‘Glasgow and the Gallows’

Bet you didn’t know that there was only ever one serving polis who was sentenced to death in this country.

PC James Ronald Robertson (colloquially known as ‘Big Ronnie’, pictured below) was handed the grim sentence in Glasgow more than 70 years ago. At that time, he was a ‘beat cop’ and had been having an illicit extra-marital affair with a Catherine McCluskey, who lived in Nicolson Street in the city’s Gorbals district which was part of the area Robertson covered. His part in the murder of a young single mother became one of the most salacious incidents in the history of criminal law in Scotland. One suspects principally because he was a Police Officer, someone inherently trustworthy.

(Constable Robertson)

Robertson himself was already married and had two children. In the summer of 1950 he decided to finish his relationship with McCluskey.

The date was 28th July. The police officer was on nightshift but left his post and collected McCluskey (in a vehicle he himself had stolen several weeks earlier). McCluskey appeared to have asked him for money to pay for her rent and an argument ensued. (Whether this was actually her bribing him, full in the knowledge that he had a wife and children, is a matter of opinion.) They ended up in Prospecthill Road which runs adjacent to Hampden Park in the city’s Toryglen district.

They both exited the vehicle and the shouting match continued. It is alleged at this point that Robertson struck McCluskey with his truncheon. This knocked her to the ground, whereupon Robertson quickly got back into his car (below) and proceeded to run over her body several times. He then calmly returned to his beat and completed his shift.

Glasgow policeman who killed secret lover case to be probed by  ex-prosecutor - Glasgow Live
(The ‘Austin’ motor vehicle used by Robertson and, in this case, the murder weapon).

A little after midnight, a local taxi driver, John Kennedy, raised the alarm when he found McCluskey’s body in the road. The initial assumption was that she was either drunk or had been the victim of a ‘hit and run’ road traffic accident. However, when Traffic Officer PC Kevan arrived at the scene, he examined the various tyre-marks and the nature of McCluskey’s injuries and suspected that this was not the case and that she had been murdered, actually having been the victim of a very serious crime, with a motor vehicle used as a weapon.

It soon became evident that there was an existing relationship between the deceased and Robertson with suspicion that he was even the father of one her two children. She had previously (allegedly) stated to a friend that the father of her youngest was a ‘guy called Robertson’. Further, one of Robertson’s own Police colleagues was soon interviewed and admitted under questioning that he had frequently ‘covered’ for Robertson whilst he ‘left his beat’ to ‘meet a woman’.

With the finger of suspicion pointed firmly in the direction of the officer, he was quickly arrested and the Austin car impounded. A forensic examination of the vehicle soon uncovered ample evidence on the underside of it that connected it with Catherine McCluskey.

He was soon charged with her murder. At his trial at the High Court in Glasgow (which began on 6th November 1950) and which attracted almost unprecedented interest (presumably because of the heinous abuse of his position), his ‘defence’ shocked the court. He denied knowing her well at all and said, on the night in question, he had agreed to ‘give her a lift’ but, when she asked to be taken to Neilston, a fair distance away, he refused. She then exited the vehicle and he drove off. He then ‘changed’ his mind and reversed back, knocking her down and (inadvertently) driving over her. A preposterous and outlandish story which was not believed by the jury.

A guilty verdict was returned by them within an hour and the trial judge, Lord Keith, sentenced him to death.

Glasgow Times:

On 16th December 1950 at 8.13am, the above notice was pinned to the gates of HMP Barlinnie and Robertson was hanged.

(A grim picture of HMP Barlinnie from 1951, where Robertson was hanged only a few months earlier).

A timely reminder for the public at the time that even those who are charged with our protection can themselves ‘do wrong’. And, when they do so, they must face the full force of the law. I thought it rather apt to run a story such as this in light of the recent Sarah Everard case and her murder by a serving police officer. Had Couzens been convicted back in the 50s, he would doubtless have faced the death penalty, too. Indeed many have called for the return of it in light of that case. But that is for another day. And another blog.

Stay safe everyone.

‘The Hillsborough Case & psychiatric injuries’

The joys of ‘Delict’ with particular emphasis of all those old nuggets of ‘negligence’, ‘duty of care’ and ‘reasonable foreseeability’ are the current topics being delivered by Mr. O. An inescapable mention of ‘that snail in that bottle in that café’ is always necessary and, if truth be told, wonderful! Teaching Delict without Donoghue is simply ‘not right’ 😉

A natural extension, however, is to progress to ‘nervous shock’. Exemplified by, inter alia, Bourhill v Young (1943) AC 92 (strictly concerning the scope of liability to those not directly involved with an accident) and especially McLoughlin v O’Brian (1983) 1 AC 410.

The litigation in regards to today’s case originated as a consequence of the horrific events in Sheffield in April 1989. Liverpool were playing Nottingham Forest in an FA Cup Tie when a crush occurred claiming the lives of 95 fans (this would later rise to 97 with two further deaths after the event). Policing of the match was the responsibility of South Yorkshire Police. They allowed entry to an excessive number of Liverpool supporters at the ‘Leppings Lane’ end of the ground. Consequently, with a grossly excessive number of fans in an area designed for far fewer, the ensuing commotion caused a catastrophic crush and multiple fatalities occurred with hundreds more injured.

The game was live on TV (relatively rare for the time) and the ensuing carnage was inadvertently beamed into millions of homes throughout the country.

Hillsborough: Timeline of the 1989 stadium disaster - BBC News

Ostensibly, this legal case required significant input by the medical profession vis-à-vis ‘psychiatric illness’. The House of Lords (as then was) had already determined this in McLoughlin (supra.). Here, with so many potential claimants, it was effectively looking at the concept of PTSD.

