30 March 2016
In the news
Radovan Karadžić, the former Bosnian Serb leader, has been sentenced to 40 years in jail for genocide and war crimes committed during the 1992-95 Balkans war, including the massacre of more than 8,000 Bosnian men and boys at Srebrenica and the siege of Sarajevo, during which 13,952 people were killed. Despite the 70-year-old former leader’s insistence that his actions were aimed at protecting Serbs during the conflict, he was found guilty of 10 out of the 11 charges he faced, in a verdict delivered 18 months after the end of his five-year trial.
Karadžić had been indicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) which was established by the UN in 1993. He was on the run for the next 13 years, during which time he assumed the identity of ‘Dr Dragon Dabic’, a bearded health guru who lived openly in the Serbian capital. He was finally arrested in 2008 and handed over to the Hague by the Serbian government.
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24 March 2016
“Roses are red.
Violets are blue.
Whatever your political colour;
Human rights should matter to you”
Some legal oratory flows into the profound, beautiful and inspiring. Most of the time when it comes to poetry – as this particularly appalling ditty is designed to demonstrate – we lawyers should stick to the day job.*
This week human rights commentators celebrated both World Poetry Day and the launch of a new project on the conservative commitment to human rights. Announcing a Commission made up of MPs and commentators – including Maria Miller MP, Dominic Grieve QC MP and Matthew D’Ancona – Bright Blue this week published a series of essays by Conservative leaders on a range of human rights threats; from the refugee crisis to the repeal of the Human Rights Act.
Bright Blue now joins the Labour Campaign for Human Rights in taking steps to take the current debate beyond the heat and light of party politics and into a greater conversation about how we protect the rights of the most vulnerable in our communities and about the UK’s place in the world.
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22 March 2016
Brought to you by Hannah Lynes
In the news
According to research released by the Home Office, large increases in stop and search operations have no discernible effect on crime reduction. The official study examined crime rates across 10 London boroughs in the first year of Operation Blunt 2, which led to a surge in the number of searches from 34,154 in the year before to 123,335 in 2008/2009.
The findings are likely to lend support to the position of the Home Secretary, Theresa May who in 2014 introduced new measures to curtail reliance on the powers. She has previously been critical of claims by the Metropolitan Police that a rise in knife crime in recent months is linked to a drop in the use of stop and search, warning against a “knee-jerk reaction.”
Police powers to conduct the searches have proved highly controversial, with campaigners arguing that ethnic minority groups are disproportionately targeted. An analysis by the Independent found that between December 2014 and April 2015, black people were more likely to be stopped than white people in 36 out of 39 police forces.
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15 March 2016
Photo credit: The Guardian
In Secretary of State for Justice v Paul Black  EWCA Civ 125 (read judgment) the Court of Appeal ruled that the Crown was not bound by Part 1 of the Health Act 2006 to ban smoking inside public prisons.
Paul Black, an inmate at HMP Wymott in Lancashire, complained that prison smoking rules were being flouted and should be made legally enforceable under Part 1. His lawyers told the hearings he suffered from a range of health problems due to frequent exposure to second-hand smoke, in particular on prison landings, in laundry rooms and in healthcare waiting rooms.
The Master of the Rolls, Lord Dyson, gave the only judgment. He identified the relevant issue as whether Part I of the Health Act 2006 applied to Crown premises, and in particular whether it applies to HMP Wymott. Part 1 made provision for the prohibition of smoking in certain defined ‘smoke-free’ premises and places, as well as for exceptions to the general prohibition. Section 3(2) enables ministers to make a special exemption for prisons.
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8 March 2016
Two important Supreme Court judgments concerning vicarious liability were handed down last week.
Mohamud v WM Morrison Supermarkets  UKSC 11 affirms the “close connection” test set out in Lister v Hesley Hall Ltd  UKHL 22 and rejects the formulation of a new test for vicarious liability based on “representative capacity”.
Cox v Ministry of Justice  UKSC 10 extends the sorts of relationships where a defendant can be made vicariously liable for the conduct of an individual and evaluates Various Claimants v Catholic Child Welfare Society  UKSC 56 (the ‘Christian Brothers’ case)
The two judgments are intended to be complementary; Mohamud addresses the relationship between the defendant and the wrongdoer while Cox centres on the sufficiency of connection between that relationship and the wrongdoer’s act such that the defendant can be held vicariously liable.
The claimant was assaulted at a Morrisons petrol station by an employee, Mr Khan. The claimant had entered the petrol station and had enquired about using printing facilities. Mr Khan responded using foul, racist and threatening language before following the claimant out ino the forecourt where Mr Khan punched and kicked him.
The Court of Appeal found that there was not a sufficiently close connection between what Mr Khan was employed to do and his tortious conduct so as to give rise to vicarious liability on the part of Morrisons. The “close connection” test was applied as laid down by Lord Steyn in Lister.
Lord Toulson gave the leading judgment in Mohamud. He surveyed the origins and development of vicarious liability and explored the possibility of a new, broader test based on “representative capacity”. The new test was dismissed by the court, it being unclear whether the “representative capacity” approach was substantively different to the “close connection” test [46,53]. However, the judgment provides a clear exposition of the developments and shortcomings in the law on vicarious liability.
