Month: June 2017
Should Economic Efficiency be the Primary Consideration for Competition Law?
It is widely accepted that economic efficiency is the primary consideration and legitimate doctrine when contemplating the goal of competition law. This is agreed upon by both legal and economist scholars. [1] Economic efficiency brings about monumental benefits; it stimulates the economy, reduces the prices of products, and improves development innovation and creativity, creating new sources of capital.[2] Schweitzer has argued that competition law can never stand alone with just economic efficiency in a democratic society. The inclusion of public policy choices is inevitable.[3] This implements an idea that competition law is a myriad of broader national and public policies, strategies, priorities and interests. This suggests that it may not be such a good idea to place economic efficiency as the prime consideration of competition law. Merger regulations provide a good example to foster the idea that the governments’ goal for competition law goes beyond the maintenance of market competitiveness and towards a more social one.[4] Governments may find themselves inclined to prefer non-efficiency motivators due to pressure by interest groups accounting for their social needs.[5] Since there is influence from these non-economic objectives then it would seem that suggesting a framework to accommodate for these objectives would be necessary.
However, although this would seem to show that non-efficiency objectives are indeed integrated into the internal part of competition law, this doesn’t mean that such objectives are followed by the judiciary or the competition law enforcement bodies.[6] This idea brings to life the understanding that although non-efficiency objectives are mentioned and voiced, it may only be done to please the many voices for it, as at the end of the day the enforcers have the discretion to pursue the objective which they see more suitable. More often than most being an economic one. In order to be able to appreciate the objectives of competition law, it is important to look at the specific legal system in question, as different systems have different priorities.[7] In less developed countries the focus of competition law policy falls on mostly social objectives. They usually have a liking in the protection of small businesses and decentralization of political & economic power. [8] This would mean then that the idea of economic efficiency being the prime focus of competition law is frustrated. With that being said the question over the objective of competition law policy would be whether to achieve moral goals or to insure that the promotion of competition and economic efficiency is maximised.[9] Government intervention also has an important role to play in indentifying the priority of competition law policy in a country.
Conservative and libertarian views are in favour of minimal government intervention and thus would opt for the objective of competition law to be based on economic efficiency.[10] Contrary to that, the more liberal views are more prone to support non-efficiency objectives such as the welfare of small businesses and the dispersion of power, in consequence, they are suspicious of corporate power.[11] When focusing on the economic efficiency, there is a usual disregard for the distribution or equity implications involved.[12] This is why we have the liberals who endeavour to protect those rights. There appears to have been a shift and focus on the objectives taken by different jurisdiction. This change has been towards a more economic efficiency base.[13] This was demonstrated by the UN conference of Trade and Development (UNCTAD), which indicated, ‘the trend is towards relatively greater emphasis upon competition, efficiency and competitiveness objectives.’[14] It has been stated that the allure of economic efficiency may have taken a global turn by different jurisdictions following under the same steps but this does not mean that other non-economic objectives don’t need to be considered.[15] Michael Porter argues that construing an entire body of law solely on consumer welfare theory could result in the overlooking important benefits for society.
Competition law would not perform at its best and to its full promise if it did not account for society’s benefit.[16] Porter is not the only believer that a solely economic efficient objective would not be appropriate for competition law policy. Professor Robert Pitofsky, supports this stance and adds that an entirely economic approach would lead to market domination by few corporate giants.[17] As a soltution, Maurice Stucke suggests that different objectives of competition law should be accepted ‘because these multiple goals reflect the various stakeholders’[18] interests and concerns, which they want addressed.[19] It must be noted that judicial and legislative approaches towards non-efficiency goals are troubling. We have mentioned that economic efficiency is the preferred objective. However, it must also be determined that if the judicial and legislative bodies where against non-economic efficiency all together, they would enact or amend so as to provide primacy to economic analysis. This demonstrates that non-economic considerations should play a role within competition law.[20] On top of that, it is maintained by John Flynn that ‘although economic analysis provides valuable insights into business dynamics and the probable effects of a commercial practice in the market place, economics is not law.’
The competition policies are passed by politician and not by economists. In order to fulfil the aspiration of the people competition law ought to take into account all the peoples aspirations.[22] Professor Harry First also states that in pursing consumer welfare we inevitably satisfy the desire of citizens as a consumer only and that we ignore the inclination registered politically which consequently does not show up in the analysis of market place efficiency.[23] In focusing on economic efficiency or the ‘market efficiency’ there is the issue that there is a failure to express people’s preference beyond their dollars.[24] So a preference for more expansive opportunities for a small business or preventing concentrations of economic power in private hands cannot be prevented.[25] It does not make sense to ignore these preferences as the politics would point out that the public places value on these objectives.[26] The disregard of the peoples voice means that democracy is being forgone and in the process people may lose faith in competition law policies.[27] So many people are affected by competition law policies, therefore it would make sense that the consideration of both economic and non-economic objectives are accounted for in order to promote fairness.
Stucke comments that ‘competition policy in democracy will never be captured by a single economic goal.’[28] The best way to overcome this once again to accommodate the self-interest of the people and lodge their hopes and fears I regards to competition.[29] By looking at what different jurisdiction have adapted we can have an idea of what has been working best. And by understanding what works best then we can determine whether we should focus on economic efficiencies. We can do this by using the merger control analysis.[30] The US courts have proven to focus their objectives on economic efficiency in their merger policies. The merger guidelines of 1992, demonstrate this as it has lowered the standard of proof for efficiency arguments.[31] Canada also provides an efficiency defence in their competition Act under Section 96. In the Act they set out a test to check the effects of the merger and balance it against the efficiency gains.[32] The producer and consumer’s losses and gains are reviewed.[33]
The Canadians approach factor non-economic considerations and consider the protection of small and medium enterprises, and the balancing of such mergers against efficiency gains of the merger.[34] In the UK, the objective is on the ‘increase rivalry in the market into account in assessing whether a merger gives rise to any risk of a substantial lessening of competition.’[35] The Office of fair trading which deals with the matter is allowed to use its discretion into these cases. The US holds the leading role of promoting the economic-efficiency objective whereas the European countries demonstrate a state of the mergers of both economic and non-economic efficiency objectives.[36] There has been a rise in the Chicago school of thought, which are fervent believer on the ‘economic approach.’ The Canadian competition law is like Europe in that it has managed to find a relative balance between the two objectives within a statutory framework. However, there is a penchant towards the economic efficient objective in practice.[37] The UK has shown to have preferred the economic efficient approach and has in consequence slowly give less weight to the importance attributed by statute to public interests concerns.
The task for a jurisdiction to accommodate non-economic efficiency is extremely difficult. Countries such as Israel are still in quest of a method to implement non-efficiency concerns in the Israeli competition law.[39] It has been found by Areeda and Hovenkamp that two approaches should be followed if economic-efficiency objectives should be applied. a) absence of collision with ambiguous statutory language.[40] b) institutional capability of ‘managing the information and decision-making process necessary’ to implement such approach.[41] It has been pointed out however, that if too much attention is given to non-economic efficiency objectives when decisions are made then in the long run the economy will become less efficient, which will eventually affect the consumers negatively.[42] There seems to be a great need to combine both economic and non-economic efficient objective together.
Blake and Jones have cited that the same rule of law may promote both objectives.[43] It is believed that non-efficiency objectives may be reached by ensuring market efficiency. In fact, what is believed is that economic efficiency is the ‘direct goal’ of competition, while the socio-political and other non-economic concerns are considered ‘ultimate goals’.[44] The concern which many have with the Chicago school of thought is that the economic approach they eagerly defend brings about short term benefits. The merger guidelines that defend such thought[45] fails to take into account the social and political impact of mergers , which in the long run may lead to loss or transfer of jobs or an increasing political influence.[46]
References
- Organisation for economic co-orperation & development COECD, competition policy & efficiency claims in horizontal agreements (Paris,) 1996), p.5. [2]O. Green.(2008). Integration of non-efficiency objectives in competition Law. LL.M.Thesis.Faculty of Toronto: Canada. P2 [3] H. Schweitzer. “Competition law and public policy - reconsidering an uneasy relationship: the example of Art. 81” (2007), p. 13. Available at SSRN : https://ssrn.com/abstract=1092883. [4] A. Ezrachi, “The role of voluntary frameworks in multinational cooperation over merger control”, 36 Geo. Wash. Int. L. Rev. 433, 438, n. 16 (2004). [5] O. Green.(2008). Integration of non-efficiency objectives in competition Law. LL.M.Thesis.Faculty of Toronto: Canada. P.3. [6] K.G Elzinga, “The goals of antitrust: other than competition and efficiencies, what else counts?”,125 U. Pa. L. Rev. 1182, 1203 (1977). [7] 6 ICN, Advocacy Working Group, Advocacy and Competition Policy (2002), p. 32; available at: https://www.internationalcompetitionnetwork.org/media/library/conference_1st_naples_2002/advocacyfinal.pdf. [8] M. Trebilcock et al., The Law and Economics of Canadian Competition Policy (Toronto, ON: University of Toronto Press, 2nd ed., 2003), p. 39. [9]
- P. Slot & A. Johnson, An Introduction to Competition Law (Oxford, UK: Hart Publishing, 2006), p. 4. 35 Gal, “Reality bites (or bits): the political economy of antitrust enforcement”, in: Hawk, ed., International Antitrust Law and Policy (Huntington, NY: Juris Publishing, 2001), p. 605, Part IV; available at SSRN: https://ssrn.com/abstract=901756. [10] Fox, “The modernization of antitrust: a new equilibrium”, 66 Cornell L.R.. 1140, 1155 (1981). P.1156 [11] E. Sullivan & J. Harrison, Understanding Antitrust and Its Economic Implications (Newark, NJ: Bender & Co.: 4th ed., 2003), p. 2-3. [12] O. Green.(2008). Integration of non-efficiency objectives in competition Law. LL.M.Thesis.Faculty of Toronto: Canada. P.19. [13] C. Ehlermann & L. Laudati, eds., European Competition Law Annual: The Objectives of Competition Law (Oxford, UK: Hart Publishing, 1998), p. ix [14] UNCTAD, The Basic Objectives and Main Provisions of Competition Laws and Policies (1995), p. 2; available at: https://www.unctad.org/en/docs/poitd_15.en.pdf. [15] O. Green.(2008). Integration of non-efficiency objectives in competition Law. LL.M.Thesis.Faculty of Toronto: Canada. P.21. [16] 6 M.E. Porter, Competition and Antitrust: A Productivity-Based Approach (2002), p. 2; available at: https://www.isc.hbs.edu/053002antitrust.pdf. [17]
- R. Pitofsky, “The political content of antitrust”, 127 U. Pa. L.R 1051, 1056ff (1979) [18] M. Stucke, Better Competition Advocacy (2007), p. 51; available at: https://works.bepress.com/maurice_stucke/1. [19] O. Green.(2008). Integration of non-efficiency objectives in competition Law. LL.M.Thesis.Faculty of Toronto: Canada. P.22. [20] Id., p.23. [21] 1 Khemani, “Objectives of Competition Law”, in: World Bank-OECD, A Framework for the Design and Implementation of Competition Law and Policy (Paris, 1997), p. 5; available at: https://www.oecd.org/dataoecd/10/9/27122227.pdf. [22] J. Flynn, “Antitrust jurisprudence: a symposium on the economic, political and social goals of antitrust policy”, 125 U. Pa. L.R. 1182, 1186 (1977).p.1186. [23] H. First, Book review of Posner, Antitrust Law: An Economic Perspective, 52 NYU L. Rev. 947, 947 (1977).p.966. [24] O. Green.(2008). Integration of non-efficiency objectives in competition Law. LL.M.Thesis.Faculty of Toronto: Canada. P.25. [25] H. Hovenkamp, “Antitrust policy after Chicago”, 84 Mich. L. Rev. 213, 242 (1985).p.241. [26]
- Ibid.,p242. [27] J. Burns, “Vertical restraints, efficiency and the real world”, 62 Fordham L. Rev. 597, 628 (1993) [28] M. Stucke, Better Competition Advocacy (2007), p. 26. [29] D. Dewey, “Antitrust and economic theory: an uneasy friendship”, 87 Yale L.J. 1516, 1525 (1978) [30] Competition Bureau (Canada), Treatment of Efficiencies in the Competition Act: Consultation Paper (2004), Appendix C. [31] W. Kolasky & A. Dick, “The Merger Guidelines and the integration of efficiencies into antitrust review of horizontal mergers”, 71 Antitrust L.J. 207, 208 (2003),p.209. [32] O. Green.(2008). Integration of non-efficiency objectives in competition Law. LL.M.Thesis.Faculty of Toronto: Canada. P.29. [33] J. Holsten, “The Commissioner of Competition v. Superior Propane – the Tribunal strikes back”, 2002 Canadian Competition Record 26, 31 (2002). [34]
- 1 Economic Council of Canada, Interim Report on Competition Policy (Ottawa: Queen’s Printer, 1969), p. 22. See Competition Bureau (Canada), Merger Enforcement Guidelines (2004), 8.19 [35] Office of Fair Trading, Mergers - substantive assessment guidance (OFT 561, 2003), par. 4.30 [36] O. Green.(2008). Integration of non-efficiency objectives in competition Law. LL.M.Thesis.Faculty of Toronto: Canada. P.43. [37] Ibid., p.43. [38] Ibid.,p.43. [39] Ibid.,p.43. [40] P. Areeda & H. Hovenkamp, Antitrust Law (New York, NY: Aspen Law and Business, 2002), vol. I (rev. ed.), p. 127. [41] Id., p.119. [42] B. Foer, “The goals of antitrust: thoughts on consumer welfare in the U.S.” (American Antitrust Institute, Working Paper 05-09), p. 24 [43] H. Blake & W. Jones, “Toward a three-dimensional antitrust policy”, 65 Colum. L. Rev. 422, 424 (1965). [44] C. Ehlermann & L. Laudati, eds., European Competition Law Annual: The Objectives of Competition Law (Oxford, UK: Hart Publishing, 1998), p. 30. [45] U.S. Department of Justice, Merger Guidelines (1984), reprinted in 4 Trade Reg. Rep. (CCH) A13,103 [46] Sullivan, “Post-Chicago economics: economists, lawyers, judges, and enforcement officials in a less determinate theoretical world”, 63 Antitrust L.J. 669 (1995)
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Should DNA be Tested in Rape Cases Law Essay
My research project will examine if DNA should be tested in earlier rape cases. Before the mid 1990s DNA was not tested a much as it is today in rape cases. Because of the lack of testing, it is possible that many innocent individuals are serving time for a crime they did not commit. This is the reason I feel this project is important to research. No innocent person should have to serve a sentence for a crime. Literature Review Rape is one of the most heinous crimes that can be committed. The word rape can have several different definitions. The one definition that is used by all states is if a man forcibly subjects a woman to sexual intercourse without her consent he has committed rape (uslegal.com, 2008). However, many people are falsely convicted of rape.
By using DNA the falsely accused can regain their freedom. Despite the availability of DNA testing there are still people serving a sentence for a rape they did not commit. Bruce Gross's article False Rape Allegations (2008) states that "There is no way of knowing the number of defendants who have been convicted of rape on the basis of false allegation. One study found 28 cases in which the defendant had been convicted and served an average of 7 years in prison before being exonerated by DNA evidence." According to Alex Trensniowski' s article, Ronald Cotton was wrongly sentenced to two life terms for rape, he was exonerated by DNA evidence in 1995 (2009). James McKinley's article tells of a Houston man that served five years in prison before released after DNA proved he did not sexually assault an 8 year old boy in 2002. Kara Goeke's articles states that Ronald Taylor served a 13 of 60 year sentence for rape before DNA SHOULD DNA BE TESTED IN EARLIER RAPE CASES? proved him innocent (2008).
Kevin Johnson describes in Cleared by DNA test, but still struggling to be free (2009), "that not even DNA washes away the lasting stigma that shadows once-convicted sex offenders who are cleared by genetic testing." From reading these articles I found that there is a desperate need for DNA testing of past rape cases. It is hard to imagine being accused and convicted of a crime you did not commit. That is why I feel DNA needs to be tested in all past rape cases. Discussion Rape is the most serious form of sexual assault in the United States. In all states if a man forcibly subjects a woman to sexual intercourse without her consent he has committed the crime of rape (uslegal.com, 2008). With today's technology DNA can help identify the rapist in a crime. However, Before DNA technology was widely available, individuals were found guilty of rape without proper evidence to convict them. DNA should be tested in earlier rape cases, because many innocent people have spent the majority of their life in prison for a rape that they did not commit. The victim can make a false identification during a line up or the victim could be making false rape allegations. Mitochondrial DNA can also be used in rape cases. Scientists are able to find victims hypotype, and detect the suspects haplotype (Didier, 2007). One study shows 28 cases in which the defendant had been convicted and served an average of seven years in prison before being exonerated by DNA evidence (Gross, 2009).
SHOULD DNA BE TESTED IN EARLIER RAPE CASES? Another study shows nearly 90 percent of the 227 people cleared by DNA evidence since 1989 were convicted of some of the most heinous sex crimes. "Not even DNA washes away the lasting stigma that shadows once convicted sex offenders who are cleared by genetic testing and the criminal justice system that wrongly jailed them offer little help", (Johnson, 2008). Sir Matthew Hale stated that rape "is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent", (Rumney, 2006). The following are cases that prove that DNA can prove innocence in rape cases. Sexual Assault Cases Jennifer Thompson picked Ronald Cotton as her rapist from a police line up. While in prison Cotton found another inmate bragging that he had raped Jennifer Thompson. Cotton contacted his lawyer to have a DNA test. Cotton was not a match. However the other inmate that was bragging about the rape, his DNA did match. Cotton was released in 1995 and received $105,000 from the state for his suffering (Tresniowski, 2009).
Ronald Gene Taylor was tried for a rape and found guilty. He served twelve of the sixty year sentence before being found not guilty. Taylor was a suspect because he lived less than a mile from the crime scene and was brought to participate in a line up. The victim choose Taylor as her rapist, however she also stated that she was unable to see her attacker because it was dark. The Innocence Project began investigating the case in 1998. In 2006 DNA testing was ordered in the case. The new tests found biological material to sample and proved Taylor's innocence, the evidence pointed to another man that would never be tried. Taylor may be able to collect up to $600,000 if SHOULD DNA BE TESTED IN EARLIER RAPE CASES? he sues the police department where the line up took place (Goeke, 2008). Ricardo Rachel! was arrested in 2002 for the assault on a 8 year old boy. The child and another child witness stated that Rachel! lured the boy to an abandoned house by offering money to him for cleaning up trash. The boy was then raped at the abandoned house. DNA evidence was available at the time of the arrest, however it was never processed to be use in the trial. Rachel! was found guilty and served five years in prison, before being released. The original DNA was court ordered to be tested and the test proved Rachel! was not the criminal. Rachel! is entitled to $300,000 in state repartitions (McKinley Jr., 2008). In 1987 a women in an apartment complex reported that she had been raped. She identified Marcus Lyon as the rapist. Lyons served three years for the crime. In 2007, Lyons was given his innocence after DNA evidence was tested. Lyons is entitled to $85,0000 for his time served as an innocent man (Smith, 2008).
Willie Williams was found guilty in the 1985 rape of a Fulton county, Georgia woman. Williams was convicted on the victim's eye witness statement. The DNA and rape kit were not tested before the trial. It was not tested until 2007, twenty-two years after Williams was arrested. The tests showed Williams was not the attacker. The DNA actual!y matched Kenneth Wicker a serial rapist. However, the woman that was attacked refused to testify again, because she stated it would be too hard on her to live through a trial again. Because of this Kenneth Wicker was never tried and walked as a free man (Torpy, 2009). Jerry Miller was convicted ofrape in 1981 and spent 24 years in prison. He finished his sentence before being found innocent. A year after his parole he was SHOULD DNA BE TESTED IN EARLIER RAPE CASES? proven innocent from DNA testing of the victim's clothes against his. Johnny Briscoe was convicted of rape in 1982. Briscoe served 23 years in a Missouri prison.
DNA was lifted from a cigarette butt showed it was not Briscoe who committed the crime (Johnson, 2009). Marlon Pendleton spent more than 12 years in prison for a sexual assault that had taken place in 1992. He was set free in 2006 (Mills, 2008). Sadly some people are not proven innocent until after their death. Tim Cole spent thirteen years in prison before suffering a major asthma attack that killed him in 1999. In 2008, DNA testing showed another man by the name Jerry Johnson was guilty of the crime instead of Cole. Johnson even admitted to the crime in writing four years before Cole's death. In the letter Johnson stated that he had raped Michele Mallin in 1985 on the Texas Tech campus. At the time the letter was mailed to a police department Cole was already serving a sentence for the crime. The letter was ignored, so Johnson mailed another letter to Cole's family, but by this time Cole was already dead (Johnson, 2009). Innocence Projects Luckily there are groups of people who are trying to help the innocent who are wrongfully convicted. One of these groups are titled, "The Innocence Project". The Innocence Project is a non-profit legal clinic affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University and created by Barry C. Scheck and Peter J. Neufeld in 1992. The project is dedicated to exonerating wrongfully convicted people through DNA testing. As a clinic, law students handle case work while supervised by a team of attorneys and clinic staff. The Innocence project states that, "DNA testing has been a major factor in SHOULD DNA BE TESTED IN EARLIER RAPE CASES?
changing the criminal justice system. It has provided scientific proof that the system convicts and sentences innocent people and that wrongful convictions are not rare events. Most importantly, DNA testing has opened a window into wrongful convictions so that we may study the causes and propose remedies that may minimize the chances that more innocent people are convicted" (The Innocence Project, 2009). The first Innocence Project was Centurion Ministries it was founded in 1983 by a minister James McCloskey, a former executive who traded in his corporate career for a Masters of Divinity degree from Princeton University. Centurion Ministries is a non profit organization whose mission is to free from prison and clear the names of individuals who are completely innocent of crimes for which they have been convicted and imprisoned. Centurion Ministries usually takes on cases of inmates who have been sentenced to life terms or were designated for execution (Innocence Projects in the US, 2009). North Carolina became the first state to create an innocence commission, giving inmates who claim they were wrongly convicted a chance for freedom after their court appeals have failed. The panel has eight members who are empowered to subpoena records and witnesses and can consider new evidence not presented in court. Iffive of the commission members find that a claim of innocence deserves review, the case will be sent to a panel of three state Superior Court judges. Those jurists then would have to decide unanimously that an inmate was actually innocent in order for the conviction to be overturned (Weinstein, 2006). Some may oppose the testing of DNA in older rape cases.
One reason could be SHOULD DNA BE TESTED IN EARLIER RAPE CASES? that they believe the testing would question the victim's complaint between supporting victims and protecting the rights of the accused. Other may think that testing DNA in older rape cases would cost to much money. However, would it be better for the state to have to pay millions in fees to the defendant that was found not guilty after serving time in prison? Should money really come before a person's life? Some may think the testing will take too much time that could be spent on other current crimes. To solve this problem people need to be hired to work the older cases to insure they were properly processed. The time spent testing DNA does not compare to the time the innocent spent behind bars. A few authors and officials have suggested ways to deter people from falsely accusing rape. One way would be to charge the person who files a false rape allegation with filing a false report to the police. Another way would be to place the false allegation on their permanent record (Raphael,2008). However these steps could also cause real rape victims to be afraid to report the crime, in fear of being falsely charged themselves.
Conclusion There is an outstanding amount of evidence that proves DNA should be tested in earlier rape cases. If there is any reason for doubt the evidence should be tested or retested. It is hard to imagine how many innocent people have died in jail as an innocent person. We want a justice system we can trust, not one that the innocent has to fear. SHOULD DNA BE TESTED IN EARLIER RAPE CASES? References Goeke, K (2008). Falsely Accused: The case of Ronald Gene. Forensic Examiner. 17,86. Gross, B (2009). False rape allegations: An assault on justice. Forensic Examiner. 18,66-70. Hatsch, D (2007). A rape case solved by mitochondrial DNA mixture analysis. Journal ofForensic Science. 52, 891-894. Johnson, K (2009, January 28). Cleared by DNA tests, but still struggling to be free. USA Today, p. AI. Johnson, K (2009, February 4). Texas family fights to clear name: Wrongfully convicted man died in prison. USA Today, p. A 3. Mckinley Jr., J. C. (2008, December 13). Man, imprisoned 5 years, is cleared of sexual assault. New York Times, p. A 14. Mills, S (2008, November). The heroes of the wrongfully convicted. Chicago Tribune, p. 2.4. Raphael, J (2008, March) The Duke lacrosse case. Violence Against Women, Vol. 14, Iss.3; p. 370. Retrieved March 02, 2010, from Innocence Projects in the US Web site: https://truthinjustice.orglips.htm. Retrieved March 02, 2010, from https://www.uslegal.coml. Rumney, P(2006,March). False allegations ofrape. Cambridge Law Journal, p.128Aƒ 158. Smith, G (2008, December 20). Gov. Rod Blagojevich pardons 22 people. SHOULD DNA BE TESTED IN EARLIER RAPE CASES? McClatchy-Tribune News. The Innocence Project, The Innocence Project. Retrieved March 01, 2010, Web site: https://www.innocenceproject.org Torpy, B (2009, February 1). Final grim twist in '85 rape case. Atlanta Journal, p. AI. Tresniowski, A (2009, March 16). She sent the wrong man to prison. People, 7I(10), 101. Weinstein, H (2006). North Carolina to weigh claims of innocence. Retrieved March 01,2010, from Truth In Justice Web site: https://truthinjustice.orgINCAƒcommission.htm.
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Should DNA Be Tested In Rape Cases Law Essay. (2017, Jun 26).
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Selected Topics on Business Law
Case 1 – Invitation to Treat
On the 7th of June 2013, Paul went to Midvalley Megamall to buy some gifts for the upcoming birthday’s party of his friend Wayne. Paul saw an expensive Sony smart watch on display took it and while walking to the cashier counter, saw another watch, Samsung and was taken by it. He immediately returned the Sony smart watch in favor the new one. The manager of the shop, who was watching Paul, was not satisfied with Paul’s action and told Paul he has to pay for the Sony watch as he had picked up the Sony watch. The manager argued, by picking up the Sony watch Paul has accepted the offer by the shop. Paul got into a heated argument with the manager and stormed out of the Midvalley Mall. On the 20th of June, Paul received a letter of demand from Midvalley Megamall for the payment of the Sony smart watch. Is Paul liable to pay for the Sony smart watch? Discuss. Answer: According to the ‘Offer’ element in the essential elements of the Contract law, it is the customer who makes the offer by taking the goods and placing it on the shopkeeper or cashier’s counter, and the shopkeeper or cashier accepts the offer by accepting the customer’s money. The price displayed on the goods is not an offer where it is only an invitation for the customer to make an offer, thus it is an invitation to treat. Besides, the law gives the shopkeeper or cashier the right whether to accept or reject the customer’s offer. Thus, referring to the law above, the contract in Paul’s case is not liable. While Paul was walking to the cashier counter with the Sony smart watch, he saw another watch, Samsung and he immediately returned the Sony smart watch. The manager must have mistaken about the law and thought that Paul had accepted the ‘offer’ made by the shop by picking up the Sony watch on display and thus, charged Paul guilty. Here, we clearly get to know that Paul has not make the offer to buy the Sony smart watch yet, where he has not place it on the cashier’s counter. Paul shall not be liable for any product yet as long as he has not place the product on the counter and has not made any offer. Paul’s case is also supported firmly by a previous case with a very similar situation. Based on the case of Pharmaceutical Society of Great Britain v Boots Cash Chemist Ltd. in the year of 1953, Pharmaceutical Society claims that Boots, which displays drugs on self-service basis, is against the law because pharmaceutical products must be carried out by a qualify pharmacist. The court held that the display of goods in the store was not an offer but only an invitation to treat. It was the customer who made the offer by placing the goods in cashier’s counter and the shop/cashier could either accept or reject the offer. Acceptance was made at the ringing up of the price by the cashier. Thus, this case further strengthens Paul’s standing to prove that he is not liable to pay for the Sony smart watch as there is not a single offer or acceptance taken place yet.Case 2 – Postal Rule
The next day, on the 8th June 2013, Paul received a flyer from Zalatan advertising a Mini Ipad tablet for sale. Paul wrote a letter to show his interest on the tablet and Zalatan replied on the 9th of June offering the tablet for RM 999. Paul received the letter on 10th of June and posted the letter of acceptance on 11th of June. On the 12th of June tablet was sold to Christina when she visited the shop. Paul’s letter was only received by Zalatan on the 17th of June. Paul got to know that the Mini Ipad tablet has been sold to Christina. Discuss as to who shall have the right to buy the tablet. Answer: According to Postal rule, acceptance takes effect when the letter is posted. Acceptance that is sent by post or any other appropriate and reasonable means of communication between the parties is completed on the date that the letter was posted. Even if the letter is destroyed, delayed, or lost during the posting process, the acceptance is still effective. In this situation, Paul shall have the right to buy the tablet because contract is formed when the letter of acceptance is posted which is on 11th of June. In Paul’s case, he received a flyer from the seller, Zalatan on 8th June 2013 which showed that a Mini Ipad tablet is for sale, where he then wrote a letter to show interest on the tablet and Zalatan replied on 9th June 2013 showing that he will offer the tablet for RM999. Although an advertising flyer is considered to be an invitation to treat, Paul has made his offer to Zalatan to show his interest and Zalatan replied him with the condition to sell the tablet at RM999 which is a counter offer. The counter offer from Zalatan was accepted by Paul on 11th June 2013 which is the next day after he received the counter offer. Zalatan will be able to revoke his offer before Paul sends his acceptance. In other words, Zalatan’s revocation letter should be received by Paul before the 11th of June which was before the letter of acceptance was posted. Since Zalatan did not send any revocation of his offer, thus Paul remains his right to purchase the tablet. This case is similar to Adam V Lindsell’s case where Paul is facing the same situation as Adam the buyer. In Adam V Lindsell’s case, Lindsell who is the seller, make an offer to sell wool to Adam on 2nd Sept 1871. Adam received the offer on 5th Sept 1871 and replied his acceptance to Lindsell on the same day. Before Lindsell received the letter of acceptance on 9th Sept 1871, he had already sold the wool to another buyer on 8th Sept 1871. It is similar to Paul that before his letter of acceptance was received by Zalantan on 17th June 2013, Zalatan had already sold the tablet to Christina which is another buyer on 12th June 2013. In both cases, acceptance was already sent by the buyer but before it had been received, the seller had already sold the products to another customer. Referring to the Postal rule, the court held that in Adam V Lindsell’s case, acceptance is effective when it is posted which is on 5th Sept 1871. Therefore by referring to Adam v Lindsell’s case, Paul shall have the right to buy the tablet. Since both cases are similar on what was happening at the moment, Paul should able to refer to Adam V Lindsell’s case and remain his right to buy the tablet.Case 3 – Undue Influence
Paul, who was working for Mr.Fergusson was called to Mr.Fergusson’s office. Mr.Fergusson asked Paul to sign a contract, which declares that Paul has to transfer 20% of his properties to Mr.Fergusson. Paul being afraid that Mr.Fergusson would fire him from his job, agreed to sign the contract. Paul realized that he had more to lose when he agreed to sign the contract with Mr.Fergusson. He comes to you looking for advice as to whether he can escape the obligations of the contract between himself and Mr. Fergusson. What would be your advice in this case? Answer: A contract has to be made by the mutual agreement between the parties out of their own free will. Section 19 and 20 provides that when consent to an agreement is caused by coercion, fraud or misrepresentation, or undue influence, the agreement is considered a voidable contract at the option of the party whose consent was so caused. Thus, Paul can escape from the obligations of the contract between himself and Mr. Fergusson by proving that there was undue influence. Undue influence occurs between two parties who have special “fiduciary” relationship. It arises when one of the party to a contract use his/her special relationship with the other party to influence that other party into making a contract. Such relationship includes parent-child relationship, doctor-patient relationship and solicitor-client relationship. Referring to the contract law mentioned above, undue influence can be proved in this case as there is a special relationship between Paul and Mr. Fergusson as employer-employee. This special relationship influenced Paul to sign the contract which declares that he has to transfer 20% of his properties to Mr. Fergusson. Paul’s consent was not freely given as he was asked by his employer, Mr. Fergusson to sign the contract and he was afraid that if he refuses to sign the contract, Mr. Fergusson would fire him. Thus, he agreed to sign the contract resulted from the influence of Mr. Fergusson’s special relationship with him. Comparing both Paul’s situation to Inche Noriah v Shaik Allie Bin Omar (1929)’s case, both involved transfer of property and specific relationship between parties. In Inche Noriah v Shaik Allie Bin Omar (1929) case, an old and illiterate woman gave her property to her nephew who had been managing her affairs without knowing that the gift comprised practically the whole of her property. Therefore in Inche Noriah v Shaik Allie Bin Omar (1929) case, the court held that there was an undue influence that cause by the relationship between parties and it was not rebutted. In Paul’s situation, he may refer to Inche Noriah v Shaik Allie Bin Omar (1929) case because both cases are similar. Since Paul’s consent to the agreement was caused by undue influence, thus according to Section 19 and 20, the contact is voidable at Paul’s option. It means that Mr. Fergusson cannot force Paul to perform the contract. Whereas, Paul can repudiate the contract and escape from the obligations of the contract between himself and Mr. Fergusson but Paul must return any advantage that he has received from the contract to Mr. Fergusson.Case 4 - Frustration
The following week, Paul who was famous singer invited & subsequently signed a contract to perform in a concert in KL between 5 to 7th of July 2013 with Giggs Company. When he was preparing to travel to KL in 3rd of July, Hayan Storm cancelled all flight in Manila Airport. Giggs Company threatens to sue Paul base on breach of contract. Advise him. Answer: According to Section 57(2), it states that after the contract is made, the promisor is able to void the contract when the act becomes impossible and unlawful. A contract that is discharged means that parties are released from their obligations. Discharge can happen when the event is frustrated. Frustration occurs when the law recognizes that when either party without intention or default is unable to perform or incapable to perform, then the contract is said to be void or discharged. In this case, Paul who was a popular singer had signed a contract with Giggs Company to perform in a concert in Kuala Lumpur (KL). The concert happen at 5th to 7th of July 2013 and at 3rd of July 2013 when Paul wanted to travel to KL, the flight was cancelled due to Hayan Storm which is unexpected and unpreventable by Paul. Paul does not need to pay for the losses to Giggs Company. The fact is that the Hayan Storm was the reason of non-performance of contract by Paul and Hayan Storm is natural disaster which caused the flight to be impossible to take off. In this case, it is impossible for Paul and Giggs Company to have known about it earlier and prevent it from happening therefore, either party are not at fault of the event. It can be concluded that even if Giggs Company bring any legal action against Paul, it will end up that Paul need not have to pay any damages to Giggs Company. In the case ‘Robinson v Davison (1871)’, the principle has laid down where the frustration of contract takes place when the performer fell ill and could not play on the appointed date. The court held that as it was not her fault that she was unable to perform, thus the contract was frustrated. Due to the condition in both case are similar, therefore it was able to further prove and explain that Paul is not liable for the damages that is caused by Hayan Storm and Giggs Company will not able to claim its damages from Paul because unable to perform is not the intention of Paul and instead it was impossible for him to perform. In a nutshell, Paul is not liable for the allegation claimed by Giggs Company because the non-performance by Paul can be discharged by the way of frustration as there was a supervening event, the Hayan Strom, which prevented Paul from being performed the contract.Reference
Jacob, C. J. (2011). Principles of Malaysian Business Law . Malaysia: Pearson. 1Cite this page
Selected Topics on Business Law. (2017, Jun 26).
