Outer House dismisses damages claim against care home that allowed high-risk resident unsupervised leave

By Mitchell Skilling

The action was raised by the child’s grandmother, A, against care home B Ltd and local authority C. The pursuer sought to establish that the defenders were liable in negligence for the criminal actions of X, a 16-year-old resident of the care home.

The case was heard by Lord Ericht. McKenzie QC and Gardner, advocate, represented the pursuer while the defenders were represented by Pugh, advocate, and Springham QC and Rolfe, advocate.

Risk of harm

A supervision request in respect of X was first made in 2011, and he had resided in the first defender’s care home since 2017. His records noted that he had a history of sexualised behaviour including having full sex with a girl when he was 9 and allegations that he had touched several young children inappropriately over the course of 2016. He became subject to the second defenders’ Vulnerable and Young Person procedures in 2017 and was assessed as a high level of risk management in 2018.

At a meeting in late May 2018, the defenders decided to allow X unsupervised leave after he turned 16, erroneously noting that he had not displayed in sexualised behaviour in the three months prior to the meeting. During his two hours of leave, he went to an area around a primary school around 10 minutes from the care home and lured a young boy to a graveyard while pretending to be a police officer and raped him. He subsequently pled guilty to a charge of rape in the High Court and was sentenced to 28 months’ detention.

It was averred by the pursuer that the defenders had failed to have adequate regard to the risk posed by X, and that they had failed in their duty of care towards the victim, who was at a special risk of harm due to residing near the care home. The risk posed by X should have been obvious to the defenders given his previous history and they were negligent in allowing him to have unsupervised leave.

Counsel for the first defenders submitted that no duty of care was owed to the victim, as the pursuer’s pleadings did not disclose a special relationship of the sort required to establish a duty of care, per Thomson v Scottish Ministers (2013). Counsel for the second defender added that an offer to prove that the child attended a nearby school was insufficient to ground proximity between the pursuer and the second defenders in the absence of an averred special risk.

Lack of clarity

In his decision, Lord Ericht observed: “In this case a child member of the public was raped and sexually assaulted by a person who was subject to a supervision order but had been granted unsupervised leave. These factual circumstances are very similar to those in Thomson v Scottish Ministers, where an adult member of the public was murdered by a prisoner who had been released on short leave.”

He continued: “The court [in Thomson] held that in order to succeed, the pursuer must establish a special relationship which exposed the victim to a particular risk of damage as a result of negligence by the defenders in the context of that relationship or, put in another way, that the victim was subject of a special or distinct risk as a consequence of the defender’s actions.”

Noting that the pursuer in Thomson failed to meet this test, he said of the present case: “[The pursuer’s] averments say little more than that any child member of the public with whom X came into contact during his unsupervised leave could potentially be at risk from him because of the potential for him to commit criminal acts. As is set out in Thomson, being a member of the public is not enough to constitute a distinct and specific class.”

He went on to say: “It makes no difference that the victim attended a primary school close to the residential home and the offence took place near the school. There are no averments of a specific duty to pupils of that school, and in any event the offence took place out of school hours. There is a lack of clarity in the pleadings as to whom the pursuer is saying are members of the class.”

Lord Ericht concluded: “In my view it is appropriate, as was done in Thomson, to decide this case at procedure roll rather than allowing it to go to proof before answer. The pursuer has failed to set out a relevant case and is bound to fail. The defenders are not responsible for the criminal acts of X.”

The action was therefore dismissed.

Criminal Justice Committee seeks improvements to firework proposals

This support was agreed with a warning that the Scottish government must make changes to ensure that the measures introduced by the bill will be effective, robust, workable and have the confidence of the public – with the committee currently having “very serious” concerns that the bill as drafted will not meet its objectives.

MSPs on the committee supported the general premise that steps need to be taken to address the misuse of fireworks and pyrotechnic devices.

However, in a report on the proposed law published today, MSPs have highlighted a number of potential pitfalls and loopholes in the plans put forward by the Scottish government.

