Category Archives for "Scottish Law"

Apr 28

Widow sues security company over chokehold death of her husband

By ste7en8 | Door Supervision , Physical Intervention , Scottish Law , Use of Force

A widow whose husband died after being choked by a pub bouncer has won a legal battle against insurers after suing the door steward’s former employers for damages.

A judge in the Court of Session ruled that an insurance company, which was seeking to avoid paying out on the basis that its liability was excluded by criminal acts, is obliged to indemnify the security firm after Fiona Grant raised an action claiming the bouncer’s employers were “vicariously liable” for the death of her late husband Craig Grant.

Murder trial

Lord Uist heard that Mr Grant died after being escorted from the Tonik Bar in Aberdeen on 9 August 2013, and that a post mortem examination certified the cause of death as “mechanical asphyxia”.

The first defender Jonas Marcius was subsequently charged with the murder of the deceased but, following a trial at Aberdeen High Court he was convicted of assaulting the deceased by “seizing him on the neck, forcing him to the ground, placing him in a neck or choke hold and restricting his breathing; and in January 2015 he was sentenced to a community payback order with an unpaid work element of 250 hours.

The pursuer raised an action for damages claiming that the death of her husband was caused by the “negligence” of the first defender at common law, for which the his then employers Prospect Security Ltd (second defenders) and bar owners Blu Inns Ltd (third defenders) were both “vicariously liable”, and against International Insurance Company of Hanover Ltd (fourth defenders) – which provided public liability insurance to the security firm – in terms of the “Third Party (Rights against Insurers) Act 2010.

But the fourth defenders argued that they were not obliged to indemnify the second defenders.

Insurance policy

The principal submission for the fourth defenders was that their liability to indemnify was “wholly excluded” by clause 14 of the policy of insurance, which stated that the insurers were not liable for “deliberate acts, wilful neglect or default”.

It was argued that the first defender’s actions amounted to an assault and whether or not he intended to kill the deceased was “irrelevant”; he had intentionally committed a blameworthy act which caused the death of the deceased – an act which was “clearly and unambiguously excluded” by the terms of the policy.

With reference to the case of Hawley v Luminar Leisure Ltd [2006] PIQR P17, in which the insurers were held liable to indemnify the insured for one of their door stewards having, apparently without provocation, punched a bystander so hard that he had suffered severe brain injury, clause 14 operated to exclude or limit liability for criminal or otherwise unlawful acts committed by a door steward.

Alternatively, if liability was not wholly excluded by clause 14, it was limited to the sum of £100,000 because the actions of the second defenders’ employees amounted to “wrongful arrest” in terms of clause 20 and extension 3 of the policy.

‘Fault and negligence’

However, on behalf of the pursuer it was submitted that the death of the deceased was caused by the “fault and negligence” of the first defender, who was at the material time acting “in the course of his employment” with the second defenders, who were insured by the fourth defenders.

His actions were not “wilful or deliberate” in terms of the policy as he did not intend to kill the deceased and there was no evidence that he was reckless, as confirmed by the result of the criminal trial, and clause 14 applied only when the outcome giving rise to liability was the intended objective.

The more obvious explanation was that the first defender was simply “over-zealous” in his actions, which caused the death negligently, and because of the “contra proferentem” rule the ambiguity in the interpretation of the contract had to be resolved against the fourth defenders.

The pursuer’s claim did not arise from wrongful arrest, as there was no arrest, but from a breach of duty at common law; the proximate cause of the claim was “breach of the duty of care” rather than deprivation of liberty.

Since neither of the exclusion clauses applied, it was argued that the fourth defenders were obliged to indemnify the second defenders.

‘Contra proferentem’.

The judge agreed that the fourth defenders were obliged to indemnify the second defenders in respect of their liability to the pursuer arising out of the death of the deceased and that the second defenders’ right to indemnity had been transferred to and vested in the pursuer under sections 1 and 3 of the 2010 Act.

In a written opinion Lord Uist said,

“The question which I have to decide is a pure question of construction of the policy of insurance entered into between the second and fourth defenders, and in particular of the expression ‘deliberate acts wilful neglect or default’. In approaching this task I must apply the principles of construction set out above, in particular the contra proferentem rule.

“In my view it is important to bear in mind what this action is about and the legal basis for it. The claim is a derivative claim by the widow of the deceased arising out of his death. The basis of the action is that the first defender failed in his duty of reasonable care for the safety of the deceased and so caused his death.