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Restrict Financial Liability to a Specific Sum
Explain the meaning and significance of the provision in Section 11 Sub-section 4 that deals with a contract term seeking to restrict financial liability to a specific sum. How useful are the guidelines for applying the reasonableness test in Schedule 2? (4) Where by reference to a contract term or notice a person seeks to restrict liability to a specified sum of money, and the question arises (under this or any other Act) whether the term or notice satisfies the requirement of reasonableness, regard shall be had in particular (but without prejudice to subsection (2) above in the case of contract terms) to- (a) the resources which he could expect to be available to him for the purpose of meeting the liability should it arise; and (b)how far it was open to him to cover himself by insurance. As has been indicated, clauses excluding or restricting liability will frequently be ineffective under the Unfair Contract Terms Act 1977 unless they satisfy the requirement of reasonableness. It is for the party seeking to rely upon the exemption clause to establish that it is reasonable (section 11(5)) and the assessment is made against the time frame of the making of the contract. Under section 11(1) the term must have been a fair and reasonable one to have included in the contract having regard to all the circumstances which were or ought reasonably have been known to, or in the contemplation of the parties when the contract was made. The actual breach is not relevant to the reasonableness of an exemption clause, merely potential breaches within the reasonable contemplation of the parties when they contracted[5]. There are guidelines in schedule 2. For historical reasons, they are only relevant by ‘legislative prescription’ when the requirement of reasonableness is applied by sections 6 or 7, but they are a list of factors which the courts have recognised to be generally factually relevant to the requirement of reasonableness, under whichever section it is applied[6]. There is also further specific guidance as to the treatment of clauses which limit liability in section 11(4). In relation to such clauses, regard is to be had to the resources available to the proferens to meet potential liability and how far it was open to that party to obtain insurance cover. In general, the courts have indicated the relevance of considering the insurance situation eg whether the exemption clause placed the risk of some problem with performance on the person best able to insure and whether the allocation of the need to insure was reflected in the contract price[7]. Also, in Smith v Bush (1990 p.858), Lord Griffiths set out a list of four factors he regarded as generally relevant to the requirement of reasonableness – the relative bargaining power of the parties; availability of an alternative source of supply of the contract performance; the nature of the task being undertaken by the proferens (one with a high degree of risk more readily justifying an exemption clause); the practical consequences of the decision on reasonableness, having regard to the sums of money potentially at stake; the ability of the parties to bear the losses involved and the availability of insurance to meet such losses.
However, despite these statements as to generally relevant factors, the limited nature of the role of the appellant court in this context should be noted. Recognising that the type of weighing of factors which is required in applying the requirement of reasonableness means that there is scope for a ‘legitimate difference of opinion as to what the answer should be’, the House of Lords has indicated that ‘the appellate court should treat the original decision with the utmost respect and refrain from interference with it unless satisfied it proceeded upon some erroneous principle or was plainly and obviously wrong’ (George Mitchell Ltd. v. Finney Lock Seeds Ltd. (1983 ), Lord Bridge at 816). Decisions on the requirement of reasonableness provide only limited guidance. The first of the specific cases to consider here is The Salvage Assn v. CAP Financial Services Ltd. (1995) which was concerned with two contracts for the design, development and supply of computer accounting software for the plaintiff marine surveying company. After two years the system was not complete and had numerous problems. The plaintiff terminated the second contract (the first being over) and sued the defendant for the contract price (GBP 300,000) and wasted expenditure (GBP 500,000). Inter alia, and the relevant point to be considered here, the defendants sought to rely upon clauses limiting their liability to GBP 25,000 under each contract. Under sections 2(2) and 3 of the 1977 Act, the question arose as to whether the limitation clauses satisfied the requirement of reasonableness. The judge
[8] took the view that (at 676) ‘Generally speaking where a party well able to look after itself enters into a commercial contract and, with full knowledge of all relevant circumstances willingly accepts the terms of the transaction, I think it is very likely that those terms will be held to be fair and reasonable.’ In the particular case, the parties were viewed as being of equal bargaining power and the contract terms as considered and negotiated over a period of time.
Had matters rested there the judge would have accepted that the defendants had established the reasonableness of the limitation clauses. However, there were additional factors to consider. In particular, the defendants had not justified the level of the limitation – it bore no relationship to the value of the contract, to the defendant’s turnover, to the level of the defendant’s insurance cover, or to the financial risk to the plaintiff.
Even more particularly, the GBP 25,000 limit was one which the defendants themselves regarded as inappropriate by the time the contracts with the plaintiffs were made (the new limit decided on was GBP 1,000,000). The judge seems to have viewed this last factor as particularly damning of the defendant’s claim that their limitation clause was reasonable, and that might seem to be self evident. However, the test of reasonableness in s11 must be borne in mind – it refers to the circumstances ‘which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made’ (emphasis added). The defendant’s views as to the appropriate level of limitation were obviously known to themselves but it is difficult to see how they could have been within the reasonable contemplation of the plaintiffs. Similarly, the judge considered the actual levels of the defendant’s insurance cover (GBP 5,000,000 with an excess of GBP 500,000) and again that would seem to be outside the plaintiff’s reasonable contemplation. In Flamar Interocean Ltd. v. Denmac Ltd. (1990), Potter J. made it clear that unless parties have discussed their actual insurance positions before contracting, section 11(1) only allows for consideration of the insurance that was available at the time of contracting. In the absence of such discussions, it is only the possible insurance arrangements that can have been within the reasonable contemplation of ‘the parties’ (ie both of them) at the time the contract was made. In other words much of what was considered in The Salvage Assn. case in relation to reasonableness was not relevant under the test stated in section 11(1). However, that is not to say that the decision is not justifiable. As has been indicated, under section 11(5) the burden lay on the defendants to establish the reasonableness of their clause and, as was pointed out, they had done nothing to show that the limitation to GBP 25,000 was anything other than arbitrary. In addition, whilst the specifics of the defendant’s own view of the limit and its actual insurance position were not relevant, their position more generally (eg size of the company) and the availability of insurance to them clearly were, and might be seen as indicating that the limit was not reasonable. The general point to be made is that the basis of the level of limitation in a clause restricting liability will have to be justifiable if the clause is to be found to be reasonable. The second case specifically to be considered here is St Alban’s City and District Council v. International Computers Ltd. (1995). That case arose because of the Council’s decision to install its own computer with appropriate software to deal with the implementation of the Community Charge and with the Council’s finances in general.
After taking expert advice on tenders, the Council contracted with the defendants, ICL. However, the program proved to be defective and it produced an overstatement, by about 3,000, of the population figure for the Council’s area and that led the council to claim a loss of something in excess of GBP 1.3m. The question was whether this was recoverable from ICL. Scott Baker J found a clear breach by ICL of an express term that ICL would provide software which was reasonably fit for the Council’s purpose of maintaining and retrieving a reliable register of the local community. ICL claimed to rely on clause 9(c) of their contract to limit their liability to GBP 100,000. Scott Baker J found that clause was rendered ineffective by the Unfair Contract Terms Act 1977 as ICL could not establish that it satisfied the requirement of reasonableness which was applied under section 3, inter alia. It is that conclusion which must be considered here. On appeal (St Alban’s City and District Council v. International Computers Ltd (1996)), the Court of Appeal reduced the damages payable by the defendants for reasons unconnected with the limitation clause. In relation to the application of the reasonableness test, there was reference to the limited intervention approach to be taken to appeals and the Court left that part of the decision untouched. Nourse L.J. did add that he believed ‘he would have given the same answer’ himself (at 492)). One point which should be emphasised is that ICL had mistakenly used an earlier version of their standard terms in contracting and the version current at the time of the contract with the Council limited liability to GBP 125,000, rather than GBP 100,000. This, in itself, would seem to have made it very difficult for ICL to argue that the clause was a fair and reasonable one to have included in the contract – as the higher limit was part of the standard terms ICL were then using, it could have been within the parties’ reasonable contemplation. However, whilst that error on ICL’s part must not be lost sight of, what is of more interest is the judge’s general approach to the reasonableness test. He concluded that there were four determining factors showing that the clause was unreasonable. Firstly, he referred to the parties’ unequal bargaining power. However, whilst the Council might not have been able to contract without the clause, it was in a very different situation to that of the average consumer. It had legal advisers amongst its employees, for example.
Secondly, Scott Baker J emphasised that the defendants had not justified the figure of GBP 100,000 which he regarded as small, both in relation to the potential risk and the absolute loss. Of course, against the background of their use of the wrong version of their standard terms, justifying the precise sum would have been virtually impossible for ICL, but, as has already been indicated, it would seem that in general the level of a limitation will have to be justifiable. The third point made by Scott Baker J was that ICL were well covered by insurance (an aggregate of GBP 50m worldwide) and finally, he looked at the practical consequences of the clause being effective or ineffective. He thought it more appropriate for the loss to be borne by a well insured large company than by the community charge payers of St. Albans. Again the point made above as to consideration of the parties’ actual insurance position should be remembered, but the type of cover available could be within the parties’ reasonable contemplation In addition, Scott Baker J summarised the factors which pointed to a finding that the clause was reasonable. They were ‘that bodies such as computer companies and local authorities should be free to make their own bargain, that the companies contracted with their eyes open, that limitations of this kind are commonplace in the computer industry and that [the software package] was an area of developing technology’. As has been indicated, he considered those latter factors to be outweighed by those indicating the unreasonableness of the clause and, of course, the burden of proof was on ICL to establish the reasonableness of the clause.
That weighing exercise should be considered further. In deciding that the clause was unreasonable the judge placed great emphasis on the size of the company and its insurance. However, it is usual to relate the question of insurance cover to the contract price. Was it clear that, given the risks involved in developing software, that increased liability would not have involved increased insurance costs for ICL and an increased contract price? The need to inquire into such a relationship should be emphasised. Of course, even if a defendant would have had to increase insurance cover, and costs, to increase the limit on their liability, that is not necessarily determinative of the question of reasonableness. In Smith v. Bush, (1990), the fact that surveyors would have had to increase their insurance, and charge their customers more if a disclaimer of liability was ineffective did not render the disclaimer reasonable. The practical consequences of the disclaimer being effective were such that it was regarded as unreasonable and in the St Alban’s case Scott Baker J emphasised the practical consequences of the limitation clause being effective and loss falling on the local population rather than on an ‘international computer company’. However, the appropriateness of an analogy between the situation of the consumer in Smith v. Bush and the Council in the instant case must be questioned. In Smith v. Bush Lord Griffiths noted that the surveyors were insured and said (at 858) ‘Bearing the loss will be unlikely to cause significant hardship if it has to be borne by the surveyor but it is on the other hand quite possible that it will be a financial catastrophe for the purchaser who may be left with a valueless house and no money to buy another’. The possibility of financial disaster for the individual in Smith v. Bush seems to be very different to the situation of the Council in the St Alban’s case even when it is emphasised that the burden would eventually fall on the individuals within the Council’s area. In the consumer context, exemptions are unlikely to satisfy the requirement of reasonableness and may also be subject to the test of fairness under the 1994 Regulations[9]. However, in the commercial context, it can be contended that more account needs to be taken of the special nature of software problems. In Smith v. Bush Lord Griffiths indicated that a high degree of risk in the contract performance might indicate the reasonableness of an exemption. This should be considered in the light of the difficulties in eliminating bugs from software which has been explained by analogy with chaos theory. It has been said (Lloyd and Simpson ( 1994) at 79-80) ‘It is impossible to test even the simplest program in an exhaustive fashion.
This is because of the myriad possibilities for interaction (whether desired or not) between the various elements of the program … [Chaos theory] suggests that every event influences every other event; that the beating of a butterfly’s wings has an impact upon the development of a hurricane … The theory’s hypothesis is reality in a software context. Although software can and should be tested, it has to be accepted that every piece of software will contain errors which may not materialise until a particular and perhaps unrepeatable set of circumstances occurs’. Of course, these difficulties may impact upon the content of the contractual performance in itself (eg affecting what will be required for goods to be of satisfactory quality under section 14(2) of the Sale of Goods Act 1979) (see Rowland and Macdonald (1997)), but nevertheless they should be acknowledged in relation to the question of the reasonableness of at least some exemptions. In addition, whilst a high level of insurance may be available to some suppliers, and against that background a limitation may appear to be low, before any such conclusion is reached consideration should be given to another special feature of a breach involving a software bug.
The point has been made by Lloyd (1997, at 455) ‘if one copy of a software product exhibits defects it may be extremely likely that all products will be so tainted. With manufactured products generally, most defects are introduced at the production stage and affect only a portion of the products in question. A finding that one copy of a software package is [not of satisfactory quality] might, by way of contrast, leave its producer liable to every purchaser.’ This should be relevant when levels of insurance cover are considered in addressing the reasonableness of a limitation clause.
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R V. Brown 1996
Analyse how the House of Lords interpreted the word “use” in 5(2)(b) of the Data Interpretation Act 1984 in the case of R v Brown (1996) 1 ALL ER 545 Introduction The case of R v Brown, 1996, concerned two uses of a police force Computer by an officer, for the purpose of obtaining registration numbers of cars owned by the debtors of a collection company that was run by a friend of the officer. The police officer was a registered data user
[1] and as such, he was prohibited under the Data Protection Act 1984 to ‘hold personal data’[2]. The charge was for the criminal offence
[3] under s 5(2)(b) of the1984 Act, which stated that: “A person in respect of whom such an entry (an entry pertaining to the identity of registered data user) is contained in the registrar shall not…(b) hold any such data, or use any such data held by him, for any purpose other than the purpose or purpose descried in the entry…” In the original trial, the judge directed to jury to consider that the act of simple retrieval from the computer, coupled with the intention of utilizing the information for a purpose that had not been registered was enough to satisfy a conviction. The Court of Appeal
of The Court of Appeal
[4] rejected the initial convictions of attempt on the first count, and full commission of the crime on the second count. It was held that the term, “use” when interpreted with sole reference to its ordinary, everyday meaning, required that the offence could only be committed when more than mere retrieval of data had been done. It was therefore necessary to “do something to the data…” which meant that the case was decided entirely on the appropriate answer to the legal question, which was: “Whether the word ‘use’ in section 5 of the Data Protection Act 1984 should be construed so as to include processing the data so as to gain access to information stored within a computer without doing any further act with the information…” This paper analyses the decision reached by the House of Lords with regard to the interpretation of the word ‘use’. An account of both the decision of the court, as espoused by Lord Goff of Chieveley and Lord Hoffman and the dissenting ratio decidendi, as stated by Lord Griffith is given 1.The decision of the court (a)Lord Goff of Chieveley Lord Goff followed the line of reasoning of the Court of Appeal and stated that: “…since the word, ‘use’ is not defined in the Act, it must be given its natural and ordinary meaning.
Synonyms of the verb ‘use’ are ‘to make use of’ or to ‘employ for a purpose’.[5]” He then analysed the context of the word in relation to the specific item that was purported to have been used by ascertaining the sort of activities that would be regarded as ‘use’ of ‘data’. He ascertained from this analysis that the act of retrieval therefore did not constitute ‘use’ of the computer information but was a mere prerequisite
[6] to that use. Further to this, with reference to the meaning of the word ‘disclosing’[7], which also has no definition within the statute, Lord Goff made the crucial observation that: “…if the purpose of this provision had been to provide that, exceptionally, disclosure may occur after the information has been retrieved from the database, it would surely have been drafted in a different form; and a similar provision would have been made in respect of use…[8]” This statement directs towards an acceptance that the statute is clear on the matter of the intentions of parliament and Lord Goff arrived at this decision by referring exclusively to the ordinary and everyday definition of ‘use’ within the context of the provision within the statute. As well as analysing the equivalent provisions for the word ‘disclosing’, he also referred to other provisions within the 1984 Act, including part I of the Schedule, which stated that: “Personal data held for any purpose or purposes shall not be used or disclosed in any manner incompatible with that purpose or those purposes.[9]” This provision clearly shows the word ‘use’ within a provision where there is clear protection by the law of data outside its electronic form, thereby showing the intention of parliament to criminalise subsequent ‘use’ of data after retrieval and inevitable transfer from the electronic format. This reasoning is based on the linear timescale of the criminal act of ‘use’ of personal data. There is first retrieval, followed by transfer from electronic form, analysis and application. If criminality were to be established exclusively at the point of retrieval prior to the transfer of the subject matter from data into information, it would therefore mean that all other subsequent steps would be irrelevant for the criminal law and Lord Goff pointed out that all unregistered retrieval by a registered data enterer would constitute a criminal act, whereas completion of all four steps by someone who is not registered, would not be criminal at all[10]. This in itself would lead to a great injustice of the law. In his analysis, Lord Goff referred to no other issues as, since there was no ambiguity following this literal interpretation, the analysis of other sources, such as Parliamentary Hansard, was wholly unnecessary. This is very much an embodiment of the literal approach to the interpretation of statutes, which has proved to be utterly essential for the purposes of ascertaining the meaning of words, as shown in the far earlier case of Fisher v Bell[11]which concerned the meaning of ‘offers for sale’ under s 1(1) of the Restriction of Offensive Weapons Act 1959. Here it was held that an offer could not be anything other than a binding contractual proposal to which an unqualified acceptance would constitute an obligation for the offeror to fulfil the offer. This therefore distinguished the ‘offer’ from the far more general ‘invitation to treat’ and, had the court stretched the meaning of ‘offer’ to include non binding invitations, the law of contract would have been badly distorted. (b)Lord Hoffman Unlike Lord Goff, Lord Hoffman rejected the arguments of the Crown in relation to the identification of retrieval as external to the application of acts within the meaning of use but instead stated that the acts of this particular case were in relation to use of the computer as opposed to the data.
However, this was not the crucial point of his argument as he did state that this in itself would not preclude ‘retrieval’ being an acceptable element of the meaning of ‘use’. Lord Hoffman’s argument instead hinged crucially on the belief that the acts of the defendant fell in line with the definition of ‘processing’, which, under s 1(7) of the 1984 Act includes: “…extracting the information constituting the data…[12]” Lord Hoffman then stated that processing is entirely different from ‘using’ as there was no reference to it within the prohibitions of the 1984 Act, which means that the act of processing, as protected under principle 1 of the Schedule, did not constitute a criminal offence. Instead it was a civil breach that constituted a ground for removal from the registrar of authorised data processors[13]. Lord Hoffman therefore identified the intentions of Parliament as the creation of separate treatment for ‘processing’ and ‘using’ whereby the former was principle 1 (Sched) enforcement of data protection and the latter, as a ‘more extreme form of data processing’[14] was a criminal offence. This was therefore a clear departure from the difficulty of having to ascertain that something more than retrieval had to have been done to the information in order to constitute the criminal offence and is a simpler finding than that of Lord Goff as it denied existence of a gap in the law and established the differing treatment of the non-criminal punishments inherent in ‘processing’ 2.The dissenters[15] Lord Griffith Lord Griffith began in concurrence with Lord Goff by rejecting the submission of the prosecution in the Court of Appeal, who had made a crucial distinction between the concept of data as ‘electronically readable’ subject matter that, when translated into text on the screen, became the wholly distinguishable ‘information’ that was intelligible to the human mind.
The result of this shift in the designation of the subject matter from ‘data’ to ‘information’ is that it is not protected by the 1984 Act[16]. His departure from the Lords who dismissed the appeal was simply that the word ‘use’ should be given a ‘broad construction’ and he rationalised this finding by pointing out the clear weakening of the protective powers of the 1984 Act. His reasoning was that the enactment of the 1984 Act was for the primary intention of ratifying the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.[17] With reference to Article 1 of the Convention, Lord Griffith stated that the retrieval of information, to be displayed in a screen, constituted an invasion of privacy as the display was illegitimate. He further believed that extension of the meaning of ‘use’ to illegitimate display and retention for potential dissemination in the future would by no means constitute a stretch of the definition of ‘use’ but also accepted the difficulty that prosecution would face in having to prove the actual way in which information would be utilised following retrieval. 3.Feedback (a)The approach of the court As regards the methodology of the House of Lords in its interpretation of the word “use” there were two distinct poles of thought. The first was seen in the opinions of Lord Goff and Lord Hoffman who both realised that questions of law that pertain to verbal meaning must be approached from the point of view of establishing an answer based on statutory definitions or, in absence of such guidance, the nearest possible definition that will ensure the fundamental requirement of certainty in the law. For vocabulary, this certainty is maintained by utilizing the ordinary and everyday meaning of words. The second pole of thought, as utilised by Lord Chieveley, looked towards the teleological side of statutory interpretation and ascertained that the intentions of parliament, as to the meaning of a statute, was the key method for assurance of the legal goal of equity and Lord Chieveley used the very reason for enactment of the 1984 as the embodiment of the Parliamentary intention to create a right of privacy against illegitimate displays of data under the European Convention. (b)Was the decision correct? This case is a primary example of an obvious disparity between the common sense approach of the layman and the judicial predicament of verbal anomalies that force the wrong decision as far as justice is concerned. The question to therefore ask is, was the House of Lords simply over literal in its interpretation of the word “use” or were they right and, as a result of their correct actions, revealed a gap in the law that had been created by careless wording of the statute? It is this latter notion of the ‘gap in the law’ which Earl Russel refers to in his parliamentary feedback to the case[18]. The appropriateness of the House of Lords cannot be blamed for finding itself forced to follow bad law.
Statutory interpretation, for the purpose of obtaining the correct decision as required under current law is the primary role of the judge, regardless of the construction of that law. Their job is most certainly not the task of interpreting the law in order to meet the most equitable decision[19] unless of course the area of law has no governing statute and there are no clear precedents from which to draw the correct answer. As for Lord Hoffman, it is clear the same priority of statutory analysis was utilised in his decision but his more favourable reasoning denied a gap in the law for a jurisdiction such as the United Kingdom that, at that time, did not possess any Human Rights legislation and was therefore under no national obligation to interpret legislation in light of concepts of privacy[20], as was done in the teleological approach of Lord Chieveley. Conclusion The approach of Lord Hoffman was the correct interpretation of the statutory provisions at the time in which the case was decided but Human Rights Law has now fundamentally changed the approach of the courts whereby affected legislation can now no longer be decided on the basis of verbal distinctions. Bibliography Legislation Restriction of Offensive Weapons Act 1959 Data Protection Act 1984 Human Rights Act 1998 European Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 1981 European Convention of Human Rights and Fundamental Freedoms 1951 (As contained in the schedule of the Human Rights Act 1998) Case Law R v Brown [1996] 1 ALL ER 545 Fisher v Bell [1960] 1 QB 394 and Others v Woolwich Building Society (Thompson) [1997] SC (HL) 66 Governmental Publications Parliamentary Hansard, 13 Mar 1997 : Column 438
Footnotes
1b
[1] As described under s 1(2) of the 1984 Act
[2] s 5(1)
[3] The offence is deemed to be criminal under s 5(5)
[4] R v Brown [1994] QB 547
[5] R v Brown [1996] 1 ALL ER 545 at p 548g
[6] ibid at p 549a
[7] Which appears under s 1(9) of the 1994 Act
[8] ibid per Lord Goff at p 549h
[9] Referred to by Lord Goff at p 550b [10] ibid at p 550f-h [11] [1960] 1 QB 394 [12] Referred to by Lord Hoffman at p 560h of the judgement. [13] Per Lord Hoffman at p 560j [14] Per Lord Hoffman at p 561b [15] Lord Januncey of Tullichettle also dissented but merely concurred with Lord Chieveley. See the judgement at p 555h [16] All the judges of the House of Lords rejected this premise, see also ibid per Lord Hoffman, at p 558h [17] Cmnd 8535, Annex A [18] Parliamentary Hansard, 13 Mar 1997 : Column 438 [19] See the bad result in the case of Sharp and Others v Woolwich Building Society [`997] SC (HL) 66 [20] Since enactment of the Human Rights Act 1998, it is now the duty of judges to interpret legislation in line with the rights set out under the European Convention of Human Rights
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Rights of Surety under the Indian Contract Act 1872
Rights of the surety
There are three rights provided to the surety according to the Indian contract act- Rights against principal debtor
- Right against creditor
- Right against the sureties.
- Right against principal debtor: According to the Indian contract act there are two to rights provided to the surety against the principal debtor.
- Right of Subrogation.
- Right to indemnity.
- Right against creditor: Surety has the following rights against the creditor which are:
- Right to securities.
- Right against the Co-sureties: where debt has been guaranteed by more than one person, they are called co-sureties.[10] These co-sureties has right against each other also which are as follows:
- Effect of releasing a surety.
- Right to contribution.
Discharge of surety from the liability
There are seven ways in which surety can be discharged from his liability.- Revocation by the surety: “A continuing guarantee may at any time be revoked by the surety, as to future transactions, by notice to the creditor.”[21] But it does not mean that the his liability is not for the past transactions is also discharged. He is liable for the past transactions.
- By Surety`s death: “The death of the surety operates, in the absence of any contract to the contrary, as revocation of a continuing guarantee, so far as regards future transactions.”[22] But if there is contract to the contrary than liability of surety is not discharge.
- By variance in the terms of contract: “Any variance, made without the surety`s consent, in the terms of the contract between the principal [23][debtor] and the creditor, discharges the surety as to transactions subsequent to variance.”[24] But if the consent is given by the surety in relation to the variance in terms of contract he is not discharge from his liability.
- By release or discharge of the principal debtor: “the surety is discharged by any contract between the creditor and the principal debtor, by which the principal debtor is released, or by any or omission of the creditor, the legal consequence of which is the discharge of the principal debtor”[25] it is also understood in the light of section 128 that the liability of Surety is co-extensive with that of the principal debtor. So from this also he is discharged from the liability.
- By creditor’s compound with, gives time to , or agrees not to sue, the principal debtor: “A contract between the creditor and the principal debtor, by which the creditor makes a composition with, or promises to give time to , or not to sue, the principal debtor, discharges the surety, unless assents to such contract.”[26] But if the consent is given by the surety to such contract than he is not discharged from the liability.
- By creditor`s act or omission impairing surety`s eventual remedy: “if the creditor does any act which is inconsistent with the rights of the surety`s, or omits to do act which his duty to the surety requires him to do, and the eventual remedy of the surety himself against the principal debtor.is thereby impaired, the surety is discharged.”[27] But if creditor do an act which has nothing to do with the surety than in this case surety is not discharged.
- By loss of security by the creditor: “ A surety is entitled to the benefit of every security which the creditor has against the principal debtor at the time when the contract of suretyship is entered into, whether the surety knows of the existence of such security or not; and if the creditor loses, or without the consent of the surety, parts with such security, the surety is discharged to the extent of the value of the security”[28] but if there is no fault of the creditor in the loss of security than in this case surety is not discharged.
[1] Avtar singh , contract and specific relief act. Pub eastern book company. Pp. 635 [2] ibid [3] Babu rao Ramchandra rao v. babu manakal nehmal, AIR 1938 Nag 413 [4] (1927) 1 Ch 308 [5] Avtar singh , contract and specific relief act. Pub eastern book company. Pp. 635 [6] Karnail Singh Randhawa v. Jagir Kaur, (2008) 66AIC 539(P&H),entitled to recover the same amount from the principal, can also recover interest on it [7] R.K. Bangia , law of contract-II, Allahabad Law Agency pp. 38 [8] (1807)14 Ves Jun 160: 33 ER 482. [9] Industrial Finance Corpn Of India Ltd v Cannanore Spg & Wvg Mills Ltd,(2002) 5 SCC 54: AIR 2002 SC 1841(2002) 110 Comp Cas 685. [10] Avtar singh , contract and specific relief act. Pub eastern book company. Pp. 643 [11] ibid [12] Sri Chand v Jagdish Parshad Kishan Chand, AIR 1966 SC 1427: (1966) 3 SCR 451, 456-7; Rajamma v C. Puttachari, (2005) AIR Kant 1542. [13] Indian contract Act, 1872. Pp.46 [14] R.K. Bangia , law of contract-II, Allahabad Law Agency pp. 17 [15] ibid [16] A.I.R 1973 Raj. 347. [17] Harigopal Agrawal v. State Bank Of Inida, A.I.R 1956 Mad. 413, at 419 [18] Kelappan Nambair v.kunhi Raman, A.I.R 1957 Mad. 164. [19] Section 129 . ICA, 1872. Pp.41 [20] R.K. Bangia , law of contract-II, Allahabad Law Agency pp.22 [21] Section 130. ICA, 1872. Pp.41 [22] Section 131. ICA, 1872. Pp.42 [23] Ins by Act 24 of 1917, sec. 2 and Sch.I [24] Section 133. ICA, 1872. Pp.42 [25] Section 134. ICA, 1872. Pp.43 [26]Section 135. ICA, 1872. Pp.43 [27] Section 139. ICA, 1872. Pp.44 [28] Section 141. ICA, 1872. Pp.44
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Should the UK Adopt a Written Constitution?
Should the UK adopt a written constitution? A constitution is the commonly acknowledged body of principles or established regulations and procedure to which nation states are governed by and recognised within Parliament. Britain, along with Israel and New Zealand, is one of only 3 democracies in the world not to have a written constitution (Consoc, 2009, NP). Constitutions come in two commonly accepted forms of written and unwritten, and can often be referred to as ‘codified (written) and un-codified (unwritten)’. Nation states’ constitutional acts compose of laws, traditions and general codes to which that country abides by;they are ‘the rules that govern the political system and the rights of citizens and governments in a codified form’(politics, 2004, NP). Constitutions are important and necessary because they are the guidelines by which governments are controlled, and it can be suggested that constitutional acts can bring more power to the general public. Although the United Kingdom does not have one formal written document it does have many notable constitutional documents such as: EU Law, and Common Law, ‘along with the 1689 act of rights that defines powers of Parliament through the Monarch’ (politics, 2004, NP). It has been suggested that the British constitution can be summed ‘in eight words: what the Queen and Parliament enact is law’ (UCL, 2015, NP). On one hand, written constitutions are often understood to be more reliable for the people of a nation as they ‘provide greater accountability and democracy’ (Rishman, 2015, p.1).Most European and Common Wealth countries employ a written constitution on the basis that ‘it is the defining essence of a country’ (Rishman, 2015, p.1). On the other hand, some written constitutions include irrelevant, outdated guidelines that are in no way applicable to today’s society; an example being the US constitution which still includes ‘material regarding the rights of slave owners’ (Rishman, 2015, p.1), although these provisions have long been dormant it is easy to see the risk or offence they could provoke.
There is considerable debate as to ‘whether a written constitution ought to be introduced in order to align the UK with other nations’ (Consoc, 2009, NP). Although it can be argued that, on the basis of the documents already provided, Britain and The UK does not need a formal written constitution as it has survived to a satisfactory level for hundreds of years without the service of a written constitution. In addition, countries which do not have a written constitution are usually noted to have unwritten constitution, also known as un-codified constitutions. The name of ‘unwritten constitution’ is often misleading as it suggests that a country has no written constitution to bind or protect its people and government, which is usually not the case. An un-codified system is a constitution in which the fundamental guidelines and regulations of a country comes from the customs, traditions, usage and statutes of a country’s legal system: ‘The “Unwritten Constitution” refers to the ideas and processes that are accepted as a needed part of government’ (DeLorenzo, 2000, p.1). It can be seen that countries which have un-codified systems are at risk of having no system in place to limit the power of the country leader. Written constitution sets out clearly the rights, regulations and laws of that country. Without a written constitution ‘it makes it difficult to know what the state of the constitution actually is’ (UCL, 2015, NP). Therefore, if the constitutional system is unclear this ‘suggests that it is easier to make changes to the constitution than countries with written constitution’ (UCL, 2015, NP). Such examples can be seen in the recent changes to constitutional reform of since 1997 (UCL, 2015, NP). Although this may appear to be a risk to government power, there is no evidence to suggest these changes were for the worse of the country or to assist in the facilitating power of the leadership. The aim of a written constitution is to ‘avoid a concentration of power to any one government’ (Avgousti, 2011, P.1). Therefore, it can be understood that written constitutions are viewed as being very rigid and do not allow for any flexibility and are usually unable to be adapted to suit the agenda of modern society. An example of rigidity in such written constitution is with the ongoing attempt of the US to modify its gun laws.
The second amendment of the American written constitution states: ‘A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed’ (Brooks, 2013, NP). This law was provided shortly after the constitution in order to give more power to the state militia. The amendment was created in order to give the citizens of America more opportunity to fight back following the invasion of the English and the use of gun power to keep Britain out of America.
Although this amendment was created for the interest of the people at the time it can be argued that it does not comply with modern society and the needs of the different states of America. The problem, in this specific case with the rigid written constitution is within the interpretation of the meaning and the nature of the constitute it aims to defend; ‘since its ratification, Americans have been arguing over the amendments meaning and interpretation’(Brooks, 2013, NP). There has been lots of debate in over the constitution and the first rulings over this issue came in ‘1876 in U.S. v. Cruikshank. The case involved members of the Ku Klux Klan not allowing black citizens the right to standard freedoms, such as the right to assembly and the right to bear arms’(Brooks 2013, NP). The constitution clearly states that it is the right of all citizens to bear arms however this was debated at such a time of racist tensions in America. Since this there have been two more cases which debate the constitution and its meaning and interpretation in the cases of Presser V Illinois and the case of Miller V Texas (1894). Although in some situations having such a rigid written constitution protected some of the citizens in the above case it can also be argued if its citizens are debating the amendment, its use in the constitution is questionable. In the above cases the debate has been against state interpretation of American constitution. In which case it can there be seen that a written constitution for the whole country is limiting as different areas may have different cultural needs that the constitution does not cater to. In the debate of this amendment of written constitution there is two main issues of interpretation; how the individual state interprets and applies the amendments, compared to the interpretation of individual citizens.