These include:

• ‘Firework control zones’ not addressing the issue many people believe they will, with MSPs recommending consideration be given to creating genuine ‘no-firework zones’ by local authorities, where nobody, including professional companies, can let off fireworks;
• Key details of the proposed licencing scheme will not be known until the bill is passed. The committee is therefore not convinced that the proposed licensing system will achieve the outcomes intended.
• The potential risk that the restrictions on the sale of fireworks will lead to a black market, or illicit sales. How this can be addressed and mitigated should be set out by the Scottish government before any bill is passed.

The committee also commented that while it supported introducing a ban on ‘proxy purchases’, where over 18s buy fireworks legally and give them to those under 18, it is unsatisfactory that the Parliament and committee have been asked to follow an accelerated timetable for scrutiny of the whole bill to allow this particular provision of the new law to be in place by November 2022.

The committee has been unable to clarify whether the Scottish government explored asking the UK government to make the necessary changes to ban proxy purchases, or to have the relevant regulation-making powers transferred to Holyrood.

Criminal Justice Committee convener, Audrey Nicoll MSP, said: “We agree with the desire to address the misuse of fireworks and pyrotechnic devices.

“However, we have concerns about the workability of some of the proposals put forward. We understand that the Scottish government is trying to find a balance between allowing responsible enjoyment of fireworks and stopping what is all too often a dangerous public nuisance, particularly for people with additional needs and pet owners.

“And so, we have backed this bill’s general principles at this stage, and hope to work with the government and key stakeholders in the coming weeks and months to ensure that the issues we have identified can be addressed.

“Substantial changes are still needed to this legislation.”

Consultation on Outdoor Education Bill launched

The Scottish Conservative MSP believes that outdoor education is one of the most valuable and rewarding aspects of the learning experience and that it should be available to all young people irrespective of their background.

The proposed legislation will place a requirement on all local authority and grant-aided schools to make provision for all 12-16 year olds to experience at least one week of residential outdoor education in their school career.

The consultation period will run until July 22nd 2022.

Ms Smith said: “I firmly believe that residential outdoor education should be on offer to all young people. There is well-established and compelling evidence which shows just how much these experiences can increase self-esteem, self-reliance, confidence and resilience.

“They help young people to know what it means to be part of a team, to learn leadership skills and the importance of valuing friendship, and they connect them to the natural environment.

“Bearing in mind the impact of the pandemic on young people, when there is growing national concern about young people’s physical and mental wellbeing, the benefits of residential outdoor education cannot be overstated.

“Furthermore, the fact that many children from some of the more deprived areas do not get the same opportunities as their counterparts elsewhere, residential outdoor education should be a key part of the curriculum.

“I am therefore delighted to be launching the consultation period ahead of what I believe will be an important piece of new legislation.”

Martin Davidson of Outward Bound said: “Outdoor residential experiences develop confidence, resilience and inter-personal skills, and help young people function well and thrive in life.

“In short, outdoor residentials provide unique and powerful experiences to develop the citizens required by tomorrow’s society to be economically and socially vibrant, and to tackle the global climate challenges we face.

“I 100% support Liz Smith’s MSP Member’s Bill that seeks to secure the entitlement for all young people to have the opportunity to benefit from an outdoor residential course as part of their education.”

Robert Skinner calls time on 35 years at the bar

Today marks his last official day in practice before retiring with effect from 1 May. 

Mr Skinner called to the bar in 1987 and over the past 35 years he has developed a successful practice specialising in licensing. Happy to combine business with pleasure, his vast experience in this area includes liquor licensing, civic government licensing, security industries act licensing, firearms, betting and gaming, adult entertainment and the licensing of most other well-known vices.

The latest edition of Chambers and Partners UK ranks him Band 1 for Licensing, describing him as “an outstanding advocate best known for his commercial and robust style of advocacy”. It also says he is “an excellent advocate” whom clients find “personable and pragmatic”. He was a member of the Law Society of Scotland Licensing Sub Committee and a consultant editor of Scottish Licensing Law and Practice.

Although best known for his work in the field of licensing, he also undertook a wide range of commercial and administrative law work, including contract law, judicial review, land law, professional negligence and reparation.

Terra Firma’s Scott Blair said: “Robert was one of my devilmasters and later became someone I often locked horns with in licensing litigation. Robert was a pleasure to know in both of those roles and indeed as a much valued friend and colleague. 

