Month: June 2017
Are the Seven P’s Really Mutually Dependent
Are The Seven P's Really Mutually Dependent?
The marketing mix is a very simple concept, widely accepted as being of high utility in the management of the marketing function. Critically discuss the interrelationships between the seven P s of the services marketing mix. Are the seven P s really mutually dependent as some observers would maintain, or can each of the P s be managed independently of the others- Use relevant examples to illustrate your points of views where necessary.Table of Contents
Title Page 1 Table of Contents 2 Introduction 3 Characteristics of Services 3 Conclusion 4 References 5Introduction
The seven Ps of the services marketing mix were developed from the four Ps, which were introduced by McCarthy (1960). These original four Ps were the Product, Price, Promotion and Place of a good. The main reason that these aspects were chosen to be the main part of the marketing mix is that they are specific factors over which the marketing manager should be able to exercise a degree of control, depending on the nature of their firm's resources. For example, the marketing manager is able decide what type of products a firm will develop to best fit the market, depending on the firm having the necessary technology, and also the places it can be sold within the firm's wider distribution network. However, when considering services, it is clear that marketing managers have control of more factors, leading to a debate around the use of other factors in the marketing mix. Ultimately, this led to the creation of the services marketing mix by Booms and Bitner (1981), which includes People, Processes and Physical Evidence as critical aspects of the mix. This seven Ps framework has been used to drive and analyse marketing activities in a wide range of markets (Kotler and Keller, 2005). However, the extent to which this framework can be used to create a specific marketing mix for a specific organisation is strongly dependent on the extent to which each of the seven Ps can be manipulated and controlled. As such, marketing managers will need to be aware of any interrelationships between the different Ps when attempting to create their own marketing mix, else these interrelationships can affect the desired balance of the different Ps. This will also be strongly affected by the extent to which the seven Ps can be managed independently of each other. As such, this work will examine the interrelationships between the Ps and the extent to which they can be managed independently to determine how this will affect the creation of the marketing mix. Interrelationships between the seven Ps When considering the seven Ps themselves, the product is mainly seen as the first, and arguably the most important. This is because the product represents whatever the company sells to its customers. As a result, it could potentially be a tangible product like a magazine; a service like a flight; or even information, such as a training course. As such, the product will potentially have interrelationships with all other aspects of the seven Ps. The quality of the product will help determine its cost to produce, and hence its price. It will also affect the market segments to which is can appeal, hence influencing its place and the promotion necessary to sell it. Finally, if it is a high quality service, it will need to be supported by well trained people, with highly consistent and high quality processes to maintain the quality of the product. As such, the product can potentially interact with all other aspects of the marketing mix, particularly in services where customer perceptions of the product will depend on the supporting aspects of the mix (Aaker, 2007). Similarly, the price of a product will tend to have significant interrelations with a number of the other aspects of the mix. This is because the price is not just the headline price for a given service, but rather it encompasses all the decisions the company needs to make around the pricing strategy and any discounts the firm may offer. This is strongly related to the promotions the firm will use, as a skimming pricing strategy will require a significantly different style of promotion when compared to a penetration strategy. The price will also be affected by the costs associated with the product, hence price itself will be quite strongly related to the product characteristics, the people employed to market it and their salaries, and the places the service is provided and the costs associated with these places (Nagle and Holden, 2001). Similarly, the places in which a service is offered will be quite significantly related to the price and promotion, as the distribution channels through which a service is offered will each have their own costs and accepted advertising methods. For example, if a service is being offered in a major store, it will have quite high costs, and the promotions will be heavily reliant on attracting people to the store, and appealing to customers who are walking by the display where the service is offered. On the other hand, if the product is offered over the internet it will need to have a lower price, as internet shoppers have been conditioned to expect lower prices from online offerings. In addition, the promotion will need to focus around creating the buying decision in potential customers, as the ubiquity of internet advertising means that many consumers are strongly turned off by attention grabbing adverts on the internet (Chaffey, 2006). The place will also be linked to the process used to provide the service. For example, a restaurant in a busy town centre will need much more efficient and less personalised processes to keep customers from having to wait when compared to one in a quite village, where customers may expect more personalised service. As discussed above, promotion is strongly linked to product, price and place. This is because the promotion is one of the broadest aspects of the marketing mix, covering all of marketing communications, including the advertising and publicity around the service. Therefore, different aspects of the promotion will often be strongly dependent on the product, the price charged, the place, the characteristics of the people who provide it, and the processes involved in the service. In addition, the promotion and the physical evidence will be strongly related, as the effectiveness of any promotion will tend to rely on the physical evidence on which it is based (Bitner, 1990). Finally, the three aspects of the service marketing mix introduced by Booms and Bitner (1981) tend to be somewhat less related to the other four, as they are amendments to the original model. In particular, the people who support the marketing mix can arguably be kept almost completely unrelated from any other aspect of the mix. This is because they are the one aspect of the marketing mix which is not directly always related to the service itself. For example, when a person is booking and taking a flight, they may only have very limited contact with people during the booking process and the flight, particularly if it is a low cost airline (Creaton, 2007). As such, people are only strongly related to other aspects of the marketing mix in certain situations. However, even in the low cost airline example, the absence of people is actually quite strongly related to people's perceptions of the product and the price, hence there is still a relationship. In addition, whilst the process by which customers are served tends to be specifically related to the service provided, it does not always relate to the other aspects of the marketing mix. This is because the main requirement of the process is that it is consistent and does not vary amongst customers; otherwise the service itself will vary amongst customers. As such, it is perfectly acceptable for a high class sushi restaurant to use the same mass production techniques as McDonald's, or an expensive salon to use the same process for cutting hair as a standard hairdresser, provided the process is consistent across all customers. Finally, physical evidence is not strongly related to most of the other aspects, as it simply relates to the need to demonstrate the promotional claims made around the service. As such, it does not strongly relate to the product, price or other aspects, rather it only generally relates to the promotions offered (Booms and Bitner, 1981).Characteristics of Services
The above section demonstrates the significant potential for interrelationships amongst the seven Ps of the marketing mix. However, in order to determine whether any of them can actually be made completely independent from the others in the case of services marketing, it is necessary to consider the characteristics of services. These are the lack of ownership, intangibility, inseparability, perishibility and inconsistency of services, and are the factors that any business needs to consider when marketing services (Gronroos, 1978). The lack of ownership occurs because a service is delivered at a certain point in time, and hence can never be owned or transferred to the purchaser. For example, a restaurant does not just provide food, it provides it prepared to certain standards, as well as served in a certain manner. As such, in order to provide a high quality meal, the restaurant needs to ensure that the food is cooked and served in an expected manner. This implies significant dependencies between the people, product and processes that operate in the restaurant industry. The second characteristic is intangibility, which implies that services cannot be physically touched, or quantified. For example, when using an airline, a passenger is simply transported from one place, in a certain physical condition, to another place, with a different physical condition. The critical requirements for the passenger is thus that they arrive in a timely manner, and in a physical condition which is not significantly worse than when they left, i.e. they have not been in uncomfortable seats and their luggage hasn't been lost. The main requirement for this is that the airline must offer a reasonable form of physical evidence around the quality of the service they provide, and this evidence must be believable. This physical evidence can be in almost any form, including photos, statistics around lateness and lost luggage, critical reviews or consumer testimonials (Bitner, 1990). As a result, the physical evidence provided can arguably be said to be independent from much of the rest of the marketing mix, with only the promotion depending on the level of evidence available to support any claims it makes. Inseparability refers to the fact that the service must be provided by a business at the point of use; it cannot be packaged up and sold in a remote location. For example, an accountant must look at the business accounts and interact with the director and staff in order to produce accounts. This implies that there must be a strong relationship between the people, place, process and product in order to effectively deliver the service. If the accountants are working at a remote location away from their client, their process will be different and so will the final product. On the contrary, with the accountants working in the same location as their client, they can follow a different process due to the availability of the client for meetings etc. Services are perishable because they only last for the effective time that the service is being provided, unlike physical goods which can often be stored and reused. For example, a haircut will only last until the hairdresser stops cutting, after this point the customer's hair will keep growing and cannot be altered. As such, it is important that a service is provided correctly the first time and according to the customer's requirements to avoid unhappy customers and poor service provision. The main implication of this is that, again, there is a strong relationship between the process and the end product, as well as the people who provide it and the promotion. This is because, in order for the process to be consistent enough to avoid any divergence from the customer's requirements, the people have to be well trained; the product well defined; and the promotion has to make clear the nature of the service to avoid confusion from the customer. Finally, the inconsistency of services is a consequence of the different people who produce and consume services. As a result, the same service provided at different times to different will tend to be different. For example, the same burger produced in the same restaurant will tend to be different for different customers depending on the temperature of the over, the requirements of the customer and the consistency of the staff. Again, this implies a strong interrelationship between product, people and process, to ensure that the service provided is as consistent as possible for all consumers and avoid failing to meet customer expectations.Conclusion
It is clear from the literature and the examples discussed above that there are significant interrelationships between the seven Ps of the services marketing mix, particularly between the product, the people and the process used to produce the service. In addition, the price of the service will tend to be strongly dependent on its cost to produce, and hence on the people, the process and the place in which it is delivered. Also, the promotion used for any service will need to be based on factors such as the product, price and the availability of physical evidence. This tends to indicate that the seven Ps really are mutually dependent, and most of them cannot be managed independently of the others without damaging the potency and effectiveness of the marketing mix. For example, a business could change the process it uses to produce a service, but without improving the training of its people and promoting this change it would likely either reduce the quality of the service or cause some inconsistency with customer expectations. As such, it appears that only the physical evidence used to demonstrate the product to the customer can be managed independently, as it can take a variety of forms each of which can be persuasive.References
1. Aaker, D. A. (2007) Strategic Market Management. Wiley. 2. Bitner, M. J. (1990) Evaluating Service Encounters: The Effects of Physical Surroundings and Employee Responses. The Journal of Marketing; Vol. 54, Issue 2, p. 69-82. 3. Booms, B. and Bitner, J. (1981) Marketing strategies and organizational structures for service firms. In Donnelly, J. and George, W. Marketing of services. American Marketing Association. 4. Chaffey, D. (2006) Internet Marketing: Strategy, Implementation and Practice: 3rd Edition. Prentice Hall. 5. Creaton, S. (2007) Ryanair: The Full Story of the Controversial Low-cost Airline. Aurum Press. 6. Gronroos, C. (1978) A Service-Orientated Approach to Marketing of Services. European Journal of Marketing; Vol. 12, Issue 8, p. 588. 7. Kotler, P. and Keller, K. L. (2006) Marketing Management: 12th Edition. Financial Times / Prentice Hall. 8. Kumar, N. (2004) Marketing As Strategy: Understanding the CEO's Agenda for Driving Growth and Innovation. Harvard Business Press. 9. McCarthy E. J. (1960) Basic Marketing: A Managerial Approach. Irwin. 10. Nagle, T. and Holden, R. (2001) The Strategy and Tactics of Pricing: A Guide to Profitable Decision Making: 3rd Edition. Prentice Hall.Cite this page
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The Role and Effect of International Business Strategies
The survival and progression of businesses in the 21st century is highly dependent on the ability of firms to expand beyond their national borders, taking into account the cost effectiveness of expansion and the complexity and risks associated with the company's chosen international business strategy (Peng, Wang, & Jiang, 2008). The resources and objectives of a firm, as well as the demand for their product outside their national borders are important in taking the decision to globalise a company's products and/or services (Miller, 1992). Although three strategies are more common in the management literature, namely multi domestic, global and transnational approaches, the fourth strategy available to firms, according to Barlett and Ghoshal (1989) is the international approach to global expansion. This essay will analyse the two approaches that differ in local responsiveness and cost pressure for the business, with the international approach as the least responsive and expensive for the company and the transnational approach as the most costly and locally focused from the four options available to companies. To start with, local responsiveness of multinational corporations is often a matter of mutual expectations of the company expanding into a region and the local customers' demands and needs (Gomez-Mejia & Palich, 1997).
For instance, food and beverage companies from the Western world expanding into Asian countries need to integrate certain products in their range that suit the demands of local consumers (Watson, 2006). As such, the role of the transnational approach is to enable companies from a culturally distinct country to penetrate a new market successfully (London & Hart, 2004). There are both positive and negative effects of the transnational approach. Developing a business model and manufacturing strategies is a costly process for any company and changing this for the purpose of integrating new products specific to a region is an additional financial pressure for multinational companies (Zaheer, 1995). Although the negative impact of local adaptation may deter some firms from adopting this strategy, the success of companies like McDonalds which take this approach proves that the additional costs can increase the chances of global success and the return on investment (ROI) for the company (Luo, 2001). The core advantage of the transnational approach is the potential of multinational firms to compete with local counterparts in a more effective manner through offering local products alongside their already established reputation (Dawar & Frost, 1999). High levels of local responsiveness also ensures that the reputation in the new region contributes to the ethical image and the overall CSR of a multinational company (Husted & Allen, 2006).
Large corporations are often accused of unethical conduct due to the cost competitiveness with the local providers, as international firms often perfect their manufacturing techniques in order to reduce all the time and resource waste, therefore allowing them to compete with local firms (Meyer, 2004). An increasing number of countries have launched campaigns which promote local companies over the international competitors claiming that regional businesses understand the needs and desires of their customer base more, unlike the multinational firms (Kapferer, 2002). This underlines the importance of local responsiveness, as the resistance of local customers decreases when a multinational demonstrates a desire to first understand the locals' behaviour and adjust their strategy accordingly when entering a new region (Prahalad & Doz, 1999). In spite of the important role and effect of the transnational approach, there are multiple companies which have succeeded despite their disregard of the local customers' specific needs and desires (Samiee & Roth, 1992).
These companies opted for internationalisation as a strategy for global expansion, relying on the recognisability of their brand name, logo, specific products, packaging, etc. A successful company which took this approach in their international expansion is Starbucks, who launched their very specific coffee shops across the world aiming to take over the market share of local coffee shops through offering a very specific experience, rather than focusing exclusively on the beverages offered (Harrison, 2005). Although the local Starbucks coffee shops across the world offer some specific products, such as a variety of green tea products in Asian countries, the core product sold by Starbucks is the experience that customers enjoy alongside their chosen beverage (Gaudio, 2003). Whilst it was difficult at start for Starbucks to maintain a standardised approach to the design of their customer experience, taking over local coffee shop chains and their clientele has proven to be a successful tactic (Loeb, 2013).
This international approach therefore reduces the initial cost pressure through taking over a large share of the customers of former cafes in the local region and the premises which were built and used for an identical purpose (Barkema & Vermeulen, 1998). Rebranding the coffee shops in order to maintain a standard image is less expensive than building coffee shops from scratch, in addition to the existing customer base that the American giant is able to take over (Gaviria, 2012). In consequence, the role of the international approach as an expansion tactic is to allow companies to expand quickly, cost effectively and effortlessly (Contractor, Kumar, & Kundu, 2007).
The effect of the tactic is a positive one from a financial viewpoint and, more often than not, a negative one from a reputation point of view, as citizens perceive this approach to disregard any specific cultural aspect of the region that multinationals penetrate. It is, therefore, obvious that each of these two approaches have their advantages and disadvantages for the company aiming to explore a new region, the local competition and the customer base in the country. However, companies must take into account the impact of the global mobility of the workforce and the extent to which social media influences the demands of customers and the reputation of a multinational firm (Okazaki & Taylor, 2013). The role and effect of both international business strategies are influenced by these elements, as consistency in a multinational's approach is even more important in the light of individuals travelling on a regular basis for business and work purposes and the ability of people all over the world to share information via social media (Jin, Park, & Kim, 2008). In other words, a company must set their priorities from the onset of internationalisation in order to maximise their earning potential and the international reputation through their chosen tactic for global reach (Vrontis, Thrassou, & Lamprianou, 2009). As a result of this, both the role and the effect of the international business strategies are enhanced in the long run, as companies are less able to change their view on the approach to conquering new regions. Well established Western companies must ponder over the decision of investing capital in the transnational approach, as their lack of success of competing against local companies could mean that their financial loss may never be recuperated (Prahalad & Doz, 1999).
On the other hand, without an adaptation to the locals' needs and desires an international company's ability to succeed may be compromised, but the financial impact of this failure will not be as great as that supported by companies who invest capital in adaptation (Solberg, 2002). Companies must take into account all of the influencing factors, particularly those that stem from cultural elements of the destination country, when opting for an international business strategy (Drogendijk & Slangen, 2006). The gains of the company must be maximised through international expansion and the best solution is often dependent on the capital that the multinational is willing to invest in the their global strategy, as well as the market positioning of local competitors and the resistance of local consumers to new and international products or services.