“The pursuer does not aver, and therefore would not seek to prove should the action proceed to proof, that there was any wilful act, wilful neglect or default on the part of the first defender causing the death of the deceased. In my opinion, applying the contra proferentem rule and adopting the approach of the court in the case of Hawley, the submission for the pursuer that the clause applies only when the outcome giving rise to liability, namely death, was the intended objective is correct.

“It is quite clear, and, I think, accepted by both the pursuer and the fourth defenders, that the first defender did not wilfully, intentionally or deliberately set out to cause the death of the deceased. The death was an unintended and unfortunate consequence of his assault upon the deceased.”

Lord uist - Judge

He added,

“Contrary to the submission made on behalf of the fourth defenders, I do not accept that whether or not he intended to kill the deceased is irrelevant. Nor do I accept that the way in which the pursuer has framed her case is irrelevant. The case pleaded by the pursuer is that the death of the deceased was caused by the fault and negligence of the first defender.

“There is no suggestion in her case that he intended to kill the deceased. Neither is there any suggestion in her case that the deceased was subject to unlawful arrest as defined in the policy.

“An unlawful arrest could not competently form the basis of a derivative action of the type pleaded by the pursuer. In my opinion the references by the fourth defenders to unlawful arrest are wholly irrelevant: an action based on unlawful arrest would have to have been brought by the pursuer in a different capacity, as a representative of the deceased.”

Lord uist - Judge

Jun 01

YES, Trespass Law’s really DO exist in Scots Law!

By ste7en8 | Scottish Law

There are many myths that surround the Scottish Legal system. One such myth is that trespass does not exist in Scots law. I have herd this countless times by security operatives and even security trainers who deliver training courses to security operatives, often with little or poor legal knowledge themselves and deliver training courses and empart such mythology as fact due to their lack of legal knowledge.

Trespass is a civil wrong, called a delict in Scots law. 

The origins of trespassing laws actually date back in Scotland many centuries.  In fact to be more precise it dates back to a court decision from 1791 in the case of Livingstone v Earl of Breadalbane states that;

Definition of trespass

Under the Trespass (Scotland) Act 1865, trespass is considered a civil wrong but can also sometimes be considered a criminal offence,.

A description of trespass in Scots Law is ‘the process of entering another person’s property or land without permission’.

Livingstone v Earl of Breadalbane [1791]

"…every man is the proprietor of his grounds, and entitled to the exclusive possession of them… No man can claim a road or passage through another man’s property… without a servitude… for amusement of any kind, however necessary for health…”

Livingstone v Earl of Breadalbane & the Trespass (Scotland) Act 1865

Some individuals may believe that this ancient court case does not actually bear much relevance to modern laws, but a person’s right to the full exercise of their property is protected by Protocol 1, Article 1 of the European Convention on Human Rights. Although the court decision from 1791 is old, it still accurately states the current legal position on trespass.

The legislation that established trespass as an offence (The Trespass (Scotland) Act 1865) has been amended by the Land Reform (Scotland) Act 2003 which establishes universal access rights to most land and inland water. People only have these rights if they exercise them responsibly by respecting people's privacy, safety and livelihoods, and Scotland's environment. The Scottish Outdoor Access Code provides detailed guidance on the responsibilities of those exercising access rights and of those managing land and water and sets out a number of exceptions where the land access right doesn't apply:

However, the waters were muddied by the introduction of what is commonly known as “the right to roam.” Public access rights were created by the Land Reform (Scotland) Act 2003. This Act provides the public the right to be on and cross most land and inland water in Scotland in a responsible manner. However, public access rights do not apply to the following places:

  • Houses, gardens and non-residential buildings and associated land
  • Land in which crops are growing
  • Land next to a school and used by the school
  • Sports or playing fields (where exercising access rights would interfere with their use)
  • Airfields, railways, quarries, construction sites and military bases
  • Visitor attractions or other places which charge for entry.

For a more extensive list of places where public access rights do and do not apply, see the Scottish Outdoor Access Code.

Where a member of the public accesses land which is not covered by public access rights, they are trespassing. A court can therefore make an order to prevent trespassers from entering the land. Breach of such a court order could become a criminal offence.

However, land owners also have responsibilities. If a member of the public is injured while exercising their public access rights, the land manager or owner could be liable for injuries sustained if they did not take adequate precautions to protect those on their land.

Criminal Law

This may fly in the face of what some security operatives have been previously informed whilst attending a licence linked security course for their door supervisors or security guards licence.

In Scotland, Trespass can sometimes also constitute a criminal offence, e.g. trespass which breaches poaching laws. It can also be criminal to damage someones property whilst in the act of trespass.