“He brought passion, drive and a keen intellect to his work and was never scared to use his razor sharp wit to drive home a point before the Bench. I for one will very much miss these encounters and my licensing memory bank is all the richer from having worked with him. I wish him a long and happy retirement indulging his love of golf and opera and no doubt accompanied by a fine beer or two!” 

Terra Firma wished Mr Skinner a long and happy retirement.

Angelique Bret: Business beware – consumer law to power up

The plans are part of a broader suit of legislative changes which will bolster the UK’s consumer law enforcement regime. Outlined in a new paper, the proposals will dramatically increase the Competition and Markets Authority’s (CMA) powers in relation to competition law enforcement.

The government has accepted the need to incorporate processes to ensure rights of defence, with the opportunity to make written and oral representations, and allowing access to the CMA’s file. This will impact the speed at which the CMA will be able to take decisions under the new framework.

It is proposed the CMA would be able to impose fines not only on infringing businesses – up to 10 per cent of turnover – but also on individuals of up to £300,000 for a breach of the consumer protection rules. The CMA would be able to require businesses to compensate consumers and make changes to their business practices to improve compliance,

The CMA will continue to be able to pursue both civil and criminal consumer law cases before the courts, and the government confirmed that it intends to strengthen the courts’ fining powers in this area.

As the CMA will be able to continue to use its existing powers, there may be cases where it tries to secure voluntary undertakings from business to make certain changes to their business models, without the business needing to admit to any infringement of the rules. This could be used for less serious breaches.

Fines of up to five per cent of annual global turnover will be able to be levied on businesses that breach consumer protection undertakings they have given, or directions the CMA has issued them, and additional daily penalties of up to five per cent of daily global turnover for continued non-compliance could be levied. Individuals could be fined up to £150,000 and £15,000 daily for continuing non-compliance in this context.

The CMA’s information gathering powers will also be strengthened. Businesses will face fines of up to one per cent of their annual global turnover for failure to comply with statutory information requests, where they only do so in part, provide false or misleading information, or otherwise destroy, conceal, or falsify information and documents.

New rules in relation to consumer subscriptions are also proposed.

Businesses will have to provide clearer and enhanced pre-contract information requirements for subscription contracts, and to “send reminders to consumers before a contract rolls over (or auto-renews) onto a new term”. Plans to strengthen the law against the posting of fake reviews online were also outlined by the government.

Given the risk of serious penalties, businesses – particularly e-commerce platforms and marketplaces, as these have been a focus for consumer protection enforcement action across the EU – will be encouraged to consider putting in place robust compliance policies and systems for consumer protection law compliance, similar to those in place for competition law compliance.

Angelique Bret is partner and specialist in consumer law at Pinsent Masons

All parties to suffer under domestic abuse case boycott, solicitor warns

The Scottish Solicitors Bar Association (SSBA) said this week that is members would no longer accept new instructions in summary cases where a contravention of section one of the Domestic Abuse (Scotland) Act 2018 (DASA) is alleged from May 3.

Section one of the Act, which introduced a new offence to tackle coercive control, covers abusive behaviour towards a partner or ex-partner.

Matthew McGovern, a partner at McGovern Reid, tweeted that the decision had been reached “reluctantly”.

“Criminal defence firms - uniquely within the criminal justice system - require to operate for profit. It is simply not profitable to provide representation in section 1 of the Domestic Abuse (Scotland) Act 2018 cases,” he said.

He added: “These cases are far more complicated and time consuming to prepare than other summary complaint cases.”

He said a current DASA case of his would ultimately take some 19.5 hours to prepare.

“The fixed fee for this case is £524.53 which works out as an hourly rate of only £26.89. That is not my hourly rate, but from that fee I’ve to pay staff, run a business and meet all of the associated costs of running a business before I see a penny of the fee. Frankly it isn’t fair to the accused to have their defence prepared for that fee and it is no wonder solicitors across the country will now decline to accept instructions in s1 DASA cases.”

The solicitor warned that, as a result of the action, there is a risk that the Crown Office and Procurator Fiscal Office will “decline to prosecute s1 DASA cases and instead use s.38(1) or s.39(1) of the Criminal Justice and Licensing (Scotland) 2010 which will mean much of abusive behaviour complained about goes unpunished as the Scottish Parliament’s flagship legislation lies dormant on the statute books”.