The emergence of social media also offers multinational companies an advantage, as the contact between individuals from distinct areas makes it possible for demand in one country for a particular brand to grow through online advertising of particular products (Kaplan & Haenlein, 2010). The international tactic is therefore made easy by the ability to promote a company through social media and export products, without any concern for local adaptation, through online shopping. On the other hand, the success of companies with brick and mortar shops in new region is significantly higher than that of companies that rely exclusively on online retail (Steinfield, Adelaar, & Liu, 2005). In addition to this, not all regions have the same level of trust towards online shopping, as the security concerns in some regions are significantly higher, particularly when no efforts of local adaptation are made by the international firm (Bart, Shankar, Sultan, & Urban, 2005).
In conclusion, the role and effect of international business strategies are crucial in the success of expanding a business beyond its national borders, but the potential of these can only be maximised when taking into account other elements that contribute to the internationalisation, such as local culture, the demands, needs and wants of customer base targeted, etc. The impact of the chosen strategy must be thoroughly analysed by a firm, as international strategies require consistency over time in the approach taken. In consequence, the advantages and disadvantages presented in this essay must be weighed against the multinational's company mission and their future plans in order to opt for one of the two extremes, transnational or internationalisation approach, or the two other options in between, global or multinational approach.
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Example Linguistics Essay
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The Sociolinguistics of British Sign Language: Toward One Languageor a Variety of Languages?
- Recognition of BSL
- BSL variation
- Sociolinguistics in the BSL/language continuum
- Status in BSL: Political Correctness
- Other Variations in BSL
- Ethnic Variations
- Religious Variations
- Gender/Sexual Variations
- Situational Variations
- Language Planning: Status Planning and Corpus Planning
- Other Issues in Standardisation
The Sociolinguistics of British Sign Language: Toward One Languageor a Variety of Languages?
What is the future of British Sign Language? With thegrowing number of changes in the language, dialect and idiolect, is it headedtoward a single standardised version? Or will it end up as a collection ofsub-languages collectively known as 'British Sign Language'? In Margaret Deuchar's landmark book on British SignLanguage, Michael Stubbs wrote in 1984 that 'BSL provides a striking example ofa topic about which clear and straightforward information is badly needed byeducators and policy-makers, since there is widespread ignorance and confusionabout what deaf signing is' (1984, ix). This remains true today, over twodecades later.Recognition of BSL
British Sign Language was formally recognized as alanguage in the UK on March 18, 1993. However, it does not have any legalprotection. This basically means that deaf people do not share the same rightsas hearing people when it comes to access to information regarding education,health and employment. As a language, BSL has much in common with otherlanguages. Still, there is much about BSL that is unique, since it also has manyinnate differences from spoken languages. BSL is the primary language of the deafcommunity in Britain, a community that lives and thrives in a larger society ofhearing people, many of whom remain largely unaware of many of the issues in deafcultureBSL variation
According to Ronald Wardhaugh, 'a recognition ofvariation implies that we must recognize that a language is not just some kindof abstract object of study' (Wardhaugh 1998, 5). BSL is no different from anyother language in this aspect. There will always be a wide degree of variationin the speech of one individual when compared with the speech of anotherindividual. In addition, there will be variations within that variation. AsWardhaugh points out, no individual can act freely and 'do just exactly what heor she pleases so far as language is concerned' (Wardhaugh1998, 6). Otherwise,the result will be mass confusion, perhaps even gibberish. This is as true of BSLand its many variations as it is of spoken languages. Citing Chomsky, Wardhaugh also points out that 'languageis essentially a set of items' (Wardhaugh1998, 10). Whether these items arespoken or signed will necessarily affect the methodology of research, but willnot change the basic fact that language is the key to how societies arestructured and how people manage to live together. There are a number of factors to explain why British SignLanguage is so rapidly changing and growing. According to Deuchar, 'just as wefind variation in English, we also find it in BSL, at the same kinds of levelsof the language, and linked to the same kind of social factors' (Deuchar 1984, 130).This was reiterated again more recently by Rachel Sutton-Spence and Bencie Woll.They asserted in 2000 that 'just as there are variations according to region,social group membership and the social situation, so there are regional, socialand situational differences in BSL' (Sutton-Spence and Woll 2000, 23). Thereare a number of societal structures responsible for the variations in BSL. Someof these are directly related to education of the deaf. According to Deuchar,the deaf in Britain are unlike the deaf in some other cultural minoritiesbecause they have not lived in isolation. On the contrary, they have lived inmany different parts of the country. Therefore, the places where they wouldcome together as a meeting point would be institutions for deaf individuals. Thesewould be for the most part educational institutions, particularly those thatare specifically structured for members of the deaf community. Other explanations for variations in BSL center around language users'characteristics. According to Deuchar, these include such qualities as range of competence age of speaker response to setting (formal/informal) level of social skills. Range ofcompetence may vary from user to user, depending on individual ability as wellas level of depth of exposure to BSL. Response to setting may also be a highlyindividual characteristic; different individuals, including members of thehearing population as well as those in the deaf community, respond with varyinglevels of comfort to different settings. While some individuals movecomfortably between formal and informal settings, others will feel moreuncomfortable in less familiar surroundings (Deuchar 1984; Sutton-Spence &Woll 2000). Anotherfactor that accounts for much of the variation in BSL is geographical distance.This can be the cause of both differences and similarities in vocabulary. Onetelling example of this is an experiment Deuchar did regarding variation innumber systems. The investigation was conducted in 1981 among deaf adults inLancaster. She found that 'a certain variant of the number SIX (right index onleft fist) was only used by people over the age of forty who had attended aschool for the deaf in NW England'. In this case she concluded that 'both thesocial factors of age and schools seem to be significant' (Deuchar 1984, 131). Additionalexamples of user's characteristics that are responsible for variation areoffered by Brennan et al. Some pairs of BSL signs have identical manualcomponents, and the only way to tell them apart is through 'non-manual'activity such as the facial gestures that accompany the manual components. Forexample, the signs 'ENOUGH' and 'FED UP' are distinguished only by facialgesture. Another example is that of the signs 'SMART' and 'CAN'T BE BOTHERED',which 'make use of exactly the same action of the hands, but in the latter casea distinctive mouth pattern is used' (Brennan et al., 1984, 2).Sociolinguistics in the BSL/language continuum
Thesociolinguistics of a language is the study of linguistic and sociologicalvalues. It can also be described as the study of how that language functionswithin society and how it is affected. The sociolinguistics of Sign Languagesis not unlike the sociolinguistics of any other languages. The same issues thataffect other languages affect Sign Languages, although the issues may beexpressed differently. Thefact that BSL is now officially accepted as a language is an important part ofthe history of BSL. It is partially responsible for changing the way BSL isperceived by the larger community. Other sociological and historical changeshave occurred over time. Many of these are due to education. As Sutton-Spenceand Woll point out: 'BSL changed when schools started using it nearly 200 yearsago, and again when it was banned in schools'. Another factor that has affectedthe socio-historical change in BSL is technology, particularly television (Sutton-Spence& Woll 2000, 35).Status in BSL: Political Correctness
Asnoted earlier, British Sign Language (and Sign Language in general) is like anyother language in many aspects. This includes political correctness. 'Politicalcorrectness has caught up with sign language for deaf people. Gestures used todepict ethnic and religious minorities and homosexuals are being droppedbecause they are now deemed offensive' (Mickelburgh 2004). This is true of AmericanSign Language as well: 'Traditional sign language words and letters for the useof the deaf in America are being changed to be made more "culturallyappropriate"' (Davis 2000). However,it is true that many signs are still in use that may be considered as racist.One explanation for this is that deaf communities often feel that hearingprofessionals try to impose their own values on deaf culture, which isconsidered offensive and intrusive by many members of the deaf community. 'Thisis not concerned with the dangers of offending someone by mistake, but withsigns that are considered unacceptable because of deaf politics and deaf pride'(Sutton-Spence & Woll 2000, 249). Sociallyunacceptable language in BSL is similar to socially unacceptable language ingeneral, and includes taboo signs linked to taboo topics, insults, andexpletives.Other Variations in BSL
Othervariations in BSL may be due to ethnicity, religion, sexual preference, andsocial networks.Ethnic Variations
In someareas (for example, this is particularly true in the U.S.), there are cleardivisions between some 'black' ASL dialects and some 'white' ASL dialects [largelydue to segregation]. In Britain, however, 'the variation in BSL between blackand white signers appears to be less marked' (Sutton-Spence & Woll 2000, 27).Some explanations for this include the fact there were relatively few blackpeople in Britain until the 1950s. In addition, black deaf children attended 'mixed'deaf schools, and were therefore less inclined to be divided by racialcategories. Thereis, however, a growing sense of identity among black deaf adults in Britain.This has lead many researchers to conclude that eventually there will be adefinite variation along based on racial divisions, resulting in a distinctive 'black'dialect of BSL as time goes on (Sutton-Spence & Woll 2000, 28). Incontrast, the British Asian deaf community relatively small. However, genetic deafnessseems to be more common to British Asians, so as this segment of the deafcommunity grows, its members may develop a dialect of their own as well.Religious Variations
Religionalso has an effect on BSL, particularly the Roman Catholic and Protestantreligions. 'The signing of deaf British Catholics is strongly influenced byIrish Sign Language because Irish monks and nuns have provided education forCatholic deaf children....and Irish-trained priests serve the Catholic deafcommunities in Britain' (Sutton-Spence & Woll 2000, 28). In addition,signers tend to have two variants of BSL, and will use them differentlydepending on whether they are communicating with people within their ownreligion, or with those outside of it.Gender/Sexual Variations
It hasalso been noted that in some variations of Sign Languages, the differencesbetween genders are markedly different. This has been attributed to the factthat often males and females are educated in separate institutions, and whenthey leave these institutions must learn how to communicate with each other.However, this is not the case with British Sign Language, where the differencesin language between male and female members of the deaf community are reportedto be unimportant (Sutton-Spence 2000, 26).Situational Variations
Situational changes have an effect on BSL as they do on all other languages. Changes occurdepending on the number of people the speaker is addressing; for example, whenaddressing a single individual as opposed to addressing an entire group.Changes also occur when the signer is addressing someone who does not have astrong grasp of BSL, either a member of the deaf community who is foreign, oran English-speaker who is not a member of the deaf community. Other situationalchanges also affect BSL, as when the signer is addressing strangers, oraddressing small children (Sutton-Spence & Woll 2000, 31).Language Planning: Status Planning and Corpus Planning
Accordin gto Peter Trudgill, government involvement in language is often referred to as 'languageplanning'. Sometimes this is a commendable and welcome activity, butnot necessarily. Trudgill further distinguishes between status planning andcorpus planning. Status planning occurs in countries which have to first choosea national language or languages and subsequently are faced with the issue ofdeveloping and/or standardising the language or languages (Trudgill 2000, 131-132). Often, however, the role of a national government goes beyond selecting a nationallanguage. For example, the language, having already been chosen, must bedeveloped and standardised; a suitable orthography must be chosen, or decisionshave to be made over selection of one dialect over another. This may get asspecific as the government being required to assist in vocabulary, grammatical,and phonological development. This type of language planning is much morespecific and involves much more active involvement on the part of thegovernment, and is referred to as 'corpus planning' (Trudgill 2000,135). It has been noted, however, that the distinction between 'corpus planning'and 'status planning' was first distinguised by H. Kloss in 1969 (Covarrubias1983, 42). Corpusplanning in terms of BSL standardisation is a complex issue. Some researchesassert that this will increase cultural understanding and go some way towardsalleviating racial prejudice and tension (Sutton-Spence & Woll 2000).Social inclusion was also emphasised with respect to users of BritishSign Language. Most agree that promotion of BSL will add to the qualityof life for many people. It does remain important that enactment of policies by the government recognizethe ongoing significance of British Sign Language within the signing community.The fact that the deaf have spent many years and much effort fighting theiridentification as disabled is ofprimary importance. It is essential that the government continue to treat BSLlike any other minority language within the EU. Democratic institutions should seethat mechanisms are put into place that recognize the merit of different voicesand perspectives. This is the only way members of the deaf community will beable to effectively organize and increase their empowerment within society atlarge.Other Issues in Standardisation
Accordingto Sutton-Spence and Woll, it is very clear that there is not a single,standard form of BSL (2000, 37). 'The BSL/English Dictionary has onlyrecently been published and contains a limited number of signs', they write. 'StandardEnglish is used o television and radio and by government organisations. BSL ontelevision is not standard and deaf television presenters use differentregional signs' (Sutton-Spence and Woll 2000, 38). Although it is believed thata form of 'standard BSL' may eventually emerge, they assert that because thesocial context of BSL varies so widely from that of English, that it isimpossible to predict what form it will eventually take. Furthermore,there is the issue that the signs of BSL can be divided into those of theestablished lexicon, or those of the 'productive' lexicon, although BSL clearlyhas far fewer 'basic signs' fixed in the lexicon (Sutton-Spence and Woll 2000,197).Cite this page
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How to Reduce Employee Stress
References
Abendroth, A. Lippe, T. & Maas, I. (2012) Social support and the work hours of employed mothers in Europe: the relevance of state, the workplace, and the family. Social Science Research. 41(3) p581-597 Antonakis, J. Ashkanasy, N. and Dasborough, M. (2009). Does leadership need emotional intelligence? The Leadership Quarterly. 20, p247-261 Castledine, G. (2004). Role of hospital nursing in promoting patient recovery. British Journal of Nursing, 13 (7), 353 Crawford, R. (2013) Line managers too stressed to help staff. Employee Benefits. 11/22/2013, p3 Donaldson-Feilder, E. Yarker, J. and Lewis, R. (2008) Line management competence: the key to preventing and reducing stress at work. Strategic HR Review. 7(2) p11-16 Goleman D, Boyatzis R. and McKee R. (2002) The New Leaders: Transforming the art of leadership into the science of results. London: Sphere. Boston: Harvard Business School Press George, E. and Zakkariya, K. (2015) Job related stress and job satisfaction: a comparative study among bank employees. Journal of Management Development. 34(3) p316-329 Gregory, A, & Milner, S. (2009) Editorial: work life balance: a matter of choice? Gender, Work and Organisation. 16(1) p1-13 Houston, D. Meyer, L. & Paewai, S. (2006) Academic Staff Workloads and Job Satisfaction: Expectations and values in academe. Journal of Higher Education Policy & Management. 28(1) p17-30 Huczynski, A. & Buchanan, D. (2010) Organizational behaviour. 7th Edition. Harlow: Financial Times Prentice Hall Hughes, M. Patterson, L. Bonita, Terrell, J. (2005) Emotional intelligence in action: training and coaching activities for leaders and managers. London: Pfeiffer Lindebaum, D. (2009). Rhetoric or remedy? A critique on developing emotional intelligence. Academy of Management Learning & Education. 8, p225-237 Moyle, P. (2006) How to…reduce stress in the workplace. People Management. 12(16) p48-49 Northhouse, P. (2011) Introduction to Leadership: Concepts and Practice. 2nd Edition. London: Sage Robbins, J. Judge, T. & Campbell, T. (2010) Organisational behaviour. Harlow: Prentice Hall, Financial Times Sadri, G. (2012) Emotional Intelligence and Leadership Development. Public Personnel Management. 41(3) p535-548 Sturges, J. & Guest, D. (2004) Working to live or living to work? Work/life balance early in the career. Human Resource Management Journal. 14(4) p5-20 Watson, B. (2001) Report: A New Deal? Understanding the Psychological Contract. Public Money & Management. 21(3) p57Cite this page
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The Key Recommendations for Developing an Effective Management and Leadership Programme
-
The purpose of the presentation is to present the key recommendations for developing an effective management and leadership programme.
- Traits
- Skills
- Theory X managers believe that
- Theory Y managers believe that
- Emergent leadership
- Established leadership
- Entry to headship
- Advanced leadership
- Consultant leadership
- Fundamental Principle 1 – “Integrity”
- Fundamental Principle 2 – “Objectivity”
- Fundamental Principle 3 – “Competence”
- Fundamental Principle 4 – “Performance”
- Fundamental Principle 5 – “Courtesy”
- reflective
- analytic
- worldly
- collaborative
- action
- reflective
- analytic
- worldly
- collaborative
- action
- References
The purpose of the presentation is to present the key recommendations for developing an effective management and leadership programme.