Lord Touslon draws together various authorities to identify the underlying public policy rationale for vicarious liability, first enunciated by Holt CJ in Boston v Sandford (1691) 2 Salk 440 . It was described by Scarman LJ in Rose v Plenty  1 WLR 141 at p148 as follows:
“But basically, as I understand it, the employer is made vicariously liable for the tort of his employee… because it is a case in which the employer, having put matters into motion, should be liable if the motion which he has originated leads to damage to another”
Lord Touslon examined the second limb of the Salmond definition of vicarious liability (Salmond, J.W (1907) The Law of Torts London: Stevens & Haynes). The second limb relates to “unauthorised modes of authorised acts” which was unsatisfactorily applied to cases such as the Lister case concerning sexual abuse.
The Supreme Court preferred a broader approach and endorsed the dicta of Lord Cullen in Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co (1925 SC 796, 802). Lord Cullen considered whether the tortious conduct was “within the field of activities” assigned to the employee.
The thrust of the Supreme Court’s analysis in Mohamud case was: 1) the nature of the employee’s job was to be considered broadly; and 2) the court ought to examine whether there is sufficient connection between the employee’s position and his wrongful conduct to make it just for the employer to be held liable .
Lord Toulson then addressed the imprecision of the close connection test quoting from Lord Nicholls in Dubai Aluminium Co Ltd v Salaam  UKHL 48, who pointed to:
‘…the lack of guidance on the type or degree of connection which will normally be regarded as sufficiently close to prompt the legal conclusion that the risk of the wrongful act occurring, and any loss flowing from the wrongful act, should fall on the firm or employer… this lack of precision is inevitable, given the infinite range of circumstance where the issue arises.’
Lord Touslon concluded that courts are required to make an evaluative judgement when applying the test and consider all of the circumstances. Lord Dyson agreed with the inevitability of imprecision, likening it to a ‘quest for a chimaera’ .
In the present case, the court found that Mr Khan had not “metaphorically taken off his uniform” when the tortious action occurred . Lord Toulson considered it “a seemless episode” where Mr Khan also ordered the claimant to keep away from his employer’s premises. Taken together, Mr Khan’s actions were pursued in connection with the business in which he was employed and therefore Morrisons was vicariously liable.
Lord Dyson added that vicarious liability law is on the move but only in relation to the relationship between individual and defendant, not in regard to the circumstances when an employer may be held vicariously liable .
This was a case about a prisoner working in the kitchen of HMP Swansea who negligently dropped a 25kg bag of rice on to the claimant, causing serious injuries. Ms Cox was working at the time as the prison’s catering manager. She claimed that the Ministry of Justice was vicariously liable for the prisoner’s actions.
Lord Reed gave the leading judgment. He noted that the Christian Brothers case identified five features which could be applied in situations where there is a contract of employment and where there is no such contract but the relationship bears all the hallmarks of a contractual employment relationship. In that case, Lord Phillips said :
“…There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied:
- i) The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (“means”)
- ii) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
iii) The employee’s activity is likely to be part of the business activity of the employer;
- iv) The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;
- v) The employee will, to a greater or lesser degree, have been under the control of the employer.” (“control”)
Lord Reed said that the five features are not all equally significant. He added that features relating to “means” or “control” are no longer independently significant or realistic in modern life [20,21]. Lord Phillips in Christian Brothers weaved together the remaining three features ((ii),(iii) and (iv) above). These are inter-related and can produce a situation whereby a relationship other than one of employment is in principle capable of giving rise to vicarious liability.
Lord Reed focused on the integration, of the employee’s activities with the employer’s business, citing with approval Lord Phillips’ summary of Ward LJ’s approach in E v English Province of Our Lady of Charity  EWCA Civ 938 where Ward LJ asked:
“whether the workman was working on behalf of an enterprise or on his own behalf and, if the former, how central the workman’s activities were to the enterprise and whether these activities were integrated into the organisational structure of the enterprise” 
Lord Reed confirmed that the scope of vicarious liability extends beyond acts or omissions during the course of the worker’s employment. However, it does not extend to where a tortfeasor’s activities are entirely attributable to his independent business or a third party’s business. The court considered that this new wider scope should protect victims whilst acknowledging changes in the legal relationships between enterprises and their workforces .
Applying the above analysis, the court considered (i) that prisoners are integrated into the operation of prisons and (ii) that prisoners’ activities are an integral part of the prison service’s activities. Consequently, the MoJ was vicariously liable in the present case.
In short, many will see these judgments as extending further the circumstances in which vicarious liability will be held to exist. The concept of workers acting ‘on a frolic of their own’ has perhaps never been so tightly circumscribed.
8 March 2016
Photo Credit: The Financial Times
In the news
Stemming migration flows from Turkey has been set as “a priority” at the 7 March emergency summit of EU and Turkish leaders in Brussels. EU officials are seeking to persuade Turkey to enforce the ‘action plan’ signed in November, under which Ankara agreed to curb the number of refugees crossing into Greece in return for three billion euros in aid and the speeding up of its EU membership bid.
However, human rights groups have been critical of the EU focus on ensuring refugees remain in Turkey. Amnesty International warned ahead of the meeting that is was “unacceptable” to expect that responsibility should be carried by a country already hosting three million refugees.
“Using Turkey as a ‘safe third country’ is absurd. Many refugees still live in terrible conditions, some have been deported back to Syria and security forces have even shot at Syrians trying to cross the border,” said Gauri van Gulik, Amnesty’s Deputy Director for Europe and Central Asia.
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