He concluded: “There is now an obvious inequality of arms in the justice system and anybody who believes in the presumption of innocence should be afraid about what’s happening. That’s why the profession’s decision is necessary - and in the interests of justice.”

England: Partners saw 40 per cent pay boost during pandemic

A survey conducted for the Law Society found that median net profits per equity partner increased by 39 per cent from £146,417 in 2020 to £203,199 in 2021.

The rise has been attributed to increased fee income, particularly in residential conveyancing (up 15.2 per cent) and employment (up 21 per cent), but also to law firms’ use of the furlough scheme and other pandemic grants.

Overall, 69 per cent of participants in the survey reported year-on-year growth in fee income in 2020 with 40 per cent seeing growth of more than 10 per cent.

Median practice fee income increased by 6.2 per cent, the largest increase for seven years, whilst median fee income per equity partner increased by 8.3 per cent, from £761,981 in 2020 to £825,331 in 2021.

Total salary costs as a percentage of fee income fell by 2.9 per cent, likely due to staff being furloughed for a greater proportion of the period, delays in awarding pay reviews and promotions, and fees per fee earner rising more than the increase in salaries.

Law Society of England and Wales vice president Lubna Shuja said: “Solicitor firms have demonstrated their resilience through 2020/21, using lifelines from government to retain staff and equipping them to support clients from outside traditional office environments.

“This survey highlights the range of vital activity, economic and social, which solicitors have continued to facilitate through the pandemic. It also provides insights into the drivers of success as firms look towards business in the new normal.”

US: Wrongly convicted Miami man released after 30 years

Thomas Raynard James was 23 when he was convicted of murdering Francis McKinnon, who was shot dead on January 17, 1990 in front of his family after two thieves broke into their home.

Neighbours identified two men, Vincent Williams and Tommy James, as the perpetrators. Prosecutors, however, charged Mr James, who was from another part of the city, after Mr McKinnon’s stepdaughter, Dorothy Walton, picked him out from a line-up of photos.

There was no physical evidence connecting Mr James to the crime, yet Ms Walton told jurors she was convinced it was him.

“I am positive of it,” she said. “I will never forget his face.”

Last autumn, however, investigators in the Miami-Dade state attorney’s office reviewed the case. Ms Walton told them she thought she had made a mistake.

Prosecutors then filed a motion seeking for the conviction of Mr James to be overturned..

“What appears to be a chance coincidence, that the defendant, Thomas Raynard James, had the same name as a suspect named by witnesses and anonymous tipsters led to the defendant’s photograph being included in a line-up and set in motion a [case of] mistaken identity,” they said.

Mr James gathered evidence of his innocence over the decades he spent in prison. His lawyer, Natalie Figgers, credited journalist Tristram Korten with bringing to case to the attention of the authorities. Mr Korten wrote about it for GQ magazine.

Mr James may now sue the authorities for wrongful conviction.

Skipper fined for illegal fishing in protected area

Alex Murray, of the Isle of Lewis, was in charge of the FV Star of Annan while it was operating with its fishing gear deployed within the Wester Ross Marine Protection Area (MPA) on 18 July 2019.

FV Star of Annan is a dredging vessel which tows approximately 8 dredges on port side and 8 dredges on starboard side to target King Scallops. The scallop dredges used by the vessel are heavy metal rakes with teeth and chain bags designed to lift and collect King Scallops from both the top and underlayer of the seabed.

The court heard that on 18 July 2019 the Star of Annan (OB50) was observed by a passing yacht to be within the Wester Ross MPA at 11.30 hours. A witness told the court that he was “100 per cent the vessel was fishing” when he saw it within this area.

In the late afternoon the Master of another vessel saw the Star of Annan again in the Western Ross Marine Protected Area. A video taken by the crew played to the court showed the crewmen of the Star of Annan working with and emptying scallop dredges.

The video also showed that the fishing gear was not properly lashed and stowed in such a way that it may not be readily used contrary to the Wester Ross Marine Conservation Order (2016).

Murray’s position was that his vessel had only entered the protection zone to seek shelter after fishing equipment became stuck and could not be hauled back in due to engine and hydraulic machinery problems.

