Month: June 2017
The Evolution and Analysis of the Principle of Legitimate Expectation
I. Introduction “A man should keep his words. All the more so when promise is not a bare promise but is made with the intention that the other party should act upon it”[1] A law cannot be found upon mere trust and expectations, no matter how reasonable it may sound. For the individuals to act on the law, the law has to be concrete and defined. Therefore, laws are codified and precedents are established, to bring about the union of constancy and certainty. Laws, once formed, create expectations in the mind of the persons that such laws will be justly implemented and observed by the administrative authorities with any sort of arbitrariness. At the same time, laws have to undergo constant changes and modifications and repealments to meet the challenges of a constantly changing society and to do more justice. The principle of legitimate expectancy keeps a check on the arbitrary exercise of power by public authorities, by defining the ambit within which the administrative authorities can change the law, and in this manner giving relief to an aggrieved individual against an arbitrary use of power even when such relief does not exists under statute law. II. The Principle of Legitimate Expectation Lord Denning[2] first made the mention of the principle of legitimate expectation, which was later adopted by courts all over the world.[3] The doctrine of “legitimate Expectation” falls within the ambit of public law. The principle protects individuals from an arbitrary exercise of administrative authority by a public body and offers relief to those who has suffered a civil wrong due to the non-fulfilment of his legitimate expectations. However, under the strict meaning of the principle under the law, the claimant has no rights under this principle in a court of law.[4] It positions itself between “a right” and “no right”, giving an individual a right to approach the court, and differs from hope and desire. The principle has been widely implemented by Indian Courts to restrict the arbitrary exercise of power by administrative system. In general, a person has a right to approach the courts for relief under private law when his rights arising out of a statute or contract has been violated. However, in public law, this rule relaxes the rule of locus standi by permitting an individual to approach the courts whenever his rightful expectations from the administrative bodies have been breached.[5] Therefore, this doctrine is considered to be developed from the principles natural justice and comes under Article 14 of the Constitution.[6] Essentially, the principle of legitimate expectation protests against arbitrariness and encourages fair dealing by public authorities. Like majority of other doctrines in administrative law, legitimate expectation is a theory created by the Courts for the examination of administrative actions. III. Types of Legitimate Expectation Originally having a procedural aspect, with the evolution of the doctrine of legitimate expectation, the doctrine was divided into two categories by the courts. In common law, Lord Diplock’s decision in the case of Council of Civil Service Union v. Minister for Civil Service,[7] laid down the two facets of the doctrine. The Indian Court acknowledged these two aspects given by the English Court in the case of National Buildings Construction Corporation v S. Raghunathan[8]. The two aspects of legitimate expectations are: A. Procedural Aspect
This is the most frequently used aspect of legitimate expectation. The procedural aspect raises and preserves the principles of natural justice and maintains equity and fairness. It prevents the public bodies from arbitrary and unreasonable exercise of administrative power. The procedural aspect assures that an appropriate and fair hearing will be carried out, and an opportunity to make representations will be provided before taking any hostile decision against the expectations of the individual.[9] B. Substantive Aspect The substantive aspect although a later addition to the doctrine, yet covers half the cases which within judicial review. The substantive aspect of the doctrine endorses and preserves the principle of equity and the doctrine of estoppel. It necessitates a representation through an assurance or regular past practice, which secures a benefit or an advantage to an individual.[10] The substantial aspect safeguards the individual against any aberration from this representation, and protects the individual against any harm suffered during the sequence of events. IV. Evolution in English Law The principle of legitimate expectation was first used in Schmidt v. Secy of Stare for Home Affairs[11], in which the government had curtailed the time period already allowed to an alien to arrive and stay in England. It was held that the rightful expectations of an individual cannot be thwarted by the administrative authorities unless a fair and reasonable procedure is followed. In the present case, legitimate expectation was only used to replace the term “right”. However, this case laid down the groundwork for subsequent development; the doctrine has since developed and occupied a strong position in administrative law jurisprudence. After this case, the doctrine was expansively discussed in Breen v. Amalgamated Engg. Union[12] where the district committee of a trade union had deprived endorsement of a member from being elected as shop steward. The court held that when an individual has rightful expectations that his election will be permitted, he cannot be deprived of the same without a fair ground of objection. The court in abovementioned case acknowledged that legitimate expectation is a part of the principles of natural justice. Likewise, in case of Attorney General of Hongkong v. Ng Yuen Shiu[13], while crushing the directive of removal passed by the Hong Kong Immigration Authority without notice and hearing, the court decided that the statement made by the concerned authority that while investigating cases of illegal immigration, each case shall be judged on merits and facts. This is based on the principle of legitimate expectation between immigrants that removal order shall be delivered following a procedure of hearing and fair notice. Raising the doctrine of legitimate expectation, the House of Lords in Council of Civil Service Union v. Minister of Civil Services[14] decided that legitimate expectations may take birth from a time-honoured past practice or a communication or a promise made by the public body. In the present case, the authority had revoked an established past practice by oral orders. However, the doctrine of legitimate expectation enforces a duty upon public bodies to act judiciously in general, not restricted to circumstances where an individual has to be given a fair chance to make representation. Hereafter, the doctrine levies broad limitations upon administrative bodies to act reasonably and with fairness in the interest of people, regardless of whether law decrees discussion from such people or not.[15] In R v. Secy of State for Home Deptt., Ex. P. Asif Mahmood Khan[16], the court decided that when an authority makes a statement as regards the process that shall be followed, it generates a legitimate expectation amongst the people that the same shall be observed. Hereafter, the authority is under a responsibility to follow the stated procedure. The principle as evolved in England over the course of last three decades has assumed major importance and has been acknowledged by several jurisdictions, including India. However, it is still in a developing stage, where each jurisdiction has restricted its growth taking into consideration their local circumstances. The Indian Courts have recognised the doctrine as a law of land to deter public bodies from an arbitrary exercise of powers. V. Application of the Principle in India The Principle of Legitimate Expectation in India has originated from common law like many other principles. In India, this doctrine has been implemented through the mechanism of judicial review, scrutinizing the actions of public bodies on grounds of fairness. The principle of legitimate expectation was first acknowledged in India in the case of State of Kerela v. K.G Madhavan Pillai[17], where legitimate expectation produced by a sanction order was used to reject a later order on the ground of abuse of natural justice. The resulting application of the principle was in the case of Scheduled Castes and Weaker Section Welfare Association v. State of Karnataka[18]. In this case, the action of an administrative authority formed a rightful expectation in the mind of the public and therefore this resulted in the requirement of a just hearing when the authority acted in a manner to thwart that expectation. Legitimate expectation is generated by the administrative bodies either through an express assurance to the public to act in a certain way or doing certain things or through recognized practice or previous actions which produce expectations in the minds of the public.[19] This principle is applied exclusively in the framework of administrative law, and confers an obligation on the authorities to justify any nonconformity from recognized practices or promise, to limit any arbitrariness in their conduct.[20] A. Nature and Scope of Legitimate Expectation The scope of legitimate expectation was explored in the case of Navjyoti Coop. Group Housing Society v. Union of India[21]. The case gave the opportunity to the courts to scrutinize any decision made by the administrative authorities, if their decision affected an individual’s right to enjoy certain benefits which formerly he was allowed to enjoy and rightfully expected to continue to enjoy in the future. The decision made it certain that only a superseding public policy would be able to clarify nonconformity from what has been rightfully expected. This conferred an obligation on the authorities to act reasonably and in the interest of the general public. The overriding of public policy was applied in the judgment of Food Corpn. of India v. Kamdhenu Cattle Feed Industries.[22], to demonstrate nonconformity with the rightful expectation to grant tender to the highest bidder. In the case of Ram Pravesh Singh v. State of Bihar[23], the Court defined what exactly would create an established practice. A consistent, regular, certain and predictable conduct, which differentiates itself from being a casual or irregular conduct, would be considered as a practice which is established and consistent. The practice also has to be reasonable and logical. The idea of expectation was explored in the decision of Union of India v. Hindustan Development Corporation[24], where distinction was made between “anticipation” and “expectation”, and it was held that any right or desire or mere disappointment did not refer to as expectation. “Expectation” under the doctrine is in the sense of being “justifiably legitimate and protectable”. And the legitimacy is to be based on the consent of law or an recognized procedure naturally observed. Yet some misunderstanding still exists regarding “legitimate expectation” being considered a right. The case of M.P. Oil Extraction v. State of M.P.[25], held that legitimate expectation in a suitable scenario would comprise of an enforceable right. Nonetheless, Supreme Court made it evident in Ram Pravesh Singh[26], by explicitly discarding the idea of “legitimate expectation” being a legal right. The court said that it can only apply in circumstances where an expectation is involved, which is justified and made legitimate by an established past practice or an express promise. Additionally, as per Confederation of Ex-Serviceman Assns v. Union of India[27], the principle only gives an opportunity to a fair hearing and just procedure to be followed only to the person who is expecting. Only such a person is entitled to know the reasons for denial or order by the Court to the authorities to follow the established practice. B. Principle of Legitimate Expectation and Equity The principle is considered to be a part of the principle of equity, as was seen in M.P Oil Extraction case[28], where equitable treatment was given to companies with whom the Government had contracted to supply sal seeds based on the renewal clause within the contract. The principle of equity was further endorsed in the case of Raj Kumar v. Union of India[29], where it was recognized that a person could be debarred of availing of the principle of legitimate expectation based on the conduct of the person himself. In this case, legitimate expectation was opposed based on equity, as the BSF guards tried to gain retiral benefits without validly retiring. In the case of National Buildings Construction Corporation[30], the functional aspect of legitimate expectation was stressed upon and it was said that the situation should be dealt with in a similar manner as if the principle of promissory estoppel was applied. Furthermore, this case along with Punjab Communication v. Union of India[31], laid down an additional criteria where the doctrine of legitimate expectation cannot be applied. It was established through previous case laws that the only exception to legitimate expectation was public interest. However, now in terms of significant legitimate expectation the action or order of the administrative authority had to go through a test of reasonableness before assessing public interest. If the order or action fulfills the Wednesbury principle of reasonableness, so that the action or order of the authority is not unreasonable or even adverse, the public interest involved in the order can be evaluated. VI. Conclusion From the discussion and analysis of the case laws and authorities above, it becomes clear that the doctrine of legitimate expectation imposes an obligation and duty on the administrative authorities to act fairly and reasonably. The principle owes its origin application to various kinds of situations and is very broad in itself. Hence, it is not feasible to come up with an exhaustive list of actions which will give rise to situations of legitimate expectation. This is because government activities in themselves are vast and expansive and change as time goes by. However, one thing has become certain that courts cannot pretend to have jurisdiction in order to review an administrative act under the cover of legitimate expectation as I would be unfair on the part of the court. It is commonly agreed that legitimate expectation generally allows the person to approach Court and to claim the right of fair representation or hearing in a situation where his rights were affected arbitrarily. The doctrine does not give opportunity to claim remedy at once from the administrative authorities as no clear right as such is directly involved. Consequently, even if the safeguard is guaranteed based on legitimate expectation, it does not guarantee total relief to the person. The appeal of legitimate expectation still remains a very feeble appeal in Indian Administrative Law. A right to benefit based on legitimate expectation is negative by the courts more often than is known. In a situation of confusion over the idea of legitimate expectation what needs to be cleared is that the concept envisions not only “expectation” but “legitimate expectation” meaning which there is something super-imposed to “expectation”- a certain kind of promise or assurance by the administrative authorities or the fact that the expectation was established by some long-standing practice. The concept is embedded more in the principles of equity than in legal rules. Bibliography I. Books:- SP Sathe, Administrative Law (seventh edition), Lexis Nexis (2010)
- MP Jain and SN Jain, Principles of Administrative Law (sixth edition) Lexis Nexis (2013)
- IP Massey, Administrative Law, Eastern Book Company (2001)
- Lord Denning, Recent development in the Doctrine of consideration, Modern Law Review, Vol. 15, 1956.
- Sushant Rochlan, Doctrine of Legitimate Expectation, January 21, 2011, available at https://lex-warrier.in/2011/01/doctrine-of-legitimate-expectation/ [Last seen on 14th February, 2015]
- Schmidt v. Secy of Stare for Home Affairs (1969) 2 WLR 337
- R. Clerk, “In pursuit of Fair Justice” AIR 1996 (J) 11
- Council of Civil Service Union v. Minister for Civil Service, (1983) UKHL 6
- National Buildings Construction Corporation v S. Raghunathan , (1998) 7 SCC 66.
- Breen v. Amalgamated Engg. Union , (1971) 2 QB 175
- Attorney General of Hongkong v. Ng Yuen Shiu , (1983) 2 AC 629
- Council of Civil Service Union v. Minister of Civil Services , 1985 AC 374
- R v Secy of State for Home department, Ex. P. Ruddock, (1987) 1 WLR 1482
- R v. Secy of State for Home Deptt., Ex. P. Asif Mahmood Khan , (1984) I WLR 1337
- State of Kerela v. K.G Madhavan Pillai , AIR 1989 SC 49
- Scheduled Castes and Weaker Section Welfare Association v. State of Karnataka , [1991]2 SCC 60
- Navjyoti Coop. Group Housing Society v. Union of India , (1992) 4 SCC 477.
- Food Corpn. of India v. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71.
- Ram Pravesh Singh v. State of Bihar , 1999 (1) BLJR 625
- Union of India v. Hindustan Development Corporation , (1993) 3 SCC 499
- M.P. Oil Extraction v. State of M.P (1997) 7 SCC 592.
- Confederation of Ex-Serviceman Assns v. Union of India , (2006) 8 SCC 399
- M.P Oil Extraction case ,1990 (0) MPLJ 675
- Raj Kumar v. Union of India , 1969 AIR 180
- National Buildings Construction Corporation case , 72 (1998) DLT 121
- Punjab Communication v. Union of India , (1999) 4 SCC 727
[1] Lord Denning, Recent development in the Doctrine of consideration, Modern Law Review, Vol. 15, 1956. [2] See, Schmidt v. Secy of Stare for Home Affairs (1969) 2 WLR 337 [3] R. Clerk, “In pursuit of Fair Justice” AIR 1996 (J) 11 [4] SP Sathe, Administrative Law (seventh edition), Lexis Nexis (2010) [5] MP Jain and SN Jain, Principles of Administrative Law (sixth edition) Lexis Nexis (2013) [6] Id. [7] Council of Civil Service Union v. Minister for Civil Service, (1983) UKHL 6 [8] National Buildings Construction Corporation v S. Raghunathan , (1998) 7 SCC 66. [9] Sushant Rochlan, Doctrine of Legitimate Expectation, January 21, 2011, available at https://lex-warrier.in/2011/01/doctrine-of-legitimate-expectation/ [Last seen on 14th February, 2015] [10] Id. [11] Schmidt case, Supra n. 1 [12] Breen v. Amalgamated Engg. Union , (1971) 2 QB 175 [13] Attorney General of Hongkong v. Ng Yuen Shiu , (1983) 2 AC 629 [14] Council of Civil Service Union v. Minister of Civil Services , 1985 AC 374 [15]R v Secy of State for Home department, Ex. P. Ruddock, (1987) 1 WLR 1482 [16] R v. Secy of State for Home Deptt., Ex. P. Asif Mahmood Khan , (1984) I WLR 1337 [17] State of Kerela v. K.G Madhavan Pillai , AIR 1989 SC 49 [18] Scheduled Castes and Weaker Section Welfare Association v. State of Karnataka , [1991]2 SCC 604 [19] IP Massey, Administrative Law, Eastern Book Company (2001) [20] Id. [21] Navjyoti Coop. Group Housing Society v. Union of India , (1992) 4 SCC 477. [22] Food Corpn. of India v. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71. [23] Ram Pravesh Singh v. State of Bihar , 1999 (1) BLJR 625 [24] Union of India v. Hindustan Development Corporation , (1993) 3 SCC 499 [25] M.P. Oil Extraction v. State of M.P (1997) 7 SCC 592. [26] Supra 22 [27] Confederation of Ex-Serviceman Assns v. Union of India , (2006) 8 SCC 399 [28] M.P Oil Extraction case ,1990 (0) MPLJ 675 [29] Raj Kumar v. Union of India , 1969 AIR 180 [30] National Buildings Construction Corporation case , 72 (1998) DLT 121 [31] Punjab Communication v. Union of India , (1999) 4 SCC 727
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The ‘Horizontal Effect’ of Human Rights in the UK
Application of the ‘Horizontal Effect’ of Human Rights Law in the UK “The horizontal effect of the application of human rights law in the UK has important implications for the law of tort in relation to protection of privacy for private citizens. However the law is being applied in a piecemeal fashion” – Critically discuss. Introduction: Human rights protect an individual from unwarranted interference by the state, seeking to establish a just social and legal order to enable a person to live a full and productive life, free from fear, tyranny and discrimination and under the rule of law. UK’s accession to the European Convention on Human Rights (1950) and its acceptance of the jurisdiction of the European Court of Human Rights (ECtHR or the Strasbourg court) leading to the enactment of the Human Rights Act 1998 (HRA) to give domestic effect to the Convention rights have had far reaching effects on judicial philosophy, approach and jurisprudence of English courts. This is not to say that common law was oblivious to human rights concerns. In Hertfordshire Police v Van Colle
[1] Lord Bingham remarked that it would be surprising ‘if conduct which violated a fundamental right or freedom of the individual did not find a reflection in a body of law ordinarily as sensitive to human needs as the common law’ but conceded that common law had evolved in a direction indicated by the Convention in areas in which the two overlapped.
Given that human rights provisions are aimed at the excesses of the State, this essay discusses the impact of human rights law inter se disputes between two private individuals, particularly in relation to the protection of privacy, which ordinarily falls under the domain of torts at common law. As such, the essay examines the incremental expansion of human rights provisions into the area of private and privacy law and whether or not the application of this new jurisprudence has been consistent over the years. Vertical and Horizontal Effect: The HRA is intended to have a vertical effect, i.e., it is applicable to laws and acts of state authorities affecting the lives of common citizens. Thus, s 3 requires that every primary and secondary legislation whenever enacted must be interpreted ‘in a way which is compatible with the Convention rights’ failing which a competent court can declare it to be incompatible with Convention rights under s 4 prompting a competent Minister to move a Parliamentary amendment under s 10. S 6 prohibits a public authority from acting in a way which is incompatible with a Convention right failing which a ‘victim’ can move the court under section 7(1)(b) and seek compensation/damages under s 8(1) of the Act. Accordingly, Wright states that ‘it seems clear that the scheme of the Act precludes direct horizontal effect’ in terms of basing a private action purely on a Convention right as the differentiation that the Act makes between public authorities which are subject to the Act and other bodies/persons would then be otiose.
[2] However, the justification for a ‘horizontal effect’, at least what is termed as ‘indirect horizontal effect’ is often argued to be through s 6(3) of the Act which proscribes public authorities from acting in a manner which is incompatible with Convention right and includes a court or tribunal. Thus, the argument of academics is that courts are obliged to recognise and give effect to Convention rights even while adjudicating private disputes.
[3] Some basis for this position, particularly with regard to tort cases can also be found in the statements of high constitutional authorities. The Lord Chancellor while rejecting an amendment moved by the Chairman of the Press Complaints Commission to remove courts from the definition of public authority stated that while the courts could not play a legislative role and grant new remedies for infringement of Convention rights unless allowed by common law, they did have a duty to act compatibly with the Convention even in cases involving individuals, thereby affording them an opportunity to develop the common law by relying on existing domestic principles in the realm of trespass, nuisance, copyright, confidence, etc. to develop a common law right to privacy.
[4] That the courts do not have the authority to carve out new areas of tortious liability and causes of action has been reiterated in the landmark case of Campbell v MGN as well.
[5] At one extreme are the proponents of ‘direct horizontal effect’ of the Act who assert that the HRA is directly applicable to private disputes and the courts are obliged to take into account this legal position. The most ardent supporter in this regard has been the late academic and Queen’s Counsel, Sir William Wade.
[6] Murray Hunt is also a supporter of this position, writing in 1998 that pre-enactment documents (White Paper, Parliamentary debates, etc.) and Convention jurisprudence all ‘point irresistibly’ to the fact that the Convention is horizontally applicable when the Act comes into force but will not give rise to an independent cause of action for breach of Convention rights and that over time, nobody will be without a remedy in domestic law for breach of their Convention rights.
[7] Another argument in support of this notion is that the terminology of ‘horizontality’ is itself misleading as it presumes that the HRA regulates the relationship between the citizens and the state as asserted by Sedley LJ. However, the true objective of the Act is to charge the state with a positive duty to protect human rights violations by abuse of power, whether by public or private entities.
[8] Courts, however, have been less than certain on the horizontal effect or application of the Act or Convention rights on inter se disputes and judicial opinion in this regard shows a chequered history.
Thus, in Gregory v Portsmouth City Council
[9] decided just before the HRA came into force, the House of Lords did not take into account Convention rights or European jurisprudence while disposing of a case in which the issue was whether the tort of malicious prosecution extended to malicious domestic disciplinary proceedings, concluding unanimously that it did not. On the other hand, other cases like Reynolds[10] and Arthur[11] decided around the same time proclaim that it was ‘common ground’ that the Act would soon come to force and consideration would have to be given to Convention rights and attached jurisprudence. The passage of time has not shed too much clarity on the matter and there have been cases in which it has asserted that common law should not develop in line with Convention rights as the Act provides ample remedies under ss 7 and 8 thereof to redress human rights violations. This view was adopted by the House of Lords in Watkins v Home Office[12] and reaffirmed by Lord Brown in Van Colle.[13] Similarly, in JD v. East Berkshire Community Health NHS Trust & Ors Lord Nicholls drew a clear distinction between the approach of the court in considering negligence claims in tort and those under the Convention/HRA, stating that ‘sometimes in human rights cases…(it is) appropriate for an international or domestic court to look backwards over everything which happened. In deciding whether overall the end result was acceptable the court makes a value judgment based on more flexible notions than the common law standard of reasonableness and does so freed from the legal rigidity of a duty of care.'[14] Nonetheless, as will be seen later, the influence of the Act/Convention is certainly there in tort cases.
Steele characterises the influence of the Act on tort law as a ‘cascade- no less real, but less predictable and far harder to trace with certainty’ but argues that even of the Act was repealed, the ‘values inherent in the law of tort and resembling the Convention rights that have been reinforced or energised by the Act’ would not necessarily be unravelled simply by such a repeal and the courts would also perhaps not be inclined to do so.[15] Privacy and Human Rights: The concept of privacy is essentially a concept of the United States articulated first in the famous article by Samuel Warren and Louis Brandeis entitled ‘The Right to Privacy’ in 1890 in which the authors asserted that it was an extension of the tort of trespass which hitherto was applicable only to tangible/physical property and was necessitated due to the march of technology and an overzealous press which allowed increased interferences into one’s personal life that impacted on one’s right ‘to be let alone.'[16] Traditionally, there is no distinct tort of invasion or breach of privacy in the United Kingdom. As late as 2004, Lord Hoffmann stated in Wainwright & Anor v Home Office that ‘The need in the United States to break down the concept of “invasion of privacy” into a number of loosely-linked torts must cast doubt upon the value of any high-level generalisation which can perform a useful function in enabling one to deduce the rule to be applied in a concrete case. English law has so far been unwilling, perhaps unable, to formulate any such high-level principle’ going on say that privacy could be protected under several common law and statutory remedies including trespass, nuisance, defamation, malicious falsehood, equitable action for breach of confidence, the Protection from Harassment Act 1997 and the Data Protection Act 1998 but the law still left ‘gaps’ which may or may not be filled by ‘judicious development of an existing principle.'[17] In the context of the Convention, the right to privacy is provided as a qualified right (subject to national security, public safety, prevention of crime and protection of health and morals as well as the rights and freedoms of others) in Article 8 thereof which states that ‘Everyone has the right to respect for his private and family life, his home and his correspondence’ [Art. 8(1)]. The seminal case of the Strasbourg court dealing with the right to privacy in a dispute between private entities is Von Hannover v Germany[18]relating to paparazzi photographs of a celebrity which could not be prevented from being published in the popular press, the court found in favour of the Applicant and held that there was no public interest inherent in publication of private photographs and that the state in such circumstances had a positive duty to ensure the privacy of its citizens under Article 8. An example of both the vertical as well as horizontal application of Convention rights is the decision of the ECtHR in Peck v UK[19] in which CCTV camera footage of the applicant trying to commit suicide was released by the Council to the local print and TV press which showed it extensively was regarded as violation of his Article 8 right. While this may be an admirable extension of Article 8 rights for privacy protection in the private space, English courts have expressed doubt on the absolute nature of the principle and the direct horizontal application of Article 8 rights in the private sphere. In a recent decision in Malik v Fassenfelt & Ors, Lord Toulson has stated that the primary ambit of Article 8 is a negative injunction on the State to not interfere with a person’s private life or home, etc. except on limited grounds. The nature, scope and ambit of the state’s positive obligations remain unclear. It is true that the Strasbourg court has held in some cases that there is a positive duty of the state to take measures for protection of a person’s private life from interference by another private person or private enterprise, for example, against criminal acts – X & Y v Netherlands[20] and MC v Bulgaria[21] or against the paparazzi as in Von Hannover. ‘However, these are striking and unusual cases in which the applicants were victims of particularly objectionable conduct which seriously impaired their ability to lead a normal life. Article 8 does not ordinarily apply to regulate conduct in the private sector.[22] However, this may be regarded as obiter dicta since the Court of Appeal in Ash & Anor v McKennitt & Ors[23] has placed great reliance on Von Hannover and the principle of restricting media freedom and opting for its rationale rather than the permissiveness accorded to the press by such decisions as A v B plc.[24] Buxton LJ in McKennitt admitted that the two rulings could not be reconciled but deemed A v B to be inapplicable to the proceedings before it by stating that ‘If the court in A v B had indeed ruled definitively on the content and application of article 10 then the position would be different; but that is what the court did not do. Having made the important observation that the content of the domestic law was now to be found in the balance between articles 8 and 10, the court then addressed the balancing exercise effectively in the former English domestic terms of breach of confidence. No Convention authority of any sort was even mentioned.’ Thus, in McKennitt, the court not only placed importance on Convention rights but impliedly regarded Convention jurisprudence to be more applicable in view of the grafting of Articles 8 and 10 into English tort law on protection of private information.
The High Court in Rocknroll v News Group Newspapers Ltd has regarded this approach in McKennitt as indicative of the fact that Von Hannover ‘has been identified as definitive of this aspect of the English tort of misuse of private information.’[25] Such a reading comports with other English cases as well. In Campbell for instance, English courts have explicitly held that development of common law has been in harmony with Convention rights and accordingly read Article 8 right as part of the common law ground of breach of confidence while granting relief to the appellant in a private dispute thereby recognising the horizontal application of Convention right. When considering an Article 8 right, another right, that of freedom of expression of a person seeking to use the sensitive information (usually the press but not always) provided for in Article 10 also comes into play. This freedom is recognised in s 12(3) of HRA and according to the House of Lords is a direct Parliamentary response to apprehensions of restrictions against the media[26] when enforcing Article 8 rights upon enactment of the HRA that leaves no doubt that horizontal application of Article 8 rights was contemplated or envisaged by the lawmakers. Therefore, the position that emerges is that Articles 8 and 10 rights have been ‘shoehorned’ into the tort of breach of confidence in such circumstances while considering whether there has been any breach of privacy in such circumstances[27] and as such it does not matter whether the guilty party is a public body or a private entity. When Articles 8 and 10 are in conflict, Lord Steyn has given the ‘ultimate balancing test’ in In re S (a child) where he has stated that neither article has precedence over the other and that a comparative analysis on the specific rights claimed and justifications for interference or restriction should be undertaken along with the proportionality test.[28] Ward LJ in the landmark decision of ETK v News Group Newspapers Ltd[29] has kept Article 8 as the centre of the ‘first stage’ test when deciding an application for interim injunction to restrain publicity of private information which is ‘to ascertain whether the applicant has a reasonable expectation of privacy so as to engage Article 8; if not, the claim fails.’ In case Article 8 is applicable, the court can move to the second stage and apply Lord Steyn’s four parts ‘ultimate balancing test.’ These guidelines including the applicability of Article 8 have been quoted with approval by the High Court in recent cases such as PNM v Times Newspapers Ltd & Ors[30] and Rocknroll, which all involve disputes between private entities. In fact, in Murray v Big Pictures (UK) Ltd[31] in which the court held that the privacy of the famous author, JK Rowling’s infant son were violated by the private media companies, the claim was largely based on the violation of the child’s Article 8 Convention right indicating that the court was operating from the standpoint of s 6(3) of the HRA as discussed above. Conclusion: From the above overview, it may be reasonably concluded that while the initial stages of horizontal application of human rights in privacy law was in doubt, a majority of cases leave no doubt that it is indeed applicable. As stated by Steele and noted by the High Court in Theakston v MGN Ltd[32] this has been made possible by grafting Convention principles into tort law which removes any limitations on the status of the guilty party.
Cases such as Murray presume Article 8 to be an integral part of English law in its own right and do not question the assertion of the right against private entities despite the intervening framework of the HRA, which concentrates on the acts, and omissions of public authorities. Bibliography A v B plc [2003] QB 195 Arthur J.S. Hall and Co. v Simons [2000] 2 All ER 673 Ash & Anor v McKennitt & Ors [2006] EWCA Civ 1714 Campbell v MGN [2004] 2 AC 457 Cream Holdings Ltd & Ors v Banerjee & Ors [2004] 4 All ER 617 Douglas v Hello! (No3) [2006] QB 125 Ewing K, ‘The Human Rights Act and Parliamentary Democracy’ (1999) 62 Modern law Review 79 ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 Gregory v Portsmouth City Council [2001] 1 All ER 560 Hertfordshire Police v Van Colle [2009] 1 AC 225 Hunt M, ‘The Effect on the Law of Obligations’ in Basil Markesinis (ed), The Impact of the Human Rights Bill on English Law (Clarendon Press 1998) In re S (a child) [2005] 1 AC 593 JD v. East Berkshire Community Health NHS Trust & Ors [2005] 2 AC 373 Klug F, ‘The Human Rights Act 1998, Pepper v Hart and All That’ [1999] PL 246 Malik v Fassenfelt & Ors [2013] EWCA Civ 798 MC v Bulgaria (2003) 15 BHRC 627 Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 Peck v UK [2003] ECHR 44 PNM v Times Newspapers Ltd & Ors [2013] EWHC 3177 (QB) Reynolds v Times Newspapers Ltd [2001] 2 AC 127 Rocknroll v News Group Newspapers Ltd [2013] EWHC 24 (Ch) Sedley S, Freedom, Law and Justice (Hamlyn Lectures 1999) 38Wright J, Tort Law and Human Rights (Hart Publishing 2001) Steele J, Tort Law: Text, Cases, and Materials (2nd edn, OUP 2010) Theakston v MGN Ltd [2002] EWHC 137 (QB) Von Hannover v Germany [2004] ECHR 294 Wade W, ‘Horizons of Horizontality’ (2000) 116 LQR 217 Wainwright & Anor v Home Office [2004] 2 AC 406 Warren S and Brandeis L, ‘The Right to Privacy’ (1890) 4 Harvard LR 193 Watkins v Home Office [2006] 2 AC 395 X & Y v Netherlands (1985) 8 EHRR 235 1
[1] [2009] 1 AC 225 [58]
[2] Jane Wright, Tort Law and Human Rights (Hart Publishing 2001) 22
[3] Keith Ewing, ‘The Human Rights Act and Parliamentary Democracy’ (1999) 62 Modern law Review 79, 89
[4] In Francesca Klug, ‘The Human Rights Act 1998, Pepper v Hart and All That’ [1999] PL 246
[5] [2004] 2 AC 457
[6] William Wade, ‘Horizons of Horizontality’ (2000) 116 LQR 217
[7] Murray Hunt, ‘The Effect on the Law of Obligations’ in Basil Markesinis (ed), The Impact of the Human Rights Bill on English Law (Clarendon Press 1998) 180
[8] Stephen Sedley, Freedom, Law and Justice (Hamlyn Lectures 1999) 38
[9] [2001] 1 All ER 560 [10] Reynolds v Times Newspapers Ltd [2001] 2 AC 127 [11] Arthur J.S. Hall and Co. v Simons [2000] 2 All ER 673 [12] [2006] 2 AC 395 [13] Van Colle (n 1) [138] [14] [2005] 2 AC 373 [93] [15] Jenny Steele, Tort Law: Text, Cases, and Materials (2nd edn, OUP 2010) 24-26 [16] Samuel Warren and Louis Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard LR 193, 193-196 [17] [2004] 2 AC 406 [18] [18] [2004] ECHR 294 [19] [2003] ECHR 44 [20] (1985) 8 EHRR 235 [23] [21] (2003) 15 BHRC 627 [153] [22] [2013] EWCA Civ 798 [44] [23] [2006] EWCA Civ 1714 [24] [2003] QB 195 [25] [2013] EWHC 24 (Ch) [11] [26] Cream Holdings Ltd & Ors v Banerjee & Ors [2004] 4 All ER 617 [15] [27] Douglas v Hello! (No3) [2006] QB 125 [53] [28] [2005] 1 AC 593 [17] [29] [2011] EWCA Civ 439 [10] [30] [2013] EWHC 3177 (QB) [31] [2008] EWCA Civ 446 [32] [2002] EWHC 137 (QB) [28]
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The Fourth Amendment and Computer Searches
The Fourth Amendment and Computer Searches Cmputers are no longer just tools of the trade for scientists or mathematicians, they are now found in nearly every household within the United States. In a recent study conducted by the United States Census Bureau in 2013, 83.8 percent of the households in the United States reported owning a computer. Of that percentage, 78.5 reported having a desktop or laptop in their home and 63.6 percent reported having a handheld computer. As technology is on the upswing and more people are using computers, it gives way to a rise in computer related crime. With an uprising of computer crime it is becoming more imperative that law enforcement officers understand how to obtain evidence that is stored on computers and how the Fourth Amendment protections apply to searching computers. The entire premise of the Fourth Amendment is to prevent law enforcement agents from searching and seizing evidence without having a warrant.
The Fourth Amendment is fairly clear as to what is required when it pertains to searches and seizures. According to the manual on search and seizure published by The Office of Legal Education, the Fourth Amendment reads as “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The United States Supreme Court has gone in further detail as defining search as “when an expectation of privacy that society is prepared to consider reasonable is infringed.” In hindsight, is an individual’s reasonable expectation of privacy is not violated, than a search did not occur. Instructions for searches and seizures may seem clearly stated in the Fourth Amendment; however, as it pertains specifically to computers, it gets much more difficult to interpret. When it comes to specifically searching a computer, law enforcement agents consider two key points in determining whether they need a warrant or not. First they must understand if the search will violate the reasonable expectation to privacy that is given in the Fourth Amendment.
Second they must consider if the search will fall into an exception to warrant criteria; therefore making the search permissible. When the Founding Fathers established the requirements for the Fourth Amendment, there was no possible way for them to foresee the technological advancement.
While the Fourth Amendment still applies to the searching of computers, it has become very specific and very tricky for law enforcement officers. When law enforcement officers deal with computer searches, one of the biggest issues they face is the reasonable expectation of privacy clause in the Fourth Amendment. To establish what expectation of privacy equates to, courts have generally established that a computer is to be treated the same way a closed container is to be treated. Briefcases and file cabinets are examples of closed containers that also retain an expectation of privacy. Since computers are similar in nature, they are to be treated the same way. If it is believed that an individual has a reasonable expectation of privacy involving the contents on their computers, flash drives, or even cell phones, than it is required for law enforcement officials to get a warrant before the contents can be searched.
Since the reasonable expectation of privacy applies to computers and other electronic devices, the information or data located on those devices also falls under the expectation of privacy for the owner. As mentioned above, there are exceptions to warrant requirements when it pertains to the searching of computers. When consent to search is given, a law enforcement officer may conduct the search. This allows law enforcement officers to conduct a search without having to establish probable cause or secure a search warrant. Consent to search must come from an individual who has the authority to consent to a search. Once consent is given, law enforcement officers have to be careful as to not overstep the scope of consent that was given for that particular search. On occasion, law enforcement officers may rely on exigent circumstances to conduct a search on a computer.
Certain criteria must be met in order for a warrantless search to be conducted. Generally there are four circumstances in which officers may conduct a warrantless search; the evidence is in immediate danger of it being destructed, the police or public are in danger due to an immediate threat, law enforcement officers are in a hot pursuit of an individual suspected in a crime, or the suspect is most likely to run before the search warrant can be granted. Pertaining to computers, evidence being in immediate danger of being destructed, is the most common circumstances law enforcement officers will likely face. With today’s technology there are multiple ways in which computer data can be easily put out of reach of law enforcement officers; making the preservation of data that much more important.
With hopes of using a warrantless search, law enforcement officers must either get consent to search, or have exigent circumstances. Without these, the search is deemed unconstitutional as it violates the protections in the Fourth Amendment. Computers can serve several different roles within the definitions of criminal offenses. They can serve as contraband, evidence of a crime, or an instrument in crime. Whichever role the computer serves is important, since each one can be searched in different ways.
The actual search of a hard drive from a suspected computer can reveal several types of evidence. Once this information from the search has been extracted, it can provided investigators with crucial answers to some of the common questions of who, what, when and how during their investigation.
Search warrants for computers are the preferred method to engage in a search. In order for investigators to get a search warrant for a computer, they must first establish the probable cause necessary to search a computer and describe in particular what data or information is to be taken from the computer. Probable cause in reference to computers is belief that the computer is either contraband or contains contraband, there is evidence of a crime, it was used as an instrument to commit a crime, or fruits of a crime. When probable cause has been established, and a warrant has been issued, the warrant takes precedence over an individual’s expectation to privacy. In most cases it is forensic examination and analysis will take too long to be conducted on site, therefore, items described in the search warrant may be seized. The actual search of the computer occurs in two stages; imaging and analysis.
