nature of exceptional cases

5343.indd 783

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784 A

5343.indd 784

Ross v Lord Advocate (IH)

2016 S.C.L.R.

that they are hard to predict. To expect an enumeration of such cases would be wholly unreasonable. For this reason I am of the opinion that the Lord Advocate’s policy clearly meets the standard of reasonable certainty that is implicit in the requirement of legality in art.8(2). [75] That conclusion is supported in my opinion by consideration of the constitutional position of the Lord Advocate. The Lord Advocate is in charge of the system of prosecution in Scotland. As such, he exercises a function that is distinct from that of the courts. The extended definition of “law” used in the Strasbourg cases on art.8(2) is wide enough to embrace some aspects at least of the function of the public prosecutor.Nevertheless, this does not eliminate the distinction between the prosecution and the court, at least as it is understood in Scotland and the remainder of the English-speaking world. Central to this distinction is the principle of judicial independence, which must be free of interference from the prosecution. Conversely, the prosecution should generally be free to exercise its own distinct functions in an independent manner; the importance of this principle is recognised in cases such as Montgomery v HM Advocate and Millar v Dickson. The court should in my opinion be slow to interfere with that independence. This applies in particular to the general discretion that the Lord Advocate exercises in decisions as to the prosecution of crime. [76] Furthermore, the exercise of a discretion normally requires that consideration should be given to any factors that are relevant.The courts have generally set themselves against the fettering of discretionary powers prior to their exercise, and any attempt to be over-prescriptive in advance inevitably results in a degree of fettering of the discretion.The statements by the Lord Advocate to the two parliamentary committees are framed, no doubt deliberately, in such a way as to avoid any undue fettering of the prosecutor’s discretion.It is for that reason that they state that there is “a high public interest in prosecuting all aspects of homicide where there is sufficient available evidence”, or that “it is difficult to conceive a situation where it would not be in the public interest to raise a prosecution”. That in my opinion provides as much certainty on the matter as can properly be expected. Counsel for the petitioner submitted that those statements by the Lord Advocate were indistinguishable from the position taken by the DPP in England and Wales prior to the decision in R (Purdy) v DPP, a position that was held to be inadequate to satisfy the requirement of legality in art.8(2). That argument, which founded heavily on the residual element of discretion in the Lord Advocate’s statements, must in my view be rejected.An element of discretion must exist, with the result that total certainty is impossible. [77] At this point I should make passing reference to four cases where, counsel for the petitioner submitted, the policy declared by the Lord Advocate in the Prosecution Code and the statements to parliamentary committees had not been followed; these had been disclosed by the Scottish Government Legal Directorate in December 2015. In the first, HM Advocate v P B, a family member who had been asked by a relative suffering from a degenerative illness to kill him and had done so by administering an overdose of medication and subsequently smothering him was charged with murder, and a plea to culpable homicide was offered by the defence and accepted. The facts available were sparse, but nothing appears to be significantly contrary to the statements of the Lord Advocate; the only issue of doubt is why a plea to culpable homicide was accepted, but no information is available about that.In the second case, information had been received by the police that a family member might have assisted another in ending their own life.The Lord Advocate instructed that

07/12/16 8:11 AM

2016 S.C.L.R.

Ross v Lord Advocate (IH)

785

there was insufficient evidence for criminal proceedings, but that the case should be re-reported if further evidence came to light.Once again nothing is contrary to the policy. In the third case, MacAngus v HM Advocate, the accused had purchased controlled drugs which were ingested by the deceased and subsequently caused his death. Proceedings were raised for culpable homicide, but the appeal court decided that culpable homicide could not be established because the accused’s act was not directed in some way against the victim. The case was reconsidered for prosecution in light of that decision, and it was decided that the evidence was unlikely to result in a conviction. Once again nothing appears contrary to the declared policy. [78] The fourth case is the most troubling. The deceased appeared to have taken his own life, and consideration was given as to whether a member of the deceased’s family had taken any action that caused the death. Both Crown counsel and the Lord Advocate considered that there was insufficient evidence to support a charge of culpable homicide and recommended that no further action should be taken. Crown counsel nevertheless considered what should happen if the view had been taken that there was sufficient evidence.In that event, he considered that proceedings were not required in the public interest. In forming that judgment he had express regard to the Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide issued in England and Wales by the DPP through the CPS. Counsel acknowledged that that guidance relates to s.2 of the Suicide Act 1961, which does not apply in Scotland, but considered that there were sufficient similarities between culpable homicide and the statutory charge to render the guidelines valuable on the question of whether prosecution was in the public interest. For reasons discussed below, I am of opinion that there is a clear distinction between the offence in s.2 and the offences of murder and culpable homicide as understood in Scots law. I accordingly consider that Crown counsel was in error in following the English guidelines. Finally, I note that the Lord Advocate agreed that there was insufficient evidence, and indicated that his role was to apply the law, which was a matter for legislators. That in my view is the correct approach.

Relevance of English law

[79] The argument for the petitioner founded heavily on English law, and in particular on the decision of the UK Supreme Court in in R (Purdy) v DPP. In my opinion that case has no bearing on Scots law, for at least four reasons. In the first place, the case was concerned with the English statutory offence of complicity in another’s suicide, as found in s.2 of the Suicide Act 1961. Prior to 1961 suicide itself had been a crime in England, although for obvious reasons it was never prosecuted.The 1961 Act abolished that crime, but created the offence of (in its original form) aiding, abetting, counselling or procuring the suicide of another person. That is an unusual offence; as Lord Neuberger indicates in Purdy at para.102, it involves the offender’s assisting an action by a third party which is not itself a crime, and the third party who is being assisted is also a victim. Section 2 of the 1961 Act is not part of Scots law, although it would obviously be open to the Scottish Parliament to enact an equivalent provision. As matters stand, however, it would cover many cases which would not amount to murder or culpable homicide in Scotland, even on an accessory basis. [80] In the second place, the issue in Purdy was whether there should be a specific prosecution policy dealing with s.2. It was not at all concerned with murder or manslaughter, the equivalent of culpable homicide. Lord Hope, at para.54, indicated that the Code for Crown Prosecutors issued by the DPP

5343.indd 785

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786 A

Ross v Lord Advocate (IH)

2016 S.C.L.R.

would normally provide sufficient guidance to prosecutors and the public as to how decisions are likely to be taken as to whether or not, in a particular case, it would be in the public interest to prosecute. He further stated that in most cases the application of the code will ensure predictability and consistency of decision-taking. That could not be said, however, of cases where the offence is aiding or abetting the suicide of a person who is terminally ill or severely disabled who wishes to travel to a country where assisted suicide is lawful. It was the latter type of case where guidance was required.That is plainly quite different from homicide. He added, at para.55, that the cases requiring special treatment could be confined to a very narrow band, with the result that the code would continue to apply to all other cases. That appears to include cases of homicide. [81] In the third place, on the material disclosed to the court in Purdy it was apparent that an “obvious gulf” had developed between the wording of s.2(1) and the way that it was applied in practice in what were described as “compassionate” cases: Lord Hope, para.54. The court therefore concluded that the practice of the CPS had not been adequately disclosed.It has not been suggested that any such divergence between law and practice exists in Scotland. In the fourth place, in Purdy it was apparent, and indeed was conceded by the DPP, that many of the factors discussed in the Code for Crown Prosecutors plainly had no relevance of a case of assisted suicide: Lord Hope, paras 48–49 and 53; in the latter paragraph Lord Hope stated that the code “offers almost no guidance at all” in the category of cases under consideration. That is in my view quite different from the situation in Scotland. The relevant offence in Scotland is of course either murder or culpable homicide, or conceivably culpable and reckless conduct. A majority of the factors listed in the Prosecution Code as having a bearing on whether it is in the public interest to prosecute are plainly relevant to those offences, for the reasons set out at paras 68 and 74 above.In addition, the Lord Advocate has expressed his policy on cases involving what may be described as assisted suicide in written evidence to the Health and Sport Committee and a written submission to the Justice Committee of the Scottish Parliament, as stated at para.69 above. The latter statements, in particular, make it clear that the policy of the Lord Advocate is that prosecution should normally follow in any case where there is thought to be sufficient evidence that a person has caused the death of another. That is in my opinion clear guidance relating to the relevant offences in Scots law, murder and culpable homicide. [82] For the foregoing reasons I am of opinion that the decision in Purdy is of no assistance in Scotland. It deals with an offence unknown to Scots law, and does so in a context that is quite different from the law and prosecution policy currently in force in Scotland. Equally, because the relevant offences are quite different in Scotland on one hand and England and Wales on the other, the Code for Crown Prosecutors issued by the DPP appears to me to have no bearing on Scots law. That is why I consider that Crown counsel was in error in apparently relying on the Code for guidance. Reliance should rather be placed on the Scottish Prosecution Code and the formal statements made by the Lord Advocate. Scope of the petitioner’s challenge: constitutional issues