The cases of Bourhill and McLoughlin have many overlapping aspects. Neither Pursuer ‘witnessed’ the accident and, in certain respects at first glance many have questioned whether either should have been successful. But whilst the holding in Bourhill was that the late Mr. Young could not have been expected to ‘have had (Mrs. Bourhill ) in his contemplation’ – in the Atkinian sense – there was that very expectation in McLoughlin, although it should be noted she was successful on appeal to the Lords having initially been unsuccessful in her claim.

It is perhaps somewhat easier to see why when you examine the relationship which, after all, is central to the whole issue (

even more vital following the ruling in Alcock). The law was effectively saying in Bourhill that Young had no duty of care to her as there was ‘no relationship’ that would obviously and overtly result in her being seriously and psychologically affected. Nor did Young have any duty of care incumbent upon him in terms of the ‘damnum‘ maxim. However, in McLoughlin, it is hopefully easy for us all to agree that being told one of her children had been killed in a road accident and the rest of her family seriously injured would in all probability for us all, give rise to substantially more than a ‘mere fright’.

Fearing the floodgates might open, the Lords were nonetheless on the horns of a dilemma. Whilst there were perfectly valid (and understandable reasons) for there to be a deluge of claims following Hillsborough, a ‘line had to be drawn’. Accordingly, they ‘developed’ McLoughlin and separated ‘primary’ victims’ from a new ‘secondary’ victim, with three pretty stringent stipulations.

A primary victim is, of course, self-explanatory. That refers to those who have suffered psychiatric injury after being directly injured in an accident (or put in fear of suffering an injury). A secondary victim is one who has witnessed the distressing events but has not been directly involved. The litigation stemming from the Hillsborough disaster has shaped the law in this area but has also attracted much criticism. In a set of fairly narrow circumstances, a secondary victim can have a successful claim provided that:-

  • the ‘injury’ is caused by the shock of ‘sudden appreciation by sight or sound of a ‘horrifying’ event, which ‘violently’ agitates the mind – (perhaps a Bourhill-esque reference)
  • there exists a ‘close tie of love and affection’ with the primary victim(s) – (a clear nod to McLoughlin) and
  • the individual claiming was ‘sufficiently proximate’ to the event in time and location – (a reference as to why so many failed in the Hillsborough case)

Bourhill and McLoughlin were both, therefore, ‘secondary victims’ but whilst the latter met all three conditions, as per Alcock, (Alcock v Chief Constable of South Yorkshire Police (1991) UKHL 5 (1992) 1 AC 310) the former did not.

What is clear from Alcock is the clear intention of the law to limit unfettered litigations which (perhaps) are nothing more than a spurious attempt at claiming ‘psychological distress and/or damage’. What is less clear is, that while this judgement is nigh on 30 years old, it does not factor into account the exponential rise of social media and the voracious appetite of so many to see shared images with the most gruesome and grisly depictions of all sorts of calamities, including death. I suspect that as we continue to evolve as a society and enhance our understanding of, inter alia, ‘psychiatric damage’, further advancements and perhaps subsequent interpretations of the common law may be required.

Stay safe everyone.

‘Violence against women’ – is it worse now or have we just lost the ability to care?

I needn’t even mention the name of Sarah Everard (below) without, I hope, everybody agreeing that her story is heartbreaking. She met a particularly grisly end at the hands of a serving police officer who deployed the most depraved methods to lure her into his grasp. But she is not alone. Statistics show that since her death in March, a mere seven months ago, some 80 women have been killed by men. 80.

Sarah Everard case: Police failings in full | Evening Standard

The statistics and available data make for grim reading. Under 2% of accusations of rape reported down south even mean a charge is brought. A staggering 50% of all police officers found guilty of sexual assault stay in their jobs. We have a problem. A big problem.

But you wouldn’t think it.

Last October, many months before the Everard tragedy, I wrote an article on ‘Misogyny’ (https://thescotslawblog.com/2020/10/04/misogyny-should-it-be-a-crime/). Indeed, I also wrote a subsequent article in April 2021 -( https://thescotslawblog.com/2021/04/03/is-there-a-rape-culture-in-britain-and-what-might-be-behind-it/) again ostensibly raising similar concerns.

I am becoming increasingly concerned that most, all (?) women now see themselves as an easy target. As effortless prey. Not just by men but by those specifically entrusted with their protection and safety. Indeed, chillingly, as the evil Wayne Couzens was receiving his whole life order the very same court building was hearing the charge being put to the man accused of murdering teacher Sabina Nessa two weeks ago as she walked to meet a friend.

Before we all yelp that these are ‘isolated’ and ‘extreme’ incidents and that ‘not all men and police officers are like that’; yes there is some truth in that. BUT, they do form a very harrowing section of the public that are causing perpetual fear amongst females across the country. Women are requiring to perform the most appalling judgement calls day and daily and regularly on multiple occasions.

‘Which route will I take home?’ ‘I can’t take that way, it’s usually too quiet.’ ‘Oh God there’s a guy. I hope he doesn’t turn around’.

For those of us that do not and would not ever engage in any form of harassment against females, we are all now tarred with the same brush. If I find myself even coming out of a supermarket, walking across the car park to get my car and I see a woman in front of me, I will often preposterously ‘hang back’ to put as much distance between us as humanly possible. Preaching by those who are completely out-of-sync with reality will tell you that women are just being ‘sensible’ but, in reality to have to live like that is oppressive and unacceptable. In the extreme. This is 2021.

Rather than treat this cancerous blight on society, we heard yesterday from the much maligned Metropolitan Commissioner that women who are stopped/arrested by Police should calmly and deftly ask which police station they are from, resist arrest if they believe that to be the right course of action and, in extremis and most ludicrously of all, ‘flag down a bus’. What…?????