When a computer hard drive is imaged, it is copied identically using software that allows this process without contaminating any data. The analysis stage is when the forensic analyst goes through the computer records that are detailed in the search warrant. The Fourth Amendment doesn’t limit what techniques that forensic analyst may use when conducting the search on the hard drive. It also doesn’t limit the type of forensic software may be used while conducting the examination. Since the modern day computer may be used in an array of tasks, a computer hard drive could have the possibility of containing evidence of more than one type of crime. Warrants for computer searches are very specific; they often times stipulate what type of evidence can be collected pertaining to a certain crime.
When analysts discover other evidence pertaining to a separate crime, they must stop their search and gain another search warrant to examine the evidence they just discovered. Collection of information for use as evidence that occur outside of intended scoped of the warrant will likely become inadmissible as evidence. Safe practice for analysts is gain immediately gain another search warrant when information uncovered leads to other suspected crimes. In addition to the limitations imposed by the Fourth Amendment, there are also three other limitations enacted by Congress that pertain specifically to the search of computers. The first limitation is the Privacy Protection Act which protects journalists and authors from search and seizure of materials that are in involved in First Amendment activities.
The second limitation covers privileged documents such as medical records, psychologist notes, or attorney-client information. Lastly, limitations are also applied to the collection of information from disinterested third parties. Overall, as long as law enforcement officers follow proper procedure, they can search any individual if they have probable cause that the search will disclose contraband or evidence that a crime was committed. As the American way of life is now centric around electronic devices and computers it has given way to which individuals commit crime. Criminal evidence such as drug trafficking ledgers, child pornography, incriminating photos and information can all be found within a computer. Computers are to be treated as containers and are generally given the reasonable expectation of privacy guaranteed to them in the Fourth Amendment.
Computers are being commonly seized by law enforcement officers to conduct searches for evidence during criminal investigations. Information collected during these searches tends to be a critical step in evidence collection, and it cannot be taken lightly. It is imperative for law enforcement officers and prosecutors to fully understand and comprehend how computers must be searched while maintaining the integrity of the Fourth Amendment.
Without law enforcement and prosecutors following proper protocol, essential evidence found during a criminal investigation may not be allowed into the courts. Thus, allowing criminals to walk away uncharged. References File, T., & Ryan, C. (2014, November). Computer and Internet Use in the United States: 2013. American Community Survey Reports. Retrieved from https://www.census.gov/content/dam/Census/library/publications/2014/acs/acs-28.pdf Goldfoot, J. (2011). The Physical Computer and the Fourth Amendment.
Berkeley Journal of Crominal Law, 16(1), 112-167. Retrieved from https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1047&context=bjcl The Office of Legal Education. (2009). Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (pp. 1-114). N.p.: Office of Legal Education Executive Office for United States Attorneys. Retrieved from https://www.justice.gov/criminal/cybercrime/docs/ssmanual2009.pdf Ziff, D. J. (2005, April). Fourth Amendment Limitations on the Execution of Computer Searches Conducted Pursuant to a Warrant. Columbia Law Review, 105(3), 841- 872. Retrieved from https://www.jstor.org/stable/4099480
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The Expansion of a Business: a Law Problem Question
- Five elements of contracts
- Potential personal liability for injury to consumers owing by the product.
- Different types of employment
- A new business entity
- S. Anthony, (1995). Warning: marketers must do better with goods warnings. Marketing News, (13). 4.
- J. A. DAY, (2014).Protecting Yourself from Statutes of Repose. Tennessee Bar Journal, 50(1), 33-34.
- S. Fishman, (2014). CHAPTER 2: Choosing the Legal Form for Your Business. In , Working for Yourself (pp. 15-54). Nolo.
- V., Smith, & E. B.Neuwirth, (2009). Temporary Help Agencies and the Making of a New Employment Practice. Academy Of Management Perspectives, 23(1), 56-72. doi:10.5465/AMP.2009.37008003
- R. Stim, (2010).Offer and acceptance. Contracts: The Essential Business Desk Reference, 327-330.
- S. Rogers, (2012). Essentials of Business Law. San Diego, CA: Bridgepoint Education, Inc.
- Xinsurane 2009, Event Home Fireworks Liability Insurance, retrieved on August 11, 2014 from https://www.xinsurance.com/blog/event-home-fireworks-liability-insurance/
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The Freedom of Establishment
Since the founding of the European Union (EU) one of the main aims has been to create an internal market in order to promote development and economic growth and to offer its citizens an area of freedom, without internal frontiers, in which free movement of persons is ensured[1]. Amongst the basic fundamental freedoms which the TFEU concedes to EU citizens to reach the above mentioned aims is the freedom of establishment. Together with the other freedoms found in the TFEU the freedom of establishment is crucial for the functioning of the EU internal market[2]. This freedom is laid down in article 49 and 54 of the TFEU and enables persons, both physical and legal to undertake stable and continuous economic activities in one or more member states (MS). Thus MS have to remove all restrictions for individuals and legal persons who want to maintain a permanent or settled place of business in a MS[3]. For this to succeed the EU has made efforts to harmonise national legal systems especially in the field of corporate law[4]. Due to practical problems, the harmonisation process did not eliminate completely incompatibility problems between MS national corporate laws. Thus, the principle of establishment found in the TFEU has been in great part developed through interpretation by the European Court of Justice (CJEU). There have been a number of cases in front of the CJEU dealing with the right of establishment. In order to try and clarify the scope of freedom of establishment the CJEU has in a number of cases explained how Article 49 and 54 TFEU should be interpreted.
The most renowned cases concerning freedom of establishment are, the Daily Mail, Centros, berseering, Inspire Art and Sevic. Right of Establishment The freedom to establish oneself or a company in any MS other than one’s own, is a right enshrined in articles 49 to 54 of the TFEU. This freedom compliments freedoms such as the free movement of persons and the freedom to provide services. On paper these freedoms might seem easy to apply but in practice they have proved not to be so much. This is mainly due to the different national legislation and the fear by the States that citizens, including companies may abuse the system. The first paragraph of article 49 TFEU prohibits MS restrictions on the freedom of establishment. Restrictions include both unequal treatment and unjustified obstacles.
[5] The second paragraph of the article gives a definition of the freedom of establishment. This is described as the ability to be able to pursue activities at par with nationals of the MS where they are established. One must also analyse what constitutes an establishment.
The main elements are a stable and continuous basis on which the activity is carried on. This provision has direct effect, which means that MS must change their municipal law which may be incompatible with the spirit of this article. MS may only restrict such freedom in special circumstances such as to protect public policy, security or health[6]. In order remove any doubts whether such freedom applies also to companies, article 54 specifically puts companies at equal footing with natural persons. This holds as long as a company is formed according to the laws of a MS, is registered and has its principal place of business in an EU State. If these simple conditions are met it is considered to be established in the EU. In the Segers
[7] case the ECJ widened this concept to cases where a company did not conduct any business in its place or establishment but did so in another MS through a secondary establishment.
The ECJ followed the same line of thought in the Centros case and further widened the scope to cover secondary establishments in the Insurance service case.
[8] As discussed further in this assignment, a company is free to establish itself through a primary establishment and has the right to open up secondary establishment. This can be done regardless if this is done just the take advantage of the more favourable legislation in the first state[9]. Harmonisation The EU also tries to harmonise the different national legal systems of its MS. This is done for the better functioning of the EU market. The harmonisation of corporate law is very important in this aspect. The freedom of establishment has been one of the main drivers behind this harmonisation since the law wanted to protect creditors of companies established under different national laws.
Harmonisation of national corporate laws was regarded as a necessary balance for the right of establishment[10]. It may be opportune to give a brief idea of the main difference in municipal corporate laws. The main difference is in the way MS decide on the applicable law of corporate institutions. UK, Netherlands, Denmark and Ireland use the ‘State of incorporation rule, that is the applicable law is that where the company is incorporated or registered. On the other hand other MS use the real seat theory known also as the sge reel. Although this theory vary from State to State, the main reasoning is that a company is incorporated in that State where the company where it has its main centre of operations[11]. Art 50 TFEU specifically demands that there should be safeguards equivalent to the freedom of establishment for companies within the EU. Thus it clearly emerges that the EU has been trying to find a balance between the freedom granted by the treaty and the creation of a fair and level playing field between companies established in different MS[12]. Obviously harmonisation leads to an amount of security, standardisation and peace of mind and thus creates a fertile environment for economic growth. Companies will be in a better position to make use of the freedom of establishment and expand in other MS[13]. Harmonisation process has been going on since the 1960’s with the issuing of the 1st directive. Following this a number of directives have been issued covering various aspects of corporate law.
The process proved to be a difficult one especially with the expansion of the EU and the development of complex systems how big companies started to operate. Reaching a consensus has become an impossible task[14]. Thus there has been a shift in approach to a more regulatory system based on creating equal footing. Today the trend is to make company law more effective at national level within an EU framework. Instead from a top-down harmonisation there is the bottom-up approach. It is accepted that some degree of convergence between MS corporate law will help for the better functioning of the market, but this does not necessarily mean that devising a harmonised corporate law is the best way to achieve it. Some experts believe that the EU has to create a framework and then MS have to legislate within that framework.
Thus one is creating a competitive environment within MS and companies choose to establish themselves in the MS whose legislative framework suits best their needs. The aim of creating the right environment for economic growth therefore created through competition rather than through uniformity of laws. Case law The shift in approach has not only been in the way EU legislated but also in the way the Courts of Justice of the EU (CJEU) pronounced itself. The lack of an EU regulation and the importance of freedom of establishment have led to numerous cases in front of the CJEU. The first case was the famous Daily Mail (case 81/87). This case concerned a British company Daily Mail that wished to transfer its central administration from the UK to the Netherlands without losing their status under British law. The company would still maintain their registered office in UK. The purpose of this move was done in order to enjoy the lower taxes in the Netherlands. The company law of the United Kingdom did allow for this, which means that the UK applied the incorporation theory. However, if the move was done for tax purpose consent was needed from the Treasury.
The company claimed that Articles 49 and 54 TEFU (Former Articles 52 and 58 of the EEC Treaty) gave them the right to move its seat without permission and still keep their status as a legal person under British company law. The CJEU stated that Article 49 and 54 TFEU grants companies the freedom of establishment. Companies have the right to secondary establishment in opening up agencies, branches or subsidiaries, company also have the right to incorporate in another Member State[15]. This is however different from when a company want to incorporate in another Member State and keep its legal status as a United Kingdom company.
The CJEU said that; unlike natural persons, companies are creatures of the law and, in the present state of Community law, creatures of national law. They exist only by virtue of the varying national legislation which determines their incorporation and functioning[16] Amongst the important principles which the court pronounced itself on during this case was that, under the Treaty, companies have the same rights as individuals do, as regards the right to leave their MS[17]. However, the CJEU also decided that the right of establishment does not include the right of transfer of management and control to another MS whilst retaining an establishment in another MS[18]. Of great importance is the reason which the court gave for such a decision. Laws of MS on the real seat of companies were not yet harmonised and thus different MS will have different views on this. The fact that the Member States use both the real seat and the incorporation theory are to be solved by future legislation This point was once again discussed ten years later in another case, the Centros case.
This case concerned a Danish company, Centros Ltd, which was incorporated in the UK. The company wanted to open up a branch in Denmark but the Danish authorities refused on the basis that Centros did not trade or pursue any economic activity in the UK and in fact had its actual seat in Denmark. It meant that Centros had it primary establishment in Denmark and it is therefore an internal affair. The reason for incorporation in the UK was to avoid initial taxes in Denmark which the UK did not impose. The company claimed that according to Article 49 and 54 TEFU they had the right to open up a branch in Denmark regardless if they exercised any economic activity in the UK or not[19]. This time the CJEU decided that it is a right inherent in the notion of freedom of establishment for a company to choose where to establish itself[20]. Here the courts seem to be favouring the approach of bottom-up harmonisation rather than top-bottom, thus favouring also competition amongst MS and bringing closer the rights of corporate persons to those of ordinary citizens. The CJEU also pronounced itself on the fact of lack of harmonisation amongst MS national laws, which was also mentioned in the Daily Mirror case and said the fact that company law is not completely harmonised in the Community is of little consequence[21] Such stand was also confirmed in the Sevic Systems case. The CJEU said; It is known, and confirmed by the Court’s settled case-law, that exercise of the freedom of establishment cannot be made dependent on the adoption of a directive on harmonisation. That is because these directives do not establish the rights laid down in the Treaty but are merely designed to facilitate the exercise thereof.[22] The CJEU also tackled the Danish claim that this was just a way of how to circumvent national laws and was an abuse of the freedom of establishment[23]. The court said that MS have the opportunity to rely on other provisions of the law to make sure that no evasion was being carried out, and this within the limits of respect towards the freedom established in article. The Centros case was followed by another landmark case in this field, the berseering case. Berseering was company incorporated in the Netherlands, and owned a property in Germany.
The company then commissioned a company to do some repairs on this property. The repairs were done but berseering claimed that the work was defective. Two years later two German nationals acquired the company and they brought action against the German company in a German court[24]. The German court, however, dismissed the claim because Aœberseering did not have legal capacity of according to German law. Germany applied the real seat theory. The CJEU had to decide was whether or not Article 49 and 54 TFEU was interpreted as giving a MS the right to decide a companyA´s legal capacity if it had transferred its central administration there from another MS. Once again the principle of freedom of establishment was given more strength.
Harmonisation of laws was not accepted. A company which is incorporated in a MS and according to the laws of that MS, moves its centre of administration to another MS cannot be denied recognition just on the mere fact that it is incorporated in another MS. Once again the CJEU pointed out that there might be instances where such recognition can be restricted but MS have to use proportionality in their decisions and in the case of Aœberseering, Germany did not[25]. In more recent cases, Cortesio OktatA³ A©s SzolgA¡ltatA³ bt (2008) and Vale Construzioni SRL (2012) the CJEU confirmed the principles established in the previous case law. Conclusion When dealing with freedom establishment of companies it is rather a balancing act between competing interests. Both harmonisation of different municipal laws and judgments by the CJEU have contributed to this balancing act. It seems that the trend today is moving away from harmonisation and more towards legislative competition for the most attractive corporate law amongst MS known as reflexive regulatory techniques. The other option would be what is known as ‘negative harmonisation’, that is court-led decisions, but even though one would certainly be on the safe side with such a system, it does not mean that this would lead to a better environment for companies. Harmonisation should be seen as a guarantee for diversity in corporate laws and practices of MS. It should be seen as an instigator for innovation in self-regulation by MS of corporate laws which would avoid the rigid form of a single dominant law regime which leads to the Delaware effect in the US.
[1] Article 3.1 and 3.2 TFEU as amended by the Lisbon Treaty
[6] https://ec.europa.eu/internal_market/top_layer/living_working/services-establishment/index_en.htm
[3] Craig. P. and De Burca. G. 2011 pg764
[4] https://www.germanlawjournal.com/index.php?pageID=11&artID=216
[5] Craig. P. and De Burca. G. 2011 pg 771
[6] https://ec.europa.eu/internal_market/top_layer/living_working/services-establishment/index_en.htm
[7] Case 79/85 Segers
18] Craig. P. and De Burca. G. 2011 pg 780
[9] Wedin. A. pg 14 [10] Mock, S. Harmonisation, Regulation and Legislative Competition in European Corporate Law [11] Ibid pg 15-16 [12] The Future of European Company Law (response to the European Commission’s Consultation), May2012 [13] Mock, s. Harmonisation, Regulation and Legislative Competition in European Corporate Law [14] Deakin, S, Regulatory Competition Versus Harmonisation in European Company Law [15] Case 81/87 The Queen v H. M. Treasury and Commissioners of Inland Revenue, ex parte Daily Mail and General Trust plc par. 17 [16] Ibid par 19 [17] Ibid par 16 [18] Craig. P. and De Burca. G. 2011 pg 780 [19] Ibid pg 780 [20] Centros Ltd vs Erhvervs-og Selskabsstyrelsen (Case 212/97) par 27 [21] Ibid par 28 [22] Sevic Systems (Case 411/03) [23] Centros Ltd vs Erhvervs-og Selskabsstyrelsen (Case 212/97) para 23 [24] Mock, S. Harmonisation, Regulation and Legislative Competition in European Corporate Law [25] Craig. P. and De Burca. G. 2011 pg 783
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The Elements of a Trademark
1.0 Introduction Intellectual property is what the mind creates. Through imagination in the mind, one creates literary and artistic works. The mind creates names, symbols, and images. There are inventions and designs, which are all part of intellectual property. The three main types of intellectual property are patents, copyright and trademarks. Patent is the exclusive right to market invention; whereas, copyright is the exclusive right to the author of the original work of the authorship. Trademark is the name, word, device, or symbol that is use in trade to show and to differentiate the goods (Mart, 2015). Intellectual property is protected by law, to have an environment, which innovation and creativity can flourish (WIPO, 2015). 2.0 Elements of Trademark Requirements to be A Trademark A trademark must be used in trade. The trademark law is use to regulate interstate trade. According to the Lanham Act, a trademark is a mark used in trade. The exclusive rights of a trademark are given to the first person who uses it in trade. Besides that, a trademark must be different from others. It is an identity to distinguish specific goods from one another. There are four categories of distinctiveness.
- The arbitrary/fanciful or suggestive category is considered to be inherently distinctive. The mark’s exclusive rights are determined by priority of use.
- The descriptive category is protected only if it has the secondary meaning in the minds of the public. The secondary meaning is needed to set up a trademark protection for a geographic term or a personal name.
- The generic category, they will never be eligible for trademark protection. Rather than indicating a unique source, they refer to a general class of products (Cornell, 2015).
Trademark Infringement Firstly, to succeed on a claim of trademark infringement, the plaintiff must initiate that he/she has a valid mark qualified to protection and that the defendant used the similar or a same mark in commerce in connection with the sale or advertising of goods and services without plaintiff’s agreement. Moreover, the plaintiff must prove that defendant’s use of the mark is going to cause confusion as to the connection, affiliation or association of the defendant with the plaintiff. Thus, there are three distinct elements necessary to establish trademark infringement claims that are “use”, “in commerce” and “likelihood of confusion”
- Use - "Use" of a trademark by an alleged infringer must be established as a threshold matter.
- In commerce- demonstrates that the allegedly infringing activities have a substantial effect on interstate commerce.
- Likelihood of confusion - consumers viewing the allegedly infringing mark assume that the product or service it represents is associated with the source of a different product or service identified with a similar mark.
3.0 Trademark Case Apple vs Shenzhen Proview Technology Problem This case is about the rights to the iPad name between Apple and Shenzhen Proview Technology. Apple Inc. says it bought the global rights to the iPad name from Proview in 2009 but Chinese authorities say the rights in China were never transferred. A Chinese court ruled in December that Proview still owned the name in China. Verdict Apple has paid $60 million to settle a dispute in China over ownership of the iPad name. It removed a potential obstacle to sales of the popular tablet computer in the key Chinese market. Additional Information Proview initially hope for more. Proview was pressured to settle the case due to the debt they owed. Besides that, Proview also received pressure from the communist government to settle it because they wanted to attract investors to develop its economy. Unlike trademark squatters, who register names of products sold overseas and then request for the foreign companies to pay for the rights later, Proview trademark the iPad name long before Apple had the idea for its tablet. Ending the dispute with Proview meant that the leading tablet maker can legally begin selling under iPad trademark in its second-biggest market (Arthur, 2012). Danone Biscuits Manufacturing (M) Sdn Bhd vs Hwa Tai Industries Bhd Facts On 29 October 1990, Danone Biscuits (the plaintiff) a biscuit manufacturer for Jacob, Tiger, Danone and THYE THONG biscuit applied to register their “ChipsMore” trademark in Malaysia. The trademark were then registered and renewed up to 20 October 2007. The company had been manufacturing, selling and distributing their cookies in Malaysia since 1990 and exported their cookies to other countries in the region. However, in early April 2001, Danone biscuits discovered that another biscuit manufacturer in Malaysia named Hwa Tai Industries (defendant) had been manufacturing and selling chocolate chip cookies bearing the trademark called “Chipsplus” The plaintiff argued that the defendant’s trademark infringed upon its registered trademark and immediately requested the defendant to stop the manufacture and sale of cookies bearing the plaintiff trademark. Even though, the packaging of the product, were also confusingly same to the plaintiff registered “ChipsMore” mark., the defendant refused to do so and the plaintiff file a law sued against the defendant for trademark infringement. The plaintiff argued that the defendant’s “Chipplus” trademark infringed upon its registered trademark, while the similar packaging of the cookies causes the defendant passing off its “Chipplus” cookies as the plaintiff “ChipsMore” cookies that will eventually affect the plaintiff reputation, business and goodwill in Malaysia Judgment The High Court has made the decision in favor of the Plaintiff, ruling that there was infringement of the plaintiff’s trademark. Since the plaintiff had a registered certificate and renewal certificate evidencing a valid trademark and the plaintiff had not given the defendant authority to use their trademark, the defendant was found liable for infringement. An important issue that is highlighted by the Court was the trademark used was almost similar and it may likely create the possibility of confusion amongst the public. In Section 38 of the Trade Marks Act 1976 the word “likely” was define to mean that only possibility or probability of confusion needed to be established. Although the word “Plus” and “More” are two different words, there is sufficient similarity in idea. Furthermore, in deciding the similarity between two different words, the words has to be considered as a whole, by doing so, the court found the marks sufficiently similar to constitute trademark infringement on the defendant. Moreover, the use of similar trademark and packaging may possibly cause confusion and deception to a buyer of chocolate chip cookies. The rectangular packaging shape, the similar placing of both house marks are positioned on the upper left hand side of the packaging. Such misuse will damage the plaintiff business through the loss of sales of its products. Lastly, The Jury have made the decision that the defendant was liable and immediately ordered the defendant cease all manufacture of “Chipplus” cookies. The defendant were asked to change the name and the packaging of the cookies in order to sell their cookies in Malaysia. Furthermore, the plaintiff requested RM5500 from the defendant as compensation misusing their trademark. The defendant paid and changed their cookies named to “Kiddos”. Opinion This case illustrates the importance of respect for intellectual property. In this modern business world, many profit seeking firms will tend to misuse others intellectual property to help market their own business. This will save them lots of cost and will rise to the market in just nick of time. In this case, it also shows how serious courts are in protecting trademark owners from misappropriation of their commercial advantage through the use of substantially identical marks. This is why, it is important for business owners to seek advice from intellectual property professionals before registering their trademark to avoid this kind of issue from occurring which will save the company lots of money and time.
4.0 Conclusion The benefits of intellectual property allow business owners to prevent unauthorized use of the protected IP. If a patent protects a product, the creation of identical or similar brand name to products can be prevented. Besides that, in the case of academics, R&D teams and designers wanting to show that their technology is at the cutting edge of progress. Patents, copyright and trademark are a powerful indication that their work is cutting edge and they can be used as references in the same way as any other publications.
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The Integrity Principle – Analysis
[1] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. [2] Wainohu v New South Wales (2011) 278 ALR 1, 19 (French CJ & Kiefel J). [3] The constitutional jurisprudence of the high court [4] ‘State courts: the limits of kable’ [5] ‘do hard laws make bad cases’ [6] Ibid 183 [7] North Australian Aboriginal Legal Aid Service v Bradley (2004) 218 CLR 146. [8] Fardon case [9] Aus constitution act [10] Forge 67-8. [11] All cases [12] s [13] Baker [14] Institutional integrity [15] Forge 65-7 [16] Fardon 655-66 [17] International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319. [18] Ibid. 385-86. [19] Totani v South Australia (2010) 242 CLR 1. [20] Wainohu v New South Wales (2011) 278 ALR 1. [21] Ibid 28 (French CJ & Kiefel J); 37 (Gummow, Hayne, Crennan & Bell JJ). [22] Institutional integrity
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The Enforceability of Law and Morality
The enforceability of law and morality, around the globe, has been a difficult area of contention due to its polycentric nature. The doctrine imposes positive obligations upon a State and its enforceability depends upon every regime’s own political ideology, primary and secondary sources and judicial verdicts. In order to extrapolate and reason the notion of Criminal Law being used by England and Wales to constrict unsound behaviour, of such rights within the legal framework of these societies and the arguments made therein, it is essential to evaluate the arguments and debates, which lay down the bedrock foundation of the paradigm of morality in the community. Moreover, numerous case law precedents, for instance, Evans and Brown, which have been established over the past decades, and the traditional law, which pioneered the concept of law and morality, shall be discussed.
However, the factual soul of the dialogue shall be the disparity between the arguments of different commentators and calculate the extent which can be reached by justifiably using Criminal Law to avoid and punish acts falling in the category of immorality. Law and morality share an expressive connection and aid to supervise human conduct. Law achieves this principally through threatening sanctions if the legal procedures and notions are violated. Consequently, morality encompasses incentives which prove advantageous not only touching one specific person, rather the full community. If a wrong deed is committed, guiltiness and distress are experienced. However, if a correct task has been supported, admiration and benefits are just some of the numerous aspects enjoyed by a person.
The strength applied back and forth by the philosophies of ethics establish an imperative motivation in the social conduct[1]. Gracefully interlaced into the elementary assembly of a society, the law of a community can express about the standards and welfares it hosts. This assists the expansion of a bottomless attention and curiosity for sociologists and historians, for instance, Weber and Durkheim. In view of the example of death penalty, if one community has eliminated it while the other has not, this antithetical section not only unveils the deviating legal basis, but also the oddity of each of the communities and how they support their fundamental principles[2]. In the view of Race Relations Act 1965, it can be indicated that judicial engagements also mirror and endorse certain moralities.
The efficiency by the implementation of morals can be evaluated by the mass of the incentive one believes to attain. This can be in the form of both fault and appraisal as how much it matters to the specific being. Before reaching the heart of the argument, it is of accurate worth to match law and morality which, according to Steven Shavell are noted as ‘controllers of our manners’[3]. The first variance is the expenditure of the execution of both of these controllers. Introducing the law is a rationally economical technique since it requires only the law to be approved by a legislative organisation, or a judicial precedent set out by a judge leading to the rule being accessibly connected.
Contrastingly, the launch of moral values is vastly expensive from a social perspective. For instance, a law can be approved against littering and its non-compliance would commonly lead to a consequence, in the form of a fine. Nevertheless, observing the same position in the context of morality, elevated its worth tremendously. To be instilled with morals concerning not to litter, lie, or do whatsoever giving an upsurge to the belief of fault, necessitates years of dedicated service by schools, religious establishments in the view of morality’s relation with religion and obligations of parentage. Once these channels are considered, only then the culture’s investment in morals would be measured productive. Fundamentally, it is recognised that all the modes above have other responsibilities than coaching on morals, therefore, an excessive deal of determination is essential to be devoted to children. In this logic, Steven Shavell considers that legal directions enjoy an advantage over moral instructions.
Furthermore, legal procedures can be polished to counter precise requirements and can be revised as well. They are custom-made to encourage a communally foreseen manner and to discourage unwanted behaviour at a vastly thorough level, making them bendable and this resistance points to a considerably purer use of the legal maxims. However, moral guidelines cannot be too comprehensive and distinct in character. The chief cause regards to the degree that they are necessitated to be tutored to individuals, particularly throughout their youth and an extensive scale of intellect is of factual worth for the engagement of these ethics.
The use of morals also sums to the complication as Steven Shavell clarifies. Persons often need to apply the morals promptly, subject to the condition, a rule believed fit for that precise purpose. Practical enough to say, they cannot be changed like legal concepts since it would take a generation to do that. However, if morals are of an all-purpose nature, their precise clarification can be altered speedily. It is central to note that the absence of plasticity of moral rules will more often lead to errors in conduct than legal rules. Additionally, the chief variance among the two ‘regulators’ is that of sanctions.
Legal rules can be imposed by financial consent and by sentence; two issues reliant on the wealth and lifetime of an individual. Associating this to morality, it is understandable that they stand much weaker in the light of sanctions since one losing wealth or a big portion of one’s lifetime would outweigh guilt and disapproval.
Hence it can be argued that legal rules are superior to morals in the framework of sanctions relating to enforceability. Circumstance based chance of legal approvals rests upon the fact of observations. Someone is required to report a matter of concern, for instance a victim can bring a claim and be subject to the legal route. In contrast, if a person who considers cheating on his taxes to be immoral, will unquestionably feel embarrassed for doing so and will certainly feel righteous for paying the correct sum, because he will know whether he justly paid his taxes. Moreover, as per Douglas Husak, criminal law has been noted as a last resort when discussing the implementation of different aspects of law.
Present statutory authorities deliver an insufficient model of illegalisation since it declines to deliver an explanation adequate to dominate definite treasured privileges. The state has been bound to treat every being equally in shielding the importance of not to be penalised for that it must not punish some whereas sparing others if it has the similar intention to penalise both. In R V Stone and Dobinson[4], the appeal was discharged on the ground of the duty of care whereas in Regina V Wilson[5], the appeal was allowed. The reason in the latter was the absence of proof of more pain than tattooing, which if carried out, did not encompass a crime under Section 47 of the Offences Against The Persons Act 1861. Moreover, in R V Brown[6], the appeals were dismissed while Lord Mustill and Lord Slynn of Hadley disagreed. Though the applicant had to demonstrate the absence of consensus to secure a verdict for a plain assault, it was not in the communal attention that a being should wound or cause definite physical harm to another for no valid motive, and in the lack of which, the victim’s approval afforded no resistance to a charge under Section 20 or 47 of the OAPA 1861[7]. These cases establish that a definite margin has to be drawn between the application of criminal law and public law related to morals and values. Shaw V Director of Public Prosecutions
[8] exhibits the idea of debasing public ethics with the disagreement of Lord Reid. It was believed that an offence of conspiracy to corrupt the morals rested at common law, and per Lord Morris of Borth-y-Gest, Lord Tucker and Lord Hodson agreeing, it was unlawful as a plot to commit an unjust deed which was intended to be the root of communal harm or an unlawful crime. This case reveals the notion that public values are of true essence and their protection is inscribed at the hands of the conventional law.
Consequently, with gradual developments in case law precedents, morality has also been assessed with respect to private life and family. This can be analysed in the case of Evans V UK[9], relating to human fertilization and storage of embryos. It was held by the majority that an embryo did not have any liberated rights and could not claim a right to life under Article 2. Another case related to the similar concern is L V Human Fertilisation and Embryology Authority and Another[10]. Moreover, in Laskey and Others V United Kingdom[11], it was specious from the verdict of the House of Lords that the views of the majority were constructed on the extreme nature of the practices and not the sexual capacities of the claimants, hence there was no breach of Article 8(2). In R V R[12], the appeal was discharged and it was said that there was no longer a legislative authority that a wife was considered to have believed conclusively to sexual intercourse with her husband and the defendant’s conviction would be upheld. Furthermore, the House of Lords in Airedale NHS Trust V Bland[13] dismissed the appeal and decided on the base of the sanctity of life which was not absolute. Both R V R and Airedale NHS unveil the fact that criminal law, important for the safeguard of innocent parties, is the driving force behind the exercise of certain legal authorities to punish the one who committed the crime, somewhat considers immorality as an important feature of the wrongful behaviour.
Advancing in the discussion, it is vital to discuss and analyse how Lord Devlin addressed and saw the enforcement of morals in the context of conventional law. It has been significantly quizzed that since most Englishmen consider prostitution and the publication of pornography immoral, should they be made criminal? This was a matter of great debate and numerous controversies. Lord Devlin thought that the Wolfenden ideals derived from John Stuart Mill’s lessons were unquestionable and undisputable and he planned to address the variations critical to make the criminal law of England imitate these ideal concepts. It is necessary to note that the detail of his disillusionment is strong, however, its degree is not. Two opinions were born through his workings. The first is demonstrated in the well-thought-out form in the Maccabaean Lecture arguing from society’s claim to defend its identifiable presence. Conversely, the second opinion is much more dynamic and discusses from the mass’s right to monitor its own ethical principles in protecting its communal milieu from the modification it faces. The first opinion has acknowledged a great deal of attention from the critics and it has been pointed out that a culture cannot live unless some ideals are of the subsequent class, since some ethical traditionalism is indispensable to its lifecycle. Professor H.L.A Hart, answering the argument’s presence at the heart of the address, supposed that it lays upon a disorderly origin of what a society is. He was of the view that if one grasps anything like a conservative concept of a society, it is irrational to propose that every exercise the society visions as intensely dishonest and revolting impends its existence. He identified that Lord Devlin’s argument is unsuccessful whether a conservative or a false logic of the social order is engaged.
Subsequently, Devlin responded to Hart which uncovered a stern defect in the design of the disagreement expressing that the following stage of the dispute (the central prerogative that society has an authority to implement and administer its civic morality by law) must be agreed. Devlin settled that if the society dislikes homosexuality enough, it is warranted in banning it and obliging humans to pick between the desolations of hindrance and oppression as of the risk the exercise offers to society’s presence.
Touching the tail of the opinions, it is imperative to know the consequence of morality on law and how the ethical principles have influenced the legal charter. For instance, legal sanctions should be determined in a mode that copies to some extent, the retributivist ethical code that offenders be penalised in ratio to the severity of their immoral deeds. Both law and morality, work shoulder to shoulder to govern a massive range of conduct, particularly, most criminalities and offences are not only lawfully sanctionable but are also believed to be immoral. Concluding the discussion with assessing the effect of morality on law, the case law analysed above, along with the extensive explanations of judicial sources, it is viable to say that the State and society in both England and Wales are greatly justified in using Criminal Law. The reasons for this revolve around the margin which has been neatly maintained between the application of criminal law provisions and the law affecting public morals.
Since the balance has been maintained between the two, the statutory authorities governing and upholding criminal law clearly devise decisions keeping in mind the notion of morality. It has truly been established that an immoral conduct affects the wrongdoer and this can have consequences, both in respect of legality and immorality. In the start of the discussion, a fine line and a contrast has been neatly tailored between law and morality which exhibits that criminal law is used to prevent crimes which are deemed immoral. Moreover, another critical comment can be expressed over the discussion of the case law as analysed above. Since the cases circl around criminal activities and some contrasting concerns, the judicial authorities have shown that the courts take the concept of morality seriously and make sure that it balances both the application of criminal law and morality. Bibliography: Cases: R V Stone and Dobinson[1977] 141 J.P. 354 (CA) Regina V Wilson[1997] 2 C.R. A.P.P 47 (QB) R V Brown[1994] 1 A.C. 212 (HL) Shaw V Director of Public Prosecutions[1961] All ER 446 (HL) Evans V United Kingdom[2007] 2 F.C.R 5 (ECHR) L V Human Fertilisation and Embryology Authority and Another[2008] E.W.H.C. 2149 (Fam) Laskey and Others V United Kingdom[1997] 21627/93 (ECHR) R V R[1992] 1 A.C. 599 (HL) Airedale NHS Trust V Bland[1993] A.C. 789 (HL) Legislation: Offences Against the Persons Act 1861 Race Relations Act 1965 Articles: S Shavell, ‘Law versus Morality as Regulators of Conduct’ [2002] LM 2, 4 D Husak, ‘The Criminal Law as Last Resort’ [2004] CL 207, 235 R Dworkin, ‘Lord Devlin and the Enforcement of Morals’ [1966] EM 986, 998 H L A Hart, ‘Social Solidarity and the Enforcement of Morality’ [1967] SSEM 1, 13 R Singh, ‘Law as a system of values’ [2013] LSV 1, 3 N Walker and M Argyle, ‘Does The Law Affect Moral Judgments?’ DLAMJ 570, 576 P Cane, ‘Taking Law Seriously: Starting Points of the Hart/Devlin Debate’ [2004] HDD 22, 29 H L A Hart, ‘Positivism and the Separation of Law and Morals’ [1958] PSLM 593, 607 H L A Hart, ‘Immorality and Treason’ [1959] IT 1, 3 Word Count: 2,303
[1] S Shavell, ‘Law versus Morality as Regulators of Conduct’ [2002] LM 2, 4
[2] R Singh, ‘Law as a system of values’ [2013] LSV 1, 3
[3] ‘Regulators of our conduct’.
[4] R V Stone and Dobinson[1977] 141 J.P. 354 (CA)
[5] Regina V Wilson[1997] 2 C.R. A.P.P 47 (QB)
[6] R V Brown[1994] 1 A.C. 212 (HL)
[7] Offences Against the Persons Act 1861
[8] Shaw V Director of Public Prosecutions[1961] All ER 446 (HL)
[9] Evans V United Kingdom[2007] 2 F.C.R 5 (ECHR) [10] L V Human Fertilisation and Embryology Authority and Another[2008] E.W.H.C. 2149 (Fam) [11] Laskey and Others V United Kingdom[1997] 21627/93 (ECHR) [12] R V R[1992] 1 A.C. 599 (HL) [13] Airedale NHS Trust V Bland[1993] A.C. 789 (HL)
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The Free Market and European Union Law
European Union (EU) legislation and the case law of the Court of justice (CJEU) attempt to ensure the free movement of goods within the internal market. In order to assess how well it ensures the free movement of goods, it is first necessary to identify what is meant by an internal market within the EU. Moreover, it is essential to ascertain how Treaty Articles, as well as, case law, regulate the EU as a customs union, since sometimes charges on imports and exports, within the internal market, may introduce restrictions to the free movement of goods. Finally, it is indispensable to pinpoint, how Treaty Articles and case law from the CJEU regulate quantitative restrictions on the free movement of goods within the union, due to the fact that quotas or even complete bans are restrictions to the free movement of goods. WHAT IS AN INTERNAL MARKET It is stated in Article 3(3) of the Treaty on the European Union (TEU) that “the union shall establish an internal market”. The internal market is defined under Article 26(2) of the Treaty on the Functioning of the European Union (TFEU).
[1] Using a purposive approach to interpret this Treaty Article, it can be deduced that its aim is to achieve the free circulation of goods without the imposition of any restrictions within the Union. HOW TREATIES AND CASE LAW REGULATE THE EU CUSTOMS UNION “It can be understood from Articles 26 and 28-32 of the TFEU that a customs union exists within the EU. This is because the EU has a common external tariff, in addition to a free trade area.”
[2] Article 30 TFEU restricts MS from imposing any custom duties on imports and exports, and any charges having an equivalent effect (CHEE). It also states that it covers “all trade in goods”. [3]The CJEU added clarity to the Treaty Article by providing a definition for “goods”. They were defined as “products with monetary value and which are capable of forming the subject of commercial transactions.