Make a presentation including bibliography/references which will show your source of information gathered. Details about the reliability of your information, why did you choose the source, and to what extent can you trust the source and why- e.g. a company report might be more upbeat about the situation of the company than an externally conducted analysis similarly. Similarly you might identify conflicting information from different newspapers on their political biases etc how did you get around this. Leadership and management have been amongst the most studied and controversial topics of the study of business and management for the last century. The body of theory which has grown up around the subject reflects the change in thought on management theory and can be distilled into a framework which shows the evolution f the ideas of what makes a good leader and management, and by proxy of this one can define with reference to the theory the key skills which need to be developed in order to produce good leaders. Broadly there have been a number of movements in the thought on leadership and management, beginning with the ‘great man' approach, defined in a number of studies on the history of leadership and management studies as the belief that leaders are exceptional people born to great innate abilities, this reflects the early school of militaristic styles of leadership, reflected in the organisation as a male dominated and hierarchical structures to business as a whole. This data is drawn from two key studies, one a study of the comparisons of more modern transformational leadership compared with previous styles, which allows one to assess the need for key innate personality traits, the other a modern study of an attempt to define a universal framework of leadership. Both of these studies argue that a key part of the management and leadership of an organisation, despite the move from the great man approach, is still rooted in the idea of an inspirational character with innate abilities. These abilities have also been studied with some detail and indeed the evolutionary process in management thought moved from this point to study the traits that made an effective leader and manager. The table shown below comes from an extensive study on the skills and traits of leaders, and is still used in theory to define those skills advantageous to leaders and managers. Traits- Adaptable to situations - Alert to social environment - Ambitious and achievement-orientated - Assertive - Cooperative - Decisive - Dependable - Dominant (desire to influence others) - Energetic (high activity level) - Persistent - Self-confident - Tolerant of stress - Willing to assume responsibility | Skills- Clever (intelligent) - Conceptually skilled - Creative - Diplomatic and tactful - Fluent in speaking - Knowledgeable about group task - Organised (administrative ability) - Persuasive - Socially skilled |
Theory X managers believe that: • The average human being has an inherent dislike of work and will avoid it if possible. • Because of this human characteristic, most people must be coerced, controlled, directed, or threatened with punishment to get them to put forth adequate effort to achieve organizational objectives. • The average human being prefers to be directed, wishes to avoid responsibility, has relatively little ambition, and wants security above all else. | Theory Y managers believe that: • The expenditure of physical and mental effort in work is as natural as play or rest, and the average human being, under proper conditions, learns not only to accept but to seek responsibility. • People will exercise self-direction and self-control to achieve objectives to which they are committed. • The capacity to exercise a relatively high level of imagination, ingenuity, and creativity in the solution of organizational problems is widely, not narrowly, distributed in the population, and the intellectual potentialities of the average human being are only partially utilized under the conditions of modern industrial life. |
Emergent leadership
, when a teacher is beginning to take on management and leadership responsibilities and perhaps forms an aspiration to become a headteacher •Established leadership
, comprising assistant and deputy heads who are experienced leaders but who do not intend to pursue headship •Entry to headship
, including a teacher's preparation for and induction into the senior post in a school •Advanced leadership
, the stage at which school leaders mature in their role, look to widen their experience, to refresh themselves and to update their skills •Consultant leadership
, when an able and experienced leader is ready to put something back into the profession by taking on training, mentoring, inspection or other responsibilities.” To frameworks developed for the professions especially in terms of ethical leadership and responsibilities, as this one from the Institute of Chartered Accountants in England and Wales; Fundamental Principle 1 – “Integrity”A member should behave with integrity in all professional and business relationships. Integrity implies not merely honesty but fair dealing and truthfulness. A member's advice and work must be uncorrupted by self-interest and not be influenced by the interests of other parties.Fundamental Principle 2 – “Objectivity”A member should strive for objectivity in all professional and business judgements. Objectivity is the state of mind which has regard to all considerations relevant to the task in hand but no other.Fundamental Principle 3 – “Competence”A member should undertake professional work only where he has the necessary competence required to carry out that work, supplemented where necessary by appropriate assistance or consultation.Fundamental Principle 4 – “Performance”A member should carry out his professional work with due skill, care, diligence and expedition and with proper regard for the technical and professional standards expected of him as a member.Fundamental Principle 5 – “Courtesy”A member should conduct himself with courtesy and consideration towards all with whom he comes into contact during the course of performing his work. |
reflective
mindset in particular. Then it moves to McGill, where attention turns to Managing Organizations and theanalytic
mindset. Bangalore follows with Managing Context, theworldly
mindset. In Japan, it takes up Managing Relationships, thecollaborative
mindset. The Program closes at INSEAD with Managing Change, theaction
mindset. More detail is given about each of these mindsets by Mintzberg and Gosling (2003): • Thereflective
mindset refers to “managing self” – developing the ability to reflect and make meaning – a form of emotional intelligence. • Theanalytic
mindset refers to “managing organisations” – developing the ability to analyse and synthesise not only the hard data, but also the soft – “to appreciate scores and crowds while never losing sight of the ball”. • Theworldly
mindset refers to “managing contexts” – to appreciate cultural and local differences and similarities and respond accordingly. • Thecollaborative
mindset refers to “managing relationships” – developing partnerships and networks; working with people – managing “relationships” not “people”. • Theaction
mindset refers to “managing movement” [or “change and continuity”, or “mobilization”] – managing change without losing track of continuity. It is argued that the good manager/leader must master and integrate each of these mindsets and so offers a more cognitive and reflective approach to management development than more traditional behaviour and skills-based programmes.” In conclusion the recommendation of this presentation is to consider three areas of design. Firstly to consider the criteria for considering an applicant's needs and suitability, reflecting the traits, in relation to the needs and requirements of the organization, reflecting the contingency of the organization and society. Secondly to look closely at the needs of the organization, especially at the needs of subordinates and the overall strategic direction of the organization, which reflects both behavioral and the specific needs of the organization in relation with the external environment. Lastly To examine the type of leadership needed, with specific reference to the examples from the public, private and professional examples given above, which show that the ideal leadership and management style is very specific to the sector in which the organization is based.References
Blake, R.R. and J.S. Mouton (1964) The managerial grid. Houston TX: Gulf. Gronn, P. (1995) Greatness Re-visited: The current obsession with transformational leadership. Leading and Managing 1(1), 14-27. Gosling, J. and Mintzberg, H. (2003) Mindsets for Managers. Working paper, Centre for Leadership Studies. Hamlin. R. (2002) Towards a Universalistic Model of Leadership: a comparative study of British and American empirically derived criteria of managerial and leadership effectiveness. Working paper WP005/02, University of Wolverhampton. McGregor, D. (1960) The Human Side of Enterprise. New York: McGraw Hill. Stogdill, R. (1974) Handbook of Leadership (1st Ed.). New York: Free Press. Gronn, P. (1995) Greatness Re-visited: The current obsession with transformational leadership. Leading and Managing 1(1), 14-27. Hamlin. R. (2002) Towards a Universalistic Model of Leadership: a comparative study of British and American empirically derived criteria of managerial and leadership effectiveness. Working paper WP005/02, University of Wolverhampton Gosling, J. and Mintzberg, H. (2003) Mindsets for Managers. Working paper, Centre for Leadership Studies. Gosling, J. and Mintzberg, H. (2003) Mindsets for Managers. Working paper, Centre for Leadership Studies National College for School Leadership - Leadership Development Framework. Source: https://www.ncsl.org.uk/index.cfm?pageid=ldf Institute of Chartered Accountants in England and Wales - Ethical Principles for Members. Source: https://www.icaew.co.uk International Masters in Practising Management, available from www.impm.org, retrieved on 18/4/10Cite this page
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A Small Number of Key Concepts have Become very Significant to Operations Managers
Over recent years, a small number of key concepts have become very significant to Operations Managers.
Four of these concepts are:- Customer Care
- Kaizen
- Just-in-Time
- Total Quality Management
- It's initial purchase price
- The cost of failure to customers, and
- Its reliability index.
- Quality
- Effort
- Involvement of all employees
- Willingness to change
- Communication.
Bibliography
Bartol, K.M., & Martin, D.C., (1998) Management, McGraw Hill Bettley, A., Mayle, D., & Tantoush, T., (2005) Operations Management: A Strategic Approach, Sage Publications/ The Open University Bicheno, J., & Elliott, B.B.R., (2002) Operations Management: An Active Learning Approach, Blackwell Publishers Ltd Brown, S., Blackmon, K., Cousins, P., & Maylor, H., (2001) Operations Management: Policy, Practice and Performance Management, Butterworth-Heinemann Greasley, A., (2008) Operations Management, Sage Publications Lewis, M., & Slack, N., (2003) Operations Management: Critical Perspectives on Business and Management, Routledge Lowson, R.H., (2002) Strategic Operations Management: The New Competitive Advantage, Routledge Needham, D., Dransfield, R., Harris, R., & Coles, M., (1995) Business for Higher Awards, Heinemann Shim, J.K., & Siegel, J.G., (1999) Operations Management, Barron Educational Series Slack, N., (1999) The Blackwell Encyclopedic Dictionary of Operations Management, Blackwell Publishers Ltd Waters, D., (2002) Operations Management: Producing Goods and Services, FT/ Prentice HallCite this page
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Malaysia Leisure People
- General Introduction
- Part 1 Theoretical Framework
- 1.1 Entertainment
- 1.2 Night life entertainment
- 1.2.1 Different types of Night life entertainment
- 1.2.1.1 Bar
- 1.2.1.2 Discotheques
- 1.2.1.3 Pubs
- 1.2.1.4 Night Clubs
- 1.3 Night Life in Malaysia
- 1.3.1 Jalan Bukit Bintang, Kuala Lumpur
- 1.3.2 Jalan Sultan Ismail and Jalan P. Ramlee
- 1.3.3 Sri Hartamas, Kuala Lumpur
- 1.4 Asian Heritage Row
- 1.4.1 The Night Clubs
- 1.4.1.1 Wine Room
- 1.4.1.2 Heritage Mansion
- 1.4.1.3 Kristao
- 1.4.1.4 The Rupee Room
- 1.4.1.5 Bar Blonde
- 1.4.1.6 The Loft Kuala Lumpur
- Upstairs Club Lounge
- Mezza Notte
- Ye Chine
- Cynna House Lounge
- 1.4.1.7 Palacio
- 1.4.1.8 Bed
- 1.4.1.9 Atrium
- 1.5 Market Segmentation
- 1.6 The factors contributing to the success of nightclubs
- 1.6.1 Promotion and Special Occasions
- 1.6.2 Advertising
- 1.6.3 Hiring Staff
- 1.6.4 Environments and menu
- 1.6.5 Music and Disc Jockey
- 1.6.6 Cover Charge and Services
- Part 2 Methods and Findings
- 2.1 Research methodology
- 2.1.1 Research Questions
- 2.1.2 Research Design
- General Conclusion
General Introduction
Trends are changing universally. In Malaysia, a lot of the entertainment is chosen for people to spend their leisure time. Now a days, the standard of living and the stress from work and school is much higher than in previous years, so people now need time to relax just to release the stress. People now a days know how to plan and enjoy their leisure time. There are a lot of ways one can spend their leisure time, they can go to the cinema, traveling or may be reading. Gambling is considered a leisure activity. In this generation, the top most preferred leisure activity by young adults is to go clubbing. In Malaysia, clubbing is one of the famous night entertainments available for those who are between the ages of 18 to 26. This type of entertainment is mushrooming quickly, especially in the capital city, Kuala Lumpur. However, the clubs in Malaysia are not spread over a big area. They have specific spots for clubbing, so along these streets are filled with night clubs, bars and discos. Jalan Doraisamy, Jalan P Ramlee, Jalan Tun Razak, and Jalan Sultan Ismail are the few street names on which clubs are on a stretch. These places are where you find the people who are fascinated by night life, a lot of foreigners are found along these streets as well. People visit these places not only because they want to club, but also because they want to relax after a long day or week. Some tourists are curious about the night life in Malaysia. Some tourists don't get to see these places because they come with children, and such places aren't suitable for children. Rush hour is another reason why people would prefer to come to the bar in the evenings during happy hour, just to avoid the traffic. As time passed, clubs, pubs and night clubs with different themes, music and set ups starting opening around these areas. As a result the competition of the nightclub market became bigger and bigger and this is why many club owners joined the market for a while and before too long they had to close down because the competition is too tight. However, Asian Heritage Row is a row of clubs that is located on Jalan Doraisamy. The road is full of clubs facing each other. This dissertation will focus more on the factors that contribute to the success of Asian Heritage Row. The title is “The factors influencing the success of Asian Heritage Row” The dissertation will be divided into 3 parts, the 1st part covers about the entertainment industry, nightlife industry as well as the nightlife scene in Malaysia. The 2nd part covers the Analysis of the clubs in Asian Heritage Row out of which 8 of the managers were interviewed. The 3 rd part will be the recommendation of the research. Objectives:- The Factors that influence the success of Asian Heritage Row?
- Define Success in the content of Asian Heritage Row?