International Day for the Elimination of Violence against Women: Raise your  voice against gender-based violence! - European Trade Union Committee for  Education

I can only hope that women, en masse, tell the Met (and others) to ‘get stuffed’ (or other suitable phrases). Why issue such farcical ‘advice’, rather than accept that there is a problem, a major problem that needs addressing now. Part of the issue is, of course, misogynistic views and behaviour and an insistence that somehow it is women who are to blame. They are not. It is us men.

We need to stop saying ‘it’s not an issue for me as I don’t engage in this behaviour’. We need to collectively call out this hellish behaviour and misogynistic views whenever we see or hear it. Do not tolerate remarks made on a night out, on a post or tweet or dismiss it as ‘banter’. It is not. It is deeply and grossly offensive and, as we have seen all too often, very damaging and can (and does) lead to loss of life.

Some forty years ago, the country was in the midst of the Yorkshire Ripper’s reign of terror. The SIO from back then (in)famously said that…… ‘he (Sutcliffe, the Ripper) hates prostitutes….but (he) is now killing innocent girls’. The implication , therefore, was that the victims who had been prostitutes were far from innocent themselves. Worse came only earlier this week when the monstrous Couzens was sentenced. The judge chose to describe Sarah Everard as ‘a wholly blameless victim’. That somehow appears to infer that other victims of grotesque sexual crimes, rape and even homicide should themselves take some responsibility. And there lies the problem. The attitudes in this country towards these issues, even from our esteemed judiciary sometimes leave an awful lot to be desired.

We are obsessed with ‘climate change’ and not without good reason. There was anarchic behaviour on many an Esso forecourt earlier this week as motorists panicked themselves ill at running low on fuel. We are struggling with COVID, still, after 20 months. These are all issues with which our society is legitimately concerned.

But there is another extremely pressing matter which doesn’t appear to attract the same level of societal concern.

Male violence against women continually appears to be trivialised and even ignored. Why? Are we still such a patriarchal society with apparent chauvinistic views, that women are not seen as ‘important enough’..?? The situation is disgraceful and must be addressed without delay.

Get education started at P1 and have such teachings made as an intrinsic part of the curriculum.

This has got to end. NOW.

Stay safe and take care, everyone.

‘The effectiveness (or otherwise) of rehabilitation’

The recent case of Colin Pitchfork (below) has caused the familiar mix of outrage and anger (mainly, as usual, by those who are relatively uneducated in these matters).

Minister may intervene in Parole Board's decision to free child killer Colin  Pitchfork | Prisons and probation | The Guardian
(Colin Pitchfork sentenced on 22/1/88 for double murder)

Pitchfork was convicted of the rape and murder of two teenage girls, Lynda Mann and Dawn Ashworth, in 1983 and 1986 respectively. He was handed a life sentence for each with a recommendation that he serve a minimum of 30 years before he could be considered for parole. In both 2016 and 2018, his request for parole was denied but in March of this year, it was determined that he was ‘suitable for release’.

Subsequent to that determination and after it was released via the media, the Ministry of Justice stated it would officially appeal that decision.. The UK Government’s Justice Secretary, Robert Buckland QC said he would formally ask the Parole Board to re-consider the determination. To do so, the board’s decision has to be inherently ‘unfair’ or ‘irrational’. The latter is likely to be the case here.

Pitchfork has himself a dubious claim to fame. He became the first man in the UK to be convicted of murder on the basis of DNA evidence. He pled guilty to two counts of murder, two counts of rape, two of indecent assault and one charge of attempting to pervert the course of justice.

Killer breakthrough – the day DNA evidence first nailed a murderer | Crime  | The Guardian
(News of the first mass screening for genetic fingerprints which sealed Pitchfork’s fate)

There are many ‘experts’ (criminologists, psychologists, behavioural experts etc.) who believe that Pitchfork’s crimes were so egregious that he can never be rehabilitated and therefore should simply never qualify for parole and never be released. But he has never been handed a ‘whole life order/tariff’, more of which below.

Certainly, his background is ‘dark’, to put it mildly. Not only was he involved in criminal activity in his teens, but his own family expressed horror when they learned of his release. He was first convicted in a juvenile court almost 50 years ago for ‘flashing’ at teenage girls. Notwithstanding that, he volunteered for five years in a Barnardo’s children’s home where he played freely with children. It was there where he met his future wife but also where again, at the age of 21 this time, he was convicted of exposing himself.

Of course, the crimes committed by individuals are not the sole deciding factor in determining whether an individual should be released from incarceration.

See the source image

Whilst there are multiple ‘aims’ of our (and most) penal systems, there are certainly three worth mentioning and of exploration.

Firstly, there is the element of punishment. By incarcerating an individual, we are principally denying them their liberty. The ‘ripple effect’ will then dictate that many other factors come into play – loss of employment, loss of relationships, lack of contact with children, lack of social contact, et cetera. The effects can be far-reaching and even devastating but many believe they should be. Even so called ‘unintended’ consequences are often seen and interpreted as themselves a form of punishment.

Secondly, there is the element of protection of the public – if we keep people in a secure jail, they cannot cause any further ‘harm’ to society, whether by repeated similar offences or any other offence. There are clearly some individuals that present a grave risk to the public and should not be returned to society – this is the area of most concern to those who believe Pitchfork should not now, or indeed ever, be freed.

Finally, there is the issue of rehabilitation. Some believe it doesn’t work and some, including a formal colleague, told me it ‘shouldn’t matter’, somewhat bizarrely. But, in a civilised society, should we offer every individual the opportunity of being rehabilitated or, paradoxically, are there some individuals, for some crimes, for whom they should simply never be released?

We know the latter is true as we currently have in the UK (but not Scotland who believe the issue is contrary to human rights) some 75 individuals who will never be released as a result of the imposition of a ‘whole life order/tariff’. So clearly whilst they do exist, the vast majority of our criminals (even those convicted of homicide and sexual crimes) are deemed to be capable, potentially, of rehabilitation (although clearly not all are).

