A legal practitioner alleged sexual assault and harassment by a Scottish sheriff and sought to hold the Crown vicariously liable. The Supreme Court held the Crown was not vicariously liable because the relationship between a sheriff and the Scottish Government is not akin to employment, given judicial independence and lack of governmental control.
Background
The appellant, a legal practitioner identified only as ‘X’ pursuant to an anonymity order, brought proceedings alleging that Sheriff John Brown committed a series of assaults and harassment against her during 2018. The first three incidents involved unwanted physical contact: touching her cheek at court on 18 May 2018, hugging her and patting her bottom in his chambers on 5 July 2018, and placing his hand on her inner thigh on a train on 19 July 2018. The fourth incident was a FaceTime call on 24 August 2018, which the appellant believed was in response to a formal complaint she had made. The appellant alleged that the first three incidents constituted assaults and that all four together amounted to harassment contrary to the Protection from Harassment Act 1997.
The first defender denied the allegations. The appeal proceeded on the assumption that the allegations were true, as the question before the court was one of legal relevance (whether the claim was bound to fail), not factual determination. The appellant sued both the first defender personally and the Lord Advocate as representing the Scottish Ministers, seeking to establish vicarious liability of the Crown for the sheriff’s alleged delicts.
The Issue(s)
The central question was whether the Crown is vicariously liable for delicts allegedly committed by a member of the Scottish judiciary. This required consideration of two interrelated issues:
Interpretation of section 2(1)(a) of the Crown Proceedings Act 1947
The appellant’s primary submission was that section 2(1)(a) was self-contained, defining the class of persons for whose delicts the Crown is liable entirely by reference to the statutory concept of ‘servants or agents’, without importing common law developments in vicarious liability. On this basis, she argued that if a judicial office-holder was a ‘Crown servant’, stage 1 of the vicarious liability test was automatically satisfied regardless of whether the relationship was akin to employment at common law.
The stage 1 test: relationship akin to employment
In the alternative, the appellant submitted that even applying the modern common law test for vicarious liability as set out in BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses [2023] UKSC 15, the relationship between the Crown (specifically the Scottish Government) and a sheriff was akin to employment, given the Government’s role in appointment, removal and remuneration.
The Court’s Reasoning
The meaning of ‘the Crown’ in section 2(1)(a)
The Court undertook an extensive analysis of what ‘the Crown’ means in the context of the 1947 Act. Lords Reed and Burrows, giving the unanimous judgment, carefully distinguished the Crown as the Sovereign in his official capacity from the government or executive. They noted that Lord Diplock’s dictum in Town Investments Ltd v Department of the Environment [1978] AC 359 equating ‘the Crown’ with the government needed to be handled with care, as it was made in a different context and could not be applied to the law of tortious or delictual liability where the distinction between the Crown and its officers is fundamental.
The Court emphasised that section 40(2)(b) of the 1947 Act limits the Crown’s liability to matters arising ‘in respect of His Majesty’s Government in the United Kingdom or the Scottish Administration’. This was crucial because the Crown possesses functions and powers — including legislative and judicial functions — that do not concern the Government or the Scottish Administration. The Court found that the relevant manifestation of the Crown was the Scottish Government (as part of the Scottish Administration), since it was the Scottish Government that had responsibility for sheriffs’ salaries, appointment and removal.
Rejection of the appellant’s primary submission on statutory interpretation
The Court rejected the submission that section 2(1)(a) was self-contained and that being a ‘Crown servant’ automatically satisfied stage 1 of vicarious liability. Instead, the Court held that section 2(1)(a) imports the full common law of vicarious liability, including the modern development extending it to relationships akin to employment. The Court reasoned:
Focusing on section 2(1)(a), therefore, the words effect the purpose of imposing on the Crown the law on vicarious liability in delict or tort. The purpose is not, as the pursuer submits, to impose on the Crown only a limited part of that law and nor is it to deem aspects of that law (ie the first stage of vicarious liability) as being automatically satisfied where the wrongdoer is a Crown servant.
The Court applied the ‘always speaking’ principle of statutory interpretation, holding that an interpretation embracing common law developments was to be preferred to one that treated the statute as frozen in time.
Stage 1: the relationship between the Scottish Government and a sheriff
The Court then considered whether the relationship between the Scottish Government and a sheriff was akin to employment. It concluded it was not, for two compelling and linked reasons.
First, there was no control by the Scottish Government over the performance by sheriffs of their judicial functions. The judiciary itself determined listing matters and the Government could not direct how sheriffs performed their duties.
Second, and most crucially, the constitutional principle of judicial independence, enshrined in section 3 of the Constitutional Reform Act 2005 and section 1 of the Judiciary and Courts (Scotland) Act 2008, was determinative:
Accordingly, the Scottish Government can tell a sheriff neither what to do nor how to do it.
The Court noted that while the Scottish Government funded sheriffs’ remuneration through the Scottish Consolidated Fund, this alone was insufficient to make the relationship akin to employment.
The Court drew support from Gilham v Ministry of Justice [2019] UKSC 44, where Lady Hale had observed:
Fundamental to the constitution of the United Kingdom is the separation of powers: the judiciary is a branch of government separate from and independent of both Parliament and the executive. While by itself this would not preclude the formation of a contract between a Minister of the Crown and a member of the judiciary, it is a factor which tells against the contention that either of them intended to enter into a contractual relationship.
Section 2(5) of the 1947 Act
The Court agreed with the Inner House that section 2(5), which exempts the Crown from liability for actions done while discharging judicial responsibilities, does not dictate that judicial office-holders must be Crown servants for the purposes of stage 1. This was a non-sequitur, as the provision could be understood as reflecting the fact that since the Crown cannot interfere in judicial functions, it cannot be vicariously liable for those acts. The provision also extends to persons who are not judicial office-holders but whose functions may involve judicial responsibilities.
Practical Significance
This decision is of considerable constitutional importance. It confirms that the Crown cannot be held vicariously liable for delicts committed by Scottish judicial office-holders because the relationship between the judiciary and the Scottish Government is not akin to employment. The principle of judicial independence, fundamental to the separation of powers, is the overriding factor that precludes such a finding. The decision also clarifies that section 2(1)(a) of the Crown Proceedings Act 1947 is not a self-contained code but imports the full modern common law of vicarious liability, including the ‘akin to employment’ extension, as applied through the ‘always speaking’ principle. The practical consequence is that individuals harmed by the tortious conduct of judicial office-holders acting outside their judicial functions have no recourse against the Crown; their remedy lies only against the individual wrongdoer. This may leave claimants at risk of being unable to recover full damages where the wrongdoer lacks sufficient means, a concern the Court acknowledged but held was outweighed by constitutional principle.
Verdict: The appeal was dismissed. The Supreme Court unanimously held that the Crown is not vicariously liable for delicts allegedly committed by a Scottish sheriff, because the relationship between a judicial office-holder and the Scottish Government is not akin to employment, principally due to the constitutional principle of judicial independence and the absence of governmental control over the judiciary.
Source: X (Appellant) v The Lord Advocate (Respondent) [2025] UKSC 44