- Answer the significance of the factors
Part 1 Theoretical Framework
1.1 Entertainment
According to Wikipedia (2008) the word Entertainment is an activity designed to give pleasure or relaxation to an audience (although in the case of a computer game the "audience" may be only one person). The audience may participate in the entertainment passively as in watching opera or a movie, or actively as in computer games. Hughes (2000) identified the word ‘entertainment' is used to include a wide variety of activities such as watching television or playing computer games at home, listening to music, visiting cinema, watching sports, visiting theme parks, and going to discos. Furthermore, Hughes (2000) classified types of entertainment as:1.2 Night life entertainment
According to Wikipedia (2007), nightlife is the collective term for any entertainment that is available and more popular from the late evening into the early hours of the morning. It includes the pubs, night clubs, bars, live music, cabaret, small theatres, small cinemas, shows, and sometimes restaurants a specific area may have (defined here as pubs, bars, cafes, and night clubs). Nightlife entertainment is essentially edgier than daytime amusements and usually more oriented to young adults. “Studies have shown that the average person will spend three to four hours per weekend in an entertainment environment and will spend an average of 20 to 50 dollars in that timeframe. This trend also shows no signs of declining.” (https://findarticles.com) The night club business isn't a simple business that can be run by anyone; it is not as simple as selling alcohol or just thinking about the latest trend in youths. It is way much more complex than that. Starting up a night club needs a lot of financial investments. The success of this business depends on what are the company's goals and the things you could do to make the guest happy that ensures they will come back. “Most people who get into the nightclub industry do it because they want to have a nightclub and enjoy it and it's at night, said co- owner Dalton Alford. They overlook the most important factor, and the reason nightclubs do live is that the office during the day is up and operational. You seldom see it.” (https://findarticles.com)1.2.1 Different types of Night life entertainment
When most people hear the word night life they think of only a club, while actually there are a few types of clubs. They have different names; some are called Bars while others have different names. These places differ because of the facilities they provide in their establishments. The target market to these establishments differs as well. These are the different types of night life entertainment.1.2.1.1 Bar
The Wikipedia (2007) describes bar as a business that serves drinks, especially alcoholic beverages such as beer, liquor, and mixed drinks, for consumption on the premises. Bars provide stools or chairs for the patrons along tables or raised counters. Some bars have entertainment on a stage, such as a live band, comedians, go-go dancers, a floor show or strippers. Bars that are part of hotels are sometimes called long bars or hotel lounges There are as much bars as there are night clubs in Malaysia, these bars usually only serves drinks and light snacks, there are no dance floors. Some of them have live band performance while others have a DJ (Disc Jockey) playing the music. Most of the people who visit these bars are business men from overseas as well as local ones who need a drink after a long day at work.1.2.1.2 Discotheques
The word has been shortened to “Disco”. The term refers to a style of music that is influenced by Funk, Soul Music and salsa. The main attraction in a disco is the dance floor. People go there to dance. The songs played are from recorded sources. Live band is also played from time to time. This is played to entertain the customers when the songs are not played from the recorded sources (www.disco-disco.com).1.2.1.3 Pubs
Originally called public house but now known as “pubs”, this drinking establishment was originally found in the United Kingdom and Ireland but now found globally. Pubs used to be located in small English towns. Pubs are social places for the sale and consumption of mainly alcoholic beverages. Most pubs offer a wide range of beers, wines, spirits and alcoholic beverages. In the 1930s the Anglo French writer Hillarie Belloc penned the following cautionary warning” when you have lost your inns, drown your empty selves, for you will have lost the last of England”1.2.1.4 Night Clubs
A Nightclub is a drinking, dancing, and usually similar to bars, pubs or taverns, by the inclusion of a dance floor and a DJ booth, where a DJ plays recorded dance and pop music. The music in nightclubs is either live bands or, more commonly a mix of songs played by a DJ through a powerful PA system. Most clubs or club nights cater to certain music genres, such as house music, garage, Hip-Hop, or salsa. Most of the clubs, bars, and lounges in Malaysia are categorized as night clubs. This is because the clubs have all the criteria that match a night club. Their main customers are young adults commonly known as youths.1.3 Night Life in Malaysia
Kuala Lumpur being the capital of Malaysia is a developing city with high rise buildings, shopping malls, restaurants, highways and entertainment spots. Out of their entertainment spots, a big portion of them are Night clubs, karaoke bars, pubs, lounges, jazz bars, discos, wine bars, and different types of restaurants. These are all scattered all around the city. Being a Muslim country, authorities enforce a 3am closure ruling for nightspots in Kuala Lumpur city areas, while clubs and pubs in urban areas in the vicinity of residential estates have to close at 1am. Occasionally, the police will conduct raids on random places to check for illicit drugs, prostitution and other vices of society. However, alcohol is sold freely in Malaysia and the legal drinking age is 21 (as cited in www.kuala-lumpur.ws). Night life entertainment can be found in a few places in Kuala Lumpur. The clubs, bars and lounges are normally on a stretch along a road. But some of them are scattered elsewhere. The three famous spots that have clubs on a stretch are the Asian Heritage Row, Jalan Sultan Ismail and Bangsar. For pubs and bars are mostly along Hartamas and Bukit Bintang.1.3.1 Jalan Bukit Bintang, Kuala Lumpur
Jalan Bukit Bintang where the entertainment clubs are there is the road adjacent to Starhill. The KL Plaza has numerous lively caf©s, bars and pubs. Starting with the Foxx discotheque at the basement until Planet Hollywood that is situated next to Starhill.1.3.2 Jalan Sultan Ismail and Jalan P. Ramlee
The beauty of these two roads is that it is the intersection point of club central in Kuala Lumpur. Located just opposite of the Shangri-La. It is one of the best places to go clubbing. The clubs are tidily huddled together with some of the best DJ's performing from week to week. Along this road are not only clubs but there are a few hotels as well. The Concord Hotel and the Equatorial hotel are located there.1.3.3 Sri Hartamas, Kuala Lumpur
Tucked away in the neighbourhood of Sri Hartamas is an area of business that has blossomed into its nightlife. Ranging from pool, darts, foosball or even wine, you can't miss these places with their terrific d©cor and relaxing ambience with lovely alfresco areas and comfortable couches. You can even hang out to watch the football premier league at Hartamas Square. SOULed OUT's new address has shifted to Sri Hartamas as well.1.4 Asian Heritage Row
Asian Heritage Row (AHR) runs along Jalan Doraisamy, which is situated just off Jalan Sultan Ismail, next to the Sheraton Imperial Hotel. It is located in the heart of the city and is growing in popularity as a preferred destination for the young and trendy. Three years ago this area near Kampung Baru wouldn't be such a pleasant site to be seen. Along this road were pre-war houses that were abandoned. The founder had a mission of turning these old abandoned houses into an entertainment area, whilst maintaining the heritage. That is why the clubs and restaurants in Asian Heritage Row have the design of very old houses. The 80 year old houses have been transformed into a row of elegant and charming restaurants, cafes, bars, and clubs and even have a foot reflexology salon. In following with the traditions of the city, Asian Heritage Row was developed to encapsulate the city's past, present and future. As with most great cities of the world, which have their unique cultural and leisure districts (e.g. Montmart in Paris, Soho in New York, Lan Kwai Fong in Hong Kong and Clark Quay in Singapore) (www.asianheritagerow.com)1.4.1 The Night Clubs
1.4.1.1 Wine Room
Wine Room as you can see from its name is a lounge that specializes in wine, the wine room has a capacity of 100 people inside, 50 people outside and standing room for another 50. The atmosphere at the Wine Room is relaxed, and is often crowded with local celebrities. They serve light meals such as cheese platter, pizzas and other finger food that are served with a good selection of wines, champagnes, cigars, liquor and imported beers1.4.1.2 Heritage Mansion
Heritage Mansion aims to provide a different and refreshing lifestyle space for its customers. Till date, there is no food and beverage entertainment venue which is relaxed and chilled out in atmosphere in the weekdays, while it transform its self into a club by weekends. Heritage Mansion is open to selected group of people, which means not everyone can go there. This place is more for elite members of the society.1.4.1.3 Kristao
Kristao is one of the outlets along Heritage Row and the first restaurant-bar on the street that specializes in Malaccan Portuguese cuisine. It's a very homey two-floor establishment with an attractive selection of wines, liquor, beers and cocktails. Kristao also has the record of having the longest happy hours, from 11:00am to 9.00pm daily with the kitchen staying open till 1 am with seating for up to 100 people.1.4.1.4 The Rupee Room
The Rupee Room is all about great music and a friendly atmosphere that gives you a touch of Bollywood. This is the only club along the Asian Heritage Row that plays Indian music. The Rupee Room has just opened in the past year. They are a branch from the rupee room in Singapore1.4.1.5 Bar Blonde
Bar Blonde, one of the earlier bars to open on Asian Heritage Row. It is particularly designed for events big or small. Bar Blonde plays the music from their live band that performs rather than using a DJ. Bar Blonde has a very unique promotion, blondes can get a drink on the house.1.4.1.6 The Loft Kuala Lumpur
The Loft Kuala Lumpur was established in January 2005. The Loft is a combination of a Fine Dining, Lounging and Clubbing. They have separated all the 3 into 4 different places.Upstairs Club Lounge
The Upstairs Club Lounge is spread over what used to be 4 shop lots. This part of the Loft is more into clubbing than lounging or dining. The loft has a stage and a catwalk area in the middle which makes it ideal to hold events in.Mezza Notte
Mezza Notte is the dining part of The Loft. It is an Italian fine dining restaurant which is equipped with a sushi bar. However the restaurant serves a wide range of wines of the world and cigars as well.Ye Chine
Ye Chine Restaurant serves authentic Chinese cuisine, including dim sum. The restaurant also has a garden indoor dining area, an island bar and a skylight roof.Cynna House Lounge
Cynna has a lounge on the exterior and a clubbing area in the interior. It has a reputation of the venue for fine clubbing and VIP service.1.4.1.7 Palacio
Palacio means 'Palace' in Latin. Palacio is a restaurant that specializes in French and Spanish cuisine. There are 3 ambiances in the restaurant. You can experience a fine dinner on the 1st floor, chill out in Palacio's cozy tapas bar on the ground floor or enjoy sunshine in the Palacio front garden.1.4.1.8 Bed
Bed is one of the clubs located on the left hand side of the street; it has 2 areas, the 1st floor and lower floor. The 1st floor plays a different music from the lower floor. They serve a wide array of liquors, wines, champagnes.1.4.1.9 Atrium
Atrium, a club that has a stage for a live band to perform as well. They have different days on which the DJ plays and some days when the live band leads the crowd. They serve food as well as beverages.1.5 Market Segmentation
The Marketing concept calls for understanding customers and satisfying their needs better than the competition. But different customers have different needs, and it is rarely possible to satisfy all customers by treating them alike (www.netmba.com). In order to cater to all customer's needs, we need to segment the market into several segments. There are four ways in which you can segment a market:- Geographical segmentation
- Demographic segmentation
- Psychographic segmentation
- Behavioural segmentation
1.6 The factors contributing to the success of nightclubs
There are a lot of factors that contribute to the success of a nightclub. Every nightclub has to try and make their own place unique in their own ways. From the articles that are mentioned below, there are some factors that contribute to the success of night clubs.1.6.1 Promotion and Special Occasions
Promoting the nightlife establishment is something that all club owners do as this lets people know about the club, special occasions are events that is held once in a while in order to attract customers to the club. The article “What savvy club owners do to make their topless clubs successful while others fail miserably” wrote by Jack Corbett said that “…offers the reasonably prices of alcohol to customers starting from 8 pm to 10 pm buckets of beers specials…” this is an example of happy hour. This is a promotion done by majority of clubs all over the world. “The main idea is to offer a new entertainment experience night after night. This is the key ingredient for success and profitability, as well as longevity, in the nightclub industry” (https://findarticles.com). Happy Hour is a type of promotion done by a lot of club owners. Happy hour is the hours of the night in which the club offers discounts on a number of drinks. These hours normally vary from country to country and from club to club. In Malaysia happy hour is from 5pm to 9pm. While in Indonesia it is from 5pm to 8pm. In Australia, the happy hour is from 6pm to 8pm. Firstly as those are the hours in which a club has no business, the cheap drink helps the club to attract customers.1.6.2 Advertising
Entertainment clubs has to advertise, if they don't advertise there are a very low percentage of them surviving in the business. Clubs should advertise in magazines. This would create awareness in the customers. Jack Corbett mentioned “…Great review to the competitor while mentioning it all in the magazine believing that any kind of news at all is good news”. Magazines normally recommend clubs to their readers; this will make your club one of the clubs that would be recommended to the readers.1.6.3 Hiring Staff
Staff hiring is essential to any business, a good staff team would create a good working environment and would make the customers happy. Jack Corbett Mentioned “…feature entertainers are the real professionals in the business.”1.6.4 Environments and menu
Nightclub & Bar Magazine mentioned “…should doing a lot of special effects and theatre things but you never saw before in the clubs.” This means that clubs should have a special features in them in order to get the customers curious about what would it be like inside. This curiosity will get the customers into the club. The clubs should change the look of their club from time to time so as not to bore the customers. The menu is something that you should change from time to time as well. This is because right now the trend is to fuse everything together. So bartenders are coming with new and unique ways to draw customer's attention to the drinks. One example is the flaming. Flaming is when a drink, such as Sambuca, is set alight. The customer then blows out the flames and shots the drink. Another example is when the martini glass is kept below a Galliano bottle and then the bar tender pours the flaming mixture from the top of the Galliano bottle and customers drink it from the martini glass with the help of a straw.1.6.5 Music and Disc Jockey
From the 60's to the 70's the most suggested place to listen to music is at a disco. During those times people liked to dance. Now days even everyone dances because of disco music. This statement is from Is Disco Dead “…I love the disco today; dance music is more alive and disco music has more feelings than today's dance tracks” this means that is because of the music now a days that teenagers go to the clubs. They go to listen to the music and dance to the beat. So the music of a club really matters to attract customers. The DJ's job is to control the music. So the DJ playing in the club also is another factor.1.6.6 Cover Charge and Services
Cover Charge is defined as a fee for entry to an establishment, often it is referred to a bar or a night club. The term “no cover” or “no cover charge” relays that such establishment allows entry at no cost. From the journals I found on the internet. Tonic Brian Arbuckle, Elissa Ferenbach, Doug Devitre and Frank Lee who did a research regarding clubbing, found that. “…the respondents said they would choose another club if the club charged a cover before entering”, and “…more than seventy percent of the respondents were likely to choose the bar with the lower cover.” This shows that majority of the people like to go to clubs where the cover charge is low. So the cover charge of a club also is another factor that will influence the number of people that comes in the club. A 1,000-person capacity nightclub will typically accommodate approximately 1,500 people in the five-hour span of operation. A $5 door charge, in addition to a conservative figure of $12.25 collected from each patron in alcohol sales, would generate approximately $30,000 in nightly revenue. (https://findarticles.com) In every club there must be a server to serve the customers. From the survey taken by Tonic Brian Arbuckle, Elissa Ferenbach, Doug Devitre and Frank Lee found out that “…waitresses do play an important role on how people choose which bar to go to” they play an important role because they are the ones that provide the service. So the better the service is the more people would want to come to the club. Business men for an example, they prefer for the waitress to come to the table and take the order rather than having to go to the bar to get their drinks. Some servers can also influence the people who choose the bar because of their professionalism. So the service staff play an important role as well.Part 2 Methods and Findings
One of main areas of the research is the methodology. This is the part where the different methods used to obtain the information as well as the results to the research and the analysis are explained. The information that is used in this research is primary as well as secondary information. The primary data is obtained from interviews that have been conducted and the secondary data has been gathered from books, journals and websites. However the secondary data is more reliable as it has been verified and published. Secondary data has been obtained from several different sources such as the internet, newspaper, journals, magazines, college notes etc.2.1 Research methodology
This section will describe the idea of how data was collected to answer the research questions, methods and techniques used for the data collection and how it was implemented to the research objectives. The objectives of this study are:- The Factors that influence the success of Asian Heritage Row?
- Answer the significance of the factors?
2.1.1 Research Questions
In order for the objectives to be answered, a systematic order of questions is formulated to apply with the objectives. Objective 1: What are the factors that influence the success of Asian Heritage Row? Objective 2: how important are the factors that contribute to the success of Asian Heritage Row? In the research questions, the problematic reasons for this research may be stated. These questions should be answered at the end of the research.2.1.2 Research Design
According to Rees (1996) & Dingwall et al, (1988), Qualitative research involves broadly stated questions about human experience and reality, studied true sustain contact with people in their natural environment, generating rich, descriptive data that helps us to understand their experience and attitudes. Rees (1997) emphasizes that rather than presenting the results in the form of statistics, qualitative research produces words in the form of comments and statements. Its aim is to find out people's feelings and experiences from their own point of view rather than from that of the researcher.General Conclusion
Part 1 explained entertainment, because Night life is a form of entertainment. There are two types of entertainment, at home and away from home. Nightlife entertainment is entertainment away from home. Youths are more likely to choose entertainment that are away from home. This is because young people really like going for nightlife entertainment. The history of the night life entertainment in Malaysia was also explained, which highlighted when the first night life in Malaysia opened. The different types of reasons for a night club to be successful were also explained. As the topic is about Asian Heritage Row, Asian Heritage Row was explained briefly about the clubs that are available there. Part 1 of my research became a guideline to progress further with the dissertation. Part 2 was started off by explaining the licensing system in Malaysia with the 3 different types of license that are available. In order to be able to answer the research questions, interviews were conducted with Managers of clubs in Asian Heritage Row, to identify the factors leading to its success. Being a Muslim country it was thought that it would be rather complicating for promoting, advertising etc. but surprisingly, the theories that were found out more or less matched the factors of why Asian Heritage had been a successful place. From the findings that were analysed, the factors leading to the success of Asian Heritage Row suggest that the clubs can still be successful with such high competition, as the competition available brings more people into the general area. The more the people the better it is for business. Besides that, the promotion, advertising and music also act as factors to the success of Asian Heritage Row. It is because of these things that the target market is informed that there are changes or have something different to show your customers. Customers always want something new so that they are always entertained. The Music in Asian Heritage Row varies from club to club, in fact some clubs play different types of music on different days. The cover charge and service also influences people's choices in choosing clubs. The cover charge shouldn't be too expensive as people might find it not worth it but at the same time it shouldn't be too cheap as that would result in an influx of lower class people. The service of a club influences the choice of a consumer as well. Service includes the staff, environment and music. If you can give top notch service to your clients, they will for surely come back. Club owners should make sure they change the d©cor periodically just so that they don't get bored. Part 3 recommends what can be done to make Asian Heritage Row a better place, by adding more facilities into the area. Though the area is fully developed, they still haven't been able to execute making it a very safe place. During the process this dissertation there have been few limitations. The major limitation faced is lack of information. This is due to the lack of time and when the interviews could be conducted. The managers were too busy with their own work and tried to answer briefly, so it was difficult to ascertain how they really felt. Some of them refused to be interviewed as they didn't have time. To complete this research again, I would collect the primary data using questionnaires. This is because questionnaires are more accurate as you have more respondents and structured answers when compared to interviews.Cite this page
Malaysia Leisure People. (2017, Jun 26).
