In Vaickuviene v J Sainsbury plc  CSOH 69 the Outer House of the Court of Session (the equivalent of the High Court in England) was asked to consider the application of vicarious liability for the murder of a Lithuanian shelf stacker at Sainsbury in Aberdeen by another worker. Continue reading
Tag Archives: Crime
Often cited as authority for the proposition that each incident in a course of conduct has to be a criminal offence. Not only is that overstating the decision but it would certainly amount to bad law.
The PHA makes harassment a criminal offence as well as a civil tort but to suggest this means the conduct has to be criminal before it can be harassment is put the cart before the horse and defeat the purpose of the PHA (which was to criminalise conduct which would otherwise be lawful).
The correct position was neatly expressed in the same month by Lord Emslie in Robertson v Scottish Ministers  CSOH 186; “criminality is … a consequence rather than a prerequisite of civil harassment under section 1(1) [of the PHA]“.
In practice, that overstated interpretation of has been fatally undermined by subsequent decisions (see the list below) though the following words of Gage LJ should be a mantra:
“It seems to me that what, in the words of Lord Nicholls in Majrowski, crosses the boundary between unattractive and even unreasonable conduct and conduct which is oppressive and unacceptable, may well depend on the context in which the conduct occurs. What might not be harassment on the factory floor or in the barrack room might well be harassment in the hospital ward and vice versa. In my judgment the touchstone for recognizing what is not harassment for the purposes of ss 1 and 3 will be whether the conduct is of such gravity as to justify the sanctions of the criminal law.”
For a cracking example of obviously non-criminal conduct which could amount to harassment, look at Ferguson v British Gas Trading Ltd  EWCA Civ 46