[4] A customs duty is comprised of two defining elements. To begin with, it is a pecuniary charge. Secondly, it is imposed on goods as a consequence of them crossing a border. It must be mentioned that custom duties can never be justified, due to the fact that they are a clear violation of Article 30. The prohibition of custom duties is a clear example of the EU ensuring the free movement of goods by using legislation in collaboration with case law from the CJEU. It has been provided by the CJEU that a duty may be classed as a CHEE, provided that it meets certain criteria: “(a) it must be enforced unilaterally at the time of importation (b) it must be imposed only on a specific product which is imported from other MS whilst excluding such duties on similar domestic products; and (c) it must have the consequence of altering the price of the product.”
[5] These criteria were further developed by the CJEU to include “any pecuniary charge, however small”.
[6] Thus, it can be construed that there is “no de minimis principle in relation to the Treaty articles relating to the free movement of goods”.
[7] Consequently, it can be argued that the EU safeguards the free movement of goods to a great extent, by restricting even the smallest CHEE. The CJEU has established its own set of rules on when charges can be made lawfully for services performed. An example of such rules derived from rulings of the CJEU, was the one established in the case of Bresciani, where the rule that veterinary checks and charges implemented as a service are acceptable, was established.
[8] Hence, the EU provides MS with some flexibility on when charges are justifiable, providing their primary motive is not the restriction of free movement of goods.
The TFEU provides guidelines for taxes being placed on goods originating from other MS. The CJEU established that Article 90 EC (now 110 of the TFEU) was to have direct effect, and is an essential foundation of the Common Market.
[9] Article 110 does not prohibit MS from imposing national taxation, however, it prohibits taxation that is deemed to discriminate between national products and imported products from other MS, either directly or indirectly. Furthermore, Article 110 prohibits MS from imposing internal taxations on imports in order to indirectly protect other products.[10] Further clarity to Article 110 was provided by the CJEU in Commission v France (Reprographic Machines), where the court provided a definition for “taxation”. It was defined as “a general system of internal dues applied systematically and in accordance with the same criteria to domestic products and imported products alike”. [11] This is a clear example of how EU legislation and the CJEU ensure the free movement of goods. As abovementioned, Article 110 covers both direct and indirect discrimination. Direct discrimination is where nationally produced goods and imported goods, of a similar nature, are deliberately treated differently. Whereas indirect discrimination, ostensibly treats domestic and imported goods in the same way, however, the result is that imports are, in actual fact, disadvantaged. An example where the CJEU outlawed indirect discrimination was in the case of Humbolt v Directeur des Services Fiscaux.[12] In this case, the French system of annual vehicle taxation, charged cars with lower power ratings with a lower tax than those with higher power ratings. Since France did not produce higher power rating cars, the French taxation methods were deemed to be a type of indirect discrimination. By catching both types of discrimination, this indicates that the EU ensures the free movement of goods by providing a wide scope for Article 110. It could be argued that, if Article 110 also prohibited MS from imposing national taxation, it would resolve all issues with regard to discriminatory taxation.
However, MS are not willing to give up their sovereignty, thus, harmonization of internal taxations may actually be impossible.
HOW TREATY ARTICLES AND CASE LAW REGULATE QUANTITATIVE RESTRICTIONS WITHIN THE INTERNAL MARKET Barriers to trade that do not involve direct payments of money, are referred to as quantitative restrictions. Articles 34-35 of the TFEU restrict MS from imposing quantitative restrictions on imports and exports respectively. They also restrict MS from applying any measures having an equivalent effect (MHEE) on imports or exports.
However, since restricting the free movement of exports is not a common occurrence, this essay will focus on Article 34 which regulates restrictions on imports. When it comes to identifying the scope of Article 34 of the TFEU, the CJEU has determined that it is directly effective, but only vertically against measures adopted by the state.[13] In some instances, the CJEU may be prepared to find that it also applies to private bodies where there is a substantial degree of state involvement or funding. This was certainly the case in Commission v Ireland (Buy Irish).[14] A campaign promoting domestically produced goods administered by the Irish Goods Council, but heavily subsidised by the government, was held to fall within the scope of Article 34 of the TFEU. This exemplifies the extent of Article 34, illustrating that the EU strives to achieve free movement of goods in both public and private sectors of an economy. Similar to custom duties, quantitative restrictions are easy to identify. The CJEU clarified Article 34 of the TFEU by defining the term “quantitative restrictions” as “measures that amount to a total or partial restraint of imports, exports or goods in transit”.[15] Thus, illustrating that Articles 34 and 35 cover not only complete bans, but also quotas, showing that the EU attempts to ensure, not just partial, but complete free movement of goods.
Measures having equivalent effect (MHEE) are harder to identify. However, clarifications are provided by secondary legislation and the jurisprudence of the CJEU. In the case of Dassonvile, the CJEU defined MHEE as “all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade.” [16] This definition is exceedingly wide in scope, meaning that any measure which is capable of hindering imports or exports in any way will be caught by Article 34 or 35 of the TFEU. Tim Connor characterizes this definition as “a potential weapon of mass destruction”.[17] This is because there existed an accumulating trend of persons involved in trade, calling upon Article 34 of the TFEU to challenge any rules which interfered with their commercial freedom.[18] Directive 70/50, even though now has expired, contains useful guidance on the scope of MHEE. The Directive recognises two classifications of MHEE. First under Article 2, it makes reference to measures which apply differently to domestic and imported goods.
These measures are referred to as “distinctly applicable measures” due to the distinction made between domestically produced goods and imports. Secondly, under Article 3 the directive makes reference to measures that make no distinction between imported and domestic products. These measures are referred to as “indistinctly applicable measures” and may sometimes fall within the scope of Articles 34 and 35 of the TFEU. [19] The CJEU added the fundamental principle of “mutual recognition” to the free movement of goods in the case of Cassis de Dijon.[20] This principle provides that goods that are lawfully produced and marketed in one MS, should face no restrictions when being introduced into another MS. This is an example of the CJEU and its jurisprudence ensuring the free movement of goods within the internal market. EXCEPTIONS TO PROHIBITIONS OF QUANTITATIVE RESTRICTIONS AND MHEE Article 36 of the TFEU provides certain criteria where applying directly discriminatory quantitative restrictions may be acceptable. Such criteria include “public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property”.[21] However, Article 36 goes further and states that the aforementioned justifications are subject to limitations. It states that “such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.”[22] Therefore, once again illustrating that even though MS are given certain leeway, the EU imposes restrictions to the derogations in order to ensure the free movement of goods.
The aforementioned assumption of “mutual recognition” will sometimes be set aside if the “rule of reason” applies. It is provided by the “rule of reason” that barriers to trade resulting from product marketing provisions, that differ from those which apply in another MS, may be permissible so long as they satisfy one of the mandatory requirements. Mandatory requirements were listed in Cassis de Dijon by the CJEU as “the effectiveness of fiscal supervision, the protection of public health, the fairness of consumer transaction and the defence of the consumer”.[23] On the other hand, this is a non-exhaustive list. The CJEU is prepared to accept other measures and interests which deserve protection being classed as mandatory requirements. An example of an additional measure which was accepted, was environmental grounds in the case of Commission v Denmark (Disposable Beer Cans).[24] It could be argued here, that this additional measure places a restriction on the free circulation of goods within the internal market. This is due to the fact that imported products would have to comply with Denmark’s product marketing provisions in order for them to enter the Danish market. However, as characterised by Niamh Nic Shuibhne, justifications to the restrictions of free movement of goods are “an evolving framework”. [25] Since environmental issues are of ever-growing societal concern, the CJEU has adapted to this by accepting environmental protection as a justification to MHEE. Taking a synoptic view, it could be argued that the CJEU, in such circumstances, places restrictions on the free movement of goods instead of ensuring it. As abovementioned, there existed an ever-growing tendency of trades calling upon Article 34 as a way of challenging any rules which contravened with their everyday commercial transactions.
Such claims may have not even restricted the free movement of goods. Thus, the court considered the re-examination of case law, would be necessary to clarify the law concerning this matter, in order to limit the flow of unnecessary cases. Cases which came after Cassis uncovered a distinction separating “indistinctly applicable measures” into two categories. To begin with, there are rules which relate to goods themselves, known as “dual burden” rules. [26] The second set of rules, are concerned with the marketing of products. These are called “equal burden” rules.
This because they impose the same burden (equal) on national and imported goods. This was articulated in the case Keck and Mithouard. In this case, Keck and Mithouard were prosecuted for breaking French competition law due to the fact that they were reselling goods at a loss. They had tried to use Article 34 as a defence, stating that this restricted the free movement of goods. However, the CJEU recognised that French legislation had restricted the total volume of sales. It added by stating that national efforts to prevent “selling arrangements” do not fall within the Dassonville formula for MHEE, “provided that those provisions apply to all affected traders operating within the national territory and provided that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States”.[27] Provisions like these do not hinder market access for imports any more than they do for nationally produced goods, thus they fall outside of the scope of Article 34. However, even though they do not hinder market access to imports, it could be argued that this acts as an indirect discrimination on imports. This is due to the fact that national rules imposing a hypothetical, equal burden on imports and exports, nevertheless have a differential impact on each of them.
Thus, creating uncertainty in the law. This was articulated by Advocate General Jacobs, where he stated “the effect of the Keck judgement is still uncertain.” [28] Consequently, it can be construed that the CJEU justifies the discriminatory restrictions to the free movement of goods, thus, not ensuring the free movement of goods. On the other hand, it must be acknowledged that Keck only applies to “selling arrangements” such as, the opening hours of shops, [29]the types of retail stores that can sell certain types of goods, [30] as well as product advertising[31] but not to product characteristics.
However, as aforementioned Keck specifies that a “selling arrangement” will only be able to escape Article 34 if it applies to all traders that are affected in the nation. Thus, it could be argued that the EU, even though, it provides exceptions to the enforcement of Article 34, it places further restrictions on those exceptions, ensuring the free movement of goods. CONCLUSION In conclusion, it can be deduced that the EU does what it can in order to ensure the free movement of goods, whether it be through the passing of EU legislation, or through the jurisprudence of the CJEU. In 2013 intra-community trade was much higher than the level of exports to non-EU members.[32] This, gives the impression that a free circulation of goods is ensured within the internal market. On the other hand, cases concerning MS restricting the free movement of goods are still rising, giving the impression that a unified market still faces many obstacles. However the CJEU in coordination with EU legislation will overturn the situation and penalize those in breach of an EU fundamental principle, thus ensuring the free movement of goods. BIBLIOGRAPHY Connor T, ‘Accentuating the Positive: The “Selling Arrangement”, The First Decade, and Beyond’ (2005) 54 International & Comparative Law Quarterly 127 European Commission, ‘Free Movement of Goods Guide to the Application of Treaty Provisions Governing the Free Movement of Goods’ [2010] Luxembourg: Publications Office of the European Union, Free Trade Is a Source of Economic Growth (Luxembourg: Publications Office of the European Union 2013) ‘Eurostat- Statistics Explained’ (Eurostat) <https://epp.eurostat.ec.europa.eu/statistics_explained/index.php/International_trade_in_goods#Intra-EU_trade> Foster N, EU Law Directions (Oxford University Press 2012) Nic Shuibhne N, ‘The Free Movement of Goods and Article 28 ECA: An Evolving Framework’ (2002) 27 European Law Review 408 Weatherill S, ‘FREE MOVEMENT OF GOODS’ (2009) 58 International & Comparative Law Quarterly 985 ‘Westlaw UK – Online Legal Research from Sweet & Maxwell’ (Westlaw UK) <https://legalresearch.westlaw.co.uk/>
[1] Consolidated Version of the Treaty on the Functioning of the European Union [2008] Article 26(2)
[2] Nigel Foster, EU Law Directions (Oxford University Press 2012) 264.
[3] Consolidated Version of the Treaty on the Functioning of the European Union [2008] Article 30
[4] Case 7/68 Commission v Italy (Art Treasures) ECR 423
[5] Case 2-3/62 Commission v Luxembourg & Belgium (Gingerbread) [1963] C.M.L.R. 199; [1962] 8 Recueil 813.
[6] Case 24/68 Commission v Italy (Statistical Levy) [1969] ECR 193
[7] European Commission, ‘Free Movement of Goods Guide to the Application of Treaty Provisions Governing the Free Movement of Goods’ [2010] Luxembourg: Publications Office of the European Union 11.
[8] Case 87/75 Bresciani [1976] ECR 129
[9] Case 57/65 Alfons LA¼tticke GmbH v Hauptzollamt Sarrelouis [1966] ECR 205 [10] Consolidated Version of the Treaty on the Functioning of the European Union [2008] Article 110 [11] Case 90/79 Commission v France (Reprographic Machines) [1981] ECR 283 [12] Case 112/84 Humbolt v Directeur des Services Fiscaux [1985] ECR 1367 [13] Case 74/76 Ianelli and Volpi SpA v Meroni [1977] ECR 557 [14] Case 249/81 Commission v Ireland (Buy Irish) [1982] ECR 4005 [15] Case 2/73 Geddo v Ente Nazionale Risi [1974] ECR 865 [16] Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837 [17] Tim Connor, ‘Accentuating the Positive: The “Selling Arrangement”, The First Decade, and Beyond’ (2005) 54 International & Comparative Law Quarterly 127, 3. [18] European Commission (n 5) 12. [19] Commission Directive 1970/50/EEC 22 December 1969 based on the provisions of Article 33 (7), on the abolition of measures which have an effect equivalent to quantitative restrictions on imports and are not covered by other provisions adopted in pursuance of the EEC Treaty[1970] OJ L13/29 [20] Case 120/78 Rewe-Zentral AG v Bundesmonpolverwaltung fur Brantwein (Cassis de Dijon) [1979] ECR 649 [21] Consolidated Version of the Treaty on the Functioning of the European Union [2008] Article 36 [22] ibid [23] Case 120/78 Rewe-Zentral AG v Bundesmonpolverwaltung fur Brantwein (Cassis de Dijon) [1979] ECR 649 [24] Case 302/86 Commission v Denmark (Disposable Beer Cans) [1988] ECR 4607 [25] Niamh Nic Shuibhne, ‘The Free Movement of Goods and Article 28 ECA: An Evolving Framework’ (2002) 27 European Law Review 408, 9. [26] Case 261/81 Walter Rau Lebensmittelwerke v De Smedt PVBA (Margarine) [1982] ECR 3961 [27] Cases 267-268/91 Keck and Mithuard [1993] ECR 6097 [28] Case 412/93 SociA©tA© d’Importation Edouard Leclerc-Siplec v TF1 PublicitA© SA and M6 PublicitA© SA [1995] ECR 179 [29] Cases 401-402/92 Tankstation ‘t Heukske vof and J. B. E. Boermans [1994] ECR 2199 [30] Case 391/92 Commission v Greece [1995] ECR 1621 [31] Cases 34-36/95 Konsumentombudsmannen (KO) v De Agostini (Svenska) FArlag AB [1997] ECR 3843 [32] ‘Eurostat- Statistics Explained’ (Eurostat) <https://epp.eurostat.ec.europa.eu/statistics_explained/index.php/International_trade_in_goods#Intra-EU_trade>.
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The Impact of Different Sources of EU Law on the UK
Executive Summary The purpose of this paper is to evaluate the impact which the different sources of European Union law has had on the law of the United Kingdom. The general conclusion regarding the inculcation of the United Kingdom into the European Union is that it has brought about considerable effects and changes to the legal framework of the country. The sources of the European Union law could be classified as primary law, secondary law and supplementary law.
The impact of these different sources is most felt through the direct applicability of European Union law, above the will of the Parliament, in the United Kingdom. Moreover, the English courts now issue declarations of incompatibility where they hold the relevant United Kingdom laws to be discordant with the purposes of the European Union. Also, the effect of European Union law has affected the way rights are accorded to the citizens of the country. Introduction The European Union is an economic and political partnership between 28 or so European countries (Europa.eu, n.d.), where it seeks to protect and integrate the political, economic and military interests of the continent in a wholesome manner. The law of the European Union primarily refers to elements such as the laws found in treaties, laws enacted and the judicial decisions of the Court of Justice of the European Union, amongst other Union courts (Borchardt, 2010). The laws emerging from these sources are treated as if they were codified – they are accorded immense respect in the member States such the United Kingdom. Indeed, where there exists a conflict between the laws of the European Union and those of the Member States, the former is accorded primacy over the latter by default (Mayer, 2005) . Therefore, this paper seeks to analyse some of the effects which the sources of European Union law have had on the legal framework of the United Kingdom. In order to do so, the paper would firstly seek to analyse the different sources of European Union law.
The next section would enumerate on how these sources, either individually or collectively, have impacted on the English legal framework. The paper’s summary conclusion is that the principal effect of European Union law is that of displacing Parliamentary will as supreme in the United Kingdom (Thompson and Gordon, 2014). Sources of European Union Law There are principally seven different sources of European Union law namely, European Union treaties, secondary laws made under these treaties, non-legally enforceable instruments which aid the interpretation of Union law, treaties made between the Member States, international treaties entered into by the European Union, fundamental rights upon which the Union is grounded and the judicial decisions of the Court of Justice of the European Union (CJEU hereafter). However, it is possible to classify these sources into three main categories – primary law, secondary law and supplementary law (Reich, 2005). Primary law refers main to the treaties comprising the European Union, which are namely the Paris Treaty of 1951 and the Rome Treaty of 1957 (the founder treaties of the European Union) and the Treaty in Functioning of the European Union (TFEU hereafter). These treaties were formulated after considerable negotiations between the Member States and were subjected to ratification by national parliaments (Reich, 2005). These treaties seek to outline the role and duties of the Member States, the roles of Union institutions, and all other pertinent bodies involved in the functioning of the European Union (Alter, 1998). Primary law also comprises of law pertaining to the amendment of these treaties, protocols annexed to these treaties and the treaties entered into when new member countries accede to the European Union. In order facilitate proper functioning of the Union, treaties set expansive policy goals and then inaugurate institutions which play a principal role in ensuring that these policy goals are met via corresponding legislation.
These legislations are broadly classified as either directives or regulations (Snyder, 2000). Regulations are directly applicable in every single Member States of the European Union, without requiring any implementing legislations from the part of the Member States. They automatically supersede all domestic legislations which conflict the regulation (Snyder, 2000). Directives, as opposed to Regulations, require the Member States to produce the purported effect of the Directive, but leave the Member States at liberty to formulate the best possible way to achieve this outcome. Secondary law pertains mainly to the unilateral acts and agreements signed by Member States in order to govern their activity in producing a pre-conceived outcome. Unilateral acts refer to a broad umbrella, referring to decisions, regulations, recommendations, opinions and directives (Treaty of Lisbon, 2009, Art. 288). While these are listed under Article 288 of the Treaty of Lisbon, other unlisted unilateral acts refer to recommendations, white papers and communications. They also refer to the international agreements/treaties entered into by the European Union, agreements undertaken between Member States and inter-institutional agreements existing between the institutions of the European Union (Aziz, 2004). Finally, the third group of sources of European Union law is supplementary law.
This primarily refers to the uncodified/unwritten rules of law developed by the judicial decisions of the CJEU. The court is given the duty of interpreting the European Union laws in such a manner that they are applied similarly in all of the Member States. Thus, the CJEU’s decisions serve as a bridge between primary and secondary laws. The principles established by the CJEU permits the court therefore to implement rules from different domains (Garrett, Kelemen and Schulz, 1998). Supplementary law could also include international legal tenets and customary international law principles. Moreover, supplementary law includes the fundamental rights which the European Union is based – these include human rights, criminal law as founded within the legal frameworks of Member States, competition law (Snyder, 2000) and fundamental freedoms such as the free movement of capital, free movement of goods, free movement of people and free movement of services (Dinan, 2005). Competition law pertains to the control of economic activities between the Member States, in order to avoid certain powerful Member States from distorting the economic regulations and rules. Competition law therefore regulates activities such as mergers and acquisitions, monopolistic/oligopolistic anti-competitive measures undertaken in Member States and regulation of the public sectors (Rose and Bailey, 2013). Similarly, one of the fundamental rights (also pertinent to the cause of this paper) protected under the garb of supplementary law is the provision that men and women need to be accorded equal treatment in all of the Member States. This anti-discriminative provision seeks to ensure that gender-based biases do not disadvantage the opportunities and rights given to women at workplaces (Horspool and Humphreys, 2014). Thus, given that these rights are a source of European Union law, they give citizens of Member States the right to sue the organisation/government which is responsible for the discriminatory measure, under the context of violation of human rights.
The only prerequisite is that the corporation needs to be situated in one of the Member States of the Union. Therefore, it could be gathered, from an analysis of the sources of European Union law that they operate on a principle of supremacy. The European Union laws are accorded precedence over national laws insofar as the latters provisions are inconsistent with the former. Hence, it is clear that the principal effect of the sources of European Union law mentioned above is that they dominate the legal frameworks of Member States, which includes the United Kingdom. Effect on United Kingdom Laws The United Kingdom enacted the European Communities Act 1972 in order to incorporate the aforementioned sources of law into the legal framework of the United Kingdom. Despite the sources of European Union law, it is important to note that they are permitted to have the effects to be mentioned below solely owing to the enactment of this Act – without this Act, the local governmental/judicial bodies would be under no obligation to let European Union law affect United Kingdom law. The first effect of European Union law on the laws of the United Kingdom is the supremacy accorded to the laws of the former. As per the constitutional practices of the United Kingdom, the parliament is ranked supreme, whereby it serves as the most potent legislative authority (Eleftheriadis, 2009). This means that, unlike in the United States, no domestic courts could override the law-making authority of the Parliament.
The Parliament can make and unmake any laws as it deems fit, and no Parliament can enact a law in such a manner that it can bind future parliaments. Yet, the sources of European Union law have altered this position. As per the Treaty of Rome, the primary provisions of the European Union founding treaties apply to all Member States, including the United Kingdom. This means that the European Union law reigns supreme over the will of the Parliament in the United Kingdom, thereby fundamentally altering the legal framework of the United Kingdom (Loveland, 1996). As a result of this, the United Kingdom courts may even disapply certain domestic legislations where they do not complement Union provisions. Evidence for this is found in the ambits of the European Communities Act 1972 itself, whereby section two clearly outlines that legislation, be it enacted before or after the foundation of the European Union, must be interpreted in a manner consistent with the European Union provisions. In R v Secretary of State for Transport ex parte Factortame ([1990] UKHL 7), the House of Lords held unambiguously that the judiciary of the United Kingdom are under a legal obligation now to apply directly applicable Union law, even if it is inconsistent with domestic law. In this case, the House of Lords had to declare certain provisions of the Merchant Shipping Act 1988 as invalid for this purpose. Therefore, it is inadvertently clear that the sources of the European Union law have had the effect of making the domestic provisions and law-making powers of the Parliament in the United Kingdom less potent. This issue was principally settled in the landmark case of Costa v ENEL ([1964] ECR 585 (6/64)). It is worth noting that this principle applies even in instances where the domestic law in question is penal in nature (as per Publico Ministero v Ratti [1979] ECR 1629, C-148/78). Secondly, the other main way the sources of European Union law affect the British legal framework is the way in which the fundamental rights are applied in the domestic context, attempting to undo all forms of discrimination faced by women at the workplace. A case-in-point is that Union law demands that male and female workers are treated equally at workplaces (as per Equal Treatment Directive 76/207/EEC). On this point, the House of Lords held that provisions of the Employment Protection (Consolidation) Act 1978 were deemed to be incompatible with this tenet of Union law (R v Secretary of State for Employment ex parte Equal Opportunities Commission [2000] UKHL 12). This is because the Act accorded less rights to part-time workers as compared to full-time workers – the problem being that most part-time workers were bound to be women. Hence, owing to the sources of European Union law, these provisions were struck down. It is therefore clear that another way in which the sources of European Union law affects the domestic legal framework is that it accords special rights to its citizens, whereby the Union law deems that all Union citizens ought to enjoy such rights. This has the effect of disengaging from the personal direction of the domestic law and inculcating the rights nevertheless the prevailing culture in the country. Conclusion In summary, this paper has established that there are seven main sources of European Union law, whereby these could be classified as primary law, secondary law and supplementary law.
Moreover, the paper has evidenced that there are two main changes effected by these sources on the legal framework of the United Kingdom – they have superseded parliamentary supremacy and inculcated fundamental rights to citizens despite their domestic legal framework. Bibliography Table of Cases Costa v ENEL [1964] ECR 585 (6/64) Publico Ministero v Ratti [1979] ECR 1629, C-148/78 R v Secretary of State for Employment ex parte Equal Opportunities Commission [2000] UKHL 12 R v Secretary of State for Transport ex parte Factortame [1990] UKHL 7 Table of Legislation and Treaties Equal Treatment Directive 76/207/EEC Employment Protection (Consolidation) Act 1978 European Communities Act 1972 Merchant Shipping Act 1988 Treaty of Lisbon 2009 Treaty of Paris 1951 Treaty of Rome 1957. Other Sources Alter, K. J. 1998. Who are the “Masters of the Treaty”? European Governments and European Court of Justice. International Organization, 52(1), pp. 121-147 Aziz, M. 2004. Mainstreaming the duty of clarity and transparency as part of good administrative practice in the EU. European Law Journal, 10(3), pp. 282-295 Borchardt, K.D. 2010. The ABC of European Union Law. Europa.eu, [online] available at: < https://europa.eu/documentation/legislation/pdf/oa8107147_en.pdf> [Accessed: 23 June 2015] Dinan, D. 2005. Ever Closer Union: An Introduction to European Integration. 3rd ed. Boulder: Lynne Rienner Eleftheriadis, P. 2009. Parliamentary Sovereignty and the Constitution.
Canadian Journal of Law and Jurisprudence, 2, pp. 1-24 Europa.eu. N.d. How the EU works. [online] Available from: < https://europa.eu/about-eu/index_en.htm> [Accessed: 23 June 2015] Garrett, G., Kelemen, R. D. and Schulz, Heiner. 1998. The European Court of Justice, National Governments, and Legal Integration in the European Union. International Organization, 52(1), pp. 149-176 Horspool, M. and Humphreys, M. 2014. European Union Law. 8th ed. Oxford: Oxford University Press. Loveland, I. 1996. Parliamentary Sovereignty and the European Community. The Unfinished Revolution? Parliamentary Affairs, 68(3), pp. 517-535 Mayer, F. C. 2005. Supremacy – Lost? Comment on Roman Kwiecien. German Law Journal, 6(11), pp. 1497-1506 Reich, N. 2005. The Constitutional Relevance of Citizenship and Free Movement in an Enlarged Union.
European Law Journal, 11(6), pp. 675-698 Rose, V. and Bailey, D. 2013. Bellamy and Child: European Union Law of Competition. 7th ed. Oxford: Oxford University Press Snyder, F. 2000. The Europeanisation of Law: The Legal Effects of European Integration. Oxford: Hart Publishing Thompson, B. and Gordon, M. 2014. Cases and Materials on Constitutional and Administrative Law. Oxford: Oxford University Press Page | 1
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The Essential Goal of Witness Protection Law Essay
- Chapter1. PROBLEMS FACED BY A WITNESS
- Chapter2. PROPOSED MECHANISM FOR WITNESS PROTECTION PROGRAMME
- Public trial and cross-examination of witnesses in open court: Indian laws
- Protection of identity of witnesses: Special Statutes in India
- Protection of identity of witnesses v. Rights of accused -
- Principles of law developed by the Supreme Court and the High Courts
- Chapter3. WITNESS PROTECTION PROGRAMMES IN OTHER COUNTRIES: A COMPARATIVE STUDY
- Chapter4. PROBLEM OF PERJURY
- CONCLUSION
Witness is an important constituent of the administration of justice. By giving evidence linking to the charge of the offence the witness performs a sacred duty of assisting the court to discover the truth. This is the reason why before giving evidence he/she either takes an oath in the name of God or makes a solemn affirmation that he/she will speak the truth, the whole truth and nothing but the truth. The witness has no risk in the decision of the criminal court as he is neither the accused nor the victim. The witness performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. He sacrifices his time and takes the trouble to travel all the way to the court to give evidence. The witness performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. He sacrifices his time and takes the trouble to travel all the way to the court to give evidence.
The witness should therefore be treated with great respect and consideration as a guest of honour. Unfortunately, all these are seen not to be happening in the courts. There are two broad aspects to the need for witness protection. The first is to ensure that evidence of witnesses that has already been collected at the stage of investigation is not allowed to be destroyed by witnesses resiling from their statements while deposing on oath before a court. This phenomenon of witnesses turning `hostile' on account of the failure to `protect' their evidence is one aspect of the problem. This in turn would involve special procedures to be introduced into the criminal law to balance the need for anonymity of witnesses on the one hand and the rights of the accused, on the other, for an open public trial with a right to cross examination of the witnesses, after knowing all details about witnesses. The other aspect is the physical and mental vulnerability of the witness and to the taking care of his or her welfare in various respects which call for physical protection of the witness at all stages of the criminal justice process till the conclusion of the case. This can be done by the introduction of witness protection programmes.
While the first aspect of protecting the evidence of witnesses from the danger of their turning 'hostile' has received limited attention at the hands of Parliament in some special statutes dealing with terrorism, there is an urgent need to have a comprehensive legislative scheme dealing with the second aspect of physical protection of the witness as well. Further, both aspects of anonymity and witness protection will have to be ensured in all criminal cases involving grave crimes not limited to terrorist crimes. The implementation of such a law would involve drawing up:
- Procedures for granting anonymity to witnesses and also
- Introducing Witness Protection Programmes in which personal protection is granted to the witness; sometimes by shifting the witness to a different place or even a different country;
or by providing some money for maintenance or even by providing employment elsewhere. Unfortunately, all these are seen not to be happening in the courts and the countries. When the witness goes to the court for giving evidence there is hardly any officer of the court who will be there to receive him, provide a seat and tell him where the court he is to give evidence is located or to give him such other assistance as he may need. In most of the courts there is no designated place with proper arrangements for seating and resting while waiting for his turn to be examined as a witness in the court. Toilet facility, drinking water and other amenities like food and refreshment even are not provided. The witness bears all this to get nothing in return at all.
The witness is not adequately compensated for the amount of money he spends for his traveling and staying in the town where the court is located. Rate of allowance fixed long back are quite unrealistic and not adequate to meet the minimum needs of the witness. Steps should therefore be taken to review the scales of traveling and other allowances taking into account the prevailing cost in the area where the court is located. What is worse is that even the allowances fixed are not paid to the witness immediately on the apparent ground that funds are not available. There are also complaints of corrupt officials of the administration who draw the allowances and do not pay them to the witnesses. This is an unpardonable crime against the witnesses. Therefore effective steps have to be taken to ensure that payment of the allowances to the witness is neither denied nor delayed. Fool proof arrangements should be made to see that the allowances are paid immediately away. On top of all this, the witnesses and their families also face problems regarding safety. Yet, the witnesses help the court to give better justice without any fear of their life and property. The court in return should also show its gratification in an appropriate manner.
Chapter1. PROBLEMS FACED BY A WITNESS
The witness is one of the most important sources of information in discovering the truth about the case, but the pains and troubles he/she has to undergo to help the court is a lot as well. A major problem is about the safety of the witnesses and their family members who face danger at different stages. They are often threatened and the seriousness of the threat depends upon the type of the case and the background of the accused and his family. Many times crucial witnesses are threatened or injured prior to their testifying in the court. If the witness is still not agreeable he may even be murdered. In such situations the witness will not come forward to give evidence unless he is assured of protection or is guaranteed anonymity of some form of physical disguise. Some times holding of in-camera proceedings may be sufficient to protect the interest of the witness. I however the circumstances indicate that the life of any particular witness is in danger, the court must take such measures as are
necessary to keep the identity of the witness secret and make arrangements to ensure protection to the witness without affecting the right of the accused to cross examine him.
The threat from the accused side may be before he gives his statement before the police officer or evidence in the court or after the conclusion of the trial. There is a growing tendency of subjecting the witness and his family members to serious threats to life, abduction or raping or damaging the witnesses' property or harming his image and interest in other ways. The witness has no protection whatsoever. Many countries in the world have enacted laws for witnesses' protection. There is no such law in India. The witness also suffers in the court in various other ways. When he comes to the court to give evidence he is often told that the case has been adjourned and is asked to come back on another city. When a case is adjourned, the witnesses in attendance are quite often not paid the allowances. The witnesses should not be punished by denying him his rightful expenses for no fault of his own. Steps should therefore be taken to ensure that the witnesses are paid allowances on the same day if the case is adjourned. Quite often more than one witness is summoned to prove the same point. The prosecutor may pay attention to reduce duplication of evidence resulting in unnecessary waste of time of courts and expenses. The next portion is about the way the witness is treated during trial.
The witness is entitled to be treated with courtesy when he arrives for giving evidence. Similarly, due courtesy should be shown to him when he enters the court for giving evidence. The present practice is to make the witness stand and give his evidence from the place designated for that purpose. Comfort, convenience and dignity of the witness should be the concern of the judge. A chair should be provided for the witness and requested to take his seat for giving evidence. The lawyer for the defence in order to demonstrate that the witness is not truthful or a reliable person would ask all sorts of questions to him. When the questions are likely to annoy, insult or threaten the witness, the judge does not object and often sits as a mute spectator. It is high time the judges are sensitized about the responsibility to regulate cross examination so as to ensure that the witness is not ill treated affecting his dignity and honour. Therefore the High Courts should take measure through training and supervision to sensitize the judges of their responsibility to protect the rights of the witnesses. So far as witness is concerned, it is his primary duty to give true evidence of what he knows. Unfortunately this is not happening and the problem of perjury is growing.
Chapter2. PROPOSED MECHANISM FOR WITNESS PROTECTION PROGRAMME
Public trial and cross-examination of witnesses in open court: Indian laws
Section 327 of Cr.PC provides for trial in the open court and 327 (2) provides for in-camera trials for offences involving rape under Section 376 of IPC and under Section 376 A to 376 D of the IPC. Section 273 requires the evidence to be taken in the presence of the accused. Section 299 indicates that in certain exceptional circumstances an accused may be denied his right to cross-examine a prosecution witness in open court. Further, under Section 173 (6) the police officer can form an opinion that any part of the statement recorded under Section 161 of a person the prosecution proposes to examine as its witness need not be disclosed to the accused if it is not essential in the interests of justice or is inexpedient in the public interest. Section 228A IPC prescribes punishment if the identity of the victim of rape is published. Likewise, Section 21 of the Juvenile Justice (Care and Protection of Children) Act, 2000 prohibits publication of the name, address and other particulars which may lead to the identification of the juvenile. Under Section 33 of the Evidence Act, in certain exceptional cases, where cross examination is not possible, previous deposition of the witness can be considered that relevant in subsequent proceedings. The Evidence Act requires to be looked into afresh to provide for protection to a witness.
Protection of identity of witnesses: Special Statutes in India
In the pre-constitutional era, Section 31 of the Bengal Suppression of Terrorist Outrages Act, 1932 empowered the special Magistrate to exclude persons or public from the precincts of the court. Section 13 of TADA, 1985 and Section 16 TADA 1987 provided for protection of the identity and address of a witness secret. Section 30 POTA 2002 is on the same lines as Section 16 TADA, 1987. Apart from these provisions in special statutes, there is a need for a general law dealing with witness anonymity in all criminal cases where there is danger to the life of the witness or of his relatives or to his property.
Protection of identity of witnesses v. Rights of accused -
Principles of law developed by the Supreme Court and the High Courts
In the pre-Maneka Gandhi phase the Supreme Court, in Gurbachan Singh v. State of Bombay , upheld a provision of the Bombay Police Act, 1951 that denied permission to a detenue to cross-examine the witnesses who had deposed against him. It was held that the law was only to deal with exceptional cases where witnesses, for fear of violence to their person or property, were unwilling to depose publicly against bad character. At this stage, the issue was not examined whether the procedure was 'fair'. The decisions in G.X. Francis v. Banke Bihari Singh and Maneka Sanjay Gandhi v. Rani Jethmalani stressed the need for a congenial atmosphere for the conduct of a fair trial and this included the protection of witnesses. In Kartar Singh v. State of Punjab the Supreme Court upheld the validity of ss.16 (2) and (3) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) which gave the discretion to the Designated Court to keep the identity and address of a witness secret upon certain contingencies; to hold the proceedings at a place to be decided by the court and to withhold the names and addresses of witnesses in its orders. The court held that the right of the accused to cross-examine the prosecution witnesses was not absolute but was subject to exceptions. The same reasoning was applied to uphold the validity of Section 30 of the Prevention of Terrorism Act, 2002 (POTA) in People's Union of Civil Liberties v. Union of India.
In Delhi Domestic Working Women's Forum v. Union of India the Supreme Court emphasised the maintenance of the anonymity of the victims of rape who would be the key witnesses in trials involving the offence of rape. The importance of holding rape trials in camera as mandated by Section 327 (2) and (3) Cr.PC was reiterated in State of Punjab v. Gurmit Singh. In Sakshi v. Union of India the Supreme Court referred to the 172nd Report of the Law Commission and laid down that certain procedural safeguards had to be followed to protect the victim of child sexual abuse during the conduct of the trial. In the Best Bakery Case, in the context of the collapse of the trial on account of witnesses turning hostile as a result of intimidation, the Supreme Court reiterated that "legislative measures to emphasize prohibition against tampering with witness, victim or informant, have become the imminent and inevitable need of the day."
Although, the guidelines for witness protection laid down by the Delhi High Court in Neelam Katara v. Union of India (judgment dated 14.10.2003) require to be commended, they do not deal with the manner in which the identity of the witness can be kept confidential either before or during the trial. The judgment of the Full Bench of the Punjab and Haryana High Court in Bimal Kaur Khalsa [10] , which provides for protection of the witness from the media, does not deal with all the aspects of the problem. These judgments highlight the need for a comprehensive legislation on witness protection.