The vessel’s VMS (vessel monitoring system) data was led in evidence at trial. It showed the speeds and position of the vessel throughout 18 July 2019. The vessel’s speeds within the Wester Ross Marine Protected Area were said to be consistent with fishing speeds.

Within a week, in two separate dives, divers found damage to the seabed in one of the locations the Star of Annan had been in. This damage was said to look like dredging damage.

Procurator fiscal for Grampian, Highland and Islands, Andy Shanks, said: “It is clear from the evidence led at trial that Alex Murray was carrying out highly damaging dredging activities in an area designated to protect it from such.

“His failure to comply with the order protecting this habitat has resulted in his conviction.

“It is vitally important that there are laws in place to protect such important sites and, as with this case, where there is sufficient evidence of a crime and, if it is appropriate and in the public interest to do so, we will prosecute.”

Law Society of Scotland and Chartered Institute of Arbitrators announce collaboration

Solicitors are well-placed to advise on ADR options available to their clients and the benefits it can offer. These include providing a speedier, more flexible and affordable solution in a less adversarial environment, and which is conducive to retaining ongoing relationships. It may be especially beneficial for small or medium-sized businesses which currently may not be aware of, or able to access, suitable forms of ADR to meet their requirements.

The new collaboration between the Law Society and CIArb focuses on high-quality training to enable aspiring ADR professionals to acquire the necessary skills and knowledge in this field.

Paul Mosson, executive director of member services and engagement at the Law Society of Scotland, said: “We know that there is a growing interest in alternative forms of dispute resolution among our members, and it is important for solicitors to be aware of those options and be able to offer them to clients. We are committed to helping our members extend and refine their skills in all forms of ADR. By working with the Chartered Institute of Arbitrators, we can provide a broader range of training and accreditation which will ultimately better equip solicitors with the relevant knowledge and skills.”

Catherine Dixon, director general of the Chartered Institute of Arbitrators, said: “CIArb is delighted to be working with the Law Society of Scotland to raise awareness and promote the benefits of alternative dispute resolution. As a professional body and membership organisation, CIArb offers world-class, internationally recognised training to aspiring and established ADR professionals. CIArb’s growing worldwide and diverse membership of over 17,000 professionals operating in 150 jurisdictions through 42 branches, sets the standard for excellence in ADR globally.”

Italy: In nomine patris – et mātris

The decision states that parents should be permitted to give their children either or both parents’ surnames. In Italy, women keep their maiden names after marriage.

It had formerly been mandatory for a baby to be given their father’s surname, irrespective of the mother’s wishes.

The court in Rome said that rule was “discriminatory and injurious of the child’s identity”. Furthermore, it violated the principles of the Italian constitution as well as the European Convention on Human Rights.

The case was brought by a couple from the southern region of Basilicata. “They are very moved and aware that they have helped write a new page in history,” said Domenico Pittella, their lawyer.

Rights watch

Ukraine names 10 Russian soldiers in alleged human rights abuses in Bucha

Prosecutor general Iryna Venediktova says ‘more than 8,000 cases’ of suspected war crimes identified

Xinjiang: UN team in China ahead of visit by human rights chief

Michelle Bachelet due to visit Uyghur region in May after United Nations long pushed China for ‘unfettered, meaningful’ access.

Mesut Ozil on India: ‘What is happening to human rights in the so-called largest democracy in the world?’

The outspoken German football World Cupper Mesut Ozil has questioned India’s human rights record.

Regional Crisis as an Opportunity to Promote Human Rights

There is little doubt that our region is in crisis. At home, Kazakhstan is still reeling from the tragic events of January, while not far from home, the Russian-Ukraine conflict is raging between our two neighbours – to which we pray for a peaceful resolution.

A major voice of Egypt’s 2011 uprising publishes an anthology of his writings

NPR’s Leila Fadel talks to Egyptian human rights activist Sanaa Seif about her brother, a well-known activist involved with Egypt’s 2011 uprising, who completed his new book from prison.

South African Freedom Day 2022: What is left to celebrate?

People across the world watched in awe as South Africans queued for kilometeres, waiting patiently for hours under the sun, in cities, townships, villages and wide-open spaces to cast their votes for the first time on 27 April 1994.