5343.indd 786

[83] The challenge by the petitioner to the acts of the Lord Advocate is confined to criticism of his statements of prosecution policy, which it is said do not go far enough to satisfy the requirement of legality in art.8(2). No challenge was made to the substantive law that may be relevant to cases of

07/12/16 8:11 AM

2016 S.C.L.R.

Ross v Lord Advocate (IH)

787

assisted suicide. It appears to me of fundamental importance that prosecution policy should be treated as quite distinct from substantive law, even though the concept of “law” as used in art.8(2) has been given an extended meaning by Strasbourg and UK case law. That extended meaning is designed to ensure that the law on a particular topic meets proper standards of accessibility and foreseeability, but it does not nullify the more fundamental distinction between the powers of the prosecutor and the substantive criminal law. [84] This means in particular that statements of policy by the Lord Advocate should not and do not change the substantive law. The function of the prosecutor is to secure the due application of the law, and nothing more. Any major change in the law is a matter for Parliament. Lesser changes, involving the development of existing law to meet new situations, may be effected by the court. The High Court of Justiciary has regularly shown itself willing to develop the law in appropriate cases. An example cited to us is Lord Advocate’s Reference (No. 1 of 2001), where the High Court held that, contrary to the previous understanding, there was no requirement in the crime of rape that there should be a forcible overcoming of will; instead, it was sufficient to establish that the victim had not in fact consented, without the requirement of showing force or an overcoming of the victim’s will. Another such case is Khaliq v HM Advocate, where the supply of solvents to children for the practice of “glue sniffing” was held to amount to the crime of wilfully administering a dangerous substance. Cases of that nature, however, represent a development of existing judge-made law. They do not represent a fundamental change in basic legal rules and concepts. Furthermore, significant judicial innovation will generally be inappropriate in a case that is governed by statute; if statute law is to be changed, that is normally a matter for Parliament. [85] The same is true in my opinion where a bill has been considered by Parliament but rejected. That is highly pertinent in the present case. An Assisted Suicide Bill was presented to the Scottish Parliament but was rejected by a substantial majority in a parliamentary vote on 27 May 2015. More recently, a different bill dealing with the same subject was rejected in the Westminster Parliament by an even larger majority. Assisted suicide is a subject that, on any view, raises profound moral issues. It also raises very strong feelings, both for and against. In such a case it is in my opinion wholly inappropriate for the courts to attempt any major change in the law. Counsel for the petitioner suggested that rejection of the bill in the Scottish Parliament was “entirely irrelevant” to the question presently before the court. I cannot agree. Rejection of that bill, and the corresponding Westminster bill, is a clear demonstration that the people’s elected representatives are opposed to assisted suicide in the UK. In considering the issues raised in the present case, the court must in my view take that factor into account. The principle of democratic government requires no less. [86] We were referred to the recent English decision in R (Nicklinson) v Ministry of Justice. This case does not appear to me to be directly relevant to the issues that we have to consider. It reveals widely differing views on when it may be appropriate for the courts, relying on art.8 of the Convention, to alter the substantive law on the question of assisted suicide. It was a matter of agreement that the margin of appreciation that is given to national authorities under the Convention extended to determining the question of whether or not assisted suicide should be lawful. A bare majority of the UK Supreme Court held that it was open to the courts, relying on art.8, to declare the existing law, in the form of s.2 of the Suicide Act 1961, incompatible with the Convention, notwithstanding that that involved striking down an Act of Parliament. The

5343.indd 787

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788 A

Ross v Lord Advocate (IH)

2016 S.C.L.R.

minority, consisting of Lords Clarke, Sumption, Reed and Hughes, disagreed, holding that whether or not assisted suicide should be lawful, and in particular whether the risk to vulnerable people could be mitigated, was inherently a matter for Parliament rather than the courts: see Lord Sumption at paras 223–235; Lord Hughes at para.267; Lord Clarke at para.293; and Lord Reed at paras 294–298.In my opinion the view of the minority is manifestly correct, and I would wholeheartedly endorse the remarks of Lord Sumption at, in particular, paras 230–232 and Lord Reed at paras 296 and 297. At para.296 Lord Reed stated that the Human Rights Act 1998, although introducing a new element into British constitutional law and entailing some adjustment of the respective constitutional roles of the courts, the executive and the legislature, does not eliminate the differences between them. He continued: “Accordingly, it does not alter the fact that certain issues are by their nature more suitable for determination by Government or Parliament than by the courts.Insofar as issues of that character are relevant to an assessment of the compatibility of executive action or legislation with Convention rights, that is something which the courts can and do properly take into account. They do so by giving weight to the determination of those issues by the primary decision- maker. There is nothing new about this point.” Lord Reed goes on, at para.297, to refer to the fact that s.2 of the Suicide Act 1961 raises highly controversial questions of social policy and moral and religious questions on which there is no consensus.On that basis he considered that Parliament required to be allowed a wide margin of judgment.I would entirely endorse that view; any other would appear to me to be an affront to the principle of democratic rule.

Conclusion

[87] These questions are not, however, directly in point in the present case, although they are of very obvious constitutional importance. For the reasons already given, I would refuse the reclaiming motion.

For the petitioner and reclaimer: O’Neill QC, McIntosh, instructed by Campbell & McCartney, Solicitors, Paisley. For the respondent: Dean of Faculty (Wolffe QC), Ross, instructed by the Scottish Government Legal Directorate, Edinburgh.

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A COURT OF SESSION

1 April 2016

Inner House (Extra Division) Lord Brodie, Lady Dorrian and Lord Malcolm SHELLEY ELIZABETH ROMEIN

Petitioner (Reclaimer)

against ADVOCATE GENERAL FOR SCOTLAND ON BEHALF OF THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Interpretation of statutes—United States citizen claiming citizenship by descent from mother—Whether petitioner entitled to be registered as British citizen—British Nationality Act 1981 (c.56), s.4C Immigration—United States citizen claiming citizenship by descent from mother—Whether petitioner entitled to be registered as British citizen—British Nationality Act 1981 (c.56), s.4C Section 5 of the British Nationality Act 1981 provides, inter alia: “Citizenship by descent. (1) Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of his birth: Provided that if the father of such a person is a citizen of the United Kingdom and Colonies by descent only, that person shall not be a citizen of the United Kingdom and Colonies by virtue of this section unless— (a) that person is born, or his father was born in a protectorate, protected state, mandated territory or trust territory or any place in a foreign country where by treaty, capitulation, grant, usage, sufferance, or other lawful means, His Majesty then has or had jurisdiction over British subjects; or (b) that person’s birth having occurred in a place in a foreign country other than a place such as is mentioned in the last foregoing paragraph, the birth is registered at the United Kingdom consulate within one year of its occurrence, or, with the permission of the Secretary of State later; (c) that person’s father is, at the time of the birth, in Crown service under His Majesty’s government in the United Kingdom; or (d) that person is born, in any country mentioned in subsection (3) of section 1 of this Act, in which a citizenship law has then taken effect and does not become a citizen thereof on birth.