Chapter3. WITNESS PROTECTION PROGRAMMES IN OTHER COUNTRIES: A COMPARATIVE STUDY
In the United Kingdom, the judgment of the House of Lords in Scott v. Scott required that the exception to the general rule that administration of justice should take place in open court should be based "upon the operation of some other overriding principle which AA does not leave its limits to the individual discretion of the Judge." In the Leveller Magazine case (1979) it was held by the House of Lords that apart from statutory exceptions it was open to the court "in the exercise of its inherent powers to control the conduct of proceedings" so long as the court "reasonably believes it to be necessary in order to save the ends of justice." This was subsequently recognized by the enactment of Section 11 of the (UK) Contempt of Court Act, 1981. Under Section 24 of the Youth Justice and Criminal Evidence Act, 1999 evidence may be given through a live telecast link where the witness is outside UK or is a child. Sections 16 to 33 of the same Act require the court to consider special measures of various kinds for the protection of vulnerable and intimidated witnesses. In R vs. DJX, SCY, GCZ , the Court of Appeal allowed child witnesses to be screened from the accused. In R vs. Tailor (Gary), various guidelines were issued.
The Lord Diplock Commission, appointed to consider various issues concerning the violent confrontations in Ireland, suggested that witnesses could be screened from the accused. In R v. Murphy (1989) it was held that identity of the witness should be kept secret not only from the accused but also from the defence lawyer. In R v. Lord Saville of Newdigate the Court of Appeal overturned the decision of the Lord Saville Tribunal appointed to enquire into the incident of shooting of 26 people during a demonstration at Londonderry, refusing to grant anonymity to military witnesses. The Court of Appeal held that the approach of the Tribunal was not fair to the soldiers as the risk to them and their families was "a serious possibility." In the second round (Lord Saville v. Widgery Soldiers, the Court of Appeal overturned the decision of the Lord Saville Tribunal to shift the enquiry from London to Londonderry in Northern Ireland holding that the elements at Londonderry in Ireland "pose a threat to the enquiry and those who are or will be taking part in it, and in particular, a solider witnesses." The venue, according to the Court of Appeal, should be London only. Further, since there would be live video linkage to Londonderry "the public confidence will not be eroded by holding a part of the enquiry in London." The same approach was adopted in regard to the recording of the evidence of police witnesses.
Following the ruling of the European Court on Human Rights in Chahel v. UK, the Special Judgment on Appeals Commission Act, 1997 and the Northern Ireland Act, 1998 have been enacted which provide for courts to sit in camera where it was necessary on national security grounds and for appointing special counsel to represent individuals in those proceedings. In Australia, the Supreme Court of Victoria (Australia) in Jarvie (1995) approved of non-disclosure of the names and addresses of informers and undercover police officers as well as other witnesses whose personal safety would be endangered by the disclosure of their identity. This has been followed in a series of other cases as well. Australia also has 8 different statutes (in each of the States) dealing with witness protection but not with the anonymity or screening aspects. Section 2A (b) of the Australian Evidence Act, 1989 deals with special witnesses - suffering from trauma or likely to be intimidated. In New Zealand, under Section 13A of the (New Zealand) Evidence Act, 1908 (introduced 1986), protection is available to undercover officers in cases involving drug offences and offences tried on indictment attracting a maximum penalty of at least 7 years imprisonment. A certificate has to be given by the Commissioner of Police to the court that the police officer requiring protection has not been convicted of any offence. In 1997, Section 13G was introduced making protection applicable to all witnesses if their lives were likely to be endangered. In R v. L , this provision came to be tested on the anvil of Section 25(f) of the New Zealand Bill of Rights which provides for the right to cross-examination to an accused.
The court upheld the provision on the ground that the right of cross examination was not absolute. Under Section 13C (4) the Judge, might make an anonymity order where he is satisfied that the safety of a witness is likely to be endangered if his identity was disclosed. Sub-section (5) of Section 13C provides for the factors to be accounted for by the court and sub-section the conditions to be fulfilled. The power of the court to exclude the public or to direct screening of the witnesses or to give evidence by close circuit television is provided under Section 13G. The 1997 legislation is comprehensive and has been held by the courts to be 'fair' vis-à-vis the New Zealand Bill of Rights in R vs. Atkins [17] . In Canada, the courts have granted more importance to the exception of 'innocence at stake' rather than the needs of administration of justice. In other words, anonymity of witnesses is treated as a privilege granted under the common law unless there is a material to show that it will jeopardize the proof of innocence of the accused. The important cases in this regard are R v. Durette [ ; R v. Khela ; CBC v. New Brunswick [20] ; R v. Leipert [21] and R v. Mentuck [22] . In South Africa, the approach is on a case by case basis in order to balance the conflict of interests with a view to ensuring proper administration of justice. Section 153 of the (South Africa) Criminal Procedure Code permits criminal proceedings to be held in camera to protect privacy to the witness.
Section 154 gives discretion to the court to refuse publication of the name of the accused. The South African courts have permitted the witness to give evidence behind close doors or to give witness anonymity. The courts prefer to prohibit the press from reporting on identity rather than exclude them from the court room. The important cases are S v. Leepile [23] and S v. Pastoors [24] . The courts in the US have held that the constitutional protection in favour of the right to confrontation by way of cross examination, as provided in the 6th Amendment to the Constitution, is not absolute and could be restricted for the purpose of protecting witness identity by using video link or by shielding the witness from the accused though not from the lawyers to the defence or the court or the jury. The important cases are Alford v. US (1931); Pointer v. Texas (1965) and Smith v. Illinois (1968). In Maryland v. Craig (1990), the court upheld the procedure under the Maryland Courtsand Judicial Procedure Code which provided for protection of child witnesses by way of one-way closed-circuit procedure and held that it did not violate the right to confrontation guaranteed by the 6th Amendment.
The European Court of human rights has in Kostovski (1990), Doorson (1996), Vissier (2002) and Fitt (2002) recognized the need to protect anonymity of witnesses while, on account of Article 6 of the European Convention, more importance appears to have been given to the rights of the accused. If national courts had determined that anonymity was necessary or not necessary in public interest, the European court could not interfere. The judgments of the International Criminal Tribunal for former Yugoslavia (ICTY) in the 'Tadic' and 'Delaic' cases in the context of protection of witnesses, anonymity, re-traumatisitation and general and special measures for their protection have been discussed in detail. Likewise, the decisions of the International Criminal Tribunal for Rwanda (ICTR) (1994) with reference to the relevant statute which provide for protection of victims and witnesses have also been discussed in great detail in the Consultation Paper.
Chapter4. PROBLEM OF PERJURY
One of the main reasons for the large percentage of acquittals is criminal cases is of witnesses' turning hostile and giving false testimony in criminal cases. Several reasons are attributed to this difficulty such as inordinate delay in the trial of cases, threats or inducement from the accused, etc. As in criminal cases the prosecution relies mainly on oral evidence the problem assumes critical importance. Witnesses give evidence in the Criminal Courts after they are administered oath or affirmation under the Oaths Act, 1969. Section 8 of the Oaths Act provides that the witness is legally bound to state the truth on the subject. The sanction behind the oath is supposed to be the fear of God, the supernatural dispenser of justice. In practice however it is seen that the witness makes false statements without any regard for the sanctity of the oath or affirmation that has been administered to them. One gets an impression that administration of oath or affirmation virtually gives license to the witness to make false statements before the Court with impunity.
There is no doubt there is statutory sanction against the witnesses making false statements in the court. Perjury is made a Penal offence under Sections 193 to 195 of the Indian Penal Code for which adequate punishment is prescribed. Section 195 (1) (b) of the Code provides that no court shall take cognizance inter-alia of the offence of perjury under Sections 193 to 195 except on the complaint in writing of that court or of the court to which that court is subordinate. Section 340 prescribes the procedure to be followed for making a complaint contemplated by Section 195. It requires the court to hold a preliminary enquiry to record a finding that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in Section 195 (1) (b). Thereafter it has to make a complaint in writing and send it to the Magistrate I Class having jurisdiction. The order under Section 340 is appealable under Section 341 of the Code. Section 343 prescribes the procedure to be followed in dealing with the case Section 344 however prescribes an alternative summary procedure. It provides that if the Court of Session or Magistrate of first class if at any time of delivery of judgement in the case expresses an opinion that the witness appearing in such proceeding had knowingly or willingly given false evidence or fabricated false evidence for use in the proceeding, the Court may if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily, take cognizance after giving reasonable opportunity of showing cause, try such offender summarily and sentence him to imprisonment or to a fine or both. Thus it is seen that the courts response to the serious problem of perjury is rather one of utter indifference. Unfortunately, these provisions are rarely resorted to and perjury has become a routine in courts where truth and justice must prevail.
Perjury can contribute to the wrong person being convicted while the true criminal and a perjurer walk on the streets in freedom. Offering false testimony in a criminal trial is a serious offence that undermines the integrity of the Criminal Justice System. For justice to be done truth must prevail. Witness must be made to take his oath or solemn affirmation seriously. The sentence prescribed for perjury is quite lenient. In the State of New York the sentence for perjury was recently enhanced to 15 years. As the menace of perjury is shaking the very foundation of the criminal justice system it is necessary to curb this menace and the sentence prescribed should be enhanced.
CONCLUSION
Witness is one of the most important constituent of justice. He is one of the most important sources of information in discovering the truth about the case, but the pains and troubles he has to undergo to help the court is a lot as well. By giving evidence the witness helps the courts to give correct judgement and justice. The witnesses have the danger of their lives as well as that of their families. They have the danger of their properties as well. They have to undergo lots of discomfort when they come to give evidence. Even after doing all this they do not get anything in return. Therefore it can be clearly seen that the courts are negligent in the way that they treat the witnesses. Witness protection should take place and already various steps have been taken towards it. Many countries like, Canada, New Zealand, Australia, etc. have a well developed mechanism for witness protection. These mechanisms may encourage even more witnesses to come forward to give their evidence for the greater good. Witnesses therefore should be shown the respect and gratitude which they are actually worth of. The problem of perjury also prevails and it depends upon the witness himself to stop it. Otherwise it can contribute to the wrong person being convicted while the true criminal and a perjurer walk on the streets in freedom.
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The Future of Law in Protecting Business Reputation
Future of Law in Protecting Business Reputation Will Rogers once quoted “It takes a lifetime to build a good reputation, but you can lose it in a minute” In this digital era where everyone is a publisher, the risk of reputation damage is present anywhere and anytime. Business reputation is largely what other people think of the public image of that particular organization. Of course a good reputation enhances competitive advantage and increase revenue to the company. It also allows a business to overcome a crisis in a better way and attract talented person as there is sufficient reputation. On the other side, a damaged bad reputation reduced the revenue for the company and subsequently loses the trust of stakeholder.[1] The problems faced by most businesses is that malicious posts can be circulated on social media website instantly while the process of taking legal action and trying to restore back the reputation after the event can be slow and difficult. In most cases, when negative reviews or comments are made online regarding a business, it is viewed as opinion in the eyes of the law. It will be a difficult task to prove that a person had specific bad intention while writing the review. Thus, the suggestion here is there must be a clear justification in regard to determine the specific intent of malice of the person. Additionally, the Communications Decency Act (CDA), which was taken effect since 1996 can make it even more difficult to manage negative information which is published online effectively as this act was created to protect free speech. It is also providing immunity to the websites that publish or distribute the content of others because they will not be held responsible for the information posted on their respective site.[2] Although it is defamatory, victims of online defamation will face a challenging court battle in order to restore their reputation back. In most cases, it will require more time for having those negative review to be removed from a website. Even if the negative review has been removed, people will still have negative perception towards that particular business reputation. Thus, there should be amendments made to Communications Decency Act in order to make it a more comprehensive law. Such ways is by imposing limitation although this act was created to protect free speech. Besides, this act cannot allow full immunity to websites that publish other people information and impose punishment for those who did that. Although monetary damages are typically awarded in many cases related to reputation injury, it is obvious that such awards tend to comfort the emotional harm which had been felt by plaintiff as a result of harm to her reputation in term of business. Thus, the damages given here is not comprehensive and complete as it is supposed to restore back the business reputation but not to comfort the emotional harm. Therefore, this is a difference between monetary awards and various justifications for the legal protection of a business reputation. Thus, the suggestion here is to ensure there is availability of various justifications in order to restore back the business reputation rather than a monetary award. The ways to improve this is by giving more attention to disclaimers and other forms of information correction as an appropriate remedy to restore business reputation. The issue relating to false information can be settled and also acting as a public reprimand to the defendant. This will definitely ensure people to think twice before they make any action that can jeopardise other business reputation as they will not want to risk paying monetary awards. Of course, the suggestion made here did not mean that monetary damage awards for injury towards business reputation are not appropriate. To those individual who can proved that they lost job opportunities or the company can prove there is a lost in sales as a clear result from reputation injury should be granted for those monetary awards.[3] This is because they have suffered losses in terms of monetary. My suggestion here is if there any good alternative remedy that can correct or restore the business reputation, then it should not be assumed that everyone who suffered injury to business reputation are entitled to monetary damages. It should be understandable that there are peoples who take on others ideas and embody them in a different form. This will give them a strong claim that they are the original creators of the ideas.[4] It was argued by Hegel that a principled answer to the question of when preventing the use of an idea is justified is impossible and it cannot be settled by the current legislation.[5] Thus, the suggestion here is there must be a legislation to address this problem in order to know the justification on when to prevent the use of an idea of another person. Then a right to misappropriation of valuable intangibles could be established once this problem is rectified. It is also arguable that there are strong grounds of principle for upholding the tort of passing off in its classical formulation.[6] Here, it is suggested that the principle can be expanded to a more generalised tort of misrepresentation. However, it is clearly difficult to establish an argument of principle to support its development into a more generalised tort of misrepresentation. Therefore, there is a need to appeal to Parliament to review the terms of policy or to develop more convincing argument of principle in order to make this principle to be established successfully. There is still ample avenue for developing and extending the tort of passing off in the future in Malaysia. This would serve to circumvent new kinds of unfair trade practices which may occur. The ideology of this can be found rooted in the case of Associated Newspaper PLC v Insert Media Ltd[7] where Justice Mummery remarked that: “It is important both in the evaluation of the facts and in the formulation and application of the law, never to lose sight of the legal and economic basis of the action for passing off. That tort has been developed for the protection of the property which exists not in a particular name, mark or style, but in an established business, commercial or professional reputation or goodwill.” Sometimes, the courts would choose a more liberal and flexible approach in interpreting the tort of passing off to further extend the protection to business reputations. This can be observed in the case of Lego System A/S v Lego M. Lemelstrich Ltd.[8] which confirms that passing off may be deemed to have occurred even where the plaintiff and the defendant are not selling the same goods. In this case, the plaintiff is the well-known manufacturer of “Lego” which are children’s toy building bricks who sought to prevent the defendant from using the name of “Lego” for their products of plastic gardening equipment. The court decided in the plaintiff’s favor and held that the plaintiff could lose the opportunity in the future to expand their business into the area occupied by the defendant. This principle may set off some significant implications which would inter alia prevent a trader in a totally different area of business from using a mark on the ground that the trader would interfere with the plaintiff trader should he wish to expand his business sometime in the future. However, Malaysian courts do not adopt such liberal interpretations to extend the protection to the future of traders which may be good to prevent complications regarding remoteness in the future. This can be seen in the case of McCurry Restaurant (KL) Sdn Bhd v McDonald Corporation[9] where the Court of Appeal ruled in favor of the appellant/defendant McCurry Restaurant. The plaintiff is a renowned international fast food chain whereas the defendant sold Indian and Malaysia cuisine under the name of McCurry Restaurant. The plaintiff then sought to restrain the defendant from using the prefix of “Mc”. His Lordship, Gopal Sri Ram JCA, found that the plaintiff’s and the defendant’s get-up are distinctively different. This is because McDonald’s get-up is the use of the golden arches “M” with a red background while McCurry’s get-up is the use of the wordings: Restoran McCurry, in white and grey letters with a red background accompanied with a picture of a chicken holding two thumbs up. He also found that the types of food sold by both the defendant and the plaintiff are of stark difference. This is so where the former sells Indian and Malaysian cuisines while the latter sells fast foods. As such, the court was satisfied to find that there is insufficient proof to establish passing off. It can be observed that the McCurry case would set Malaysian courts in a direction different from the Lego’s case. Thus, it is submitted here that this may be the correct direction to prevent the abuse of the law of passing off. Perhaps the consideration of the future of a trader’s business expansion may be too remote and may not be suitable to be weighed in a decision. Another area of development of the tort of passing off in the future is the application of the tort to character merchandising which is a marketing strategy by referencing directly or indirectly to an endorsement by a real or fictional character. It occurs where a trader associates his products to the name, image or distinguishing features of a popular figure to make his products more attractive or noticeable in an effort to hike up the sales of his product or services. Australian cases have suggested that a trader who has developed a reputation in a real of fictional character can restrain another from misrepresenting that their products are commercially related with that character.[10] It seems that England courts are following Australian cases’ footsteps. In the case of Mirage Studios and Ors v Counter-Feat Clothing Company Ltd[11] it was held that if the public is misled as to a feature or the quality of the goods sold, then it would suffice for a cause of action in the tort of passing off. That case has stirred up some controversy in the English judicial sphere because it implies that the elements of passing off as established in Advocaat are no longer followed. In Pacific Dunlop Ltd. v Hogan and Ors,[12] it was held that passing off may be established as long as the misrepresentation is proven regardless of whether actual deception and damage have occurred or not. It is thus, arguable that Australian courts may have gone too far in the character merchandising decisions. In a New Zealand case of Tot Toys v Mitchell,[13] Justice Fisher has expressed aversion from the Australian courts’ decisions of extending the law of passing off to character merchandising cases. As such, in Malaysian context, the law of passing off in character merchandising cases is still open for further development. It is submitted that perhaps Malaysian courts may retain the need to prove actual damage or loss in character merchandising cases and as such, fusing the Australian’s approach with the original elements required to prove passing off. This is so to protect the business reputation of traders in Malaysia. Conclusion In short, the tort of passing off has vast potential for development or extension to protect business reputations of Malaysian traders. This is especially so when new types of misrepresentations and passing off should arise which could tarnish a business’s goodwill and reputation. An example would be in cases of character merchandising as discussed. Nevertheless, the original elements to prove passing off should be retained to prevent the abuse of the law.
[1] D.B. Bromley, Reputation, Image and Impression Management 8 (1993) [2] Stanley Ingber, Defamation: A Conflict Between Reason and Decency, 65 Va. L. Rev. 785, 791–92 (1979) [3] See Laura A. Heymann, Reading the Product: Warnings, Disclaimers, and Literary Theory, 22 Yale J.L. & Human. 393, 396 (2010) [4] Waldron, “From Authors to Copiers: Individual Rights and Social Values in Intellectual Property Law” (1993) 68 Chicago-Kent at p.617 [5] Hegel, supra, n 72 at p.55. [6] Gordon, “An Inquiry into the Merits of Copyright” (1989) at p.1431. [7] 1 WLR 900, 908 [1990] [8] FSR 155 [1983] [9] [2009] 1 LNS 309 [10] Eg: Children's Television Workshop Inc v. Woolworths (NSW) Ltd., RPC 187 [1991]; Hogan and Another v. Koala Dundee Pty. Ltd., 83 ALR, 12 IPR 508 (1988); Pacific Dunlop Ltd. v. Hogan and Others, 87 ALR 14, 14 IPR 398 (1989); Hutchence v. South Seas Bubble, 64 ALR 33 (1986). [11] FSR 145 [1991]. [12] [1989] FCA 185 and at (1989) 87 ALR 14 [13] Tot Toys Ltd. v. Mitchell, 4 NZBLC 102,797 (1992)
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The Fraud Act 2006
‘The Fraud Act 2006 has as a central requirement the concept of Dishonesty. This simple legal concept has made the law clear.’ Critically Discuss. The Fraud Act 2006 was brought in to replace the Theft Act 1978, as offences created under the act after caused difficulty proving in court. In 2002, the Law Commission produced a report on fraud, which led to the creation of the new act, which has been simplified, which allows the defendant to understand the offences with ease and for the Crown Court the changes made it easier to prosecute. Most of the previous act has now been repealed, excluding ‘making off without payment’ under section 3, which has not been affected. Certain aspects of the previous Theft Act still remain; common law offences such as, ‘conspiracy to defraud’ and ‘conspiracy to cheat the revenue’. The main change brought to the new act was section 1 of a single offence of fraud, as the act gives a statutory definition of the offence of fraud; separating it into three categories, subsequently meaning that it is a single offence which can be committed in three different ways:
- Fraud by false representation (section 2)
An example of this offence would be Adams, R v (1993) CA; The individual went to hire a car and filled in a car hire form, he was asked if he had any previous motoring convictions and also whether he has been disqualified from driving, he said ‘no’ to both, however he had been disqualified from driving 4 years previously. The indidual was found guilty as he should have only ticked the boxes if both answers were no, the indivual tried to argue that it was the correct answer to one of the questions, therefore he falsly represented himself.
- Fraud by failing to disclose information (section 3)
An example of this would be for an individual not disclosing important information when applying for life insurance such as they have a life threatening illness.
- Fraud by abuse of position (section 4)
An example of this would be a carer stealing money or goods from their patients, as the carer was in a position of trust, in which the system relies upon honesty on the part of caring for someone who can’t care for themselves. The main focus of the new legislation brought in was to ensure that newly developed technolgically focused crime was included within the provision as previously the complexity under fraud was prosecuted, enabled some defendants to be acquitted as the legilslation failed to keep up with technological advances. This change was brought in to overcome these technicalities, by capturing the elements of fraud, however doing so in a technique which doesn’t specify any specific activity. This broadness allows the reformed legislation to keep up to date with developing technologies, therefore meaning that technology cant out date the legislation like previously. A post legislative assessment of the newly reformed Fraud Act 2006 was carried out and comments made were that the act simplified cases of fraud, that the simplicity of the law allows investigators to ‘take prompt action and avoid further criminality’. The broader range of offences which are now covered by the act, means that the prosecution no longer have to prove that a person was decieved and also allows the means to prosecute for a wider range of criminal activities including technology focused crime, investment fraud, data theft and charity scams. Offences are now based upon the ‘intention’of the defendant, rather than the outcome, which has increased the amount of early guily pleas. The overall assessment suggested that the reformly reformed legislation has been successful in acheving its initial objectives, which were to modernisedeception offences, whilst also providing a clear statutory base for fraud offences, whilst also targetting complex and technology focused fraud. There are still offences being prosecuted under the previous legislation due to the implementation date of the Act and the long investigate periods that often occur in complex fraud cases. The principles that are carried out are the same although the legal tests may be differ. The common law offence of conspiracy to defraud must be mentioned, however, as it still exists despite the Fraud Act 2006. The Element of Dishonesty The changes brought in move the focus of the legislation from the concept of deception towards the concept of dishonesty, as defined in R v Ghosh (1982) when dishonesty is an element of the offence, the jury have to make a decision whether or not they feel that what was done dishonest by the ordinary standards of reasonable and honest people? And whether the defendant realised that he/she was doing, by those standards dishonest? After the removal of the concept of deception from the offence of fraud ‘dishonestly obtaining services by deception’ (section 1 of the Theft Act 1968); with ‘obtaining services dishonestly’(section 11 of the Fraud Act 2006), this allows a larger scope of crime to be captured through the word ‘dishonestly’, as it is a word which can easily be related to and understood by laymen. Section 11 of the Act make it a statutory offence to obtain services dishonestly; suggesting that if services which were to be paid for were obtained without payment, under the knowledge of the individual or with intention that no payment would be made, If found guilty the individual would be liable to a fine or imprisonment for up to twelve months on a summary conviction, or a fine or imprisonment for up to five years on conviction on indictment. The decision of whether an action is dishonest remains separate from any moral justifications the act has. For instance if an individual stole from someone wealthy, and he knew that he was acting dishonestly, however his argument was that he was morally justified in acting in that particular way, and could only be brought to court by the way of mitigation of sentencing, and would not have affected the inference of dishonesty. The new legislation means that dishonesty is looked at through omission rather than the act, for instance if a creditor were to use trickory to get a debtor to pay a debt which they owed, as the motive was dishonest even though the debtor owed the creditor and by means it was rightfully his money, the creditor could potentially be prosecuted under the new provisions of the act, however under the previous law this would have been lawfull. The broad nature of the statute and reformed language now allows a broader range of offences to be under the provisions of the reformed act; however as the legislation of the act is broad this could potentially lead to problems. As the more complex a system is the harder it is to prosecute under, however if it is broader this creates more room for loop holes to be created. The nature and definition of dishonesty under the Ghosh test, is left under the discretion of the jury to decide whether an act is dishonest and if the act fails to address whether something is dishonest it automatically becomes classified as ‘fraud’. However the argument with this issue falls upon whether or not the jury are ‘reasonable’ with their estimations of dishonesty, different life backgrounds and job roles can influence what an individual sees as a dishonest act. Leister 1974 said, ‘that it cannot be rational to trust, twelve strangers of unknown quality’. The act does not in fact provide a definition of fraud, and is general in terms, which could potentially mean that criminal liability is extended. Section 2 of the reformed act is the most broadest in terms, suggesting that if a false representation was created within an email, and was intended to be sent, however was caught in the tracks, the individual would still have the ‘intention’, therefore would be guilty of the full offence. Another broadness issue would be for the provision of ‘unintentional falsity’, section 2(2), states that a statement would be considered as false if it is ‘untrue’ and ‘misleading’, however if an auction house where to sell an item as an original piece, however later on find out that it is a forged piece and the auction house believed at the time that it was the original, but in their industry was aware of the possibility of these types of happenings, they would be guilty under section 1 under the new legislation. However such cases should be let off due to diligence of the jury, allowing the fact that they believe the auction house were in fact unaware of the dishonesty, with the Ghosh test. The Crown Prosecution Service and the Serious Fraud Office have considered that the new changes to the legislation have been beneficial as they have reduced the scope for legal argument and appeals on technicalities. The legal concept of the fraud act being centred with the requirement of dishonest has is some cases made the law clear, in the sense that the term, ‘dishonest’ is easily relatable, and the term incriminates anyone who is to act upon dishonesty. However as there is no set in stone definition of dishonesty, it is left up to the discretion of the jury to decide what is and what is not dishonest. This assessment method suggests that the jury’s opinion will uphold higher in court over morality and the criminal law, which therefore destroys ‘the protection against laws which the ordinary man may regard as harsh and oppressive’. In terms of making the law clear, it has allowed the Fraud Act to be more concise and easily understandable; allowing individuals to be more accountable for their actions with language spoken within the law such as ‘dishonesty’ however it also has its negatives as previously mentioned, the path of the case is in the jury’s hands, which may not always be decent. Bibliography The Law Commision, 'The Law Commision - Fraud' [July 2002] TLCF 1, 5,6,7,8,9 Fraud Act 2006 2006 s 1,2,3,4,5,6,7()() Serious Fraud Office, 'Abuse of Position' (Serious Fraud Office 2014) <https://www.sfo.gov.uk/fraud/fraud-in-your-organisation/abuse-of-position.aspx> accessed 24th March 2014 CPS, 'The Fraud Act 2006' (CPS 2014) <https://www.cps.gov.uk/legal/d_to_g/fraud_act/> accessed 25th March 2014 Farlex, 'Dishonesty' (The free dictionary 2014) <https://www.thefreedictionary.com/dishonesty> accessed 26th March 2014 M Johnson, 'The Fraud Act 2006; The E Crime Prosecutors champion or the creator of new inchoate offence?' [2007] TFA 1, 1.2.3.4.5.6. L. Shu, F. Gino, M. Bazerman, 'Dishonest Deed, Clear Conscience: Self - Preservation through Moral Disengagement and Motivated Forgetting' [2009] DDCD 2, 2,3,4,5,6,78 Willis and Bowring, 'Fraud and dishonesty offences' (Willis and Bowring April 2012) <https://www.willisbowring.com.au/newsletters/criminal-law-newsletter-archive/fraud-and-dishonesty-offences.aspx> accessed 26th March 2014 University of Hertfordshire Higher Education Corporation, 'FRAUD AND CORRUPTION - ANTI-FRAUD AND ANTI-CORRUPTION POLICY' [February 2007] AF&AC 1, 1,2 BBC News, 'What is the Ghosh test for dishonesty?' (BBC News September 2009) <news.bbc.co.uk/1/hi/magazine/8242050.stm> accessed 27th March 2014 Ministry of Justice, 'Post legislative assessment of the Fraud ACt 2006' [June 2012] PLAFA2006 3, 3,4,5,6,7,8,9 1
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The Effects of the Land Registration Act
The system of land registration inaugurated by the Land Registration Act 1925 was a laudable and important step in simplifying the way title to land was recorded and conveyed. In time, however, significant defects began to emerge.” What were those defects and to what extent has the Land Registration Act 2002 provided a cure? Prior to the introduction of a system of land registration, the only way to establish a seller’s right to dispose of a property was from title deeds, searches and inspection of the land itself. The system of registered conveyancing, introduced in the late 19th Century and simplified by a body of legislation created in 1925, offered a single statement of title guaranteed by the State.
The Register purported to operate as a ‘mirror’, reflecting the totality of estates, interests and charges affecting the land so that any prospective purchaser in good faith and for value could be confident that the title they acquired was absolute and indefeasible. If any person suffered loss as a result of an omission or mistake in the Register, they were entitled to be indemnified for that loss (Gray & Gray, pp.1288-1289).
However, it was soon apparent there was no perfect reflection of the state of the title to land at all. The history of the title did not appear on the Register as this was not relevant to the current state; neither did rights affecting the land which were capable of registration but had not been registered. Further, rights obtained by fraud appearing on the Register were not binding, and finally, some rights were protected without the need for registration if they could not easily be registered. These were binding if they could be discovered without looking at the Register or were matters of common knowledge (Carter, p.128).
Consequently, it was not possible to rely on the Register as the “complete record of everything that affects the title” that was envisaged.
It was recognised in time that the 1925 legislation was poorly drafted in a time when registered land was seen as a “procedural adjunct” 1 to unregistered land and the main aim was to minimise the differences between the registered and unregistered systems, rather than achieve a complete and accurate register of title to all land. It is perhaps for this reason that, despite introducing compulsory registration that extended to the whole of England and Wales by 1 December 1990, a large proportion of land still remains unregistered.
Further, the Register did not reflect a wholly accurate picture of all rights and interests in the land.
Too many valuable property rights remained unregistered and this resulted in an unsatisfactory system of uncertainty. An important example of such unregistrable rights can be found in short leases for a fixed term of 21 years or less.
The Regulatory Impact
Assessment of 2001 estimates that there are approximately three million short leases in existence in total, with about 45,000 granted or sold each year. Of these, 6,500 are estimated to be commercial leases with the average new commercial lease term being fifteen years long1, although recent research has suggested that the average length of a lease for commercial property has nearly halved over the last 3 years from 12.8 years to 7.7 years.
However, under the 1925 legislation, these would only be protected as overriding interests. A purchaser for value takes subject to the overriding interest if it subsists at the date of registration of the purchaser’s title.
This position resulted in the register being of little use to those dealing with commercial property of this type1, and promoted a system of uncertainty and lack of transparency. A further problem with the 1925 legislation was that registration did not protect a registered owner against adverse possession of his property by squatters. Under the Land Registration Act (“LRA”) 1925, when a squatter took adverse possession of land, the paper owners had 12 years within which to bring action against the squatters before their right to take action was statute barred.
Generally this involved cases of land theft and boundary disputes, with the RIA reporting millions of pounds worth of property belonging to local authorities in London being successfully claim by squatters in the 1990s and hundreds of cases per year being assessed in relation to plot definitions on new build housing estates1. In addition to providing a lack of security for the land owner that registration of land ought to provide, where a squatter has been in adverse possession of the land, the Register does not accurately mirror ownership as it may be the case that the squatter has acquired title which is not reflected by the Register. Although the paper owner’s title may have been extinguished, the legal estate was still vested in him as registered proprietor.
The squatter had to apply for registration and pending this, the paper owner held the estate on bare trust for the squatter. The squatter’s rights were protected as an overriding interest under Section 70(1)(f) of the LRA 1925.
As there was no requirement that the squatter should be in actual occupation, they might not be discovered from an inspection of the land and may even be unknown to the Vendor, as was the case in Red House Farms where the owner was unaware that the defendant was shooting fowl on his land. Interestingly, the combined effect of Section 75 LRA 1925 and the Limitation Act 1980 was held to be incompatible with Article 1 of the First Protocol of the Convention for the Protection of Human Rights and Fundamental Freedoms. The legislation should not have allowed the removal of the landowner’s property rights without payment of compensation, thus the Court had to reinterpret the statutory provisions in accordance with section 3 of the Human Rights Act 1998 to enable the landowner to retain title to the land.
A further area that arguably caused the most litigation and consequently, desperately required readdressing was the issue of overriding interests.
Under the LRA 1925, these included “incumbrances, interests, rights and powers which are not entered on the register, but override registered dispositions under the Act”. These might include, for example, equitable interests that are openly exercised and enjoyed (but may not be apparent from a single inspection prior to purchase of the property!). Of particular concern, s.70(1)(g) protected the rights of persons in actual occupation of the land or in receipt of rents, save where enquiry had been made of them and their interest had not been disclosed. These rights were usually discoverable from inspection of the property but this has not always been the case, and it was not sufficient just to make enquiries of the Vendor, but necessary to make enquiries of the person benefiting from the overriding interest. Further, any overriding interests existing at the time of registration bound the purchaser, with the exception of those arising under s.70(1)(g) which depended on the date of actual occupation.
Such interests as easements and short leases could, in theory, have been created between completion and registration which bind a purchaser, thus resulting in the problem of the so called ‘registration gap’.
The LRA 2002 came into force on 13 October 2003, although the e-conveyancing sections will not be fully operational for several years. The primary objective of the new legislation, according to the Law Commission Report, is for the Register to be “a complete and accurate reflection of the state of the title of the land at any given time, so that it is possible to investigate title to land online, with the absolute minimum of additional inquiries and inspections.” This appears to be a rewording of the mirror principle which has been one of the fundamental aims of a system of registration, as discussed.
Indeed, in pursuit of this objective, the 2002 Act brings in a number of significant changes which have had great impact on the problems identified with the 1925 legislation.
Most importantly to that objective, the Act extends the type of transactions that are subject to compulsory first registration. These include leases granted for a term of more than seven years and assignments of leases that have more than seven years left to run. As well as providing greater certainty and transparency of title, this will catch far more valuable commercial leases (whilst not affecting shorter, low value residential leases) and make the Register far more useful to those trading in commercial property. Indeed, the ultimate aim of the Law Commission is that all leases granted for more than 3 years will be subject to compulsory registration, and the LRA 2002 reserves power for statutory instruments to be made reducing the period after consultation.
Until such a time, leases of a period of less than seven years (with exceptions) take effect as overriding interests. This is unfortunate as it may result in leases being reduced in length to avoid registration requirements and it again allows for a category of interests that may not appear on the Register, albeit a reduced one.
The Act also catches leases granted to take effect in possession more than 3 months in advance (of any length), thus reducing the possibility of a purchaser taking subject to a lease where the tenant has not yet gone into occupation and whose interest will not be apparent from an inspection of the property. In addition, the Act now allows registration of valuable rights which were not capable of registration under the 1925 legislation, including franchises, profits A prendre in gross, leases with more than 7 years left to run, discontinuous leases, demesne land and land covered by internal waters adjacent to England and Wales. It is however no longer possible to register a manor. These additional categories will ensure that the Register provides a more accurate account of all interests affecting the land.
Further, all legal easements which are expressly created are ineffective unless completed by registration against the title of the servient tenement22, although provision is made for legal easements or profits made by implied grant or by prescription, of which the purchaser knows or could have been discovered from a reasonably careful inspection of the land, or which have been exercised within one year of purchase 22.
Equitable interests are not included but these are instead minor interests binding only if protected by a notice on the Register. This reverses the decision of Celsteel mentioned above. It also provides incentive for registration and again pushes towards a more complete and accurate register. However, despite the significant reforms, not all rights and interests will appear on the title.
As was the case under the 1925 legislation, Public-Private Partnership leases and mines/minerals are not subject to compulsory first registration. Assignments or surrenders of leases to an immediate landlord where the lease merges, nor the assignment of mortgage terms are not caught by the new provisions, neither are transfers of property by operation of law (for example, the vesting of title in personal representatives).
Mortgages by way of demise or sub-demise are also excluded, although these are rare. Arguably, the exclusion of these various rights and interests is incompatible with the main objective of the legislation, to provide an accurate mirror of the title. Further, overriding interests, although modified and reduced under the new legislation, remain an issue although some will lose their overriding status after ten years. Interests that override on first registration are contained in Schedule 1 to the Act whereas interests that override on a registered disposition are contained in Schedule 3.
The most contentious provision of the LRA 1925, section 70(1)(g) is now far more specific and restricted.
It is now necessary for the person to be in actual occupation of the land (reversing the decision in Ferrishust) and receipt of rent or profits alone will not suffice as occupation. As before, inquiry must be made of the person who has the overriding interest although provision is made for persons who could not reasonably have been expected to disclose it.
Importantly, under Paragraph 2(1)(c), a purchaser takes free of the rights of an occupier whose presence would not have been revealed by a reasonably careful inspection of the property, where the purchaser does not have actual knowledge. Significantly, there is no equivalent of s.70(1)(f) in the new Act as it was decided that the system of adverse possession was not consistent with a system of registered title.
The new scheme of adverse possession reflects the fact that the basis of title to registered land is the fact of registration, not possession. Part 9 and Schedule 6 of the 2002 Act provide that Limitation Acts shall not apply to a registered title. Instead, a person who has adversely possessed the land for ten years can apply to the Registry for registration as proprietor.
The present proprietor will then be notified of his application and has two years in which to recover possession of the land, after which the adverse possessor may apply for registration once those two years have expired.
The effect of these changes are to make registered property virtually ‘squatter-proof’ and they offer a good reason for unregistered landowners to consider voluntary first registration to take the benefits of them. Besides offering a greater security to registered landowners, they also solve one of the significant flaws identified earlier in the 1925 legislation in relation to potential purchasers who have no way of discovering a squatter has taken adverse possession. To further ensure that the Register is a complete record, an applicant for registration now has a duty under the new legislation to provide information to the registrar about any unregistered interests affecting the land which override first registration that are within the applicant’s actual knowledge although unfortunately there are no sanctions for failing to comply with this provision.