Under new legislation in the... - Ministry of Justice UK

The Labour leader, Sir Keir Starmer , a former Director of Public Prosecution at the CPS (our COPFS) gave a radio interview a fortnight ago and said that Pitchfork had ‘served a long sentence and he served the sentence imposed on him by the court, and under our system that means there comes a point at which he has to be released’. And he’s right.

That is not to say that our system is right – evidently it is not. But when we examine the background of an individual, is it ever possible that they can be rehabilitated? Why is it that some convicted of murder and rape are released from prison on licence and live a subsequent crime-free life without re-offending but, for others, rehab simply doesn’t work. Empirical evidence has shown us that factors such as socio-economic issues, genetics and psychology all play a part. And then for others, as here with the Pitchfork case, the communal outrage and revulsion against his crimes is such that there appears consensus that they should remain incarcerated perpetually. But surely in any civilised and democratic society, we have bodies and procedures in place for all sorts of issues and, in general, we trust them. Should every individual convicted of drink driving never be allowed to drive again (in case they repeat the offence). Or do we punish them and expect/(hope) that during any period of disqualification along with attendance at a rehabilitative course, they are entitled to drive again..?

Here, in the Pitchfork case, it seems to me that whilst we, as a society are entitled to raise questions, by and large we should accept that the procedures we have in place are adequate and, if not, lobby parliament for a change. That is the procedure. As I have said before on these pages, it is not for the public simply to express their own personal views on a subject and simply expect that opinion to be adopted. That would not be helpful.

This area raises many questions and I pose them multiple times in class each year – and the answers and opinions of our future lawyers, criminologists, probation officers, parole board members and even MPs are often startling.

I’ll ask them again starting next month ……….and shall expect a familiar variety of answers and opinions.

An interesting one, for sure.

Stay safe.

‘Crime-obsessed’

I know it’s not just me that the above headline applies to – many of you are the same and a seemingly endless stream of my students, past and present, are as well.

But why…???

I'm So Obsessed - CNET

As a race, globally, we have always had an extraordinary fascination with ‘crime’. Nothing ‘satisfies’ us more than a night in front of the box, drink and snacks at the ready and a good murder to hold our attention for a couple of hours. As an added bonus, it’s even more captivating if the depiction is based on true, real-life events. Some of the recent biggest viewing figures for television were for dramas depicting the stories of Peter Manuel, Denis Nielsen and Jeremy Bamber.

Over the last decade or so, the true crime category has erupted beyond belief. There are ‘YouTube channels’, ‘podcasts’, ‘blogs’ (ahem..🙄) and even dedicated TV channels all feeding our insatiable appetite for ‘crime’. Why, though, do we love to devour stories of this nature?

One theory is that the darkness of the subject is to blame. It appears that it is innate to want to understand the darker side of our fellow humans. In much the same way as we are born prejudicial (and must actively fight against it), so we cannot help ourselves being intrigued, fascinated, obsessed even about issues that are, however you look at them, often horrific.

1 My DA is Crime Dramas – Satomi's blog

Another slant on this is that we see ourselves as being central to the story that is playing out before us. We are often ‘the lead character’. What would we do in that situation? How would we have reacted, behaved, dealt with it? The chances are we have seen ourselves offering advice, preposterously, to the people we are watching.

‘Don’t be daft, don’t go in there’……’Get him’, are just some familiar lines doubtless heard up and down the country nightly, be it on Sky, Netflix or Prime.

Plus, of course, we get to play the lead detective and can ‘solve’ the issues at hand. Women, statistically, are more drawn to this type of ‘entertainment’ but it is thought that it may actually be as a mechanism for tips as to how to survive and not become a victim themselves. It would also appear that the ‘fear’ of crime is often more commonplace than actual crime itself.

Similarly, there are actually some well documented reasons why we appear drawn to matters which, at least on the face of it, seem to be somewhat macabre or morbid. We know people are prone to slowing down if they see an accident on the motorway (rubbernecking) and there is plenty empirical research to say that plenty people search online for stories about real tragedies, even wanting to see graphic depictions, including death.

This curiosity about fairly stomach-churning events is actually very normal indeed, it being innate to several differing elements of instinctively human behaviour. So you can relax – you are not the weirdo you thought you were – at least not in the sense of what we are currently discussing 🤣

When we hear of something that our minds tell us is ‘awful or horrendous’, instinctively we place ourselves in that person’s shoes. We need to be able to ascertain for ourselves how we would deal with this and what our reaction would be. You hear on the news that someone was murdered at 2am returning from a night out in a location familiar to you. Suddenly, we know the locus of the attack and need to reassure ourselves that that could never have happened to us because we are far more cautious and careful. But to reach that conclusion, we need to put ourselves there in order to fully assess the scenario accurately.

Paradoxically, we are not ‘blaming’ the victim – absolutely not. Quite the reverse – as humans (most of us) show empathy and sympathy but we need to ‘compare reactions’. It is our method of assessment and self-assurance.

For others, of course, the hidden superhero comes to the fore. That would never have happened had they been there as they would have deftly fought off any attack successfully and with aplomb. By telling oneself this, we are again merely illustrating another form of self-assurance. Plus we all have to recognise that the emotions of fear and excitement are incredibly closely linked. The so-called ‘adrenaline junkie’ will testify to that. Part of the ‘thrill’ about being on a rollercoaster is, bizarrely, perversely even, the mind exploring the possibility of ‘danger’ whilst treading carefully between that and reassuring oneself that nothing will really happen. We do know, however, that some people need ‘thrills’ far in excess of a rollercoaster and seek to jump off buildings and undertake what for the rest of us seem outlandish and totally foolish acts.

Much can also be said about our ‘obsession with crime’. Interest for some, for others a far more sinister explanation. We also know this because of the number of copycat crimes over the years.

Hope you enjoyed that reasonably brief foray into human behaviour.