Both arguments are helping ‘to shape the on-going gun debate’ (Brooks, 2013, NP). This ongoing debate on one amendment and a nations inability to come to one decisions provides a strong argument for the limitations a written constitution may provide for such a large and culturally diverse country. It suggests that Britain, which also deals with many of the same cultural difference and state divisions that America faces, although on a much smaller scale, may also face similar interpretational difficulties. It can be understood that a written constitution ‘does not contain all the rules in which a government depends’ (Avgousti, 2011, NP). If this is the case it can be understood that a written constitution would have no positive benefit to UK government, its citizens or its laws. The written constitution is largely tied up with the government and therefore may not be practical to the individual needs of the citizens. One of the most well known cases that has arisen from the debate between written and unwritten constitution is the case of Roe Vs Wade (1989) in which the matter of dispute was the woman’s right to an abortion. This case ‘promoted a debate that is still ongoing today to weather abortion should be legal, and who should decide the legality of abortion’ (Rubenfeld, 2001, P. 6). It can be argued that again, this matter can be applied to the individual need of the state and to have only one amendment in the constitution for such a sensitive cultural, religious and personal situation is limiting to the needs of the individual. In this case is can be understood why England does not adopt a written constitution as it is un-desirable to reduce the state system down to a single document (Parliament.UK, 2014, P.1). The UK’s reluctance to do so is an indication of the success it has brought to the country. The result of a nation to produce a written constitution has almost always been the direct result of a national catastrophe, a revolution, or due to a grant of independence from a colonial power ( Parliament. UK, 2014, P.1). In which case, these situations have not, as yet, been directly applicable to the UK. Many people believe that the UK should adopt a written constitution as it is understood to ‘restrain the unbridled power of the executive’ (Politics, 2004, P.1). The former coalition government directly stated they would not and ‘had no plans to adopt a written constitution, however they would look into the creation of a British Bill of Rights’ (Politics, 2004, p.1). Again this suggests that the statutes that are in place, statues which are written and passed by parliament have a higher legal status than a constitutional amendment, are more necessary and effective to the British government that the creation of a constitutional document. In conclusion, there are strong arguments for both sides of this debate as both written and unwritten constitutional systems have advantages and disadvantages.
The written constitution was originally created with the aim of protecting the citizens of a country and to avoid over-powering tyrannical governments (Brooks, 2013, NP). An unwritten constitution also provides advantages as it can be modified to change a law for the better of the country; furthermore ‘the legal process of statues has higher legal authority than that of an amendment’ (UCL, 2015, NP). With regards to the UK’s need to adopt a written constitution, the creation of such a document is not necessary and the UK should not adopt a written constitution. There are many debates that question the legitimacy of a nation that has an unwritten constitutional law, however the necessity for unwritten constitutional rights has begun to form an important role in Supreme Court decision making process ( Rubenfeld, 2001, P.7). Therefore, if the need for unwritten constitutional rights has been found useful in the American Supreme Courts, there is evidence to suggest that the written constitution is in flawed and limiting for the individual situations of its citizens. In creating one document to apply to an entire nation limits the unique quality of each legal case debated in court. The current UK system, which encorporates many legal documents both of its country as well as from EU Law and the high legal power of the statute making process provides a more complete and secure legal system that does not limit the rights of the people or the rights of the government. Word Count: 1,862. Bibliography Brooks, C. (2013). The Second Ammendment and the rights to bear arms: https://www.livescience.com/26485-second-amendment.html (Accessed 23.05.2015). Consoc, (2015). A Written Constitution?: https://www.consoc.org.uk/other-content/about-us/discover-the-facts/do-we-need-a-written-constitution/ (Accessed 23.05. 2015). Rubenfeld, J (2001) The New Unwritten Constitution.
Yale Law School faculty scholarship series. Yale Law School: Yale. Parliament UK (2014). Arguments for and against written constitution: https://www.publications.parliament.uk/pa/cm201415/cmselect/cmpolcon/463/46308.htm (Accessed 27.05.2015). UCL School of Constituion Unit (2015). What is the UK Constitution: https://www.ucl.ac.uk/constitution-unit/whatis/uk-constitution (Accessed 27.05. 2015). Avgousti, C (2014) The UK British Constituion. In need of a written one?: https://www.lepetitjuriste.fr/droit-compare/the-unwritten-british-constitution-in-need-of-a-written-one (Accessed 27.05.2015) Politics.UK (2004). Written Constituion: https://www.politics.co.uk/reference/written-constitution (Accessed 26.05. 2015). Risman, B (2015). A Written Constitution. The Law Journal UK via: https://www.thelawjournal.co.uk/Article%20a_written_constitution.htm (Accessed 26. 05. 2015).
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Separation of Powers in Australia
1. Explain the Doctrine of the Separation of Powers and how it operates in Australia.
The doctrine of the separation of powers is a political system used in Australia, where the institutions of government are divided into three main branches. These include the executive, legislative, and judicial (Greenfeld, 2012).
The legislature includes the parliament that is responsible of making the laws of the country. The executive includes the ministries that are responsible of putting the laws made by the legislature into operation. The judiciary, which made up of the courts, is responsible of giving interpretation to the laws.
The doctrine of separation of powers is usually said to be a cornerstone to fair governance.in Australia, this doctrine is puts together the uncomplicated democratic concepts that are part of the Westminster system, the version of power separation of United States, and the responsible government doctrine. Separation of powers has been a highly complicated issue in Australia due to the fact that it has not been totally described where the ultimate power lies within the political system of Australia. It has been difficult to argue out whether there is an overlap between the different branches of the doctrine of separation of power in Australia, although between these different branches, there is a visible common ground.
In Victorian Stevedoring & General Contracting Co Pty Ltd &Meakes v Dignan, the high court ruled that it was not practical to have a division that is strict between the executive and the legislature; hence re-affirming this to be outlined in the constitution(Carney, 2000).Little distinction exists between the Australian legislature and executive as seen in the above case.Members of the executive of Australia are actually members of the Parliament.
The Governor-general is responsible of appointing the executive and judge of the high court, yet he is part of the Parliament(Greenfeld, 2012). From the Australian constitution, section 64 provides that the members of the executive who are federal ministers must be part of the parliament(Carney, 2000).
This establishes a clear connection between the legislature and the executive, hence eliminating the total separation of the executive and legislature as seen in the American system. TheAustraliansystem of separation of powers stipulates thatthe political branches are not supposed to interrupt judicial activities.
2. Is there a true separation of powers between the institutions of government in Australia?
The separation of powers phenomenon between the Australian institutions of government is not clear. There is no true separation between the executive and legislature.
This means that there is no true separation between the institutions of government. This is evident with the fact that the members of the executive must be members of the Parliament. On the other hand, the federal judiciary of Australia has strictly protected its independence from the legislature and the executive. This means that in the case of the judiciary, there is a true separation with the other branches of government. New South Wales v Commonwealth Wheat case in 1915, the high court came up with a decision that strict protection of the power of the judiciary was very fundamental in the constitution(Greenfeld, 2012).
This protection was to be granted to commissions and tribunals that were formed by the legislature. This protection goes both ways where the political branches are not to interfere with the work of the judiciary, and at the same time, the judiciary should not interfere with the legislature and executive.
Some people will argue their case that the fact that the judges of the high court are selected by the Governor-General, who is a member of the executive; there is still no true separation of the judiciary and the other two branches. This is because the leadership of the judiciary is totally affected by the executive that nominated the judges, and at the same time, the executive member that selected the high court judges is part of the legislative. Where the power lies within the Australian system has been a controversial issue for a long while.
The effect brought about by the strong party discipline has led to the executive dominating the legislative. There is a visible overlap of the legislative and executive branches in the above case hence there is no true separation between the two branches.
Comparing the American phenomenon of separation of power and the Australian phenomenon, one may find that the Australian separation of power is not as strict as the American separation of power. In the American system, the legislative is totally different from the executive unlike in Australia.
3. Choose another country (either a common law or civil law jurisdiction) to explain how the Doctrine of the Separation of Powers operates in that other country compared to Australia
The doctrine of the separation of powers in the United States of America is quite different from the Australian case, hence my choice of comparison to the Australian doctrine.In America, the legislative, judicial and executive branches of government are very distinct from each other. This is to prevent the abuse of power, and hence the philosophy of separation of power was very crucial in the formulating of the constitution of United States(Hunter-Schulz, 2005).
The separation of power that is administered in America is closely associated to checks and balances system. Regarding the American legislative power, the congress is the branch of government that has sole power to do legislation duties.
the non-delegation doctrine does not allow the congress to give its responsibility of law making to any other branch of government. This is different from the Australian case where the law makers are part of the executive.
The executive branch in the USA is conferred, with qualifications and exceptions in the president. Section 2 of the American Constitution states that the President is the Commander in chief of the Navy and the Army, with a responsibility of appointing people into office and making treaties on behalf of the nation(Spindler, 2000). The president is also supposed to receive public Ministers and ambassadors with the Senate’s consent, and also make sure that the laws of the nation are executed faithfully.
This means the president is required by the constitution to enforce the laws personally, but through subordinates. The congress may terminate appointments done by the president and in addition, the president executes whatever that is given to him by congress(Spindler, 2000). From the above explanation, the American doctrine of separation of power is very clear between the executive that includes the president, and the legislature that includes the congress(Spindler, 2000). This is a completely different scenario in Australia where the constitution totally links the executive to the legislature.
As seen in the American perspective, the executive is not part of the legislature as is the case in Australia. The duties of the two branches are completely distinct in the American phenomenon.
In addition, there is a lot of control of power in the American scenario since the ultimate objective of each branch of government is to check the power of the other branches(Hunter-Schulz, 2005). Even the president’s power is greatly checked by the congress since he is no supposed to do anything without the consent of the congress.in Australia, the political parties greatly determine the decisions of the executive since it is through parties that the executive members get into leadership. The power of the judicial branch of the American government is more or less similar to that of the Australian government. It has the power to interprete the law in addition to deciding cases.
the power of the judiciary is completely differentiated from the rest of the branches just like in the case of the Australia(Hunter-Schulz, 2005).
In America, the executive is responsible of appointing the judges of the judges but under the consent of the senate. This is quite similar to the Australian judiciary where the judges are also selected by the executive. A case where an overlap of government branches of legislature and judiciary is in legislative courts formed by the Congress. On the contrary, there is no overlap because the legislative courts do not have a responsibility of exercising the judicial power. The work of the legislative court is the adjudication of questions regarding public rights.
It is clear that the American constitution has gone a long way in ensuring that one branch of the government does not delegate its duties to another branch of government as it may, at times, be the case of the legislative and executive branches of the Australian government. The big argument in the Australian separation of power regarding where power lies is not the case in the American phenomenon.
Equality of the executive, judiciary, and the legislature is what the constitution of America stipulates.
Although in some cases, for instance, at the time when the republican government is in power, the legislature is usually dominates(Gerangelos, 2009). It is a shared view between America and Australia that historically, the judiciary has always been seen as the weakest branch as compared to the legislative and executive. The fact that the judges that work in the judiciary are selected by another branch, which is the executive, proves that the judiciary may be weaker than the other two branches(Greenfeld, 2012). It is safe to conclude that the doctrine of separation of powers in the Australian system is quite different from the American system due to the difference in the system of governance.
The judiciary in both scenarios has its seclusion from the other two branches although at the end of the day it may be portrayed as the weakest of the three government branches.
References
- Carney, G. (2000). Separation Of Powers In The Westminster System. Australasian Study Of Parliament Group, 1-8. Gerangelos, P.
(2009).
- The Separation Of Powers And Legislative Interference In Judicial Process. Constitutional Principles And Limitations, 862-865.
- Greenfeld, M. (2012). The Asymmetry Of The Separation Of Powers.
The Western Australian
- Jurist, 233-245. Hunter-Schulz, T. (2005).
- Rule of law, separation of powers and judicial decision making in Australia. The National Legal Eagle, 1-6. Spindler, G.
(2000).
- Separation of Powers: Doctrine and Practice. Retrieved May 6, 2014, from Parliament of New South Wales: https://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/key/SeparationofPowers
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Law Essays – Public Emergency Liability
Public Emergency Liability
Title: The privileged treatment accorded by the courts to the emergency services on the question of duty goes too far. It does not merely recognise the importance of their public services, it offers them a degree of protection which allows them to be unaccountable in circumstances where liability should clearly exist. 1. Do you agree? Critically consider by reference to authorities, whether the current law strikes the right balance.Introduction
This paper discusses the legal perception of the duty of care owed by the public emergency services, including in particular the police, fire and ambulance services in the context of the burgeoning and ever-evolving law of tort. The statement under review claims that the “privileged treatment” (some would say limited immunity) offered to the public emergency services “goes too far”. It is further claimed that the latitude allowed by the courts in relation to the emergency services effectively renders those services unaccountable in circumstances where the imposition of liability is manifestly appropriate. In the following analysis these assertions are critically evaluated against the backdrop of relevant case law. The current balance of the law is identified in what is a constantly changing field. Conclusions are drawn on the basis of the authorities considered.Emergency Services and the Duty of Care
It is common knowledge that there is no general, proactive duty of care to undertake ‘rescues’ or interventions in emergency situations, no matter how straightforward such rescues might appear. This is graphically illustrated by the case Barrett v Ministry of Defence (1995), where the failure of the MOD to intervene to prevent the death of an alcoholic soldier was not deemed to merit the imposition of tortious liability. Moreover, the position of English common law is mirrored in the United States on this point as Osterlind v Hill (1928) confirms. This stance was endorsed, by inference, in X v Bedfordshire County Council (1995) (by the House of Lords), and more explicitly in Stovin v Wise (1996). Indeed, Lord Hoffman opined in Stovin that the omission of a public authority to undertake the rescue of a emergency victim should be deemed incapable of deriving liability, except in circumstances where Parliament has expressly and specifically set down a right to redress in the form of financial compensation where the duty to intervene and rescue is not met. Given the above authorities it can come as no surprise that the law has traditionally not imposed a duty of care on emergency services when they are summoned to give assistance. In the case Ancell v McDermott (1993), for example, the court ruled that the police service was not subject to a duty of care to warn road users of dangers on the roads that were known to the service. Moreover, in Alexandrou v Oxford (1993) police were dispatched to retail premises to investigate the triggering of a burglar alarm. However, they omitted to detect the presence of a burglar before departing the shop. In this case the court ruled that the police did not owe a duty of care to the owner of the premises, who suffered loss as a consequence of the service’s failure. The court reasoned that to impose a duty of care in such circumstances would be contrary to the interests of public policy. The court also drew on the concept of proximity to justify its decision, although it is submitted that this seems tenuous given that it is hard to imagine a much more proximate situation. These decisions are in conformity with the earlier case of Hill v Chief Constable of West Yorkshire (1989), in which the issue for the consideration of the court was whether the allegedly incompetent police service should be held to a tortious duty of care over its acquiescence before arresting the infamous Peter Sutcliffe, better known as the “Yorkshire Ripper”, although the police were in possession of cogent evidence indicating his culpability. The court rejected the action on grounds of public policy and also, this time on a much better-founded assertion of a lack of proximity. It was conceded that the police service owes a fundamental duty to the general public to catch the protagonists of crime efficiently and promptly but the court reasoned that it was impossible to define a specific class of individuals to whom the duty of care should be owed. It can be argued that there is manifest and abundant justification for the decision in Hill. Surely it is not feasible to impose a legally enforceable duty of care on the police force, and thereafter by inevitable implication award pecuniary compensation in the form of damages for every failed (or slow) investigation. The great majority of crimes go unsolved. The potential workload that the courts would be unimaginably huge and the compensation bill, which would ultimately have to be met by the public purse would be colossal. The case of Rondel v Worsley [1969] confirms the approach in Hill and the later cases discussed. In Rondel, unavoidable public policy factors were deemed to take precedence over issues of proximity in the court’s deliberations. That said however, there are limits to the fear of opening the floodgates to claims. If during the course of their operations the police are responsible for directly causing immediate harm to another they may be held liable for those actions. In Rigby v Chief Constable of Northamptonshire (1985), liability was imposed after the negligent use of a CS gas cannister and previously in Knightley v Johns (1982) negligent conduct in the aftermath of a traffic accident was found to justify a claim in tort. These cases, and other of their ilk, show that the police service can be subject to an enforceable duty of care, but only in tightly restricted circumstances and only where close causal proximity is clearly established. A case concerning the fire service shows that the police are not alone in their difficult relationship with tort law. In Capital and Counties plc v Hampshire County Council (1996) the court held at first instance that the fire service was liable for the negligence of one of its officers in ordering that the sprinkler system in a burning building should be turned off. The first instance judge dismissed arguments for immunity based on public policy. It was held (somewhat dubiously it is argued) that potential liability was unlikely to result in fire-fighting being carried out with a defensive frame of mind and the fire brigade’s exclusive control of its operations was a consideration against a public policy immunity. This decision appears to be in accord with the contemporaneous Scottish case of Duff v Highland and Islands Fire Board (1995), where it was held that the fire brigade did not enjoy immunity in tort regarding operational matters. In Duff the fire brigade attended the scene of a fire and then left believing it was extinguished. It was not extinguished and when the brigade was called back they were unable to control the fire and it destroyed the pursuer’s house. Lord MacFadyen opined that, while there was a risk of defensive behaviour among fire-fighters, precisely the same argument could be employed with equal force in the context of medical negligence and other forms of professional negligence and there was no question of extending public policy immunity into these vast spheres. Another contemporary supporting case is Crown River Cruises Ltd v Kimbolton Fireworks Ltd (1996), where the fire brigade was found liable in respect of a negligent failure to extinguish properly an initial fire at a premises. However, it must be noted that Capital and Counties plc v Hampshire County Council (1997) went to appeal at the Court of Appeal joined with two other cases. The facts of Capital and Counties are already known. In the joined case Church of Jesus Christ of the Latter Day Saints v West Yorkshire and Civil Defence Authority the fire service negligently omitted to source a sufficient supply of water for the purposes of extinguishing a fire and in the third joined case Monroe v London Fire Brigade officers of the fire service failed to check the perimeter of an explosion for secondary fires. The Court of Appeal ruled that the fire service does not owe a general tortious duty of care merely because they had been summoned to give assistance. The Court also held that the fire service’s assumption of responsibility once at the scene of an emergency, coupled with the reliance placed on the service by the parties involved, did not of itself establish a duty of care on the part of the fire service. The consequence of these rulings on principle was that the Church of Jesus Christ and Monroe cases failed on the facts. Liability was only established in the Capital and Counties case on the narrow grounds that the fire service had actually, physically and directly caused the damage suffered in the case, by personally and deliberately switching off the sprinkler system. All that said, a potentially groundbreaking decision was reached in the more recent case of Kent v Griffiths (2001). Here, a pregnant woman suffered an asthma attack at home. Her doctor attended her, realised she was in extreme difficulty and called 999 to summon an ambulance. The ambulance did not arrive for a period of 40 minutes (as opposed to the service’s own guidelines which indicated it should have arrived within a maximum of 14 minutes. It transpired that the ambulance crew entered false records in their logbook in an attempt to cover up their own negligence. The woman ultimately suffered a respiratory arrest, lost her baby and was left with brain damage as a direct result of the delay of the ambulance. Unsurprisingly the ambulance service was sued for negligence. At first instance, Turner J held that it would be “offensive to, and inconsistent with, concepts of common humanity” to refuse to impose a duty of care in all the circumstances of the case. Equipped with clear evidence of negligence and causation (and even mala fides) Turner J ruled that where the ambulance service accepted the task of providing a timely response and was in a position to do so, it was right to impose a duty of care to carry out the rescue in regards to the rescuee. The decision in Kent v Griffiths was welcomed by some, but feared by others concerned about opening the floodgates to a multitude of claims. The case was appealed. At the Court of Appeal it is submitted that an appropriate balance was struck. The first instance decision was upheld, however, their Lordships were at pains to stress that the precedent should be limited in its future application to the ambulance service. Master of the Rolls Lord Woolf made it clear that Kent v Griffiths could not be utilised in justifying actions against other arms of the emergency services. In confining the case strictly to its facts, Lord Woolf MR made it crystal clear that no general point of principle had been established. Their Lordships focused on the specific relationship between the ambulance service and each individual patient as differentiating the judgment from cases involving services, such as the fire brigade, the coastguard and the police, who owe a more general duty of societal protection.Concluding Comments
With specific reference to the title to this work, it is clear that there is a very delicate balance to be struck in the imposition of a legally enforceable tortious duty of care on the public emergency services. It is submitted that both extremes are undesirable: at least that much is relatively uncontroversial. It would clearly be inappropriate to afford the emergency services complete immunity, because to do so would be to allow outrageous examples of highly proximate and gross negligence to go unpunished. Such would give the emergency services carte blanche to act in society under a licence not enjoyed by any other of its members. However, it would be equally unsatisfactory to settle a duty of care on the services that could potentially punish each and every technical incidence of negligence, because to do so would so drastically impair their actions and divert their scarce resources into defending the veritable multitude of civil suits that would quickly ensue. While it is far from ideal to build a framework of law on a case by case basis, it is hard to identify a better approach. The tentative step forward that was taken in Kent v Griffiths was quickly confined to the facts of the case and limited in terms of the scope of its future application. The reasons for this are obvious, and as long as the courts are prepared to extend liability in those cases that demand it, while curtailing the effects of their judgments with a view to the wider and general picture of public policy, then the law should be able to maintain efficiency and integrity in this sphere. In conclusion it is submitted that it is appropriate to open the floodgates just a crack, to allow the courts to deal with the most deserving cases within a rigid framework of liability, but not so far as to impede the emergency services in the work on which we all rely.Bibliography
Cases as footnoted to standard citation Kidner R, Casebook on Torts, (2006) Oxford University Press Rogers W.V.H., Winfield and Jolowicz on Tort, (2002) Sweet & Maxwell Weir, T, Casebook on Torts, (2004) Sweet & MaxwellCite this page
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Property Rights and the Constitution
Property rights and the Constitution This essay will discuss the plain packaging laws for tobacco in the Commonwealth of Australia. A recent High Court of Australia’s judgment in the case of JT International and British American Tobacco v Commonwealth of Australia[1] has upheld the righteousness of the tobacco plain packaging laws. However, the manufacturers have argued that such laws constitute hostile acquisition of intellectual property. This paper reviews such claims of manufacturers and whether intellectual property rights are indeed endangered with such laws. Therefore, it will be argued that it is important that the Australian Constitution should protect intellectual property rights more robustly reinstating that acquisition of property does not take place at unjust terms. While evaluating the above critically, the essay is broken down in to the following sub-sections: summary of the judgment in JT International and British American Tobacco v Commonwealth of Australia, the legal aspects, the economic repercussions of such laws and pros & cons, and the final expected outcome. Judgment summary The legislation of the Tobacco Plain Packaging Act 2011 (Cth) puts some restrictions on the use of colour, size, font, marks, other physical features, etc. in the packaging for tobacco products.[2] The tobacco manufacturers in opposition to the same claimed that it is an acquisition of the intellectual property that they have developed over the years and contributes significantly to their sales. Thus, on one hand they are given exclusive rights to use certain captions, logos, marks, etc. and on the other hand restriction is being levied for use of such exclusivity.[3] The Commonwealth of Australia being the defendant claimed that there is no acquisition of property commensurate to Section 51(xxxi) of the Constitution and therefore the question of acquisition of the manufacturers’ property rights does not only arise.[4] The Court after due diligence and through a statement of reasons of the bench of judges came to the conclusion that there is indeed no acquisition of property to invoke Section 51(xxxi) of the Constitution and thus the Tobacco Plain Packaging Act 2011 (Cth) is fair in its legislation.[5] Legal aspects The reasons and statements made by the bench in support of their judgment are critical to understand and be read with the appropriate legislation. In this section, we intend to relate the reasons with the appropriate legislation. In the Tobacco Plain Packaging Act 2011 (Cth) s 18 of the Act prescribes the physical features of the packaging (i.e. the cigarette packet) as well as the packing (i.e. cartons).[6] The retail packaging restrictions as prescribed by the Act is excerpted below: “... (1) The retail packaging of tobacco products must comply with the following requirements: (a) the outer surfaces and inner surfaces of the packaging must not have any decorative ridges, embossing, bulges or other irregularities of shape or texture, or any other embellishments, other than as permitted by the regulations; (b) any glues or other adhesives used in manufacturing the packaging must be transparent and not coloured. Cigarette packs and cigarette cartons (2) A cigarette pack or cigarette carton must comply with the following requirements: (a) the pack or carton must be rigid and made of cardboard, and only cardboard (subject to paragraphs (1)(b) and (3)(d)); (b) when the pack or carton is closed: (i) each outer surface of the pack or carton must be rectangular; and (ii) the surfaces of the pack or carton must meet at firm 90 degree angles; (c) all edges of the pack or carton must be rigid, straight and not rounded, bevelled or otherwise shaped or embellished in any way, other than as permitted by the regulations....” When we closely examine the highlighted parts, it is evident that what the Act envisages is uniformity of shape, size and colour. The trademarks, copyrights, etc. registered by the businesses are differentiated by the symbols, colour, fonts, etc. Thus, it may seem that the costs incurred by the businesses in developing these differentiated marks or fonts or colour are sunk to an extent because of this uniformity. However, if Section 19(3) is read, it is found that the brand name, business name or variant name doesn’t require to follow the colour scheme which implies that while the whole pack is required to be of a certain colour (dark brown if nothing else is specified), the brand name or the variant name can continue to be of the colour it is. Section 19(3)[7] is read as below: “...(3) The following are not required to be the colour mentioned in paragraph (2)(b): (a) the health warnings; (b) the text of: (i) the brand, business or company name, or variant name (if any), for the tobacco products; and (ii) the relevant legislative requirements (other than the health warnings). Evidently, Section 20 prescribes no use of trademarks, marks, variant or business name in the no other text orientation than that of health warning. Further, while Section 20 does not apply to wrappers, Section 22 clarifies that even wrappers cannot have any trademarks, colour, should have non-transparent material, etc. The overall impact of the same is that, businesses or brands that have their differentiation made in a way that modifies the name of the variant will be less harmed compared to a business that uses a trademark or image for differentiation purpose.[8] Every brand of cigarette extensively relies on the colour and image specificity to differentiate with other brands. The similar restrictions on packaging will result in the redundancy of all intellectual property rights being built by the businesses over time. If all the brand’s cigarette packs look alike with just the name of the brand in plain text, then the costs incurred in intellectual property development over the years shall surely be wasted. Consequently, with the provision of the Tobacco Plain Packaging Act 2011 (Cth) applicable, the only use of trademarks shall be limited to showcasing them in advertisements. Based on the above, there is certainly an infringement into the Intellectual Property Rights of the manufacturers. One of the reasons forwarded by the bench of High Court of Australia regarding the non-usability of trademarks, designs, etc. was that an intellectual property is in itself a negative right which is put into effect with an attempt to stop others from using it.[9] Thus in effect, the restriction to use such intellectual property which bars other competitors from using a close clone of the image (trademark) would in no way take any right granted to the manufacturers. However, if we consider the end result by way of the packaging of the product, when the major proportion of the packaging is similar in colour, texture, shape, etc. for each brand, the right to stop a close competitor from copying or using a close symbolism is effectively made zero. Therefore, the value of an intellectual property as used in the financial statements based on some methodology which is again based on some Australian statute becomes much lower due to its apparent ineffectiveness. Therefore, there is surely an acquisition or reduction in value of an asset without any consideration, let alone a just consideration. Furthermore, with respect to the question whether there is an acquisition of property via unjust terms so as to invoke Section 51(xxxi) of the Constitution or not, it is clarified that since the Commonwealth is not using any property of the plaintiffs to derive any benefit and nor does it hold any interest in such property. As such, ‘acquisition’ is not in effect. While in literal terms although the justification may seem correct, the same concept can also be viewed in a different light. The objective of the Commonwealth of Australia here is to reduce the consumption of cigarettes and tobacco products. By validating the Tobacco Plain Packaging Act 2011 (Cth), the effectiveness of the intellectual property of the manufacturer is reduced substantially and this reduction in effectiveness to sale cigarettes is being capitalised to fulfil the objective of reducing cigarette consumption. Thus, even without holding an interest in the property, the property is being controlled to fulfil a different set of objectives. It has to be considered that for an intangible asset literal possession is not possible and the existence of such asset is only realisable through it use and control over it. Thus, from a different point of view, there is a virtual acquisition of intellectual property on unjust terms. The Economic Repercussions If we think practically, the economic impact can be broadly classified into two categories. The first category is that consumers would already consume cigarettes and are habituated; for these consumers, the impact of the Act will possibly be limited and subject to time constraint. Although consumers will initially find a little difficulty in finding their brand, over time they will be acquainted with the new restricted packaging of cigarettes. The second category is potential new consumers, where for new consumers the impact on sale will be much deeper. These are the consumers on whom the concept of differentiation has the highest impact and it is for this segment that the trademarks, colour, packaging, etc. play a significant role. With the new look alike packaging restrictions for all cigarette brands, there is a high possibility that the established brands like Camel, Marlboro etc. will lose their lustre. There is a potential loss of goodwill, brand image and positioning in the mind of the consumers. Therefore, since there will be a definite loss in monetary terms through trademark and design restrictions, the applicability of Tobacco Plain Packaging Act 2011 seems unjust to manufacturers because of the following reasons. First, the reduction in consumption of cigarettes could have been practiced through alternative means without infringing any loss of goodwill, brand value. With the objective of reducing cigarette consumption, a mere mandate to showcase pictures of cancer patients over a substantial area of the packet could have been adequate. The destruction of brand proposition and trademarks of tobacco manufacturers were not required to be done. Furthermore, the intellectual property laws pertaining to tobacco manufacturers could have been separately amended first and just terms could have been extended for existing players in the market.[10] Based on the above, it is concluded that the outcome of the JT International and British American Tobacco v Commonwealth of Australia was not good. Final expected outcome In section 51(xxxi) it is stated that “…the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws…”.[11] This provision in the Constitution does not clarify and foresee situations like this infringement of intellectual property rights and the same can be exploited by States. In addition, a number of cases and allegations of unjust acquisition of property by States in lieu of the aforementioned provision of Section 51 can be exemplified. For example, in the case Spencer v Commonwealth of Australia[12], Mr Peter Spencer protested New South Wales legislation and Commonwealth actions which had diminished his ability to clear his land as he pleased and diminished the value of his land, which constituted an unjust acquisition of his property.[13] A case of similar nature took place in the Kimberley region where land was acquired for a gas precinct and allegations of unjust acquisition have surfaced. Therefore, the Constitution should be much more robust in reinstating that acquisition does not take place at unjust terms and for the same relevant bills and amendments need to be brought in. A Private Member’s bill was introduced by Mr. Bob Katter in the House of Representatives called Constitution Alteration (Just Terms) Bill 2010 so as to withhold the concept of just compensation for property acquisition made by the States for common benefit of the Commonwealth of Australia. This again testifies the claim that unjust acquisition of property does happen in the country and adequate steps to counter the same should be put in place. References Cited Daniel Fletcher, ‘JT International SA v Commonwealth: Tobacco Plain Packaging’ (2013) 35(15) Sydney Law Review 827. Tobacco Plain Packaging Act 2011 (Cth) Diane Spooner, ‘Property’ and acquisition on just terms, 1
[1] (2012) 250 CLR 1. [2] Tobacco Plain Packaging Act 2011 (Cth) s 18. [3] JT International and British American Tobacco v Commonwealth (2012) 250 CLR 1, 19 [2]. [4] JT International and British American Tobacco v Commonwealth (2012) 250 CLR 1, 70 [176]-[178]. [5] Daniel Fletcher, ‘JT International SA v Commonwealth: Tobacco Plain Packaging’ (2013) 35(15) Sydney Law Review 827, 828. [6] Tobacco Plain Packaging Act 2011 (Cth) s 18. [7] Tobacco Plain Packaging Act 2011 (Cth). [8] Tobacco Plain Packaging Act 2011 (Cth) s 22. [9] JT International and British American Tobacco v Commonwealth 250 CLR 1, 31 [36]. [10] JT International and British American Tobacco v Commonwealth (2012) 250 CLR 1, 25-26 [25]. [11] Commonwealth of Australia Constitution Act [12] [2010] HCA 28. [13] Spencer v Commonwealth of Australia (2010) 241 CLR 118, 126 [8]-[9].
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Proving the Guilt of Murder
Question 1 Amina may be guilty of the murder of Yasin and Khadija.
Khadija
To establish a case of murder, the prosecution must prove (1) that the unlawful death of Khadija was caused by an act (or omission)[1] of Amina; and (2) that Amina did that act (or omitted to act) with malice aforethought[2], whether express or implied[3]. So far as causation is concerned, in the context of homicide offences, this simply means that Khadija’s death was 'accelerated' by Amina’s actions[4]. The burden of proving that Amina is guilty remains on the prosecution throughout the trial and unless Amina wishes to raise a special defence of insanity or diminished responsibility (discussed later) she will at no point be required to establish any defence, or partial defence, to the charge[5]. The ‘malice aforethought’, which is the ‘mental’ element of murder, may either consist of an intention to kill unlawfully (express malice) or an intention to cause grievous bodily harm, i.e. really serious harm[6], unlawfully (implied malice)[7]. It is not sufficient for the finding of intent that Khadija’s death was a natural and probable consequence of Amina’s action; the relevant question is whether Amina did intend or foresee Khadija’s death (or the fact that Khadija would sustain grievous bodily harm), “by reference to all the evidence, drawing such inferences from the evidence as may be proper in the circumstances”[8]. The fact that Amina foresaw that Khadija would die or sustain grevious bodily harm from the multiple stab wounds is not conclusive evidence of intention but is a relevant factor to be taken into consideration[9]. Neither is the fact that Khadija’s death was a virtually certain result of Amina’s actions conclusive; although the greater the probability of a consequence, the more likely it is that it was foreseen and, if that consequence was foreseen, the more likely it is that it was also intended[10]. On the facts, it would seem that Amina would be found guilty of Khadija’s death. The act of stabbing Khadija ‘accelerated’ her death, and although the finding of intent will be a matter for the jury, it is clear that Khadija would die or at least sustain ‘very serious harm’ from being stabbed multiple times; it is highly likely therefore that the jury would rule that this was foreseen and therefore intended[11].