(2) If the Secretary of State so directs a birth shall be deemed for the purposes of this section to have been registered with his permission notwithstanding his permission was not obtained before the registration.” Section 4C of the British Nationality Act 1941 as it was originally enacted provided, inter alia: “Acquisition by registration: certain persons born between 1961 and 1983 (1) A person is entitled to be registered as a British citizen, if —

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(a) he applies for registration under this section, and (b) he satisfies each of the following conditions. (2) The first condition is that the applicant was born after 7 February 1961 and before 1 January 1983. (3) The second condition is that the applicant would, at some time before 1 January 1983 have become a citizen of the United Kingdom and Colonies by virtue of section 5 of the British Nationality Act 1948 (c.56) if that section had provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father. (4) The third condition is that immediately before 1 January 1983, the applicant would have had the right of abode in the United Kingdom by virtue of section 2 of the Immigration Act 1971 (c.77) had he become a citizen of the United Kingdom and Colonies as described in subsection (3) above.” The second enactment of s.4C of the 1981 Act (which is the provision to be construed) provides, inter alia: “Acquisition by registration: certain persons born between 1961 and 1983. (1) A person is entitled to be registered as a British citizen if— (a) he applies for registration under this section, and (b) he satisfies each of the following conditions. (2) The first condition is that the applicant was born before 1 January 1983. (3) The second condition is that the applicant would at some time before 1 January 1983 have become a citizen of the United Kingdom and Colonies— (a) under section 5 of, or paragraph 3 of Schedule 3 to, the 1948 Act if assumption A had applied, (b) under section 12(3), (4) or (5) of that Act if assumption B had applied and as a result of its application the applicant would have been a British subject immediately before 1 January 1949 or (c) under section 12(2) of that Act if one or both of the following had applied— (i) assumption A had applied; (ii) assumption B had applied and as a result of its application, the applicant would have been a British subject immediately before 1 January 1949. (3A) Assumption A is that – (a) section 5 of 12(2) of, or paragraph 3 of Schedule 3 to, the 1948 (as the case may be) provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father, and (b) references in the provision to a father were references to the applicant’s mother. (3B) Assumption B is that— (a) a provision of the law at some time before 1 January 1949, which provided for a nationality status to be acquired by descent from a father provided in the same terms for its acquisition by descent from a mother, and (b) references in that provision to a father were references to the applicant’s mother. (3C) For the purposes of subsection (3B), a nationality status is acquired by a person (‘P’) by descent where its acquisition—

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(a) depends, amongst other things, on the nationality status of one or both of P’s parents, and (b) does not depend upon an application being made for P’s registration as a person who has the status in question. (3D) For the purposes of subsection (3), it is not to be assumed that any registration or other requirements of the provisions mentioned in that subsection or in subsection (3B) were met. (4) The third condition is that immediately before 1 January 1983, the applicant would have had the right of abode in the United Kingdom by virtue of section 2 of the Immigration Act 1971 (c.77) had he become a citizen of the United Kingdom and Colonies as described in subsection (3) above. (5) For the purposes of the interpretation of section 5 of the 1948 Act in its application in the case of assumption A to a case of descent from a mother, the reference in the proviso to subsection (1) of that section to ‘a citizen of the United Kingdom and Colonies by descent only’ includes a reference to a female person who became a citizen of the United Kingdom and Colonies by virtue of— (a) section 12(2), (4) or (6) only of the 1948 Act, (b) section 13(2) of that Act, (c) paragraph 3 of Schedule 3 to that Act, or (d) section 1(1)(a) or (c) of the British Nationality (No 2) Act 1964.” The petitioner applied for registration as a British citizen pursuant to s.4C of the British Nationality Act 1941, as amended by the Citizenship and Immigration Act 2009. The respondent refused the application. The petitioner sought judicial review and reduction of the decision. She was born in the US and claimed British citizenship through descent from her mother. Her father was a citizen of the US, and she was a US citizen by virtue of her birth. However, the petitioner’s mother, who was born in South Africa in 1948, was a British citizen by virtue of her father having been born in the UK. The petitioner averred that while her mother was in South Africa she had contacted the British Consulate in Johannesburg enquiring about the possibility of securing British citizenship for her then unborn child and was informed by a consular official that nationality could only be passed through the male line. As a result, she did not register the birth. The petitioner sought to prove on a proper construction of s.4C of the Act that she is entitled to be registered as a British citizen, and that the respondent’s decision to refuse her registration was unlawful. The Lord Ordinary rejected the claim and upheld the decision of the respondent. The petitioner reclaimed. Counsel for the petitioner argued that the construction of subs.(3)–(3D) of s.4C was that the meaning of the second enactment of the Act was the same as that which had been argued, was the meaning of the first enactment as far as the retrospective effect of the consular registration provisions of s.5 of the 1948 Act was concerned. The critical wording had been retained and s.5 was given retrospective effect as if it had been entirely gender neutral. However, even applying a gender-neutral reading to s.5, the petitioner would only be given entitlement to citizenship if para.(b) (consular registration) could be invoked as an exception to the general effect of the proviso. An application for citizenship could be proved by leading evidence proving the second counterfactual and if the second counterfactual was established on the balance of probabilities as a matter of fact, in circumstances where the first counterfactual applies as a matter of law, then the applicant would be entitled to be registered as a British citizen. Against that, the respondent first of all pointed out that exception (b) did not apply because the birth had not been registered. Section 3D closed off enquiry as to counterfactual possibilities and therefore as registration had not historically

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been available in conformity to the statute the child could only rely on its descent from its mother and s.4C(3)(a) had no application to exception (b) to the proviso to s.5(1) of the 1948 Act. It was significant that the wording was “it is to be assumed that any registration or other requirements were met” as opposed to “would have been met”. A construction ejusdem generis suggested that “other requirements” was a reference to things similar in character to registration, in other words administrative or clerical things which required to be done if citizenship was to be acquired. Further the words “would have become under section 5” indicated certainty, and the phrase meant that the applicant would necessarily have become a citizen by operation of law independent of anyone’s actions and in any event the petitioner’s construction would have made the provision unworkable. Moreover the proposed construction of the petitioner would result in an unequal treatment for someone in a comparable position to the petitioner but born between 1919 and 1948. There was also consequential inconsistency in treatment as between the petitioner and someone in a comparable position to the petitioner but born between 1983 and 1987 because s.9 of the 1981 Act continued the discriminatory effect of s.5 of the 1948 Act by allowing the acquisition of citizenship by virtue of consular registration and descent from a father (but not mother) for a period of five years after commencement of the 1981 Act which was a factor pointing away from the petitioner’s construction. Held (1) that it was the respondent’s construction of subs.(3D) with the unnaturally narrow meaning which it gave to “requirements” which was strained rather than the petitioner’s construction of the subsection which was quite straightforward (para.22); (2) that no inconsistency of treatment such as had been posited by the respondent arose on a proper construction of the relevant provisions in relation to persons born between 1919 and 1948 (para.26); (3) that there was no need to give weight to external matters including the ministerial letter and the proper construction of the relevant provisions had been arrived at by the primary route which was by examination of the text and attribution of its natural meaning (para.31); and (4) that on a proper construction of s.4C(3) the petitioner was entitled to be registered as a British citizen if she could prove that she would have become a citizen of the United Kingdom and Colonies by virtue of s.5 of the 1948 Act if the assumption set out in s.4C(3A) had applied at the relevant time (para.36); and reclaiming motion allowed and case put out by order. Navarro v Secretary of State for the Home Department [2015] EWHC 557 not followed. Cases referred to:

Gow v Grant [2012] UKSC 29; 2013 S.C. (U.K.S.C.) 1; 2012 S.L.T. 829 Navarro v Secretary of State for the Home Department [2015] EWHC 557 Pepper v Hart [1993] A.C. 593; [1992] 3 W.L.R. 1032; [1993] 1 All E.R. 42 R (Harrison) v Secretary of State for the Home Department [2003] I.N.L.R. 284 Salomon v Custom and Excise Commissioners [1967] 2 Q.B. 116; [1966] 3 W.L.R. 1223; [1966] 3 All E.R. 87. The full circumstances of the case and the arguments of counsel are to be found in the following opinion of the court which was issued by Lord Brodie on 1 April 2016. LORD BRODIE Introduction

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[1] The petitioner, ShelleyElizabeth Romein, has applied for registration as a British citizen pursuant to s.4C of the British Nationality Act1981, as amended

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by the Citizenship and Immigration Act2009. The respondent, the Secretary of State for the Home Department, by a decision intimated on 20 June 2013, refused that application. On 18 September 2013 the respondent decided to maintain her previous decision. By way of application for judicial review the petitioner seeks reduction of these decisions and certain declarators. [2] The petitioner, who was born in the United States [US] on 16 June 1978, claims British citizenship through descent from her mother. The petitioner’s father was a citizen of the US. The petitioner is a US citizen by virtue of her birth. However, the petitioner’s mother, who was born in South Africa on 16 February 1948, is a British citizen by virtue of her father having been born in the UK. The petitioner’s mother was in South Africa at a time when she was pregnant with the petitioner.The petitioner avers that while her mother was in South Africa she contacted the British consulate in Johannesburg enquiring about the possibility of securing British citizenship for her then unborn child. The petitioner[’s mother] was informed by a consular official that registration of the forthcoming child’s birth would serve no purpose, as nationality could only be passed through the male line. As a consequence of that advice, the petitioner’s mother did not register her birth, when that event occurred, with the British consulate. [3] On these averments, which the petitioner offers to prove, and on a proper construction of s.4C of the 1981 Act, the petitioner claims that she is entitled to be registered as a British citizen and therefore that the respondent’s decision of 20 June 2013 to refuse her registration was unlawful. The LordOrdinary has rejected that claim and upheld the decision of the respondent, and this on the basis that the petitioner’s proposed construction of the relevant statutory provisions was flawed. The petitioner now reclaims. If the petitioner’s primary argument were not to be made out then other lines of argument might be available to her but for present purposes this court is only concerned with the proper construction of s.4C. [4] The leading textbook on nationality law describes s.4C as “a dense and at times impenetrable piece of drafting” (Fransman, Fransman’s British Nationality Law (3rd edn), para.17.7.2.1). Nothing in our experience of endeavouring to find what must be taken to be the intended meaning of this provision would lead us to disagree with that characterisation. It is however our duty to penetrate even the apparently impenetrable. Having done so to the best of our ability, we have concluded, for the reasons set out below, that the petitioner’s proposed construction of s.4C is to be preferred over that proposed by the respondent. We intend therefore to recall the Lord Ordinary’s interlocutor of 22 January 2015 and reduce the decisions complained of. It may also be appropriate to grant a declarator but perhaps not in the precise terms sought in the petition. We shall accordingly appoint the matter to be brought out by order when, in the absence of agreement between the parties, the appropriate orders consequent upon the terms of this opinion can be discussed.

The historical background

[5] Counsel for the petitioner, like, in his turn, counsel for the respondent, adopted his written note of argument but, having acknowledged that the reclaiming motion turned on the construction of s.4C of the 1981 Act, he began his submissions with a review of the legislative history of what is now British citizenship and, in particular, the acquisition of citizenship by descent from a parent who was not born in the UK or other British possession. His starting-point was the British Nationality and Status of Aliens Act 1914.

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[6] Section1(1) of the 1914Act deems to be “natural-born British subjects” persons born: (a)within His Majesty’s dominions and allegiance; (b)out of His Majesty’s dominions and allegiance but whose father fulfils any of five specified conditions; or (c)on board a British ship. The wife of a British subject is deemed by s.10 of the Act to be a British subject, but otherwise becoming a British subject depends upon naturalisation as provided for by Pt.II of the Act. A feature of s.1(1)(b) (and, indeed, s.10) is gender discrimination. A person shall be deemed to be a natural-born British subject if the person’s father fulfils any of the specified conditions. That the person’s mother fulfils the conditions is neither here nor there. [7] The s.1(1)(b) condition to be fulfilled by the British subject father if his child is to be deemed a natural-born British subject which is of particular interest, is (v)and that is: “[the person’s] birth was registered at a British consulate within one year or in special circumstances, with the consent of the Secretary of State, two years after its occurrence. . . .” Counsel for the petitioner pointed to the feature that a person becomes a British subject by virtue of s.1(1)(b)(v) of the 1914 Act by reason of a step taken by the person’s parent. It does not depend upon an exercise of discretion by the Secretary of State. This is in contrast to the process whereby an alien may be naturalised in terms of s.2. In such a case the alien must make an application and the Secretary of State must be satisfied of a number of things, some of which are quite subjective, for example that the alien is of good character and has an adequate knowledge of the English language. If the Secretary of State is so satisfied he may grant a certificate of naturalisation. The alien must swear an oath of allegiance before the certificate of naturalisation takes effect. Provision is made by s.19(1)(a) for regulations in respect of the registration of certificates of naturalisation. [8] Section1(1)(b)(v) of the 1914 Act was repealed by s.1(1) of the British Nationality and Status of Aliens Act 1943. It was replaced by s.1(2) of the 1943Act which made some alteration to the relevant time limit but again provided that a person born outside His Majesty’s dominions whose father was at the time of the birth a British subject shall be deemed to be a naturalborn British subject provided that the person’s birth is registered at a British consulate. [9] On its commencement on 1 January 1949 the British Nationality Act1948 effected a more radical reshaping of British nationality. It introduced the concept of a citizen of the UK and Colonies, having, by virtue of that citizenship, the status of a British subject. The routes to citizenship are indicated by the cross-headings in Pt.II of the Act: citizenship by birth or descent; citizenship by registration (of citizens of specified countries, of wives and of minors); citizenship by naturalisation; and citizenship by incorporation of territory. Citizenship by birth is provided for, in straightforward terms, by s.4. Subject to two limited provisos (that the father is not the envoy of a foreign power or enemy alien) any person born within the UK and Colonies shall be a citizen of the UK and Colonies. Citizenship by descent is a little more complicated. The relevant provision is s.5. The focus of the present petition and the reclaiming motion is citizenship by descent where the birth was in a foreign country but was registered in a consulate, which in the 1948 Act is provided for by subs.(1)(b) but it is convenient to reproduce s.5 in its full terms: [His Lordship quoted the section as set out above and continued:]