Retrieved November 3, 2025 , from
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Management Challenges Posed by the Role of Information Systems in Organisations
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Management Challenges Posed By the Role of Information Systems in Organisations
- Purpose of Information Systems
- E-commerce
- Analysis of the problems of gathering data and analysing information
- Major sources of relevant data used for management information systems
- Executive Support Systems
- Management Information Systems
- Decision-Support Systems
- Knowledge Management Systems
- Transaction Processing Systems
- Office Automation Systems
- References
Management Challenges Posed By the Role of Information Systems in Organisations
Throughout the 20th century, businesses thrived by making their production methods more and more efficient by improving production processes and developing better ways for making things. However, efficiency in production methods is no longer the only success factors in today's business world. The excellence of 21st century lies in Information management i.e. having the right thing, on the right time, in the right quantity. Information is one of the most critical elements for the success of a business. Information has become one of the most significant assets for a business. The performance of a business depends on how it manages this asset like every other assets such as finance, humans, buildings, products, customers, etc. (Ward, 1995). The advancements of Information and Communication technology have provided various tools to effectively manage information. Using information and communication technologies, businesses and organizations nowadays rely largely on Information systems to store and manage and analyse data. Information system is a combination of various subsystems that coordinate with each other to collectively gather, store, manage, retrieve, distribute, and transfer information. Information systems help businesses to enhance their productivity by increasing the efficiency and value of business processes (Porter & Millar 1985). Using information technology tools for managing information in conducting business is referred to as E-Business. E-business is a very wide concept comprising of different aspects of business transaction or transferring information by means of Internet. E-business can be classified into three categories. It can be within an organization which may include of various information systems such as Accounting Information System, Knowledge management system, Decision support system, Executive support system, etc. This type of communication technology is called Intranet. The standards used for Intranet are the same as for Internet communication. Accessibility to the Intranet is limited to organization-specific applications or web sites. These web sites and applications are protected against any unauthorized personal by firewalls and other security measures. The second category is involves business-to-business (B2B) communication conducted via Extranet. The Extranet integrates two Intranets which are inter-connected to each other via Internet, which facilitates two separate organizations to communicate and share confidential data. Thirdly category is the business-to-consumer (B2C) communication which occurs over the Internet. The business-to-consumers activity is the most prominent feature of e-business (Amor, 2001).Purpose of Information Systems
The purpose of an information system is to empower its users. There is a wide difference in a simple database which stores data and return it to its users upon request. A database can be created in a way that manages and retrieves information in a sorted manner. This information can help make decision at various levels within an organization. Information system recognize that there are different levels of workers in an organization who have their specific duties and thus provides them information is different ways (Heinrich, 2002). Its purpose is to make sure that the users of the system are quickly able to access, comprehend, and react to the information provided to them. Wiseman (1985) mentions that the information system improves business functionality by automating some of the fundamental information procedures. He further mentions that the information system increases the effectiveness of the management by satisfying their information demands. Information demands of businesses vary at different organizational levels. Various business functions at strategic, tactical and operational level have different types of subsystems of information system to serve their information demands. Some of the commonly used subsystems are as follows: • Management Information Systems (MIS) • Decision Support Systems (DSS) • Knowledge Management Systems (KMS) • Expert Systems (ES) • Executive Information Systems (EIS) • Transaction Processing Systems (TPS) • Accounting Information Systems (AIS)E-commerce
An important component of the information and communication technology and indeed one of its most momentous impacts is the provision and empowerment of electronic commerce. Electronic commerce is a process of buying and selling of products or services by means of electronic systems involving the Internet and e-mails (Graham 2008). Commercial activities performed through e-commerce are either business-to-business (B2B) or business-to-consumers (B2C). E-commerce is a very cost-efficient mode of conducting business-to-consumers commercial activities (Graham 2008). E-commerce allows economic agents to reduce the transactional cost to a great extent (Porter 2001). Instead of internal hierarchies, it empowers the market itself to organize economic activities, which in turn increases the efficiency of the not just the business but across the entire commodity chain (Malone et al. 1987). E-commerce creates a dimension of ‘spacelessness' for economic activities which is one of its most distinctive features. Since the emergence of the Internet and increasing use of e-commerce, the imminent “death of distance” and creation of an ‘eight continent' has been highlighted by researchers which is spurred by the increasing trade and commerce activities conducted electronically. They assert that constraints such as space and distance are becoming less significant for conducting economical activities (O'Brien 1992; Cairncross 1997). A large literature exits regarding various firms having used e-commerce to achieve competitive advantage by finding new and distant customers (for example see Daniel and Grimshaw 2002; Hamill and Gregory 1997; Kim and Mauborgne 1999; O'Keefe et al. 1998; Poon and Swatman 1999). Thus information systems also serve the purpose of communication with external business entities for trade and commerce activities.Analysis of the problems of gathering data and analysing information
Information systems are a vital tool in achieving competitive advantage for a business by properly managing and analysing the information. However there are many security concerns that have being in the corporate agenda since its early usage. Today organizations are challenged by various and complex information security matters for handling distributed computer networks. Large amount of e-commerce activities, increased usage of internet, and ever changing technologies means new threats and risks and vulnerabilities for businesses as more and more business functions and procedures are becoming paperless. For this purpose, right controls are required within an organization to reduce the risks and ensure effective functioning of the information systems (Sushil & Leon, 2004). Information Systems requires certain controls to be implemented for its smooth and effective functionality (Boczko, 2007). Information security managers can put these controls in place to ensure the system is secure against threats, exposure, and risks. (Gertz, 2003). • A threat can be any possible unwanted occurrence or event that could harm the Accounting Information System or the business. • The exposure is the possible loss of money that would occur as a result of the threat becoming a reality. • The risk is the chance that the threat will become reality. The controls that secure information systems against unfavourable outcomes are as follows: • Preventive Controls • Input Controls; Input controls checks upon the information that is being entered into the system. • Processing Controls; Processing controls checks whether the data is processed properly after it is entered in to the system. • Output Controls; The output controls ensure the completeness, validity, and accuracy of the data in various output mediums. • Storage Controls; The storage controls ensures that the data in stored in such a manner that it cannot be tampered with. • Files Controls; Files controls reduce the errors that occur due the improper storage of files. • Hardware Security; Hardware security control is very important as any damage or harm to the hardware would mean that the failure of the system therefore the hardware for the information system must be kept in a secure place and with only reliable and relevant personal having access to it. Proper protection against high temperature or power failures and incidents should be made along with backup support. • Standardization; Standardization controls involves usage of already laid down standards by the developers and operators for the methodology of the system development and operation respectively. (Basset, 1993) • Detective controls • Testing; Testing is required to detect any problems occurring in the system and is thus performed before it is made operational. Testing can shows problems that can occur in the processing and any other errors. It is recommended that testing should be performed on a routine basis or after any new developments. • Training; the training of the data processing staff ensures proper functioning of the system. The awareness of the staff also helps in pointing any defects in the system which could then be resolved. • Operation Controls; Operation controls in Dean Plc are controls which record what computer systems and the employees have been doing. The operational controls can include tasks such as rotation of shifts, duty logs, manual of operating instructions, attendance controls and computer logs, etc. which can referred to whenever a problem is reported. (Basset, 1993) • Corrective controls • When any problem in the system is detected, the management along with the help of Business Analysts and Expert can take relevant steps to correct the problems in the system. • Certain procedure can be set for reoccurrence of the problems. Apart from security concerns, there are several other challenges and issues associated with managing information systems. These are: • Increase costs of a technological solution (developing, implementing and maintaining of the information technologies and systems) • Reliability for certain processes (information systems require thorough testing before they could be used and are difficult prone to errors leading to potential losses) • Software tools are not fixed but constantly evolving (information communication technology tools require timely upgrades to meet prevailing standards) • Integrating digital and non-digital sales and production information (for e-commerce activities) • Customer fear of personal information being used wrongly (privacy issues) • Customer have high expectations regarding efficiency and real time responses • Vulnerability to fraud and other crimes • Higher employee training required to effectively using the information technology. Another technological concern regarding information technology is the high volume of data generated from its use and its management. Organizations are required to create robust middleware application that are capable of handling the high amount of data and route it to the appropriate information systems in a timely manner (Ngain and Gunasekaran 2009).Major sources of relevant data used for management information systems
As mentioned previously, businesses and organizations have a variety of information requirements. Executives at strategic level require information to help them with their planning and strategic decision making. They require a summarized form of information that can give an overview of the business. Middle management requires more detailed information in order to oversee and control business activities. Operational level employees need basic routine information to carry out their day to day duties. Therefore, businesses have several information systems working altogether at the same time. Different information systems have different sources of gathering data according their purpose. The following presents a list of most commonly used information system and their likely sources of data and users.Executive Support Systems
Executive Support System helps the senior management of an organization in making strategic decisions. Executive Support Systems shows the status of all key business activities and involves large data analysis to help strategic decision making. Therefore, it is likely to have information from all the internal and external sources which is gathered, analysed and summarized for strategic decision making. Internal sources include information collected from other information systems. External information system can include external data gathered by e-commerce activities, external market analysis and etc.Management Information Systems
Management information system is concerned with the summarized data of the business transactions that helps middle management to monitor business activities. Therefore it is likely to have information from all the internal sources such as transaction processing systems. It summarizes information into management reports.Decision-Support Systems
Decision Support Systems are designed to assist middle and top level management in making decisions at uncertain conditions. It informs the user about the possible consequences of their decisions. It gathers internal information to analyse the available options and alternatives. It has a predefined set of logic which is part of its design. It uses complex tools spreadsheets, and databases for creating ‘what if' models.Knowledge Management Systems
Knowledge Management Systems are created to help organizations and businesses create and share information. The source of such information systems is typically the employees who create new knowledge through their own expertise and then share it along with others within an organization. This share pool of information is created to search new commercial opportunities. Examples of such information systems are web-portals and Intranet portals created by professional lawyers, management consultants and etc. these information systems categorize and distribute information efficiently among users. Information could be contained in any form and formats such as word processed documents, presentations, web pages and etc.Transaction Processing Systems
Transaction Processing Systems are created to process daily repetitive activities and transaction in an automated efficient manner. The automation increases the accuracy of the information. A business usually involves several reoccurring transactions. Therefore, there are several Transaction Processing Systems such as Billing systems, Payroll systems, Inventory management systems, etc. The sources of these information systems are the employees at the operational level or the organization. Sometimes automated identifications are also used to input data to these systems such as Radio Frequency Identification.Office Automation Systems
Office Automation Systems are tools that help improve the productivity of employees processing data. Such systems usually work as standalone programs and do not link data to other information systems. Examples of such systems include Microsoft Office Tools, and Computer Operating Systems.References
Amor, D., (2001). Introduction to Internet Business. Available from :https://www.informit.com/articles/article.aspx?p=165183&seqNum=3 (cited on 22nd November, 2010) Basset P.H. (1993) Computerized Accounts, 3rd ed, Manchester : NCC Blackwell. Boczko, T., (2007). Corporate Accounting Information Systems. Financial Times Press Cairncross, F. (1997), The Death of Distance: How the Communications Revolution will Change our Lives. Cambridge, MA: Harvard Business School Press. Daniel, A. (2001), Introduction to Internet Business. Inform IT Networks Available from https://www.informit.com/articles/article.aspx?p=165183&seqNum=3 (cited on 22nd November, 2010) Gertz. M., (2003). Integrity and Internal Control in Information Systems. Springer Graham, M. (2008), Warped Geographies of Development: The Internet and Theories of Economic Development. Available from https://geospace.co.uk/files/compass.pdf (cited on 22nd November, 2010) Hamill, J & Gregory, K. (1997), ‘Internet Marketing in the Internationalisation of UK SMEs. Journal of Marketing Management 13, pp. 9–28. Heinrich, L.J. (2002). Informations management. 7th ed.. Munich: Oldenbourg. Kim, C & Mauborgne, R. (1999), “Creating the New Market Space'. Harvard Business Review 77, pp. 83–93. Ngain. E. and Gunasekaran. A, (2009). RFID Adoption: Issues and Challenges. International Journal of Enterprise Information Systems, Volume 5, Issue 1, pp. 2-8 O'Brien, R. (1992), Global Financial Integration: The End of Geography. New York: Council on Foreign Relations Press. O'Keefe, M. O'Connor, G. & Kung, J. (1998) ‘Early Adopters of the Web as a Retail Medium: Small Company Winners and Losers'. European Journal of Marketing 32, pp. 629–643. Poon, S & Swatman, C. (1999) ‘An Exploratory Study of Small Business Internet Commerce Issues'. Information and Management 35, pp. 9–18. Porter, M. E. (2001). ‘Strategy and the Internet'. Harvard Business Review March 79, pp. 63–78. Sushil. J., Leon. Strous. (2004) Integrity and Internal Control On Information Systems VI. Springer Ward. J., (1995) Principles Of Information Systems Management. Routledge Wiseman, C. (1985). Strategy and computers: information systems as competitive weapons.Cite this page
Management Challenges Posed By the Role of Information Systems in Organisations. (2017, Jun 26).
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Example Leisure Management Essay
Critically evaluate the process of change management carried out by a leisure and sport organisation with which you are familiar. Use appropriate theory to evaluate the change management process in question.
Sports and fitness has come a long way over time, it is now looked upon as an industry, which operates on a global scale. Sports and Fitness could comprise clubs, health centres, big games like the Olympics, football clubs, golf courses, championships and titles ranging a multitude of sports and games. Each of these activities are part of organisations which are run just like any other organisation with management control, finance, marketing, human resource management and strategy. Each of these areas contribute to the success or failure of the enterprise. Due to immense media coverage and sponsorships, the sector has become very active, glamorised and highly competitive. The competition in this sector is becoming stronger and more players realise the lucrative benefits this sector has to offer. Television and media have greatly publicised the health and sports segment, to an extent where people are beginning to see the advantages of being part of it. Many beauty pageants have also been instrumental in creating the message about beauty, health and fitness. The outcome has been a combination of fitness and leisure centres, these are training grounds for athletes and people who would like to achieve a fitness regime by being part of these centres. More and more people are now keen to be fit and involved in sports of some kind to keep up their fitness levels and be healthy. Crichter (1984) says, the paradox of sport is that it provides such moments of self-realisation even as it confirms their apparent impossibility elsewhere. It both realises human identity and denies other kinds of especially racial and sexual identity. It is both uncontaminated by the rest of social life and shot through with economic and political influences. It is both timeless and a product of history [Frank Kew (1997), p 12 - 25]. Sports and fitness are about helping create a self-identity, which is high on self-esteem, confidence and good belief. The following is information on sports psychology which helps understand the reasons behind so many fitness and leisure centres springing up across countries including UK. Another interesting quote about sports comes from Huizinga, 1972, Play is essentially a free activity quite consciously outside 'ordinary' life as being 'not serious', but at the same time absorbing the player intensely and utterly. Play has no material interest, and no profit can be gained by it. It proceeds within its own proper boundaries of time and space according to fixed rules and in an orderly manner. It promotes the formation of social groupings which tend to surround themselves with secrecy and to stress their differences from the common world by disguise or other means [Cox H. Richard (1998), p 15 - 30]. The feature about sports, which is of great interest, is that the ways these organisations work have wholly different perspectives. The social practices, rule structures are self-contained and independent and so applying management practices would need to take this psychology in context to the final argument. The people who work in this industry are also influenced by the way this industry operates, their psychology is determined by this. The concept of sports and fitness as joint collaborative projects can be analysed further, there are social dynamics involved in this ball game. In this context, the social dynamics pertains to practitioners who interact with each other. As per Guttmann (1978), modern sports and fitness is monitored and handled by multinational companies, who administer and control the operations by local, regional or international levels. The people in this organisation exercise a lot of power, power to 'oversee and sanction athletes, teams and events make up rules and enforce them, organise events and certify records' [Cox H. Richard (1998), p 20 - 34]. As the sports industry had gained momentum and is diffused with different social and national groups of personnel, the bureaucracy needed to oversee the governance process of sports have become more complex and powerful. In organisations driven by such force bringing about change would be a tall order, which would need more than good management skills. Although sports and health organisations are a new phenomenon compared to a lot of sectors and industries, which have been around for decades now, change management is a subject which will be difficult and need strategic management inputs when applied to this sector. Yet given the volatile markets and external environment, change would be a factor organisations cannot avoid. Change in any organisation could be triggered due to either internal or external circumstances. The organisation in question for this paper is a health club, which has three divisions - sports, health and beauty and a leisure centre. For the sake of protecting the identity of the club, the name of the organisation has been changed to 'Fitness first'. The problems in this organisation first started with the introduction of a new arm to the organisation - Sports Centre, where world famous coaches along with fringe benefits of private training gave professional and prospective athletes the option of being part of a club. Fitness first was initiated and conceptualised in the year 2001, the infrastructure and management were the best in the industry and finance was not a problem since the funding came from heavy weights in the Sports industry. To begin with the senior management that was brought on board by the two directors were given a lot of autonomy in running the business and expansion plans. The first two years in the business witnessed an inflow of members who were ready to pay a hefty annual fee to be part of the club. This was because of the personal care and interest each member was able to enjoy along with the state of the art infrastructure. The members realised the value of such benefits and were promoting the club through the word of mouth. Any business is good to go once the customers are satisfied with the deliverables and they see value for money. By the year 2003, the club had opened up 20 branches across England with additional features like a Beauty centre, which was very popular with both, the male and female members. The problem started in the year 2004 with the initiation of the Sports centre facility, the directors increasing interference, bureaucracy, lack of autonomy for the management and complacency on part of the management towards the operational and customer service aspects of the business. The first sign was the failure of a club, which had opened up in the posh area of Kensington, London. The management was unable to understand the reasons for the lack of members despite heavy promotional campaigns. It was then observed that almost seven clubs had not enrolled new members over a period of three months. Finally the first Sports centre initiated at the Reading branch was showing blatant signs of failure. From a membership base of six professional athletes and 4 beginners, three beginners had already dropped out in the first month itself and the remaining members were considering giving up membership of the sports centre. All this had a combined effect on the revenue figures as well as dwindling profits in the first quarter of 2004. Fortunately the two directors realised that there were serious problems with the health club and leisure centre and a meeting was called upon with the entire management team across all clubs. A whirlwind strategic conference was organised, which lasted four days, and everyone realised that there was a need for introspection and change. The main problems identified during the conference were - 1.
Lack of Autonomy 2.
Lack of focus on customer service 3.
Lack of flexibility amongst management 4.
Lack of improvisation tools to enhance business prospects 5.
Lack of focus on new customers as well as old 6.