Yasin
The first element to be proved to establish the offence of murder is to show that the unlawful death of Yasin was ‘caused’ by Amina’s act of stabbing Yasin in the stomach once using a bread knife. Although there is the later issue of Jake’s negligent treatment, it is certain that but for Amina’s act, Yasin would not have died. Amina’s conduct does not have to be the sole or the effective cause of Yasin’s death: it will be sufficient that it is a cause “which cannot be dismissed as minimal or as slight or trifling”[12]. So far as Yasin’s death is concerned, there may be two or more independent operative causes, and any person whose conduct constitutes a substantial (more than minimal) cause may be convicted of an offence in respect of his death[13]. We are told that, during the operation to save Yasin's life, Jake, the anaesthetist, who was newly qualified, did not realise that the tube supplying oxygen to Yasin had become detached and Yasin died. Amina could argue that the chain of causation was broken by Jake’s actions, using R v Jordan (1956)[14] as an authority, which decided that if medical treatment received was the sole cause of death, and was grossly negligent, the chain would be broken. However, there are cases that since suggest the argument in Jordan will be very difficult to use. For example, in R v Smith (1959)[15], the defendant stabbed the victim in a brawl and en route to the medical orderly, the victim was dropped twice; the medical orderly then failed to diagnose the full extent of his wounds. The victim died, but the defendant’s conviction for murder was upheld as the wound was still an operating cause of death and so the chain of causation was not broken. Similarly, in R v Mellor (1996)[16], the appelant’s argument that the substantial cause of death was the failure of the medical staff at the hospital to administer sufficient oxygen to the victim failed, on the basis that, per Schiemann LJ, there was no onus on the Crown to prove that any supervening cause, such as medical treatment, was not a substantial cause of death. In R v Cheshire (1991)[17], Bedlam LJ stated: “It will only be in the most extraordinary and unusual case that such treatment can be said to be so independent of the acts of the accused that it could be regarded in law as the cause of the victim’s death to the exclusion of the accused’s act”. In every case, it is a question of fact and degree, and is for the jury to decide, having regard to the gravity of the supervening event, and to whether the injuries inflicted by the defendant are a significant cause of death[18]. Although the medical treatment Yasin received was incompetent, therefore, Amina would still be guilty of murder if the wound was the operating and substantial cause of death. We are told that Yasin required life saving treatment and so we can assume this is the case. It will also be necessary to establish that the requisite mens rea existed; Amina must have either intended to kill Yasin, or intended to cause grievous bodily harm, i.e. really serious harm[19]. As for Khadija, it is not sufficient for the finding of intent that Yasin’s death was a natural and probable consequence of Amina’s action; the relevant question is whether Amina did intend or foresee Yasin’s death (or the fact that Yasin would sustain grievous bodily harm). As for Khadija, the fact that Amina foresaw that Yasin would die or sustain grievous bodily harm from the stab wound to the stomach is not conclusive evidence of intention but is a relevant factor[20]. Of note here, Amina only stabs Yasin once, whereas she stabs Khadija several times – this could perhaps indicate that she doesn’t intend to kill Yasin. However, it is virtually certain that Yasin would sustain grevious bodily harm from such an attack, which is all that is required for the mens rea of murder, and so it is likely to be regarded as foreseen, and therefore intended[21]. It is likely therefore that Amina will be found guilty of the murder of Yasin.
Defences
Provocation
If Amina successfully raises the defence of provocation, this may reduce a charge of murder to one of manslaughter. The test of whether the defence of provocation is entitled to succeed is a dual one. The alleged conduct causing the provocation must (i) actually cause “a sudden and temporary loss of self control” making the defendant so subject to passion that he is not the master of his hand (the subjective test); and (ii) the provocation must be sufficient to make a reasonable man do as the defendant did (the objective test). Provocation may consist of things done or said, or both, and the question as to whether this was enough to make a reasonable man do as he did is one for the jury, taking into account everything both done and said according to the effect which, in the jury's opinion, it would have on a reasonable man[22]. The facts state that Amina found Yasin in their bedroom asleep, with another woman, Khadija, lying beside him. Of note, anything can amount to provocation and so this conduct will suffice[23]. Amina goes downstairs, picks up a bread-knife, returns to the bedroom and stabs Yasin and then Khadija. The time elapsing between the provocation and the killing is relatively short[24], which suggests that there indeed was a sudden temporary loss of control. To satisfy the objective stage, it is necessary to show that a reasonable person would have reacted the same way as Amina did, and the key decision in this area is R v Smith (Morgan) (2000) 4 All ER 289. Amina’s characteristics can be taken into account as with regards to the gravity of the provocation and degree of self control expected. Presumably characteristics such as the repeated beatings that Amina has endured could be taken into account as a factor in explaining why Amina reacted so violently to the situation. The test requires that the jury ask whether Amina exercised what was reasonable self control for her. Jealously alone should not be taken into account[25], but Yasin’s repeated beatings may be a factor. Previous cases show that if the defendant has endured abuse over a period of time, particularly where this has resulted in 'battered woman syndrome', a jury may more readily find that there was a sudden loss of control triggered by even a minor incident – the incident proves to be the ‘last straw’ for the defendant[26]. It seems likely on the facts that Amina will be able to use the defence of provocation to reduce the charge to one of manslaughter. There are two counts on which Amina may wish to raise the defence of provocation. The first relates to the repeated beatings that Yasin has given her over a number of years.
Diminished responsibility
Amina may be able to claim diminished responsibility if she can show that at the time of the murder, she was suffering from such abnormality of mind as substantially impaired her mental responsibility[27] for her acts in carrying out the killings[28]. Abnormality of mind', means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal[29]. The onus will be on Amina to prove the defence, but only a preponderance of probabilities must be shown[30]. If the defence is successful, Amina will be changed with manslaughter rather than murder[31]. Of note 'Battered women's syndrome', which was listed in the British Classification of Mental Diseases in 1994, can give rise to the defence of diminished responsibility[32]. Amina may therefore be able to use this defence on the basis that Yasin has beat her over a period of time and she is suffering from the syndrome as a result. If she is able to adduce medical evidence of the syndrome, the court may accept it and this will avoid a trial for murder altogether[33]. Amina may try to get the charge reduced to manslaughter on the basis of both provocation and diminished responsibility, and if the jury does return a verdict of manslaughter, the judge may ask the jury on which ground its verdict is based or whether it was based on both grounds[34]. In conclusion, it seems that Amina would be found guilty for both the murder of Yasin and Khadija, but may have both the defences of provocation and diminished responsibility available to her, which would reduce the charge to manslaughter. -------------------
Bertram’s liability under Section 18 OAPA1861
Bertram may be guilty of maliciously wounding or causing grievous bodily harm with intent, under Section 18 OAPA1861. The maximum sentence for this offence on conviction is imprisonment for life. The actus reus of the offence, either maliciously wounding or causing grievous bodily harm, usually requires a break in the surface of the skin[35]. The actions in relation to tightening a belt round Amelia’s neck causing her to suffer from distorted vision and headaches will probably not therefore suffice for the purposes of Section 18; although the meaning of grievous bodily harm is “not limited to the skin, flesh and bones of the victim, but also includes an identifiable psychiatric injury”[36]. Whether Amelia’s headaches and distorted vision amount to an identifiable psychiatric injury will be judged objectively, according to the ordinary standards of usage and experience, and not subjectively from the standpoint of how Amelia would describe it[37]. The act of burning Amelia with lighter fluid will almost certainly amount to a sufficient act for this purpose however; the facts state that her injuries were serious and required skin grafts. To establish an offence under Section 18, it must also be shown that Bertram is 'malicious'; in that he specifically intended his actions to result in some unlawful bodily harm to Amelia; not that he was just reckless as to whether the harm may occur[38]. The prosecution will have to prove that it was his purpose to do some grievous bodily harm, or that in tightening the belt round Amelia’s neck, he foresaw such harm as at least virtually certain, permitting the jury to infer the necessary intent[39]. On the facts, it does not seem that Bertram really intended to hurt Amelia – clearly his actions were for pleasure. It is unlikely that he would be found guilty under Section 18 therefore.
Bertram’s liability under Section 20 OAPA1861
Bertram may be guilty of the lesser offence of maliciously wounding or maliciously inflicting grievous bodily harm under Section 20 OAPA1861. The maximum sentence on conviction for this offence is five years. For this offence, again there usually will be a break in the surface of the skin[40], although as before, the question of whether the headaches and distorted vision amount to an identifiable psychiatric illness equating to grievous bodily harm will be judged objectively, according to the ordinary standards of usage and experience. Of note, in R v Burstow [1997][41], it was held that a stalker could be convicted of an offence under Section 20 even where he had not applied physical violence directly or indirectly to the body of the victim. This suggests that the headaches and distorted vision may qualify towards establishing the offence. The burns to Amelia’s skin will certainly qualify as malicious wounding or infliction of grievous bodily harm due to their severity. The mens rea for a Section 20 offence is denoted by the word 'maliciously', and for Section 20, it will be sufficient to prove that Bertram intended his act to result in some unlawful bodily harm to some other person, or alternatively was subjectively reckless as to the risk that his act might result in such harm[42]. He must at very least foresee the possibility of some physical harm occurring or he will not be liable under Section 20[43]. On the facts, there is a strong possibility that Bertram would be liable under Section 20; although he is surprised by the extent of the flames, at least some physical harm would be a virtual certainty.
Bertram’s liability under Section 47 OAPA1861
If the Section 20 charge fails, perhaps for lack of intent, Bertram could be charged under Section 47 OAPA1861 for assault occasioning actual bodily harm. The maximum sentence for this office on conviction is five years’ imprisonment. It will be necessary to show that Bertram assaulted Amelia, in that he caused her to apprehend an immediate infliction of violence or carried out the actual infliction of violence occasioning bodily harm. Bodily harm is defined in R v Chan-Fook [1994][44] as being any hurt or injury calculated to interfere with the health or comfort of the victim. Amelia’s injuries, both in relation to the belt and the burns, would definitely satisfy this criteria. Liability will be established if it can be shown that Bertram has the mens rea of common assault, which is intention or recklessness. Bertram may not have intended the harm caused to Amelia but may well have been reckless as to the harm being caused, in that he was aware of the risk of harm, and took the risk unreasonably[45]. It seems likely that, at very least, he would be guilty of an offence under Section 47 as it would be virtually certain that his actions would cause at least some harm. As a defence to his actions, Bertram may seek to argue that Amelia consented to the harm caused. The evidential burden of proof lies with Bertram who must produce evidence of consent before the judge is required to put it before the jury. R v Donavon (1934)[46] is the authority for the fact that a victim may not validly consent to physical harm if it amounts to actual bodily harm or worse, unless the activity comes within a range of policy based exceptions[47]. We have already established that Bertram is very likely to be charged with Section 20 or Section 47 OAPA1861, and so he will only be able to argue consent if it does fall within an exception. Such exceptions were considered in R v Brown [1993][48] in which a group of homosexual males were being tried for, inter alia, assault occasioning actual bodily harm and unlawful wounding under the OAPA1861 for participating in sado-masochistic practices. The Court of Appeal dismissed their appeals against conviction, but asked for guidance as to whether it was necessary for the prosecution to prove lack of consent to establish guilt under Section 20 or Section 47 OAPA1861. By a majority of three to two, the House of Lords held that consent was irrelevant; the conduct was presumptively unlawful in that it involved “violence, cruelty and abnormal and perverted homosexual activity”, which was “unpredictably dangerous and degrading to body and mind”. The activities fell within the definition of the offences and since injury was both intended and caused, consent was irrelevant unless the Court could find that there was a good reason to allow the activity (i.e. public policy reasons, as for sporting activities like boxing). The majority of the Lords held that there were several good reasons why the defence should not be extended to cover such activities relating, inter alia, to the risk of serious infections, injuries and spreading diseases such as AIDS - there was therefore no public interest in permitting such practices. As a result, consent is a defence only to common assault where no injury is caused and or/intended but where it is intended and/or caused, it will be no defence unless there is a reason to justify it in the public interest. So far as Bertram is concerned, then, it is highly unlikely that he will successfully be able to raise the defence of consent since the practices that the assaults referred to were similarly dangerous and risked serious injury, as for those in R v Brown [1993][49], and there are no public policy reasons for allowing them. We are told that Amelia pursues Bertram for over a year with letters, cards and telephone calls begging him to return and that as a result, Bertram suffers from anxiety and nervousness requiring psychiatric counselling; we are also told he has to give up his job for lack of concentration. The issue is whether these injuries will amount to an assault occasioning actual bodily harm under Section 47 OAPA1861. Psychiatric harm can be grievous bodily harm or actual bodily harm; this depends on its severity. In either case, expert medical evidence is required as to the extent of the harm. R v Burstow; R v Ireland (1997)[50] establishes that neuroses should be distinguished from simple states of fear or problems coping with everyday life, but where the line is drawn is a matter of psychiatric judgement. A charge under Section 47 requires proof that Amelia has committed an assault, in the sense that she has caused Bertram to apprehend immediate physical violence. This can be established by means of a phone call, even if it is silent[51]. The type of ‘stalking’ she appears to be carrying out can amount to an assault occasioning actual bodily harm, where it causes a clinical illness (as opposed to simple anxiety and stress)[52]. However, Bertram is anxious and nervous, and suffers from lack of concentration; this is unlikely to amount to a clinical illness. The facts do not suggest either the calls, cards and letters cause him to apprehend physical violence. Merely causing him to feel uncomfortable will not suffice. If therefore the actus reus of assault is not established, the charge under Section 47 of OAPA1861 fails, as does any possible common assault charge. Even if it can be shown that Bertram did apprehend immediate physical violence, it must also be shown that Amelia intended this, or was at least aware of the risk that Bertram might suffer this harm[53]. The facts state that Amelia simply wants Bertram back; they do not suggest that her communications are in any way threatening or unpleasant, and so it seems unlikely that she will be guilty of assault for her actions. She may however be liable under the Protection From Harassment Act 1997, which provides that a person must not pursue a course of conduct which amounts to harassment of another person, and which they knows or ought to know amounts to harassment of the other. The sort of conduct that might qualify for this offence will include causing Bertram distress[54] which appears to be the case here. The test is an objective one and asks whether a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other[55]. The 'reasonable person' referred to is a hypothetical reasonable person who is not endowed with the defendant's standards or characteristics[56]. On the facts it seems that Amelia would likely be guilty of harassment under the Protection from Harassment Act 1997. In conclusion, it is likely that Bertram would be liable under Section 20 of the OAPA1861, or possibly Section 47 if the Section 20 charge failed for lack of intent. The defence of consent will not be available because of the practices concerned. Amanda is unlikely to be guilty of any offences under the OAPA1861 but may be guilty under the Protection from Harassment Act 1997 for causing Bertram distress.
Bibliography
Douglas, G & Molan, M (2005/6) Criminal Law (4th Edition) Oxford University Press, Oxford Halsbury’s Laws of England: Criminal Law, Evidence and Procedure 2. Offences Against the Person (1) Homicide (ii) Murder 89. The Elements Halsbury’s Laws of England: Homicide (iii) Manslaughter b. voluntary manslaughter 94. Provocation as defence to murder charge Halsbury’s Laws of England: Homicide (iii) Manslaughter b. voluntary manslaughter 96. Diminished responsibility as defence to murder charge. Halsbury's Laws of England: Criminal Law Evidence and Procedure 2. Offences Against the Person (3) Non fatal offences against the person (ii) Wounding or Causing Grievous Bodily Harm with Intent 119. Constituents of wounding etc with intent Halsbury's Laws of England: Criminal Law Evidence and Procedure 2. Offences Against the Person (3) Non fatal offences against the person (xi) Harassment 152. Prohibitions of harassment and offence of harassment Halsbury's Laws of England: Criminal Law, Evidence and Procedure 1. Principles of Criminal Liability (2) The Elements of Crime (ii) The Criminal Conduct 6. Causation Halsbury's Laws of England: Criminal Law, Evidence and Procedure 1. Principles of Criminal Liability (2) The Elements of Crime (iii) The Mental Element 13. Proof of intention and foresight
Table of Cases
A-G's Reference (No 6 of 1980) [1981] 2 All ER 1057 Chan Kau v R [1955] AC 206, [1955] 1 All ER 266, PC DPP v Smith [1961] AC 290, 44 Cr App Rep 261, HL Luc Thiet Thuan v R [1997] AC 131, [1996] 2 All ER 1033, PC Mancini v DPP [1942] AC 1, 28 Cr App Rep 65, HL M'Loughlin (1838) 8 C & P 635 Moriarty v Brooks (1834) 6 C & P 684 R v Doughty (1986) 83 Cr App R 319 R v Adams (1957) unreported, summarised at [1957] Crim LR 375 R v Belfon [1976] 1 WLR 741 R v Brown [1993] 2 All ER 75 R v Brown, R v Stratton [1998] Crim LR 485, CA. R v Burstow; R v Ireland (1997) 4 All ER 225 R v Byrne [1960] 2 QB 396, 44 Cr App Rep 246, CCA R v Chan-Fook [1994] 2 All ER 552 R v Cheshire (1991) 3 All ER 670 R v Colohan [2001] EWCA Crim 1251, [2001] 2 FLR 757, [2001] Crim LR 845; R v Constanza [1997] Crim LR 576 R v Cox [1968] 1 All ER 386, 52 Cr App Rep 130, CA R v Cunningham [1982] AC 566, 73 Cr App Rep 253, HL R v Donavon (1934) 2 KB 498 R v Dunbar [1958] 1 QB 1, 41 Cr App Rep 182, CCA R v Dyson [1908] 2 KB 454, 1 Cr App Rep 13, CCA R v G [2003] UKHL 50, [2004] 1 AC 1034, [2004] 1 Cr App Rep 237 R v Gibbins, R v Proctor (1918) 13 Cr App Rep 134, CCA R v Hancock [1986] AC 455, 82 Cr App Rep 264, HL. R v Hayward (1833) 6 C & P 157 R v Hennigan [1971] 3 All ER 133, 55 Cr App Rep 262, CA R v Hobson [1998] 1 Cr App Rep 31, CA R v Ireland, R v Burstow [1998] AC 147, [1998] 1 Cr App Rep 177, HL R v Jordan (1956) 40 Cr App R 152 R v Matheson [1958] 2 All ER 87, 42 Cr App Rep 145, CCA; R v Mellor (1996) 2 Cr App R 245 R v Mowatt [1968] 1 QB 421 R v Savage; DPP v Parmenter [1991] R v Savage; R v Parmenter (1991) 3 WLR 914 R v Smith (1959) 2 All ER 193 R v Smith (Morgan) (2000) 4 All ER 289 R v Thornton (No 2) [1996] 2 All ER 1023, [1996] 2 Cr App Rep 108, CA R v Woollin (1998) 4 All ER 103 Woolmington v DPP [1935] AC 462, 25 Cr App Rep 72, HL
Footnotes
[1] R v Gibbins, R v Proctor (1918) 13 Cr App Rep 134, CCA [2] Woolmington v DPP [1935] AC 462, 25 Cr App Rep 72, HL; Mancini v DPP [1942] AC 1, 28 Cr App Rep 65, HL [3] Halsbury’s Laws of England: Criminal Law, Evidence and Procedure 2. Offences Against the Person (1) Homicide (ii) Murder 89. The Elements [4] R v Dyson [1908] 2 KB 454, 1 Cr App Rep 13, CCA; R v Adams (1957) unreported, summarised at [1957] Crim LR 375: Halsbury's Laws of England: Criminal Law, Evidence and Procedure 1. Principles of Criminal Liability (2) The Elements of Crime (ii) The Criminal Conduct 6. Causation [5] Chan Kau v R [1955] AC 206, [1955] 1 All ER 266, PC [6] DPP v Smith [1961] AC 290, 44 Cr App Rep 261, HL [7] R v Cunningham [1982] AC 566, 73 Cr App Rep 253, HL [8] Criminal Justice Act 1967 Section 8; Halsbury's Laws of England: Criminal Law, Evidence and Procedure 1. Principles of Criminal Liability (2) The Elements of Crime (iii) The Mental Element 13. Proof of intention and foresight [9] R v Hancock [1986] AC 455, 82 Cr App Rep 264, HL. [10] R v Hancock [1986] AC 455, 82 Cr App Rep 264, HL; Halsbury's Laws of England: 13. Proof of intention and foresight [11] R v Hancock [1986] AC 455, 82 Cr App Rep 264, HL [12] R v Hennigan [1971] 3 All ER 133, 55 Cr App Rep 262, CA [13] Halsbury's Laws of England: 7. Causation [14] R v Jordan (1956) 40 Cr App R 152 [15] R v Smith (1959) 2 All ER 193 [16] R v Mellor (1996) 2 Cr App R 245 [17] R v Cheshire (1991) 3 All ER 670 [18] Douglas & Molan, p.57 [19] R v Cunningham [1982] AC 566, 73 Cr App Rep 253, HL [20] R v Hancock [1986] AC 455, 82 Cr App Rep 264, HL. [21] R v Hancock [1986] AC 455, 82 Cr App Rep 264, HL; Halsbury's Laws of England: 13. Proof of intention and foresight [22] Halsbury’s Laws of England: Homicide (iii) Manslaughter b. voluntary manslaughter 94. Provocation as defence to murder charge [23] R v Doughty (1986) 83 Cr App R 319 [24] R v Hayward (1833) 6 C & P 157 [25] R v Smith (Morgan) (2000) 4 All ER 289 [26] R v Thornton (No 2) [1996] 2 All ER 1023 at 1030, [1996] 2 Cr App Rep 108 at 116, CA, per Lord Taylor CJ; Luc Thiet Thuan v R [1997] AC 131 at 141, [1996] 2 All ER 1033 at 1047, PC [27] R v Byrne [1960] 2 QB 396 at 403, 44 Cr App Rep 246 at 252, CCA [28] Homicide Act 1957 s 2(1) [29] R v Byrne [1960] supra [30] R v Dunbar [1958] 1 QB 1, 41 Cr App Rep 182, CCA [31] Homicide Act 1957 s 2(3) [32] : R v Hobson [1998] 1 Cr App Rep 31, CA [33] R v Cox [1968] 1 All ER 386, 52 Cr App Rep 130, CA [34] R v Matheson [1958] 2 All ER 87, 42 Cr App Rep 145, CCA; Halsbury’s Laws of England: Homicide (iii) Manslaughter b. voluntary manslaughter 96. Diminished responsibility as defence to murder charge. [35] Moriarty v Brooks (1834) 6 C & P 684; M'Loughlin (1838) 8 C & P 635 [36] R v Ireland, R v Burstow [1998] AC 147, [1998] 1 Cr App Rep 177, HL: Halsbury's Laws of England: Criminal Law Evidence and Procedure 2. Offences Against the Person (3) Non fatal offences against the person (ii) Wounding or Causing Grievous Bodily Harm with Intent 119. Constituents of wounding etc with intent [37] R v Brown, R v Stratton [1998] Crim LR 485, CA. [38] R v Belfon [1976] 1 WLR 741 [39] R v Woollin (1998) 4 All ER 103 [40] Moriarty v Brooks (1834) 6 C & P 684; M'Loughlin (1838) 8 C & P 635 [41] R v Burstow [1997] 4 All ER 225 [42] R v Mowatt [1968] 1 QB 421; R v Savage; DPP v Parmenter [1991] [43] R v Savage; DPP v Parmenter [1991] 4 All ER 698 [44] R v Chan-Fook [1994] 2 All ER 552 [45] R v G [2003] UKHL 50 at [41], [2004] 1 AC 1034 at [41], [2004] 1 Cr App Rep 237 at [41] per Lord Bingham of Cornhill [46] R v Donavon (1934) 2 KB 498 [47] See also A-G's Reference (No 6 of 1980) [1981] 2 All ER 1057 [48] R v Brown [1993] 2 All ER 75 [49] R v Brown [1993] 2 All ER 75 [50] R v Burstow; R v Ireland (1997) 4 All ER 225 [51] R v Burstow; R v Ireland, supra [52] R v Constanza [1997] Crim LR 576 [53] R v Savage; R v Parmenter (1991) 3 WLR 914 [54] Protection from Harassment Act s 7(2) [55] Protection from Harassment Act s 1(2) (as amended) [56] R v Colohan [2001] EWCA Crim 1251, [2001] 2 FLR 757, [2001] Crim LR 845; Halsbury's Laws of England: Criminal Law Evidence and Procedure 2. Offences Against the Person (3) Non fatal offences against the person (xi) Harassment 152. Prohibitions of harassment and offence of harassment
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Proving the guilt of murder. (2017, Jun 26).
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Recent Law in Iran
MEMORANDUM To Anna Neistat Senior Director of Amnesty International “Recent law in Iran Regarding Contraceptive Measures; Proposed Strategies and Course of Action” Summery Everybody has the right to decide about his/her body without external interference. This right includes decisions regarding the pregnancy and contraceptive measures. In other words, generally no one can impose binding norms on citizens about childbearing. Besides that, governments not only should not violate this human right but also have the responsibility to protect the citizens against any interference in implementing this right. However, abortion has been a deep rooted problem in Iran. Even before Islamic revolution abortion was not totally permitted in Iran. But after revolution of 1979 the new law became more conservative and limited regarding abortion. Furthermore, recently a law was passed in Iranian parliament that highly limits the pregnancy preventive measures. It even considers criminal punishment for citizens who use these measures. Clearly, this law can make the women’s situation even worse. More explicitly, the number of clandestine and illegal abortion will increase since in many cases the pregnancy is unwanted. Even if the general policy is increasing the birth rate, restricting access to preventive measures is not acceptable. Amnesty international should use its strategies to prevent the continuing human rights violation in Iran in this particular filed. We had already struggled against abortion ban in El Salvador. I wish that by the strategies that are proposed here we could at least draw the international attention to this problem. - Introduction and Problem Definition
- Issue Analysis
- An overview to activities that have been done to solve the problem
- Proposed Solutions and Strategic Recommendation
- Fact gathering, documentation and distribution of information
- Playing an active role in the UPR process
- Write for rights
[1] Aramesh, Kiarash, The Influences of Bioethics and Islamic Jurisprudence on Policy-Making in Iran, The American Journal of Bioethics, 2007 [2] Erfani, Amir, Abortion in Iran: What do we know?, PSC Discussion Papers Series: Vol. 22: Iss. 1, 2008 [3]Now there is a draft of law under review in Iranian parliament that consider vide range of advantages for married people. According to article 9 of this law the priority in recruitment in all governmental and private sectors is dedicated to married men with children and then married men who still do not have children and at last are married women with children. Astonishingly, a single man is situated at the end of this category even when they are equal in qualifications with married men. Besides that, according to article 10 the recruitment of single professors will be forbidden in five years. [4] https://www.un.org/press/en/2014/gashc4124.doc.html [5] L. McDonagh, Eileen, My Body, My Consent: Securing The Constitutional Right To Abortion Funding, 62 Alb. L. Rev. 1057 1998-1999 [6] For instance Iran Human Rights and Iran Human Rights Documentation [7] For more information: Write For Rights sample letters, Amnesty international, 2014, available at: https://write.amnestyusa.org/resources/
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Recent law in Iran. (2017, Jun 26).
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Problem Scenarios on Contract Law
| Law of contracts |
Facts of the case
Alice is the owner of the block of land in the region of the central coast and recently got her architect’s plan for developing that site for the child care facility approved by the local council. Alice sends a letter to four builders i.e Bazza, Cassy, Davo and Edna to tender for the job for the construction of a new building of child care facility. She knew the four builders as she had commercially developed the buildings in the past, so asked them to provide the tender. She writes a letter to all the four builders individually, with the attachment of a site and the list of the materials.- The tender must be to build the structure according to the architects plan.
- You must agree to use the material as dictated in the architect plan.
- You must prepare to commence work on 1Dec.2015 and the work must be completed by 1 june2017.
- Your tender must be received by close of business, 25 may 2015 and remain open for acceptance until 1 Aug. 2015.
- Your tender is subject to contract.
- My obligations are subject to finance.
- The contract is subject to the issuing of a child care facility from the relevant government department.
- We will use reasonable endeavors to finalize any further terms that may be required.
- All tender will be confidential.
Issues of the case:-
- Whether Bazza can take action against the bricklayer for not quoting the price properly or rather not agreeing to do the job at the original quoted price?
- Whether Bazza has any option to change the original quoted price?
- Whether Alice entered into a contract with anyone?
- If Alice has contracted with anyone, then with whom?
Relevant Laws:-
According to the Australian Law a quotation for the tender is just invitation to enter into a contract between the parties, i.e. one party who demands for the quotation and the other party who submits the quotation. According to the conditions of the contract under Australian law there must be an offer and acceptance. When both the parties agreed to do with the contract, the doctrine of promissory estoppels applies.[1] The estoppels is that when one party promises other party to act upon any part then the party who made the promise will not be allowed to go behind the promise.[2] According to the law in Australia the person cannot be allowed to change the original quoted price. The person giving quotation must use his skills and experiences at the time of quoting prices in the tender because after that the person is not allowed to change the original quoted price . According to the Australian law private sector and government agencies will invite tenders through the process specified by the Australian government known as tender process . It is important for the individuals and entities who invite tenders to understand the law which regulates the tender process. The services under the Australian law are exchanged by the medium of a contract. The important principle law, contract law is a contract is made where a reasonable offer made by one party and the same offer is accepted by the other party who are capable to contract.[3] Another important principle is that there must be a common intention of both the parties to enter into a contract. Before entering into a contract, a government enterprise or the private sector requires to follow the law regulates the tender process. The First step for the tender process is to “issue a request for tender”. Request for tender is nothing but just a notice inviting contractors who satisfies the conditions to meet the requirements of the tender and other requested documents. (1) Persons interested in providing those services, submits a tender which are also known as bid , offer, quotaion etc. (2) The objective of tendering process is to locate a preferred supplier which results into a contractual relationship for the purpose of the supply of services. It is important to mention here that the tendering process continues to the contractual relationship. A request for tender, for the purpose of formation of contract is not an offer, it is just an invitation to enter into a contract or we can say that it is just a request to negotiate or an offer with a possibility of contract.[4]Application of law:-
- Whether Bazza can take action against bricklayer for not quoting the price properly or rather not agreed to do the job at the original prices- That according to the Australian law, notice inviting tenders has been just an invitation to enter into a contract but not a mere contract but once the offer accepted both the parties bound by the contract. According to the present situation Bazza quoted tenders from the 5 bricklayers and told them that he would use a combination of their quotes to then quote a price for the job with Alice. As Bazza told the bricklayers that he would use their quotations to quote the price for the job with Alice and he received the quotations from the bricklayers, the relationship of offer and acceptance came into existence. As the bricklayers promise to Bazza to work on the quoted prices and on rely upon that quotations Bazza submits a tender to do a job with Alice. But when the tender submits one of the bricklayer refuses to doing work for the quoted price which results to loss in the work done for Alice if he has to enter into a contract with her. So, according to the Australian law, that bricklayer is liable under the doctrine of promissory estoppels. The definition of promissory estoppels defined as the when one party promises the other party to act upon any part and that party after relying upon that promises, acts further that the person who made the promise is liable under the doctrine of promissory estoppels. Bazza can take actions according to the promissory estoppels under Australian law.
- Whether Bazza has any option to change the original quoted price- That according to the Australian law, Bazza has no option to change the original quoted price as it is the well settled law that the person giving quotations must use their skills and experiences at the time of giving the prices.
- Whether Alice has entered into a contract with anyone- As according to the Australian law the tendering process precedes into the contractual relationship. The request for tender is we say that the step for the formation of a contract. The request for tender is an invitation to treat or an offer with a contract in mind. Means we can say that once the offer is accepted by the party, then it comes under the Cateogary of contract if it meets the requirements of the contract. In the present situation Alice invites the tenders from the four builders i.e. Bazza, Cassy, Davo and Edna and wrote them letters inviting tenders with some conditions.[5] All the four builders submit his tenders with the conditions requiring in the letter. According to the Australian law once the party offers the other party to enter into a contract and the other party accepts it, then the contract came into existence. Same is the position with the persons inviting tenders and person submit tenders. The person inviting tenders is the party who offers. As according to the law invitation to tenders is not a contract, but a mere step towards the contract. In the procedure of invitation of tenders the person whose quotation is accepted is the person eligible to enter into a contract with the party inviting tenders. So in the present case Alice had entered into a contract with the person whose tender is accepted.