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Thus, the structure of s.5(1) is to begin with the statement that a person shall be a citizen by descent if his father is a citizen. That is then subject to a proviso: if the father himself was a citizen by descent only, the person will not be a citizen. However, the proviso is subject to four factual exceptions: (a), (b), (c) and (d). If any one of the exceptions applies to the facts of the person’s case, then he shall be a citizen by descent despite his father also being a citizen only by descent. [10] The blatant gender discrimination which was a feature of the 1914 Act was accordingly retained in s.5 of the 1948 Act. It can also be seen in other provisions of the 1948 Act, for example in s.12(2). As far as consular registration is concerned this was underlined by the terms of the Registration of Births and Deaths (Consular Officers) Regulations 1948 (SI 19848/2837). Reg.2(1) provided for the keeping of a register of births of citizens of the UK and Colonies born after 1 January 1949, by way of FormA in the Schedule, which included under col.6: “Rank, profession or occupation of father and claim to citizenship of the United Kingdom and colonies” (emphasis added) To this there was a note in these terms: “To be inserted as fully as possible, followed by full particulars of his claim to citizenship of the United Kingdom and colonies”. Regulation 5(4) of the 1948 Regulations provided: “In every case the consular officer must satisfy himself fully that the national status of the person whose birth or death he is requested to register is such that the registration could properly be effected under these Regulations.” Thus, the intended effect of the 1948 Regulations, operating in conjunction with the 1948Act, was that the birth of a child abroad to a citizen of the UK and Colonies mother by descent could not be registered because that child at that time could have no claim to citizenship by being the child of its mother. [11] Some 30years passed before any formal step was taken to address the disparity in the treatment of mothers when compared with the treatment of fathers. The step was by way of a statement in Parliament by the then Secretary of State for the Home Department, MrMerlyn Rees, on 7 February 1979, as to how he would exercise the discretion conferred by s.7(1) of the 1948 Act as to the registration, on an application having been made, of a minor child of a citizen of the UK and Colonies as a citizen of the UK and Colonies. The Secretary of State was asked what action he proposed to take to help mothers born in the UK who could not transmit citizenship to their children born overseas in the way that men could. He responded: “I have decided to make some alterations to the general policy in dealing with applications by women who were born in the United Kingdom and whose children born overseas are still minors. The practice hitherto has been to refuse registration if it appeared that the child was likely to live overseas or if, when the child was living in this country, the father had taken no steps to seek out citizenship for himself. “In future, registration will not be refused on those grounds and a woman born in the United Kingdom will normally be able to have her child registered. . . . “The whole question of transmission of citizenship in the female line will be a matter to be dealt with in future nationality legislation.”

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However, inherent within the Secretary of State’s policy were two limitations: first, as it related only to minors it therefore extended only to persons born after February 1961, and, second, it related only to mothers who were born in the UK. [12] As foreshadowed in the Secretary of State’s statement, the question of transmission of citizenship in the female line was addressed in the next major piece of relevant legislation. This was the British Nationality Act1981 which came into force on 1January 1983. While it became more tightly controlled, acquisition of citizenship by descent, acquisition by birth, and acquisition by registration of minors were provided for in terms which referred to the father or mother of the person concerned (see 1981 Act, ss.1–3). However, despite the move towards gender neutrality, where the claim to British citizenship depended on the citizenship of a person’s parent, s.9 made transitional provision in respect of a person born in a foreign country within five years of commencement of the 1981 Act whose father fulfilled certain requirements. [13] The Rees policy became spent after 31 December 2000, 18 years after the birth of the last person to be born prior to the commencement date of the 1981 Act (those born after 1 January 1983 being governed by the 1981 Act). Meanwhile, on 7 April 1986, the UK had ratified the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Article9.2 of CEDAW is in these terms: “States Parties shall grant women equal rights with men with respect to the nationality of their children.” [14] With effect from 30 April 2003 the 1981Act was amended to include a new s.4C. It was inserted by s.13 of the Nationality Immigration and Asylum Act2002. Section4C in this its first version or first enactment (we have not yet come to the provision which requires to be construed) was in the following terms: [His Lordship quoted the section as set out above and continued:] As will be apparent, s.4C looks to be directed at those persons who might have benefited from the Rees policy of discretionary registration as citizens of children born overseas of mother who had been born in the UK and who had not reached the age of18 as at the date of the ministerial statement or who were born subsequently to it but before commencement of the 1981 Act and its different provisions for acquisition of citizenship by registration. Like the Rees policy it is intended to provide what Fransman at para.17.7.1 describes as an antidote to nationality law’s long-standing gender discrimination. The explanatory note to s.13 of the 2002 Act describes the function of the new section as conferring an entitlement to registration as a British citizen on persons born between 7 February 1961 and 1 January 1983 who, but for the inability (at that time) of women to pass on their citizenship, would have acquired British citizenship automatically when the 1981 Act came into force on the latter of those two dates. [15] However, and this is why the petitioner’s counsel made reference to the first enactment of s.4C although it is not the provision by which the petitioner’s claim to citizenship is to be judged, there is, according to counsel, a wider construction of the first enactment ofs.4C than that suggested by the explanatory notes. Section 4C is not limited, as the Rees policy was, to mothers born in the UK. Moreover, it grants an entitlement to registration as a British citizen on application if before 1January 1983 the applicant: “would have become a citizen of the United Kingdom and Colonies by virtue of section5 of the [1948 Act] if that sectionhad provided for

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citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father” (emphasis added). By virtue of s.5 of the 1948 Act one means whereby a person might have become a citizen by descent from a father (when the father himself was a citizen “by descent only”) was by consular registration of the birth as provided for by subs.(1)(b). The effect of s.4C in its first version, argued the petitioner’s counsel, was to entitle an applicant born before 1 January 1983 to citizenship as if s.5 of the 1948 Act “had provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father”. Thus, so counsel submitted, if an otherwise qualified applicant (born in a foreign country before 1 January 1983 Act of a British citizen by descent mother) could establish as a matter of fact that he or she would have become a citizen of the UK and Colonies by virtue of consular registration as provided by s.5(1)(b) of the 1948 Act, then he or she would have been entitled to registration as a British citizen. The “would have become” question was a purely factual one, and accordingly justiciable before the court should that be necessary: R (Harrison) v Secretary of State for the Home Department. [16] We shall leave the argument on the proper construction of the first version of s.4C there; it was merely counsel’s ranging shot before addressing the matter upon which his client’s application turns, the proper construction of s.4C as subsequently re-enacted by s.45(3) of the 2009 Act (the second enactment), a provision which came into force on 13 January 2010.

The provision to be construed: the second enactment of s.4C of the 1981Act

[17] The second enactment of section 4C is in the following terms: [His Lordship quoted the section as set out above and continued:] S.4C therefore confers an entitlement to registration as a British citizen if an applicant can meet all of three conditions. The first and third conditions are exactly the same in the second enactment as they were in the first enactment. They are not in issue. What is in issue is the second condition, as it falls to be interpreted on a proper construction of subss.(3)–(3D). [18] The petitioner’s construction of subss.(3)–(3D) of s.4C is that the meaning of the second enactment is the same as that which counsel had argued was the meaning of the first enactment as far as the retrospective effect of the consular registration provisions of s.5 of the 1948 Act is concerned. The critical wording has been retained; it is to be assumed, by virtue of assumption A, as set out in subs.(3A), that s.5 of the 1948 Act provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father. Thus, by virtue of what counsel described as a counterfactual (“if assumption A had applied”) s.5 is given retrospective effect as if it had been entirely gender neutral. However, applying a gender-neutral reading to s.5 only gives this petitioner an entitlement to citizenship if para.(b) (consular registration) can be invoked as an exception to the general effect of the proviso “if the father (or mother) of such a person . . . is a citizen . . . by descent only, that person shall not be a citizen . . .”. Consular registration requires just that: registration at a consulate; whereas as a matter of historical fact the petitioner’s birth was not registered at a British consulate, whether in Johannesburg or anywhere else.That was the first point taken by the respondent against the petitioner’s contention that s.4C gives her an entitlement to register as a British citizen: her birth was not registered, therefore exception(b) does not apply. In response, the petitioner accepted that the exception to the proviso to s.5(1) upon which she relies required consular registration, but she pointed