Lack of personalisation, which had been a competitive advantage at one time The problem now was to understand and plan a strategy to combat all the problems listed above. Change is always a difficult proposition since it needs people to do something new, something they are not aware of and this especially since it takes them into an insecure environment. The framework involving strategic change might comprise the organisation structure, culture and skill set. When implementing plans for a change proposal, one needs to comprehend if the change runs as deep as the organisation structure and culture since the latter is a deep process which needs a lot of time, patience, acceptability and understanding. Peters and Watermans (1982) defined strategy as the core structure of change, strategy is the deliberate or emergent pattern of decisions which shape an organisation's future and its fit within its environment. These decisions may involve changing the future scope and shape of activities or major areas of internal change aimed at protecting or enhancing capability. [Grundy Tony (1993), p 28] The changes at 'fitness first' would not only need the management personnel who were part of the conference but also individuals who were contributing at one level or another at every branch. Each personnel needed to understand the extent of the problem and be willing to bring about the required change so that the organisation could once more progress towards growth, profitability and satisfied customers. Carnall (1986) is an important contributor to the process of managing change. As per Carnall, implementing change goes through a series of stages, which involve, denial, defence, discarding, adapting and internalising. Change needs very adept and fragile handling of people, according to Lewin (1935), the cycle of change spans a considerable amount of time, it depends on how fundamental or challenging the change is, also there is always some decline in performance in managers and that's what the change agents need to account for [Grundy Tony (1993), 40 - 46]. A change agent is the person in charge of bringing about the change process; the agent might be internal or external depending on the circumstances as well as the extent of change. This agent is a manager with special qualities, which will make him/her effective and successful in planning and executing the process. Charles Handy (1999) uses the ten roles defined by Mintzberg as a basis for making one understand the different roles of the manager. As leading personnel the manager needs to be a figurehead, leader and liaison, all these are interpersonal roles. In the capacity of an administrator, he/she needs to monitor, disseminate and be a spokesperson these are informational roles. Lastly as a fixator, he/she need to be an entrepreneur, disturbance handler, resource allocator and negotiator, these are decisional roles. Since the meeting at Fitness First, it was strategically decided that each centre would be assigned a change agent who will be internal given the extent of the problem. The senior management, local teams and the directors based on a compilation of all the above qualities, mutually listed the change agents. Charles Handy brings in some interesting perspective on how organisations are, as much as people would like to view them as well-oiled machinery, they comprise of people. People from different backgrounds, cultures, lives, opinions and behaviour. All these people compete for resources, power, recognition and their own judgements. There will always be a difference of opinions, values and culture, each one would conflicts of priorities and goals, 'there are pressure groups and lobbies, cliques and cabals, rivalries and contests, clashes of personality and bonds of alliances'. [Charles Handy (1999), p 209 - 210] Since the problems being faced at Fitness First were grave in appearance, the directors were very forthcoming in following a participative approach, from top to down in the organisation. They realised that the autonomy and right to exercise power in the individual sphere of the managers was a positive attribute, which had to return to the way the organisation functioned. As per Rosabeth Moss Kanter (1983), the participative approach is only taken when the change agents view the problem as internally driven, based on choice and responsiveness, rather than something which is imposed externally facing extreme resistance. The architecture of change needs an awareness of foundations, Rosabeth Moss Kanter (1983) an academic expert on change management states that the change agents need this history of relationships, coordination, mutual trust to learn from a successful story and imbibe the values in the new process. The art and architecture of change, also involves designing reports about the past to elicit the present actions required for the future [Rosabeth Moss Kanter (1983), p 288 - 290]. The building blocks of change can be easily interpreted from Quinn's definition of managing strategic change, The most effective strategies of major enterprises tends to emerge step-by-step from an iterative process in which the organisation probes the future, experiments, and learns from a series of partial commitments rather than through global formulations of global strategies. Good managers are aware of this process, and they consciously intervene in it. They use it to improve the information available for decisions and to build to improve the information available for decisions and to build the psychological identification essential to successful strategies. Such logical incrementalism is not 'muddling' as most people understand that word it honours and utilises the global analyses inherent in formal strategy formulation models and embraces the central tenets of the political or power-behavioural approaches to such decision making [Rosabeth Moss Kanter (1983), p 288 - 295]. The process of change as defined by so many academics needs trust, loyalty and faith in the change agent who will lead the people involved through the process. The managerial style in organisations like Fitness First needs to change as part of the change management process. The hierarchical form needs to become more networked where people have access to information, there is informality, equality and there is lateral bottom up communication. Birchall and Lyons (1995), talk some more about the way businesses need to become more effective and efficient, as this will help in the change process, similar to fitness first businesses need to rethink the way work is being organised and executed. This is due to the changing demands of the customers, the expectations and aspirations of the employees; the transformation comes through with revamping of operations and by taking advantage of emerging possibilities. Expectations and communication brings us back to the way the change agents would draw personnel at Fitness First into rectifying the problems being faced by the organisation. Change is not always about something new; sometimes it is about going back to the foundation and grass root level of the origination of the business. Since the change was primarily internal, managing the expectations of the people involved about the quantity and quality of change would be very important. The people involved need to know that the change is being brought about within the structure and culture of the organisation to eventually benefit everyone by being part of a successful venture. Since the profits are dwindling, it does call for extreme measures, which people might not be expecting. The biggest fear amongst employees in the face of change is the insecurity of not having a job, these fears had to be allayed by the change agents at the earliest else the performance would dip to a large extent. The second step was to know expectations and then communicating the plan for managing and executing change in the way work was being handled. The final steps needed at Fitness First were - 1.
Changing the organisation structure in certain places depending on the agenda and need 2.
Make the business more result oriented through customer satisfaction 3.
Training for all personnel to understand customer relationship management 4.
Motivate the employees through personal belief to work towards rectifying the problems 5.
Open door communication policies to make operations transparent 6.
Introduce annual reward management system for employees and customers A communication plan was the first step towards personnel involvement in the change process. When complacency sets in and people get comfortable with their surroundings, change mostly uproots them from this comfort zone and more often than not, the results are not very encouraging. The change agents brought into play an effective communication plan, which covered the scope of change, the effects and results. Since there was a need for restructuring, the involvement of people is necessary, listening and learning become prime to making it a success. The agent has to take people into confidence about how the change will affect them internally as well as externally, from the view point of the organisation as well as personally. Another important factor to be remembered by the change agents is the five-model process for managing change - diagnosis, planning, implementation, control and learning. At fitness first the first two stages were near completion and the following three were moving at a parallel pace with the ensured commitment of the staff. According to Margaret Davis and David Weckler (1996), a major factor underpinning the success of failure of change is the capability of the organisation in question. Organisational capability is a big part of the organisation's competitive advantage; it is also a reflection of its inherent flexibility, adaptability, and capacity to preserve single-mindedness, rationality despite all pressures, internal or external. Coming to fitness first, now that a detailed analysis of the organisation structure and resources was through with a new one in place, displacement of employees from their previous positions had to be dealt with patience. It is important to time and again bring in communication tools and enforce the change objective and what it does on a larger scale. The anxiety and insecurity need to be dealt with, once the commitment is part of the change project, success is not difficult. Once the change agents had spent time, money and effort in designing the new organisation chart, it was important to see how well it could be implemented. This brought us to the three important ingredients of implementation - communication, impact analysis and transition management. In this case the employees needed to know if the reporting system would be different, working in different divisions under different people would be a part of this transition. The customers needed to know if the services changed with this process in flow and if the representatives they dealt with earlier would also change. On all accounts, effective communication was introduced through a first ever group wide meeting being called to mitigate or absolve any doubts which might hinder the change process. The customers were dealt with newsletters and individual meetings as deemed appropriate. Fitness First change agents had devised a list of ripples these changes might create and so there were already back up resources and plans in place. Each Change Agent had accounted for a transition manager in their teams who would be responsible in overseeing that the transition took place as effectively and smoothly as possible. After long, fitness first had brought changes in the structure and introduced open communication channels; there was more autonomy in the organisation. This gave way to a common platform for employees to chip in ideas about growth potential and customer enrolment. The sports centre introduction was seen as a moderate expansion plan and so new associates and trainers were introduced to cater to the demands of upcoming talent. Apparently a talk with the old members revealed that they missed personal training regimes and a dedicated coach scenario, which led them to the decision of quitting membership. The introduction of the Customer Relationship Management program was an effective measure, which reintroduced one to one personal communication between members and the club centres. There was a monthly reward program for the most successful idea of the month; all these tools went a long way in hauling employee confidence, motivation and loyalty. The customers were also content and satisfied with the resurgence of these change measures, which showed responsiveness on part of the club towards their reaction and value. Customers always need to feel important and taken care of; this is the oldest adage for any successful business. To conclude the design of an organisation cannot be rigid. Given the current competitive environment and unpredictable markets, they need to be more in tune with the customers and changing business conditions. The only constant is change and so any organisation - their structure and business processes need to be productive, flexible, adaptable and responsive to changing business needs. Fitness First was able to bring about internal changes which the management deemed fit, yet in the future there will always be need for more review processes to see when and where another change might be required. This was a learning lesson for fitness first, a platform for them to realise the need to become a learning organisation to stay abreast of competition and external environment. Senge (1990) introduced the concept of the learning organisation, one, which constantly reflects, understands, and evolves and changes based on internal and external conflicts and needs. All organisations need to imbibe the qualities of a learning organisation and the sooner they do o the better. Finally Change involves the interaction of a number if systems within an organisation. These may interact with one another in ways, which will either facilitate or inhibit change. A key factor in managing change effectively is to understand how these systems interact with one another. Openness to understanding these interdependencies is identified by Senge as being a crucial part of 'the learning organisation' [Handy Charles (1999), p 12 - 25].
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Formalities – Perfect/Imperfect Trust Essay
Formalities – Perfect/Imperfect Trust
Introduction
The question in this case refers to the creation of a trust, i.e. the formalities that are required. In the case of Serena, she has created a trust that holds the property in trust for Alice for life and then the remainder goes to Alice's children. On the death of Serena, there is a valid will where Alice gets all of the property and there is no interest for Alice's children. Therefore, the following advice is going to identify a trust is in place, which will ensure that the property transfers to the children.
The Creation of a trust
The case of Milroy v Lord identifies a perfect trust, which includes; 1) a deed of the trust; and 2) transfer of the property following all formalities . Therefore, in the case of the trust created by Serena, both the property "Hillside" and the Jane Austin books have the capability of being part of a perfect trust. However, in the case of the land there are additional formalities, which will be discussed later. At this point there is a perfect trust that related to the books, because this is a case of a perfect trust, because there is both declaration and transfer of the books to the trustees . The share certificate and cheque are not in the deed documents, but have been transferred to the trustee with the declaration "to be added to the trust". This is not a full deed, but applying the case of Milroy v Lord it is a declaration plus transfer of the property, which means that it has a capability of being a trust under Neville v Wilson and Vandervell v IRC . The argument still remains on whether the formalities have been fulfilled in the case of the land, shares and cheque which can be a contentious subject.
The need for formalities?
The case of Neville v Wilson held that the formalities of a trust need not be in writing if it can be shown that intention is present; however, problems have arisen in showing this intention, which is why the Statute of Fraud 1677 introduced the need formalities A similar argument that there is no need for formalities was expressed in the case of Walsh v Lonsdale in 1882; however as it can be seen in 1925 the formalities were required for all property under a trust. However, it seems to be that the argument for these formalities is that they clarify the intention of the settlor. S. 53(1)(c) of the Law of Property Act 1925 (LPA 1925) is now the defining piece of legislation for where trust formalities can be identified. In the case of Timpson's Executers v Yerbury it was held that the formalities of a trust can be identified in the written disposition of the trust and the transferring of the property to the trustees. The interest in respect to Uncle Joe's Trust is an equitable interest; therefore should comply with s. 53(1)(c). As this trust is in the original deed then it complies with the formalities of 53(1)(c) an like the Jane Austen's novels form a perfect trust, as the deed identifies both the intention and the transfer of the "equitable interest" to the new trust. The shares are another example of an equitable interest; however as will be discussed later may not form a perfect trust due to deficiencies in formalities. In the case of Alice some of the property has been adequately transferred through deed and transfer to the trustees; however there remain questions if the whole trust can be properly administered. If one considers the case of Neville v Wilson the indication is that the requisite intention is enough. However, the problem is that Neville v Wilson is in direct contradiction with s. 53(1)(c) of the LPA 1925, which states that "a disposition of an equitable interest… subsisting at the time of the disposition, must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by his will". This would mean, the prima facie facts of the case, are that all of the property would have to be in the initial trust deed in order for it to be transferred on trust to Alice; whereby anything outside of it would return to the estate. However, it is not as simple as this. The case of Neville v Wilson needs to be reconciled and there are additional formalities required in respect to shares and land.
The Transfer of the Land:
In the case of the land s. 53(1)(b) states that a "declaration of trust respecting any land or interest therein must be manifested and proved by writing signed by the person who is able to declare such trust or by his will." Therefore, the land must be transferred by deed to the trustees, which has been done in the case of Hillside; therefore it would indicate that as soon as the deeds to the property were transferred to the trustees the land has been moved into a trust. The exact route of transfer has been identified in the Law of Property (Miscellaneous Provisions) Act 1989 s. 2, which identifies that the deed needs to be properly signed by each party in the transfer . This means that the trustees must have signed for the exchange and the deeds in this case. The implication of this is not clear as the deed document has been transferred to the trustees, but the question is whether this deed shows the trustees as the legal owners, if not then the formalities have not been fulfilled and the property has not passed, as per the case of Firstpost Homes v Johnson .
The Shares:
In the case of the shares, as an equitable interest, s, 53(1)(c) should be followed, which means that the shares should be deeded and in writing, as well as entered into the company books as registration of change . In the case of shares the formalities are important, because like land there are external legal formalities that must be complied with. Therefore, if the settlor had not begun the steps to transfer the shares, with the company, then regardless of whether there was an intention and the share certificates were placed in the hands of the trustees the constitution had not been fulfilled . This was the approach that has been taken in Grey v IRC and Oughtred v. IRC ; however Vandervell held that if the deeds and the shares had been transferred to the trustee then it will be implied that the trust is perfect. A similar approach was taken in Re Rose and Hunter v Moss where transferring the correct information to the company was enough, as it was in the hands of a third party. The problem in this case is that there is no formal deed, even though the shares have been transferred. This means that the trust is not properly constituted in respect to the shares and would go back to the estate.
The Cheque
As this is a chattel the case of Neville v Wilson will apply, because the requirements of Milroy v Lord have been fulfilled and a perfect trust will be implied.
Duty of the Trustee and Remedies:
Introduction:
The case of Alan relates to the duty of a trustee, a breach of trust and the equitable remedies that are available. Alan is a director of a company that holds a trust for the holidays that it sells on behalf of Go Ltd, which is separated from Buyit Now's accounts. The question that is raised is whether the actions of Alan, by; 1) failing to put the money into BuyIt now are accounts; and 2) taking money out of Go Ltd's account to purchase a gift for his girlfriend, are a breach of trust. Then it will consider if it is a breach of trust what remedies are available to reclaim the lost money. The first part of this question will identify the duty of the trustee and the implications for the other directors of Buyit Now. Then it will consider what remedies are available to Go Ltd to retrieve the lost money.
Duty of the Trustees:
The administration of a trust is set out by the Trustees Act 2000 (TA 2000). Section 1 of the act defines the duty of case requirements that the trustee must adhere to, which is to "exercise such skill and care as reasonable in all circumstances". The implication of this is that there is a minimum test for the private trustees as a reasonable trustee . However, s. 1 TA 2000 put the decision of Speight v Gaunt into statutes, highlighting that this is a higher duty of case for any trustee with "special knowledge or experience" should take "all those precautions which an ordinary prudent man of business would take in managing similar affairs of his own" . This means that in the case of Alan and the directors of the company they owe a standard of care of a company director . It is also important as this trust has been set up in the course of the company's business that s. 1(b) of the TA 2000 will apply, which means that the level of the duty of care will be that which is "reasonable to expect of a person acting in the course of that kind of business" . It is important to note that the Nestle Case identified that a trustee cannot be held in breach of trust for a mere error of judgement. It must also be identified that as this is a company/industry arrangement there may be an exclusion clause in place that limits liability. This is a perfectly valid approach and upheld in the case of Armitage v Nurse , which states "[n]o trustees shall be liable for any loss of damage which may happen to a trust fund… at any time from any cause whatsoever unless such loss shall be caused by his own fraud". However, in the case of Alan there is more than a mere error of judgement and it is highly likely that his acts would be classed as: 1) Wilful deceit, in regards to the monies that were never transferred; and 2) Recklessness in regards to the monies that were taken from Go Ltd to pay for a yacht for his girlfriend This was confirmed in the case of Re City Equitable Fire Insurance Co as "either a consciousness of negligence or breach of duty, or a recklessness in the performance of a duty" . Therefore, the acts of Alan could not be limited by an exclusion clause.