- If Alice has contracted with anyone- That according to the present situation Alice, the lady who invites tenders has contracted with the person whose tender is accepted as the tender which complies with all the requirements. In the give case, Alice accepted the tender of Cassy. So we can say that there is existence of contract Alice and Cassy. The Australian law well describes that the request for tenders is the process precedes the contractual relationship. The request for tender is only for the purpose of formation of contract. We agree that mere invitation is not an offer to contract, but when one party invites a tender and the other party in compliance with the requirements of the tender submits it and the party who invites tenders accepts any one of them then the relationship of offeror and acceptor came into existence. So in the present situation we can say that Alice has contracted with Cassy whose tender she accepted. The reason for the accepting the tender of the Cassy is that he quoted the lowest amount. It is not settled law under Australian law that the person only accepts the lowest bid, but in this situation she accepts the bid by seeing the lowest quotation because she had as plans for the development of the child care facility and not any profitable institute. If see the bids of all the four bidders then Edna had the lowest bidder, but she fails to submit the tender on time, so for that reason her bid was refused and after that the lowest bidder was Bazza. But also in the case of Bazza he refused to do the work as one of his bricklayer refused to do work because by mistake he quoted lowest amount which is not profitable to them. So after that Cassy is the only bidder who bid at the lowest amount with the amount of $400,000. So in the end we can say that Alice had contracted with Cassy whose bid she accepted.[6]
Suggestions:-
By considering all the facts and circumstances of the case, it is suggested that though there is no written contract between the bricklayer and Bazza. It is the settled law in Australia that the contract can be written or oral. Once the person promises to do act for other party then under the law he is not allowed to go behind the promise. Bazza can claim damages from the bricklayer even though his tender is not accepted. It is further suggested that if Alice had entered into a contract with anyone, she had to inform to others bidders as the ethics of tenders. She haad to inform to all the bidders i.e. the winning bidders and the rest of the bidders about the reason of acceptenace of bid to the winning bidder and the reason for not accepting the bids of rest of the bidders.References
Ashley, Clarence D., 'Conditions In Contract' (1905) 14The Yale Law Journal C., J. W., 'Contracts: Offer And Acceptance: Acceptance Conditioned By Letter Following Telegram: Acceptance By Unauthorized Means' (1929) 18California Law Review 'Contract. Offer. Invitation To Treat' (1925) 25Columbia Law Review 'Contract. Offer. Invitation To Treat' (1925) 25Columbia Law Review Dowrick, F. E., 'Invitees--Notice Of Unusual Dangers' (1955) 18The Modern Law Review 'Estoppel. Estoppel In Pais. Future Conduct As Basis Of Estoppel' (1909) 22Harvard Law Review 'Inviting Bids To Become A Preferred Supplier Does Not Violate Patents In Europe' (2012) 31Biotechnology Law Report 'Rights And Liabilities Under Option Contracts' (1905) 18Harvard Law Review 'TENDERING' (1949) 25Australian Veterinary Journal WILLETT, CHRIS, 'THE FUNCTIONS OF TRANSPARENCY IN REGULATING CONTRACT TERMS: UK AND AUSTRALIAN APPROACHES' (2011) 60International and Comparative Law Quarterly[1] Clarence D. Ashley, 'Conditions In Contract' (1905) 14The Yale Law Journal. [2] 'Estoppel. Estoppel In Pais. Future Conduct As Basis Of Estoppel' (1909) 22Harvard Law Review. [3] J. W. C., 'Contracts: Offer And Acceptance: Acceptance Conditioned By Letter Following Telegram: Acceptance By Unauthorized Means' (1929) 18California Law Review. [4] 'Contract. Offer. Invitation To Treat' (1925) 25Columbia Law Review. [5] 'Inviting Bids To Become A Preferred Supplier Does Not Violate Patents In Europe' (2012) 31Biotechnology Law Report. [6] CHRIS WILLETT, 'THE FUNCTIONS OF TRANSPARENCY IN REGULATING CONTRACT TERMS: UK AND AUSTRALIAN APPROACHES' (2011) 60International and Comparative Law Quarterly.
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Public Policy and Decentralised Governance in India
- Gram Sabha shall consider the following matters and make recommendations and suggestions to the gram panchayat.
- The report in respect of the development program’s of the Gram Panchayat relating to the preceding year and development program propose to be undertaken during the current year.
- Promotion of unity and harmony among all sections of the community in the village. Such other matter may be prescribed (sec. 4)
- President of Gram Panchayat. In absence of the President, the Vice President or any person selected by the majority of the Gram Panchayat Members.
- Convening of the gram Sabha –
- Publicity: - wide publicity should have to give 15 day before the gram Sabha.
- Quorum:-One tenth of the total members or 100 numbers of voters of the village/villages whichever is less should be present.
Bibliography
A.K. Mishra, Naved Akhtar & Sakshi Tarika. (June, 2011). ROLE OF THE PANCHAYATI RAJ INSTITUTIONS IN RURAL. Ahluwalia, Srividya Kaimal & Manik. (n.d.). Alok, V. N. (2012-13). Strengthening of Panchayats in India:. New Delhi: The Indian Institute of Public Administration. Banerjee, R. (july 27, 2013). What Ails Panchayati Raj? Economic & Political Weekly, 173-176. Board, E. A. (June 2013). Journal of Politics & Governance. Journal of Politics & Governance, 203-376. INDIA, G. O. (2007). SECOND ADMINISTRATIVE REFORMS COMMISSION. Johnson, C. (n.d.). Decentralisation in India:. Menon, S. V. (n.d.). Zakir, A. M. (March 2011). Strengthening Panchayati Raj. Guwahati: State Institute of Rural Development(SIRD).Cite this page
Public Policy and Decentralised Governance in India. (2017, Jun 26).
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Property Law Advice Style Answer
Law Part A: Answer 1:The respective parties to the action are as follows: The Public Trustee of Queensland as Executor of the Estate of Joseph Edwin James (First Applicant);PitgatePty Ltd (‘Pitgate’) (Second Applicant); Ian Derek Meyer (‘Mr. Meyer’) (First Respondent); Rosemary Lynn Meyer (‘Mrs. Meyer’) (Second Respondent); and Meyer Gold Mining Pty Ltd (‘MGM’) (Third Respondent). There was initial partnership between Joseph Edwin James (‘Mr. James’) and MGM. The partnership constitution then changed, a new partnership was formed between Pitgate and MGM. Further, Mr. & Mrs. Meyer are directors of MGM and respondent to the action along with as an active agent of the partnership. Answer 2:Mr.Meyer’s right of interest was held in respect of the application of MDLA15, whether to determine it in respect of himself or his partnership. The concern was whether he was entitled to the benefit of the application as a partner or as an active agent of the partnership being director of the company.
Answer 3: According to MDLA 295, the partnership was conducted between the first respondent Mr. Meyer and Mr. James the respondent claimed whether the particular plant and machinery which was carried out in the mining ventures should belong to the first respondent or not because as a partner was he entitled to claim for the plant and machinery of Chillagoe mining site, being a partner under MDLA 14. Answer 4: the applicants alleged that since they were the partners of the mines and the partners are entitled to get the share of the assets of the partnership act. Here, they were claiming for the plant and machinery as they were entitled to claim for the assets of the company as Partnership – PARTNERSHIP PROPERTY – whether an operators is qualified for the profit of an application at first made for the organization – whether rights and hobbies held by a specialists, emerging from an application made by reason of the part as an operators, regarding the association business, are hung on productive trust for the association – where the application is made after an organization has been broken down by the passing of an account. Answer 5: According to the court’s choice, the budgetary proclamations record costs for the contract of plant. No other clarification has been progressed for these costs, than that they mirror a distinguishment that the plant gave by the Meyer hobbies was not organization property. As it was demonstrated, there was some support of the installment of some of these costs to the Meyer hobbies in records set in proof. The sums have all the earmarks of being little, when the degree and obvious estimation of the plant and hardware will be taken into account. Also the second decision mentioned that the matter which appears to be huge will be that the budgetary articulations of the association, which were delivered amid Mr. James’ lifetime, contained no record recommending that the questioned plant and hardware got to be organization property.
Answer 6: the court came to the following decisions: Mr. James knew of the presence of the perlite store, and acquainted Mr. Meyer with it. Be that as it may, the confirmation of Mr. Meyer (affirmed by a Mining Lease Report gave to the candidates) is that Mr. Paul Ray, before the inclusion of MGM, held a 51% enthusiasm for ML20152. The plant and gear gave by the Meyer hobbies was clearly vital To empower the operation to continue. There is no motivation to believe that its prosperity was ensured, and in the early years, deals and benefits were generally unobtrusive.
These Circumstances make it somewhat improbable that the Meyer interest would have consented to contribute their plant and hardware to the association, at any rate without some huge distinguishment of that truth in the budgetary explanations. It was found that the disputed plat was not a partnership property so there was no significance ownership. According to the judgment, and the nonappearance of any positive proof that the accomplices concurred that the plant and hardware was to wind up organization property, the Meyers were not entitled to claim for the same. Degree of the property included, the moderately drawn out stretch of time over which the organization has worked, and the more prominent consideration, which seems to have been given to the sources of a percentage of the things of property, sometime during get ready for the hearing. Besides, it is not astounding that there may be some instability about the responsibility for, where a thing initially had a place with the Meyer intrigues, and was later repaired or restored to the detriment of the association.
There is likewise the way that the July 2007 receipt for contract charges incorporates a constrained measure of plant and machinery for which Mr. Meyer clarified that by saying that, by now, the candidates had been delegated as collectors; and that it was impractical to distinguish a business market rental for a percentage of the gear. He additionally gave proof that the game plan with Mr. James was that contract charges would be on a rate every ton of material mined. I likewise take note of that the rate charged in the July 2007 receipt brings about contract charges for plant and hardware generously higher than what was charged when Mr. James was alive. Answer 8: In case of the plant and equipment court reached to the decision that the plant and equipment was not the property of the partnership any longer and belonged to Mr. Meyer, hence there was not valuation and sharing of the plant and machinery further.it was concluded that the plant and machinery were not purchased by Mr. James but Mr. James had provided the hire charges. That means, the plant and machinery was not purchased but Mr. James had hired it. Thus, any asset hired for mining or manufacturing cannot be considered as an asset of the company and cannot be further divided for the profitability between the partners. Thus, plant and machinery was not a partnership property but was the property of Mr. Mr. Meyer who was also the director of the company. Part B Essay: Introduction: A company under Company law or corporate law is particularly alluded to as a “lawful individual”- as a subject of rights and obligations that is fit for owning genuine property, going into contracts, and being able to sue and be sued in its own name.1 as such, an enterprise is a juristic individual that in many occasions is legitimately regarded as an individual, and engaged with the ascribes to claim its own particular property, execute contracts, and in addition capacity to sue and be sued. One of the primary inspirations for framing a partnership or organization is the restricted obligation it offers its shareholders. By this precept (restricted risk), a shareholder can just lose just what he or she has contributed as shares to the corporate element and nothing more. In any case, there is a real exemption to the general idea of constrained obligation.
There are sure circumstances in which courts will need to look through the organization, that is, lift the shroud of joining, generally known as penetrating the cloak, and hold the shareholders of the organization specifically and actually at risk for the commitments of the enterprise. The cloak tenet is conjured when shareholders smudge the refinement between the organization and the shareholders. It is deserving of note that despite the fact that a different legitimate substance, an organization, or partnership can just act through human operators that create it. Therefore, there are two primary courses through which an organization gets to be subject in organization or corporate law to mind: through direct obligation (for direct encroachment) and through auxiliary risk (for demonstrations of its human specialists acting sometime during their employment). The precept of puncturing the corporate cover changes from nation to nation. In the sentiment of two corporate law researchers, clearly, there is a general agreement that the entire region of constrained obligation, and on the other hand of piercing the corporate shroud, is among the most confounding in corporate law.” There are two current speculations for the lifting of the corporate cover. The principal is the “adjust self-image” or other self-hypothesis, and the other is the “instrumentality” theory. The adjustment of self-hypothesis considers if there is in unmistakable nature of the limits between the enterprise and its shareholders.
The instrumentality hypothesis then again looks at the utilization of a partnership by its holders in ways that advantage the manager as opposed to the enterprise. It is dependent upon the court to settle on which hypothesis to apply or make a mA©lange of the two doctrines. Courts are largely hesitant to puncture the corporate shroud, and this is just done when risk is forced to achieve an evenhanded result. Veil Doctrine as derivative from Separate legal personality concept: An organization once fused turns into a legitimate identity or a juristic element that has a different and particular character from that of its holders or individuals, shareholder; and it is further engaged with its own rights, obligations and commitments, can sue and be sued in its own name, and so forth. The most critical fixing that spills out of the different lawful identity statement is that of constrained risk. It is gone for giving financial specialists least protection in their business over their own private lives. Thus, the most a part in the organization can lose is the sum paid for the shares themselves and in this way the estimation of his/her investment. Thus, loan bosses who have claims against the organization may look just to the corporate resources for the fulfillment of their cases as lenders and largely cannot continue against the individual or separate resources of the individuals.
This has the potential impact of topping the speculators’ danger whilst, hence, their potential for addition is unlimited. Evidently, partnerships exist to some extent, in any case to shield their shareholders from individual liabilities for the obligations of that corporation (Your company and the law n.d.). The idea of constrained risk was developed in England in the seventeenth century, and before this period, individuals were frightened to put resources into organizations in light of the fact that any accomplice in a general organization could be considered in charge of every one of obligations of the company. As the capital expected to fund the biggest tasks developed, and alongside it the need of raising cash, financial specialists were hesitant to put in light of the danger included in ensuring the whole obligation of the business element.
Truth be told, the idea of partitioned lawful identity runs as one with the regulation of restricted risk. The principle significance of the restricted risk idea is that it ensures the organization and its individuals, and to encourage business wanders in which the organization may be interested. The rule further act to pull in and empower corporate speculation, highly required in any public to accelerate advancement. It is accepted to be the springboard to bring administrative benchmarks up in a corporate association. It is understood that it encourages better speculation methods by the organization question (Ramsay & Noakes 2001). Indeed, corporate law obliges that organization managers react to authoritative substances of the enterprise and in addition accommodating with and making comprehensible the treatment of associations as lawful actors. In this sense, the origination of a company is investigative and ideological, enlightening and prescriptive. The concept of Limited Liability: The primary thought behind that the lawful identity of an organization is independent from that of its individuals. The most imperative fixing that spills out of the separate legitimate identity provision is that of constrained obligation. It is gone for giving financial specialists least protection in their business over their own private lives. In this way, the most a part in the organization can lose is the sum paid for the shares themselves and subsequently the estimation of his/her investment.
Thus, loan bosses who have claims against the organization may look just to the corporate resources for the fulfillment of their cases as leasers and by and large can’t continue against the individual or separate resources of the individuals. This has the potential impact of topping the financial specialists’ danger whilst, hence, their potential for addition is unlimited. It is evident that companies exist partially, in any case to shield their shareholders from individual liabilities for the obligations of that organization (Forgi 2007). The Courts’ treatment of Separate Legal Personality under Common Law Jurisdictions: Under Common Law purviews, the tenet of penetrating the cover stays one of the essential technique through which the courts moderate the strenuous requests of the consistent satisfaction of the different lawful identity idea. The issues with discovering some string of rule through all the different court choices fundamentally originate from the bogus solidarity of the cases, which, while including immensely diverse basic issues, are still connected under the representation of the “cloak” idea (Supreme Court Library Queensland n.d.). Blumberg has composed that the reasonable models of substance law are as often as possible viewed as Anglo-Saxon standards and connected aimlessly over the whole scope of the law. At the end of the day, the use of the teaching of independent identity in Anglo-Saxon wards is at the carefulness of the judges and the courts. This is no amazing, given that Anglo-Saxon law is essentially Judge-made law. How do Common Law courts pierce the veil? Lifting the cloak of fuse or better yet “Puncturing the corporate cover” implies that a court slights the presence of the partnership because the managers neglected to keep one or more corporate prerequisites and customs. The lifting or penetrating of the corporate cover is pretty much a legal demonstration; subsequently its most succinct importance has been given by different judges.
Staughton LJ, for instance, in Atlas Maritime Co SA v Avalon Maritime Ltd (No 1)29 characterized the term along these lines: “To puncture the corporate shroud is a declaration that I would hold for treating the rights and liabilities or exercises of an organization as the rights or liabilities or exercises of its shareholders. To lift the corporate cover or look behind it, subsequently ought to intend to have respect to the shareholding in an organization for some lawful purpose.” Youthful J, in Pioneer Concrete Services Ltd v Yelnah Pty Ltd, on his part characterized the outflow “lifting the corporate shroud” subsequently: “Those in spite of the fact that at whatever point every individual organization is shaped a different legitimate identity is made, courts will on events, look behind the lawful identity to the genuine controllers.” The least complex approach to outline the cloak guideline is that it is the direct inverse of the constrained obligation idea. Regardless of the benefits of the restricted obligation idea, there is the tricky that it can prompt the issue of over consideration, to the detriment of the lenders. That is to say, the idea is over ensured by the law. At the point when the shroud is lifted, the managers’ close to home resources are presented to the case, pretty much as though the business had been a sole proprietorship or general association. Regular law courts have the weariness or selective locale “lift” or “look past” the corporate shroud whenever they need to inspect the working system behind a company.
This wide edge of impedance given regular law judges has prompted the penetrating of the corporate shroud turning into a standout amongst the most contested issues in corporate law. Yet it ought to be deserving of note that an inflexible utilization of the penetrating tenet in like manner law wards has been generally reprimanded as giving up substance for structure. Consequently, Windeyer J, because of Gorton v Federal Commissioner of Taxation, commented that this methodology had driven the law into “falsity and formalism.” As previously stated, when the judges puncture the cloak of joining, they as needs be continue to regard the organization’s individuals as though they were the holders of the organization’s advantages and as though they were leading the organizations business in their own abilities, or the court may property rights and/or commitments of the individuals on to the organization. The teaching is otherwise called “slighting the corporate substance”. In his 1990 article, Fraud, Fairness and Piercing the Corporate Veil, Professor Farrar commented that the Commonwealth power on puncturing the corporate cloak as “disjointed and unscrupulous”. 36 That claim has been prior moved down by Rogers AJA, a year back because of Briggs v James Hardie & Co Pty consequently (Ramsay & Noakes 2001): “There is no normal, bringing together rule, which underlies the intermittent choice of the courts to penetrate the corporate cloak. In spite of the fact that a specially appointed clarification may be offered by a court which so chooses, there is no principled way to deal with be gotten from the authorities.” Another researcher in the individual of M. Whincop, in his own particular piece: ‘Overcoming Corporate Law: Instrumentalism, Pragmatism and the Separate Legal Entity Concept’, contended that the principle issue with the Salomon case was less the contention for the different legitimate element, yet rather the disappointment by the English House of Lords to give any evidence of “What the courts ought to consider in applying the different lawful substance idea and the circumstances in which one ought to decline to uphold contracts connected with the corporate structure.” Conclusion: The demonstration of piercing the corporate cover up to this point stays a standout amongst the most disputable subjects in corporate law, and it would keep on remaining thus, actually for the years to come. Overall, as talked about in the paper, the regulation of puncturing the corporate cloak stays just an outstanding demonstration organized by courts of law.
Courts are most arranged to regard the guideline of corporate identity, that an organization is a different lawful substance from its shareholders, having it’ claim rights and obligations, and can sue and be sued in its own name. As we move from locale to ward over the globe, its application contracts down to how that arrangement of the law admires the subject. Basic law locales are cases second to none where the penetrating of the corporate shroud has picked up reputation, and as the different cases demonstrate, courts under this arrangement of the law for the most part admires each case by its merits.
The above in any case, there are general classifications, for example, misrepresentation, organization, sham or exterior, injustice and gathering endeavors; which are accepted to be the most unconventional premise under which the regular law courts would puncture he corporate cloak. Anyway, these classifications are simply a rule and in no way, shape or form a long way from being comprehensive. References: Forgi, AG 2007, The Veil Doctrine in Company Law, viewed 5 Apr 2015, <https://www.llrx.com/features/veildoctrine.htm>. Nicolson, R & Howie, E, The Impact of the Corporate Form on Corporate Liability for International Crimes:Separate Legal Personality, Limited Liability–, viewed 7 Apr 2015, <https://www.hrlrc.org.au/files/icj-paper-e-howie-and-r-nicolson-final-0207.pdf>. Ramsay, IM & Noakes, DB 2001, Piercing the Corporate Veil in Australia , viewed 7 Apr 2015, <https://www.law.unimelb.edu.au/files/dmfile/Piercing_the_Corporate_Veil1.pdf>. Supreme Court Library Queensland, viewed 6 Apr 2015, <https://www.sclqld.org.au/caselaw/QSC/browse/2010/+200>. Your company and the law, viewed 6 Apr 2015, <https://asic.gov.au/for-business/running-a-company/company-officeholder-duties/your-company-and-the-law/>.
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Reasons for the Limited Effects of the International Convention on the Arrest of Ships
Reasons for the Limited Effects of the International Convention on the Arrest of Ships Table of Contents
- Introduction
- History of Ship Arrests and Various Maritime Conventions
- Key Features of International Convention on the Arrest of Ships
- Reasons for limited effect of the Maritime convention
- Contradiction with RTA’s
- Lack of clear definition
- Constantly changing Amendments
- Recommendations for Effective Implementations
Introduction News about international ships getting arrested for crossing borders come up nearly every day. Though maritime technology is at its peak, acts of law violation creating severe diplomatic tension are in constant increase. The essay explores some important legal issues associated with the maritime regulatory development. It starts with the procedure of arrest of ships in historical times and analyzes the ratification status of the main maritime conventions of our time. It examines in detail the International convention on Arrest of ships adopted at Geneva and compares the practical difficulties encountered by the ships in following the rules and regulations of the convention. History of Ship Arrests and Various Maritime Conventions Each country has different laws and regulation when it comes to ship arrest. The USA and the Peoples Republic of China are considered as the main players in the industry as nearly 42% of the all imports in world are done by the USA. Over 100 million containers filled with goods are exported from China alone to the US annually. The ship arrests laws of each country is closely linked with its history. Ships originally traded valuable goods like silk, spices and gold in ancient times. Chinese ships still dominated the ocean those days as fleets of ships carrying silk and other valuable set sail worldwide to sell their goods. Ships were confiscate those days by looters. It is said South Indian kings and the African inhabitants provided patrol forces to protect the ships crossing their sea line in exchange of gold, perhaps the first duty tax collection. These people set the basic maritime rules, stressing on proper ratification of every ship passing by. Ship arrests in the medieval age changed face with constant military conquests. Ships with ammunitions were often arrested fearing military attack. Trading ships carrying weapons for protection were often mistaken for military ships and attacked brutally. Hence, changes were made in the appearance of military and trading ships and flags were hoisted to notify what the ship carried. The current day national policy of the government with the neighboring countries affects the admiral jurisdiction taken by the maritime courts. In England an international ship can be arrested if there is a way to initiate the "in rem" action against it. The English strictly implements several laws drawn during the 1952 International Arrest convention. The Administration of Justice Act 1956 pointed out several changes in the convention with the view of serving practical purposes. But, England implements the old practices still based upon familiarity and ease of use. The US laws are mostly based on the UK maritime conventions. Scottish laws are also based on the UK laws predominantly. Arrest of ships is an issue of major importance to the trading community in the contemporary world as nearly 48% of the total goods involved in world trade are transported through sea. From machineries to perishable items and things ordered online, millions of items are loaded on huge containers everyday and imported or exported through sea. Crossing borders is a constant procedure for both the ships carrying day to day goods and the ones carrying ammunition. But, sadly there is no regularized global policy allowing secure transport of ships across the sea as each country has its own rules and regulations regarding marine transport. The 1952 Arrest Convention was the first global initiative to set common standard for all countries on how to treat the trading ships entering their territory. Here is a list of the some of the main laws which were drafted over time to regulate the arrest of ships since 1952. 
Among these various conventions, the 1999 International Convention on the Arrest of Ships drafted in Geneva is the most influential and recent one. The 1999 Arrest Convention is the most modern international regime that governs the procedure of arrest of ships in this decade. Compared to the 1952 Arrest convention, it presents a “wider definition of arrest and wider scope of application” (UNCTAD, 2011). The list of claims in the 1952 Arrest convention has been extended to suit the modern needs. However this area of the law is still considered to be developing in the conventions and new amendments are made regularly to the claims. The convention addresses the discrimination between the Regional Trade Facilitation or RTA effectively through various progressive moves. Key Features of the International Convention on Arrest of Ships The convention drafted on March 12, 1999 in Geneva has 17 articles starting with definitions for key terms like “Arrest”, “Claimant” and “hypotheque”. It clearly explains what a "Maritime Claim" means in the first 22 points addressing every issue from the dispute between the owners of the ship to due charges to be paid in ports and docks. The various sub sections in the convention define who has the power to arrest the ship and the how right should be exercised legally. The convention gives ample importance to RTA’s. Since, the key focus for both the regional governments as well as the international ship operators is to earn profit the convention aims in minimizing the discrepancies arising out of following local laws pertained to each country. “Adopting a coherent approach to the negotiation and implementation of the new or existing regional and multilateral trade facilitation commitments by countries is critical in this respect” says a review of the convention (UNCTAD, 2011). Reasons for limited effect of the Maritime convention Contradiction with RTA’s There are several contradictions between the jurisdictional rules and arrest conventions in nearly every country. The main objective of the convention is to reduce the complexity of the formalities involved in the international trade. If the multiple RTA rules interfere with, all crucial rules, there is no point in following an international protocol. Productive measures to minimize the RTA rules contradicting with the international convention should be taken. Discrimination for the ships of certain country trading ships should be avoided. The contract rules should apply equally to all the trading partners. “Apply preferential trade facilitation measures to all trading partners” says the convention. The policymaking of the RTA should be modified in such a way it does not affect the trade relations with the particular countries. Since, each country in the world has several disputes with its immediate neighbors rather than major opponents this measure is not practically applicable when it comes to framing national policies. Lack of clear definition Arrest means ceasing a ship in a particular territory. But, the ship is free to more around as long as it does not enter a particular place. In case of mortgage or other ownership issues, RTA laws are used to protect the ships. Though there are many definitions regarding all maritime claim terms, many of them are interpreted in multiple ways by the lawyers to make the case move favorable for their clients. Clear definitions regarding key terms should be drawn to ensure they are not misused by the authorities in different countries. Constantly changing Amendments Article 12 and 13 of the convention clearly mentions if any procedure in the convention is in violation with the states laws, the state can notify it to the committee and get it changed before acceptance. States with more than one system of law can mention how far the rules are applicable in a particular area. Nearly 474 RTA’s were presented to the WTO requesting state ratification on issues like goods and services security and duty amount regulations. The points in nearly 351 RTA’s considered reasonable and added in the convention (UNCTAD, 2011). Such constant amendments and failure to notify them properly to all the related concerns only cause chaos. Free trade rules often does not recognize RTA’s role in interfering with the international property rights and government procurement. But, lack of communication and confusion in following the ever changing protocols make many officials stick to RTA’s rather than the rules of the international convention. Recommendation for Effective Implementation Gaining international co-operation on the key laws and ensuring proper communication across the world regarding the standard set of procedures is a must. Amendments in the convention should be made only annually which will make it easy for the officials to follow the changes and keep themselves updated. Clear and well defined terminology which prevents all forms of misuse on the judicial side should be framed. Effective steps to route ships from problematic neighbors in an alternate path should also be taken. Proper measures to ensure the laws are followed strictly will bring the issue to an end. The countries which sign the convention should be made to agree to the key strategies and agendas in the convention rather than bringing up their own RTA rules constantly. Conclusion The International Convention on the arrest of ships has little or no effect in solving maritime claims owing to their sophisticated procedures and easily foreseeable laws. Framed with the good intention of easing and securing the marine transport, the convention had played a significant role in regularizing various maritime claims. It will continue to do so if certain steps are taken to implement the strategies stated in the convention by all the nations in the world. References
- 'International Convention on the Arrest of Ships' (1999) <https://www.admiraltylawguide.com/conven/arrest1999.html>accessed 8th March 2014
- Review of Maritime Transport 2011, Report by the UNCTAD secretariat (United Nations, 2011) 129
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Remedial and Institutional Systems
Footnotes
[1] For comment see Chang on Equity and Trusts, Taylor P., SPR Core Text, Chapter 13. [2] See, for background comment: The Law of Tracing, Lionel D Smith, Clarendon Press, Oxford ISBN 0-19-826010-9. [3] At law, detinue is a common law remedy to secure the return of chattels (personal property or portable property) which have been wrongly converted to the use of a third party, or are being unlawfully withheld from a person with good title to the chattel. [4] See eg: Millet LJ in Restitution and Constructive Trusts 1998 114 Law Quarterly Review p399. [5] For supporting comment see: Deane J in Muschinski v Dodds (1985) 160 CLR 583. [6] Albeit a case concerning a de facto property dispute. [7] See note 5 above. [8] Note that the remedial constructive trust was described in similar terms to Deane J in Muschinski in Fortex Group Ltd (in rec & liq) v MacIntosh [1998] 3 NZLR 171, by Tipping J. However, the latter judge also observed that his musings should not be regarded as definitive, or as precluding further development of the concept. [9] [1996] AC 669 (HL). [10] [1990] 1 QB 391. [11] [1995] 1 AC 74. [12] (No 4) [1998] 3 All ER 812. [13] See note 5 above. [14] See note 5 above.Cite this page
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REGISTRATION of a FIRM
- Title Question – Registration of a firm
- Question 1 – How do we know when the Registration process is completed?
- Registration of a firm is complete when:
- Question 2 – What if the Registration process is not completed?
- Section 69 of the Act which deals with the effects of non-registration denies certain rights to an unregistered firm. Under the Act:-
- A· A partner of an unregistered firm cannot file a suit in any court against the firm or other partners for the enforcement of any right arising from a contract or right conferred by the Partnership Act unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. For example- If a partner of an unregistered firm is not paid his share of profits, he cannot claim it from the court.
- A· No suits to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. For example- If an unregistered firm has sold some goods to the customer, it cannot file a suit against the customer for the recovery of the price of goods. On the other hand, if any unregistered firm has purchased some goods from a supplier, such supplier can file a suit against the firm for the recovery of the price of goods.
- A· An unregistered firm or any of its partners cannot claim a set off (i.e. mutual adjustment of debts owned by the disputant parties to one another) or other proceedings in a dispute with a third. For example-If an unregistered firm owes Rs. 10,000 to A, a third party A owes Rs. 1,000 to the firm, A files a suit against the firm for recovery of Rs.10,000. In this case an unregistered firm cannot say that Rs.1,000 should be adjusted against Rs.10,000.
- Thought Provoking Question –
- Is the Registration of firm compulsory?
- Conclusion
- Title Question – Dissolution of a firm
- Title Question – Mode of Giving Public Notice
- Mode of effecting registration
- Consequences of non registration
- Dissolution of firm
- Consequences and the effect of dissolution
- Mode of giving public notice
Title Question – Registration of a firm
Registration means getting the partnership registered with the Registrar of the firm of the area in which the place of business of the firm is situated or proposed to be situated. Chapter VII of the Indian Partnership Act, 1932 deals with registration of firms. Sections 56-71 contain different provisions regarding registration of firms. The registration of a firm may be effected at any time by sending by post or delivering to the Registrar of the area in which any place of business of the firm is situated or proposed to be situated, a statement in the prescribed form and accompanied by the prescribed fee (Section 58) stating,— (a) the firm name, (b) the place or principal place of business of the firm, (c) the names of any other places where the firm carries on business, (d) the date when each partner joined the firm, (e) the names in full and permanent addresses of the partners, and (f) the duration of the firm. The statement shall be signed by all the partners, or by their agents specially authorised in this behalf.Question 1 – How do we know when the Registration process is completed?
Registration of a firm is complete when:
a) An application in the prescribed form with the prescribed fee and necessary details is delivered to the Registrar b) The Registrar given an acknowledgement of receipt of application c) The Registrar gives it final certificate of Registration d) A period of one month lapses after the application as in a) above is submitted to the Registrar However, Registration is deemed to be complete as soon as an application in prescribed form with prescribed fees and necessary details concerning the particular of partnership is delivered to the Registrar. Example-ABC a partnership firm was constituted on 01.04.2015. On 25th April the partners resolved to get the firm registered with the Registrar of firm. The firm prepared the necessary documents for Registration on 26th April which was signed on 28th April. They sent the documents to the Registrar office on 30th April by registered post which was received in the Registrar office on 4th May 2015. The firm will thus be deemed to have been registered on 30th April.Question 2 – What if the Registration process is not completed?
Section 69 of the Act which deals with the effects of non-registration denies certain rights to an unregistered firm. Under the Act:-
A· A partner of an unregistered firm cannot file a suit in any court against the firm or other partners for the enforcement of any right arising from a contract or right conferred by the Partnership Act unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. For example- If a partner of an unregistered firm is not paid his share of profits, he cannot claim it from the court.
A· No suits to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. For example- If an unregistered firm has sold some goods to the customer, it cannot file a suit against the customer for the recovery of the price of goods. On the other hand, if any unregistered firm has purchased some goods from a supplier, such supplier can file a suit against the firm for the recovery of the price of goods.
A· An unregistered firm or any of its partners cannot claim a set off (i.e. mutual adjustment of debts owned by the disputant parties to one another) or other proceedings in a dispute with a third. For example-If an unregistered firm owes Rs. 10,000 to A, a third party A owes Rs. 1,000 to the firm, A files a suit against the firm for recovery of Rs.10,000. In this case an unregistered firm cannot say that Rs.1,000 should be adjusted against Rs.10,000.
Non-registration of a Partnership firm shall not affect:- The rights of third parties to sue the firm and/or its partners.
- The firms or partners in the firms which have no place of business in the territories to which this Act extends, or whose places of business in the said territories are situated in areas to which the act does not apply.
- any suit or claim or set-off not exceeding Rs. 100 in value which, in the Presidency towns, is not of a kind specified in Section 19 of the Presidency Small Cause Courts Act, 1882 (15 of 1882), or outside the Presidency- towns, is not of a kind specified in the Second Schedule to the Provincial small Cause Courts Act, 1887 (9 of 1887), to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim.
- the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm.
- the powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909 (3 of 1909), or the Provincial Insolvency Act, 1920 (5 of 1920), to realise the property of an insolvent partner.
Thought Provoking Question –
Is the Registration of firm compulsory?
No, Registration of firms is not compulsory. Partnership Act, 1932 does not provide for compulsory registration of firms. It is optional for partners to set the firm registered and there are no penalties for non-registration.Conclusion
Thus we conclude that the Partnership Act, 1932 does not make registration of a firm compulsory. It is optional. But it introduces certain disabilities which makes registration necessary at one time or other. Also the law has not provided anytime for registration of firm. It is possible at any time. An unregistered firm is not an illegal association.Title Question – Dissolution of a firm
Sonu and Monu were very good friends. They were running a business as a partnership firm. They were very successful. People were jealous of their relations. But one day people came to know that they have closed the business. Some dispute had arisen between the two on a trivial issue. Similarly, firm may come to an end because of dispute among the partners or firm running losses for last few years or because of order of the court and so on. We can say that the partnership firm is dissolved. According to Section 39 of the Indian Partnership Act, 1932, the dissolution of partnership between all partners of a firm is called dissolution of the firm. Thus the Dissolution of firm means the discontinuation of the jural relation existing between all the partners of the firm. Question 1 – What are the modes of dissolution of firm? The dissolution of partnership may be in any of the following ways: 1. Dissolution without the order of the court or voluntary dissolution [Section 40-43]: a) By mutual agreement (Section 40) A firm may be dissolved by mutual agreement between/among partners. Even a firm for a fixed duration may be dissolved by mutual agreement b) Compulsory dissolution (Section 41) In the following cases, a firm is compulsorily dissolved:- If all partners, or all the partners except one partner of the firm are declared insolvent, or
- If some event take place which make it UNLAWFUL for the firm’s business to be carried on.