Once again, everyday is indeed a school day 😊

Stay safe.

Muir v Glasgow Corporation (1943)

Apart from my slightly scary liking/(obsession?) for crime and criminology, my other great passion in law is ‘Delict’ (otherwise known in other jurisdictions as ‘Tort’). It stems from the Latin ‘delictum’ (literally ‘failure’ – more commonly ‘fault’).

This area of law is comprised of civil wrongs (between individuals) either committed intentionally or negligently and which results in some form of ‘loss’. The wrongdoer must have ‘foreseen’ that their actions would likely cause such loss. By loss we mean ‘loss, injury or damage’ and this would best be illustrated by our old friend and famed maxim ‘damnum injuria datum’ (‘loss wrongfully caused’). The precise meaning tends to vary within systems across the world but it is generally accepted that it stems from the Roman concept of ‘wrongful conduct’.

Case study: Donoghue v. Stevenson (1932)
(If you know, you know 😉)

The ‘damnum’ maxim is important as it forms the basis for a delictual claim in Scots Law – in other words, ‘was a duty of care owed by one party to the other?’ We know this is NOT absolute as demonstrated in Bourhill v Young (1943) AC 92. Equally, in what appears to be a somewhat paradoxical case – McLoughlin v O’Brian (1983) 1 AC 10 – we see that liability can be established even in circumstances where, at first glance, it seems unlikely.

In today’s case analysis, we are looking at yet another celebrated Scottish delictual case that covers negligence, the standard of care and the issue of (reasonable) foreseeability. Classically, when looking at ‘who owes what to whom’, we needn’t go beyond the words of that wily old fox Lord Atkin who, in creating the seismic ‘neighbour principle’, utters the immortal lines…..

‘The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question‘.

Lord Atkin of Aberdovey.jpg
(Lord Atkin)

This remains the classic test for liability in negligence. You will be mightily relieved that any forensic, philosophical analysis as to the rights, wrongs and motives for Atkins’ judgement have already been discussed on these pages and therefore won’t be poured over again today (but hey, you can check my critique again if you wish 😁 – Donoghue v Stevenson – a critique – THE SCOTS LAW BLOG).

In today’s scrutiny of the common law, Eleanor Muir (daughter of the Pursuer) was badly scalded by boiling hot water as she stood in a council-run shop in King’s Park in Glasgow in 1943. She was part of a group that had been enjoying a fun day out when, one might say ‘as ever’ (in these parts), the heavens opened and there was a torrential downpour. The adults in charge of the children (including Eleanor) and who were all at a picnic day out, scurried to find shelter from the elements. As they waited for the rain to subside, they were offered a cup of tea. To facilitate this, an urn was required. One of the adults in charge of the group, a Mr. McDonald, was charged with carrying said urn along with another boy, from the house adjoining the shelter where they initially had gone, back towards the tearoom.

Inexplicably, and it has remained unexplained to this day, McDonald let the urn tilt and slip out of his grasp. The court reports from the time speculated that it may have been ‘a temporary muscular failure’ but no definitive explanation has ever been forthcoming. The resultant drop and spillage caused extensive burn injuries to a number of children, including Eleanor and her father duly sued the local authority.

Week 7: Reporting cases: 2 Case names and citations - OpenLearn - Open  University - WXM151_2

The legal issue was whether there was a ‘duty (of care)’ incumbent upon the manageress of the tearoom facility (vicarious liability resting with her employers Glasgow Corporation (as then was, now effectively Glasgow City Council), if so) or whether there could not have been ‘reasonable foreseeability’ (in the Atkinian sense). The House of Lords held unanimously that she had not been negligent.

The ‘test’ gives us the slightly nebulous theory of that most dreaded of ‘people’….‘the reasonable man’. (Please note that this concept was coined long before the use of gender-neutral language became de rigeur). The question then, as it remains largely so now, is whether a person/persons did or did not act ‘reasonably’ in the circumstances. I suspect many may have an issue with this. On a pouring wet day outside, was it wise (sorry, ‘reasonable’) to foresee that carrying an urn full of scalding hot tea was a good idea? That is was not without inherent risk? The difficulty with the judgement and the ratio given by Lord Macmillan is the difficulty we have (and always will have) in actually locating someone who fits the bill of the ‘reasonable’ man. This fictitious individual who sits in an unenviably calm position somewhere between sound reason and calm judgement.

I’m not convinced they exist at all. Anywhere. The same judge sat in the same year in another delictual classic – that of Bourhill v Young (mentioned above). Here, the principal issue was to determine whether an individual has an ‘absolute’ duty of care to all (which evidently they do not – as that case ultimately determined). The fishwife in that case (Bourhill) claimed that a miscarriage she suffered was as a result of seeing the aftermath of an accident where Mr Young lost his life after being involved in a road traffic collision. It was held that he did not require, in law, to have ‘everyone’ in his contemplation and there was consequently a limitation as to those to whom he owed a duty of care. Mrs Bourhill who did not see the accident but heard it and witnessed the aftermath, was not deservingly close to have been in his ‘reasonable contemplation’. As there was no duty, the first condition of damnum failed and there was no liability. Further reading on this for those interested can be found (other than a detailed look at Bourhill and McLoughlin) in Alcock v Chief Constable of South Yorkshire Police (1991) UKHL 5, (1992) 1 AC 310, a case that stemmed from the tragic events at Hillsborough in 1989 when 95 Liverpool fans lost their lives after a crush within the ground. (*Ultimately 96 fans died when a further supporter passed away some time after the event).

When Is A Tort Duty Owed? Understanding Virginia Negligence Law – KPM Law |  Fairfax, Richmond, Norfolk, Roanoke

To conclude, then, for a valid claim for negligence to succeed:

  1. a duty must be owed by A to B – in the absence of it, there can be no validity to any claim and the process cannot proceed further
  2. there must be a demonstration that, having established a duty, it was breached (so, in Muir the manageress DID owe a duty of care to the children but she did NOT breach it as it was not foreseeable)
  3. there must be a causal link between the breach and any loss, injury or damage


All fascinating stuff, n’est pas??? 😎

Stay safe everyone.