Remedies:
There is a problem with this case, which is that the company is the trustee and each of its directors are to act personally . To follow on from this each of the trustees, as BuyIt will be a corporation trust for Go Ltd, as it is an industry association it must be assumed that BuyIT has capability in its Articles of Association. This means that one trustee (Director) cannot be liable for the actions of another unless they facilitated, by act or omission, the breach . This means that the company cannot be held in breach, only Alan unless it can be shown that the other trustees were put on notice . However, the indication is that this is not the case. This raises a problem in regards to receiving the monies from the administrators of BuyIt, because as BuyIt as a whole was not in breach there is no claim against the company. As the company acts as a trustee the dishonesty of Alan cannot be imputed to the other director's in the company. This means that there is only a personal breach of Alan in the trust. Rather, it must be against Alan personally for breach of trust. Alan is personally wealth then it may be the case that if all of the losses can be reclaimed in an action for personal breach of trust . However, as his wealth has depleted it may be that not all the monies can be recovered this way. Therefore, the remedy of tracing is available, as per Re Diplock . The case of Foskett v McKeown identified that tracing is not a remedy, but a process to identify the lost property. In the case of Go's lost money the money transferred to buy the yacht is easy to trace , but as the yacht is destroyed then it is of no worth. This means that it may be the case that personal action against Alan is the only available option. However, according to Re Diplock it will be able to trace the money from Alan's girlfriend as she benefited from the act, as well as she may have known of the act. If Fiona does know then she is as liable as Alan . It is possible that she did not know of the act; however as she received the gift and it can be traced back to Fiona. It is possible that an innocent third party can be approached to claim the lost funds, but it may only be limited to estates . Even so the case of Butler v Broadland and Re J Leslie Engineers Co Ltd have indicated this act may be extended to other fiduciary relationships, which there are indications that in the case of insolvency there would be strong case. This is because the money to claim from the trustee that has breached the trust, just like in the case of a deceased settlor, is no longer available. In this case it would be fair to pursue the innocent third party. In the case of the monies it is mixed with that Buy It's, which means that it may not be possible to trace as a mixed, as opposed to an unmixed account . However, it is identified that if mixed or not it must continue to exist unless it has been used to pay a debt or completely depleted . Therefore, as the company is bankrupt it is more than likely that the funds are now untraceable from BuyIt, which means that personal action is only available.
References:
1) Clemants and Abbass (2008) Complete Equity and Trusts: Texts Cases and Materials, OUP 2) Edwards & N. Stockwell (2002) Trusts and Equity, Longman 3) Edwards & N. Stockwell (2010) Equity and Trusts 9th Edition, Longman 4) Hayton & Mitchell (2005) Commentary and Cases on the Law of Trusts and Equitable Remedies 12th Edition, Sweet & Maxwell 5) Hudson, A (2009) Equity and Trusts 4th Ed, Routledge Cavendish 6) Burn and Virgo (2002) Maudsley & Burns Trust and Trustee, Case & Materials, 7th Ed, OUP 7) Law commission (1999) 7th Programme of reform No 259 8) Law Commission in Trustees' Powers and Duties (Law Com, 1999, Report No. 260) 9) Moffat, G, Bean, Dewar (2005) Trusts Law: Texts and Materials 4th Ed. CUP 10) Pearce, Stevens & Barr (2010) The Law of Trusts and Equitable Obligations5th edition, OUP 11) Watt, G (2010) Equity and Trusts Directions 2nd Ed, OUP 12) Watt, G (2010) Equity and Trusts 4th Ed, OUP
Cases:
1) Milroy v Lord (1862) 4 De GF & J 264 2) Neville v Wilson [1997] Ch 144; 14-15; 3) Vandervell v IRC [1967] 2 AC 291 4) Walsh v Lonsdale [1882] 21 Ch D 14 5) Timpson's Executers v Yerbury [1936] 1 KB 645 6) Firstpost Homes v Johnson [1995] 4 All ER 355 7) Grey v IRC [1960] AC 1 8) Grey v Oughtred [1960] AC 206 9) Re Rose [1952] 1 All ER 1217 10) Hunter v Moss [1994] 3 All ER 215 11) Speight v Gaunt (1883) 9 App Cas 1 12) Walker v Stones [2001] 2 WLR 623 13) Nestle v National Westminster Bank [2000] WTLR 795; cf 14) Armitage v Nurse (1998) Ch 241 15) Re City Equitable Fire Insurance Co [1925] Ch 40 16) Royal Brunei Airlines v Tan (1995 2 AC 378) 17) Brinks Ltd v Abu-Saleh (1995) WLR 1478 18) Styles v Guy (1849) 19 LT Ch 185 19) Target Holdings v Redfern [1995] UKHL 10; Jackson v Dickinson (1903) 1 Ch. 952 20) Re Diplock [1948] Ch. 465 21) Foskett v McKeown [2000] 3 All ER 97 22) Taylor v Plumer (1815) 3 M & S 562 23) Ministry of Health v Simpson [1951] AC 251 24) Banque Belge pour l'Etranger v Hambrouk [1921] 1 KB 321 25) Agip(Africa) v Jackson [1992] 4 All ER 385 26) Lipkin Gorman v Karpnale [1992] 4 All ER 512
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Property Law Assignment
Property Law Assignment
Part 1
In this scenario, Raj has allowed his sister-in-law, Joyce, to live in his property. The question is whether Joyce enjoys the rights of a tenant, or if she is actually a mere licensee. There is, in English property law, a crucial distinction between the tenant and the licensee; the former enjoying significantly greater and more secure rights than the latter. It is often not, however, a clear cut distinction. In the present case, the terms of the occupation agreement that the parties drew up will need to be considered. Firstly, the document itself needs to be considered. The first term of it expressly states that Joyce is living in Raj's house as a licensee, and not as a tenant or lessee (that is, that no lease has been created). The document itself, however, might well represent a contract, which would put Joyce in the position of a contractual licensee (following such cases as R v Tao (1977) ). Even a contractual licensee, however, enjoys no proprietary interest in the property in question, as was evidenced in the case of Ashburn Anstaldt v Arnold (1989). A contractual licence can be contrasted to a bare licence, which is simply a personal permission, granted in this case by Raj to Joyce, without Joyce paying consideration, for her to enter his property. The purpose of the bare licence is to provide a defence against an allegation of trespass, so long as the licensee does not overstep the permission of the licence, as happened in the case of Tomlinson v Congleton Borough Council (2003). A contractual licence, by contrast, must involve (as in any contract) valuable consideration moving from the licensee. This was established by Megaw LJ in Horrocks v Forray (1976). Joyce pays a monthly rent of £600 to Raj, and this could well qualify as the consideration put the licence agreement on a contractual footing. The second term of the occupation agreement states that Raj can nominate a third party to share the premises with Joyce. This relates to the issue of exclusive possession, which is an essential element of any lease or tenancy. This was described as “the proper touchstone” of a lease by Windeyer J in Radaich v Smith (1959). Two seminal cases highlighted this distinction between leases and licenses. In Street v Mountford (1985), Lord Templeman stated that a tenant is entitled “to keep out strangers and keep out the landlord unless the landlord is exercising limited rights reserved to him by the tenancy agreement to enter and view and repair.” In AG Securities v Vaughan (1990), however, it was held that a licensee has “no legal title which will permit him to exclude other persons”. The agreement in the present case expressly allows for Raj to install a third party at his wish. This certainly argues strongly against anything other than a license governing the situation. Certain factors, however, suggest that it is not such a simple case of Joyce being merely a licensee. She pays a periodic monthly rent of £600, and the occupation agreement states that she will live there for a fixed term of four years commencing 1 October 2005. To return to Street v Mountford (1985), the House of Lords, in that case, identified three inherent components of a lease or tenancy. The first was exclusive possession, which has been discussed already, and which is not apparently in evidence in this case. The second, however, is that the lease or tenancy must be granted for a fixed or periodic term certain. This means that the maximum duration of the lease or tenancy must be clearly ascertainable from the outset. Although the strict application of this rule was relaxed somewhat, the principle was reaffirmed in Prudential Assurance Co Ltd v London Residuary Board (1992). The 2005 agreement that granted Joyce the right to live in Raj's house clearly identified a term of four years after which the right would expire. In this respect, then, it would seem that the arrangement more closely resembles a lease. This is also a characteristic, however, of the contractual licence. The third element identified in Street v Mountford was the consideration that was discussed above. This too would suggest the arrangement is more akin to a lease, or at least a contractual licence, than a bare licence. It seems, then, that although the arrangement shares some of the characteristics of a lease, the rights enjoyed by Joyce are, in fact, only those of the licensee; that is, a person whose presence is only grounded upon the personal permission of the licensor. Joyce's position is stronger than that of a bare licensee, however, by virtue of the contractual arrangement. A further blurring of the limits in this area exists between contractual licenses and equitable or estoppel-based license, which has increasingly become proprietorial in character. A contractual licence does not, however, confer any proprietorial interest on the licensee, as was illustrated in Cowell v Rosehill Racecourse Co Ltd (1937) by Latham CJ who stated that “fifty thousand people who pay to see a football match do not obtain fifty thousand interests in the football ground.” A longer contractual licence, however, such as the one enjoyed by Joyce, for a period of four years, begins to resemble a proprietary interest in Raj's property, despite the absence of a right of exclusive possession. It is in relation to this last area that the decisive factor is most relevant. That factor is that when determining whether Joyce's occupancy is a tenancy or a licence, the parties' intentions (which were clearly that a mere licence should be granted to Joyce) are largely irrelevant. In Aslan v Murphy (1990), the court found that its task was to “ascertain the true bargain between the parties”. A crucial case of relevance to the present one was that of Addiscombe Garden Estates Limited v Crabbe (1958), in which an arrangement which purported to be a licence was in fact held to be a lease. Despite the fact that Raj and Joyce clearly intended the occupancy to be on the basis of a licence, and the contractual agreement was labelled as a licence, the court is at liberty to overturn this if the reality is that Joyce enjoys a lease. It seems unlikely, however, because of certain terms of the agreement, that Joyce enjoys a sufficient proprietorial interest in the property to become a lessee or tenant; but rather her position resembles that of a contractual (as opposed to a bare) licensee.Part 2
Section 11 of the Landlord and Tenant Act 1985 relates to the repairing obligations in short leases. Briefly, it obliges the lessor (that is, the party owning the greater estate, usually the freehold, out of which the lease has been carced) to undertake certain works and repairs to ensure that the property remains in good working order. An example is the obligation on the lessor to “keep in repair the structure and exterior of the dwelling house (including drains, gutters and external pipes)”. In recent years, this section has been considered in a number of cases. A crucial case in the development of property law was Bruton v London Quadrant Housing Trust (1999). The relevance of section 11 to this case was that the claimant (or plaintiff as he then was) claimed that he was a lessee of the property in question, which was owned by the Trust. Of course, if he was a mere licensee, he would not benefit from the statutory protection afforded by the Act. The county court found that he was a licensee and there was therefore not any breach of section 11. The House of Lords overturned this, however. Subsequently, in Sykes v Harry (2001), the section was considered again. In this context, the issue considered by the court at first instance (and subsequently re-considered by the Court of Appeal was whether the landlord's (that is the lessor's) statutory duty under section 11 relating to the repair of properties subject to a short lease was co-extensive with the landlord's contractual duty to keep in repair (that is, the obligation created by the lease instrument). Potter LJ stated that there is “implied into the tenancy a covenant by the tenant that the landlord may, at reasonable times of day, and on 24 hours written notice, enter the premises for the purpose of viewing their condition and state of repair.” Although at first instance the judge had found that the landlord's duty to take care had been coextensive with the contractual duty of repair, the Court of Appeal overturned this using section 4 of the Defective Premises Act 1972, and the duties imposed on the landlord under this as the principal factor. Later that year, in Southwark London Borough Council v McIntosh (2001), section 11 was once again before the court. Here the property in question, which was owned by the council, became defective due to the effects of severe damp. The question before the court was whether the landlord (the council) was in breach of its section 11 duty of repair. The landlord appealed against a first instance decision that it was in breach, and the High Court said that the tenant had failed to establish sufficient evidence to the effect that the damp had been caused by the landlord's breach of its section 11 duties. As such, there was no liability and the appeal was allowed. In Shine v English Churches Housing Group (2004), the question of damages awarded under section 11 was considered. The first instance judge had awarded damages to the tenant due to the landlord's breach of section 11, but the Court of Appeal found these damages to be “manifestly excessive”.Research strategy
My research began, in both instances, with a textbook. I used the contents page and the index of such books and Gray and Gray's Land Law, 3rd Edition; and their Elements of Land Law to identify key sections, such as “lease” and “license”. I conducted some background reading on these two legal interests in property, in order fully to understand the potential issues relating to each. It became apparent that there is often a blurred boundary between the type of legal interest a party enjoys in a property, despite what that interest might be labelled as. Having conducted this initial reading of key sections in various textbooks, I began to look for specific cases in which the issue of the lease/license distinction, and the application of section 11 had been considered. For this I used both textbooks, and electronic resources. I accessed LexisNexis Butterworths online, and was able to start by doing basic keyword searches in the case locator engine. From here I was able to read the judgments in the various cases, as well as (in some instances) abstracts of the key issues. In researching section 11, I began by finding the statute itself at the Office of Public Sector Information (again, available online) and was able to locate cases where it had been considered and applied.BIBLIOGRAPHY
Statutes Defective Premises Act 1972 Landlord and Tenant Act 1985 Law of Property Act 1925 Cases Addiscombe Garden Estates Limited v Crabbe [1958] 1 QB 513, CA AG Securities v Vaughan [1990] 1 AC 417 Alker v Collingwood Housing Association Ashburn Anstaldt v Arnold [1989] Ch 1, CA Aslan v Murphy [1990] 1 WLR 766, CA Bruton v London Quadrant Housing Trust [1999] 3 All ER 481 Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 Horrocks v Forray [1976] 1 All ER 737, CA Prudential Assurance Co Ltd v London Residuary Board [1992] 2 AC 386, HL R v Tao [1977] QB 141, CA Radaich v Smith (1959) 101 CLR 209 Shine v English Churches Housing Group [2004] All ER (D) 125 Southwark London Borough Council v McIntosh [2001] All ER (D) 133 Street v Mountford [1985] AC 809, HL Sykes v Harry [2001] EWCA Civ 167 Tomlinson v Congleton Borough Council [2003] UKHL 47 Secondary sources Gray, K. and Gray, S.F. (2003) Land Law, 3rd Edition (London: LexisNexis) Gray, K. and Gray, S.F. (2005) Elements of Land Law (Oxford: OUP)Fraud Order 203235
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Example Law Essay – the Declaration of Theory of Law
Introduction
The declaratory theory of law is quite simply that judges do not make or create the law, the merely declare what the law is and what it has always been. The declaratory theory of law has often been used by members of the judiciary and constitutional lawyers as a shield against the accusations of others that judges do in fact create law. The issue with the creation law by the judiciary is that the judiciary is an unelected body and therefore not accountable to the general public for their actions and judicial reasoning. The legislative body of the United Kingdom, Parliament, is elected and therefore, in theory, a reflection of the majority view on key issues such as euthanasia, gay marriage and terrorism measures. The reality is the English legal system has two main sources of law when it comes to the determination and deliverance of justice. There is the common law doctrine of precedent which has evolved with the judiciary and as a result, some would argue is highly uncertain. The second source of law takes the form of statute and as a result of the legislative wording that exists, is significantly more certain. Regardless of an individual's view on the matter, it has to be accepted, as stated by Lord Irvine of Laring, that, within a certain limit, the role of judges will require a degree of legitimate law-making. The limits of this law making ability is defined by the English constitution and entangled key principles, such as parliamentary supremacy. "The judges do every day make law, though it is almost heresy to say so." The reality is that the English Legal System has developed as such that the judiciary do demonstrate a degree of judicial creativity which results in the creation of law. There are two key cases, well known to all English lawyers which demonstrate the fact that the judiciary do make the law. The first is the famous tort case of Donoghue v Stevenson . In this instance, the claimant was asking the judiciary to develop a principle that was otherwise not in existence. The problem was that the claimant was asking the judges to not only change the law so that it supported her case but to also retrospectively apply that law to the event in question (i.e. the snail in the ginger beer incident). The result was that in 1932 the judges stated that the defendant had a duty of care towards the claimant that did not actually exist in 1928 when the incident occurred. There are two schools of thought as to how it can constitutionally be possible for the judiciary to act in this manner. The first is the most obvious but equally the most constitutionally concerning theory that the judges simply created new law and then retrospectively applied it to the event in question. There are some obvious issues here in terms of the principles of law and also the English constitution . The second of school of thought is the least applicable in terms of academic sway but is the most compatible with the principle of the English judicial system. This is the application of the declaratory theory of law, whereby the judges in this case were simply stating the law as it always has been. The next important case for consideration in this aspect is the criminal law case of R v R . This case involved the conviction of a defendant for raping his wife. Prior to the determination of this case there was no such thing as rape within a marital relationship; it was implied through the virtue of being married that sex would always be consensual. However, this conviction drastically changed the law by removing this marital exemption. The declaratory theory of law would have you believe that this is what the law had always been and that there was no new law being made. However 300 years of precedent in the form of such an exemption existing would contradict such a position. As a result, it has to be accepted that the declaratory theory of law is not a valid theory anymore and that judges do create law for legitimate purposes.Separation of Powers
As the law has developed, so have the academic theorists who argue that the judiciary can make law within certain narrow confines. This is not necessarily a negative concept, as many would have you believe, as the ability of the judiciary to make law without accountability is both an advantage and a disadvantage. The development of law in this manner means that the fact that judges do not have to worry about voting statistics is an advantage in ensuring that the correct and just path is followed . Rather than issues being dealt with in accordance with the mob mentality of the general public, they are determined without such pressures and in accordance with a pure moral conscious. The law can be changed quickly in this manner which makes the judiciary incredibly versatile. There is however a limitation on this power, which is embodied in the separation of powers which contains levels of checks and balances. It is important to appreciate two aspects of this problem. The first is the United Kingdom is one of the few countries in the world that does not have a written or codified constitution . This means that there are an extensive number of areas which have had to develop through doctrine and principle over a long period of time as there has been no specific document to resolve the question at hand. The second is that the concept of the separation of powers is a political notion and not a legal principle . The political concept of separation of powers is possibly as old as democracy itself, as its origins can be traced back to the father of logic, Aristotle. However, a number of legal principles have influenced the manner in which the political world has functioned. The most influential is that of Dicey's theory of parliamentary supremacy . This principle has influenced and dictated the extent of judicial creativity and activism and has acted as a check on the judiciary . This effectively makes the judicial branch the weakest branch of the three as the courts recognise that they can be overridden by Parliament. This was demonstrated in the case of Burmah Oil v Lord Advocate . In this case, the House of Lords held that the proprietor of the oil fields was entitled to compensation from the government for the lawful damage that had been caused. However, Parliament then enacted the War Damage Act 1965 which retrospectively exempted the Crown from paying such compensation. This effectively frustrated the decision of the House of Lords and resulted in the Court being overridden.Conclusion
It has to be accepted that the judiciary to alter the law and allow for it to develop through their judicial reasoning. However this is not something to be feared, as the judiciary is still the weakest branch out of the three constitutional branches and it has not yet exceeded its judicial remit. The use of parliamentary principles such as Parliamentary Sovereignty means that the powers of the judiciary are limited without the concept of justice being infringed upon.Bibliography
Cases- Burmah Oil v Lord Advocate [1965] AC 75
- R v R (rape - marital exemption) [1991] HL
- Alan, TRS, Law, Liberty and Justice: the legal foundations of British Constitutionalism Oxford University Press, Oxford, 2003, chapter 3
- Lord Denning, The Reform of Equity in C.J. Hamsori (ed). Law Reform and Law-Making (1953)
- Pollard, D. Constitutional and Adminstrative Law: Text with Materials Oxford University Press, Oxford, 2007, 15
- Baroness Hale ' A Supreme Court for the United Kingdom' (2003) 119 LQR 49
- Lord Bingham 'The Old Order Changeth' (2006) 122 LQR 211
- Lord Steyn 'Democracy, the Rule of Law and the Role of Judges' [2006] EHRLR 243, 246
- Woodhouse, D. 'The Constitutional and political implications of a United Kingdom Supreme Court' (2004) 24 LS 134
- War Damages Act 1965
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Example Law Essay - The declaration of theory of law. (2017, Jun 26).