- On the expiry of the fixed term for which the firm was constituted,
- On the completion of venture or undertaking for which the firm was constituted,
- On the death of a partner,
- On the insolvency of a partner
- Embezzlement,
- Keeping erroneous accounts
- Holding more cash than allowed
- Refusal to show accounts despite repeated request etc.
- Continued quarrel between partners
- Refusal to meet on matters of business
- Complete deadlock in management due to partners not on speaking terms
- Lack of confidence and good faith among partners, etc
- To have property of the firm applied in payment of the debts of the firm and
- To have the surplus distributed among the partners or their representatives according to their respective rights.
- Which are necessary to wind up the firm.
- To complete the unfinished transactions pending at the date of dissolution.
- Due to death of one of the partners or
- Mainly due to misconduct of the partner paying the premium or
- Pursuant to an agreement containing no provisions for the return of the premium or any part thereof.
Title Question – Mode of Giving Public Notice
In every case where public notice of any manner in respect of partnership firm is required to be given under this act, it must be given- By notification in the official Gazette, and
- In at least one vernacular (local language) newspaper circulating n the district where the firm to which it relates has its place or principal place of business.
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Procedures of Search and Seizure in the French Criminal Justice System
- Letters
- Telephone
[1] Prof. Jean Pradel, “Criminal Procedure Systems in the European Community”, Chapter 4 – France page no.120. [2] ibid [3] Article 96 of Code de procedure penale [4] Ibid. Article 76 [5] id. Article 99 [6] Prof. Jean Pradel, “Criminal Procedure Systems in the European Community”, Chapter 4 – France page no.121 [7] Ibid. [8] Id. 122
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Unconscionability as the Basis of Rendering a Contract
- Introduction
- Common Law Countries’ Position
- England
- Australia
- Canada
- Malaysia’s position
- Conclusion
- Bibliography
- Cheong May Fong, Contract Law in Malaysia (Malaysia, Singapore, Hong Kong: Sweet & Maxwell, 2010)
- Sinnadurai, Visu, Law of Contract, 4th ed (Butterworths: Lexis Nexis, 2011)
- Guest, AG (ed), Chitty on Contracts, Volume 1, General Principles, 31st ed (London: Sweet & Maxwell, 2004)
[1] Act 136 [2] Black’s Law Dictionary 743 (3d ed. 2006). [3] Business Dictionary, Inequality of bargaining power, ://www.businessdictionary.com/definition/inequality-of-bargaining-power.html [4] [1887] 36 Ch.D. 145 (Eng.). [5] 28 Eng. Rep. 82 (Ch. 1750). [6] (1983) 151 CLR 447 [7] [1985] AC 686 [8] Gregg v Tasmanian Trustees Ltd., (1997) 73 F.C.R. 91 (Austl.) (citing Sir Anthony Mason, The Place of Equity, 110 L. Q. Rev. 248, 248 – 9 (1994)). Sir Anthony authored this article long after his judgement in Amadio, but before he retired in 1995 as Chief Justice of the High Court of Australia. [9] [1888] 40 Ch. D. 312 (Eng.). [10] [1887] 36 Ch. D. 145 (Eng.). [11] Morrison v. Coast Finance Ltd., [1965] 54 W.W.R. 257 (Can.). [12] Floyd v. Couture, [2004] A.J. No. 377, n.98 (Can. Alta.). [13] 1994] O.J. No. 2498 (Can.). [14] [1992] 2 S.C.R. 226 (Can.). [15] (1919) L.R. 47 Ind. App. [16] [1994]3 MLJ 127 [17] [2001] 3 CLJ 98 [18] Act 137 [19] [1975] QB 326 [20] Birks and Chin, On the Nature of Undue Influence Good Faith and Fault in Contract Law (Beatson & Friedmann eds. 1995). [21] Smyth v. Szep, [1992] 2 W.W.R. 673, 681 – 2 (B.C.C.A.) (Can.). [22] (1918) 1 FMSLR 348
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Property Law and Leasing
191893 Delivery Time :Standard – 5 Days per 5000 words Title: QUESTION: PART A (i) Leslie plc, by deed, granted a ten-year lease of certain premises to Target Ltd from 1st November 2000. The lease included covenants by Target Ltd. not to assign or sub-let the whole or any part of the premises without the landlord’s consent, to keep the premises in repair and to pay the quarterly rent. There was a proviso for re-entry in the event of breach of any covenant. In 2002, Target, with Leslie’s consent, assigned the lease to Ace Co. Ltd. In 2004, Leslie sold and conveyed the freehold reversion of the premises to Rake plc. Rake has discovered that Ace has, without seeking consent, given a monthly sub-tenancy of part of the premises to Simon and that the premises are out of repair. Rake informed Ace of its concern over these matters in a letter accompanying the demand for the quarter’s rent due on 1st November 2006 and stated that it, Rake, was considering its position. Ace sent a cheque in response to the demand, which Rake has not yet cashed. You are a trainee in the firm of solicitors consulted by Rake.
Your principal has asked you to Produce a report of 1,200 words outlining the legal principles and identifying the relevant statutory provisions and cases as to whether: (a)Rake has the benefit and Ace has the burden of the covenants in the lease; (b)either breach of covenant has been waived so as to prevent Rake being able to take forfeiture action in respect of that breach; (c)whether the breaches are irremediable for the purposes of s.146 (1) of the Law of Property Act 1925 Your report should identify whether there are any particularly relevant or recent cases on these issues. Advice will be given to Rake plc on the basis of this report. QUESTION: PART B Explain precisely (in 300 – 350 words) what was your research strategy and how you carried out the research under Question: Part A, giving details of the electronic searches that you made. Outside the word limit, give a bibliography of all books and databases used to carry out the research, and give a list of all cases that you consulted (whether or not actually used), with their references. To decide on who has the burden and the benefit of the covenant it is necessary to analyze the type of covenant that was originally made between Leslie Plc and Target. Covenants against assignment can either be absolute[1] or qualified[2]. An absolute covenant would prevent any assignment or subletting. A qualified covenant entitles the tenant to sublet or assign with the landlords consent[3]. Under the Landlord and Tenant Act 1927 s19 (1) the landlord cannot withhold consent unreasonably[4]. Should he decide to withhold consent he would have to show that consent is being withheld reasonably[5]. Reasonableness is not defined in the legislation but has been defined by case law[6]. In the above it is stated that Leslie had agreed to allow Target to assign the lease. When issuing a lease the landlord can impose obligations on the tenant for repairs[7]. Where the lease is for less than 7 years there is an implied covenant[8] that the landlord will repair the structure[9]. Enforcement of the obligation of the landlord to repair the property is usually only in respect of residential leases[10]. Commercial leases are free to make their own agreement[11] and the obligation of the landlord is only implied where the parties have not made express provision for repairs[12]. Express covenants for repair by the tenants usually contain an exception for fair wear and tear. It is usual for this exception to only cover things that wear out in the course of normal and reasonable use[13]. Where the wear and tear result in further damage to the property the tenant may become responsible for repairing the original wear and tear[14]. If the lease between Leslie Plc and Target had occurred prior to 1995 then the assignment of the tenancy from Target to Ace would not absolve Target from the liability in accordance with the contract[15]. This effectively would have meant that Target would still be bound by the covenants made with Leslie throughout the duration of the lease even though his interest has been assigned[16]. Covenants in leases are deemed to be made on behalf of the covenantor and his successors in title unless a contrary intention is expressed[17]. Leases issued prior to the Landlord and Tenant (Covenants) Act 1995 allowed liability of the original tenant to continue even though the original tenant has no control over the assignee[18]. If the lease had been issued prior to 1995 although the landlord would normally seek redress against the assignee[19] in the first instance there is no requirement that the landlord should proceed in this manner. Effectively the landlord could opt to seek redress from the original lessee instead of the assignee[20]. This was particularly useful where the assignee had become insolvent[21]. As the lease began after 1995 the Landlord and Tenant (Covenants) Act 1995 s5 releases Target from the burden of the covenant and passes the burden to Ace[22]. Under s3 of the LT(C) A 1995 the benefit and burden of all covenants[23] shall be annexed to each and every part of the demised premises and shall pass on assignment and the test of touching and concerning does not apply[24]. Covenants expressed in a personal way are not transferred to the assignee[25]. It is important to look at the privity of the contract and the privity of estate[26] as the differences that apply under each will affect the ability of Rake to enforce the covenant. The difference between having both the privity of contract and the privity of estate is that under a privity of contract all covenants bind[27] whereas under privity of estate[28] then only the covenants which are regarded as typically part of the landlord and tenant relationship will be bound[29], such as covenants to repair. Privity of estate only affects the benefit and burden on the assignee and the landlord in respect of covenants that touch and concern the land[30]. In Spencer’s Case[31] it was stated the covenant must either affect the land as regards the mode of occupation, or it must be such as per se, and not merely from collateral circumstances, affects the value of the land[32]. There would be both privity of contract[33] and privity of estate between Leslie Plc and Target as they were the original lessor and lessee.
The assignment of the lease to Ace would only create a privity of estate between Leslie and Ace as there would be no direct contractual relationship between them. Similarly by selling the property to Rake there would be no privity of contract between Rake and Target or Rake and Ace[34], only a privity of estate. If the assignment of the sub tenancy Simon had been agreed by Rake then there would have been privity of estate between Rake and Simon. As the assignment of the lease to Simon was not consented to by Rake there would be no privity of estate and Rake would not be able to enforce the repair covenant against Simon[35]. It could be argued that the assignment of the sub-tenancy to Simon has waived the right of Rake to claim forfeiture for the breach of the covenant to repair the property, as only restrictive covenants can be enforced against a sub tenant[36]. As Rake has control over the property it could be argued that he should still have the burden of the covenants.
This would mean that Rake could enforce the repair covenant[37]. If Ace carried out the repairs as requested there would be no breach of the repair covenant and Rake could not take forfeiture action for this breach[38]. Unfortunately the action by Ace of subletting without the consent of Rake could be seen as a breach of the covenant if the business run by Simon is separate from Ace’s business[39]. This would allow Rake to take forfeiture action for the breach of the subletting covenant and to force Simon to surrender his share of the property as it had been sublet in breach of the covenant[40]. The effect of this would be to bring the term of the lease to a premature end. It has already been stated in the scenario above that a condition was inserted into the leasing agreement that any breach of the covenant would entitle the covenantor to take forfeiture action[41]. Under s146 of the Law of Property Act 1925 it is possible in some circumstances for the breach to be remedied. If the breach was due to the repair work only and Ace had not sublet to Simon then the breach could be rectified by Ace carrying out the necessary repairs. As the breach was due to the subletting as well the only way in which this could be rectified would be for Ace to terminate the agreement with Simon and resume possession of the property. The subletting of part of the property to Simon could be viewed as a licence as opposed to a lease as Simon does not have full rights of ownership as he would have if a lease had been created[42]. The distinction between a lease and a licence is easier to determine in a residential setting. In a commercial agreement the distinction is made by examining where the control of the premises lies[43]. The effect of this being viewed as a licence would mean that Simon would be able to claim proprietary estoppel if Ace attempted to revoke the licence[44]. Part B My research strategy involved looking at the types of covenants that can be made then analysing from the problem above whether the burden and the benefit of the covenants was able to transfer between the various parties. I looked at the situation from the perspective of if the contract had been created before the 1995 Act and compared it with the changes that have been introduced by the 1995 Act. This was done to show that when advising a client as to whether a covenant is binding on an original covenantor and covenantee it is essential to know when the lease was created. I then looked at privity of contract and estate as the rights over the enforcement of the covenant can be directly affected if there is privity only privity of estate. I considered this both from a pre 1995 standpoint and a post 1995 standpoint. I then addressed the issue of licence or lease as the difference between the 2 affects the position as to the binding nature of covenants. To back up my argument I supported as many points possible by case law and legislation. My main source of electronic research was Westlaw for cases to support my argument and www.opsi.gov.uk for relevant legislation. I also used electronic search engines to get up to date information on any recent changes surrounding the law on covenants. A useful site that looked at a situation very similar to the one outlined above was https://www.propertylawuk.net/ltssublettingandsharingoccupation. html. This particular site highlighted several similar cases some of which have been cited in the report above. Bibliography Bryn Perrins, Understanding Land Law, 3rd Ed, 200, Cavendish Publishing Ltd Garvells, N P, Land Law Text and Materials, 2nd Ed, 1999, Sweet and Maxwell Thomas, M, Statutes on Property Law, 8th Ed. 2001, Blackstone’s Transfer of land: The Law of Positive and Restrictive Covenants (1984) Law Commission No 127 Law Commission Report No 238, Landlord and Tenant: Responsibility for State and Condition of Property (1996) https://www.landregistry.gov.uk https://www.propertylawuk.net www.opsi.gov.uk Table of Cases Addiscombe Garden Estates Ltd. v Crabbe [1958] 1 Q.B. 513 Allied London Investments Ltd v Hambro Life Assurance Ltd (1985) 50 P & CR 207 Amsprop Trading Ltd v Harris Distribution Ltd [1997] 1 W.L.R. 1025 [1997] 2 All E.R. 990 [1997] 2 E.G.L.R. 78 [1997] 47 E.G. 127 [1996] N.P.C. 154 Times, November 13, 1996 Avonridge Property Co Ltd v Mashru [2005] UKHL 70 [2005] 1 W.L.R. 3956 [2006] 1 All E.R. 127 [2006] 1 P. & C.R. 25 [2006] L. & T.R. 4 [2006] 1 E.G.L.R. 15 [2006] 01 E.G. 100 [2005] 49 E.G.C.S. 88 (2006) 103(1) L.S.G. 16 (2006) 150 S.J.L.B. 28 [2005] N.P.C. 138 Times, December 5, 2005 Baker v Merckel [1960] 1 QB 657 Beegas Nominees Ltd v BHP Petroleum Ltd [1997] C.L.Y. 3093 1997 Clinton Cards (Essex) Ltd v Sun Alliance & London Assurance Co Ltd [2002] EWHC 1576 [2003] L. & T.R. 2 [2002] 3 E.G.L.R. 19 [2002] 29 E.G.C.S. 150 Congleton Corporation v Pattison (1808) 10 East 130 Crestfort Limited v Tesco Stores Limited [2005] EWHC 805 (Ch); [2005] 37 EG 148. Dellneed Ltd v Chin [1987] 1 E.G.L.R. 75 Edlington Properties Ltd v JH Fenner & Co Ltd [2005] EWHC 2158 [2006] 1 All E.R. 98 Hall v Ewin (1888) 37 Ch.D. 74; Tulk v Moxhay (1848) 2 Ph 774 Harris v Williams-Wynne [2005] EWHC 151 Haskell v Marlow [1928] 2 KB 45 Homebase Ltd v Allied Dunbar Assurance plc [2002] EWCA Civ 666; [2002] L&TR 27; [2002] 27 EG 144; [2003] 1 P&CR 6 International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] Ch 513 Janet Reger International Ltd v Tiree Ltd [2006] EWHC 1743 [2006] 30 E.G.C.S. 102 Latimer v Carney [2006] EWCA Civ 1417 [2006] 45 E.G.C.S. 191 (2006) 103(44) L.S.G. 31 [2006] N.P.C. 117 Legal & General Assurance Society Ltd v Expeditors International (UK) Ltd [2006] EWHC 1008 Lynnthorpe Enterprises Ltd v Sidney Smith (Chelsea) Ltd [1990] 08 E.G. 93 [1989] E.G.C.S. 63 Mahon v Sims [2005] 3 E.G.L.R. 67 [2005] 39 E.G. 138 Times, June 16, 2005 MEPC Plc v Scottish Amicable Life Assurance Society [1996] B.P.I.R. 447 Oceanic Village Ltd v United Attractions Ltd [2000] Ch 234 Pacific Wash-a-Matic v RO Booth Holdings [1978] 5 W.W.R. 525 Plimmer v Wellington Corporation (1884) 9 App. Cas. 699 (M&B(L) 589; G 641) PW & Co v Milton Gate Investments Ltd [2003] EWHC 1994 R v Tottenham and District Rent Tribunal Ex p. Northfield (Highgate) [1957] 1 Q.B. 103 [1956] 3 W.L.R. 462 [1956] 2 All E.R. 863 (1956) 120 J.P. 472 54 L.G.R. 421 (1956) 100 S.J. 552 R A Securities Ltd v Mercantile Credit Co Ltd [1995] 3 All ER 581 Regis Property Co Ltd v Dudley [1959] AC 370 Scottish & Newcastle Plc v Raguz (No.2) [2004] EWHC 1835 Shell-Mex & B.P. Ltd. v Manchester Garages Ltd. [1971] 1 W.L.R. 612 Smith v Spaul [2002] EWCA Civ 1830 [2003] Q.B. 983 [2003] 2 W.L.R. 495 [2003] 1 All E.R. 509 [2003] H.L.R. 38 [2003] 2 P. & C.R. 21 [2003] L. & T.R. 17 [2003] 1 E.G.L.R. 70 [2003] 17 E.G. 148 [2003] 3 E.G.C.S. 125 (2003) 100(9) L.S.G. 28 (2003) 147 S.J.L.B. 27 [2002] N.P.C. 164 [2003] 1 P. & C.R. DG19 Times, December 28, 2002 Spencer’s Case (1585) 5 Co.Rep. 16a; 77 E.R. 72 (M&B(L) 503) Street v Mountford [1985] A.C. 809 (M&B(L) 417; G 386) Thames Manufacturing Co Ltd v Perrots (Nichol & Peyton) Ltd (1984) 50 P & CR 1 Unity Joint Stock Banking Association v King (1858) 25 Beav. 72; 53 E.R..563 Vision Golf Ltd v Weightmans [2006] EWHC 1766 Wadsworth v Nagle [2005] EWHC 26 Walker’s Case (1587) 3 Co.Rep. 22a; 67 E.R. 676 Warnford Investments Ltd v Duckworth [1979] Ch 127 Waycourt Ltd v Viscount Chelsea [2006] EWCA Civ 511 Westbury Estates Ltd v Royal Bank of Scotland Plc 2006 S.L.T. 1143 2006 G.W.D. 38-757 Table of Statutes Landlord and Tenant (Covenants) Act 1995 Landlord and Tenant Act 1927 Landlord and Tenant Act 1985 Landlord and Tenant Act 1988 Law of Property Act 1925 Law of Property Act 1926 1
Footnotes
[1] Harris v Williams-Wynne [2005] EWHC 151
[2] Mahon v Sims [2005] 3 E.G.L.R. 67 [2005] 39 E.G. 138 Times, June 16, 2005
[3] Clinton Cards (Essex) Ltd v Sun Alliance & London Assurance Co Ltd [2002] EWHC 1576 [2003] L. & T.R. 2 [2002] 3 E.G.L.R. 19 [2002] 29 E.G.C.S. 150
[4] Mahon v Sims [2005] 3 E.G.L.R. 67 [2005] 39 E.G. 138 Times, June 16, 2005
[5] Landlord and Tenant Act 1988 s1
[6] International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] Ch 513
[7] Westbury Estates Ltd v Royal Bank of Scotland Plc 2006 S.L.T. 1143 2006 G.W.D. 38-757; Latimer v Carney [2006] EWCA Civ 1417 [2006] 45 E.G.C.S. 191 (2006) 103(44) L.S.G. 31 [2006] N.P.C. 117
[8] Janet Reger International Ltd v Tiree Ltd [2006] EWHC 1743 [2006] 30 E.G.C.S. 102
[9] Landlord and Tenant Act 1985 s11 [10] Wadsworth v Nagle [2005] EWHC 26 [11] Legal & General Assurance Society Ltd v Expeditors International (UK) Ltd [2006] EWHC 1008 [12] Law Commission Report No238, Landlord and Tenant: Responsibility for State and Condition of Property (1996) [13] Haskell v Marlow [1928] 2 KB 45 [14] Regis Property Co Ltd v Dudley [1959] AC 370 [15] Baker v Merckel [1960] 1 QB 657 [16] Warnford Investments Ltd v Duckworth [1979] Ch 127; Walker’s Case (1587) 3 Co.Rep. 22a; 67 E.R. 676 [17] Law of Property Act 1926 s79. [18] Thames Manufacturing Co Ltd v Perrots (Nichol & Peyton) Ltd (1984) 50 P & CR 1; Allied London Investments Ltd v Hambro Life Assurance Ltd (1985) 50 P & CR 207 [19] Scottish & Newcastle Plc v Raguz (No.2) [2004] EWHC 1835 [20] Scottish & Newcastle Plc v Raguz (No.3) [2006] EWHC 821 [2006] 4 All E.R. 524 [21] R A Securities Ltd v Mercantile Credit Co Ltd [1995] 3 All ER 581 [22] Avonridge Property Co Ltd v Mashru [2005] UKHL 70 [2005] 1 W.L.R. 3956 [2006] 1 All E.R. 127 [2006] 1 P. & C.R. 25 [2006] L. & T.R. 4 [2006] 1 E.G.L.R. 15 [2006] 01 E.G. 100 [2005] 49 E.G.C.S. 88 (2006) 103(1) L.S.G. 16 (2006) 150 S.J.L.B. 28 [2005] N.P.C. 138 Times, December 5, 2005 [23] Edlington Properties Ltd v JH Fenner & Co Ltd [2005] EWHC 2158 [2006] 1 All E.R. 98 [24] Oceanic Village Ltd v United Attractions Ltd [2000] Ch 234 [25] Landlord and Tenant (Covenants) Act 1995 s3 (6) (a) [26] MEPC Plc v Scottish Amicable Life Assurance Society [1996] B.P.I.R. 447 [27] R v Tottenham and District Rent Tribunal Ex p. Northfield (Highgate) [1957] 1 Q.B. 103 [1956] 3 W.L.R. 462 [1956] 2 All E.R. 863 (1956) 120 J.P. 472 54 L.G.R. 421 (1956) 100 S.J. 552 [28] Pacific Wash-a-Matic v RO Booth Holdings [1978] 5 W.W.R. 525 [29] Lynnthorpe Enterprises Ltd v Sidney Smith (Chelsea) Ltd [1990] 08 E.G. 93 [1989] E.G.C.S. 63 [30] Spencer’s Case (1585) 5 Co.Rep. 16a; 77 E.R. 72 (M&B(L) 503) [31] (1585) 5 Co.Rep. 16a; 77 E.R. 72 (M&B(L) 503) [32] Congleton Corporation v Pattison (1808) 10 East 130 [33] Beegas Nominees Ltd v BHP Petroleum Ltd [1997] C.L.Y. 3093 1997 [34] Smith v Spaul [2002] EWCA Civ 1830 [2003] Q.B. 983 [2003] 2 W.L.R. 495 [2003] 1 All E.R. 509 [2003] H.L.R. 38 [2003] 2 P. & C.R. 21 [2003] L. & T.R. 17 [2003] 1 E.G.L.R. 70 [2003] 17 E.G. 148 [2003] 3 E.G.C.S. 125 (2003) 100(9) L.S.G. 28 (2003) 147 S.J.L.B. 27 [2002] N.P.C. 164 [2003] 1 P. & C.R. DG19 Times, December 28, 2002 [35] PW & Co v Milton Gate Investments Ltd [2003] EWHC 1994; Amsprop Trading Ltd v Harris Distribution Ltd [1997] 1 W.L.R. 1025 [1997] 2 All E.R. 990 [1997] 2 E.G.L.R. 78 [1997] 47 E.G. 127 [1996] N.P.C. 154 Times, November 13, 1996 [36] Hall v Ewin (1888) 37 Ch.D. 74; Tulk v Moxhay (1848) 2 Ph 774 [37] Crestfort Limited v Tesco Stores Limited [2005] EWHC 805 (Ch); [2005] 37 EG 148. [38] Waycourt Ltd v Viscount Chelsea [2006] EWCA Civ 511 [39] Crestfort Limited v Tesco Stores Limited [2005] EWHC 805 (Ch); [2005] 37 EG 148. [40] Homebase Ltd v Allied Dunbar Assurance plc [2002] EWCA Civ 666; [2002] L&TR 27; [2002] 27 EG 144; [2003] 1 P&CR 6 [41] Vision Golf Ltd v Weightmans [2006] EWHC 1766 [42] Street v Mountford [1985] A.C. 809 (M&B(L) 417; G 386) [43] Shell-Mex & B.P. Ltd. v Manchester Garages Ltd. [1971] 1 W.L.R. 612; Addiscombe Garden Estates Ltd. v Crabbe [1958] 1 Q.B. 513; Dellneed Ltd v Chin [1987] 1 E.G.L.R. 75 [44] Unity Joint Stock Banking Association v King (1858) 25 Beav. 72; 53 E.R..563; Plimmer v Wellington Corporation (1884) 9 App. Cas. 699 (M&B(L) 589; G 641)
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Professionalism in Forensics Computing
| Professionalism in Forensics Computing |
| For the first time following the case of Jones v Kaney [UKSC 2011, 13] experts are open to being challenged under the tort of negligence for their work. Discuss the case and its implications of risk for forensics or security experts involved in the investigation and presentation of findings within the legal process. |
- To protect witnesses who have given evidence in good faith from being harassed and vexed by unjustified claims.
- To encourage honest and well meaning persons to assist justice.
- To secure that the witness will speak freely and fearlessly.[8]
[1] https://www.lawgazette.co.uk/59804.article [2] Link do sprawy [3] High Court decision, paras. 4–5 [4] https://www.kchgardensquare.co.uk/userfiles/files/KCHGS-JonesvKaney.pdf [5] [6] [7] [8] [9] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35/pd_part35#IDAXKD2 [10]
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Law Essays – Radioactive Waste Substances Act
Waste Substances Act
The coursework problem: Under the (fictitious) Radioactive Waste Substances Act (the Act) no person is permitted to dispose of any radioactive waste except in accordance with an authorization granted bt the Minister for the Environment (the Minister) The Act provides that before granting an authorization under the Act “the Minister shall consult such local authorities or other bodies as appear to him to be appropriate”. The Minister also has power under the Act to cause a public inquiry to be held in relation to an application for an authorization”if he thinks” . Pollution Solutions plc (the company) has made an application to the Minister for an authorization to permit the company to dispose of radioactive waste in a disuses mine in Cornwall. Local inhabitants have formed an action group to oppose the application, to be known as No radioactive Waste in Cornwall (NRWIC); they are also campaigning for a public inquiry to be held. The Minister has invited various bodies, both public and private, to submit their views on the application as part of the consultation process. He has, however, indicated to NRWIC that, in exercising his discretion under the Act, he does not consider it appropriate to consult them.
Furthermore, since none of the bodies which the Minister has consulted has requested that a public enquiry be held, the Minister, again exercising his discretion under the Act, is not minded to cause one to be held. At a press conference, announcing his decision to grant the authorization to the Company, the Minister made it clear that he did not consider that self-appointed pressure groups, like NRWIC, should pay any part in the statutory decision making process; he also revealed that he would not, under any circumstances, waste time and money by holding a public inquiry. In desperation the Chairman of NRWIC has come to you for legal advice on whether a claim for judicial review should be made to persuade the court to reverse the Minister’s decision to grant the authorization What legal advice would you offer? This problem question raises two issues for NRWIC the first is the fact that they were not consulted in relation to the proposed dumping of nuclear radioactive waste at the sight of the disused mine and the second that no public enquiry was held. We will deal first with the failure to consult the public and in particular NRWIC. The first thing to consider is the impact that the failure to consult had of the persons who should have been consulted and on the public at large, in light of the purpose which would have been served by consultation. In other words the test is whether the failure to consult has substantially detracted from the purpose which would have been served by consultation. The duty to consult interested organisations is laid down in the Radioactive Waste Substance Act although it is determined as bodes that the minister considers appropriate, supposing for a minute that it can be said that the minister should have considered that NRWIC were appropriate we will look at the effect of this failure to consult. In decided cases on legality of failure to undertake such statutory consultation, the analysis suggested by the courts ha traditionally focused on the classification of such requirements either mandatory or directory. Breach of a mandatory requirement will render the decision or act in question invalid and breach of the directory requirement will not. There appears to be no determinative tests for deciding when the test should be classified mandatory and which directory other than the language used was imperative or permissible. Breach of a requirement seen as a mandatory has led to a finding that the relevant decision was invalid were as breach of a directory requirement as left the act or decision standing, although compliance may be secured by other means, or damages obtained. In general, as Emery and Smythe note where statute imposes on a public body a duty to consult persons likely to be affected by proposed action, the requirement will usually be treated as mandatory. The courts have found in many cases that the use of the words such as the minister may consult or the the minister shall consult those bodies that he considers to be appropriate did not give him open-ended discretion on the matter, certainty remained elusive. The more recent approach when dealing with impact of the failure to consult was identified by Lord Diplock in Council of Civil Service Unions v Minister of the Civil Service, it can denote both failure to observe express procedural requirements and a breach of the common law rules of natural justice.
When dealing with the effects of failure to undertake statutory consultation, the courts have tended to classify such requirements as either mandatory or directory. Therefore the question is this: Has the failure to consult substantially detracted from the purpose served by consultation? Since dumping radioactive waste could have a huge impact on the local community, it can safely be argued that that at least one of the purposes of the consultation requirement is to allow local people to have some imput into the decision to dump radio active waste in their local vicinity. If it can be shown that the NRWIC s genuinely representative of local people, in that its membership is local, and the court considers that it could have provided a useful source of input for the ministers, it may find that refusal to consult with it defeated the purpose of the consultation requirement. The interests of the local people are likely to be seen as particularly significant given that it is radioactive waste that will be dumped in the vicinity and this is more likely to impact the public at large than any one individual. The language of the statue will not greatly assist the NRWIC but, it is submitted, will probably not be decisive: the wording implies a mandatory requirement in using the word shall, however in addition a subjective choice as to the bodies to be consulted seems to be imported by the words as it sees fit. In dealing with such discretionary choices, the courts have taken the view that the choice should be informed by notions of reasonableness and is not, therefore , purely subjective.
For example in Secretary of State for Education and Sceience v Tameside, a minister was given statutory power to take certain action against a local authority if satisfied it was acting unreasonably. The court held that he could only take action if he had grounds on which he could properly be so satisfied. On balance therefore it is submitted that the NRWIC could reasonably hope for a finding that there were no good grounds for the refusal to consult and it could therefore mean that the radioactive waste cannot be dumped in the disused mine. On the second point that is the decision not to hold a public inquiry. It is clear that judicial review is the appropriate mode of challenge to such decisions: as the applicants here will have no private law rights as against the government or indeed not any that could be vindicated in an ordinary civil action; moreover, r 54.2 of the CPR has now clarified that judicial review must be used where the applicant is seeking either a quashing order or mandatory order, which of course will be the remedy sought by NRWIC as they will require a mandatory order to enforce the issue of holding a public enquiry. Under r 54.4 of the CPR applications must initially seek the courts’ permission to apply for judicial review; this must be done promptly, and in any event not later than three months after the grounds to make the claim arose It will be assumed that the potential claimant here is within this time limit. NRWIC must show that they have a sufficient interest in the matter to which the application relations. NRWIC will be seeking an mandatory order to compel a public inquiry to be held. The standing required for this remedy was equated in the case of IRC ex parte National Federation of Self-Employed. In this case the House of Lords held that the National Federation did not have sufficient interest to challenge the legality of the IRC decision to grant amnesty to casual labourers over previous tax avoidance.
The fact that it had not personal interest in the IRC decision was decisive. However Lord Wilberforce seems to have been much influenced in his judgement b the fact that the affairs of an individual tax payer are strictly confidential; he considered that individuals would breach that principle of confidentiality. In the instance case this is not the case as there will be no breach of confidentiality and it may be therefore that the case of National Federation is not of strict application here. It can be further argued that the dumping of toxic waste is a matter for public concern and scrutiny. One difficulty here is the decision in Rose Theatre Trust Co in which it was held that the pressure groups whose only interest in a decision is concern about the issues involved will not in general have locus standi to challenge the decision. However, since the Rose Theatre decision, the courts have begun to take a more flexible and accommodating approach to the question of standing when a sufficiently important issues is raised by the application, such that the case is now generally regarded as being out of line with the general thrust of judicial policy. Thus, in Secretary of State for Foreign and Commonwealth Affairs ex perte Rees-Mogg, it was found that the applicant had standing because of his sincere concern for constitutional issue. In Secretary of State for Foreign Affairs ex parte the World Development Movement the world development movement were granted locus standi on the basis of a number of factors, including the importance of the issue raised the possibly illegal use of the government’s overseas aid budget), the absence of any other challenger and the prominence and expertise of the applicant pressure group in relation to the issues raised by the case. In other cases, the courts have stressed the importance of pressure groups representing people living in the area affected by the contested decision. Thus, in Inspectorate of Pollution ex parte Greenpeace, the judge stressed the fact that 2,500 supporters of Greenpeace lived in the local area, the health of whom might be affected by emissions from a nuclear plant; the court therefore found that members of the group had a personal interest in a matter of substantial concern – public health.