In conclusion, the provisions of the LRA 2002 have successfully clarified and uncomplicated what was accepted to be a poorly drafted and out of date body of legislation. Whilst not ensuring every interest is included on the title to a registered property, the provisions have greatly widened and extended the scope of the system of registration, offering greater security for landowners, increased transparency and certainty. The number of rights that cannot be or do not have to be registered has been greatly reduced, and a significant number of steps have been taken to ensure that the Register is an accurate, reliable reflection of all matters affecting the land.
Not all problems have been dealt with and whilst matters such as overriding interests continue to exist, the Register will never be complete enough for a purchaser to rely on without making additional extensive enquiries.
Further, the registration gap issue will not be resolved until there is simultaneous completion and registration, which will occur when the e-conveyancing sections are brought into force. There are however proposals in place for continued reform, including reducing the requirement for registration of leases from 7 years to 3 years. These must strike a balance between the objective of achieving a complete Register of title, and the protection of the rights of persons having an interest in the land who cannot register them or do not know to.
References
- Burn, E H (2004) Land Law: Cases and Materials (8th Edition), Oxford University Press, Oxford (for cases/statutes)
- Carter, E, Jones, R, Morgan, G and Paltridge, S (2003) Law: Ownership & Trusteeship – Rights & Responsibilities, Oxford University Press, Oxford
- Cracknell, D G (2005) Land: The Law of Real Property (6th Edition), Old Bailey Press, London (for cases/statutes)
- Department of Constitutional Affairs Website: Land Registration Bill – Regulatory Impact Assessment, June 2001 – https://www.dca.gov.uk/risk/landria.htm [Accessed: 27 December 2005]
- Gray, K & Gray, S F (2005) Elements of Land Law (4th Edition), Oxford University Press, Oxford
- Law Commission Website: Law Commission report: Land Registration for the Twenty First Century: A Conveyancing Revolution – www.lawcom.gov.uk/docs/lc271.pdf [Accessed: 27 December 2005]
- Office of Public Sector Information Website: Land Registration Act 2002: Explanatory Notes Chapter 9 https://www.opsi.gov.uk/acts/en2002/2002en09.htm [Accessed: 27 December 2005]
- PracticalLaw.com Website: https://www.practicallaw.com [Accessed: 27 December 2005]
- Wilkie, M, Luxton, P & Malcolm, R (2005/6) Land Law (5th Edition), Oxford University Press, Oxford
Footnotes
- Land Registration Bill – Regulatory Impact Assessment, June 2001
- British American Cattle Co v Caribe Farm Industries Ltd [1998] 1 WLR 1529 at 1533E-F per Lord Browne Wilkinson
- Gray, K & Gray, S F (2005) Elements of Land Law (4th Edition), Oxford University Press, Oxford
- Carter, E et al (2003) Law: Ownership & Trusteeship – Rights & Responsibilities, Oxford University Press, Oxford
- Overseas Investments Ltd v Simcobuild Construction Limited (1995) 70 P & CR 322 at 327, as per Peter Gibson LJ
- Study by Nelson Bakewell and the Occupiers Property Databank, March 2003
- Section 70(1) Land Registration Act 1925
- Carter, E et al (2003) Law: Ownership & Trusteeship – Rights & Responsibilities, Oxford University Press, Oxford
- Section 17, Limitation Act 1980
- Section 75(1) Land Registration Act 1925
- Red House Farms (Thorndon) Ltd v Catchpole [1977] 2 EGLR 125
- Beaulane Properties Ltd v Palmer, 23 March 2005 (High Court).
- Celsteel Ltd v Alton House Holdings Ltd [1985] 2 All ER 562
- S.70(1)(g) Land Registration Act 1925
- Hodgson v Marks [1971] Ch 892
- Abbey National Building Society v Cann [1991] 1 AC 56
- Law Commission report: Land Registration fo the Twenty First Century: A Conveyancing Revolution, para 1.5
- Land Registration Act 2002 Section 118(1)
- Land Registration Act 2002 Schedule 3 Paragraph 1
- Celsteel Ltd v Alton House Holdings Ltd [1985] 2 All ER 562
- Land Registration Act 2002 Section 4(4)
- Land Registration Act 2002, Section 4(3)
- Land Registration Act 2002, Section 4(5)
- Ferrishust Ltd v Wallcite Ltd [1999] 1 All ER 977
- Wilkie, M et al (2005/6) Land Law (5th Edition), Oxford University Press, Oxford
- Land Registration Act 2002 Section 71(a) and rule 28, Land Registration Rules 2003
- Hypo Mortgage Services Ltd v Robinson [1997] 2 FLR 71
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the Government of India
- WHAT IS RIGHT TO INFORMATION
- INFORMATION THAT IS EXEMPT FROM DISCLOSURE
- WHO CAN ASK FOR INFORMATION?
- WHO WILL GIVE INFORMATION?
- THE MAIN STRUCTURE / ROLE OF PUBLIC INFORMATION OFFICERS:
- ii) Central Public Information Officers (CPIO)
- iii) Appellate Authority
- THE STRUCTURE OF PUBLIC INFORMATION OFFICERS IN STATE BANK OF INDORE:
- b) Central Public Information Officers (CPIO) designated in our Bank
- c) Appellate Authorities designated in our Bank
- 01.'Organisational Structure' is available on the Home Page underA "Overview".
- 02. Powers and duties of Officers/ Employees:
- 03. Procedure followed in the decision-making process, including channels of supervision and accountability:
- 04. The norms set for discharge of functions:
- 05.Rules, Regulations, Instructions, Manuals & Records held under its control for use by employees for discharging their functions:
- 06.Statement of the categories of documents that are held by the Bank:
- 07. Particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof:
- 08. A Statement of the Boards, Councils, Committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible to members of the public:
- 09.Directory of its officers & employees:
- 10.Monthly remuneration received by each of its officers & employees, including the system of compensation as provided in its regulations:
- 11. Budget allocated to each of its Agency, indicating the particulars of all plans, proposed expenditure and reports on disbursements made:
- 12. Manner of execution of subsidy programmes, including amounts allocated and the details of beneficiaries of such programmes:
- 13. Particulars of recipients of concessions, permits or authorisations granted by it:
- 14. Details in respect of information, available to or held by it, in electronic form:
- 15. Particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use:
- Right to Information Act
- Contents
The Government of India has enacted "Right to Information Act 2005" for citizens to secure access to information under the control of Public Authorities in order to promote transparency and accountability in the working of any public authority.
WHAT IS RIGHT TO INFORMATION
The right to information includes access to information which is held by or under the control of any public authority and includes the right to inspect the work, document, records, taking notes, extracts or certified copies of documents / records and certified samples of the materials and obtaining information which is also stored in electronic form.
INFORMATION THAT IS EXEMPT FROM DISCLOSURE
The Act provides under Sections 8 and 9, certain categories of information that are exempt from disclosure to citizens. The members of the public may also refer to the relative sections of the Act, before submitting any request for information.
WHO CAN ASK FOR INFORMATION?
Any citizen can request for information by making an application in writing or through electronic means in English / Hindi / official language of the area, in which the application is being made, together with the prescribed fees.
WHO WILL GIVE INFORMATION?
Any public authority would designate Central Assistant Public Information Officer (C.A.P.I.O.)[[Click here for list]] at various levels, who will receive the requests for information from the public and necessary number of Central Public Information Officers (CPIO) in all administrative units/ offices who will arrange for providing the necessary information to member(s) of the public as permitted under the law. The public authorities are also required to designate authority senior in rank to a CPIO, as Appellate Authorities, who will entertain and dispose off appeals against the decision of the CPIO, as required under the Act. Any person who does not receive the decision from CPIO whether by way of information or rejection within the time frame, may within 30 days from the expiry of period prescribed for furnishing the information or 30 days from the date of receipt of the decisions, prefer an appeal to the Appellate Authority.
THE MAIN STRUCTURE / ROLE OF PUBLIC INFORMATION OFFICERS:
i) Central Assistant Public Information Officers (CAPIO)
The CAPIO will receive the application / request for information or the appeals under the Act and forward the same immediately to the CPIO or the Appellate Authority as the case may be.
ii) Central Public Information Officers (CPIO)
The CPIO is required to process the request for providing the information and dispose of the same; either by providing the information or rejecting the request, within a period of 30 days from the date of receipt of requestA
iii) Appellate Authority
The Appellate Authority will entertain and dispose off appeals against the decision of the CPIO as required under the Act.
THE STRUCTURE OF PUBLIC INFORMATION OFFICERS IN STATE BANK OF INDORE:
a) Central Assistant Public Information Officer (CAPIO) designated in our BankA
- i) Branch Managers of all branches (upto Scale IV incumbency) have been designated as CAPIOs, who will receive the request for information from members of the public and forward to the CPIO for necessary action. ii) In respect of AGM headed branches, AGM of the respective branch has been designated as CAPIO, who will receive the request for information from members of the public and forward to the CPIO for necessary action. iii) In respect of DGM headed branches, Branch Head at the branch has been designated as CAPIO, who will receive the request for information from members of the public and forward to the CPIO for necessary action.
- iv) In respect of Staff Academy, the Head of the Staff Academy has been designated as CAPIO, who will receive the request for information from members of the public and forward to the CPIO for necessary action. v) In respect of Regional Offices, the A.O. (G.B.) of the region has been designated as CAPIO, who will receive the request for information from members of the public and forward to the CPIO for necessary action. vi) In respect of Zonal Offices, Manager (Office Administration) of the zone has been designated as CAPIO, who will receive the request for information from members of the public and forward to the CPIO for necessary action. vii) In respect of Head Office, Chief Manager (Office Administration) has been designated as CAPIO, who will receive the request for information from members of the public and forward to the CPIO for necessary action. viii) In respect of Integrated Treasury, Mumbai; AGM (Domestic Treasury)/ AGM (Forex Treasury) will receive the request for information from members of the public and forward to the CPIO for necessary action.
b) Central Public Information Officers (CPIO) designated in our Bank
- i) Each Branch (upto Scale IV incumbency) has a controller who is normally the Assistant General Manager of the region to which the Branch belongs.A All controllers of such branches will act as CPIO. ii) All AGM headed branches have a DGM of a Zone as controller. All controllers of such branches will act as CPIO. iii) For DGM headed branches, respective General Manager (controlling Authority) will act as CPIO for their respective branches. iv) DGM (HR) at Head Office will be the CPIO for Staff Academy. v) AGMs of regions will be the CPIO for their respective region. vi) A DGMs of zones will be the CPIO for their respective zone. vii) DGM (Compliance) at Head Office will be the CPIO for matters related to Head Office. viii) DGM (Treasury) at Mumbai will be the CPIO for Treasury-related matters.A A A A
c) Appellate Authorities designated in our Bank
The Appellate Authority for all the matters will be GM (P&D) at Head Office.
01.'Organisational Structure' is available on the Home Page underA "Overview".
Funtions of the Bank: Established to do banking and other forms of business mentioned under the Banking Regulations Act, 1949 Acts as agent of State Bank of India.Acts as agent of Reserve Bank of India.
02. Powers and duties of Officers/ Employees:
All Officers have certain financial powers and administrative powers depending upon their positions.A The delegation of financial powers to various grades of officials is decided by the Board of Directors, and is revised from time to time, depending upon the requirements of the Bank, as also Government/RBI guidelines.A Regarding sanction of loans, each officer of the Bank will consider loan proposals and take a decision in terms of the scheme of delegation of powers, on the merits of the proposal(s).A All the officers of the Bank are expected to discharge their duties and responsibilities with integrity and due diligence.
03. Procedure followed in the decision-making process, including channels of supervision and accountability:
There is a well-defined system in the Bank regarding the decision making process. Different officials depending upon their positions and through the committee approach take financial decisions at various levels.A Centralised credit-processing cells are in existence at certain centres for sanction of personal segment loans and loans under SME segment.A Branches source applications and forward them to the respective credit processing cells, for their consideration.A Further, there is a well-defined organisational structure and a clear system of accountability and control system, which also takes into account RBI/CVC guidelines.
04. The norms set for discharge of functions:
The Bank functions with the following core values/norms: Excellence in customer service Profit orientation Fairness in all dealing and relations Risk taking and innovation Integrity Transparency and discipline in policies and systems
05.Rules, Regulations, Instructions, Manuals & Records held under its control for use by employees for discharging their functions:
Bank's Book of Instructions Circulars issued from time to time Job Cards, detailing work procedure
06.Statement of the categories of documents that are held by the Bank:
Licence issued by Reserve Bank of India Register of Share-holders Record of the proceedings of Annual General Meetings, Board meetings, meetings of various committees Documents related to opening of accounts by customers Documents executed by customers, borrowers, guarantors & contracts with third parties
07. Particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof:
Shareholders of the Bank may raise issues concerning policies relating to the Bank at its Annual General Meeting. The Annual report of the Bank may contain the policies of the Bank. Committee on Procedures and Performance Audit on Public Services (C.P.P.A.P.S.) has been formed for the purpose of formulating policy for better customer service / satisfaction.
08. A Statement of the Boards, Councils, Committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible to members of the public:
Bank has formed various Committees for different purposes. The following are some of the important Committees who are managing the key affairs of the Bank. Management Committee Asset Liability Management Committee Audit Committee Executive Committee of the Board Members of the public are not entitled to participate on these Committee meetings and minutes are not accessible to members of the public. However, representatives of shareholders are nominated to the Board of Directors & Executive Committee of the Bank. They are also members of various committees of the Board mentioned above. Further, the Director representing the shareholders is a member of the Customer Service Committee of the Board.
09.Directory of its officers & employees:
A list of supervisory staff is published every year and is available at all branches / offices of the Bank. The Bank on 01.04.2003 has published a list of employees.
10.Monthly remuneration received by each of its officers & employees, including the system of compensation as provided in its regulations:
Salary & allowances is paid to officers & employees of the Bank as defined in the different "settlements" with the Officers' Association & Employees' Union.
11. Budget allocated to each of its Agency, indicating the particulars of all plans, proposed expenditure and reports on disbursements made:
The Government does not allocate any budget to the Bank and the Bank is not subject to any 'plan.' This provision is not applicable to State Bank of Indore.
12. Manner of execution of subsidy programmes, including amounts allocated and the details of beneficiaries of such programmes:
The Bank does not have a subsidy scheme of its own. However, Bank provides finance under Government sponsored programmes, involving subsidy payment by various Government Departments.
13. Particulars of recipients of concessions, permits or authorisations granted by it:
There are no programmes in the Bank for grant of concessions, permits, and authorisations to any person and/or group.
14. Details in respect of information, available to or held by it, in electronic form:
'Organisational Structure' is available on the Home Page underA "Overview". List of Regional/ Zonal offices are available on the Home Page under "Network’ List of Board of Directors are available on the Home Page under "Overview". Composition of Management Committee is available on the Home Page under "Overview". Other Committees is available on the Home Page under "Organisational Structure". 'Citizen's Charter' is available on the Home Page underA "Overview > Corporate Governance >" Fair Practice Code adopted by the Bank is available on the Home Page underA "Overview > Corporate Governance Fair Lending Practice Code adopted by the Bank is available on the Home Page underA "Overview > Corporate Governance >" Model Policy on Deposit is available on the Home Page underA "Deposit Schemes." Service Charges for various services offered is available on the Home Page. A Interest Rates on various loan schemes is available on the Home Page under "Products Services to SSI, NRI, Corporate, etc. are available on the Home Page under "Products." Details of loan schemes offered to the Public are available on the Home Page under "Products." Special Services, Internet Banking, etc. are available on the Home Page.
15. Particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use:
Information on the Bank, as also its various activities is placed on the website of the Bank at https://www.indorebank.org and is accessible to all members of the public. Members of the public may approach any C.A.P.I.O. for further details as to any Banking product / service. The Bank does not provide any library/ reading room facility to members of the public.
Right to Information Act
From Wikipedia, the free encyclopedia Jump to: navigation, search For other uses, see Freedom of information legislation. https://upload.wikimedia.org/wikipedia/en/thumb/f/f2/Edit-clear.svg/40px-Edit-clear.svg.png This article may require cleanup to meet Wikipedia's quality standards. Please improve this article if you can. The talk page may contain suggestions. (July 2010) The Right to Information Act, 2005 (RTI) is a law enacted by the Parliament of India "to provide for setting out the practical regime of right to information for citizens." The Act applies to all States and Union Territories of India, except the State of Jammu and Kashmir - which is covered under a State-level law. Under the provisions of the Act, any citizen (excluding the citizens within J&K) may request information from a "public authority" (a body of Government or "instrumentality of State") which is required to reply expeditiously or within thirty days. The Act also requires every public authority to computerise their records for wide dissemination and to proactively publish certain categories of information so that the citizens need minimum recourse to request for information formally. This law was passed by Parliament on 15 June 2005 and came fully into force on 13 October 2005 [1]. Information disclosure in India was hitherto restricted by the Official Secrets Act 1923 and various other special laws, which the new RTI Act now relaxes.
Contents
1 Background 2 State Level Laws 3 Freedom of Information Act 2002 4 Enactment 5 Scope 6 Information 7 Process 8 What is not open to disclosure? 9 Partial disclosure 10 Exclusions 11 Role of the government 12 Power to make rules 13 Who has the power to deal with the difficulties while implementing this act? 14 Effects 15 External links
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The Illegality of the War on Afghanistan International Law Essay
THE CHARTER OF THE UNITED NATIONS (THE CHARTER)
The Charter prohibits the use and the threatened use of any force in their international relations. The Charter specifically prohibits the use of force to topple foreign governments. It goes without saying that all national and International laws forbid the killing of non-combatants (i.e. arguably all Afghanis) the bombing and other use of force in Afghanistan will inevitably kill and injure large numbers of non-combatants. The October 11 edition of the Vancouver Sun reports 200 people in Afghanistan killed in US bombing raids including 4 United Nations employees. October 13, 2001 reports indicate a residential area hit by a missile. Mass killing of non-combatants is considered by the world community to be the most egregious of crimes. The Preamble to the Rome Statute, in reference to such crimes states, "Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock that conscience of Humanity." The United States, United Kingdom, Canada and Afghanistan are all Member States of the United Nations. The Charter of the United Nations imposes on members the binding obligation to settle disputes in a manner that ensures the maintenance of peace and justice. Article 2 of the Charter prohibits the use or threatened use of force against another state. [See below] The Article 2 prohibition applies to all force and is a rule of customary international law. As such the Article 2 prohibition is universally binding even on the few states not members of the United Nations.' The Article 2 prohibition has been reiterated in numerous resolutions of the UN General Assembly. For example on 17 December 1984 the UN General Assembly passed a resolution affirming the inadmissibility of the policy of State terrorism including actions by States aimed at undermining the sociopolitical systems in other sovereign states. This resolution specifically prohibits the use of military action and contains the demand: "...that all States take no actions aimed at military, intervention and occupation, forcible change in or undermining of the socio-political system of States, destabilization and overthrow of the their Governments and, in particular, initiate no military action to that end under any pretext whatsoever and cease forthwith any such action already in progress." The fact that the attacks on Afghanistan are in response to horrific crimes believed to have been committed by people believed to be hiding in Afghanistan does not provide any legal justification whatsoever. "The Charter is based on the belief that international law should not be enforced at the expense of international peace." Neither can international law be enforced by the commission of more crimes.2 The Preamble to the Charter states the purpose of the United Nations is "to save succeeding generations from the scourge of war".3SECURITY COUNCIL RESOLUTIONS
The United Nations Security Council, (Security Council), the body with primary responsibility for the maintenance of international peace and security, passed two resolutions regarding the September 11 attacks: resolution 1268 on 12 September 2001 and Resolution 1373 on 28 September 2001. Neither resolution authorizes the use of force. Resolution 1373 (2001) adopted by the Security Council at its 4385th meeting on 28 September 2001 (incorporating the earlier resolution of 12 September) affirms the responsibility of Member States to take only those measures that are: "in compliance with national and international law including international human rights standards' to prevent and suppress terrorist attacks and to take action against the perpetrators. Security Council Resolution 1373 specifically restricts member states to actions that are authorized by law and in accordance with the Charter of the United Nations. Canada is already largely in compliance with the directives contained in Resolution 1373 and has promulgated regulations under Canada's United Nations Act to implement provision of the resolution, including prohibiting financing and fundraising and for freezing the assets of terrorist organizations. Article 51 of the Charter defines Member States' right of self-defence. This article neither authorizes bombing and armed force as self-defence nor bestows legal authority for the US to wage war. Article Si gives Member States the narrow power to defend themselves against a continuing armed assault until such time as the Security Council intervenes to maintain and restore peace and security. Article Si of the Charter does not create any right to make retaliatory attacks or to engage in the use of force to repel anticipated armed attacks. The right to self-defense in Article 51 is restricted to actions that are necessary to, repel and proportionate to an ongoing armed attack and only exists until the Security Council takes measures to restore peace and security. The right to self defense is restricted to self defense action and is further restricted to those actions necessary to maintain "international peace and security" and must be carried out in accordance with the Charter. The entire Charter is based on the premise that Member States must maintain international peace, security and justice and may not use force to settle international disputes or to remove foreign governments. Article 51 does not displace the obligation imposed on States by Article 2.4NORTH ATLANTIC TREATY ORGANIZATION RESOLUTIONS
Media coverage also infers that some legal authority for the use of armed force against Afghanistan or the Taliban was created by the resolutions of the North Atlantic Treaty Organization (NATO). That assumption is entirely false and is made clear from its' resolution below. NATO, a regional organization with the goal of restoring and maintaining the security of the North Atlantic area, resolved on September 12 2001 that the September 11 attacks were covered by Article 5 of the Washington Treaty and therefore all NATO members will consider the September 11 attacks as an armed attack against all NATO members. The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognized by Article 51 of the Charter of the United Nations will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such actions as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. Any such armed attack and all measure taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to respect and maintain international peace and security. Article 5, The Washington Treaty.Cite this page
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The Land Registration Act 2002 and its Impact on Interests in Land
A registration scheme far more comprehensive than land charges is found today in the Land Registration Act 2002. The principle significance of this is that the register tells the purchaser who owns the legal estate. The system moreover is not limited to legal estates. Subject to some exceptions (overriding interest), all legal and equitable interest must be entered on the register if they are to bind a purchaser.[1] The first thing to ascertain when dealing with any piece of land is which system of conveyancing is to be applied. And it is clear in the scenario that the land is registered.[2]The purchaser will want to know whether any third parties have rights to the land which might interfere with the intended use of it. Concern about these matters will lead the purchaser to make extensive enquiries before the purchase of the estate is finally concluded.[3] A. Legal leases not exceeding seven years constitute overriding interest and this falls under schedule 3, Para 1 of LRA 2002. Short legal leases are specifically excluded by Para 1 from the category of short leases which override registered disposition. That includes leases which are to take effect in possession more than three months after the date of grant.[4] Polly comes to the cottage after Alisha brought it but Polly was given the lease the previous year. And since Alisha didn’t find any belongings in the cottage before buying we can assume that Polly returned after a year to take possession. In that case Sec.4 (1) (d) applies which makes the lease not an overriding interest. Because such leases mean that there is a real risk that the purchaser might buy the estate without discovering that it is subjected to a lease when the tenant is not necessarily in possession of the land. In such scenarios we can conclude that only the facts matters. And if Polly wants her legal lease to be protected knowing that she won’t be in possession of the cottage for some time she should have made a notice[5] in the register about her lease. But certain interests cannot be protected by notice[6] , one such case is when the lease doesn’t exceed more than three years, interest under a trust of land or restrictive covenants. Since Polly’s lease is for four years it can be entered into the charges register. The fact that an interest is the subject of a notice doesn’t mean that the interest is valid. However, if the interest is valid, the notice ensures both that it binds any purchaser for valuable consideration[7] , and he knows about it before he takes the estate.[8] It is therefore much safer to protect such interests by notice. Once such an entry has been made the interest losses its overriding status[9] , but of course binds a disponee for valuable consideration. B. It is essential to remember that, it is the rights of the occupiers that bind purchasers and not the occupation itself. The claimant must always prove two elements: actual occupation and an interest in land. In National Provincial Bank v Ainsworth[10] it was held that deserted wife’s equity to be a mere personal right against her husband; her occupation made no difference.[11] Judges have regularly emphasized that the question of whether a party is in actual occupation is essentially a question of fact. Lord Wilberforce stated that[12], ‘It is the fact that matters and what is required is physical presence on the land and not some entitlement in law’ this was stated in Abbey National v Cann. In LRA 2002 Schedule 3 , Para 2 if occupation is established but the interest claimed was not known to the purchaser , the question will then be whether the occupation was obvious on reasonable inspection of the land.[13] Wilma daily comes home even for a short while and it is very much unclear whether Alisha didn’t notice that. And the wedding photograph is good evidence to the fact that Wilma may have a share in the land. A thorough search should have taken place in such risky matters which Alisha didn’t. The question is Wilma not being present permanently in the cottage because she was looking after her sick mother which was clearly defined by the case of Chhokar v Chhokar[14]in relation to LRA 1925 were a similar situation has being dealt with. The court of appeal said that it had no difficulty in holding that she was in occupation at the date, and went on to describe her right in the property as an overriding interest. The effect of temporary absence is now being considered by the courts in Link Lending Ltd v Bustard.[15] Occupation of Wilma was obvious enough through the inspection even if Alisha didn’t know about it. This means that provided the occupation is discoverable, the disponee may still be bound by an interest of which she doesn’t know ( Malory Enterprises Ltd v Cheshire [2002] )[16]Nevertheless in Kingsnorth Finance Co Ltd v Tizard[17] provide that there was actual occupation even when the wife was divorced she visited every day to look after her children. Although she was not living there her daily activities might be regarded as sufficient to justify the result. The facts are all important in such a case.[18] The result in Chhokar seems clear, but what if the seller had removed all evidence of the wife. Like in the scenario it is unclear whether Alisha sees possessions of Wilma other than the wedding photograph before sale. And since Bob lies about a divorce Wilma’s claim might be stronger in such a circumstance. The purchaser has a statutory defence to an overriding interest if inquiry is made of the occupier, but the rights are not disclosed.[19] This is a clear hint to a purchaser as to what should be done. Those in actual occupation must be discovered and then asked what their interests are. In practice and in the scenario they tend to rely on the seller’s information. This might be convenient but gives no protection. And when Alisha identified the wedding photograph she should have been careful enough to ask the occupier what their interests are rather than whether she is present or not. This is because there is no need for overriding interest to be the source of the actual occupation.[20] The scenario doesn’t state that Wilma and Bob are divorced so this matter can be taken under Family Law Act 1996, s31 (10), that where one spouse or civil partner owns the family home, the other spouse has a right not to be evicted if already in occupation and a right with a leave of the court to enter and occupy if not already in occupation. And this lasts as long as the marriage continues. Under Sec.31 Wilma’s home rights constitute a charge on the estate or interest of Bob and will bind Alisha in the property for valuable consideration if they are protected by a notice on the register of the title. This acts as an exception to overriding interests and thus binds Alisha. C. Easements and profits can be created expressly or impliedly by granting another person a right over one’s land or by reserving a right over land which one is transferring to another person.[21]Only legal easements are now capable of overriding the register. The LRA 2002 effectively reversed the controversial case of Celsteel Ltd v Alton House Holdings Ltd[22] which held that both legal and equitable easements were overriding within 1925 scheme. But if somehow the deed is registered it loses its overriding status. We can assume that Maxwell’s claim satisfy the requirement for a valid easement as laid down in Re Ellenborough Park.[23]A valid easement can be created by prescription which is long use of land and under Sec 2 of the Prescription Act 1832. The use for many years of a right which is capable of being an easement can create a legal easement by prescription.[24] Prescription arises if an easement has been used openly, as of right, without permission and continuously by one fee simple owner against another, provided that the right could have legitimately been granted by the landowner.[25] Maxwell does use the path openly and even notify Alisha of his right and say he has been using it for any years. It is somewhat unclear whether the prescription is by lost modern grant. Finally, we can come to a conclusion which interests bind Alisha and which does not. The legal lease of Polly doesn’t bind Alisha since there’s lack of physical presence and notice as explained. But the share of Wilma does bind Alisha since she has some equitable rights towards her share of the property. And finally the easement will also bind Alisha through the Prescription Act 1832. Critically examine the rationale for the continued existence of interests which override. “Overriding interests are important and controversial because they contravene the most basic registration principle: they bind purchasers despite not being entered on the Register” Roger Smith, Elements of Land Law (Pearson Longman 2007) In a sense overriding interests are rather like ‘trump cards’ of the registered land system, taking automatic priority to any rights which are subsequently acquired by a person in the land. Not only that, but they can also lead to alteration of the register with no compensation being payable to the purchase. Little wonder then that a former Chief Land Register referred to them as ‘a stumbling block’.[26] When compulsory title registration was introduced, the aim of its creators was to simplify conveyance by placing all the essential information about an estate in land on a register. Thereafter a purchaser intending to buy the land will only have to look up at the register in order to discover all what he needed to know about the property.[27] A major difficulty arose from the category of ‘overriding interest’. The original notion of land registration was that the register would provide a complete record of the title, so that the purchaser will be able to buy it with minimum or other enquiries or inspections.[28] The fundamental principle behind registered land is the 'mirror principle', which is to reflect accurately and completely and beyond all argument the current facts that are material to a man's title. Overriding interests represents the greatest breach in the mirror principle. They were not accidentally created but rather deliberately done by the legislature and given automatic effect precisely because they should be obvious to any prospective purchaser or their enforcement is too important to depend on registration.[29] On the other hand the curtain principle is perhaps the most ambitious motive behind the origin 1925 Act and it remains a key principle under 2002 Act. The aim is to keep certain types of equitable interests off the register completely. As Williams and Glyn’s Bank v Boland shows, if the curtain is not raised the purchaser can easily be bound by such equitable interests. This problem clearly involves striking a balance between protection of the purchaser and protection for the occupier of land and it arose largely due to social and judicial changes.[30] Paragraphs 1 to 3 of Schedule 3 cover three types of interests which were overriding under LRA 1925. They are short leases, rights of persons in actual occupation and easements and profits. Schedule 3, Para 1 shortens the length of a lease from not exceeding 21 years to not exceeding 7 years. And in the future it can reduce to 3 years with the effect of e-conveyancing[31]. The reason why these leases override is that it would be unreasonable to expect short leases to be registered and if they were the register would be cluttered up by them. Under the 1925 Act anyone with proprietary right in property and also in actual occupation could claim an overriding interest. In Williams & Glyn’s Bank v Boland in 1981 defined actual occupation as “It is the fact of occupation that matters and what is required is the physical presence in the land and not some entitlement in law”. However, Schedule 3 of LRA 2002 has reduced the extent to which these interests can bind a purchaser on subsequent registration of title so that a purchaser will not be bound if the occupation would not have been obvious on a reasonable inspection of the land at the time of the disposition. Under LRA 1925 s.70 (1) (a) all legal easements and profits and certain equitable easements[32] were overriding. But this wide category was reduced by LRA 2002 under Schedule 3, Para 3 where only legal easements by prescription or implied easements and profits were overriding. The LRA 2002 effectively reversed the controversial case of Celsteel Ltd v Alton House Holdings Ltd[33] which held that both legal and equitable easements were overriding interests within the 1925 scheme. Under LRA 1925 Sec. 70 (1) (f) a squatter could obtain title after 12 years adverse possession.[34] The new rules introduced by LRA 2002 apply to any squatter who had not completed the 12 year imitation period before the Act came into force on 13th October 2003. The rules are designed to protect the rights of the registered proprietor, and as a result the squatter’s chances of acquiring title to land are greatly reduced by the new scheme.[35] Finally local land charges override but they should be discovered by a local land charges search carried out before purchase. Moreover other interests, such as chancel repair liability will cease to override on 13 October 2013. Thus the ‘snap shot’ is becoming more accurate.[36] Why do we have them? At one time it was argued that the register replaces the title deeds and that the registration system should not protect purchasers in respect of interests not generally found in title deeds. Although this seems correct as historical explanation[37], the law commission has rejected it as an approach fit for the modern law. Their view is that, “In the interest of certainty and of simplifying conveyancing, the class of right which may bind a purchaser otherwise than as the result of an entry in the register should be as narrow as possible but … interests should be overriding where protection against purchasers is needed, yet it is either not reasonable to expect or not sensible to require any entry on the register.”[38] They are also difficult to discover on an inspection of the land.[39] Not surprisingly the 2002 Act is working towards either minimizing or abolishing some overriding interests but has not yet worked out a strategy to eradicate them once and for all.[40] To make them lose their rights would contravene Article 1 of the First Protocol of ECHR. Active promotion of the advantages of registering interests could work in favor of both the purchaser and the beneficiaries of these rights. Times have changed and the importance of moving on cannot be underestimated.[41] This surely illustrates the deepening of the 'crack' in the 'mirror principle' of registered land. In order to narrow the 'crack', the class of overriding interests may be made more certain by narrowing the class. On the grounds of public policy, there will perhaps always be interests which will need protection against the purchaser, where it will be unreasonable to register the interests. Therefore, the extent of the 'crack' can never really get away from third- party interests, which is just as important as having quicker and cheaper conveyancing. Until legislation makes clear specifications on what particular interests can qualify, the concerns of overriding interests will remain. Bibliography Textbooks
- Judith-Anne MacKenzie,Textbook on Land Law(15th, Oxford University Press, 2014)
- Roger J Smith,Property Law(7th, Pearson Education Limited, 2011)
- Martin Dixon , Gerwyn LL H Griffiths and Emma Lees, Q&A Land Law (8th, Routledge, 2013)
Journal Articles
- Matthew Roach, 'the end is nigh for Overriding interests -Or is it?' [Summer 2013 ] 2
- Stewart-Wallace , principles of land registration, p 32
Online resources
- Mangala Murali, 'Overriding Interests –a conundrum of English Land Law' (Law Brief Update October 10, 2012 ) <https://www.lawbriefupdate.com/2012/10/10/overriding-interests-a-conundrum-of-english-land-law/> accessed 1/12/2015
Statues
- Land Registration Act 1925
- Land Registration Act 2002
- Prescription Act 1832
- Limitation Act 1980
- Cases
- Bakewell Management Ltd v Brandwood
- Celsteel Ltd v Alton House Holdings [1985]
- Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204
- Dewan v Lewis [2010] EWCA Civ 1382
- Kingsnorth Finance Co Ltd v Tizard [1986] 1 WLR 783 (Ch D)
- Link Lending Ltd v Bustard [2010] EWCA Civ 424
- Malory Enterprises Ltd v Cheshire [2002]
- National Provincial Bank v Ainsworth [1965] AC 1175
- Re Ellenborough Park [1955] 3 All ER 667
- Williams & Glyn’s Bank Ltd v Boland [1981]
1
[1] Roger J Smith,Property Law(7th, Pearson Education Limited, 2011) 53 [2]If one is not sure whether a registration has been made it can be found out by making an ‘index map search’ which will tell you whether the estate has been registered. Further details may be obtained by making a full search of the register, which since 3 December 1990, can be done without the consent of the estate owner. [3] Judith-Anne MacKenzie,Textbook on Land Law(15th, Oxford University Press, 2014) 38 [4] S.4 (1) (d) [5] The Act defines a notice as ‘ an entry in the register in respect of the burden of an interest affecting a registered estate or charge’ S.32(1) [6] S.33 [7] S 32(3) [8] Judith-Anne MacKenzie,Textbook on Land Law(15th, Oxford University Press, 2014) 106 [9] S 29(3) [10][1965] AC 1175 [11] Roger J Smith,Property Law(7th, Pearson Education Limited, 2011) 254 [12] Williams & Glyn’s Bank Ltd v Boland [1981] [13] Judith-Anne MacKenzie,Textbook on Land Law(15th, Oxford University Press, 2014) 118-119 [14] [15] [2010] EWCA Civ 424 [16] Judith-Anne MacKenzie,Textbook on Land Law(15th, Oxford University Press, 2014) 115 [17] [1986] 1 WLR 783 (Ch D) [18] Judith-Anne MacKenzie,Textbook on Land Law(15th, Oxford University Press, 2014) 115 [19] Sch3 Para 2b [20] Roger J Smith,Property Law(7th, Pearson Education Limited, 2011) 264 [21] Judith-Anne MacKenzie,Textbook on Land Law(15th, Oxford University Press, 2014) 111 [22] [1985] 1 WLR 204 [23] [1955] 3 All ER 667 [24] The role of this doctrine was summarized in Dewan v Lewis [2010] EWCA Civ 1382 [25] Bakewell Management Ltd v Brandwood [26] Roger J Smith,Property Law(7th, Pearson Education Limited, 2011) 251 [27] Judith-Anne MacKenzie,Textbook on Land Law(15th, Oxford University Press, 2014) 86 [28] Judith-Anne MacKenzie,Textbook on Land Law(15th, Oxford University Press, 2014) 86 [29] Martin Dixon , Gerwyn LL H Griffiths and Emma Lees, Q&A Land Law (8th, Routledge, 2013) 10 [30] ibid [31] The introduction of e-conveyancing will have tremendous significance for the operation of the registered title system. It will only remove the gap between execution and registration which , as we have seen , can cause problems , but will also reduce very considerably the number of interests which can be created ‘off the register’. [32] Celsteel ltd v Alton House Holdings [1985] [33] [1986] 1 WLR 512 [34] Even if the squatter is no longer in possession at the date of disposition. [35] Judith-Anne MacKenzie,Textbook on Land Law(15th, Oxford University Press, 2014) 141 [36] Martin Dixon , Gerwyn LL H Griffiths and Emma Lees, Q&A Land Law (8th, Routledge, 2013) 21 [37] Stewart-Wallace , principles of land registration, p 32 [38] Another important factor permeating the changes introduced by LRA 2002 is the extent to which a purchaser may be expected to discover these interests without making extensive inquiries. “Because overriding interests bind transferees of the land even though they are by definition, not protected on the register, they are widely acknowledged to be potential source of difficulty in registered conveyancing” The law commission report no254 1998 [39] Examples include rights of an occupier of land, a lease for a term of less than seven years, profits a prendre (fishing rights or shooting or hunting rights). [40] The rights of persons in actual occupation present formidable challenges for reformists and it is this area of law that professionals must work on to find a conducive solution. [41] Mangala Murali, 'Overriding Interests –a conundrum of English Land Law' (Law Brief Update October 10, 2012 ) <https://www.lawbriefupdate.com/2012/10/10/overriding-interests-a-conundrum-of-english-land-law/> accessed 1/12/2015
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The History of Legal Aid Law Essay
The earliest Legal Aid movement was started in the year 1851 when there was an enactment introduced in France for providing legal assistance to the indigent. In Britain the effort of the state to provide legal services to the poor and needy goes back to 1944, when lord chancellor, Viscount Simon appointed the Rushcliffe Committee headed by Lord Rushcliffe to enquire about the existing facilities in England and Wales for giving legal aid advice to the poor. [1] This committee also made the desirable recommendations ensuring that the persons in need of the legal advice are provided the same by the state. The recommendations of the Rushcliffe Committee were submitted to British Parliament, which resulted in the enactment of Legal Aid and Advice Act, 1949. In 1945, the Rushcliffe Committee report was brought to the attention of the Government of India. The credit for drawing the attention of the government of India to this important question goes to the Bombay Legal Aid Society who invited the attention of the Government of India to the report of the Rushcliffe Committee.
