Marinello v City of Edinburgh Council - [2010] CSOH
17
The defenders employed the claimant as a community service
assistant. His job was to supervise offenders sentenced to
community service. He alleged he had been harassed by two of his
superiors and brought an action under the Protection from
Harassment Act 1997. The Act contained separate provisions for
England and Scotland. Section 8, applicable in Scotland, provides
that a person must not pursue a course of conduct which amounts to
harassment of another. A course of conduct must involve conduct on
at least two occasions. The claimant set out nine specific
incidents which he alleged amounted to a course of conduct. The
first eight occurred before he stopped working in September 2005.
The ninth occurred almost eighteen months later, in March 2007. The
claimant raised his action in September 2008 - more than three
years after all bar the last incident.
The defenders asked the court to dismiss the action on the basis
that it was time barred. They argued that the last incident - when
the claimant's former supervisor drove past him, gesticulating with
a clenched fist - was not an act which amounted to harassment. It
should not be taken into account. If it was struck out, every other
alleged act occurred more than three years before the action was
raised and so the whole claim was time barred.
Many of the alleged incidents involved the supervisors shouting
and swearing at the claimant. They called him useless, an idiot and
a disgrace. They also employed the terms too Anglo Saxon to repeat
in a Scottish information bulletin.
Finally, the defenders argued that even if all nine incidents
were harassment, the last one was so long after the others that it
should not be treated as part of the same course of conduct.
Lord Uist first considered the argument that before conduct
could be harassment, it had to be criminal. Under the English
provisions, conduct which amounts to harassment is a criminal
offence. There is no such provision in Scotland - but only because
the harassment would already be a breach of the peace. Lord Uist
held he did not need to consider whether the conduct amounted to a
criminal act.
He then turned to the 2007 incident. Apparently being au
fait with van drivers and their behaviour; he concluded that
gesticulating with a clenched fist was clearly threatening in
nature. It could also have formed the basis of a criminal charge,
although that was not crucial.
The key question, therefore, was whether the 2007 incident could
be linked with the prior incidents to enable it to be included in
the alleged course of conduct. Both parties and Lord Uist agreed
that he should apply a doctrine from criminal law, known as the
Moorov doctrine. This provides that where the
circumstances of the commission of two crimes are unusually
similar, one acts to corroborate the other. However, Lord Uist
noted that it has also been held that the longer the time between
offences, the more difficult it becomes to draw that inference. The
last incident occurred long after the claimant stopped working for
the defenders. It happened in the street, whereas all the others
had in the workplace. In short: "The 2007 incident was an
opportunistic and isolated one."
Lord Uist therefore concluded that the 2007 incident was not
part of the previous course of conduct. It was irrelevant. Without
it, the action had not been raised within three years of the date
of the last act forming part of the course of conduct. The action
was therefore time barred under Section 18B of the Prescription
& Limitation (Scotland) Act 1973.
It was perhaps not only the claimant's supervisor who was being
opportunistic. By raising an action more than three years after all
bar one of the alleged incidents, the claimant was already making
life difficult for himself. The first lesson, then, is to treat
each alleged act individually. Does it amount to an act of
harassment? Would it cause a person alarm or distress? If not,
strike it from the list of complaints.
The second question is whether what remains amounts to a course
of conduct. In this case, the claimant cleared that hurdle. However
in each case it is important to consider the linkage between the
acts. Were they sufficiently distinct - in setting, timing and
content - that they did not form part of the same course?
It is also striking that the claimant did not ask the court to
exercise its discretion under s19A of the 1973 Act, to allow the
action to continue although raised out of time. We will never know
why the action was not simply raised a month earlier. And finally,
remember that if a van driver shakes his fist at you he has
committed a breach of the peace; if he does it twice, you may have
a claim under the 1997 Act.
Contributed by Graeme Watson