This would certainly be based on very similar facts to the present situation and it is submitted that on this basis NWRIC will have locus standi and in support of this is the case of Secretary of State for the Environment ex parte Friends of the Earth, in which Friends of the Earth and its director were granted leave to challenge a decision relating to the quality of drinking water in certain specified area, the fact that the director lived in one of those areas and hence had a personal local interest in the matter was stressed as significant. The expertise of the respective pressure groups as a factor in their favour was also emphasised in both cases. Thus, in cases involving decisions with a particular impact on one region or area of the county, the courts seem to stress the importance of pressure groups having a genuine interest in that area, via their membership. The pure public interest approach appears so far as to have been saved for cases where the decisions were of general national importance with no local interest. Applying these criteria to NWRIC, it would seem that there claim for standing is fairly strong as there challenge is mainly one of local interest, so the pure public interest approach is not really applicable the courts will therefore enquire whether the chairman and other members of the group have a local interest in the area. Furthermore the pressure group have expertise in the area of government waste and this would count in their favour. In conclusion it would seem that NWRIC and its chairman will be in a suitable position to challenge both the failure to consult and the decision not to hold a public enquiry and it is likely that they will succeed on both basis. Bibliography Cases Council of Civil Service Unions v Minister of the Civil Service [1984] 3 ALL ER 935 IRC ex parte National Federation of Self-Employed [1982] AC 617 Inspectorate of Pollution ex parte Greenpeace [1994] 4 ALL ER 329 Lambeth London Borough Council ex p Sharp (1986) 55 P & CR 232 O Reily v Mackman [1983] 2 AC 237 Secretary of State for Education and Sceience v Tameside [1977] AC 1014 Secretary of State for the Environment ex parte Friends of the Earth [1994] 2 CMLR 760 Secretary of State for the Environment ex parte Rose Theatre Trust Co [1990] 1 ALL ER 754 Secretary of State for Foreign Affairs ex parte the World Development Movement [1995] 1 ALL ER 611 Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg [1994] 1 ALL ER 457 Legislation Civil Procedure Rules 1988 Supreme Court Act 1981 Books Allen, M. and B. Thompson (2002) Cases and Materials on constitutional and Administrative Law. Oxford: Oxford University Press, seventh edition Barnet, H (2005) Constitutional and Administrative Law London: Cavendish, 2002 Fifth edition Craig, P.P. (2003), Administrative Law. London: Sweet & Maxwell, fifth edition Fordham, Michael (2001), Judicial Review Handbook Oxford: Hart third edition Loveland, I (2003) Constitutional Law, Administrative Law and Human Rights London: Butterworths third edition
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Proposals for Reform of the Law Regarding Euthanasia and Assisted Suicide
- Voluntary Euthanasia - This is when a person consents to their life being ended by a third party deliberately (Active Euthanasia)
- Non – Voluntary Euthanasia – this may be when a person is unable to seek the procedure and another person makes the decision for them i.e. a family member, this will usually happen when it has previously been expressed by the patient.
- Passive Euthanasia – This is where treatment is withheld that is seen necessary to maintain a person’s life and therefore causing their death. An example of this is to withhold antibiotics from someone with pneumonia.
- Assisted Suicide – this is when a person gets information/guidance or medication from another person and takes their own life.
- Physician Assisted Suicide - in this case a person may go to a doctor and then be provided with information/guidance or in some cases medication to end their own life.
- Suffering intolerable pain
- Their illness must be incurable
- The patient must be fully conscious to make the request, it must be made voluntarily and had been well considered
- The patient must have been previously informed that there is no other reasonable solution for their condition
- The doctor must consult at least one other independent physician who had seen the patient and provided a written report of their opinion.
- The applicant must be above the age of 18 and be an Irish resident
- The applicant must be fully mentally competent and be examined by a Psychiatrist and a second opinion must be sought from a physician
- Both physicians must confirm that the patient is capable of making this decision
- The applicant must be suffering from an incurable illness, be in intolerable pain and have a life expectancy of less than 6 months
- Two requests must be made by the applicant, and there must be 14 days between the first and last request made
- The applicant must be able to take the lethal medication themselves.
[1] https://www.rte.ie/science/euthanasia_leaflet.pdf [2] https://www.life.org.nz/euthanasia/abouteuthanasia/history-euthanasia1/ [3] https://www.euthanasia.com/oathtext.html [4] https://www.thejournal.ie/marie-fleming-supreme-court-right-to-die-888920-Apr2013/ [5] https://www.thejournal.ie/marie-fleming-supreme-court-right-to-die-888920-Apr2013/ [6] https://www.theguardian.com/society/2014/jul/17/euthanasia-assisted-suicide-laws-world [7] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2947968/ [8] https://www.patientsrightscouncil.org/site/switzerland/ [9] https://www.theguardian.com/society/2014/jul/17/euthanasia-assisted-suicide-laws-world [10] https://www.echr.coe.int/Documents/FS_Euthanasia_ENG.pdf [11] https://www.medicalprotection.org/ireland/booklets/avoiding-problems-managing-the-risks-in-hospital-practice/advance-directives [12] https://www.bbc.co.uk/ethics/euthanasia/overview/regulation_1.shtml
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Prenuptial Marital Agreements
This essay highlights the aspect of prenuptial marital agreements. A pre-nuptial agreement is an contract made by a couple before they get married or enter into a civil partnership, which assorts how they desire their assets to be shared if they should divorce or have their civil partnership dissolved. Such agreements are divided into three categories.
First are the Pre-nuptial agreements which are made before marriage. Second are the post-nuptial agreements which are similar to pre-nuptial agreements but would be prepared after marriage or civil partnership. Lastly, we have the separation agreements and these are made after separation and in expectation of a forthcoming divorce or dissolution. This piece aims to review how the law has adopted changes over the time period. It will analyse the developments and any recommendations that can be pondered over will be discussed.
Pre-nuptial agreements are legally binding in numerous countries including the United States of America and Australia. However, they are not automatically enforceable in courts in England and Wales.
In a landmark ruling in the case of Radmacher v Granatino the Supreme Court said “that courts should give effect to a pre-nuptial agreement that is freely entered into by each party with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.[1] The essay revolves around this case and leading scenarios. A couple may decide between themselves how to split their possessions on divorce. They will often seek legal advice and the awareness that courts will more or less make the same decision if the matter was to be presented in front of them. Their contract will be then approved by court.
When this is not possible such as where dispute between parties arise, an application for ancillary relief will be decided by the court. Financial provision might be granted to either party to the marriage, subject to the facts of the individual case as every case has different circumstances. According to the section 25 of the Matrimonial Causes Act 1973, the court has very extensive discretion concerning the division of assets on divorce however the court must acknowledge all the related circumstances of the case, importance should be given to the welfare of a minor which is of any child of the family who has not reached the age of eighteen. The court must also deliberate whether it is likely to make a “clean break”.[2] Similarly in the case of a civil partnership, The Civil Partnership Act 2004 s.5 (5) sets out related requirements in relation to financial provision applications on dissolution of a civil partnership.[3] The essay will tend to look at the law before the impact of Radmacher v Granatino. The courts have believed what could be labelled as a paternal attitude to the granting of ancillary relief ondivorce.
Inthe past case of Hyman v Hyman(1929) Lord Buckmaster said that “The Wife’s right to maintenance is something she cannot barter away.”[4] Courts have given a lot of importance to its jurisdiction. The impression that the court is the wise one is still mostly leading. Even in the Radmacher case it is specified that “the parties cannot by agreement, oust the jurisdiction of the court.”[5] It was protected in statute first by the Maintenance Agreements act of 1952 and then combined by the Matrimonial Causes Act 1973 which assists the judge to consider the related circumstances of the case. However, there have been amendments to how the appropriate circumstances can be measured.
In the case ofEdgar v Edgar[6]it was acknowledged thatseparation agreementswould generally be given weight. More recently it had been decided that post-nuptial agreements should also be given weight if they were fair and just. This idea was lately supported by the Privy Council inMacleod v Macleod. However, pre-nuptial agreements have been constantly viewed as outside these relevant issues. The requirements for dividing assets are located in second part of the Matrimonial Causes Act 1973.
The court has a very extensive discretion as to what commands to make on an application for ancillary relief. Yet there is a definite pressure between the strategy of hopeful settlement and the outdated view that the state has an important concern in safeguarding that any settlement is just and reasonable considering the welfares of both parties involved.
The revolutionary case on division of marital assets on divorce is White v White in which the House of Lords gave a breakthrough conclusion and said that in great valued asset cases the law has been incorrectly interpreted by the Courts for the previous thirty years. Previously a wife was limited to seeking her fundamental needs such as a house or some maintenance costs labelling to be awarded according to reasonable requirements. Now the approach has taken a different road. There is no difference between the husband and wife and the idea of equality prevails between the breadwinners and the homemakers.
Focusing on the statements of equality, The Courts must deliberate carefully over section 25 of the MCA 1973 feature and fairness must be the main objective of the Court. When reached on a conclusion, the result must be measured against the yardstick of equal division. Failure in these steps can violate the issue of fairness. It’s quite clear that mainly these cases and scenarios are only from high net worth couples. However, the main priority is the care of a minor.
The beginnings concerns the welfare of a minor child of the family as the court’s first attention, secondly the need to accomplish a fair conclusion. This idea was also supported in Miller v Miller[7] and McFarlane v Macfarlane[8]. The idea of equal Davison of assets kept lingering for some time until Radmacher v Granatino. Prenuptial agreements got a real acknowledgment after this case.
InCrossley v Crossley[9] Thorpe LJ stated that, “based on the particular facts of that case, the pre-nuptial agreement was a factor of magnetic importance”. Other factors that should be satisfied in this case were that weight should be given to a PMA only if there Full & frank disclosure of all the assets between parties, the issue of Equality of bargaining power, Each party had independent legal advice regarding the terms and the Terms were fair. Just as each party has a responsibility to make full revelation of all material realities to the court hearing an ancillary relief application, each party has a duty to make full and frank revelation of all material facts to the other party throughout discussions which can result in a consent order. This was explained in the case of Livesey v Livesey[10]. Radmacher was the first time when this matter appeared before the Supreme Court.
There is one thing quite important that if the facts of the case continue to be of vital importance to the decision of the court regarding pre-nuptial agreements then it seems practical that the facts of the Radmacher case must be obviously displayed in order to clarify the decision of the court. The ruling of this case has a great impact on the reform of law which will be discussed further.
The importance of this can be sensed from the statement ofJane Keir, law firm Kingsley Napley LLP, said: “Qualifying nuptial agreements should be enforceable whilst limiting a judge’s discretion over any change to the intended outcome. Never before has English law gone quite so far. We urge parliament not to miss this opportunity to allow couples greater certainty and pre-agreed financial control should their relationship disintegrate.” The Labour Government printed a consultation paper in 1998 called Supporting families[11], which measured the useful steps which can be acquired to support families. The paper recognized that couples might be disheartened from making pre-nuptial agreements because there was no obligation for the courts to take any account of such agreements in determining how to divide property on divorce.
One of the suggestions being deliberated at that period was to see that is it a good idea to make a written pre-nuptial agreement about the distribution of money and property legally binding. Previously, pre-nuptial contracts were unenforceable as being in contradiction of public policy as it was measured that they might weaken the organization of marriage and attempt to restraint the discretion of the courts to grant property on divorce. In F v F, Thorpe J set the very inadequate worth of pre-nuptial agreements: “The rights and responsibilities of those whose financial affairs are regulated by statute cannot be much influenced by contractual terms which were devised for the control and limitation of standards that are intended to be of universal application throughout our society”.[12] It can be seen that recently courts have been ready to assign weight to a pre-nuptial arrangement as one of the applicable conditions to be taken into consideration in working out their discretion under section 25 of the Matrimonial Causes Act 1973. In X v X the judge held that “the fact that the parties have made their own agreement is a ‘very important’ factor in considering what is the just and fair outcome. The amount of importance will vary from case to case”.
He continued: “The court will not lightly permit parties who have made an agreement between themselves to depart from it. The court should be slow to invade the contractual territory, for as a matter of general policy what the parties have themselves agreed should, unless on the face of it or in fact contrary to public policy or subject to some vitiating feature … be upheld by the courts”.[13] In 2003, court supported a pre-nuptial agreement on the foundation that the wife knew that the pre-nuptial contract was correctly counselled as to its terms, and signed it freely without pressure. Hence, it was decided that the contract should be considered by the court as one of the situations of the case under section 25 of the Matrimonial Causes Act 1973 and that admission into the contract established behaviour which it would be unfair to disrespect.[14] However, not in all cases the prenuptial agreements have been successful in getting valued. In Z v Z Moor J said, “This was undoubtedly a case for equal division of assets absent the French agreement.
The issue was whether the marital contract took the case out of ‘sharing’. There was no dispute that the agreement was entered into freely and with full understanding of its implications. No formal advice was given by thetwo notary witnesses and there was no formal disclosure. This did not matter as we knew exactly what the agreement entailed and each party new the financial position of the other”.[15] Later on in 2008, in MacLeod v MacLeod[16], the Privy Council deliberated whether a pre-nuptial agreement was binding. The Privy Council held that it was not up to them to mess with famous rule that pre-nuptial agreements were conflicting to public policy and on these basis they are not binding in the promised sense, and said that the matter was more suitable to law-making body than judicial development but post-nuptial agreements which provided for a upcoming parting could be given weight by the courts.
The law standing in this situation can be weighed according to different scales. The upside of not having a prenuptial agreement is the presence of flexibility.
The court’s jurisdiction can be advantageous and the courts can use their power to maintain fairness and justice. However, this scenario can be the slope down for couples looking for clarity in law. Couples with high net worth can’t secure their belongings due to the ambiguity in law. Looking at this there is a clear pathway needed for safeguard of assets and property upon divorce.
To resolve this issue the law commission have been in the race. The Law Commission began a plan in 2009 to observe the position and enforceability of marital property agreements. In January 2011 it opened a discussion, revising the present law of marital property agreements and discussing choices for improvement. The scheme was stretched in 2012 to cover two additional matters of financial provision rising on divorce or the dissolution of a civil partnership. It was decided with the Ministry of Justice that the possibility of the scheme should be extended to comprise an assessment of two features of financial provision on divorce and the dissolution of a civil partnership namely financial needs and non-matrimonial property.
The aim of the scheme was to bring clarity to the existing law. On 11 January the Law Commission sprung a public talk on marital property agreements, due to the result of Radmacher v. Granatino. The Law Commission was looking for views on the attractiveness of possible choices for reforming the law of prenuptial, postnuptial and separation contracts made by couples before or throughout their marriage or civil partnership that are planned to oversee their financial provisions if the relationship finishes.
Finally in 2014, the final law commission paper came out with detailed recommendations, proposals and strategies to reform the law regarding prenuptial agreements. The main reform proposals are listed below. First and foremost The Family Justice Council should clarify the law relating to “financial needs”. This would safeguard the law and make sure that it is applied reliably by the courts and strengthen judicial repetition. With the guidance people can acknowledge the position of law and their objectives without any legal help.
Secondly, it should explore the likelihood of whether assistance to control of “financial needs” could be planned. And the most important one is to familiarise with the concept of “qualifying nuptial agreements”.
These would be enforceable contracts which would allow couples to make binding provisions for the financial forfeits of divorce or dissolution. However, to make a qualifying nuptial agreement, certain practical precautions would have to be met. The agreements would be enforceable as agreements but would apply only after both partners’ financial needs, and any financial duties towards children, have been satisfied. And they would be binding only if at the period of signing, both parties had revealed material statistics about their financial stateand both gotlegal advice.
Looking at the present law, it is now possible for couples to make pre- and post-nuptial agreements. Legalising prenuptial agreements can bring positive a vibe to the legislature. One of the key benefits of a prenuptial agreement is that it can give certainty on what assets are taken into deliberation in a divorce. These agreements can act as a shield for people of high net worth especially in the case second or more marriages where there are children from the existing marriage. A properly conveyed agreement provides a better grade of certainty.
It gives the couple a level of autonomy and freedom from judicial interference in what should happen to their assets ondivorce. As Resolution vice-chair Jo Edwards expresses her feelings, “Guidance on needs should encourage consistency, dispel myths and manage expectations. This will help anyone going through separation, even if they don’t have access to legal advice and support, or are trying to reach agreements on their own, during a very traumatic time.” [17] In the case of a wealthy partner it can limit their obligation to the less wealthy spouse. A prenuptial agreement can also distinguish assets collected prior to marriage, gifts and legacy as separate to joint wealth.
These agreements also highlight the importance of autonomy as they let people make their own choices. This idea was also supported by Professor Elizabeth Cooke the Law Commissioner for property, family and trust law, said: “Pre- and post-nuptial agreements are becoming more commonplace but the courts will not always follow them and lawyers are therefore not able to give clear advice about their effect. Qualifying nuptial agreements would give couples autonomy and control, and make thefinancialoutcome of separation more predictable”.[18] However, if we consider the preceding statement then it clashes with the main theme of the essay. As it is can be taken from the dissenting judgement of Lady Hale, which states that Pre-nuptial agreements deny the economically weaker spouse an entitlement of the rights they are supposed to get. She also emphasises on the issue of reform of the law.
Deliberating upon the strengths and weaknesses can lead to an easy conclusion that introduction to such agreements can be beneficial for both judiciary and public. Keeping in front of us that legalising prenuptial agreements are the most appropriate thing to do, there is an alternative that can be pondered upon.
This the idea of no fault divorce. In this scenario the fault in relationships which leads to divorce is extinguished. However, if no-fault divorce cancels marriage after the occasion, prenuptial agreements can do can play a good role in undermining it earlier. The idea of marriage is that it’s destined to be a lifetime affair and the clue here is that ‘til death do us part’ and the idea of prenuptial agreements is that they create provision for the thing finishing before it even gets started.
People are setting their resources out of the reach of the spouse in advance. Having considered all possible scenarios here, it can evidently be concluded that legalising the aspect of prenuptial agreements can be a revolutionary change in the history of England. It can provide a clear template for couples to follow and binding rules and regulations can be provided when needed. If anyone wants to enter a contract of such sort, they will know that efficient legal advice is needed which can be helpful when there are guidelines set to be followed. This will allow the lawyers and academics to have a clear transcript to study and advice their clients.
[1] Radmacher v Granatino [2010] UKSC 42; [2010] WLR (D) 260 [2] Matrimonial Causes Act 1925 section 25A [3] Civil Partnership Act 2004 schedule 5, part 5, para 23(2) [4] Hyman v Hyman [5] Radmacher v Granatino [6] Edger v Edger [7] Miller v Miller [8] Macfarlane v Mcfarlane [9] Crossley v Crossley 2007 [10] Livesey v Livesey [11] Supporting families 1998 [12] F v. F (Ancillary Relief: Substantial Assets) [1995] 2 F.L.R. 45 at 66 [13] X v X (FD) [2002] 1 FLR 508 at 537 (Munby J) [14] K v K (Ancillary relief: prenuptial agreement) [2003] 1 FLR 120 (Roger Hayward-Smith QC (sitting as a Deputy High Court Judge) [15] Z v Z [16] Macleod v Macleod [17] https://www.familylawweek.co.uk/site.aspx?i=ed127909 [18] https://www.familylawweek.co.uk/site.aspx?i=ed127909
Cite this page
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Problem Answers on Tort Law
- Can the owner, Mary successfully sue Tom for the damage to her car because of negligence? Identify and discuss the essential element of the tort law that she must prove.
- Tom owed them a duty of care: She able to prove that Tom failed to exercise reasonable care while he was towing the car which parked on car park without permission. In which Mary need to prove the Tom own her a duty of care and directly affected by car damage. Also fair that Tom should pay Mary for her car damage.
- Tom breached duty of care: She also need to prove that Tom didn’t meet appropriate standard care while to towing her car, as he was distractive by attractive girls. As his job is to towing the car very carefully while paying attention to each moment cause it might cause car damage and hurt other people.
- Mary need to prove that she suffered as direct consequence of the breach: In which Mary need to prove that there is causal connection between the Tom Negligent and Mary’s plaintiff suffered a loss caused by the breach of duty. The loss thus suffered was not too remote from the tortious act of decedent.
- Mary’s brother was at the back of car asleep. Because of the accident he breaks a rib and bruises large parts of his body. Can Mary’s Brother sue for the personal injuries? Discuss why or why not.
- Tom has already told Mary he has no money to pay for any repair. Is there anything else Mary can do to recover her costs/ compensation? What must she prove?
- There is no contract has been made between Bella and Len as it is part of cross- offer between both parties. Because Bella say ‘OK, I’ll give you the 3,500 ‘at same time as Len says ‘agreed, deal done.’ to John.
- There is no contract been made in between both parties until Andrew pay the money and accept the item as per contract law, but according to the study Warehouse mentioned there advertisement as an invitation for the customer. And they don’t have to mention the number of stock.
- According to the contracts Enforcement Act 1956 it’s not a contract between Ben and William because it simply based or involves promises. But Ben must perform the promises which is equitant to the William performance as he was very helpful in in clearing Ben’s lifestyle block from gorse.
- Nope because it will not be any contract because in contract law it’s important that one party makes an offer and the other party should accepted. According to the case study Alison want to buy the firewood and gave voice mail on Johnny’s phone but as Jonny didn’t received her mail, and we can’t be sure if she accept the offer or not by which offer is not effective until it has been received.
- No Mansion is not contractually bound to pay for the 2000 tins of Brand X paint. As according to contract law no contract exists until an offer so obtained has been accepted. Also the basic rule for a valid contract is that acceptance must be communicated to the offer. And according to the case study Zutalors sent a truck which arrived at the office of Maisnon, carrying 2000 Tins of brand X paint with a letter from Maisnon which stated that “I agree to supply the 2000 tins of brand X paint that you ordered” with price of $75 per Tin. Which shows that the action was taken by Maisnon without the knowledge of the offeree will not usually create any obligation upon the offeree to pay for the work as she had no opportunity to refuse the services.
- Explain if there is a legally binding contract between Ruth and Alexander.
- Explain if there is consideration between the driver of XJ18 and Fred?
- Explain whether Budget Motors Limited is able to enforce the agreement
- Advise Andy whether either or both of these contracts may be avoided.
- Advise if D Can get out of the contract which he done with F.
- Explain whether Lisa can cancel the contract.
- Advise Jake on his legal Position.
- I going to explain through an example in which there are2 different parties called X and Y. In which X put add on trade me in which he mentioned that house is located in best area with nice neighbours. But when Y bought the house after 1 mouth he found out that there is group of young people live next to his neighbours who play loud music every day and break into Y’s car more than 2 times. X is the innocent party which as include into the contract by misrepresentation. Where Y is the one who didn’t take responsibility neighbours and house after selling house.
- According to section 7(3) an innocent party may cancel a contract if he/she proof that had been induced into the contract through misrepresentation. And other party didn’t gave the right information about the property or product while selling to innocent party.
- Yes Strephone expected to get $200,000 because it is reasonable to think that since the Phyllis Construction Ltd knew that the Strephone is in Hotel business, and due to delay the hotel will not make profit from their customer which they usually get.
- Strephone will not get 250000 for the loss of a major international conference because the incident happened under ordinary circumstances. Strephone will get ordinary profits but not for special dyeing contracts that Phyllis construction didn’t know as it’s not a part of contract which singed between both parties.
- No because according to Law the High Tec should give him notice and discuss the reasons about the less payment which was paid by Crown Hotel manager. High Tec can’t sue straight without notify the Manger of crown Hotel and they should warned him to pay rest of the money before the filed case against The Manager.
To be known Lydia Ko (Employee) agree to work for Bing Dai (Programme leader for business) as a full time support staff. Position 
The Employee is begin employed as support staff for Bing Dai who is programme leader for business. Employee need to perform according to instruction given by Bing Dai. Termination of Employment 
The Bing Dai Employer may terminate the trail period which is 90 days by giving notice to the Lydia Kio Employee within the trail Period. The Lydia Kio Employee may terminate the agreement by any cause by giving 2weeks notice in writing to Employer for resignation. Likewise Bing Dai Employer is required to give 2 weeks’ notice to terminate. Terminate for Serious Misconduct 
According to this agreement the Bing Dai Employer have authority to terminate Lydia Ko Employer without giving any notice in writing or oral. List of serious misconduct: - Dishonesty
- Student harassment or harassment reading colleague.
- Continuously failure to follow given instruction
- Poor performance continuously
- Damage any property related to school.
- Action which damage the school and Employer’s reputation.
- Explain by the reference to the appropriate sections in the Sales of Goods Act 1908 why this is a contract of sales of goods.
- Under the sales of goods act 1908 S20 Rule 2 it is clearly mentioned that if the seller is bound to do some changes in the good that he/she going to sell for the purpose of putting that particular goods in deliverable state, then the property/goods still belong to seller until it get approved or notice to the buyer. That’s why it still belong to Lisa.
- Lisa will bear the loss as according to the sales of goods act 1908 First Lisa should deliver the property/good should be in condition what Paul asked for within given time frame and 2nd the property will not belong to buyer until it get approved by buyer.
- The product should meet same as the sample, it not supposed to different from sample.
- The buyer should have opportunity to compare the sample with product he/she is going to buy.
- And last the product should be free from any kind of defect or from any harmful defect.
References
Consumer Affairs New Zealand. (2010, May 21). Minor. Retrieved from www.consumeraffairs.govt.nz: https://www.consumeraffairs.govt.nz/for-consumers/credit-and-debt-1/your-credit-contract/copy_of_minors Consumeraffairs. (2014, July 17). Consumer guarantees for goods. Retrieved from https://www.consumeraffairs.govt.nz/: https://www.consumeraffairs.govt.nz/for-business/compliance/quality-of-your-goods-or-services/goods-sold-by-retailers/consumer-guarantees-for-goods/#sample Ministry Of Justice . (2013). Full List Of Clauses. Retrieved from https://dol.govt.nz/: https://dol.govt.nz/Tools/EmploymentAgreementBuilder/(S(elhpka2si5wgu2y5sysickxk))/Guide/Default.aspx Parlement Concil Office. (2013). Contractual Remedies Act 1979. Retrieved from www.legislation.govt.nz: https://www.legislation.govt.nz/act/public/1979/0011/latest/DLM31590.htmlCite this page
Problem Answers on Tort Law. (2017, Jun 26).
Retrieved November 5, 2025 , from
https://studydriver.com/2017/06/page/16/
Prevalence of Gender Bias in Mauritian Legal Profession Law
The Historical Exclusion of Women from the legal profession- A Global Perspective. History is rich in its depictions of old professions, their evolution with time and the way they are shaped presently. Dynamic societies, changing demographics, increased access to education, change in perceptions on gender roles, transformations of the law- all these have revolutionized today's professions.
Now, women are allowed to gain entry into professions that were hitherto barred to them. Studying women's progression is crucial because of the rarity of such studies. This historical examination will create an adequate context for understanding women's professional employment in the past, the present and pave the way for an improved future.
Hence, the previously male-dominated legal profession, and its historical exclusion of women, will be the focal point of this part of the research. In so doing, a case study will be presented on the United States, the United Kingdom and Mauritius.
Noteworthy are the major hurdles faced by women in achieving entry into the legal profession:
First, decades ago, special legislation was needed in many countries to open the doors to women.
Secondly, women had moderate difficulty in obtaining financial and family support to initiate their legal studies.
Third, after acquiring the legal status to plead in court, the fight for employment ensued.
Then, after many years of struggle, personal qualifications started to count more than social status or gender.
Finally the last hurdle was to quash the latent belief that women were not fit for the hardships of legal work.
Case Study: The United States
In the America of the 1800s the legal profession, similarly to medicine and politics, was closed to women. The quote below sheds light on the situation:
"Nature has tempered women as little for the judicial conflicts of the courtroom as for the physical conflicts of the battlefieldA¢â‚¬A¦ OurA¢â‚¬A¦ profession has essentiallyA¢â‚¬A¦ to do with all that is selfish and extortionate, knavish and criminal, coarse and brutal, repulsive and obscene in human life. It would be revolting to all female sense of innocence and the sanctity of their sex."
(Chief Justice Ryan of the Wisconsin Supreme Court, opposing admitting Lavinia Goodell to the bar, 1895, cited in Epstein, 1993, p. 269)
Despite Justice Ryan's vivid language, the reasons for men's resistance to women lawyers "likely has to do with the law's close relationship to power in our society."(Morello, 1986, cited in Martin and Jurik, 2007, p. 107) According to Epstein (1993, p. 13):
members of the legal elite preside over power and property relationships;
they play a leading role in the legislative and regulative bodies that write the law;
they direct the executive agencies responsible for enforcing the law;
they rule the courts that elaborate and apply the law and,
they guide the corporate and financial institutions that constitute the most important property interests.
Exclusion of women from the legal practice was thus successful up until late 19th century. Then, the early women's movement's struggle for civic rights started the mechanism for change- Women were allowed to become legal professionals and they pushed for the professionalization of the legal practice. Schultz and Shaw (2003, p. 13) underline that: "Social status as a base for admittance was discarded, allowing formal qualifications to be the ultimate criterion for entry. This led to an increasing proportion of lawyers with formal education."
The history of the struggle of women in the United States to enter the legal profession was similar to women's struggles in England, other commonwealth nations and Europe.
Case Study: England
Guyard Nedelec (2010) certifies that in the United Kingdom, the first application by a woman to be admitted as a solicitor was in the year 1876. Her application was rejected by the Law Society on the grounds that she was not a "person" within the terms of the Solicitors Act 1843. For Lord Justice Swinfen Eady, in the case of Bebb V. Law Society 1914 1 Ch. 286: "the very fact that women had never been solicitors meant that women could not be solicitors."
Three decades later, lobbies and public debates wrought a significant change in Britain's legislation. In 1919, the Sex Discrimination (Removal) Act was passed, allowing women to be termed as 'persons.' Conductively, England and Wales began to admit a limited number of women around the 1920s.
However, Guyard Nedelec , (2010) reports they were only allowed to practice in restricted areas such as family law, matrimonial and probate work. Decades later, around the 1970s, a number of factors caused women to be admitted to the bar in increasing numbers. First, formal education training became the main requirement for entry into law, rather than apprenticeship, and secondly, structural changes led to a rise in the demand for lawyers. (Schultz and Shaw, 2003, p. 143)
The table below depicts the historical milestones marking the Entry of Women into the Legal Professions
Country
First Woman Admitted to Law Faculties
First Woman Law Student Graduated
First Woman Lawyer
First Woman Judge
First Woman Legal Academic
USA
2nd half of 19th Century
2nd half of 19th Century
Canada
1899 Northwest Territories
1892
Ontario 1895
Quebec 1942
Australia
Victoria 1905
Tasmania 1935
1st Supreme Court Judge 1965, 1st High Court Judge 1975
New Zealand
1893
1897
1st Maori 1982
1st Pacific Islander 1982
1965 1st Law Lecturer
UK
1873
1917
Solicitors:
Scotland 1920
England 1922
Barristers: 1920
Country Court 1960, Court of Appeal 1988
Germany
1900-1909
1912
1922
1965 1st Law Professor
Netherlands
1903
1947
Poland
1915
1925
1929
Norway
1890
Sweden
1897
Finland
1906
1930s
France
1887
1897
1900
1946
1931 1st Law Professor
Italy
1876
1777
1919
1963
Korea
1946
1951
1952
Belgium
1921
Denmark
1919
Ireland
1920
Portugal
1918
Venezuela
1936
Table 1, Source: Schultz and Shaw, 2003, p. xxxiv
With the table above, it can be seen that countries like Canada (Ontario) admitted women to the Bar as early as 1895, whereas in South Korea it took until the year 1952 to find women in the occupation.
The History of Female Lawyers in the Mauritian Legal System
Mauritius obtained its independence in 1968. The Constitution which guarantees equal rights to both genders, made it possible for women to gain entry in the legal practice. All the evidences demonstrate that Mauritian women, unlike their American and English counterparts, did not have to struggle for entry into law practice.
Besides the supreme law of the country, legislative provisions have also been enacted to ensure equal rights of entry to law. Section 4 of the Legal Practitioners Act entails that "any citizen of Mauritius who has been called to the Bar of England and Wales may apply for admission to practice as a barrister."
In this context, the first female lawyer in the Mauritian Legal System, Mrs Pillay, was appointed during the late 1960s, whilst the second, Mrs Anita Kumari Bacha, was admitted in 1971. Mrs Bacha, now retired, accorded this research an interview in order to bring light to the situation of female lawyers at that time. [Refer to Appendix A]
In Mrs Bacha's opinion, no gender discrimination existed when she was practicing law- female members were treated equally. Her promotion as both prosecutor and magistrate substantiates her disagreement on any inequality shrouding the legal system.
However after further probing, she admitted that a male magistrate once qualified her as "indecent" when she appeared to plead in court in her maternity clothes. Moreover, she deplored the way slang terms were allowed to be pronounced in court by counsels. She ascertains that one lawyer in question resorted to the use of crude language to destabilize female counsels and to distress female victims.
She believes that women should be aware of this fact before choosing a career in law. Finally she pointed that there are "softer" areas of the law where women can find themselves at ease. These are family law, adoption law, magistracy and judicial posts.
The situation of female lawyers at the time is therefore a subjective matter. It is difficult to attribute a definitive yes or no to the question of the predominance of gender discrimination.
A study of the number of male and female lawyers could probably give more light to this research.
The table below gives a numerical depiction of the amount of lawyers admitted for practice at the Bar in Mauritius.
Year
Men
Women
Total
% Women
1950-1960
6
0
6
0
1961-1970
6
1
6
16
1971-1980
40
2
42
5
1981-1990
27
6
33
18
1991-1992
16
2
18
11
1992-1993
0
0
0
0
1993-1994
5
0
5
0
1994-1995
15
2
17
11
1995-1996
10
0
10
0
1996-1997
5
5
10
50
1997-1998
8
2
10
20
1998-1999
5
4
9
44
1999-2000
8
4
12
33
2000-2001
11
4
15
26
2001-2002
9
8
17
47
2002-2003
9
5
14
35
2003-2004
13
10
23
43
2004-2005
20
8
28
28
2005-2006
20
13
33
39
2006-2007
15
12
27
44
2007-2008
23
6
29
20
2008-2009
19
18
37
48
2009-2010
17
7
27
25
Total
307
119
426
28%
Table 2, Source: Supreme Court Library as at 17th June 2010
No prescribed pattern can be ascribed to the above data. The amount of women over the years has shown a propensity to change drastically from one year to the other. For instance in 1994-1995 there were 11% of women and the following year 1995-1996 had none. The figures change around the 21st century.
Possible factors that can account for the increase in female professionals are:
The increase in demand for lawyers,
free access to education,
increase in standard of living;
All these factors helped in shaping the demographics of the legal profession. The amount of women has now reached 28% which is more than the amount of women in the Mauritian Parliament of today.
A comparison can be drawn to other countries:-
Country
% Lawyers
USA (2000)
27
Canada (1999)
32
Australia (1994-1995)
24.7
UK (1998)
34
Israel (2000)
34
Germany (2000)
24.6
Netherlands (1993)
30
Poland (1998)
Advocates- 29.5
In-house Advisers- 49.3
France (1999)
45
Brazil (Rio de Janeiro)
37.87
Japan (1991)
5.9
South Korea (1998)
1.9
New Zealand (1999)
29
Finland (2000)
43
Table 3, Source: Schultz and Shaw, 2003, p. xxxvi
The above data displays an average of one quarter to one third women in the world's legal jurisdictions. Though, in Brazil, France and Finland, the share of women lawyers is considerably higher.
South Korea and Japan show the lowest rates, mainly because of the persistent exclusionary strategies preventing women's participation in law.