‘Forensic evidence – fingerprints’

Bet you’ve never heard of Henry Faulds? He’s been dead for over 90 years but his role in legal systems around the globe should never be underestimated.

Henry Faulds Biography - Childhood, Life Achievements & Timeline

(Henry Faulds 1843-1930)

He was born in 1843 in a small town in North Ayrshire. He studied Maths at Glasgow University and subsequently medicine at Anderson’s College (Strathclyde University) where he graduated with the ability to practice as a Doctor. Significantly, he then became a missionary and was posted to India (then under British rule). He worked at a hospital in Darjeeling.

One of several claims to fame then followed when, having been posted to Japan, he established an English speaking mission and hospital. He helped to introduce the method of antiseptic surgery originally created by Dr Joseph Lister (hence Listerine, the mouthwash 😉).

Joseph Lister 1902.jpg
Dr Joseph Lister who developed the idea of sterile surgery at Glasgow Royal Infirmary in 1865.

Whilst in Japan he accompanied a friend (and famed Japanese archaeologist Edward Morse) on a dig. Whilst there, Faulds noted that delicate ‘finger imprints’ appeared to be visible on various items made of clay. Fascinated, he started to conduct a detailed examination of his own fingerprints and those of his friends. He soon realised that each was individual. Celebrated naturalist and biologist Charles Darwin (he of ‘On The Origin Of Species’ fame) declined to become involved but referred Faulds to Francis Galton, his half-cousin. To this day there has been ongoing controversy in relation to whether it was Faulds or Galton who was responsible for the remarkable concept of the forensic analysis of fingerprinting.

Then enter a certain William Herschel who had also been stationed in India and who claimed he had first used the concept in 1860 but without suggesting it would be of any direct use ‘forensically’. An extraordinary spat then developed and lasted decades until, in 1917, Herschel conceded that it was indeed Faulds who was the first to suggest a forensic use.

By this stage, disillusioned and beleaguered by the bickering and doubt cast upon him, Faulds returned home to the UK, became a Police surgeon but died in 1930 embittered at his lack of recognition at ‘inventing’ such a seminally important concept.

CSI'/ Forensics Fingerprint Identification

Fingerprints are unique patterns, made by friction ridges (raised) and furrows (recessed), which appear on the pads of the fingers and thumbs. Prints from palms, toes and feet are also unique; however, these are used less often for identification. The fingerprint pattern, such as the print left when an inked finger is pressed onto paper, is that of the friction ridges on that particular finger.
Friction ridge patterns are grouped into three distinct types—loops, whorls, and arches—each with unique variations, depending on the shape and relationship of the ridges.

No. 2529: Comparing Fingerprints

The two underlying premises of fingerprint identification are uniqueness and persistence (permanence). To date, no two people have ever been found to have the same fingerprints—including identical twins. In addition, no single person has ever been found to have the same fingerprint on multiple fingers. Persistence, also referred to as permanence, is the principle that a person’s fingerprints remain essentially unchanged throughout their lifetime.

Despite the extraordinary effect of such a forensically amazing tool, it is not without its problems. In 1997, a Scottish detective, Shirley McKie, was accused by ‘fingerprint analysis staff’ of having left her thumb print at the home of an Ayrshire murder victim. McKie stated categorically that she had never been in the house. However, she was suspended, dismissed from her employment and even arrested and stood trial for perjury, a charge upon which she was unanimously found not guilty.

The case undoubtedly raised concerns on the accuracy (or otherwise) of this great ‘Faulds’ creation. The backlash was severe as can be seen here in this BBC news report from September 2004 – BBC NEWS | Scotland | Print case ‘shames Scots justice’.

Indeed for all you insomniacs out there, you can view ‘The Fingerprint Inquiry Report’ findings here – http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.361.380&rep=rep1&type=pdf – all 790 pages of it…………………..

Despite Faulds’ remarkable and seismic ‘discovery’ all those years ago, it is evidently not without infallibility. Indeed in a summary of its findings, the report stated, inter alia, that ‘…there is no reason to suggest that fingerprint comparison in general is an inherently unreliable form of evidence but practitioners and fact-finders alike require to give due consideration to the limits of the discipline’.

Quite.

Law and science……..aaahhhh………a mesmerising mix.

Everyday is indeed a school day. You can thank me later 😊

Stay safe all.

‘Breach of the Peace’

You would imagine that ‘breaching’ the ‘peace’ would be (a) pretty self-explanatory and (b) if it wasn’t that there would exist a morass of helpful, clear common law definitions and explanations. Remarkably, neither appears to be the case.

Breach Of Peace - Free of Charge Creative Commons Legal Engraved image

Even the High Court has attempted clarity of the issue. In Smith v Donnelly (2002) JC 65 it stated that it is, “…..“conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community…conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable people.” You would imagine that is (relatively) clear but perhaps it would be of benefit to contextualise.

The accused had been charged for her role and actions in an anti-nuclear weapons demonstration at the Faslane Naval Base on the Clyde. Specifically, that she conducted herself in a ‘disorderly manner’, ‘disrupted the free flow of traffic’ (by laying down on the road) and ‘refused to desist when requested to do so’…………………………..and did (therefore) commit a breach of the peace.

