In part 1 of this blog I made the point that security law and security operations are twinned and that if you want to find the detail of the legal requirements, you need to look in the direction of operational security itself.
A good way to look at this would be to consider a professional negligence case. Such a case might concern the actions of a medical professional, or an engineer, or an accountant, or a lawyer, for example. Where professionals provide services to third parties, a duty of care will arise governing their work. Often legal cases concerning the performance of these services are described as “professional negligence” cases.
The law of negligence forms part of the law of tort. There are many situations where a duty of care in negligence will be imposed, such as on the roads, which is why there is so much car crash litigation. Broadly speaking, the law of negligence will apply where the parties are are reasonably proximate to one another (i.e., in a close enough relationship), it is foreseeable that their acts and omissions could cause the other person harm, and it is fair, just and reasonable for a duty of care to apply. Therefore, the professional will carry a legal duty to perform their services with reasonable care and skill and they will be liable for any damage that results from a failure to do so, to the extent that such damage is reasonably foreseeable.
For example, if a surgeon performs an operation that causes unintended harm to the patient, they will be liable if that harm resulted from a failure to perform the operation with reasonable care and skill. This amounts to a fairly good statement of the law, but the problem with it is obvious when you think about it: what will amount to the exercise of reasonable care and skill during an operation? What standards apply to the performance of surgery? How do we determine the detail of the legal duty?
We can start to answer these questions when think about how a trial is conducted. At trial, the surgeon and the patient will both rely upon expert evidence, to explain the details and standards that apply to the medical procedure that is being litigated. The expert evidence will be provided by witnesses who are expert in the field of surgery that is being examined in the case. They will probably be surgeons too, or distinguished academics, or researchers in the field, or perhaps all three. With the assistance of the experts, the court will try to understand the consensus of professional opinion on how the procedure should be best performed and the surgeon’s actions will be measured against that benchmark.
Hopefully it will be clear that what happens in a clinical negligence case is that the detail of the law’s requirements will be found in surgical practice itself. In other words, we see the twinning of the law and the operational requirements that I described earlier. To all intents and purposes, security law resides in the same zone as the other professional and technical disciplines and any disputes about the law’s requirements will defer to expert opinion on operational security matters.
So, if we are to stand any chance of understanding the detail of security law, we have to begin our journey with an examination of operational security. There is no other or better starting place.