X v The Lord Advocate [2025] UKSC 44

A legal practitioner alleged that a sheriff assaulted and harassed her during four incidents in 2018. She sought to hold the Crown vicariously liable for the sheriff's alleged delicts. The Supreme Court dismissed the appeal, holding that the relationship between a sheriff and the Scottish Government is not akin to employment due to judicial independence.

Facts

The appellant, a legal practitioner protected by an anonymity order, alleged that John Brown, a sheriff, committed four incidents of misconduct against her in 2018. The first three incidents were alleged to constitute assaults: touching her cheek without consent at court, hugging her inappropriately in his chambers and patting her bottom, and placing his hand on her inner thigh on a train. The fourth incident involved an unanswered FaceTime call allegedly made in response to her complaint. The appellant claimed these incidents collectively amounted to harassment under the Protection from Harassment Act 1997.

The appellant sued both the sheriff (first defender) and the Lord Advocate (representing the Scottish Ministers) seeking to hold the Crown vicariously liable for the sheriff’s alleged delicts. The first defender denied the allegations, but the case proceeded on the assumption that the allegations were true for the purpose of determining points of law.

Issues

The central question was whether the Crown could be held vicariously liable for delicts allegedly committed by a member of the Scottish judiciary. This required consideration of:

Statutory Interpretation

Whether section 2(1)(a) of the Crown Proceedings Act 1947 should be interpreted as self-contained, automatically satisfying stage 1 of vicarious liability for Crown servants, or whether it incorporated the modern common law development requiring a relationship akin to employment.

The Nature of the Crown

What is meant by ‘the Crown’ in the context of vicarious liability under the 1947 Act, and specifically whether liability must arise in respect of His Majesty’s Government in the United Kingdom or the Scottish Administration.

Relationship Test

Whether the relationship between a Scottish judicial office-holder and the Scottish Government is akin to employment for the purposes of stage 1 of the vicarious liability test.

Judgment

Interpretation of Section 2(1)(a)

Lord Reed and Lord Burrows, delivering the joint judgment with which Lord Hodge, Lord Briggs and Lady Simler agreed, rejected the appellant’s primary submission that section 2(1)(a) was self-contained. The Court held that the common law on vicarious liability applies to the Crown:

“The words of the various sub-sections of section 2(1) are pitched at a general level with the objective purpose being to capture the main types of liability for which the Crown could be liable in tort or, by virtue of section 43(b), in delict.”

The Court applied the ‘always speaking’ principle of statutory interpretation:

“It follows from this correct interpretation that all the law on vicarious liability, that would apply if the Crown were a private person, applies to the Crown; and that includes the development of the common law at stage 1 to embrace a relationship that is akin to employment.”

Meaning of the Crown

The Court clarified that in the context of the 1947 Act, ‘the Crown’ refers to the Sovereign in his official capacity, with vicarious liability arising in respect of the Government of the United Kingdom or the Scottish Administration. The focus in this case was on the Scottish Government as part of the Scottish Administration, since it has responsibility for judicial office-holders’ salaries, appointment and removal.

The Relationship Not Akin to Employment

The Court identified two compelling and linked reasons why the relationship between a sheriff and the Scottish Government is not akin to employment:

“First, there is no control by the Scottish Government over the performance by sheriffs of their judicial functions.”

“Secondly, and most crucially, it is a constitutional principle, resting on the separation of powers, that the judiciary is independent of government.”

The Court emphasised the constitutional importance of judicial independence, citing section 3 of the Constitutional Reform Act 2005 and section 1 of the Judiciary and Courts (Scotland) Act 2008:

“Accordingly, the Scottish Government can tell a sheriff neither what to do nor how to do it.”

Implications

This judgment has significant implications for the liability framework concerning judicial misconduct in Scotland and potentially the wider United Kingdom:

Constitutional Principles

The decision reinforces the constitutional principle of judicial independence, establishing that this independence precludes judicial office-holders from being considered in a relationship akin to employment with the executive branch of government.

Limitation on Crown Vicarious Liability

The judgment clarifies that the Crown’s vicarious liability under the 1947 Act incorporates modern common law developments, but these developments do not extend to creating vicarious liability for judicial office-holders whose constitutional independence fundamentally distinguishes them from employees.

Redress for Victims

The practical consequence is that victims of judicial misconduct falling outside the discharge of judicial functions cannot seek compensation from the deeper pockets of the Crown through vicarious liability, but must pursue claims against individual judges personally.

Modern Statutory Interpretation

The judgment affirms the ‘always speaking’ principle while demonstrating its limits where constitutional principles constrain the application of evolving common law doctrines.

Verdict: Appeal dismissed. The Crown is not vicariously liable for delicts allegedly committed by a sheriff because the relationship between a Scottish judicial office-holder and the Scottish Government is not akin to employment, principally due to the constitutional principle of judicial independence.

Source: X v The Lord Advocate (UKSC/2024/0116