Whether Smith’s conduct was ‘conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community‘ is surely a matter of great and doubtless divided opinion. Unquestionably annoying, perhaps, immensely inconvenient, but behaviour that caused ‘alarm’..? Whilst we can now move away from Hume who described it as a form of ‘rioting’, its scope does now appear remarkably wide. Thirty to forty years ago, I suspect the most commonly prosecuted crime in (certainly the West of ) Scotland, (no, it wasn’t urinating in public, surprisingly) was ‘shouting and swearing in a public place’ and putting the lieges in a ‘state of fear or alarm’. Indeed, most of us (then, I stress) young pups cutting our teeth in the art of criminal defence law, would sit of a morning (although classically a Monday) in the old District Courts in St. Andrews Street, Glasgow and deal with the hordes charged with just that during an excitable preceding 48 hours. The profusion of such cases resulted in local PFs referring to them, collectively and colloquially, as a ‘two-cop breach’, as it was only the two polis (sorry Glasgow vernacular for Police) that gave any evidence.

Consider now that we have had cases appear in front of JP and Sheriff courts in relation to fighting, aggressively begging for money, kerb-crawling, kicking a ball in the street and even attempting to commit suicide. Amongst this plethora of common law examples, appears to be the commonality of, if you like, ‘anti-social behaviour’ which may upset, anger, disturb or alarm ‘others’, i.e. bystanders. Some interesting cases arise when the Prosecution elect to almost use the charge as a ‘catch-all’ for behaviour that actually could (and does) fall under different headings. So, in Hutchison v HMA (1998) SLT 679, the accused was charged with exposing himself and masturbation and could have faced a charge under both common law and statute (The Sexual Offences Act 2009, s.8) but rather breach of the peace was pursued instead. Which seems somewhat perplexing and bewildering.

It could be argued that the range of offences seems extraordinarily wide – especially when you consider that kicking a football in the street can be treated analogously with someone exposing themselves to others.

Those of us in academia (especially if we have also practiced) have long suggested that there is a cloud of ambiguity and far too wide a range of possible offences for this ‘crime’. The High Court (sitting as an Appeal Court) disagreed in Smith (above) but it did concede that, as Lord Coulsfield quoted,…”in some cases breach of the peace had been held to be established on grounds which might charitably be described as tenuous“. A thinly veiled rebuke indeed.

WXM151_2 - OpenLearn - Open University - WXM151_2

As ever, there is simply no escaping the ‘human rights’ issue and in particular the European Convention. There have been suggestions that breaches have occurred of Articles 7,10(1) and 11(1), to name but three, in relation to charges of ‘breach’. However, any rights under the Convention are not unfettered and that they necessarily come with a sense of restriction in order to ensure public order is maintained. So, in terms of of both Arts. 10(1) and 11(1), Arts. 10(2) and 11(2) provide that if issues arise in respect of public safety then restrictions can be imposed.

The issue however, in my view, is whether we should be giving any credence from now on to the fact that playing football in the street at night can ever really constitute a ‘serious disturbance’ to the community (as per Smith, above). An element of proportionality surely has to be the all encompassing factor?

This came to a head in Harris v HMA (2010) JC 245 when the Appeal Court again reiterated the ‘public disturbance’ element. Further, in Hatcher (2011) Lord Bonomy quashed the conviction of an individual who had ben convicted of a breach of the peace by ‘shouting and swearing at his wife within the family home’. It was quashed because it could not be said that there would likely be a ‘serious disturbance’ to ‘the community’. Lord Bonomy spoke of a ‘lacuna (a gap) in the law’ but, of course reiterated one of our founding principles that it is for Parliament and not the Judiciary to create or change the law.

To cut a long story short, this ‘gap’ has now been firmly closed thanks to the Criminal Justice and Licensing (Scotland) Act 2010 (s.38) which deals with ‘threatening or abusive behaviour’. s.38(1) now states that…..

‘A person (“A”) commits an offence if—

(a) “A” behaves in a threatening or abusive manner

(b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and

(c) “A” intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm

Jobs a good’un. We now have a much more satisfactory situation and, in reality, ‘breach of the peace’ (as was) will be seen much more rarely as the new s.38 offence , principally because of the overlap. A salutary glance at s.38 shows us that we now have ‘intent’, ‘reasonableness’ and a Cawthorne-esque sense of recklessness (indifference even?) as to whether the behaviour does cause any fear.

It’s issues such as this that I am forever trying to impress upon my students from entry level to university to take an interest in, research and comment on.

It’s what makes the difference between competence and dedication.

Stay safe.

‘Law and morality’

One of the principle features and, one could say, pillars of our ‘criminal’ law is to establish parameters for our behaviour. After all, unfettered behaviour leads to anarchic behaviour. So society creates a line which it expects will not be crossed and, should it be, those that have done so will be asked to explain themselves and, potentially, punished, if deemed to be ‘guilty’.

Law and Morality – The Ought

In essence then, the criminal law is effectively endorsing a ‘moral code’ and seeks to identify and punish what society would generally agree are the most egregious crimes in society (murder, rape, crimes against children, to mention but three). Moreover, we frown on theft, dishonesty and an infringement upon our right to live peacefully. It is clear, therefore that there is a palpably clear link between what we generally agree are immoral acts and our own definition of law (in certain respects).

But, having established that ideology, I suspect without too much excessive debate or argument, it is then necessary to look at ‘other’ crimes and offences which do not seem to irritate our moral filter. One can think of varying traffic violations such as parking offences and not paying for a ticket in a car park. These do not, inherently, cause ‘harm’ to our fellow citizens, yet they are still ‘law’……but why?

There are those that maintain that ‘criminal behaviour’ should also necessarily be ‘immoral behaviour’. This is because if we are not necessarily outraged by instances which we believe are morally unacceptable, it weakens the basis for the criminal law in the first place. That is not to suggest, however, that overt actions (with ‘intent’) should not be somehow punished. That must still apply or selfish lawlessness would prevail. But should we consider acts such as parking on a double yellow line be classed as ‘criminal’. Should there be another way of describing and indeed punishing them?

