The Courier & Advertiser (Angus and Dundee)
Lawyer in sex claims case cannot sue lord advocate, judges rule
“Judicial office-holders are not Crown servants for the purposes of the 1947 act
Awoman who claims she was sexually harassed by a former Dundee solicitor has lost a bid to sue Scotland’s most senior law officer.
A female lawyer, who cannot be named for legal reasons, decided to sue Sheriff Jack Brown over claims he repeatedly behaved inappropriately towards her.
She also tried to sue Lord Advocate Dorothy Bain KC – for, it is believed, £120,000 – as being “vicariously liable” for Sheriff Brown’s alleged actions.
Last year, at the Court of Session in Edinburgh, judge Lord Clark concluded it was appropriate for the woman to sue the lord advocate, as well as Sheriff Brown.
However, Ms Bain’s legal team believed the law showed the judiciary in Scotland are completely independent from the Scottish Government and the Crown.
They told the Inner House of the Court of Session – Scotland’s highest civil appeal court – the constitutional relationship between the Crown and the judiciary meant the lord advocate could not be held liable for Sheriff Brown’s alleged actions and Lord Clark was mistaken.
In a 30-page written judgment published by the court yesterday, Lord Doherty, who sat with colleagues Lord Boyd of Duncansby and Lady Wise, agreed.
He wrote about the role of the Crown Proceedings Act 1947 which determines the circumstances allowing actions against the state to be taken.
Lord Doherty concluded the lord advocate had no control over judicial office holders as they were independent from the state so the matter could not proceed.
He wrote: “In our view, because of the absence of control by the Crown over them, judicial officeholders are not Crown servants for the purposes of the 1947 act.
“They are officers of the Crown.
“Judicial independence is a fundamental principle of our constitutional law.
“The judiciary is a branch of government separate from and independent of both the legislature and the executive.
“There are two dimensions to judicial independence, the individual judge’s adjudicative independence, and the judiciary’s institutional independence from the other branches of government, in particular the executive.
“The upholding of both dimensions is essential to the rule of law.”
He said the long-standing convention government ministers must uphold the independence of the judiciary has been formalised statute.
“The lack of control by the Scottish Government and the importance of maintaining judicial independence (both actual and perceived) are cogent factors which weigh heavily against judicial officeholders being akin to employees.”
Mr Brown set up his own legal practice in Dundee in 1996 and has been a sheriff since 2005.
He was made sheriff of Grampian, Highland and Islands in September 2016 and has been suspended since 2018.
A disciplinary tribunal is currently investigating the claims made by the woman.
The woman – who has been identified as X – had made allegations Sheriff Brown had acted inappropriately towards her four times, including touching her bottom.
He was arrested and charged in relation to the allegations in January 2019 but prosecutors dropped the case three months later.