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to the wording of s.4C(3) of the 1981 Act which in addition to giving her the benefit of assumption A, allows her the opportunity of proving that she “would . . . have become a citizen”. One way of becoming a citizen was by consular registration if the person’s father was a citizen, albeit by descent only. Section 4C provides a first, and what might be described as a legal, counterfactual: that s.5 of the 1948 Act provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father. An applicant for citizenship can then, so argued the petitioner, by leading evidence, provide a second counterfactual: what would have been done by the applicant’s parents had the law actually been as the first counterfactual assumes it to have been. On the petitioner’s approach, if the second counterfactual is established on a balance of probabilities as a matter of fact in circumstances where the first counterfactual applies as a matter of law, then the applicant is entitled to be registered as a British citizen. [19] Against that proposed reading of s.4C, the respondent presented a second objection: it is inconsistent with subs.(3D) which provides that for the purposes of subs.(3) “it is not to be assumed that any registration or other requirements of the provisions mentioned in that subsectionor in subsection(3B) were met”. The argument on behalf of the respondent was that “it is not to be assumed” where it appears in subs.(3D), means that it is impermissible to employ a legal fiction so as to suppose that registration had taken place. In effect, subs.(3D) closes off inquiry as to counterfactual possibilities and therefore as registration had not historically been available (or at least registration in conformity to the statute and relevant regulations had not historically been available) where the child could only rely on its descent from its mother, s.4C(3)(a) had no application to exception(b) to the proviso to s.5(1) of the 1948 Act. According to the respondent, s.4C(3)(a) applied only to exceptions (a), (c) and (d). On the respondent’s approach, subs.(3D) was a statement of irrebuttable fact which limits the scope of assumption A. It is significant that the wording is “it is to be assumed that any registration or other requirements . . . were met”, as opposed to “. . . would have been met”. [20] The respondent argued that “assumed” in subs.(3D) must be taken to be a cognate with “Assumption” where that word appears in subs.(3A) and subs.(3B) (setting out assumption A and assumption B respectively). Subss. (3A) and(3B) are deeming provisions; they set out incontrovertible assumptions which must be made. Given its close linguistic and contextual connection, “assumed” in subs.(3D) should be given the same construction. The point is clearly articulated by Turner J (who found it significant) in his judgment in Navarro v Secretary of State for the Home Department: “In ordinary usage, an assumption can either be (i)an immutable premise or (ii)a working hypothesis capable of being proved wrong. In the context of section4C assumptions A and B are clearly intended to be in category(i). They are not susceptible to rebuttal in any circumstances. Thus where the cognate ‘assumed’ is deployed within subsection(3D) it is reasonable to assume that Parliament did not intend to give the concept a different meaning within the same statutory framework.” Counsel for the petitioner had an answer to the subs.(3D) point, but before turning to that, it is of interest to consider the consequence if counsel for the respondent was right when he said that (3D) was a statement of fact reducing the scope of assumption A with another equally incontrovertible assumption. What, in terms of subs.(3D) is “not to be assumed” is that, “For the purposes

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799

of subsection(3) . . . any registration or other requirements of the provisions mentioned in (subs.(3)) or in subsection (3B) were met”. The “provisions mentioned” in the two subsectionsare: s.5, s.12(2)–(5) of, and para.3 of Sched.3 to the 1948 Act; and “a provision of the law at some time before 1 January 1949 which provided for a nationality status to be acquired from a father”. When one looks at “the provisions mentioned” one sees that they provide for the acquisition of citizenship depending upon whether certain factual criteria obtain: place of birth, father’s status as a British subject whether by place of birth or father having been granted a certificate of naturalisation (prior to the commencement of the 1948 Act), father’s status as a citizen of the UK and Colonies (after commencement of the 1948 Act), father’s Crown service, and marriage to a British subject. At first blush these factual criteria might be thought to be “other requirements of the provisions”, but were that so, and were the respondent correct in construing “assumed” in subs.(3D) as establishing what Turner J in Navarro described as an immutable premise, then s.4C(3) would be deprived of all effect whatsoever. Counsel for the respondent recognised that. He accordingly offered a narrower construction of “other requirements” as confined to things which required to be done in order to secure citizenship by descent, as opposed to events or states of affairs, such as a person’s father being in Crown service. An example of something requiring to be done, other than registration, (and perhaps the only example) would be an application for the inclusion of a child in a certificate of naturalisation in terms of s.5 of the 1914 Act. Despite the paucity of examples, counsel for the respondent pointed to the textual context. The phrase under consideration is “registration or other requirements of the provisions”. A construction ejusdem generis would therefore suggest that “other requirements” was a reference to things similar in character to registration, in other words administrative or clerical things which required to be done if citizenship was to be acquired. While that avoids a nonsensical outcome while preserving the respondent’s construction of “assumed”, it is hardly convincing. The natural meaning of “other requirements of the provisions” is everything else that the provisions require. [21] The answer provided by counsel for the petitioner to the respondent’s subs.(3D) point was succinct. It was unimportant whether “assumed” was intended as giving rise to an immutable premise or a working hypothesis because, whichever it was, it was “not to be assumed”. Therefore, as nothing was to be assumed in relation to consular registration, it was open to an applicant to prove (the onus being on him or her) that had the law been as assumption A required it to be assumed it was, the applicant’s birth would have been registered at a consulate. That is what the petitioner was offering to prove. We observe that on the petitioner’s approach to subs.(3D) there is no difficulty about giving the expression “other requirements of the provisions” what we would see to be its natural meaning. [22] We are with the petitioner. Contrary to what we understand to have been conceded to the Lord Ordinary, it is the respondent’s construction of subs.(3D) with the unnaturally narrow meaning which it gives to “requirements” which we would see to be strained rather than the petitioner’s construction of the subsection, which seems to us to be quite straightforward. However, for the petitioner to be entitled to be registered as a British citizen by virtue of s.4C she must satisfy the condition that she “would . . . have become a citizen . . . under section5 of . . . the 1948 Act”. We have set out the petitioner’s position on that when discussing the first enactment: s.4C allows her to prove this as a second and evidence-based counterfactual. Not so, submitted counsel

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for the respondent advancing his third and fourth objections to the petitioner’s construction. “Would . . . have become . . . under section 5” indicates certainty. What the phrase means is that the applicant would necessarily have become a citizen by operation of law independent of anyone’s actions. Moreover, the petitioner’s construction would make the provision unworkable. It would be impossible to test or properly verify an assertion that the birth would have been registered (a consideration which influenced the Lord Ordinary). Where a decision on nationality was to be made depending on potentially uncertain circumstances the expectation would be that the statute would use the formula “the Secretary of State is satisfied”, as in s.4B(2). [23] We see the force of the contention that, taken in isolation, the phrase “would . . . have become . . . under (a particular statutory provision)” is suggestive of the necessary legal consequence of some antecedent state of affairs. That reading fits well with s.12(2)–(5) of the 1948 Act where each of the subsectionsreferred to in s.4C(3) of the 1981 Act provides that either a “person” or “woman”, “who was a British subject immediately before the date of the commencement of this Act, shall on that date become a citizen of the UK and Colonies”. It fits less well with s5. S.5 looks to the situation of “a person born after the commencement of this Act”. The section provides, through a structure of exceptions to the proviso, that such a person, born of a citizen of the UK and Colonies father, albeit a citizen by descent, “shall be a citizen of the United Kingdom and Colonies” if one or other of the set of circumstances identified in exceptions (a), (b), (c) and(d) apply. However, because that is what the subsection provides in terms, for the purposes of s.4C(3) it must be taken to be conceptually possible that an applicant would “have become” a citizen “under section5” had the 1948 Act provided for citizenship by descent from a mother. According to the respondent, that is so but only by virtue of the para.(a), (c) and (d) exceptions, not by virtue of the para.(b) exception. [24] We are unable to accept this distinction. Once the s.5 exceptions, together with a parent’s citizenship, are taken to be ways by which a person may become a citizen we cannot see a satisfactory basis for distinguishing among the exceptions on the basis of certainty of outcome. Each of the exceptions is a set of factual circumstances which, if disputed, would have to be established on a balance of probabilities as a matter of fact. True, with the (a), (c) and (d) exceptions what is in issue are historical facts (things that have actually happened), a mother’s Crown service at the relevant time, for example; while with exception(b) what is in issue is counterfactual, what it is likely the parents of the applicant would have decided to do and would have done had the law been as assumption A requires it to be assumed that it was. However, where there is no provision which expressly excludes exception(b) as a way by which an applicant “would . . . have become” a citizen, we do not see that it can be excluded by implication. That it might be difficult for an applicant to prove that exception(b) would have applied to his or her case does not have the result that the construction contended for by the petitioner is unworkable. Courts of law are very familiar in a variety of different contexts with deciding what would have happened had events or circumstances been different than they were, even where doing so requires coming to a view as to how the people involved were likely to have acted. We are simply not persuaded by the respondent’s submission that where entitlement to citizenship depends on matters of uncertain fact, one would expect to find the formulation “the Secretary of State is satisfied that the applicant would . . . have become a citizen of the United Kingdom and Colonies”. No doubt the statute might