We will now investigate whether contemporary patterns of inequality exist in the Mauritian legal system. The following themes will be explored:
(B) Does women's greater presence improve the legal institution?
(C) What are gender stereotypes and what are their effects on female law practitioners?
(D) Women lawyers' career prospects in Mauritius:
Private and Public Sector
Glass Ceilings and Income Differentials
Family Responsibility
Sexual Harassment
Senior Counsel Nominations
(e) Recommendations
Does women's greater presence improve the legal institution?
One of the ultimate debates surrounding women in the legal profession has this question as its centerpiece: Do women change the legal profession, or does the legal profession change them? Solimine and Wheatley (1995, cited in Martin, Reynolds and Keith, 2002) argue that:
"Women's participation will not alter the system or affect how justice is done because the system is guided by objective, gender-neutral laws and practices, in accord with the classical model of judging."
Furthermore, many scholars question the claim that the legal institution is substantively and in practice a "male and masculine institution that moots women's presence and influence." (Mackinnon, 1987, cited in Martin, Reynolds and Keith, 2002, p.667)
On the other side of the coin, McKinnon (1987), Pateman (1989) and Kenney (1995), cited in Martin Reynolds and Keith (2002) dispute that:
"Since the system was created by men, based on a concept of citizen as men, with laws written from men's standpoint, the ability to take women's standpoint fully into account is undermined."
Therefore, women's standpoint, as quoted above can be defined as an intuitive ability for affection and an innate rejection of violence.
In a book entitled: 'Gender trials: emotional lives in contemporary law firms', Pierce (1958, p. 103) wrote on a character in Shakespeare's Merchant of Venice. Portia, a female character, disguises herself as a male judge "in an attempt to bring the plea for mercy into the halls of justice." She rejected the adversarial method employed where one party loses and the other wins- arguing instead for a solution where "none of the parties will be harmed."
Carol Gilligan. (1982, p.105) refers to Portia's stance as an illustration of morality based on what she calls 'an ethic of care'. However, Gilligan has stated that she did not present the care perspective as either biologically determined or 'unique to women' (1986, p. 327, cited in Schultz and Shaw, 2002)
Nevertheless, her research has been seen and used to support that there exists a distinctive and natural (Freyer, 1995, p.201, cited in Schultz and Shaw, 2002, p. 193) female approach to moral problemsA¢â‚¬A¦ [Which] even if the product of male oppression may be deployed to disrupt and reform patriarchal structures and discourses.
To endorse the above, Ms Narghis Bundhun, a leading female lawyer in Mauritius, expounded in her interview (Appendix B) that "women lawyers, in my opinion, are better listeners and more ethical in their practice of law."
Thus there are debates that confirm or reject the 'women will change the institution' thesis. The task is to find whether women lawyers' participation will create an "innovation and transformation of the practice of law." (Menkel-Meadow 1989:198-9, cited in Schultz and Shaw, 2002, p. 193)
To find a corollary, extensive research has to be carried out. However cost and time constraints defy the feasibility of such a research in this dissertation- justifying the need to consider another researcher's conclusion:
Carrie Menkel Meadow (1995, p. 34-5) found through her research that women lawyers:
"may be more likely to adopt less confrontational, more meditational approaches to dispute resolutionA¢â‚¬A¦ women will be more sensitive to clients' needs and the interests of those who are in relation to each other, for example clients' families or employeesA¢â‚¬A¦ women employ less hierarchical managerial stylesA¢â‚¬A¦ are more likely to have social justice or altruistic motives in practicing lawA¢â‚¬A¦ and to develop greater integration between their work and family lives."
Gender Stereotypes and their effect on female law practitioners
What is meant by the term Gender Stereotype?
Stereotyping forms part of the human nature. It helps in categorizing the people around us- making life simpler. However it can have "a particularly egregious effect on women." (Cook and Cusack, 2010, p. 1)
Interestingly, women themselves may be socially conditioned to absorb negative stereotypes about themselves and to fulfill the subordinate, passive role they consider appropriate to their status.
For instance in an article by News On Sunday in 2010, it was outlined that 61% women work as clerks or sales persons and only 19% of them work as legislators, professionals and semi-professionals according to the Central Statistics Office.
In its concluding comments on Mauritius, The Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) in 2006 wrote:
"The committee is concerned about the persistence of patriarchal attitudes and stereotypes regarding the roles and responsibilities of women and men in the family and society, where men are still considered the main breadwinners and women's primary responsibility are still household chores."
When societies ignore the existence of such prejudices it may "exacerbate a climate of impunity with respect to violation of women's rights." (Cook and Cusack, 2010, p. 1)
Thus, naming a gender stereotype and identifying its harm is critical to its eradication. Harms of gender stereotypes can take the form of:
Degrading women or diminishing their dignity, and/or
Denying them justified benefits or imposing unjust burdens.
How do gender stereotypes affect women legal practitioners?
In the ABA Commission on Women in the Legal Profession (2001, p. 15), it is said that:
"The characteristics traditionally associated with women are at odds with many characteristics traditionally associated with professional success such as assertiveness, competitiveness and business judgement. Some lawyers and clients still assume that women lack sufficient aptitude for complex financial transactions or sufficient combativeness for major litigation."
Women can as a result be recipients of negative gender constructions. Being too feminine can lead to being qualified as too "soft". Being assertive can be perceived as too "aggressive." Therefore, gender bias can take an omnipresent form in the livelihoods of female lawyers. They experience pressing needs, namely:
The need to socialize and work for long hours,
The need to be as competent as men,
The need to dress like men in sober suits,
The need to face reluctance of some clients to deal with female lawyers,
The need to espouse masculine and feminine styles when convenient, and
The need to face possible criticism when their assertiveness is graded as aggressiveness.
One anonymous female commercial property lawyer, cited in Shultz and Shaw (2003, p. 199), wrote in some detail of the pressure she experienced:
"I think there is still definitely a view that women are not as strong as men. So with colleagues you always have to appear totally confident and positive- wear a smile and be a superhuman professional- and never talk about problems in your private life- that would be weak. And clients often test you too. I am tough, assertive, and meticulous in preparation, to counter all that. You have to be, because of women's reputation for weakness."
Men also tend to confirm women's fears. An interview with a successful Mauritian male senior lawyer [Appendix C] brought the following: "Women in general are not seen working as hard as men, in the field of criminal law, from dawn to dusk in and outside the courtroomA¢â‚¬A¦ thus it is justified for them not to be nominated as Senior Counsels."
Moreover, in Shultz and Shaw a male insolvency practitioner interviewed in 1999 said:
"Clients definitely prefer males in my experienceA¢â‚¬A¦ and I notice too that particular judges when faced with a woman on the other side would nearly always decide against herA¢â‚¬A¦"
Whether judges really write judgements by adhering to pre-conditioned stereotypes is beyond the scope of this part of the study. An analysis of this question will be carried out in the next part.
Ms Gariboo,[Appendix D] a Principal State Attorney in the Attorney General's Office, said in her interview that she has not been part to, nor seen any overt forms of gender discrimination.
However she noticed evident methods of gender stereotyping, where male lawyers would confer tasks upon their female colleagues such as "doing secretarial duties [taking notes during meetings] or making tea." Further, Ms Gariboo condemned the way women lawyers were not allowed to wear traditional clothing such as "churidars" and "sarees"- Thereby fixing the "habitus" of the legal profession.
Her last two observations were:
"no male lawyers ever attended the Gender Policy meetings as ascribed in every ministry department, in order to promote gender equality", and
"Women who are too womanly are not taken seriously and women who are prettier are treated more kindly by male lawyers."
This creates the problem for women of knowing when to hide their difference and when to assert it. Thus as the respondents described above, women find themselves in a tricky situation. Conformity may cause professional alienation when women are deemed too "manly." On the other side, non-conformity brings its individual sanctions of not earning due respect for being too feminine.
Yet, for one woman, the fact that she had to adopt different personas and employ different skills depending on the situation she was in and the people she was with was part of the attraction of the job. She wrote: "especially as a woman, I think, you have to act; sometimes hard and aggressive, sometimes soft. I quite enjoy it in factA¢â‚¬A¦ being attractive and a chameleon." (Schultz and Shaw, 2003, p.200-1)
Consequently, a woman's success in the legal practice may depend on a reflexive ability to change her mannerisms intuitively and quickly, so as to prevent negative gender constructions by the legal environment she evolves in.
Women Lawyers' Career Prospects in Mauritius
Private and Public Sector
The legal profession in Mauritius is divided into two branches, barristers and solicitors. It is not possible to be qualified as both at the same time. Traditionally, barristers are self-employed and have an exclusive right of audience in higher courts. Solicitors on the other hand are instructed by lay clients and may instruct a barrister if required. Barristers and Solicitors per the Legal Practitioners' Amendment Act 2008, work together in Chambers to share administrative costs. Mauritian barristers must be members of the Bar Council while Mauritian solicitors have a legal obligation to form part of the Law Society.
The private sector therefore includes all the barristers and solicitors who are not employed by the government. The public sector on the other hand comprises of The Attorney General's Office, also referred to as the State Law Office or the Parquet. Under its aegis are the offices of the Solicitor General and the offices of the Director of Public Prosecutions.
The Table below shows the amount of men and women lawyers employed in the Public Sector in 2010
Post/Grade
No. of Men Employed
No. of Women Employed
Total
Solicitor General
1
1
DPP
1
1
Parliamentary Counsel
1
1
Deputy Solicitor General
1
1
Assistant Solicitor General
2
2
4
Chief Legal Secretary
1
1
Assistant Parliamentary Counsel
1
1
2
Chief State Attorney
1
1
Principal State Attorney
1
1
2
Principal State Counsel
2
3
5
State Counsel
2
11
13
Senior State Attorney
1
3
4
Curator of Vacant Estates
1
1
State Attorney
1
5
6
Legal Research Officer
3
3
Legal Assistant (Cadre)
1
1
Chief Legal Assistant
1
1
Principal Legal Assistant
2
2
Senior Legal Assistant
1
1
2
Legal Assistant
1
10
11
Total
17
46
63
Table 4, Source: Ministry of Gender Equality, Child Development and Family Welfare, Statistics Office
In the above data, 26% of the legal professionals working in the government are male. The rest, that is, 74% consists of women. The table has included both temporary employees as well as trainees. The propensity of having more female lawyers in the public sector has been explained by Schultz and Shaw.
Women legal practitioners are said to prefer working in softer areas of the law which can bring a flexible timetable and be adapted to their family responsibilities. Furthermore, they are
"more likely to be encouraged to concentrate on matters of lower visibility, profile and financial rewards, whereas men are more inclined (as well as encouraged) to focus on work which offers prestige and better opportunities to develop legal skills and client contact."
When interviewing a male senior barrister [Appendix C], the message that he conveyed was that according to him: "women succeed rarely in criminal law. They should perhaps choose other fields more appropriate to them." Some female lawyers also share this belief and they may be right or wrong.
Glass Ceilings and Income Differentials
Martin and Jurik (2007, p. 145) exhort that "women face a glass ceiling," or a limit on opportunities to climb beyond certain lower steps on the career ladder. Glass Ceilings, or Sticky Floors, as scholars describe, prevent women from reaching higher echelons in a profession.
This invisibility of women at the top legal positions in Mauritius has been deplored by Mrs. Boollel. In her interview [Appendix E] she said: "it is a pain to find women lawyers who have reached to the top in Mauritius."
"The top" in her opinion, would be
To find women barristers or solicitors at the head of law chambers,
To create precedence in case law,
To make a permanent place for oneself in the profession and,
To earning respect from peers, clients, and superiors.
Moreover, Mrs. Boollel ascertained that gender discrimination, glass ceilings and income differentials are much less in the public sector than in the private practice. According to her, discrimination is "crying out" in the private legal sector.
It is true that income, salaries and wages are determined by the Pay Research Bureau as far as the public sector lawyers are concerned. The same cannot be said of the private sector. The income received by lawyers in the private practice has never been studied through research. Moreover it is quite uncertain and largely kept secret. Thus any assumptions in this research would not be possible.
However examples can be drawn from overseas jurisdictions. In Canada, a study made by Hagan (1990, p. 835 cited in Schultz ans Shaw, 2001, p. 62) attempted to find whether any income differentials existed. The following factors were considered:
Specialisation,
Years of experience,
Law school,
Ethnicity, and
Employment context.
Hagan concluded that the gap in earnings remained even after taking into account all the afore-mentioned factors.
In Australia, the table below will shed light on income differentials in the state of New South Wales:
Gross Income
Male %
Female %
Total %
<=$50,000
29.9
48.1
35.7
$50,001- $75,000
22.8
27.0
24.2
$75,001- $100,000
14.0
10.6
12.0
$100,001- $150,000
14.1
6.6
11.9
$150,000+
13.2
4.0
10.6
Unknown
6.0
3.7
5.6
TOTAL
100.0%
100.0%
100.0%
Table 5, Source: Schultz and Shaw, 2001, p. 96
The table proves that Australian women's earnings are considerably lower on average than those of their male counterparts.
This research would like to point out the incidence of lower earnings for women legal professionals in other countries. Without verifiable data, it would be hard to make suppositions.
However the small amount of women in upper echelons of the Mauritian legal practice is a factor contributing to lower earnings for women.
Family Responsibility
The central quest of this sub-part is to investigate whether a practical framework is available for Mauritian lawyers with family responsibility.
Section 5(4) of the Mauritian SDA 2002 clearly defines "Family Responsibility." It is the responsibility of an employee to care for or support: a dependent child, and members of the family in need of care.
Brockman (1992, cited in Schultz and Shaw, 2002, p. 68) on his research of the Canadian legal establishment censured:
the lack of accommodation for family commitments,
the lack of flexibility to work on a part time basis and
the lack of adequate maternity leave arrangements.
The Canadian Bar Association proclaimed its agreement with Brockman's study. It underlined in a 1993 report that:
"Women lawyers with children are discriminated againstA¢â‚¬A¦ and this results in reduced incomes and fewer opportunities for advancement."
Thanks to the Employment Rights Act of 2008, employed female lawyers benefit from leave with or without pay, depending on whether they have worked for more or less than 12 months respectively.
Self-employed female law practitioners, on the other hand, can normally make this decision singularly; but with the knowledge that cutting back on work can result in reduced income and fewer possibilities for advancement.
On the other side, men are usually dispensed from such concerns. This is mainly because women normally assume primary responsibility for family responsibilities. In the News on Sunday article dated 9th April 2010, findings from the central statistics office were echoed:
"Working women spend more time than working men on household chores. A working woman has around 1 hour free time less than a working man everyday and on Sundays the working woman spends an average of 4 hours 30 minutes on household chores and caring for children and 2 hours at work compared to a man spending 2 hours and 3 hours respectively on these activities."
However, men can also be discriminated against as the law provides for a short period of 5 days of paternity leave. (Section 31 Employment Rights Act 08)
This measure both diminishes the importance of fathers in household care and attempts to shape social behavior in order to attribute child care responsibilities principally to women.
Considering the above, it can be purported that more concrete strategies are needed to accommodate work and family demands for legal professionals.
Sexual Harassment
The legislative framework for Sexual Harassment
Sexual Harassment is defined in our Mauritian law as the act of humiliating, offending or intimidating another person by making-
1- An unwelcome sexual advance, or an unwelcome request for a sexual favour to that other person; or
2- Engaging in any other unwelcome conduct of a sexual nature towards that other person.
(The Sex Discrimination Act 2002, section 20)
Further, the Criminal Code (Amendment) Act 1998 added a new section 254(1) to the main Criminal Code of 1838 which provides that any person deemed guilty of sexual harassment is liable to imprisonment "for a term not exceeding 2 years and to a fine not exceeding 100,000 rupees."
Victims of sexual harassment can therefore:
Lodge a case in court and sue on the grounds of breach of section 254(1), or
Reported the case to the Sexual Discrimination Division [SDD] of the National Human Rights Commission. [NHRC]
The SDD employs mediation as a means to settle discrimination and harassment complaints. On August 2006, CEDAW showed its disapproval of the current mediation system:
"The committee is particularly concerned about the weak enforcement of labour laws by the Sex Discrimination Division of the Human Rights Commission, which apparently opts for mediation rather than the referral of cases of non-compliance with the Sex Discrimination Act to the office of the Director of Public Prosecutions."
Mediation is indeed useful when, for example, the SDD persuades an employer to revise his attitudes towards pregnant employees and not terminate their employment. However for cases where the sexual offenders have caused harm to the victim, soft methods such as mediation can hardly be entertained.
Sexual Harassment in the legal environment
Sexual harassment has been documented as a significant obstacle to women's abilities to develop their careers in the practice of law. In interviews conducted in 1994-4, Brockman (cited in Schultz and Shaw p. 67) found that lawyers described the effects of sexual harassment to include" depression, embarrassment, anger, irritation and distress." To counter these negative effects, Canadian legislation created a law precisely for the legal practice, describing sexual harassment as a "professional misconduct."
This research investigated whether cases of sexual harassment have ever been lodged by Mauritian lawyers. It has been observed that the SDD received complaints from several occupations, but none are derived from the legal profession.
This occurrence is worth studying as several factors may influence the lack of complaints. The Australian Human Rights Commission identified these factors in their key findings. In 2008, only 16% of those who have been sexually harassed in the last five years in the workplace formally reported or made a complaint, compared to 32% in 2003.
For those who did not make a complaint in the 2008 national telephone survey:
43% didn't think it was serious enough
15% were fearful of a negative impact on themselves
21% had a lack of faith in the complaint process
29% took care of the problem themselves
It can be surmised that the above four factors greatly influence lawyers in their choice not to report sexual harassment cases in Mauritius.
Senior Counsel Nominations
In the 2008 report of the NHRC, the SDD deplored the fact that: "No woman has yet been made Senior Counsel." This statement was enhanced when two years later when, out of the sixteen senior counsels nominated, none were of the female gender. This research will focus on female barristers as female solicitors have been acknowledged with the title of Senior Attorney.
In her letter, Mrs Pramila Patten, a leading barrister in Mauritius gave an illuminating description of the "Senior Counsel" title:
"The appointment of Senior Counsel provides a clear and public identification of those barristers whose skills, legal experience and personal qualities mark them out as being the best within the legal profession. It is recognition of professional eminence, with those achieving the rank being identified by their peers as leaders in the field of law they practice. For the public, it is a mark of excellence and of a continuing expectation that an individual will consistently perform to the highest standards."
In the newspaper "NewsNow", an article appeared on the 16th of July 2010, explaining the appointment process of Senior Counsels: "Generally, for a legal counsel to receive the accolade of SC, he or she must be recommended by the judges, the Queen's Counsels (QC), the SCs and the Chief Justice who will then
forward the report to the President of the Republic. It is then the prerogative of the president to approve the recommendations."
The amount of women senior counsels in Mauritius being zero, it is now of utmost importance to inspect whether the same happens in the UK for Queen's Counsel nominations.
The table below depicts the number of women nominated as Queens Counsel (QCs) in Britain:
Year
Women QCs
Men QCs
Total
1991
6
67
73
1992
7
62
69
1993
6
64
70
1994
9
68
77
1995
8
63
71
1996
4
62
66
1997
5
63
68
1998
10
50
60
1999
9
60
69
Table 6, Source: Schultz and Shaw, 2003, p. 154
It is often suggested that the low number of women QCs results from the fact that women have only been admitted to the Bar only recently. In Mauritius also, it is judicious to note that normally, barristers who can claim a right to the SC title have up to 10 years or 20 years standing at the Bar in Mauritius. Thus considering the small amount of women who have been nominated [ NB: Refer to Table 2] it is but just not to find any on the list of Senior Counsels.
This supposition however cannot be endorsed by factual evidence. Indeed around 10 to 15 female barristers have around 10 to 20 years standing at the bar of Mauritius. Therefore, the amount of experience criterion can be questioned. In order to avoid considering criteria which are not official, it is crucial now to consider the guidelines published by the Chief Justice. They are:
Standing in the profession, maturity, professionalism in approach;
Credibility, integrity and objectivity in the practice of the profession; Contribution to the development of the law and the legal profession;
Known empathy and assisting in inculcating in the younger members the time-honoured traditions of the noble professions;
Noted interest in and preoccupation with upholding the ethics of respective professions;
Any national or international contribution or exposure relevant to the discipline of the law.
Mrs Urmila Boolllel, in the interview she offered to this research, stressed the fact that she personally knows many female lawyers who fit the criteria cited above. Mrs Pramila Patten, in her open letter to the Chief Justice, mentioned the opacity of the appointment process and derived examples from the system employed in the United Kingdom.
"In UK, the reform of the appointment process was partly inspired by an acknowledgement that women lawyers can be victims of either direct or indirect discrimination such as glass ceiling, confinement to certain areas of law, in turn resulting in the low number of women QCs. In Mauritius, the Sex Discrimination Act 2002A¢â‚¬A¦ as well as the more recently adopted Equal Opportunities Act are not enough to remedy the culture of discrimination experienced by women barristers."
It might therefore be judicious to consider the appointment process in Britain so as to bring more diversity to those who are officially proclaimed as a credit to the legal profession. This will be further examined in the next chapter entitled "Recommendation
Recommendations
The creation of a draft equality code to be circulated amongst all legal practitioners.
The implementation of professional sanctions for gender discrimination and sexual harassment in court or outside.
Efforts must be made to educate the public on the negative impacts of gender stereotypes. In this optic, the Ministry of Education may attempt to remove pictures, examples and illustrations of a stereotypical nature from pre-primary, primary and secondary school syllabus.
The creation of a Gender Balance goal in nomination of lawyers by the Council of Legal Education.
The setting up of an independent body of selection for Senior Counsels and the appointment of meritorious women senior counsels.
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Position of Rape Laws in India
The Indian Penal Code, 1860 (hereinafter IPC), drafted by T. B. McCauley and his colleague law commissioners, reflected the then prevailing sexual norms in India, criminalized 'rape' - a coercive non-consensual (as well as consensual in a set of specified circumstances) sexual intercourse with a woman. S.375 [1] of the Indian Penal Code describes six circumstances in which the offence of rape is said to be committed. In these, the first and the second clauses are representative of the elements required to constitute the offence of rape and the rest characterizes different situations of consent and its absence in various circumstances incomprehensible or given based on a misconception of a fact by a woman. It is often stated that a woman who is raped undergoes two crises-the rape and the subsequent trial. While the first seriously wounds her dignity, curbs her individual, destroys her sense of security and may often ruin her physically, the second is no less potent of mischief, inasmuch as it not only forces her to re-live through the traumatic experience, but also does so in the glare of publicity in a totally alien atmosphere, with the whole apparatus and paraphernalia of the criminal justice system focused upon her. The main ingredients of rape are namely against will of the woman, without her consent, Consent procured by putting the woman under fear of death or hurt is no consent in law, Consent accorded under a misconception that the person is husband of the woman is not a valid consent, consent procured of a woman of unsound mind or under the influence of intoxication, etc. Most cases of prosecution fail because the victim is not able to prove that she did not consent to the act. The corollary that the judiciary seems to have adopted is that if the woman has failed to 'resist' at the time of act', she is deemed to have consented to the sexual intercourse. The judiciary, again surprisingly has held that lack of any injuries on the body or the private parts is a strong indicator of consent on the part of the woman. [7] Tukaram v. State of Maharashtra [8] has carried the debate on the definition of consent further. This famous (or rather infamous!) case, known by the name of "mathura case" has peculiar facts and different analysis of the same by the High Court on one side and Trial Court and Supreme Court on the other. This case was sought to be covered by the prosecution under cl.3 of the Indian Penal Code. It was alleged that that the victim was made to give consent by putting her in fear of death or hurt. The Sessions Court Judge disbelieved the prosecution story and held that corroborative circumstances lead to the conclusion that while Mathura was there in the Police Station she had sexual intercourse and that in all probability it was with Ganpat. Fearing the wrath of her relatives, the Judge held that she did not admit that she had surrendered her body to the constable. On appeal, the High Court said- "Mere passive or helpless surrender of the body and its resignation to the other's lust induced by threats or fear cannot be equated with the desire or will, nor can it furnish an answer by the mere fact that sexual act was not in opposition to such desire" Disagreeing with the High Court, the Supreme Court said that unless fear was shown to be that of death or hurt, it would not vitiate consent. The Supreme Court said - "Further, for circumstantial evidence to be used in order to prove an ingredient of an offence, it was to be such that it leads to no reasonable inference other than that of guilt. We have already pointed out that the fear, which clause thirdly of section 375 speaks of, is negativated by the circumstance that the girl is said to have been taken away by Ganpat right away from amongst her near and dear ones at a point of time when they were all leaving the police station together crossing the entrance gate to emerge out of it.." The Court observed that Mathura was subjected to no fear of death or hurt that may have led her to consent to the act and the absence of any injuries in any part of her body indicates that the affair on the whole, was a peaceful one and the story put up by her is totally false. It was observed further by Court that her relatives had been close by and Mathura could have raised resisted and appealed to her brother, had she had no intentions of satisfying the constable's lust. Her meek conduct, her following the constable and allowing him to have his way with her showed that she had consented.
Resistance and non-consent
Resistance inasmuch as is a definite indicator of consent should not be laid down as the only means of expressing non-consent. [9] There have been a number of acquittals merely because the judge found no evidence of 'resistance' from the victim. Adding insult to the injury, the inference that non-resistance to the sexual activity is an 'implicit consent' on the part of the victim to the sexual activity only draws out the patriarchal nature of the judiciary and overwhelming acceptance of traditional notions and myths of female sexuality existing in the society in modern times. [10] The presumption that active resistance is the only criterion for proving non-consent is problematic at its best and illogical at its worst since such a view confers on the prosecutrix, the burden of proving her non consent and her consequent resistance to sexual intercourse. [11] This is akin to treating the prosecutorix to that of an accomplice, and a severe insult on her dignity and being. Injuries on the body of the prosecutorix are the usual evidence that is looked for to prove resistance. Hence, where a person is charged with the offence of having committed rape, the question for determination is whether the woman was a consenting party or not. The first and foremost circumstance that is looked for in cases of this kind is the evidence of resistance which is expected from a woman unwilling to yield to sexual intercourse forced upon her. [12] In case of Valliappa Harijan v. State of Goa [13] , the prosecutorix narrated thus "I was forcibly thrown down and he (accused) made me lie on the towel. He then sat on my thighs and tied both my hands on either side and raped me". The courts response to this statement was that "One cannot understand how this action of the accused could be humanly possible particularly when a woman exerts resistance. Any woman of character and modesty would have put some amount of resistance when she is being raped. The doctor stated that the there were no injuries on the private part of the prosecutorix. It can be inferred that sexual intercourse, if at all has occurred, was only with the consent of the prosecutorix". The Apex Court has also held the opposite i.e the absence of any injury on the body negates the claim of resistance. [14] The courts have failed to take notice of the situation of a rape victim that she may not be able to muster enough strength to repel the act. She can be in a sate of shock and fear that could inhibit her ability to resist or react violently to the act. A woman considering her stature in the society is generally not expected to assault a man. Therefore, there may not be any injury in her body. Failure of the judiciary to recognize this has resulted in resistance being an essential ingredient in determining lack of consent and where there is no injury on the body, it is deemed that the complainant had consented to the act. [15]
Rape and Law of Evidence
Rape remains one of the most misunderstood and underreported crimes. The victims are traumatized and there also exists a fear or dislike of "going to the police". From official statistics, it is seen that there is a sharp increase in the incidence of this crime in the country. A survey on rape cases shows that rape victims mostly come from the lower rungs of the society. Rape has a devastating effect on the survivors and aftershocks include depression, fear, guilt, diminished sexual interest etc. Because of the stigma attached to rape, the victim faces social ostracism.
Burden of proof of innocence on the accused
In a criminal case the charge against the accused must be proved beyond reasonable doubt. [16] The presumption is that the burden of proving everything necessary to bring home the guilt to the accused is on the prosecution. One of the most important elements of the offence of rape under section 375, IPC is the lack of consent of the victim. The prosecution must prove the non-consent beyond reasonable doubt, as per the canons of criminal law. It is of common knowledge that a large number of prosecutions for the offence of rape fail for want of such a proof. [17] It is to remove this infirmity and other procedural difficulties in prosecution of a person charged with rape that the Criminal Law (Amendment) Act, 1983 (43 of 1983) section 6 has added section, 114A in the Evidence Act, 1972 with effect from December 25, 1983. [18] A careful perusal of the section 114A of the Evidence Act, 1872 would reveal that the legislature has made a fine distinction between: [19] Rape falling within sub-section (1) to section 376, and sub-section (2) clause (f), and Rape falling within clauses (a), (b), (c), (d), (e) and (g) of sub-section (2) to section 376 IPC. The change effects a marked departure from the classic principle of criminal jurisprudence, that a person is deemed innocent until the contrary is proved by the prosecution. As a result of the change, the charge that the alleged act of sexual intercourse was without or against the consent of the prosecutrix will be presumed ipso facto, unless the contrary is proved. That is to say, section 114A of the Evidence Act shifts the burden of proof on the accused to prove his innocence. Whether or not there is justification for engrafting the mandatory presumption in the above Act there is little warrant for it in a rape case. It is remarked that such a presumption would place a heavy burden on the alleged offender of rape while providing a weapon to the prosecution for blackmailing.
Conclusion
It is elementary that the criminal law is the chief legal instrument for preventing anti-social acts of a serious character. This object is sought to be achieved, in the first instance, by the legislative command embodying that aspect of punishment, which is called "general deterrence". The fact that the particular crime has been committed shows that the object of deterrence has failed to prevent the particular criminal act. The debate on punishment for rape has progressed in two diagonally opposite directions. While one segment of the judiciary has consistently awarded less than the minimum mandatory punishment, another section of judges and opinion makers have been advocating for barbaric punishments of the medieval era to deal with the increase in reported cases of rapes in country. But at the other level, rape victims continue to be looked upon with suspicion and the issue of rape is trivialized. According to the National Crime Records Bureau, of the 284 cases of rape reported in Delhi in 1992, there were only 3 convictions by 1995. Similarly during 2001, of the 11,735 rape trials completed by courts all over the country, as many as 8,669 (76 per cent) failed and were acquittals or discharged [20] . It is clear that feminist sensibility is not evenly spread across the judicial checkerboard. Almost always the trial courts are deeply imbued with the mission of penalty in rape cases; almost always the High Courts mitigate (a look at the case recited by the Supreme Court in this very case, confirms the tendency of the trial courts to take the offence seriously and of the High Courts to reverse well-grounded convictions). And the Supreme Court does, on the whole, though not with an integral consistency speak rigorously on behalf of the violated women. The patriarchal nature of the judiciary and the sensitization of the same are the needs of the hour. It is essential that the judiciary, which has pursued doggedly the quest to preserve the constitution, should also wake up to the reality in the Indian milieu, where the constitutional guarantees and imperatives granted to the woman are being grossly violated.
"Law should not sit limply, while those who defy it go free and those who seek its protection loses hope".
(Jennison v. Baker (1972) 1 All ER 997). [21]
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Position Of Rape Laws In India. (2017, Jun 26).
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EU Law on Air Travel
- Case C-12/11 Denise McDonagh v Ryanair [2013] CJEU
- Case C-544/10 Deutsches Weintor [2012] ECR
- Case C- 275/06 Promusicae [2008] ECR -271
- Cases C-402/07 and C-432/07 Sturgeon and Others [2009] ECR I-10923
- Case C-294/10 Eglitis and Ratnieks [2011] ECR
- Case C-344/04 IATA and ELFAA [2010] ECR
- Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights (OJ 2004 L 46, p. 1).
- Fairhurst.J, Law of the European Union (9th Edn, Pearson 2013)
- Blondi.A, Eeckhout.P, Ripley.S, EU LAW AFTER LISBON (Oxford 2012)
- Foster.N, Blackstone's EU Treaties & Legislation (24th Edn, Oxford 2013-2014)
- Fairhurst.J, Sources of EU Law (including general principles of law and fundamental rights), Law of the European Union (9th Edn, Pearson 2013) pp.70
- Blondi.A, Eeckhout.P, Ripley.S, The Charter of Fundamental Right by David Anderson and Cian C Murphy(Oxford 2012) pp.159
- Foster.N, Charter of Fundamental Right of the European Union Blackstone's EU Treaties & Legislation (24th Edn, Oxford 2013-2014) pp.155
- Geoff Meade, Ryanair loses Icelandic volcano costs legal battle (2012) 1(1-2) The independent <https://www.independent.co.uk/news/business/news/ryanair-loses-icelandic-volcano-costs-legal-battle-7581400.html# > (Accessed on 22 December 2013)
- PA/Huffington Post UK, Ryanair Loses Legal Battle To Avoid Paying 'Passenger Care' To Those Delayed By 2010 Volcano (2012) The Huffington Post <https://www.huffingtonpost.co.uk/2012/03/22/ryanair-losses-legal-battle-volcano-delayed-passengers_n_1372608.html> (Accessed on 20 December 2013)
- Owen Bowcott, Ryanair facing payout over passengers stranded by volcanic ash cloud (2012) theguardian
- Dr Jeremias Prassl, Case C-12/11 Denise McDonagh v Ryanair: Volcanic ash and super extraordinary circumstances (eutopia law, 4 February 2013) <https://eutopialaw.com/2013/02/04/case-c-1211-denise-mcdonagh-v-ryanair-volcanic-ash-and-super-extraordinary-circumstances/ > ( Accessed on 10 January2014)
- Jack Harding, ECJ clarifies the actionability of the Denied Boarding Regulations, (piBLAWG, 31 January 2013)< https://www.piblawg.co.uk/post/2013/01/31/ECJ-clarifies-the-actionability-of-the-Denied-Boarding-Regulations.aspx > ( Accessed on 10 January 2014)
- Stephanie Bodoni, Ryanair Ordered to Reimburse Travelers in Volcano Delay, (Bloomerg News, 31 January 2013)< https://www.bloomberg.com/news/2013-01-31/ryanair-must-pay-traveler-costs-in-volcano-delay-court-says-1-.html > (Accessed on 10 January 2014)
- Rosalind English, Ryanair's right under EU Charter to profit from its customers, (UK Human Rights Blog, 1 February 2013) <https://ukhumanrightsblog.com/2013/02/01/ryanairs-right-under-eu-charter-to-profit-from-its-customers/ > ( Accessed 12 January 2014)
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EU Law on Air travel. (2017, Jun 26).
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