As an ‘entity’, the criminal law exists to hold people liable, responsible if you like, for their behaviour. Actions, as we know, have consequences after all. We must factor in the criminological concept of ‘rational choice’ so that in order to fully hold our citizens to account for the commission of a crime, we must be satisfied that they are capable of understanding what they are doing, have done and, crucially, could have chosen not to do it. The intrigue occurs, in my opinion, when we classify certain acts which we would largely agree are ‘wrong’. That is very wrong, repugnant even, in regard to murder, rape and paedophilia but not, generally, lying (except of course under oath), adultery and even breaking one’s word.

Legal rights are not all right: when morality and the law collide | OUPblog

Some consider that cheating on one’s marriage partner has more far-reaching and potentially devastating consequences(mental health, illness and even suicide) than the starving single Mum stealing a loaf of bread for her 4 children. Yet the former has committed no criminal legal wrong at all (whilst still attracting ‘consequences’ for their behaviour, but not ‘punishment’, per se) but the latter will have, at the very least, a criminal conviction for a crime of dishonesty (and all the implications that accompany that) and, possibly a more severe penalty. What does our moral code say about that none too improbable or rare scenario? My own feeling (without, of course condoning the theft) is that moral outrage may very well rest with the adulterer and not the petty thief.

An interesting issue arose in the Scottish criminal appeal case of Paterson v Lees (1999) SCCR 231. The appellant was charged with ‘shameless indecency’ (no longer a crime in Scots law – replaced by ‘public indecency’) by allowing children that he was babysitting to watch an indecent video. It was accepted that the children themselves had switched the video on, but the appellant opted to take no action once he became aware of the situation and the content of the video. At the time, Lord Rodger of Earlsferry commented that:

‘The fact that the appellant sat back and allowed the children to watch an obscene and indecent film is deplorable and no right-thinking adult would have done what he did. Saying that does not, however, answer….whether the appellant has behaved criminally (as opposed to anti-socially or immorally)’.

The Morality of Tax Avoidance — Adam Smith Institute

Perhaps to many a surprised reader of this blog, the court answered the question by stating there is a marked difference between the terms and Paterson’s conviction was duly quashed. In doing so, then, a clear line in the sand was drawn between ‘immorality’ and ‘illegality’, however much that line may often seem blurred. We can deduce, unequivocally, that not all immoral conduct is criminal. Conduct can be considered ‘wrong’ but as soon as it is deemed to be an act of criminality, it becomes ‘wrongful’. At that point, it can attract the full force of the criminal law and all the potential ‘consequences’.

Law and morality – a fascinating, if slightly convoluted area.

Stay safe.

‘The presumption of innocence’

I recently gave a talk to some primary school pupils about ‘life as a lawyer’ and, amongst many an intriguing question they asked, was the side-splitting………’Yeah I was wondering how much you earn an hour…’ 🤣

Despite being destined for the stage, this young lad’s question is not the most common that I am asked. No, rather it is that timeless classic….’How can you sleep at night knowing that you’re defending a (insert crime here) _____rapist, armed robber, thief, murderer et cetera‘.

Mercifully, the illiterati rarely get issues such as this factually correct. Why? Firstly because, as a race we are programmed to be prejudicial (working often on the ‘no smoke without fire’ cliché) but secondly, crucially and the subject of today’s column, is the ‘presumption of innocence’. After all, how can I ‘know’ anything when the accused has told me that he is not responsible for the crime alleged..??

Don't Do the Crime if you Can't Do the time”: The Conservative's Mantra

One of the most important doctrines of our (and many other) criminal justice systems is that those accused of crimes be deemed/presumed innocent and, equally crucially, remain so until (the Crown) prove them guilty. It is not, nor ever has it been for an accused to prove their innocence. Not that you’d imagine as the imbroglio surrounding this issue is incessantly ever-present.

The Supreme Court of Canada gave, in Oakes (1986) 50 CR (3d) 1 (SCC), a very useful guide to the tenet, viz.:

The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the State proves an accused’s guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise’ – per Dickson CJ at 15

There was, therefore, a reinforcement that in order to protect the rudiments of our civilised society, we must deem individuals as not having committed any wrongdoing until corroborated evidence suggests otherwise and persuades a judge and/or jury that the evidence is believable and substantial and ‘beyond reasonable doubt’. To suggest otherwise would be an affront to our way of living and to have a society where we simply accept one random accusatory remark, then determine guilt and pass sentence, would be preposterous. To say nothing of dangerous for the sake of our society and co-existence with our fellow man.

Of course then there is Article 6 of the ECHR which establishes the right to a fair trial, embedded in which is the presumption of innocence. Here, we have our own ‘bespoke’ protections via the Scotland Act 1998. Yet there appear to be consistent views that seems contrary. Sometimes in the extreme. An idiosyncratic approach which appears as baffling as it is dangerous. Referring to individuals accused of sexual assaults as ‘rapists’ before an iota of evidence has been led, or my personal favourite – that headline ‘Thief Acquitted’ 🤷‍♂️.

Scotland's criminal justice system has been gravely undermined" - MOJO

There remain many an individual who feel ‘guilty’ without even venturing near a courtroom. Largely because the faceless keyboard warriors are out there, in their squillions, all proffering useless, uneducated tripe by way of ‘quasi-legal’ opinions which they have based on 20 minutes trolling Google. Oh and for them it appears that there must be a ‘presumption of guilt’. Oddly, I don’t recall that being taught at Law School. Trial by media – social and mainstream – can only get progressively worse as its exponential rise continues. I worry about where it is taking us.

Paradoxically, there are those of us that have been engaged for decades fighting on behalf of those who cannot fight for themselves and never forgetting the ‘presumption’ that they are and shall remain ‘innocent’ until proven otherwise.

As I have said repeatedly here on these very pages, I shall never stop doing so whilst there is a breath in my body.

Stay safe.

PS – I never answered that young lad 😉