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Romein v Advocate General for Scotland (IH)

801

have been framed in these terms (s.6(3) of the 1943 Act provides an example of a similar provision) but, as the petitioner submitted, that would have been to shift what ex hypothesi is the meaning of the provision from an entitlement to citizenship to a recognition of citizenship at the discretion of the Secretary of State. [25] The respondent’s fifth reason for rejecting the petitioner’s proposed construction of s.4C was that it would result in unequal treatment for someone in a comparable position to the petitioner, but born between 1919 and 1948. The argument was as follows. Similar provision to s.5 of the 1948 Act was made for those born between 1915 and 1948 by virtue of s.1(b)(v) of the 1914 Act as amended by the British Nationality and Status of Aliens Act 1922 and s.1(2)(b) of the British Nationality and Status of Aliens Act 1943. Under each Act, a person whose father was a British subject by descent became a British subject if his or her birth was registered at a consulate. Section 19(1)(c) of the 1914 Act allowed for regulations to be made providing for consular registration of births, but only of “British subjects”. Therefore, to acquire citizenship by virtue of s.1(b)(v) of the 1914 Act or s.1(2) of the 1943 Act, a person required to have his or her birth registered at a consulate, registration being of the person’s status as a British subject. However, s.4C(3C)(b) of the 1981Act directs, put shortly, that measures providing for citizenship by descent were not to be treated as covering children of mothers who were British nationals where the provision depended on “an application being made for . . . (that person’s) registration as a person who has the status in question”. It follows that someone born between 1915 and 1949, whose mother was a British subject, who would have become a British subject if their father was a British subject and there had been consular registration of the birth, would not benefit from s.4C of the 1981 Act. This, it was argued on behalf of the respondent, was an indication that the petitioner’s construction was not correct; Parliament could not have intended to treat differently persons born in otherwise identical circumstances between 1919 and 1948, when compared with those born between 1949 and 1982. [26] We have been persuaded by the petitioner that no inconsistency of treatment such as is posited by the respondent arises on a proper construction of the relevant provisions in relation to persons born between 1919 and 1948. What s.4C(3C) is concerned with is a situation where in terms of the pre-1949 legislation the acquisition of nationality depended on the nationality status of a parent but did not depend upon “an application being made for . . . registration”. The inclusion of “application” was significant. As counsel for the petitioner pointed out at the beginning of his review of the historical background, s.1(1) (b)(v) of the 1914 Act, which provides for consular registration, makes no reference to “application”. The point is not simply textual. Where provision is made for a person to apply or for an application to be made, that indicates that what is sought may be refused or, at the very least, a decision must be made to grant what is sought. By contrast, consular registration, where timeous, is a matter of right. There are provisions of the 1914 Act relating to the acquisition of nationality by descent which fit with a requirement for an application and for registration to which s.4C(3C) may be taken to apply. Section 2 provides for an alien making an application for a certificate of naturalisation. Section 5 provides for including the name of any child of the alien in the certificate. Section 19 provides for the making of regulations as to, among other things, the registration of certificates. Thus, because the relevant provision for consular registration makes no reference to application, s.4C(3C)(b) does not prevent pre-1949 acquisition of citizenship by descent and consular registration, being “a

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802 A

5343.indd 802

Romein v Advocate General for Scotland (IH)

2016 S.C.L.R.

nationality status . . . acquired . . . by descent” for the purposes of subs.(3B). The respondent’s reply was to recognise that a meaning had to be found for “application” where it appeared in s.4C(3C)(b) but to argue that the need for an application was implicit in presenting oneself at or addressing oneself to a consulate with a view to the registration of a birth. We are not persuaded. We accept that as a matter of common parlance one might consider “apply to register” as an appropriate expression to describe the necessary step of bringing what one wished to register to the attention of the registration authority, thereby permitting the next step being the interaction which might be described as “registration” and that therefore before it can be said of a birth that it “was registered”, which is the wording of s.1(b)(v) of the 1914 Act, there must in that sense have been an application to register. However, where the context is one of interaction with an administrative authority with a view to achieve a particular result, “application” or its cognate “apply”, have well understood and specific meanings which are different from “registration” or “register”. As counsel for the petitioner submitted, an “application” is a request for a power to be exercised in one’s favour. The critical act is that by the authority to which the application is made. Registration, on the other hand, is a matter of right (or perhaps duty); it is the act of the person who has addressed himself to the administrative authority. Where “application” appears in an Act of Parliament the expectation is that it is being used in the more formal sense of a request for a power to be exercised in one’s favour. Also favouring the petitioner’s construction of s.4C(3C) over that of the respondent is that if the meaning of the subsectionwas as the respondent would have it, there would be no need for s.(3D) to include “registration . . . requirements of the provisions mentioned . . . in subsection(3B)” because if the respondent’s construction of s.4C(3C) were correct, there would be no relevant “registration . . . requirements of the provisions mentioned . . . in subsection(3B)”; they would have been excluded by subs.(3C)(b). [27] In a sixth objection to the petitioner’s construction of s.4C, the respondent pointed to the consequential inconsistency in treatment as between the petitioner and someone in a comparable position to the petitioner, but born between 1983 and1987. This is because s.9 of the 1981 Act specifically continued the discriminatory effect of s.5 of the 1948 Act by allowing the acquisition of citizenship by virtue of consular registration and descent from a father (but not mother) for a period of five years after commencement of the 1981Act. According to the respondent that was a factor pointing away from the petitioner’s construction. The petitioner’s response was to accept the inconsistency but to explain it as a deliberate decision of Parliament which was in line with the terms in which the UK had ratified CEDAW on 7 April 1986. That requires elaboration. [28] Parties were agreed that in construing an Act of Parliament it is relevant to have regard to the UK’s obligations under international treaties. Ratification of a treaty is an act of the executive in exercise of a Crown prerogative, but in interpreting a statute it is to be presumed that Parliament did not intend to act in breach of international law and in particular did not intend to legislate in contravention of treaty obligations, and therefore if one meaning is consonant with such obligations and another is not, it is the meaning which is consonant which is to be preferred: Salomon v Custom and Excise Commissioners, Diplock LJ atp.143; Bennion, Bennion on Statutory Interpretation (6thedn), p.745. Here the treaty or convention in question is CEDAW, adopted by the UN General Assembly on 18 December 1979 and ratified by the UK on 7April 1986. Of particular importance is art.9.2 which