The Bombay Legal Aid Society in their letter [2] suggested the appointment of a similar committee in India to examine the problem of Legal Aid. In 1946, the provincial government was of the opinion that the provisions for the grant of legal aid in civil cases were sufficient but the same for the criminal cases needed to be liberalized. After the correspondence between the Government of India and the Provincial Government the resolution was passed in the Bombay Legislative Council and the Bombay State Assembly. The Government of Bombay appointed a committee under the Chairmanship of Mr. Justice NH Bhagwati [3] to consider the question of grant of legal aid in civil and criminal proceedings to poor persons, persons of limited means and the persons of backward classes to make justice easily accessible to these persons. The committee threw responsibility on State to provide free legal aid for those who could not have access to the Courts of Law due to scarcity of means and guidance. The committee also recommended a four-tier [4] machinery for giving legal aid.
These recommendations could not be implemented. In the same year (1949), the Government of West Bengal also set up a committee on ‘Legal Aid and Legal Advice’ under the chairmanship of Sir Arthur Trevor Harries [5] . The committee recommended to give legal assistance to the poor. The report of the committee could not be implemented due to lack of requisite funds. Since 1952, the Government of India also started addressing to the question of legal aid for the poor in various conferences of Law Ministers and Law Commissions.
The first law commission, 1958 in its fourteenth report [6] presented a detailed thought of legal aid with a strong plea to implement the Bhagwati and Harries reports. The 14th Law Commission Report stated the fact that ‘if laws do not provide for an equality of opportunity to seek justice to all segments of society, then they have no protective value and unless some arrangement is made for providing a poor man the means to pay Court fee’s, advocates fees and other incidental costs of litigation, he is denied an opportunity to seek justice.’A
[7] In 1960, the union government prepared an outline for legal aid scheme and forwarded it to various legal aid organisations and States for their comments. The state government in a conference of the State Law Ministers expressed their inability to allocate funds for the purpose of the legal aid schemes. The Third All India Lawyers conference in 1962, further considered the question of legal aid. It was suggested that legal aid was an obligation of both State and Central Government and for this purpose they should provide funds. In 1970, the National Conference was convened in New Delhhi on ‘Legal Aid and Legal Advice’. This conference emphasised that it was constitutional obligation of the state to make provision for Legal Aid to the weaker sections having no means.
Justice P.N Bhagwati [8] was the chairman of the Legal Aid Committee which was appointed by the Government of Gujarat for the first time for suggesting ways and means of providing free legal aid and advice to the poor and weaker section of the community. The aim of the committee was to make recommendations so as to render legal advice more easily available and to make justice more easily accessible to such persons, including recommendations on the question of encouragements and financial assistance to institutions engaged in the work of such legal aid [9] . P.N Bhagwati observed ” even while retaining the adversary system, some changes may be effected whereby the judge is given a greater participatory role in the trail so as to place poor, as far as possible, on a footing of equality with the rich in the administration of justice.” [10] The focus of the committee was the indigent person seeking to access justice. The report stated that there can be no rule of law unless the common man irrespective of the fact whether he is rich or poor is able to claim and justify to the rights given to him by the law. The machinery of law should be readily accessible to all. The poor must be placed in the same position as the rich by means of adequate legal service programme. It stated that the inequality between the rich and the poor in administration of the justice can be removed by establishing and developing effective system of the legal aid programme.
Legal aid and advice should be regarded not as a matter of charity or bounty but as a matter of right. [11] The judicial attitude towards legal aid was not very progressive. In Janardhan Reddy v. State of Hyderabad [12] and Tara Singh v. State of Punjab [13] , the court, while taking a very restrictive interpretation of statutory provisions giving a person the right to lawyer, opined that this was, “a privilege given to accused and it is his duty to ask for a lawyer if he wants to engage one or get his relations to engage one for him. The only duty cast on the Magistrate is to afford him the necessary opportunity (to do so). “Even in capital punishment cases the early Supreme Court seemed relentless when it declared that “it cannot be laid down in every capital case where the accused is unrepresented the trial is vitiated.” To revive the programme, the Government of India formed an Expert committee for Legal Aid in 1972, under the chairmanship of Justice Krishna Iyer [14] . The committee submitted a report in 1973 on Legal Aid known as the “Processionals Justice to Poor” [15] . This report came to mark the cornerstone of Legal Aid Development in India. The reportA dealt with the nexus between law and poverty, and spoke of PIL in this context. It emphasized the need for active and widespread legal aid system that enabled law to reach the people, rather than requiring people to reach the law. The report clearly laid down that it is an obligation of the State to ensure that the legal system becomes an effective tool in helping secure the ends of social justice. [16] Justice Krishna Iyer rightly observed that, “Such a consummation, a proposition to which we are constitutionally dedicated is possible only through an activist scheme of legal aid, conceived wisely and executed vigorously.” [17] A He even said that Law and Justice cannot be regarded as two separate wings any longer and that it had become necessary that they together work towards restoring the faith of the poor man in the legal system by providing him with adequate legal assistance. Justice Krishna Iyer regarded the Legal Aid program as a catalyst which would enable the aggrieved masses to re-assert State responsibility under Part IV of the Constitution. He also said that poverty is a creation of unjust institutions and unjust society.
Thus the legal aid programme aimed at revamping the socio-economic structure by way of removing the socially unjust institutions and creating a new order based upon the ethos of human liberty, equality and dignity of mankind. He realised the fact that though the system had been flagged off under the termA “We the people of India”A it had no longer continued in the same direction want of procedural formalities had taken precedence over the people at the cost of which justice often suffered casualties The expert committee appointed under the chairmanship of justice Krishna Iyer has made significant contribution toward the development of the concept of legal aid in India. A national legal service authority accountable to the parliament but protected from official control was recommended. Simplification of the legal procedure and an emphasis on conciliated settlement outside court has to be the policy of legal aid schemes. The report adopted the three fold test laid down for determining eligibility: Means test- to determine people entitled to legal aid Prima facie test- to determine whether there was a prima facie case to give legal aid or not Reasonableness test- to see whether the defence sought by a person is ethical and moral. In criminal proceedings the committee is not in favour of guaranteeing legal aid to habitual offenders and in cases, which essentially involve private claims. Regular arrangement for aid and advice to the undertrials was to be provided. A liberalized bail policy which was not to be dependent on financial consideration Legal services were to be extended to investigation as well as post conviction stage. Legal services should also include rehabilitative services. In criminal legal aid, the committee was in favour of salaried lawyers.
The report also encourages payment of compensation to victims in criminal cases. Family courts should be established for women and children with women judges this is specially required in slum areas and rural villages.
Public defence council should be appointed in children’s court. In backward areas, legal advice bureau should be established in each development block. The report encourages the involvement of law students in legal aid schemes particularly for preventive legal services. Public law service should be an alternative available as against the private bar and legal services authority should fix the fees payable to the lawyer. There was unanimous decision of the Committee that the State should regard it as an obligation to provide legal assistance to the poor and indigent. It stated that this obligation of the State was not merely, socio-economic or political but is also constitutional by reason of Articles 14 [18] and 22(1) [19] . Further the report stated that the legislation and rules so made by the government should not be another piece of legislation made with the reference of any foreign legislation as there is a marked difference between socio-economic conditions prevailing in advanced countries and those prevailing in developing countries like India. It also emphasized on having legal aid programmes and that the organization for effectuating the legal service programme must be responsive to the poor in giving legal service and must not be mechanical and wooden in its approach. Even after, such a programme is introduced there must be a continuous examination of its utility and its responsiveness to the poor. The two judges joined forces as a two-member committee on juridicare, released its final report entitled “Report on National Juridicare: equal justice- social justice, 1977” hereinafter, referred to as the 1977 report [20] . The report while emphasising the need for a new philosophy of legal service programme cautioned that it ‘must be framed in the light of socio-economic conditions prevailing in the Country’. It further noted that ‘the traditional legal service programme which is essentially Court or litigation oriented, cannot meet the specific needs and the peculiar problems of the poor in our country’. The report also included draft legislation for legal services and referred to Social Action Litigation. It recognises the fact that much of our law was created by the British to suit their convenience and as a result of this it is mostly insensitive to the socio-economic problems of the masses it set out to govern and regulate.
This report [21] also made an effort to classify those categories of persons who are most in need of legal aid are as follows-A Those persons belonging to the Scheduled Castes or Scheduled Tribes Those persons who either by reason of being inhabitants of backward areas or who are so geographically placed that their voice cannot reach the Courts of justice The poor in general The workman and the peasantry class who toil and labour to earn rewards for their hard work of which they are often deprived. Those soldiers and armed forces personnel Women and children who are deprived social justice on grounds of biological infirmity. Untouchables or those who are referred to as Harijans and who even after abolition of Untouchability under Article 17 of the Indian Constitution are shunned by the Administrative class on the ground of their unacceptance in the community. One of the purpose for setting up the committee was that ‘the central government is of the view that an adequate and vigorous legal service program is necessary to be establish in all the states in the country on a uniform basis’. The terms of reference of the Juridicare committee included making ‘recommendations for the establishing and operating comprehensive and a dynamic legal service program for effective implementations of the socio economic measures taken or to be taken by the government including formulation of scheme (s) for legal services.’ The 1977 report focused on the infrastructure of the legal services of the organization and clearly stated that it was not to be a department of the government but an autonomous institution headed by the Judge of the Supreme Court. The body would have representations from Bar Associations, the Government, the Parliament and the judiciary as well as voluntary associations and social workers and that there would be a multi tier set up for the legal aid organization. The 1977 report was an amalgamation of the 1971 Gujarat report and the 1973 report but absence of certain aspects of the legal services was noticeable. For instance, both the 1971 Report and the 1973 report dealt with the issues arising from the criminal justice separately. Hence it may be stated that except saying that it was continuation of the earlier reports, the 1977 Report made no reference to these aspects. The continuation with the earlier reports was also evident in the reiteration by the 1977 Report of the failures of the traditional legal services programme. The goals of the preventive legal services programme, advocated forcefully by the 1971 Report were recapuliated in this report, it stated that while the endeavor would be to launch a frontal attack on the problem of the poverty, the legal service programme would have to be directed towards providing representation to ‘groups of social and economic protest’andA ‘must encourage group oriented and institution directed approach to the problem of poverty’. The other goals that were reiterated were: the programme ‘should not identify lawyers with the law but should even pose them against law, wherever law is the reflection of an unjust social order’, it had to recognize the inter relatedness of social, legal, educational and psychological problems which beset the poor; the content of the legal services programme was to include spreading of awareness amongst the poor about their rights, tackling the class problems of the poor, initiating socio-legal research into the problems with a view to bringing about reform in law and administration and helping different groups of the poor to organize themselves. [22] The 1977 report envisaged several modes of delivery of legal services.
The primary mode would be the providing of legal advice through various legal aid offices having both salaried lawyers and assigned lawyers. A whole Chapter was devoted to PIL: and legal aid. It was suggested that the Advocates Act, 1961 be amended to recognize and permit provision of legal aid by law teachers and students. The report clearly stated that the funding of the legal aid programme was the state responsibility and for this identified sources such as court fees collected from the litigants, legal aid steps, levy of special cess, donations and many more for the purpose of funding the legal aid programme and so on. Though the ideas as laid down by the Report was revolutionary but not much that was mentioned in the report was implemented as the government that had appointed the Juridicare committee was not in power when the 1977 report was submitted. The 1977 report remained on the shelf along with it the National legal Services Bill. Though the congress was voted back to power in 1980 but it was too enthusiastic about the 1977 Report. A committee at the national level was constituted to oversee and supervise legal aid programmes throughout the country under the Chairmanship of Justice Bhagwati [23] . This committee came to be known as CILAS [24] and started monitoring legal aid activities throughout the country.
The introduction of Lok Adalats added a new chapter to the justice dispensation system of this country and succeeded in providing a supplementary forum to the litigants for conciliatory settlement of their disputes. In 1987, the Legal Services Authorities Act was enacted, thus crystallising a uniform statutory base for the concept of legal aid throughout the country.
Constitutional and Statutory Provisions on Legal Aid
Supreme Court on Legal Aid
The linkage between Article 21 and the right to free legal aid was forged in the decision in Hussainara Khatoon v. State of Bihar [25] where the court was appalled at the plight of thousands of undertrials languishing in the jails in Bihar for years on end without ever being represented by a lawyer. The court declared that “there can be no doubt that speedy trial, and by speedy trial, we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.” The court pointed out that Article 39-A emphasised that free legal service was an inalienable element of ‘reasonable, fair and just’ procedure and that the right to free legal services was implicit in the guarantee of Article 21. In his inimitable style Justice Bhagwati declared: “Legal aid is really nothing else but equal justice in action. Legal aid is in fact the delivery system of social justice. If free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening Article 21 and we have no doubt that every State Government would try to avoid such a possible eventuality”. Further in the case of Hussainara Khatoon & Ors. (V) v. Home Secretary, State of Bihar [26 In the case ofA Khatri & Ors. (II) v. State of Bihar & Ors [27] It held that “the state is constitutionally bound to provide such aid not only at the stage of trial but also when they are first produced before the magistrate or remanded from time to time and that such a right cannot be denied on the ground of financial constraints or administrative inability or that the accused did not ask for it. Magistrates and Sessions Judges must inform the accused of such rights.
The right to free legal services is an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 and the State is under a constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer. The State cannot avoid this obligation by pleading financial or administrative inability or that none of the aggrieved prisoners asked for any legal aid at the expense of the State. The only qualification would be that the offence charged against the accused is such that on conviction, it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and the needs of social justice require that he should be given free legal representation. There may, however, be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal or child abuse and the like, where social justice may require that free legal services need not be provided by the State.” “Right to free legal aid, just, fail and reasonable procedures is a fundamental right (Khatoon’s Case). It is elementary that the jeopardy to his personal liberty arises as soon as the person is arrested and is produced before a magistrate for it is at this stage that he gets the 1st opportunity to apply for bail and obtain his release as also to resist remain to police or jail custody. This is the stage at which and accused person needs competent legal advice and representation. No procedure can be said to be just, fair and reasonable which denies legal advice representation to the accused at this stage.
Thus, state is under a constitutional obligation to provide free to aid to the accused not only at the stage of….A Every individual of the society are entitled as a matter of prerogative.” He repeated inA Suk Das v. Union Territory of Arunachal Pradesh [28] A and said A “It may therefore now be taken as settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21.”A Justice Krishna Iyer inA M.H. Hoskot v. State of MaharashtraA [29] , declared “If a prisoner sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of appeal inclusive of special leave to appeal (to the Supreme Court) for want of legal assistance, there is implicit in the Court under Article 142 read with Articles 21 and 39-A of the Constitution, power to assign counsel for such imprisoned individual ‘for doing complete justice. Justice Bhagwati in the case of Kara Aphasia v. State of Bihar [30] where the petitioners were young boys of 12-13 years when arrested, and were still languishing in jail for over 8 years. They also alleged to have been kept in leg irons and forced to do work outside the jail, directed that the petitioners must be provided legal representation by a fairly competent lawyer at the cost of the State, since legal aid in a criminal case is a fundamental right implicit in Article 21. In Centre forA Legal Research & Anr. v. State of Kerala [31] A , Chief Justice Bhagwati took a step further and laid down norms or guide-lines laid down for State to follow in giving support and cooperation to voluntary organizations and social action groups in operating legal aid programmers and organizing legal aid camps and lok adalats or niti melas. While delivering the judgment Bhagwati, C.J., stated that the writ petition raised a question as to whether voluntary organizations or social action groups engaged in the legal aid programmed should be supported by the State Government and if so to what extent and under what conditions. “There can be no doubt that if the legal aid programme is to succeed it must involve public participation.
The State Government undoubtedly has an obligation under Article 39-A of the Constitution which embodies a directive principle of State policy to set up a comprehensive and effective legal aid programme in order to ensure that the operation of the legal system promotes justice on the basis of equality. But we have no doubt that despite the sense of social commitment which animates many of our officers in the Administration, no legal aid programme can succeed in reaching the people if its operations remains confined in the hands of the Administration. It is absolutely essential that people should be involved in the legal aid programme because the legal aid programme is not charity or bounty but it is a social entitlement of the people and those in need of legal assistance cannot be looked upon as mere beneficiaries of the legal aid programme but they should be regarded as participants in it. If we want to secure people’s participation and involvement in the legal aid programme, we think the best way of securing it is to operate through voluntary organizations and social action groups. These organizations are working amongst the deprived and vulnerable sections of the community at the grass-root level and they know what are the problems and difficulties encountered by these neglected sections of Indian humanity. It is now acknowledged throughout the country that the legal aid programme which is needed for the purpose of reaching social justice to the people cannot afford to remain confined to the traditional or litigation oriented legal aid programme but it must, taking into account the socio-economic conditions prevailing in the country, adopt a more dynamic posture and take within its sweep what we may call strategic legal aid programme camps, encouragement of public interest litigation and holding of lok adalats or niti melas for bringing about settlements of disputes whether pending in courts or outside. The assistance of voluntary agencies and social action groups must therefore be taken by the State for the purpose of operating the legal aid programme in its widest and most comprehensive sense, and this is an obligation which flows directly from Article 39-A of the Constitution. It is also necessary to lay down norms which should guide the State in lending its encouragement and support to voluntary organizations and social action groups in operating legal aid programmes and organizing legal aid camps and lok adalats or niti melas. We are of the view that the following norms should provide sufficient guidance to the State in this behalf and we would direct that the State Government shall, in compliance with its obligations under Article 39-A of the Constitution extend its cooperation and support to the following categories of voluntary organizations and social action groups in running the legal aid programme and organizing legal aid camps and lok adalats or niti melas.” InA Indira Gandhi v. Raj Narain [32] A the Court said: “Rule of Law is basic structure of constitution of india.
Every individual is guaranteed “Rule Of Law is basic structure of constitution of India. Every individual is guaranteed the rights given to him under the constitution. No one so condemn unheard. Equality of justice. There ought to be a violation to the fundamental right or prerogatives, or privileges, only then remedy go to Court of Law. But also at the stage when he first is produced before the magistrate. In absence of legal aid, trial is vitiated.”
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The Independence of the Judiciary in Constitutional Law
[1] Judeo-Christian is a term used since the 1950s to encompass the common ethical standards of Christianity and Judaism, such as the Ten Commandments. It has become part of American civil religion and is often used to promote inter-religious cooperation. Efforts in recent years have been made to replace the term Judeo-Christian with “Abrahamic religions”, so as to include Islam. The term is also used by scholars to refer to the connections between the precursors of Christianity and Rabbinic Judaism in the Second Temple period. [2] Lina Joy v Majlis Agama Islam Wilayah Persekutuan & 2 Ors 2005 [CA]. [3] Public Prosecutor v Dato’ Seri Anwar bin Ibrahim & Anor [2001] 3 MLJ 193. [4]. Tun Dato’ Haji Mohamed Salleh bin Abas v Tan Sri Dato Abdul Hamid bin Omar & Ors 1988[SC]. [5] Re Inquest into The Death of Teoh Beng Hock, Deceased [2012] 1 SMC 19, Magistrate’s Court, Shah Alam, Azmil Mustapha Abas MG, 5 January 2011 [6] Rulers Woolf, Bingham and comparative.
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The Effects of Illegal Fishing
Illegal Fishing
A A A A A A A A Fishing industries around the country goes through a thin line of fishing illegally. It happens in other foreign countries and mainly in northern part of the world. By getting caught is a big risk that you might have to take, but end up of the short side of the stick. However, there is always other way to prevent you of fishing legally by using right documents and procedure to fish the right way.Meaning
A A A A A A A A The term IUU fishing is define as illegal, unreported, and unregulated fishing as “it is known more of a wide range of irresponsible activity” (IUU, 2002). Also in the Webster dictionary” illegal” defines as” Not according to, or authorized by, law; specif., contrary to, or in violation of, human law; unlawful; illicit; hence, immoral; as, an illegal act; illegal trade; illegal love” (Illegal, 2009). Therefore, knowing the terminology of the IUU and illegal will give an insight of the main theme of the paper.History
A A A A A A A A Fishing goes back way in ancient times when fishing for food was the first step of learning how to live on your own. Also in ancient times, "The oldest known painting of an angler using a rod or staff comes from Egypt and history dates it from about 2000 BC "(History, 2010). A proof of these logical paintings gives a point of view how the early ages survived. In 1946, an English prioress Dame Juliana Berner, who wrote the book "Treatyse of fysshynge with an angle ". "The book established the basic foundations of angling knowledge" (History, 2010). Also, learning to detail how to construct fishing hooks and rod, that it was just the first stages of knowing how to fish. The first "Reel device was invented in England during the 18th century, although some speculate that the Chinese may have designed a basic reel earlier, in 3rd century CE" (History, 2010) . However, with the development with new technology equipments and a high knowledge of the behavior of species. The sport of fishing in this present day has become a popular sport across the country. Therefore, "In 1939 the international Game Fish Association was established to protect game fish and their habitats, based on the premise that maintaining stable fish populations would ensure the future of the sports" (History, 2010).Economy Effect on Fishing
A A A A A A A A During the past time of worldwide fishing, the sport became a booming success across the country. But in this present day, professional fishers trying to keep their sponsors during a tough time in the economy. In the article "Economy has chilling effect on fishing, boating" posted by J.R Absher talks about keeping the sport alive while the economy is going through some rough times. According to Mike Bolton, an outdoor writer for the Birmingham, ALA saying "Everybody is losing sponsors," pro angler Randy Howell told Bolton. "Greg Hackey and Marty Stone have lost Advance Auto parts, GE silicone has pulled out. We're keeping the lure companies, but the big, non-endemic sponsors are saying they can’t do it right now" (Economy Effect, 2009).A Looking at the outcome not only of fishing is hurting in this time of crisis. Boating and outdoor shows are canceling out the effect of the economy. "Baltimore Sun by its longtime outdoors writer Candus Thompson, who wrote that the promoters of some of the East Coast's largest fishing, boating and outdoor shows usually held this time of the year are scaling back or canceling shows altogether" (Economy Effect 2009). No matter what happens to economy, the fishing world will be back into shape.Illegal Fishing in Countries
A A A A A A A A Throughout the fishing world, illegal foreign fishing had been arising across ocean boarders. I will talk two main areas in ocean boarders that are highly alert in illegal fishing. First area is in the Australian maritime areas, that the border protection command works closely with other agencies to protect coastal region. The illegal foreign fishing is a problem in Australia, that it gives proximity to other countries with survival of communities. In the fact sheet of "Australian Government Border Protection Command" ask why is illegal foreign fishing is a problem? It is "High demand for products such as shark fin, troches shell, trepang (sea cucumber) and tropical rock lobster, some of which are considered over fished species, can make illegal foreign fishing a profitable enterprise" (Illegal fishing 2009).A There is the reason why illegal fishing is a wide known aware of protecting our seas. Indian ocean broader in Accra, Rome "A group of 50 participants from 13 countries in the Indian Ocean region are strategizing on how to toughen up controls in coastal ports in order to better combat illegal"(Illegal Fishing 2007). To have tighter controls in sea ports, that will make a hard for illegal fisherman to offload and refuel. Also they have come to deal of "Enhanced "port state measures" such as port inspection schemes and information systems, which can be effectively linked to enforcement tools such as blacklisting of A IIU fishing vessels, trade measures and requiring vessels to participate in vessel monitoring system (VMS) programs" (Illegal Fishing 2007).A This idea will bring a stop in the illegal fishing and become a warning to fishers to be aware. The IUU (Illegal, Unregulated, Unreported) fishing in the Indian Ocean always has a problem with fishers such as “Fishing without permission or out of season; harvesting prohibited species; using outlawed types of fishing gear; disregarding catch quotas; or non-reporting or underreporting catch weights” (Illegal Fishing, 2007). All these activities are all red flags in the illegal fishing world. However an article in the FAO (Food and Agriculture Organization) talks about the issues planning ways of blocking ports from ships that is fishing illegal. According to Ichiro Nomura an (FAO Assistant Director-General for fishers) says that all countries are responsible and must work together to put an ending on illegal fishing. In other areas “Catches of commercially valuable fish species may be surpassing permitted levels by over 300% due to IUU fishing, according to reports made to FAO by regional fishers bodies” (Illegal Fishing, 2004). Looking at the stats on the issue of illegal fishing, it is a big problem that we cannot put aside. The sea ports needs to have a tighter control of what is happening out there and need to keep track on what ships coming in and out of the seas ports. In the data report in the IUU fishing organization, countries lose a lot of profit from other vessels fishing illegally. In a "Reviewing the situation in 54 countries and on the high seas, the authors estimate that lower and upper estimates of the total value of current illegal and unreported fishing losses worldwide are between $10 million and 23.5 million annually, representing between 11 and 26 million tonnes" (Illegal Fishing, 2008). Looking at these results is a very shocking that fishing vessels would do anything to make their quota.Prevention
A A A A A A A A The prevention process of IUU fishing is plain and simple to all countries. There are different responsibilities that all countries need to apply. The prevention to all countries should go by the code of conduct of IPOA-IUU (International Plan of Action). The book is for "helping familiarize FAO (Food, Agriculture, and Organization) members and others with tools; suggest which tools to user in particular circumstances; and providing guidance on how to use the tools effectively"(IUU Fishing, 2002). In addition, countries should participate in international network for the cooperation and coordination of fisheries-related monitoring, control and surveillance activities across the country (IUU Fishing, 2002). Flag countries are "Countries that register fishing vessels and authorize vessels to fly their flags" (IUU Fishing, 2002). The prevention of the flag country is making sure the fishing vessel have updated registration, record, and authorization to fish in the area. Also have other responsible control fishing activities for fishing and support vessels. For example, "transport vessels that receive the catch of fishing vessels and supply vessels that bring fuel and provisions to fishing vessels" (IUU Fishing, 2002). The coastal and postal countries have different responsibility but in a way work together with a flag country. The tools for need is "Keeping a record of foreign vessels authorized to fish in its waters; requiring foreign vessels to use VMS, such that the coastal country has real time or near real time access to vessel positions and receives regular data reports by VMS, and requiring foreign vessels, or a certain percentage of them, to carry independent observers" (IUU Fishing, 2002).A However port countries are became very strict of nailing down IUU fishing. Also having similar requirements as Flag countries of vessels needed to have up dated records, permits to fish, and etc. However, if a port country has a reasonable of suspecting IUU fishing on their ports. They should "Not to allow the vessel to land or transship fish in it port; immediately report the matter to the flag country, and if the suspected IUU fishing may have taken place in another country waters or in waters regulated by a regional fishery organization, immediately report the matter to that country or organization" (Illegal Fishing, 2002).Consequences
The consequences is very harsh of getting caught of fishing illegal and might end up doing some jail time. Also fishing companies get hit up with fines and ban through couple years. In the consequences of IUU Fishing for Fishery Information and Management has a precautionary approach. The "Wide range reference in the Code of Conduct for Responsible FisheriesA and the UN Fish Stocks Agreement, and it is implicit in the FAO Compliance Agreement since this agreement forms an integral part of the Code. Article 6.2 of the Fish Stocks Agreement is explicit on information: "States shall be more cautious when information is uncertain, unreliable or inadequate. The absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures" (Illegal Fishing, 2002). Making sure of having the right documents and being responsible with their actions, fishing companies do not have to go through the harsh consequences. In this present day, ports all over the country are having tighter control and camera surveillance around their surroundings. It is just another way, of minimize the control of illegal fishing and being a look out for those who breaks the IUU code of conduct.Conclusion
Illegal fishing is a big problem and citizen like us should be involved of what is going on in our oceans. However, "The IPOA-IUU requires countries to review their national plans of action at least every four years and to report to FAO on steps they have taken to implement their plans and the IPOA-IUU" (Illegal Fishing, 2002). This is a simple way of keeping control of all ports and a better planning of fighting against illegal fishing. Having the right resources and management I believe the fishing world can be back into the right place. Therefore, this is a good learning experience for me to learn what is going around in the fishing world. Also being born and raise from Hawai’i, this research brings a whole wide range of protecting our ocean and fishing system here in Hawai’i ne’i.References
- Economy Effect (2009). Courier Post. Retrieved May 4, 2010, From Http://www.blogs.courierpostonline/fishhead.com.
- History (2010). National Geographic. Retrieved May 4, 2010, From Http://www.nationalgeographic.com/tv/.
- Illegal (2009). Webster Dictionary U.S.A. Retrieved May 4, 2010, From Http:// www.webster-dictionary.net.
- Illegal Fishing (2009). Australian Government Border Protection Command. Retrieved May 4, 2010, From https://www.homeaffairs.gov.au/.
- Illegal Fishing (2008). Illegal Fishing information. Retrieved May 4, 2010, From Http:// www.illegal-fishing.info/item.com.
- Illegal Fishing (2007). Food and Agriculture Organization of the United States. Retrieved May 4, 2010, From Http://www.fao.org/newsroom.
- Illegal Fishing (2004). Food and Agriculture Organization of United States. Retrieved May 4, 2010, From Http://www.fao.org.
- Illegal Fishing (2002). FAO Corporate Document Depository. Retrieved May 4, 2010, From Http://www.fao.org/DOCORP.com.
- Illegal Fishing (2000). Consequences of IUU Fishing. Retrieved May 4, 2010, From Http://www.fao.org.com.
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The Doctrine of Ultra Vires under Malaysian Company Law
According to s18 Contract Act 1965, every company formed should have a memorandum printed and divided into paragraph and with the date stated. In s18 (b) Contract Act 1965, it shows that the requirement of the Memorandum of Association (M/A) required a statement of object clause. The object clause can be used to describe the nature of the business such as manufacturing business, merchandising business or service business. Besides, it also show the company power, its purpose and the legal capacity of the company.[1] Furthermore, the purpose of the object of M/A should be lawful as stated in s14 (1) Company Act 1965. The consequence of unlawful purpose and incompatible to peace, welfare, security, public order, good order or morality in Malaysia will be Registrar of Company will refuse for the registration of the company as followed to s16(8)(a) Company Act 1965.
As it has been stated that object of M/A function as recognize the legal capacity of the company, in the same time, it has limited the company which it require the company to act based on the statement. If the operation of the company is different with the object of M/A, ultra vires will be recognized. Ultra means “beyond” whereas vires means “power” where ultra vires happened when an act is against the object clause. Although the company want to ratify the act, the act is void at initio. This can be further explained by the common law and statue. However, if the company wants to prevent ultra vires, the company must alter the object clause. There are certain requirement as stated s28 Company Act 1965. In s28 (1) Company Act 1965, it stated that alteration can be made based on a special resolution. Besides, by holding this special resolution, members and debentures holder of the company should be given 21days of notification to the special resolution as according to s28 (2) Company Act 1965.
Common Law The doctrine of ultra vires under common law refers to the rules that company must act within their objects clause that is stated in the memorandum of association. Any activity that is outside from the company capacity is void. Neither the company nor the third party could enforce this. In other words, ultra vires act is void and the contract cannot be ratified even if the company wishes to. Under common law, the company’s contract is void due to internal or external context. Externally, when a third party contracting with a company, if the contract was not fulfill the objects of company that stated in memorandum of association, then the contract was ultra vires and void. Internally, if the company and the director enter into an ultra vires contract, the company may immediately stop the act of the director and claim damages from the director who breach his fiduciary duties by entering into the contract which is outside from the company’s capacity. If the company could not fulfill the main object in their memorandum, then they would have to be wound up. According to Ashbury Railway Carriage & Iron Company v Riche (1875) LR 7HL 653, the case stated that the company’s objects in their memorandum was to make, sell and hire railway carriages. The company entered into contract with Riche and the contract was approved by the shareholders at general meeting, then the company agreed to give Riche and his brother a loan to build a railway in Belgium. After that, the company changed their mind and refused the agreement. Riche sued the company.
The court held that the construction of a railway was ultra vires, because construct a railway was not stated in their company’s memorandum of association. Thus, the contract is void because the construction of a railway is outside from the company capacity. Furthermore, since it is outside from the company capacity, so the company could not ratify the contract. Therefore, ultra vires exist and the contract is void even if all of the shareholders approved the contract. From Ashbury Railway Carriage case, we can see that the company could not sue or be sued by the third party for not performing the contract. This is because the contract is null and void. Thus, the company could avoid for not performing the contract and could not be sued by the third party because it is outside form the company’s capacity. Although it seems unfair for the other party but the object clause of a company is available at public for inspection. The other party should have checked whether the company has the capacity to enter into contract with them or not. Need to say if company itself can sue the director and SH? Shareholders pay less concerned on the corporation on how the director corporate as long as the business generates dividend to them. However this will put the creditor in high risk. This is because if the creditors credit sales the goods and services to the particular company, and the company has insolvent in later dates, the creditor could not claim any debts. Common law stated that an ultra vires act is null and void to protect the member or the creditors of the company who has invested the money into the company and expect the investment is only used for the company’s business. According to Cotman v Brougham (1918) A.C. 514, the objects clause of company contained 30 sub clauses, however, the first sub clause stated the company to develop rubber plantations. In the fourth clause, it empowered the company to deal in any shares of any company. Besides, the memorandum also stated that each sub clauses acts as the independent objects for the company.
The company underwrote and had allotted to it shares in an oil company. After that, the oil company wound up and their company was on the list of contributories. The question arose is that whether this is intra vires the company’s objects. The court held that the 30 independent object clause in the rubber company’s memorandum was an independent. Hence, the power to deal with the share in an oil company was within the legal power. Therefore, the company is liable for the underwriting. From the Cotman case, the company did not clearly specify the main object where constitution of Memorandum are not limited by using plain business language. Companies could no longer avoid a contract based on the grounds that it was beyond the company objects which they have been done in the traditional ultra vires doctrine. This has increased a wider range of object clauses in the Memorandum as a result of each sub clause is independent which are not interrelated with the main clause. Hence, the object are not restricted to review on the main clause. This has rendered the companies to introduce a standard type of object clause to render almost all potential commercial objectives intra vires.
Position Under Companies Act 1965
According to s20 (1) of Companies Act 1965, any act or transfer of property that made by the company shall not be invalid with the reason that company don't have the power or capacity to do act. The effect for this section is transaction will become irrelevant with the fact that the company did not have the capacity to enter into it, even though a certain transaction is otherwise valid. Besides, the company can sued or be sued as acts against its object clause. In order to protect the interest of the shareholders and creditors, s20 (2) Companies Act 1965 has provided the remedies to restrain the ultra vires act. According to s20 (2) (a) Companies Act 1965, company is liable if a member of the company or the company itself has issued the debentures are available with a floating charge. The shareholders and debenture holders can sue the company for the taking any action outside the company and they can claimed the compensation from it.
Besides, it also stated that the relief of s20 Companies Act 1965, the ultra vires only apply to specific person and not an outsider as refer to Pamaron Holdings Sdn Bhd v Ganda Holdings Bhd [1988] 3 MLJ 346. According to Pamaron Holdings Sdn Bhd v Ganda Holdings Bhd case, the Plaintiff and the Defendant entered into an agreement for sale and purchase of shares in a private limited company. The Defendant defaulted in the payment of the purchase price and the plaintiff applied for summary judgment against it. In opposing the application, the defendant proclaim that among the transaction was ultra vires the plaintiff company. Allowing the application, the court held that under s.20 a person other than a debenture holder or the minister may not raise ultra vires. The defendant being an outsider and not a debenture holder or the minister had no right under the section. The Defendant was liable for not being able to settle the payment of the purchase price. The Defendant also didn't purchase any shares or debentures from the Plaintiff Company, thus it cannot raise ultra vires. Defendant should purchase the shares or debenture from the plaintiff in order for the defendant have the right to raise ultra vires. From this case, only the person that are sufficient proximate to the company can apply ultra vires.
Ultra vires is an action This act will only available to the contract that has been entered, yet to be completed as refer to the Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd ( 1969 ) 2 NSWR 786. According to Hawkesbury Development Co. Ltd v Ladmark Finance Pty Ltd case, Plaintiff holds all of the shares in the Landmark Finance Pty Ltd. Landmark Finance has issued two debentures to United Dominion Corp (UDC). A request has been sent to court by Plaintiff about declaring both debentures to be invalid due that it is a company object ultra vires. Plaintiff also request that the court to prohibit the enforcement of UDC of the debentures. However, application that request by the plaintiff is rejected and the approval of court to void the declaration of the UDC had failed to be obtained. Due that the plaintiffs are the shareholders of the Landmark Finance, the application should make to Landmark Finance instead of UDC is a third party. If the company is make the act of ultra vires by issuing the debentures to the outsiders, the shareholders or debenture holders have the right to sue the company.
However, s20 (2) (a) Companies Act 1965 does not given its protection to debentures holders that secured by float charge and creditors who did not have any charge. According to s20 (2) (b) Companies Act 1965, officers are personally liable for any action taken by member of the company or the company itself. The shareholders or the company itself can sue the officers either former or current that who committed any Ultra Vires transactions which must be completed and realized. However, if any law suit against the officer will not affect the validity as stated in s20 (1) CA 1965, the act will be valid to the ground. According to s20 (2) (c) Companies Act 1965, any petition that may conducted by the Minister to the court to wind up the company that had committed ultra vires actions. The court will conducted its discretion when the company has changed the business totally from its original business.