Czechia looks to replace Russia in UN Human Rights Council

The Czech Republic wants to take Russia’s place in the UN Human Rights Council, the foreign ministry confirmed on Twitter.

Rwanda Defends U.K. Migration Deal, Weighs Similar Denmark Plan

Rwandan President Paul Kagame defended a controversial plan by the U.K. to send asylum seekers to the East African nation, and said it’s holding talks with Denmark about a similar deal.

Swedish PM says integration of immigrants has failed, fueled gang crime

STOCKHOLM - Sweden has failed to integrate the vast numbers of immigrants it has taken in over the past two decades, leading to parallel societies and gang violence, Prime Minister Magdalena Andersson said on Thursday, as she launched a series of initiatives to combat organised crime.

What is behind Libya’s recent crackdown on human rights and activists?

Over the last few months, Libya’s Internal Security Agency (ISA) has rounded up seven young Libyans, accusing them of very serious crimes including that of apostasy, contempt of Islam and spreading of atheism. Such accusations in the predominantly Muslim and overwhelmingly conservative country could be a death sentence, even if unproven.

Quote of the day

His soul swooned slowly as he heard the snow falling faintly through the universe and faintly falling, like the descent of their last end, upon all the living and the dead.

James Joyce, ‘The Dead’, from ‘Dubliners’ (1914)

And finally… breaking dad

“Methamphetamine does not discriminate and neither do we,” said Florida’s Franklin County Sheriff A.J. Smith in a Facebook post.

“It does not matter who you are, no one is immune or exempt.”

An investigation by the sheriff’s office led to the arrest of 38-year-old Kristen Kent and 25-year-old Bailey Adaire Lee earlier this month.

They were charged with, inter alia, trafficking methamphetamine.

Sheriff Smith later confirmed to The Miami Herald that Kent was his daughter.

“When you work in law enforcement, do not take things personally,” the sheriff wrote in a Facebook post.

How to fully customise Legal Case Management Software - Live webinar - Thursday 5 May at 10am

Steven will show how dynamic, modern law firms are using CaseLoad to help streamline processes and increase capacity for handling larger volumes of work.

Steven will also provide insight into how some of CaseLoad’s key features help lawyers and their support teams in their day to day working life.

Register here

Cyber Security & Law Firms – What to think about for your Legal Practice

Since most lawyers don’t know a whole lot about cyber security for their legal practice tech companies spend a fair amount of time trying to work out the best way to describe this world using relatable, personal examples and stories. Unfortunately, in many cases law firms are neglecting this very real threat and choose convenience over security and compliance. That’s because using analogies and stories simply doesn’t work. Law firms simply need to know about real consequences and solutions that help mitigate the threats of cyber-attacks on their legal practices.

Let’s face it, there are many lawyers out there for whom a deep, well-crafted explanation of what we’re doing to help is unnecessary and a waste of time. For them, us saying “because we said so” is enough.

For others, they have a very specific need which will require a very specific answer (Why do I need Multi-factor Authentication? Why do I have to change my password all the time). These folk don’t need stories either — just an explanation of the consequences to their business if they ignore advice. Last month, they got a real life example…

Read more here – Denovo Legal Software

Lodges, Pods, Terraces & Tubs

Being in “Lockdown” has changed many people’s thinking. Working from Home (WfH) is now the norm! It can be done.

Separating your work from your leisure / relaxation time is the challenge. With many of us now “stay-cationing” or “holi-staying” it is so important to have areas / spaces that you can go to that help us to achieve such.

Lodges & Pods – These provide a quick fix for dedicated Office Space and / or capacity for visitors / guests from time to time www.law-pods.co.uk / www.grand-lodges.co.uk

Glazed Terraces provide inexpensive and practical outdoor / indoor space – where there is much (day)light and an airy / healthy environment too www.exclusi-veranda.co.uk

Hot tubs are no longer a frivolous “luxury”. They are comforting, energy efficient, and provide many mental and physical health benefits www.scott-tubs.co.uk

For more information contact richard@scottslaw.co.uk

Anyone who makes a purchase during May will have the chance of winning a week’s holiday in June or July at the lodge pictured below in the Black Isle.

AQP have an expert team dedicated to Executry and Trust affairs

email: exeinstructions@alexquinn.co.uk

http://www.alexquinn.co.uk