Inner House rules lord advocate not vicariously liable for alleged sexual harassment by sheriff

About this case:

• Citation:
  [2024] CSIH 6
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Doherty

It was alleged by the anonymous pursuer, X, that Sheriff John Brown had touched her inappropriately in encounters connected to cases she was conducting before him, constituting harassment under the Protection from Harassment Act 1997. Vicarious liability was denied by the Crown on the basis that there was no relationship akin to employment between the Crown and a sheriff.

The appeal was heard by Lord Doherty, Lord Boyd of Duncansby and Lady Wise. McBrearty KC and Mackinlay, advocate, appeared for the pursuer, while Springham KC and D Scullion, advocate, appeared for the lord advocate. No representations were made for the first defender at this stage.

Judicial independence

The pursuer alleged that four incidents involving the first defender had taken place over the late spring and summer of 2018. She reported him to the police, who investigated the complaint and took witness statements from two other women who said he had acted inappropriately towards them prior to his appointment as a sheriff. Ultimately no prosecution was raised, although there remained ongoing proceedings concerning the first defender’s fitness for office.

Originally, the pursuer raised her action against the lord president as second defender, the lord advocate as third defender, and the advocate general for Scotland as fourth defender. After the action against the second defender was abandoned, the third and fourth defender both averred that the other was the appropriate law officer to represent the Crown. However, both argued that no vicarious liability could arise on the Crown’s part as the relationship between the Crown and a sheriff was not one akin to employment.

The lord ordinary decided that the lord advocate was the appropriate law officer and concluded that the first defender was a Crown servant. He took a broad view of the first defender’s responsibilities and noted the degree of authority and control he had over those appearing before him and over the wider legal profession. Ultimately, he held that the pursuer was not bound to fail to satisfy stages 1 and 2 of the relevant legal test.

Both the pursuer and the third defender reclaimed, the pursuer on the basis that the lord ordinary erred in holding she had not pled a relevant case in respect of two of the incidents and the third defender on the basis that the test for vicariously liability was not met. The Crown did not exercise control over judicial office-holders under the principle of judicial independence. Their work was not in furtherance of the aims of the Scottish government, and to hold there was an employment relationship would imply judges were dependent on or subordinate to it.

Alternatively, it was submitted by the third defender that if the stage 1 test was satisfied, the stage 2 test of close connection was not met. The alleged incidents were all in pursuit of the first defender’s own private ends. The lord ordinary had wrongly focused upon the first defender’s status rather than upon the closeness of any connection between the alleged delicts and what he was authorised to do.

Strong public interest

Lord Doherty, delivering the opinion of the court, said of the lord ordinary’s findings: “Whether or not judicial office-holders are Crown servants is a contentious issue. We note that Professor Mitchell (Mitchell, Constitutional Law (2nd ed) thought the matter “debatable, the more so in Scotland where many incidents of [a judge’s] office have been attributed to the fact that that office is a munus publicum.” In our view, because of the absence of control by the Crown over them, judicial office-holders are not Crown servants for the purposes of the 1947 Act. They are officers of the Crown.”

He continued: “The Scottish government may be said to be the ultimate funder of sheriffs’ remuneration, allowances and pension benefits. It might be argued that that tends to support the proposition that judicial office-holders are akin to its employees. On the other hand, these financial arrangements - carefully put in place in order to preserve judicial independence - are very different from those in a normal employer/employee relationship. Moreover, the Scottish government has no control over the performance by sheriffs of their judicial functions, and nor does it exercise control over the judiciary as an institution.”

Turning to the issue of judicial independence, Lord Doherty said: “We agree with the third defender that treating judicial office-holders as akin to employees of the Scottish government, and thus (where the stage 2 test was met) rendering the Scottish government vicariously liable for them, would be inimical to judicial independence, notwithstanding the common law and statutory guarantees that judicial independence be maintained. The public may struggle to see that the judiciary was institutionally independent of the Scottish government were the courts to treat judicial office-holders as being akin to its employees.”

He concluded: “There is a very strong public interest in maintaining judicial independence and the separation of powers, both of which are fundamental to the rule of law. In our opinion the undermining of judicial independence which would be caused by treating judicial office-holders as akin to employees of the Scottish government in cases like this one would be a much greater mischief than the risk that pursuers might not obtain full recovery.”

Accordingly, the action against the third defender was dismissed, along with the pursuer’s reclaiming motion contingent on that action not being dismissed.