According to s20 (3) Companies Act, if any party has suffered any damage or loss due to the unauthorized act or transfer is yet to be performed and to be restrained under s20 (2) Companies Act 1965, the parties who have sustained the damage can be compensated. By comparing the common law and Companies Act 1965, under the doctrine of ultra vires, it is prefer to go for common law. This is because, under common law, the act of ultra vires is null and void, so the company could avoid for not performing the contract which is outside from their capacity. Besides, the company could not sue or be sued by others party just because they did not perform the contract. However, under the Companies Act 1965, it provides completed transactions remain valid as between the company and the third party and both of the party may sue each other. Let’s compare the case of Ashbury Railway Carriage & Iron Company v Riche under common law and the case of Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd under Companies Act 1965, we can see that under Ashbury case, the ultra vires are meant to protect the company by voiding the contract because it is outside the company’s capacity. The other party could not sue the company although they had entered into the contract because ultra vires exist.
Whereas, under the Hawkesbury case, the plaintiff failed to declare the debentures to the third party although it is a company object ultra vires because the plantiff are the shareholders of the Landmark Finance and it should make declaration to Landmark Finance instead of the third party. Conclusion For under the common law, the contract entered by the director of the company or the company itself is ultra vires, the contract is considered void due that it is beyond the company's capacity to perform it. If the contract made by the company with the third party is not fulfill the objects of the company that stated in memorandum of association also considered as ultra vires thus become void. When the contract has become void, the company could not sue or be sued by the third party for not performing the contract. For under the Companies Act 1965, any act that made by the company cannot be declared as invalid by using incapable to perform the act as an excuse. The transactions still remain valid between both the company and the third party that they may able to sue or be sued by each other. Thus, both companies and the third party should consider the capabilities of the company to perform the any act from the contract in order to avoid any ultra vires that may happen and cause the loss to the creditors, shareholders, debenture holders or any related parties.
[1] Pg 205 principle of business law and corporation
Cite this page
The Doctrine of Ultra Vires under Malaysian Company Law. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/13/
Dr Ram Manohar Lohiya National
- Research methodology to be followed:
- The Doctrine of Ultra Vires: An Introduction
- The doctrine of ultra vires is the basic doctrine in administrative law. The doctrine envisages that an authority can exercise only so much power as is conferred on it by law. An action of the authority is intra vires when it falls within the limits of the power conferred on it but ultra vires if it goes outside this limit. The doctrine of ultra vires has two aspects: substantive and procedural.
- Grounds on which Delegated legislation may be challenged
- Enabling or Parent Act is unconstitutional:
- Subordinate or delegated legislation is ultra vires the Constitution:
- Delegated legislation is ultra vires the Enabling or Parent Act:
- When it is made in excess of the power conferred by the Enabling or Parent Act:
- When delegated legislation is in conflict with the Enabling or Parent Act:
- When delegated legislation is made by authority exercising its power mala fide:
- When the delegated legislation is unreasonable and arbitrary:
- Substantial Ultra vires & Procedural Ultra vires: a Comparison
- When delegated legislation is In conflict with the procedure prescribed by the Enabling or Parent Act
- Test of measuring the validity of Rules
- it must conform to the provisions of the statute under which it is framed; and
- it must also come within the scope and purview of the rule making power of the authority framing the rule.
- Difficulty in application of the Doctrine of Ultra Vires
- Exclusion of judicial review
- Case Study
- Conclusion
Research methodology to be followed:
To deliberate upon the issue "Doctrine of Substantial Ultra Vires" will be dealt in a systematic and particular way. In this regard, Doctrinal approach has been adopted and compilation from literary sources, course materials, articles, reviews, e-databases and books have been given special importance. Along with founding sources the recent developments in form of judicial pronouncement and case study has also been incorporated in this project.The Doctrine of Ultra Vires: An Introduction
The doctrine of ultra vires is the basic doctrine in administrative law. The doctrine envisages that an authority can exercise only so much power as is conferred on it by law. An action of the authority is intra vires when it falls within the limits of the power conferred on it but ultra vires if it goes outside this limit. The doctrine of ultra vires has two aspects: substantive and procedural.
When a piece of delegated legislation is declared to be ultra vires, it is void and becomes unenforceable. It cannot affect the rights and duties of any person. Until a rule is declared invalid by a court, it is presumed to be valid. If the valid and the invalid parts of a rule can be severed, only then the invalid portion of the rule is quashed and the valid portion can continue to remain operative. However, if the valid and the invalid parts are inextricably mixed up, then the entire rule has to go. A void rule cannot be the basis of any administrative action. No one can be prosecuted under a void rule. The validity of a rule can be challenged in a court either directly or collaterally, or by way of defense to a civil claim based on the impugned rule, or as a defense in a prosecution for infringing the rule. A person can challenge the validity of administrative action by challenging the validity of the relevant rule. A person whose interest is affected adversely by a piece of delegated legislation can directly challenge its vires in a court. The court may grant an injunction or declaration or issue mandamus or award damages to the affected person as may be suitable. If the subordinate or delegated legislation goes beyond the scope of authority conferred on the delegate or it is in conflict with the parent or enabling act, it is called substantive ultra vires. The validity of the subordinate or delegated legislation may be challenged before the Courts on this ground.Grounds on which Delegated legislation may be challenged
Enabling or Parent Act is unconstitutional:
In India, there is supremacy of the Constitution and therefore an act passed by the Legislature is required to be in conformity with the constitutional requirement and if it is found to be in violation of the constitutional provisions, the court declares it unconstitutional and void. If enabling or parent act (i.e the act providing for the delegation) is void and subordinate or delegated legislation made under the act will also be declared to be unconstitutional and therefore void. The limits of the Constitution may be express and implied. Express Limit: Articles 13, 245 and 246 provide the express limits of the constitution. Article 13(1) provides that all laws in force in the territory of India immediately before the commencement of the constitution in so far as they are inconsistent with the provisions of Part III (fundamental rights) shall, to the extent of the contravention, be void. According to article 13(2), the state shall not make any law which takes away or abridges the rights conferred by part III (i.e the Fundamental Rights) and any law made in contravention of this clause shall, to the extent of the contravention, be void. Article 13(3) makes it clear that for this purpose, unless the context otherwise requires , law includes any ordinance, order, by - law, rule, regulation, notification, custom or usage having in the territory of India, the force of law. The legislature, thus, cannot violate the provisions of part III of the constitution granting the fundamental rights. If the parent or enabling Act is violative of the Fundamental Rights granted by part III of the constitution, it will be declared by the court as unconstitutional and void, and the subordinate or delegated legislation made under the act will also be held to be unconstitutional and void. Article 245 makes it clear that the legislative powers of the parliament and that of the state legislatures are subject to the provisions of the constitution. Parliament may make laws for the whole or any part of the territory of India and the legislatures of a state make laws for the whole or any part of the state. No law made by the parliament shall be deemed to be invalid on the ground that it would have extra territorial operation. The state legislature can make law only for the State concerned and, therefore, the law made by the state legislature having operation outside the state would be invalid. In the matter of Cauvery Water Disputes Tribunal, the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 was declared unconstitutional on certain grounds including the ground that it had extra territorial operation inasmuch as it interfered with the equitable rights of Tamil Nadu and Pondicherry to the waters of Cauvery River. In short, no law made by Parliament shall be deemed to be invalid on the ground that it would have extra territorial operation. However, the law made by the state legislature may be challenged on the ground of extra territorial operation. If the parent act is declared to be unconstitutional, then the delegated legislation made under such act would also be declared to be unconstitutional and thus, void. Article 246 makes provisions in respect of the distribution of powers between the powers between the Parliament and the State legislatures. From article 246 and the seventh schedule, it becomes clear that the subjects have been divided into three categories - Union list, State list and Concurrent list. Parliament has exclusive power to make laws with respect to any of the matters or subjects enumerated in the Union list and of the legislature of any state has power to make laws for such state or any part thereof with respect to any of the matters or subjects enumerated in the State list. Parliament and State Legislatures both have power to make laws with respect to any of the matters or subjects enumerated in the Concurrent List, but In the case of conflict between the law made by Parliament and a law made by the State Legislature with respect to such matter or subject, the law made by Parliament shall prevail and the laws made by the State Legislature, to the extent of repugnancy. be void, unless the law made by the State Legislature has received the assent of the President. Implied limit: If the Enabling or Parent Act violates the implied limit of the Constitution, it will be ultra vires the Constitution and therefore It will be void and the delegated legislation made under the Act will also be unconstitutional and void. The implied limit of the Constitution Is that essential legislative function entrusted to the legislature by the Constitution cannot be delegated by it. The essential legislative function consists of the determination of the legislative policy and its formulation as a rule of conduct. The legislature delegating its legislative power must lay down the legislative policy and guidelines regarding the exercise of tin delegated power by delegate. The delegation of essential legislative function is taken as abdication of essential legislative function by the Legislature and this is not permitted by the Constitution. In a case the Supreme Court has made it clear that the essential legislative function which consists of the determination of the legislature policy cannot be delegated. Such delegation would amount to abdication of the essential legislative functions. The Supreme Court has made it clear that the excessive delegation is not permissible. The doctrine of excessive delegation has played an important role in controlling the practice of delegated legislation. Excessive delegation is taken as abdication of essential legislative function by the legislature. The delegation must not be unguided and uncontrolled. If the delegation is excessive, the Enabling Act or Parent Act will be unconstitutional and therefore void and the delegated legislation made under such Enabling or Parent Act will also be unconstitutional and void.Subordinate or delegated legislation is ultra vires the Constitution:
Sometimes it is found that the Enabling or Parent Act is not violative of the Constitution, but the subordinate or delegated legislation made under It violates the provisions of the Constitution. Such subordinate or delegated legislation will be unconstitutional and void, though the Enabling or Parent Act is perfectly valid. Thus, the subordinate or delegated legislation, (e.g., rules, regulations, by- laws, etc.) made under the Enabling or Parent Act may be unconstitutional while the Enabling or Parent Act is constitutional. Article 31-B of the Constitution of India is also notable here. The Acts and Regulations Included in the IXth Schedule of the Constitution are protected under Article 31-B against the ground of Infringement of any of the Fundamental Rights, but not against other grounds. The protection of Article 31-B is available only to the Acts or Regulations placed In the IXth Schedule of the Constitution. If an Act Is placed under the IXth Schedule, the protection of Article 31-B will be available to such Act, but this protection will not be available to the delegated legislation made under It. Thus, the delegated legislation may be challenged on the ground that it violates the Constitution, even though the Enabling or Parent Act under, which it has been made is protected by Article 31-B. (Legislature in 9th schedule is not under judicial scrutiny) (zamindari abolishment Act)Delegated legislation is ultra vires the Enabling or Parent Act:
The validity of the subordinate or delegated legislation can be challenged on the ground that it is ultra vires the Enabling or Parent Act. If the subordinate or delegated legislation made by the delegate is in excess of the power conferred by the Enabling or Parent Act or is in conflict with the provisions of the Enabling or Parent Act or is made w ithout following the procedure required by the Enabling or Parent Act to be followed by the delegate, the delegated or subordinate legislation will be invalid on the ground that it Is ultra vires the Enabling or Parent Act. The validity of the exercise of power is tested on the basis of the Prussians as it stands currently and not on the basis of that it was before.When it is made in excess of the power conferred by the Enabling or Parent Act:
The subordinate or delegated legislation is held to be ultra vires the Enabling or Parent Act when it is found to be in excess of the power conferred by the Enabling or Parent Act If the delegated legislation is beyond the power conferred on the delegated by the Enabling Act, it would be Invalid even if it has been laid before the Legislature. Where an administrative authority Is empowered by the Enabling Act to make by-laws to regulate market and the authority makes by-law which prohibits running of cattle market the by-law will be ultra vires the Enabling Act. In S.T.O. v. Abraham the Act empowered the Government to carry out the purposes of the Act the Government made rule so as to fix the last date for filing the declaration forms by dealers for getting the benefit of concessional rates on inter-State sales. This rule was held to be ultra vires the Enabling Act on the ground that the Act empowered the Government for making rules for prescribing the particulars to be mentioned in the forms and it was not given power to prescribe a time-limit for filling the form.When delegated legislation is in conflict with the Enabling or Parent Act:
When the delegated legislation is found to be directly or indirectly in conflict with the provisions of the Enabling Act or Parent Act, it is held to be ultra vires the Enabling or Parent Act. In Delhi Transport Undertaking v. B.R.I. Hajelay, a rule was declared Invalid on the ground that it was in conflict with the provisions of the Enabling or Parent Act, According to Section 92 of the Delhi Corporation Act. 1957, all persons drawing salary less than 350 rupees per month shall be appointed only by general Manager of the Delhi Transport Undertaking. According to Section 95 of the Act, no person can be dismissed by any authority subordinate to the authority who has appointed him. The rules made under the Act empowered the General Manager to delegate all his powers to the Assistant General Manager. The rule was held to be In conflict with the aforesaid provision of the Parent Act. The effect of the rule was that a person appointed by the General Manager could be dismissed by the Assistant General Manager. i.e. a person could be dismissed by an authority subordinate to the authority who had appointed him while Section 95 of the Act provided that no person can be dismissed by an authority subordinate to the appointing authority. Thus, the rule was in conflict with Section 95 of the Act. Consequently the rule was held to be invalid.When delegated legislation is made by authority exercising its power mala fide:
When the subordinate or delegated legislation is made by the administrative authority exercising its power mala fide or with ulterior motive, It is held to be ultra vires and, therefore, invalid.When the delegated legislation is unreasonable and arbitrary:
Wwhen the de1egated legislation is found unreasonable and arbitrary, it is declared invalid. In India, in some cases to High Courts express the view that the delegated legislation cannot be challenged on the grounds of unreasonableness. However, the view of the Courts is that the delegated legislation may be challenged on the ground of unreasonableness and arbitrariness. In India doctrine of unreasonableness has been given the solid base of Article 14. The delegated legislation which is unreasonable and arbitrary can be challenged on the ground that it is violative of Article 14. In Air India v. Nargesh Meerza, a regulation provided that an air hostess would retire from the service attaining the age of 35 years or on marriage within 4 years of service or on first pregnancy, whichever occurred earlier. The regulation authorized the Managing Director to extend the age of retirement to 45 years at his option if an air hostess was found medically fit. The Regulation did not contain any guidelines or policy according to which the discretion conferred on the Managing Director was to be exercised. The regulation conferred on the Managing Director was unguided and uncontrolled discretion. The termination of service of an air hostess on pregnancy was unreasonable and arbitrary. The regulation was held to be violative of Article 14 as it was unreasonable and arbitrary. Briefly stated, the principle is that the delegate cannot make a rule which is not authorized by the parent statute. If the subordinate legislative authority keeps within the bunds of the power delegated, the delegated legislation is valid, however, if the authority exceeds the power delegated, then the courts will certainly declare it to be ultra vires. Substantive ultra vires means that the rule making authority has no substantive power under the empowering act to make rules in question. It refers to the scope, extent and range of power conferred by the parent statute to make delegated legislation. Briefly stated, the principle is that the delegate cannot make a rule which is not authorized by the parent statute. If the subordinate legislative authority keeps within the scope and bounds of the power delegated, the delegated legislation is valid; but if it fails outside the scope of the power, the courts will declare it invalid. Delegated legislation to be valid must fall within the four corners of the powers conferred by the statute. Declaring a rule in the Karnataka Motor Vehicle Rules, 1963, ultra vires the Motor vehicles act, 1939, as a rule was inconsistent with a section in the act, the Supreme Court declared in State of Karnataka v H. Ganesh Kamath that the rule making power "cannot include within its scope the power to make a rule contrary to the provisions of the Act conferring the rule making power. Conferment of a rule making power by an Act does not enable the rule - making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto." As the Supreme Court has emphasized in State of U.P v Renusagar Power Co., "if the exercise of power is in the nature of subordinate legislation, the exercise must conform to the provisions of the statute. All the conditions of the statute must be fulfilled." The doctrine refers to the extent, scope and range of power conferred by the parent act on the concerned authority to make rules. Conferment of rule making power by an Act on an authority does not enable the rule making authority to make a rule which is beyond the scope of the enabling act, or which is inconsistent therewith or repugnant thereto.Substantial Ultra vires & Procedural Ultra vires: a Comparison
When delegated legislation is In conflict with the procedure prescribed by the Enabling or Parent Act
When the delegated legislation is found to be in conflict with the procedure prescribed by the Enabling Act, it is held to be ultra vires the Enabling Act and, therefore, void. If the delegated legislation is made without following the mandatory procedure prescribed by the Enabling or Parent Act, It will be ultra vires the Enabling or Parent Act and, therefore, invalid. It is to be noted that the delegated legislation will be held to be invalid on the ground only if the procedure prescribed by the Act is mandatory. In short, if the procedure required to be complied with in making the delegated legislation is mandatory and it is not complied with, the delegated legislation will be held to be invalid on the ground of procedural ultra vires. If the procedure prescribed by the Enabling Act is not mandatory but directory, its' substantial compliance will be sufficient and thus in case of substantial compliance, It will not be invalid. In Raja Buland Sugar Co. v. Rampur Municipality, the U.P. Municipalities Act. 1916 provided that the draft rules must be published in a local Hindi daily. The draft rules were published in a local Urdu Daily. The Court held that what was mandatory was publication of the draft rules in a newspaper. Publication In a Hindi daily was only directory. Consequently, the Court held that the rules could not be held to be ultra vires the Enabling Act merely because they were published In Urdu daily, (instead of a Hindi daily). The publication was made in substantial compliance with the manner provided In the Act.Test of measuring the validity of Rules
Rules have to be consistent with the provisions of the parent statute. A rule cannot enlarge the meaning of a statutory provision. A rule has to yield to the statutory provision. If a rule goes beyond what the section in the Act contemplates, the rule has to go. A rule is ultra vires when it goes beyond the authority conferred on the rule making body by the relevant statute. To be valid, a rule must fulfill two conditions, they are:it must conform to the provisions of the statute under which it is framed; and
it must also come within the scope and purview of the rule making power of the authority framing the rule.
If either of these two conditions is not fulfilled; the rule would be void. To apply the doctrine of ultra vires, the court has first to interpret the statutory provisions to determine the scope of delegation of power, then to interpret the delegated legislation in question and finally, to adjudge whether the same is within, or without, the statutory power conferred.Difficulty in application of the Doctrine of Ultra Vires
The efficacy of judicial control of delegated legislation is very much dependant on how broad is the statutory formula conferring power of delegated legislation is very much dependant on how broad is the statutory formula conferring power of delegated legislation on the delegate. Usually, the application of the ultra vires rule becomes very difficult because of three reasons: Powers are usually conferred in broad language. Ordinarily, the Courts interpret the enabling provision rather broadly. The courts adopt a deferential, rather than a critical, attitude towards delegated legislation. In India, the test of reasonableness is applicable to delegated legislation, both on general principles of administrative law as well as under such fundamental rights as are guaranteed under Constitution of India.Exclusion of judicial review
Sometimes a clause is inserted in the Enabling or Parent Act for ousting the jurisdiction of the Courts to review the delegated legislation. This is called exclusion clause. Usually such clause contains the words 'rules made shall have effect as If enacted or Included in the Act Itself or 'rules made shall not be called in question in any Court.' In England. in Institute of Patent Agents v. Lord Herschel expressed the view that such provision excluded the judicial review of the delegated legislation on the ground of ultra vires. However, In a later case, Minister of Health v. King. Lx Paste Yabbe. the view of Lord Herscheli has not been followed. In this case, the Court has held that inspite of the exclusion clause, the delegated legislation can be reviewed by the Court and can be declared invalid If it is found ultra vires the Enabling or Parent Act. Thus, in England, the present position is that Inspite of the exclusion clause, the subordinate or delegated legislation may be challenged on the ground that they are ultra vires the Enabling Act. In India in a few cases the Supreme Court has adopted the view expressed by Lord Herschel in the case of Institute of Patent Agents v. Lockwood, stated above (the Supreme Court has held that such clause will exclude the Judicial review of the delegated legislation on the ground of ultra vires), but in some other cases, the Supreme Court has held that inspite of such exclusion clause, the delegated legislation can be reviewed by the Court. The present position is that inspite of such exclusion clause. the delegated legislation may be challenged before the Court on the ground that they are ultra vires and the Court can hold the delegated legislation invalid, if it finds them ultra vires.Case Study
Implied limits of the Constitution are those laid down in In re Delhi Laws Act case, namely the laying down policy and enacting that policy into a binding rule of conduct. Section 7 of the Delhi Laws Act, 1972 delegated to the provincial government the power to extend to Delhi area with such restriction and modification any law in force in any part of British India. Section 2 of the Ajmer Merwaha (Extension of Laws) Act, 1947 delegated the power to the Government to extend to the province of Ajmer-Merwaha any law in force in any other province with such modification and restriction as it may deem fit any enactment which was in force in any part 'A' state. it also empowered the Govt. to repeal or amend any corresponding law which was applicable to part 'C' state. The legislature cannot delegate its essential legislative power to any other agency and if it so delegates the enabling would be ultra vires of the Constitution. In the said case the Court held that the later part of clause 2 invalid because it authorized the administrative agency to repeal a law, which in the opinion of the Court, is an essential legislative action. In Indian Council of Legal Aid and Advice v Bar Council of India the Supreme Court held that: a rule made by BCI barring qualified persons above the age of 45 years from enrollment as advocates, as ultra vires, a sit fell outside the power of BCI conferred by it by the Advocates Act, 1961, Section 49(1). In Additional District Magistrate (Revenue) Delhi Administration v Siri Ram the Delhi Land Revenue Rules 1962 made under the Delhi Land Revenue Act,1954, were declared ultra vires as being contrary to the Parent Act as well as another Act, by making the rules, the rule making authority had exceeded the power conferred on it by the Land Reforms Act 1954. Ajay Kumar Mukherjee v UOI is a case where Supreme Court has said that delegated legislation ultra vires the act by cutting down the breadth of the delegation to bring it in line with the object of the delegation of legislative power. The purpose or object of the conferment of the power must be borne in mind.Conclusion
Thus, to draw conclusion it can be said that if the subordinate or delegated legislation goes beyond the scope of authority concerned on the delegate or it is in conflict with the Parent or Enabling Act, it is called substantive ultra vires. The validity of the subordinate or delegated legislation may be challenged before the Courts on this ground. It is a mechanism to curb down the exploitation of power by the administrative authority as we all know that "power corrupts and absolute power corrupts absolutely". However in this field there is lack of development and there is no substantial change in the concept all though the changing nature of the current legislative method has widen the horizon of the power of the authority by giving them power to act according to the need of the time, even sometimes travelling beyond the restrictions.Cite this page
Dr Ram Manohar Lohiya National. (2017, Jun 26).
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The Crime of Rape
RAPE Introduction: Rape is one of the most serious crimes that an individual can commit. There are a variety of laws that deal with the offence of rape, giving a guideline on how investigative officers should handle victims of rape, and also suspects of rape. An example of such kind of law is the sexual offences act of 2003. This law was passed in 2003, by the parliament of the United Kingdom, and it establishes the ways and manner in which police officers ought to deal with rape and it gives a clear definition of rape (Bonnes, 2011). This act defines rape as a sexual offence that occurs when an individual intentionally penetrates the mouth, anus, or vagina of another person with his penis, and without the consent of the victim. In as much as rape is a negative phenomenon, and causes much suffering to the victims, the victims of rape are always seen in a very negative perspective. In a survey conducted in 2010, for purposes of celebrating the 10th anniversary for the Haven service on rape victims, results showed that more than a half, of the 1000 people surveyed in London denoted that rape victims should take responsibility for the attack (Messina-Dysert, 2012). In another survey, sponsored by Amnesty International in 2008, found that more than half of those surveyed believed that a woman who is raped, should be partially responsible for the attack (Suarez and Gadalla, 2010). This is if the woman engaged in a flirtatious behavior, or inappropriately dressed. This survey was conducted at the Northern Ireland University (Davies, Gilston and Rogers, 2012). For purposes of understanding why the society has negative attitudes towards victims of rape, it is important to first understand the aspect of demonization of women who are promiscuous.
Women normally live with the constant knowledge and fear of arbitrary judgment against them, when they have many sexual partners (Messina-Dysert, 2012). However, the most worrying trend, the society will always pass a negative judgment on a woman who is raped, and is believed to have so many partners, or is promiscuous. Due to these negative judgments against rape victims, the victims fear to come forward, for purposes of reporting incidences of the crime of rape (Nowrojee, 2005). This paper takes a stand that the negative perceptions and judgments against the victims of rape compound their sufferings. This paper analyzes the various perceptions of rape victims, and how these perceptions play a role in preventing rape victims from accessing justice. In order to meet the objectives of this paper, the researcher will first identify the reasons as to why some people rape women and the effects of rape against the victims. In order to understand effectively the negative perceptions that some society have against victims of rape, it is essential to understand the causes of rape, and its consequences. The effects of rape that this paper analyzes are the physical and psychological effects. After the identification of these causes and effects, this paper will analyze the various perceptions that the society has towards rape victims, and how they are affected psychologically, and physically.
This paper has a recommendation on how to help victims of rape recover from their sufferings, and a conclusion which is a summary of the major points contained in this paper. Causes of Rape and its consequences: It is important to denote that the causes of rape is not about having some sexual satisfaction, but seeking for power and total control. Most rapists are emotionally unstable men, who are insecure and are not able to approach a woman in an open manner (Davies, Gilston and Rogers, 2012). To assert a sense of control, rapists would force a woman into having sexual activity with them, as a result leading to a sense of power and control. It is important to denote that some rapists normally have a wife and they get their sexual satisfaction from their wives.
However, these rapists cannot forceful touch their wives and instill fear in them (Goodhart, 2007). Rape has two major effects that are physical, and psychological. Physical effects include urinary infections, painful penile penetrations, acquirance of sexually transmitted diseases, and unwanted pregnancies (Davies, Gilston and Rogers, 2012). Psychological effects on the other hand includes, self blame, depression, negative flashback, anger, distrust, stress, sleeping disorders, feeling of vulnerability, and withdrawing from friendship associations. It is important to denote that the society has inappropriately placed some of the causes of rape to the victim himself (Ryan, 2011). These causes of rape, that the society denotes are the responsibility of the victim on most occasions lead to the negative perception of rape victims. It is these negative perceptions that normally increase the physical and psychological suffering of rape victims. However, it is important to denote that the society will apportion blame on the rape victim, based on the traditions and culture of the society under consideration. Perceptions of rape victims and its effects on the victims: The attitudinal based characteristics of an observer play a great role in the explanation of the negative perceptions towards victims of rape. These attitudinal characteristics are shaped by the traditional stereotyping of gender roles, and sexual conservatism.
Studies give a revelation that people who normally find it okay for a male person to be drunk, as opposed to a female person normally have negative attitudes towards victims of rape (Hong, 2013). The following are some of the attitudinal characteristics that are responsible for passing negative judgment on women rape victims, the promiscuity of the woman, dressing inappropriately by the woman, drunkenness, unnecessary flirting, the respect that the victim had within the society. These people argue that a raped woman might have been either a drunkard, and as a result, she was unable to control her emotions or feelings (Withey, 2010). They further argue that most women who are raped must either be promiscuous, and as a result, they enjoyed the act of rape. On this basis, the claim that they are raped is false, and does not hold any ground (Goodhart, 2007). These people further denote that a woman might have initiated the act of rape, because she was either flirting with the man under consideration, or she was inappropriately dressed, arousing the rapists (Hong, 2013). Based on these arguments, these people claim that it is a rape victim who is to blame for the attack against them. It is important to denote that there is little study on the causes of negative perception that people have towards male rape victims (Ayinde, 2010). Studies reveal that there is an increase in the number of male rape victims, and they are always blamed for the attack, just as the female rape victims are blamed for an attack against them (Riccardi, 2010). Studies reveal that male victims are always viewed negatively by the police, and health workers, and on this basis, few cases of male rape are always reported. The negative perceptions that people have towards male rape victims emanates from the sexuality of the male individual (Ayinde, 2010). The male are always believed to be strong, and on this basis, they are supposed to be in control of their sexuality and sexual lives. On this basis, a male who is raped, is weak, and is not in control of his own sexuality. The male rape victims are also considered promiscuous, and this is because they were not able to control their sexuality (Goodhart, 2007). Due to these negative perceptions of rape victims, it would be very difficult for these people to report the crimes to law enforcement officers. This is because they would feel guilty of orchestrating the crime, they will also be shameful, and their levels of stress would increase (Gilbert, 1998). Failing to report the crime to police officers, would mean that the suspect is still on the loose, and he would attack again.
This is the kind of fear that rape victims will have, leading to an increase in their stress level. This is because they do not know if the rapist would return or not. For fear of victimization, these victims might not seek for medical attention. This might make them to contract dangerous diseases such as HIV, Syphilis, and other STDs, if not detected early (Withey, 2010). It might also make the patient to suffer from more stress, because of failure to get some psychological treatment.
Due to these negative perceptions on rape victims, these victims begin blaming themselves, accelerating further their psychological and physical health (Tavrow, Withers, Obbuyyi, Omollo and Wu, 2013). This is because their stress level will grow, leaving them vulnerable to emotional torture. Homophobia is another reason as to why people have a negative feeling towards male rape victims. Homophobia refers to a range of negative feelings that the society has against the gay people, this includes homosexuals, lesbians, the transgender, and the bi-sexual people (Koshan, 2012). Homophobia can always be expressed in the form of hatred, prejudice, antipathy, contempt, and it is always based on religious and traditional beliefs. Take for example the Buggery Act of 1533 that outlawed home sexuality in England. The consequences of being caught in a homosexuality act was death, however, such kind of laws were repelled by the 2004 civil partnership act that recognizes homosexuality (Vidal, 2011). In Uganda, the president recently signed the anti-homosexuality law that imprisoned any one found engaging in homosexual acts for life.
According to this law, anyone who fails to report an homosexual, is also vulnerable to imprisonment. It is important to denote that male rape victims are always associated with homosexuality, and this is an erroneous assumption (Goodhart, 2007). In as much as studies reveal that victims and offenders of male rape are on most occasions’ heterosexual, male rape is perceived to be associated with motives of homosexuality (Suarez and Gadalla, 2010). On this basis, observers are more likely to invoke homophobic feelings against male victims, as they will view them as homosexuals. People view homosexuality as a negative and deviant behavior that goes against the norm within the society.
Homosexuality is considered to be an evil behavior that is against the major religions of the world, which includes Christianity, Islam, Buddhism, and even Judaism (Delisi, 2013). These religions believe that sexual acts must only occur between a man and a woman, and it is for purposes of recreation. On this basis, any sexual act, that occurs between a man and a man, or a woman and a woman is evil, and must be punished. This therefore brings us to the concept of the Just World Theory in explaining the perceptions that people have towards victims of rape, more so, victims of male rape (Delisi, 2013). According to the Just World Theory, people will always get whatever they deserve in life (Withey, 2010). This theory denotes that the world is a just and a fair place, and anyone living a moral life, will be rewarded by morality, and anyone living an immoral life, will be rewarded by immorality (Dosekun, 2013). Those people who ascribe to this theory believe that when a good thing or issue happens to an individual, then it is because the same person did some good things. However, when a bad thing happens to an individual, such as rape, then that person did some bad things, i.e. that person can be immoral, or promiscuous (Suarez and Gadalla, 2010). This theory apportions blame to the victim, as opposed to the person who committed the act. On this basis, victims of rape are responsible for the attack, and this leads to an aspect of self blame (Schroeder, 2010). As discussed earlier, self-blame is not a positive effect, as it will have a psychological effect on the victim leading to an increase in their stress levels, and creating emotional imbalances. It will be very difficult for these people to access medical and psychological services because of self-blame, and fear of victimization from medical personnel (Egan and Wilson, 2011). This might make their health system to fail, and they may even be tempted to commit suicide because of high levels of stress. Male victims on the other will not report such kind of an incidence to the police, or any other authority.
This is because of the homophobia that exists because of such an attack. For instance in Uganda, it will be difficult for a male rape victim to report to the police, for fear of being mistaken as a homosexual. Recommendation on how to change the negative perceptions against rape victims: In order to help these victims, the society needs to appreciate the various character traits of people. For example, one of the contributing factors of a negative perception against rape victims is the demonization of women who are promiscuous (Delisi, 2013). The society has a negative attitude towards women viewed as promiscuous, and as a result, when they are raped, the society does not feel any pity towards them. This has to stop, and this is because it is not the business of anybody on how many people a woman sleeps with. What the society needs to do is to encourage moral behavior through education, and use of the social media (Delisi, 2013). Condemning this people to the point of accepting a breach of their rights is not prudent and good. On this basis, the society needs to have a change of attitude in regard to immoral women, and help them to achieve justice in case they are raped.
The society also needs to accept that there is the existence of the homosexuals, and the lesbians (Kavaler-Adler, 2010). In as much as these are negative aspects of the society, there is a need of initiating policies aimed at helping them live normal lives. This is as opposed to discriminating them, and passing unfair judgments against them. The British government has realized the importance of recognizing the rights of these people, and hence it has formulated various laws and legislations aimed at protecting the homosexuals, the lesbians, the transgender, against discrimination, stigma, and a breach of their human rights (Klippenstine and Schuller, 2012). Laws such as the civil partnership act of 2004, and the equality act of 2010, protects the homosexuals and the lesbians against discrimination, and stigma. It is also important for oppressive laws, such as the Ugandan anti-homosexual bill of 2014 to be abolished. This would help in instilling confidence amongst this group of people, and when stigma and discrimination in regard to homosexuals is removed, male victims of rape might get the confidence of reporting such kind of atrocities against them.
There is also a need by various governments to educate the public on the causes of rape, and the consequence of such an attack has on its victims. Through education, the government might succeed in changing the negative attitudes that people have towards rape victims. Under education, the government and other civil societies might use the television, radio stations, the internet, and newspapers to pass on their messages. Conclusion: In conclusion, rape is a very serious offence that normally has some negative impact on the victims. Victims of rape usually suffer from physical and physiological effects. These physical effects include body injuries, unwanted pregnancies, and diseases.
Physiological effects include stigma, depression and stress. In as much as rape is a negative thing, victims of rape usually suffer from stigma and discrimination. This is because they are always blamed for the attack against them.
This promotes an issue of self-blame amongst the victims of rape, leading to an increase in depression or stress. To help these people, there is a need of changing the attitudes of people against rape victims. This change in attitude will only come through education, and initiating laws that criminalizes discrimination and stigmatization. Bibliography: Ayinde, O. (2010). Psychological Techniques In Helping Rape Victims. Edo Journal of Counselling, 1(1), 15-26. Bonnes, S. (2011). Gender and Racial Stereotyping in Rape Coverage. Feminist Media Studies, 325, 1-20. Davies, M., Gilston, J., & Rogers, P. (2012). Examining the Relationship Between Male Rape Myth Acceptance, Female Rape Myth Acceptance, Victim Blame, Homophobia, Gender Roles, and Ambivalent Sexism.
Journal of Interpersonal Violence, 27(14), 2807-2823. Delisi, M. (2013). An Empirical Study of Rape in the Context of Multiple Murder. Journal of Forensic Sciences, 23, n/a-n/a. Dosekun, S. (2013). ‘Rape is a huge issue in this country’: Discursive constructions of the rape crisis in South Africa. Feminism & Psychology, 23(4), 517-535. Egan, R., & Wilson, J. C. (2011). Rape Victims Attitudes to Rape Myth Acceptance. Psychiatry, Psychology and Law, 34, 1-13. Gilbert, N. (1998). Realities and mythologies of rape. society, 35(2), 356-362. Goodhart, M. (2007). Sins of the Fathers: War Rape, Wrongful Procreation, and Children’s Human Rights . Journal of Human Rights,, 6, 307-324. Hong, Y. (2013). Teaching Rape Texts in Classical Literature. Classical World, 106(4), 669-675. Kavaler-Adler, S. (2010). Seduction, Date Rape, And Aborted Surrender.
International Forum of Psychoanalysis, 19(1), 15-26. Klippenstine, M. A., & Schuller, R. (2012). Perceptions of sexual assault: expectancies regarding the emotional response of a rape victim over time. Psychology, Crime & Law, 18(1), 79- 94. Koshan, J. (2012). Book Review: Rethinking Rape Law: International and Comparative Perspectives: International Approaches to Rape. Social & Legal Studies, 21(3), 425-430. Messina-Dysert, G. (2012). Rape and Spiritual Death. Feminist Theology, 20(2), 120-132. Nowrojee, B. (2005). Making the Invisible War Crime Visible: Post-Conflict Justice for Sierra Leone’s Rape Victims.
Havard Human Rights Journal, 18, 86-105. Riccardi, P. (2010). Male Rape. The Primary Care Companion to the Journal of Clinical Psychiatry, 29, 124-159. Ryan, K. M. (2011). The Relationship between Rape Myths and Sexual Scripts: The Social Construction of Rape. Sex Roles, 65(11-12), 774-782. Schroeder, J. A. (2010). With Eyes of Flesh: The Bible, Gender and Human Rights; Configurations of Rape in the Hebrew Bible: A Literary Analysis of Three Rape Narratives. Biblical Interpretation: A Journal of Contemporary Approaches, 18(4), 443- 448. Suarez, E., & Gadalla, T. M. (2010). Stop Blaming the Victim: A Meta-Analysis on Rape Myths. Journal of Interpersonal Violence, 25(11), 2010-2035. Tavrow, P., Withers, M., Obbuyyi, A., Omollo, V., & Wu, E. (2013). Rape Myth Attitudes in Rural Kenya: T oward the Development of a Culturally Relevant Attitude Scale and “Blame Index”. Journal of Inter-Personal Violence, 28(10), 2156-2178. Vidal, M. (2011). Is it Rape? On Acquaintance Rape and Taking Women’s Consent Seriously Archives of Sexual Behavior, 40(5), 1075-1076. Withey, C. (2010). Rape and Sexual Assault Education: Where is the Law?. New Criminal Law Review, 13(4), 802-825.