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803

provides that parties shall grant women equal rights with men with respect to the nationality of their children. The petitioner argues that her preferred construction of s.4C more nearly provides for the equal rights of women with respect to the nationality of their children than the respondent’s preferred construction and that therefore she can rely on the presumption that Parliament intended to legislate in accordance with the UK’s international obligations, but for the purpose of explaining the apparent anomaly arising from s.9 she points to what precisely it was that the UK signed up to when it ratified the convention. [29] On ratification the UK stated certain reservations to CEDAW, so limiting the extent to which it was bound by it. One reservation was specific to art.9: “The British Nationality Act1981, which was brought into force with effect from January1983, is based on principles which do not allow of any discrimination against women within the meaning of Article1 as regards acquisition, change or retention of their nationality or as regards the nationality of their children. The United Kingdom’s acceptance of Article9 shall not, however, be taken to invalidate the continuation of certain temporary or transitional provisions which will continue in force beyond that date.” Thus, as the petitioner submitted, her construction, when taken with s.9, may give rise to an inequality of treatment as between those born between1983 and 1987 and those born between 1949 and 1982 but the UK had stated that it reserved its right to maintain inequalities over a transitional period and Parliament in enacting subsequent legislation may be taken to be aware of that. [30] Had we found ourselves in doubt as to which of the petitioner’s or the respondent’s constructions should be preferred, we would have regarded art.9.2 as weighing on the petitioner’s side of the balance. Both parties were agreed that a purpose of the 1981 Act, as subsequently amended in terms of both the enactments of s.4C, was to reduce gender discrimination in the acquisition of citizenship. We accept that achieving that purpose retrospectively may introduce practical difficulties and that Parliament may reasonably have accepted an imperfect legislative outcome. Nevertheless, given the accepted purpose, as reinforced by the international obligation, we would see that the intention of Parliament is more likely to have been to achieve a greater rather than a lesser degree of reduction in discrimination. [31] Two other external aids to construction were drawn to our attention in the course of the discussion. The first was a statement in Parliament by the Home Office Minister, Lord Filkin, on 31October 2002, explaining the purpose of what became the first enactment of s.4C (HL Deb, vol.640 col.295). It was relied on in the respondent’s note of argument but counsel for the respondent departed from any such reliance in the course of submissions. The second external aid was relied on by the petitioner. It was a parliamentary statement contained in a letter from Lord Brett, dated 20March 2009, which was written to Lord Avebury but copied to all Members of the House and deposited in the library. Lord Brett was the Government minister responsible for what would become the second enactment. In the letter of 20 March 2009, which was written in the context of a proposed amendment to what would become subs.(3D), Lord Brett noted as follows: “In our recent discussions it has been suggested that mothers unable to transmit their citizenship status under the (1948 Act) may not have taken

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Romein v Advocate General for Scotland (IH)

2016 S.C.L.R.

action, such as consular registration of their child born overseas, because they would divine no practical benefit from doing so. However, some women who gave birth to children in such circumstances did in fact consularly register their child: that child would now be caught by the parametres (sic) of section 4C. We do not think it appropriate to make assumptions about what the parent would have done if the law had been framed differently: we continue to believe it appropriate to focus on the available facts and evidence rather than make assumptions on behalf of parents, many of whom may now be deceased.”

Counsel for the petitioner referred to the opinion of Lord Hope in Gow v Grant at para.29 for the proposition that a letter was one way in which the promoter of legislation might identify what he intended by it and so become part of material it was permissible to consider when construing statute by virtue of the decision in Pepper v Hart. We do not propose to follow counsel’s invitation and give weight to the ministerial letter. First, although the process has not been entirely straightforward we consider that we have arrived at the proper construction of the relevant provisions by the primary route, which is by examination of the text and attribution of its natural meaning. It is therefore unnecessary to consider external material. Second, we do not regard the precise meaning of the minister’s letter to be clear. He introduces the information that despite the terms of the relevant statutes and regulations, some mothers did succeed in registering the births of children at British consulates. He suggests that these irregular registrations might be retrospectively validated by operation of s.4C but not only does he not explain why, he does not make clear whether or not he considers that only such irregular registrations are covered. What he goes on to say about “assumptions about what the parent would have done” might be read as supporting the petitioner’s construction of the sectionbut, again, we do not find this sufficiently clearly stated to warrant the letter being relied on.

Conclusion

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[32] We can now summarise our overall approach. There is no good reason to limit the scope of s.4C(3) as first enacted in 2002, and it is inherently unlikely that the revised version in 2009 was intended to reintroduce aspects of gender discrimination previously discarded. On the contrary, the intention in 2009 was to broaden the sweep of s.4C, for example to cover other routes to British citizenship beyond s.5 of the 1948 Act. [33] The terms of s.4C as enacted in 2009 provide for a successful application if, amongst other things, it can be proved that the birth of a person would have been registered had s.5 of the 1948 Act provided for citizenship by descent from a mother or a father in equal terms. Subs.(3D) is framed in the negative. It excludes things, in particular there are to be no assumptions made in favour of the application. For example, as Fransman notes (para.17.7.2.4), there is to be no assumption that a British mother by descent would have registered her child’s birth. The provisions could have, but do not prohibit an application based upon the registration provisions in s.5 of the 1948 Act. [34] Subsection(3D) simply puts an applicant to proof of his or her claim, in that it is “not to be assumed” that the various criteria for entitlement to citizenship were met. There might be correspondence showing that enquiries were made at the time, but only the mother was a British citizen by descent. In such a case the requirements would be met by proof that registration would have taken place and the applicant would have become a citizen of the UK and Colonies. On the other hand, a claim might fail because registration would

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Romein v Advocate General for Scotland (IH)

805

never have taken place in that it would have resulted in loss of citizenship of the place of birth and residence. Or an applicant might be unable to prove that his mother was in Crownservice at the relevant time. [35] In short, subs.(3D) is designed to ensure success only for those applicants who can show that they would have become citizens of the UK and Colonies if mothers had been treated in the same way as fathers. Were it otherwise, applicants under s.4C might gain citizenship even though they were not victims of discrimination. Furthermore, in our view, the respondent’s approach to subs.(3D) robs s.4C(3) of all effect, since her interpretation cannot be limited to only some of the requirements of the provision. [36] We find ourselves in respectful disagreement with not only the LordOrdinary but also the learned judge in Navarro. On a proper construction of s.4C(3) the petitioner is entitled to be registered as a British citizen if she can prove that she would have become a citizen of the UK and Colonies by virtue of s.5 of the 1948 Act if the assumption set out in s.4C(3A) had applied at the relevant time. For completeness we record that the appealhearing did not address the issues potentially arising under ECHR, since they would be relevant only if the court was against the petitioner on the construction issue. The reclaiming motion will be allowed and the petitioner’s application remitted to the respondent for reconsideration. However, in the meantime we shall put the case out by order for discussion as to the appropriate terms of the court’s interlocutor, including any declaratory orders. For the petitioner and reclaimer: McBrearty QC, Irvine, instructed by McGill & Co, Solicitors, Edinburgh. For the respondent: Johnston, Komorowski, instructed by Office of the Advocate General, Edinburgh.

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Elections— Leaked confidential memo Morrison v Carmichael (EC)

643

718

Human Rights— Judicial review —Assisted suicide Ross v Lord Advocate (IH)

764

Medical records—Confidentiality WF, Petitioner (OH)

694

Interpretation of statutes— British citizenship Romein v Advocate General for Scotland (IH) 789 Judicial review— Human rights—Assisted suicide Ross v Lord Advocate (IH) 764

SCOTTISH CIVIL LAW REPORTS

Expenses— Protected expenses order Gibson, Petitioner (IH)

December 2016 2016 S.C.L.R. 643−806

Human rights—Medical records— Confidentiality RWF, Petitioner (OH) 694

2016 S.C.L.R. 643–806

*657946*

Romein v Advocate General for Scotland (IH) 789 Ross v Lord Advocate (IH) 764 WF, Petitioner (OH) 694