Whilst most of the Criminal Justice and Public Order Act 1994 does not apply in Scotland, the sections concerned with trespass and several others DO apply.

Access which doesn't comply with the rights set out in the Scottish Land Reform Act would still constitute trespass. Trespass is generally committed by persons or animals, and must be distinguished from 'encroachment' which is committed by things. In Scotland, trespass is only committed by things if their presence on the land is temporary. So, if someone moved a boundary fence, the fence would be encroaching (not trespassing) on your land. However, the law is similar to the English law in that if you allow this state of affairs to continue unchecked, then you will be deemed to have consented to the encroachment and you will lose your rights to object. You can ask the individual to stop trespassing which will prevent any acceptance or consent to the trespass and preserve your rights to act against it.

The defences to trespass are:

  • Consent
  • Judicial Warrant
  • Emergency
  • Exercise of a right. For example, this could be a servitude, a public right of way, or an access right under part 1 of the Land Reform (Scotland) Act 2003.

Regarding remedies, interdict is a possible remedy in Scotland as in England & Wales. 

However, it should be noted that this remedy is discretionary and the person asking for interdict must show the likelihood of future trespass before the court will award interdict.

In addition, in Licensing law in Scotland if an 'Agent of a Licensee' asks a person to leave licensed premises, then they must do so as refusal would legally constitute Trespass.

Therefore a door supervisor or bar staff or even the Licensee themselves are legally permitted to use force to eject a trespasser. The use of force MUST be reasonable in the circumstances to which is being dealt with.

Any excessive use of force can be pursued in the civil or criminal courts so it is vitally important that ALL security operatives fully understand what legally constitutes Reasonable Force. Finally, damages can occasionally be obtained provided they can be proven, although this would be legally problematic for someone if they are the one who refused to leave peacefully when requested to do so, but that wouldn’t stop a case for damages if someone had legally been subjected to unreasonable force.

Section 116 of the Licensing (Scotland) Act 2005

Refusal to leave premises

Under this section the law states that where a person refuses or fails to leave any relevant premises as mentioned in subsection (1) or (2), an authorised person may—

(a) remove the person from the premises, and

(b) if necessary for that purpose, use reasonable force.

Another legal option is to call the police who are legally duty bound to provide ‘assistance’ in removing a trespasser from Licensed premises under section 116, subsection (4), (a) which states:

(4) A constable must, if—

(a) asked by an authorised person to assist in exercising a power conferred by subsection (3), and

(b) the constable reasonably suspects the person to be removed of having refused or failed to leave as mentioned in subsection (1) or (2), provide the assistance asked for.

Definition of relevant premises

It is worth noting that under the Licensing (Scotland) Act 2005 it states 'relevant premises' which are defined in the act of the Scottish parliament as any premises that serves alcohol. this would include off licensed premises such as supermarkets and off licensed premises.

Trespass on shops and licensed premises

This can also occur when an individual enters another property or piece of land with permission, but then subsequently that permission is withdrawn and the individual involved refuses to leave. For example, a person who walks into a shop or licensed premises, causes a commotion but refuses to leave upon request from the manager of security staff.

In R v Armagh Justices (1897) 2 Ir 57, Holmes J stated that a licence holder could pick and choose his customers. In an even earlier case, R v Rymer (1877) 2 QBD 136, it was held that a member of the public could not insist on being served in a public house.

Licensed premises, as well as those classified as relevant premises are not a “public place” and a member of the public cannot insist on remaining or attempting entry after they have been legally refused. The customer is there by invitation of the licensee and under their permission, only. Legally that invitation can be withdrawn at any time.  Any attempt to remain on the premises or refusal to leave will see the person legally regarded as a trespasser, and again, an agent of the licensee such as a door supervisor can lawfully use 'reasonable force' to evict the trespasser.

The other aspect in refusal is that the term of 'undesirable' has no specific legal meaning, other than that of a person who the licensee or their agent, such as a door supervisor (acting on behalf of their employer/client) decides that their custom is not desired and the person is not entitled to a legal explanation, although they can ask, but the licensee, nor their agent (door supervisor) needs to provide an explanation. Again, the premises are classified as a private business and as such the law is on the owners side, so long as the customer, or would be customer is not discriminated under one of the protected characteristics of the Equality Act 2010 such as age, sex, sexual preference, or disability. There are many cases  where business owners or security staff have clearly refused entry due to a person's sexual orientation, or other protected characteristic and damages (Delict) have been awarded.