Cite this page
The Crime of Rape. (2017, Jun 26).
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The Doctrine of the Immunity of the Crown in the UK and India
INTERPRETATION OF STATUTES PROJECT ABSTRACT Statutes Affecting the Crown/State The general English rule is that the “king is above the law” and all statutes are meant for the subjects only and the crown is not bound by them. The rule of Common Law ‘Roy n’est lie per ascun statute, si il ne soit expressment nosme’ meaning the statutes neither control the crown nor the rights or properties of the crown, unless expressly or by necessity or by implication is named so in the statute. The only safe rule to construct necessary implication is to read the statute as a whole and to see whether it is manifest from the very terms of the statute, that it was the intention of the Legislature that the Crown should be bound.
This presumption extends not only to the crown but also to the Crown’s servants. The basis of this rule is to present an efficient and effective functioning of the ruler and his government for the welfare of the people. Historically Early authorities made attempts to lay down certain categories as to when the Crown was bound though not specifically named. These were: (i) Statutes for maintenance of religion, learning and the poor (ii) Statutes for suppression of wrongs (iii) Statutes that tend to perform the will of a founder or donor etc. This mode of construction had various flaws in it. It has been shown through many judicial decisions that without the Crown or the State being bound by a statute, the purpose of the statute would be wholly frustrated or would be meaningless. The rule in India ‘A statute applies to State as much as it does to a citizen unless it expressly or by necessary implication exempts the State from its operation.’ This rule is consistent with the rule of law based on the doctrine of equality enshrined in the Constitution.
Various exceptions have been provided through legislative practice in India and it has been established that the various legislatures provided specific exemptions in favour of the Crown whenever they intended to do so and did not rely upon any presumption. In certain circumstances the Common law rule was also applied, whereby the state was not bound as such but was made so by necessary implication. The application of the same rule wasn’t uniform. Research Question: This project attempts to analyze the laws and give examples of general exceptions to the doctrine that bind the Crown by express provisions or necessary implication and how the judiciary and the parliament, both in the UK and India, have interpreted this doctrine of the immunity of the crown over the years so as to provide an effective aid to statutory construction. Introduction The common law maxim ‘Roy n’est lie per ascun statute, si il ne soit expressment nosme’ means that a statute does not bind the Crown unless the Crown has, by express terms or by necessary implication, been named therein.
The rule in India has been held to be quite different, wherein general Acts apply to both the citizens as well as the State unless the statute, by express terms or by necessary implication, exempts the State from its operation. There is a consensus of judicial opinion that the common law rule is merely a rule of construction. It has been applied in the colonies and in the Commonwealth as the fact that unless the intention to be bound is apparent, the State or the Executive Government of the State is not bound by statute. It has also been applied in the United States as a rule of construction and the reason given by the Americans for application of the rule is that it is a policy to preserve an efficient and operational functioning of the Government for the public.
[1] The present paper attempts to analyze the existing laws and provide examples of general exceptions to the doctrine that bind the Crown by express provisions or necessary implication and how the judiciary and the parliament, both in the UK and India, have interpreted this doctrine of the immunity of the crown over the years so as to provide an effective aid to statutory construction. The Common Law Rule It is the well-settled rule in England that a statute does not bind the Crown unless the Crown has been named in the statute expressly or by necessary implication. It has thus been described as the doctrine of Crown Immunity. Since the Queen in the Parliament with the purpose of regulating her subjects has made the Act, it obviously follows that unless a contrary intention is apparent, the Act will not bind the Crown itself. However, again, unless a contrary intention is made apparent, the Crown may take advantage of such an Act.
[2] In Willian v. Berkley,
[3] Lord Plowden explained that when the king gives his assent to a statute, he does not intend to prejudice himself or to bar his own liberties and privileges, but rather, he assents to that fact that the Act be a law for his subjects.
[4] This was a very old decision and hence a more modern explanation of the concept can be found in Lord Du Parcq’s opinion in the case of Bombay Province v. Bombay Municipal Corporation,
[5] wherein he stated that it is the doctrine of common law that the Crown is not bound by any statute unless the Crown has been expressly named and that this rule is subject to one exception that if it is manifest from the terms of the statute that the legislature had intended that the Crown be bound, then the result is the same as that of the Crown being expressly named i.e. the Crown shall in such circumstances be bound by the statute. This is what is meant by ‘necessary implication’. So, it can be inferred from the assent of the Crown that it agreed to be bound by the provisions of the act.
[6] In the early days, attempts were made to provide different situations where a statute would bind the Crown even though it was not expressly mentioned. In Magdalen College case,
[7] Lord Coke attempted to lay down three types, or categories, of statutes where the State was bound even though it was not named.
These included: (i) Statutes for maintenance of religion, learning and the poor, (ii) Statutes for suppression of wrong and (iii) Statutes that tend to perform the will of a founder or donor.
[8] In Bacon’s Abridgment it was stated that if an act of Parliament were made for the ‘public good’ then the King would be bound by it even if he were not named.
[9] However, there is an apparent problem with such a construction. In modern times, since all States are aiming to become ‘Welfare States’, all statutes passed by the legislature can only be said to be for the public good and if that is the case, then all statutes would bind the State and hence this would completely do away with the concept of Crown Immunity. This cannot be the case and hence a number of cases have held that the statutes, although for public good, still do not bind the State. Thus, it is the provisions of the statute in question or the Code of which the statute forms a part that will determine whether the Crown will be bound by the statute in which it has not been mentioned or not. This is the present law in England.[10] In Madras Electric Supply Corporation v. Boarland,[11] it was held that if the Crown has not been expressly named, then a term which is capable of including the Crown will be read as excluding it, unless a contrary intention manifests itself by necessary implication.[12] Thus in A.G. v. Hancock,[13] the word ‘person’ was held not to include the State even though it was capable of including it. Thus we see that the only ‘safe rule’ to determine whether the Crown can be bound by ‘necessary implication’ is by reading the statute as a whole and to check whether it is manifest from the terms of the statute that the legislature intended the Crown to be bound.[14] In Bombay Province v. Bombay Municipal Corporation,[15] the question arose as to whether the provisions of the Bombay Municipal Act 1888 that authorized the Commissioner to carry water mains and municipal drains ‘through or under any land whatsoever in the city’ would be applicable to Government land within the city? The Privy Council in deliberating how far the purpose of the statute was relevant in determining whether or not the Crown was bound by necessary implication stated as follows: “the apparent purpose of the statute is one element, and may be an important element, to be considered when an intention to bind the Crown is alleged. If it can be affirmed that, at the time when the statute was passed and received the royal sanction, it was apparent from its terms that its beneficent purpose must be wholly frustrated unless the Crown were bound, then it may be inferred that the Crown has agreed to be bound. Their Lordships will add that when the Court is asked to draw this inference, it must always be remembered that, if it be the intention of the Legislature that the Crown shall be bound, nothing is easier than to say so in plain words.”[16] Thus, the presumption of immunity can only be rebutted if on reading the statute as a whole, the purpose of the statute would be wholly frustrated if the statute did not bind the Crown. The House of Lords in Lord Advocate v. Dumbarton District Council[17] fully accepted the decision of the Privy Council in the Bombay Municipal Corporation case. In this case, the House of Lords held that the Crown was not bound by the Roads (Scotland) Act 1947 and the Town and Country Planning (Scotland) Act 1972 because the Crown was not expressly or by necessary implication included in these acts and hence the claims of the local planning authority and local highway authority that work undertaken and encroachment of the Highway were in contravention the said Acts were dismissed.[18] Despite the rule, the immunity of the Crown has been affected by some other factors. For example, s.1 of the Crown Proceedings Act 1947 permits the Crown to be prosecuted directly in those circumstances where preceding the Act, a claim might have been implemented by petition of right.
Also, s.2 of the same Act authorizes actions to be brought against the Crown with regard to torts committed by its servants or agents for any breach of its duties that gives rise to tortious liability.[19] The rule though still applicable in England, has received great criticism. In his book on Crown Proceedings, Glanville L. Williams has stated that the rule had emerged in the Middle Ages, when maybe there was some justification for the rule, but it has survived merely due to vis inertiae. It is very difficult to apply the rule as well. In modern times, with the increase in State’s activities as well as the increase in the number of employees of the State, as well as the novel idea in the Crown Proceedings Act that the State should be widely held accountable to the law, it should be the presumption that the State is bound by statutes rather than it is not.[20] Position of Law in India The Supreme Court of India in the case of State of West Bengal v. Corporation of Calcutta,[21] held that the common law rule of construction with regard to statutes affecting the State was not accepted in India even prior to the Constitution. With regard to the Privy Council decision in the Bombay Municipal Corporation case, the court stated that the rule was applied as a concession made by the Council and that it was established and clear from the legislative practices in India that the Indian legislature would provide express exemptions in cases where the State was not to be bound by a statute and that in all other cases the State was bound. Therefore, the Indian legislatures did not rely on any presumption as the common law did, but rather, they relied only on express exemption. The Court further held that the Common Law rule had no application or significance to a democratic republic like India as it was based on the privilege of the Crown. It was inconsistent with the doctrine of equality as laid down in the Indian Constitution.[22] Thus, as a result of this decision, in India, general Acts apply to both the citizens as well as the State unless the statute, by express terms or by necessary implication, exempts the State from its operation. Whether the State has in fact been exempted by necessary implication from being bound by an Act depends on the fair construction of the Act in question. In this case, Bachawat J. observed that: “Particular care should be taken in scrutinising the provisions of a taxing or a penal Act. If the application of the Act leads to some absurdity, that may be a ground for holding that the State is excluded from its operation by necessary implication. If the only penalty for an offence is imprisonment, the State cannot be convicted of the offence, for the State cannot be locked up in prison. If the penalty for the offence is fine and the fine goes to the consolidated fund of the State, it may be presumed that the penal provision does not bind the State, for the legislature could not have intended that the State will be the payer as well as the receiver of the fine.
Presumably, the Union is not bound by the Central Income-tax Act because if it paid income-tax, it will be both the payer and the receiver. Likewise, a State is prima facie not bound by a State Agricultural Income-tax Act where the tax is receivable by it. Moreover cases may conceivably arise where express provisions in a statute binding the State in respect of certain specific matters may give rise to the necessary implication that the State is not bound in respect of other matters.”[23] In this case, the State of West Bengal was carrying out trade without a license and without paying the fee as required under s.218 of the Calcutta Municipal Act 1952. According to s.541 of the Act, these offences were punishable with a fine that was to be collected by the Corporation. The court held that the State was bound by this Act because the fine recovered would not go to the Consolidated Fund of the State but to the Corporation’s fund and hence there was no implication in the Act that the State should not be held liable for the offence.[24] In Union of India v. Jubbi,[25] the question arose as to whether s.11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act 1953 applied to cases where the Government was the landlord. The section provided the tenants with the right to procure the interests of landlord on payment of compensation. The court held that it would apply even when the Government was the landlord because there was nothing expressly or by necessary implication mentioned in s.11 that exempted the State.
Further, since the basis of the Constitution is founded on equality and absence of arbitrary discrimination, the presumption would be that the law that seeks to provide the tenant with security of tenure should bind all landlords no matter whether the landlord is the Government or not.[26] There have been a number of instances when the judiciary has stated that the State is in fact bound by certain legislations even though it is not mentioned in the Act itself. Some instances are as follows: In Samatha v. State of Andhra Pradesh,[27] the word ‘person’ in the Andhra Pradesh Scheduled Area Land Transfer Regulations 1959, that prohibits a ‘person’ from transferring land to non tribals, was held to include State and hence prohibited transfer of government land to non tribals. This is in clear distinction to the decision of the House of Lords in the case of A.G. v. Hancock as discussed earlier. In State of Bihar v. Sonabati Kumari,[28] the supreme court held that if a temporary injunction is disobeyed by the State, then property of the State is liable to be attached as under Order 39 Rule 2(3) of the Code of Civil Procedure.
Thus, it held that the State was bound by the CPC just as any other citizen. The court in the case of Municipal Corporation of Amritsar v. Senior Superintendent of Post Offices,[29] held that unless the Parliament provides otherwise, property of the Union is exempt from taxation imposed by a state law as per A.258 of the Constitution. The court in Lucknow Development Authority v. M.K. Gupta,[30] stated that the Consumer Protection Act applies to the State just as it applies to any other citizen because the Act does not expressly or impliedly indicate that the State should be excluded from the purview of the Act. In cases of Welfare Legislations, even where the act does not apply to the Government, an agent or instrumentality of the Government, which is not even a department of the Government may be bound by the Act. In Hindustan Steel Works Construction Ltd. v. State of Kerala,[31] a company that was fully owned by the Central Government was held to be bound by the Kerala Construction Workers Welfare Funds Act 1932 although the act was not applicable to the Central Government. Conclusion Through the above the discussion, the difference between the Common Law and the law in India when it comes to interpretation of statutes affecting the crown or the state, can be seen. While the common law works on a presumption of immunity of the crown, the Indian law is applicable to the State just as it would be applicable to any other citizen. The evolution of the law and principles over the years has been developmental and progressive and the rules have proved to be efficient external aids to interpretation.
[1] GP Singh, Principles of Statutory Interpretation (12th edn, Lexis Nexis Butterworths Wadhwa Nagpur 2010) 726-727.
[2] Francis Bennion, Bennion on Statutory Interpretation (5th edn, Lexis Nexis 2008) 206.
[3] [1561] 75 ER 339 (KB).
[4] Willian v. Berkley [1561] 75 ER 339 (KB) 240.
15] AIR 1947 PC 34.
[6] Bombay Province v. Bombay Municipal Corporation AIR 1947 PC 34, 35.
[7] Magdalen College, Cambridge Case (1616) 11 Co Rep 66b.
[8] ibid. 70b, 72a, 73b.
[9] Matthew Bacon, A New Abridgment of the Law (7th edn, A Strahan 1832) 462. [10] Halsbury’s Laws of England vol 36 (3rd edn, Lexis Nexis 1952) 431. [11] (1955) 1 All ER 753. [12] Madras Electric Supply Corporation v. Boarland (1955) 1 All ER 753, 759. [13] (1940) 1 All ER 32. [14] Singh (n 1) 728. [15] AIR 1947 PC 34. [16] Bombay Province v. Bombay Municipal Corporation AIR 1947 PC 34, 36. [17] (1990) 1 All ER 1. [18] Lord Advocate v. Dumbarton District Council (1990) 1 All ER 1, 9, 10, 15. [19] Singh (n 1) 730. [20] Ibid. 731-732. [21] AIR 1967 SC 997. [22] State of West Bengal v. Corporation of Calcutta AIR 1967 SC 997, 1008. [23] Ibid.1020. [24] ibid. [25] AIR 1968 SC 360. [26] Union of India v. Jubbi AIR 1968 SC 360. [27] AIR 1997 SC 3297. [28] AIR1961 SC 221. [29] (2004) 3 SCC 92. [30] AIR 1994 SC 787. [31] AIR 1997 SC 2275.
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The Doctrine of Successor Liability and the Drift Towards the Assumption of Liability
Doctrine of Successor Liability: Tracing the drift from the `Traditional non-liability rule’ to `assumption of liability’ through judicial precedents AbstractTraditional corporate law has been applied over the years to deal with the liabilities arisen after one company’s acquires another company The general rule says that an acquiring corporation doesn’t assume any liabilities of the predecessor corporation. The courts over the years have evolved this traditional stance and laid down exceptions, making the successor corporations assume such liabilities. This paper has tried to trace and outline the diversion from the traditional rule of non-liability to the assumption of liabilities by the successor corporations.
There are four exceptions to this general non-liability rule which shall be explained in detail with progressing contentions in the research paper. The non liability principle creates hurdles in seeking remedy for the injured. The claimant might lose any right to damages if he fails to recover from the successor corporation. The liability can even be fixed in environmental issues, where companies will be fixed with `superfund liability’ and made to cleanup’ the environment. This principle of fixing liability on the successor corporation in various areas is known as `Doctrine of Successor Liability’. This doctrine attempts to bridge the gap between general rule of no-liability and tortious liability.
However, the doctrine also safeguards the interest of the successor corporation from assuming any liability for tort committed by the predecessor. This paper evaluates this doctrine through numerous case laws of multiple jurisdictions, with an insight from different governing statutes as well.
IntroductionDoctrine of successor liability’ is a relatively new and evolving field of Jurisprudence. Legal systems around the world largely rely on common law in the area of application this doctrine. A `successor’ is defined as “1. A person who succeeds to the office, rights, responsibilities, or place of another; who replaces or follows a predecessor.2. A corporation that, through amalgamation, consolidation, or other assumption of interests, is vested the rights and duties of an earlier corporation.”The Restatement of Tort (3rd.) (2000) “Chapter 3” outlines the “Libaility of Successor Manufacturers” Whether a successor can be liable for defective product sold the predecessor is decided generally by traditional corporate law emphasizes on the type of corporate acquisition between the two corporations. A cash purchase of the predecessor’s assets, instead of a merger or a stock purchase will attract traditional corporate laws, which holds that the successor will not be liable.’There are three ways through which a transfer can be done: (a) by statutory merger or consolidation; (b) through the purchase of the stock of a target corporation; and (c) through the purchase of assets of the target corporation. The traditionally, law of corporations governing the liability of a successor corporation is affirmed in many cases. Ifone corporation sells its assets to another corporation,then the later isn’t tortiously liable for the former’s conduct.
This principle is contended by many courts. Its purpose is to prevent the successor corporations of any liability that arises. It can be traced to the notion that the law does not force the purchaser to assume such liability. American jurisdictions also weave around the general notion that a successorcorporation, which acquires the assets of another company,won’t be legally responsible for the actions of its predecessor. Successor liability rule in New York holds that a purchaser is not liable for its seller’s liabilities except where there is an express agreement between them governing otherwise. The New York Supreme Court also affirmed the already existing general rule.
The logic seems equally applicable as the general rule regarding successor liability is well settled that a corporation does not assume its predecessor’s liabilities automatically.ExceptionsThere are four recognized exceptions to the general rule. First is applicable where the buyer agrees to assume, expressly or implicitly, the debts and liabilities. The second applies to the transaction where there isconsolidation or merger of the seller and purchaser. Thethird exception is attracted when the successor corporation is merely a continuation of the predecessor corporation.
The fourth exception applies to a colorable transaction which is entered in order to defraud the creditors or the shareholders of the seller corporation. The courts over the years have developed thesefour exceptions to the general rule of non-liability forassetpurchasers. Theseexceptions are made with a purpose to ensure that corporations don’t evade their liabilities through the use of transactional technicalities.Under the traditional approach, asset purchasers will be considered corporate successors if one of the following applies: Assumption- The purchaser expressly or impliedly agrees to assume the liabilities of the seller. The court has noted that an asset sale agreement amounts to a simple transfer, which establishes that the successor didn’t attain any liabilities because the identity of the predecessor was not used, nor was any of supervisors hired by the successor. The Court thus held that the buyer did not assume any liabilities of the predecessor, neither expressly nor impliedly. “Under the asset purchase agreement, the purchaser did not assume any of the liabilities of the seller”, because of a similar reason. In addition, Minnesota Business Corporations Act mandates the presence of a provision in a contract or an agreement to hold the transferee liable.
Now in case a situation arises where the language of such a provision in the agreement or a contract is found to be unclear or ambiguous, the courts assume that there is an implied liability on the buyer the for defective products, if any. Thus to avoid such discrepancies involving assumption of liabilities, it is best if such an agreement unequivocally states that there is no assumption of future products liability.De Facto Merger- The transaction amounts toa de factomerger or consolidation if the corporation assumes the liability of its predecessor.
The important concept in this exception is not the continuation of the business operation but the continuation of the corporate entity. The New York Supreme Court, Appellate Division, First Department, in Van Nocker v. A.W. Chesteron, Co discussed the second successor liability exception. The court notes that asset purchases can be said to be a de-facto mergers if it includes the following four factors:(i) continuation of ownership arising from the use of the successor’s stock as payment rather than the use of cash(ii) after the transaction the predecessor dissolves as soon as possible,(iii) the buyer assumes liabilities necessary to continue the business of the seller and;(iv) the buyer continues the using predecessor’s enterprise.The Court in Van Nocker v. A.W. Chesteron, Co. further explained that all of these factors may not be necessarily needed to prove a de-facto merger but presence of the first two is required. It also said that continuity of ownership exists ifthe shareholders of the predecessor corporation become direct or indirect shareholders of thebuyer. Continuity of ownership is a situation where the parties to the transaction become owners together of what formerly belonged to each.b The Van Nocker Court, failing to find either of the first two elements refused to evaluate the other factors.
The Fourth Department of the New York Supreme Court, Appellate Division, while determining whether a transaction satisfied the prerequisites of a de-facto merger, held that “[w]hile factors such as shareholder and management continuity will be evidence that a de facto merger has occurred, those factors aloneshall not be determinative.” The U.S. District Court for the Southern District of New York examined the continuity of ownership element of de facto merger stated, “[T]he de-facto merger doctrine creates successor liability when the transaction between the purchasing and selling companies is in substance, if not in form, a merger.” The court further stated that the factors should be considered in a “flexible” manner and question the crux that whether it was the “intent of the successor to absorb and continue the operation of the predecessor.” It maintained `continuity of ownership’ as one of the pivotal requirements for a de facto merger. About the fourth factor the court stated that sheer hiring of employees of the seller was insufficient to conclude that there was continuity of management. In Kretzmer v. Firesafe Prods. Corp. the attorney had switched employers and brought along a secretary, an associate, and some cases, the Court held that such an instance didn’t amount to a merger or consolidation and thus there wasn’t a de facto merger. Hence, while dealing with the de facto merger exception, continuity of enterprise or ownership is considered prior to the tree other factors. Mere Continuation: If the corporation has the same shareholders, directors and officers, it will be eligible for this exception. In the Seventh Jud. Dist. the Court said that mere continuation” is a type of restructure in which one entity gets dissolved and another survives.
The dissolution should take place as soon as possible, but in this case the seller was not dissolved for more than a year, so the Court held it to be out of the ambit of mere continuation exception. In other jurisdictions this exception requires continuity of owners and/or directors. This exception is “problematic of application because it has never been quite clear just in what sense a corporation must continue in order to trigger the exception.”4. Fraudulent- The transaction was fraudulently entered into to escape liability. The New York courts have laid their emphasis on many fraudulent transactions but have not provided any exceptions for the same. If the creditors of the seller are being defrauded by the transaction, then also it will fall under this exception, Few of the instance can be; if the predecessor corporation holds the possession of the property but doesn’t actually own it, making its creditors believe that it still owns the property, if the proceeds of the sale are sent away, and if the property is sold for an insufficient amount to an acquaintance. The malafied intention to defraud has to be proven including those jurisdictions that have adopted the Uniform Fraudulent Conveyance Act.While as other jurisdictions presume such an intention. In situations like these, both the seller as well as the buyer can be held liable.The Continuity of Enterprise Exception.In 1983 Salvativ.
Blaw-Knox Food & Chemical Equipment, Inc., NewYork’s Court of Appeals recognized Continuity of Enterprise’ exception, it defined it as a part of “corporate reorganization,” The Supreme Court of Queens County later explained that the this theory was originally introduced by the Supreme Court of Michigan in Turner v. Bituminous Cas. Co. Salvati noted the Michigan Court’s rationale, that it to be unjust to allow the successor to avoid liability Salvati set forth the Michigan court’s three criteria test, such continuity would be there if: there wasa continuation of the enterprise of the seller;the predecessor dissolved promptly after the transaction, and the buyer assumed liabilities and obligations of the seller. Salvati accepted the logic put forward in the case of Turner. So the tests laid down by Turner and later reiterated in Salvati are similar to the factors laid down in Van Nocker. The Michigan Supreme Court extended the de facto merger doctrine by eliminating the continuity of shareholder requirement and applying that exception to cash transactions. Product Line Exception.In 1977, the California Supreme Court created the product line exception. The Court said: We therefore, conclude that a party which acquires a manufacturing business and continues the output of its line of products under the circumstances here presented assumes strict tort liability for defects in units of the same product line previously manufactured and distributed by the entity from which the business was acquired.
Anything to the contrary in Ortiz v. South Bend Lathe, supra, 46 Cal.App.3d 842, or Schwartz v. McGraw-Edison Co., supra, 14 Cal.App.3d 767 (see fn. 6, ante) is disapproved Different jurisdictions have different stands on the product liability exception. In Hickman v. Thomas C. Thompson both the buyer and the seller corporations were of Illinois, the buyer had bought the assets of the seller corporation. Later a resident of Colorado was injured by a product manufactured by this Illinois corporation.
There was an arm’s length agreement, for the purchase of assets, signed and executed in Illinois. In Illinois the product line exception doesn’t hold good. The district court opined that: 1) successor liability is a tort claim, and not a contract claim; 2) As the injury occurred in Colorado so the Colorado law applies; and 3) The Product line exception would be accepted by the Courts. Hickman court’s view was dissented in the Tenth Circuit in Florom v. Elliott Mfg., and held that Colorado would reject the product line exception. Comprehensive Environmental Response, Compensation & Liability Act and Successor LiabilityCERCLASuccessor corporations are liable the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Thesubstantial continuity test under CERCLA is a continuation successor liability under any other asset purchase.
The same “general rule of non-liability” and the “exceptions” to it are also applicable in case of successor liability under CERCLA. Many courts have included corporate successor’s liability while interpreting the act. In United States v Bestfoods, the Supreme Court did not make this aspect of “superfund liability” redundant and kept the substantial continuity test alive in CERLA as well. The Court has laid down CERCLA’s purpose as: CERCLA’s primary purpose is remedial: to clean up hazardous waste sites. . . . Because it is remedial statute, CERCLA must be construed liberally to effectuate its two primary goals: (1) enabling the EPA to respond efficiently expeditiously to toxic spills, and (2) holding those parties responsible for the release liable for the costs of the cleanup. In that way, envisioned the EPA’s costs would be recouped, the Superfund preserved, and the taxpayers not required to shoulder the financial burden of nationwide cleanup. There are various factors which the courts apply while deciding whether a successor corporation should assume any liability Courts applying the substantial continuity test consider a range of factors to determine whether the buyer has substantially continued the predecessor’s enterprise these include; if any successor corporation continues retaining the following:same employees;same supervisors;same name;same production or service line;same production facilities;continuation of same assets;general business; andwhether the buyer continues the predecessor’s enterprise. It isn’t necessary that a corporation should fulfill all these criteria for it to assume liability of the predecessor. In New York v. Westwood-Squibb Pharm Co. the court held liable the asset purchaser corporation when it satisfied six of the eight factors. CERCLA’s purposes and principles of corporate successor liability are both in harmony with the substantial continuity test. However, there are discrepancies that may arise; e.g., sec. 113(f of CERLAprovides PRPs with a statutory right of contribution. 42 U.S.C. 9613(f)(1). Sec.113(f)(2) says that if PRPs enter into settlements with the federal government, it resolves it’s liability.ConclusionThe general rule of “non-liability” says that a “successor corporation” will not assume the liabilities of the “predecessor corporation” for defective products sold by the predecessor. But the courts over the years have developed principles holding the successor liable.
The rift between the liability law and general non-liability corporate law has led to the evolution of such rules by the courts. Mere continuation, de facto merger and the product line doctrines broaden and specify the areas for fixing of liability. These rules have also firmed protection against colourable intent of corporations to avoid liability.
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The Doctrine of Successor Liability and the Drift Towards the Assumption of Liability. (2017, Jun 26).
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The Cyanamid Test
Introduction Interim (a.k.a. interlocutory) prohibitory injunction is a court order that forbids the person it is addressed to do something. It is an equitable remedy and is awarded at the discretion of the court. The famous guidelines for granting the interim injunctions by the court were introduced by Lord Diplock in the case of American Cyanamid Co v Ethicon Ltd[1] (hereinafter the Cyanamid test). The above case concerned the claimant, a US company marketing synthetic surgical sutures, which was finally granted an injunction by the House of Lords to restrain the defendant, an English company, which invented a similar product, from infringing its patent rights. This work aims to analyse the argument that the Cyanamid test is too rigid prompting the courts to create a number of exceptions. The Cyanamid test Lord Diplock introduced the following elements of the Cyanamid test to be satisfied in order for the court to grant interim prohibitory injunction[2]:
- Serious questions to be tried
Firstly, the claimant is required to show to the court that its claim has substance, i.e. that it is “an issue for which there is some supporting material and the outcome of which is uncertain”[3] rather than a frivolous claim[4].
- Adequacy of damages
If the first element is satisfied, the court will then look into whether the damages awarded to the claimant or to the defendant, if the latter wins, are adequate to do justice (Garden Cottage Foods Ltd & Milk Marketing Board[5]). Where damage is hard to quantify or in the case of irreparable harm, the injunction is likely to be granted (Allen v Jambo Holdings Ltd[6]).
- Balance of convenience
If there are any doubts regarding the adequacy of damages, the balance of convenience will be looked at by the court “balancing” all other issues specific to the case. Subsequent treatment of the Cyanamid test The decision in the Cyanamid case caused some turbulence in the subsequent court decision making. However, before proceeding with analysis of the same, it is essential to note that the Cyanamid test comes into a conflict with earlier Beecham Group Ltd & Bristol Laboratories Pty Ltd[7], where the court emphasised that for the injunction to be granted, firstly, the claimant must establish “prima facie case”, i.e. that the claimant is actually entitled to the right he is claiming and, secondly, the proof of the probability of success was required, which is overall a much tougher test to satisfy than the Cyanamid test. Subsequently, the Cyanamid test was closely followed by the courts in a number of cases, such as Alfred Dunhill Ltd v Sunoptics[8], where Browne LJ stated that Lord Diplock’s decision was binding and that the Cyanamid test should be followed. The court in Thomas Marshall (Exports) Ltd v Guinle[9] followed the Cyanamid test as well, but nonetheless noted that there are some cases where the needs of the parties and justice dictate a more comprehensive hearing with Beecham style test applied. When analyzing the Lord Diplock’s rationale behind the Cyanamid test it appears that he tried to ensure the speedy review of the injunction applications and to prevent the occurrence of unnecessary “mini-trials” burdening the court system (Series 5 Software Ltd v Clarke[10]). Some commentators argue that he went too far in setting out very precise rules on assessing the strength of parties’ cases, the potential harm to the parties despite alternative legal resorts and availability of undertakings in relation to payments of damages, which was limiting the exercise of the court’s discretion to do justice[11]. In order to ensure the equitable treatment of all cases, courts tended either to side-step the Cyanamid test or create exceptions to it. It was distinguished in Bryanston Finance Ltd v de Vries (No 2)[12] by the Court of Appeal, which decided that the Cyanamid test was inapplicable to injunction application to prevent presentation of winding up petition. Keay in his article[13] provides a number of further examples of exceptions, such as cases where fraud is involved (Alfred Dunhill Ltd v Sunoptics[14]) and those relating to the right to publish an article or the transmission of a television programme where time is of the essence (Cambridge Nutrition Ltd v BBC[15]), mandatory injunctions applications (De Falco v Crawley BC[16]) and employment and industrial disputes (Attorney-General v Punch Ltd[17]). Interestingly, one of the exceptions was introduced by Lord Diplock himself in NWL Ltd v Woods[18] where he accepted that the Cyanamid test should not be adhered to if the interim hearing was going to be decisive and final. This is a very important exception as Lord Denning M.R. in Fellowes & Son v Fisher[19] mentioned that “after a decision on an interim injunction application the matter goes no further in 99 out of 100 cases” [20]. Besides the exceptions, it appears that the courts in some cases felt that the “prima facie” test worked better and in Fellowes & Son v Fisher[21] Browne LJ was particularly concerned that it was not possible to consider the balance of convenience fairly and equitably without taking into account the merits of the case[22]. On another note, Meagher argued that it is doubtful that the damages can actually be adequate in cases where the remedy of injunction is sought[23]. Indeed, the injunction is generally applied for in specific, sometimes extreme, cases to prevent the applicant’s potential hardship, undermining of its reputation, loss of its customers’ trust or loss of its business relationships and it is hard to imagine how the damages can be adequate if any of the above happens. Again, this should all be left to the court’s discretion in order to allow it to do what is just and equitable. Recent considerations Since the introduction of the Civil Procedure Rules and the ensuing change of approach towards the case management, it is claimed that the Cyanamid test is not as critical as it once was, mainly because the Rules place, among other things, greater emphasis on identifying and resolving issues likely to go to hearing as early as possible[24]. In addition, following the implementation of the Human Rights Act 1998, the court in Cream Holdings Ltd v Chumki Bannerjee & The Liverpool Daily Post & Echo Ltd[25] held that the Cyanamid test is no longer applicable to injunction application relating to the freedom of expression[26]. Conclusion The Cyanamid test is a good example of the battle happening in the courts on the most equitable methods to be used to decide the interim injunction’s application, which are generally either on the merits of the case (the prima facie case) or on the balance of convenience (the serious question). It was argued that some bits of the Cyanamid test were considered too rigid and limiting the court’s discretion in doing justice. As a result, whilst the Cyanamid test was acknowledged and in some cases followed by the courts, it has been frequently either avoided or subject to various exceptions, altogether with ensuing criticism and academic debate. Following the introduction of the Civil Procedure Rules, the Cyanamid test seem to have lost its edge and the Human Rights Act 1998 disapplied its application to the cases involving freedom of expression. However, at the end of the day, the Cyanamid test should not be treated “as rules but only as guidelines”[27]. As such, they seek to bring more flexibility rather than limit the discretion given to the court by equity (R v Secretary of State for Transport, ex parte Factortame Ltd[28]). Bibliography Meagher R et al, Equity – Doctrines & Remedies, 4th ed., LexisNexis Butterworths, Charswood, 2002 McGhee J, Snell’s Equity, 31st ed., Sweet & Maxwell, London, 2005 Spry I, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages, 7th ed., Sweet & Maxwell, London, 2007 Cumming G, The Use of English Civil Procedure in order to Enforce European Competition Law, Civil Justice Quarterly, 25, 2006, 99-112 Keay A, Whither American Cyanamid?: Interim Injunctions in the 21st Century, Civil Justice Quarterly, 23, 2004, 133-151 1
Footnotes
[1] [1975] AC 396 [2] American Cyanamid Co v Ethicon Ltd [1975] AC 396, at 408, per Lord Diplock [3] Cayne v Global Natural Resources Plc [1984] 1 All ER 225 [4] Meagher R et al, Equity – Doctrines & Remedies, 4th ed., LexisNexis Butterworths, Charswood, 2002, p.779 [5] [1984] AC 130 [6] [1980] 1 WLR 1252 [7] (1968) 118 CLR 618 [8] [1979] F.S.R. 337, at 365 [9] [1979] F.S.R. 208 [10] [1996] 1 All E.R. 853 [11] Spry I, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages, 7th ed., Sweet & Maxwell, London, 2007, p.466 [12] [1976] Ch 63 [13] Keay A, Whither American Cyanamid?: Interim Injunctions in the 21st Century, Civil Justice Quarterly, 23, 2004, 133-151, p.139 [14] [1979] F.S.R. 337 at 363 [15] [1990] 3 All E.R. 523 at 534 [16] [1980] 1 Q.B. 460, CA [17] [2003] 1 A.C. 1046 [18] [1979] 1 W.L.R. 1294 at 1306 [19] [1976] Q.B. 122 [20] ibid, at 133 [21] [1976] QB 122 [22] ibid, p.139 [23] Meagher R et al, Equity – Doctrines & Remedies, 4th ed., LexisNexis Butterworths, Charswood, 2002, p.780 [24] Keay A, Whither American Cyanamid?: Interim Injunctions in the 21st Century, Civil Justice Quarterly, 23, 2004, 133-151, p.151 [25] [2003] 2 All E.R. 318 [26] This is because s.12 of the Human Rights Act 1998, which incorporated the European Convention on Human Rights into English law, provides that no relief, including injunction, restraining the freedom of expression “is to be granted so as to restrain the publication before trial unless the court is satisfied that the applicant is likely to establish that publication should be allowed”. In these circumstances, the Cyanamid test would be unsuitable (Cumming G, The Use of English Civil Procedure in order to Enforce European Competition Law, Civil Justice Quarterly, 25, 2006, 99-112, p.107 ). [27] Cayne v Global Natural Resources plc [1984] 1 All ER 225 at 237 [28] [1991] 1 AC 396
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The Creation, Goals and Missions of the United Nations
Charter of UN, Article 1
Secondary Sources: https://www.un.org/en/peacekeeping/operations/current.shtml https://www.un.org/en/peacekeeping/news/ https://www.un.org/en/peacekeeping/operations/ https://www.un.org/en/peacekeeping/operations/past.shtml https://www.un.org/apps/news/region.asp?Region=3 https://www.haitilibre.com/en/news-11641-haiti-elections-cep-completed-max-mathurin-new-president.html[1] https://www.un.org/en/documents/charter/chapter1.shtml 27.12.14/21:22 [2] https://www.un.org/en/peacekeeping/missions/unmiss/mandate.shtml 27.12.14/21:30 [3] https://www.un.org/apps/news/story.asp?NewsID=49440#.VJ7sJV4DJA 27.12.14/21:50
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The Different Elements of a Contract
- To explain the importance of the elements required for the formation of a valid contract.
- To discuss the impact of different types of contracts.
- To evaluate the effect of different terms in given contracts
- To apply the elements of the tort of negligence and defenses in different business situations.
- Offer- there must be a definite, clearly stated offer to do something.
- Acceptance- only what is offered can be accepted. This means that the offer must be accepted exactly as offered without conditions. If any new terms are suggested this is regarded as a counter offer which may be accepted or rejected. Acceptance can be given verbally, in writing, or inferred by action which clearly indicates acceptance.
- Consideration- in order for a contract to be binding, it must be supported by valuable consideration. That is to say, one party, promises to do something in return for a promise from the other party to provide a benefit of value (the consideration). Consideration is what each party gives to the other party as the agreed price for the other’s promises.
- Intention to create legal relations- a contract requires that the parties intend to enter into a legally binding agreement. That is, the parties entering into the contract must intend to create legal relations and must understand that the agreement can be enforced by law. If the parties to a contract decide not to be legally bound this must be clearly stated in the contract for it not to be legally enforceable.
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