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“Salomon is in the Shadow. it is Still Alive but no Longer Occupies the Centre of the Corporate Stage” (Schmitt Off, C.M., ‘Salomon in the Shadow’ [1976] JBL 305).
Critically evaluate, with reference to relevant case law and statute, how far this statement accurately reflects the current law relating to lifting the veil of incorporation.
Introduction
Salomon v Salomon[1] involved the principle of separate corporate personality. This states that as a general rule a limited company's shareholders are not liable for the company's debts beyond the nominal value of their shares[2]. However, in certain situations courts have ignored this principle[3]. Courts have done this under statute, during wartime, where there is an agency or trust arrangement, where the company was a sham, or when dealing with groups of companies. Recent decisions such as Adams v Cape Industries plc[4] and Prest v Petrodel Resources Ltd[5] have reaffirmed the principle in Salomon. However, courts have still been willing to ignore the Salomon principle, most notably in Chandler v Cape plc[6].Salomon v Salomon
Salmon v Salomon is an important case, as it established the principle that a limited company has a separate legal personality from its members. This is enshrined in s.74(2) Insolvency Act 1986, which states that in a company limited by shares, no member (or shareholder) is liable for any of the company's debts other than the amount (if any) on any unpaid shares. This is a great incentive for investors, who know that even if a limited company in which they own shares, owes millions of pounds in debts, their own personal assets are safe[7]. In Salomon a sole trader incorporated his business into a limited company. When the company failed, the liquidators argued that Salomon and the company were effectively one and the same. However, the House of Lords said that the company was a legal entity distinct from its members. Therefore, Salomon himself was not liable for the company's debts. This separation between members and company is called the 'corporate veil'. Corporate personality means that a company can sue and be sued in its own right and be a party to contracts, and exist after the death of its shareholders[8]. This was recognised by the House of Lords in VTB Capital v Nutritek Intl Corpn[9] where Lord Neuberger said: 'A company should be treated as being a person by the law in the same way as a human being.' Therefore, the Salomon principle remains an important part of corporate law today.Lifting the veil
However, there are several exceptions to this principle. In these cases courts 'lift the corporate veil' to make members liable for the actions of the company[10]. This undermines the notion that Salomon occupies the centre stage in corporate law today.Statute
s.213 Insolvency Act 1986 states that if, while winding up a company, the company's business is carried on with intent to defraud the company's creditors, a court may order any person knowingly carrying on the business to contribute to the company's assets. This goes against Salomon, as it holds the company's members responsible for its debts. However, it requires evidence of dishonesty[11]. This is difficult to prove. s.214 Insolvency Act 1986 states that if, while winding up a company, a director ought to have seen that there was no reasonable prospect of avoiding insolvency but continued to carry on business, then a court may hold them liable. There is no need for any dishonesty. However, this only applies to 'directors' and not shareholders. Even so, the Companies Act 2006 states that a 'director' includes a 'shadow director', which includes anyone other than a professional advisor in accordance with whose directions or instructions the directors of the company are accustomed to act[12]. This could include a parent company if they have direct control over one of their subsidiary companies. Therefore, in a limited way, this restricts the Salomon principle where there is wrongdoing involving the company.War
Courts may also ignore the corporate veil during wartime. In Daimler Co Ltd v Continental Tyre and Rubber Co (Great Britain) Ltd[13] a company was incorporated in England but the vast majority of its members were German. The House of Lords stated that whether a company was an enemy in wartime depended upon those who were in control of the company. This goes against the principle of separate corporate personality and weakens the idea that Salomon is always to be followed.Sham
Courts have also ignored the corporate veil where a company is a sham designed to commit fraud or avoid an existing contractual obligation. For instance, in Gilford Motor Co v Horne[14] the defendant was a former director of a company who signed an agreement that he would not solicit his former employer's customers. Instead, he and his wife incorporated another company which he used to breach the agreement. The court held that the second company was simply 'a cloak, or a sham' and held the defendant liable. However, courts will not lift the veil if the company is set up to avoid future liabilities[15]. Some commentators also argue that these cases do not involve lifting the corporate veil at all. Mayson, French and Ryan state that even if the agency used to commit the fraud or evade the obligation had been another person rather than a company, the result would have been the same[16]. The court in Gilford recognised this by making orders against both the defendant and the company. If this is correct, these cases do not necessarily go against Salomon v Salomon.Agency
Courts have also ignored the veil where they have found an agency relationship existed. In Re FG Films Ltd[17] a company sought a declaration that it had made a British film for financial reasons. The court held that in fact the UK company was only the agent for an American company which owned the vast majority of its shares. The UK company also had no place of business and existed only so that the film could be called 'British'. The court, therefore, lifted the veil. However, this has been criticised by commentators who note that, if this is correct, a court could infer an agency relationship merely from the act of being a shareholder[18]. Therefore, this High Court case seems to be wrongly decided, and the House of Lords decision in Salomon remains the higher authority.Trusts
Courts have also ignored the corporate veil where they have found a trust relationship exists. In Trebanog Working Men's Club and Institutive Ltd v MacDonald[19] an incorporated club was charged with selling liquor without a licence. The court held that as the members owned the liquor between themselves, there was no actual 'sale', and the club was simply a trustee of the liquor for its members. However, this contradicts an earlier case where the opposite decision was reached[20], and commentators note that this argument is 'at best tenuous'[21]. Therefore, this probably does not undermine Salomon.Groups
Case law is more contradictory as to whether groups of companies will be treated as another exception to Salomon. In a group, the parent company can own a number of subsidiary companies and still have separate corporate personality from them[22]. Traditionally, courts have held that this is a legitimate use of the corporate form, and that each company in a group is a separate legal entity[23]. However, in DHN Food Distributors Ltd v Tower Hamlets LBC[24], Denning MR in the Court of Appeal held that a parent company and its subsidiaries were a 'single economic entity' as the subsidiaries were 'bound hand and foot to the parent company', so the group was the same as a partnership. This undermines the Salomon principle. In Woolfson v Strathclyde Regional Council[25], the House of Lords disapproved of Denning's comments and said that the corporate veil would be upheld unless the company was a faA§ade. The DHN case approach has become less popular since then[26]. Commentators also note that the DHN case is self-contradictory[27]. Denning refers to the subsidiaries as being 'bound hand and foot' to the parent company, which implies the parent has control, but he also says they are 'partners', which implies they have equal power. Therefore, it seems unlikely that DHN will be followed in future, especially given the Court of Appeal's later decision in Adams v Cape Industries plc.Cases that support the Salomon principle
In Adams v Cape an English company was sued for the actions of one of its subsidiaries abroad. The subsidiary had caused injury to its workers through asbestos exposure. The Court of Appeal held that the parent company was not liable. The court held that the subsidiary was not a faA§ade or sham as the group had been structured that way only to minimize future liabilities. The court also rejected the argument that the subsidiary was an agent for the parent company, as the subsidiary was carrying on its own business. Finally, the court held that there was no general principle that all the companies in a group should always be treated as a single economic entity. This reaffirms the Salomon principle. In fact the court in Adams stated that DHN could be explained as a matter of statutory interpretation of the regulations regarding compulsory purchases at the time, and hence it did not actually involve lifting the corporate veil. Dignam says: 'Gone are the wild and crazy days when the Court of Appeal would lift the veil to achieve justice irrespective of the legal efficacy of the corporate structure'[28]. Therefore, Adams restores the primacy of Salomon v Salomon. This is supported by the recent Supreme Court decision in Prest v Petrodel Resources Ltd, where a divorced wife claimed shares in houses owned by companies in which her ex-husband was the controlling shareholder. She asked the court to lift the corporate veil and treat her ex-husband and the companies as being effectively the same. However, the court held that the veil could not be lifted without evidence of impropriety. The setting up of the companies had nothing to do with the marriage breakdown. Therefore, the court refused to lift the veil. Lord Sumption stated that the veil could only be lifted if there was a legal right against the controller of a company and the company's separate legal personality frustrated that right[29]. Also, it must be necessary for the court to lift the veil on public policy grounds. Critics have noted that it is very unlikely that these requirements will be met[30]. Also, although Lord Sumption's comments were obiter, they have been cited with approval in other cases and are therefore likely to be authoritative[31]. However, Baroness Hale in the same case did not agree, saying that she believed there were more cases where the veil could be lifted[32]. Therefore, the judgments are contradictory. In the end, the court decided that the properties were held on resulting trust for the ex-husband and could be claimed by his ex-wife. This arguably achieves the same thing as if the court had lifted the veil. Consequently, all that can be said is that the case does not rule out ignoring Salomon in cases involving groups of companies.A new attitude?
Another exception to Salomon involves tortious liability. In Chandler v Cape the claimant had also contracted an asbestos-related disease while working for a subsidiary of the parent company. This time the Court of Appeal held the parent liable in the tort of negligence. The court held that the parent would be liable if the parent and subsidiary were in the same business, the parent had superior knowledge of health and safety in that industry, the parent ought to have known the subsidiary's system of work was unsafe, and the parent ought to have foreseen that the subsidiary would rely on the parent's superior knowledge. This undermines the Salomon principle. However, critics note that Cape had an unusual business organisation where it was deeply involved in the day-to-day supervision of the subsidiary's health and safety policy. Therefore, the case may turn out to be 'Cape specific'[33]. For instance, in a later case with similar facts but concerning a different company, the Court of Appeal refused to hold the parent company liable[34]. In Chandler Lady Hale also emphatically rejected that this was a case of corporate veil lifting, saying that the parent had instead assumed a direct duty of care for the employee. In view of this, some critics state that the case may not be setting any useful precedent[35]. However, others view this clearly as veil lifting, regardless of how the court justified this[36]. These commentators believe that this suggests that the Court of Appeal is now more willing to lift the veil where there is a group of companies and it is in the interests of justice[37]. However, this was rejected in Adams v Cape. Even so, in Conway v Ratiu[38] the court again said there was a 'powerful argument' for lifting the veil where it 'accords with common sense and justice'. Unfortunately, this case is per incuriam as it did not refer to Adams v Cape and is probably wrong. Even so, in Lubbe v Cape Plc[39] the House of Lords were ready to lift the veil in the interests of justice in facts similar to Adams v Cape, as the foreign jurisdiction where the tort occurred was not an appropriate place to try the matter. Therefore, there is authority for lifting the veil when justice demands it. In following Lubbe, the court in Chandler v Cape achieved justice, as the victims would otherwise have been denied a remedy. This is important where the subsidiary no longer exists or has any assets[40] or with asbestos claims where the disease may not show up for many years[41]. The Supreme Court in Prest v Petrodel was also concerned with achieving justice for the claimant[42], and in the VTB case Lord Neuberger said: 'it may be right for the law to permit the veil to be pierced in certain circumstances in order to defeat injustice'[43]. Therefore, it seems that the courts are willing to disregard the Salomon principle in some cases involving personal injury or groups of companies. This seems fair, as limited liability encourages subsidiary companies to take risks, knowing that the shareholders of the parent company in effect get double protection from creditors should anything go wrong[44]. To hold otherwise would have been to deny justice to the claimant in Chandler v Cape.Conclusion
The principle of separate corporate personality and the corporate veil recognised in Salomon v Salomon remains central to corporate law despite several challenges. However, there are certain exceptions when the veil will be lifted. Most notably these include under statute, during wartime, and where the company is a sham. It is less likely to be lifted where it is argued that an agency or trust relationship existed between the company and its controller. Where groups are involved, Salomon remains the starting point. However, courts have been more willing to lift the veil recently, especially where personal injury is involved or justice demands it, even if they do not say so explicitly. This seems fair, as otherwise shareholders enjoy double protection.BIBLIOGRAPHY
Legislation- Companies Act 2006
- Insolvency Act 1986
- Adams v Cape Industries Plc [1990] Ch 433 (CA)
- The Albazero [1977] AC 774 (HL)
- Chandler v Cape Plc [2012] 1 WLR 3111 (CA)
- Conway v Ratiu [2005] EWCA Civ 1302 (CA)
- Daimler Co Ltd v Continental Tyre and Rubber Co (Great Britain) Ltd [1916] 2 AC 307 (HL)
- DHN Food Distributors Ltd v Tower Hamlets LBC [1976] 1 WLR 852 (CA)
- Re FG Films Ltd [1953] 1 WLR 483 (Ch)
- Gilford Motor Co Ltd v Horne [1933] Ch 935 (CA)
- Lubbe v Cape Plc [2000] 1 WLR 1545 (HL)
- Re Patrick and Lyon Ltd [1933] Ch 786 (Ch)
- Prest v Petrodel Resources Ltd [2013] UKSC 34 (SC)
- Salomon v A Salomon & Co Ltd [1897] AC 22 (HL)
- Thompson v Renwick Group Plc [2014] EWCA Civ 635 (CA)
- Trebanog Working Men's Club and Institutive Ltd v MacDonald [1940] 1 KB 576 (KB)
- VTB Capital v Nutritek Intl Corpn [2013] UKSC 5 (SC)
- Woolfson v Stathclyde Regional Council [1978] P & CR 521 (HL)
- Wurzel v Houghton Main Home Delivery Service Ltd [1937] 1 KB 380 (KB)
Other Sources
- Anon, 'Case Comment: Chandler v Cape Plc: is there a chink in the corporate veil?' (2012) 18(3) HSW 1
- A Dignam, Hicks and Goo's Cases and Materials on Company Law (7th edn Oxford University Press, Oxford 2011)
- D French and S Mayson and C Ryan, Mayson, French & Ryan on Company Law (27th edn Oxford University Press, Oxford 2010)
- J Fulbrook, 'Chandler v Cape Plc: personal injury: liability: negligence' (2013) 3 JPIL C135
- L Sealy and S Worthington, Company Law: Text, Cases and Materials (9th edn Oxford University Press, Oxford, 2010)
- L Stockin 'Piercing the corporate veil: reconciling R. v Sale, Prest v Petrodel Resources Ltd and VTB Capital Plc v Nutritek International Corp' (2014) 35(12) Company Lawyer 363
- C Taylor, Company Law (Pearson Education Ltd, Harlow 2009)
Footnotes
- [1897] AC 22 (HL).
- L Sealy and S Worthington, Company Law: Text, Cases and Materials (9th edn Oxford University Press, Oxford, 2010) 51.
- A Dignam, Hicks and Goo's Cases and Materials on Company Law (7th edn Oxford University Press, Oxford 2011) 28.
- [1990] Ch 433 (CA).
- [2013] UKSC 34 (SC).
- [2012] 1 WLR 3111 (CA).
- C Taylor, Company Law (Pearson Education Ltd, Harlow 2009) 26.
- Ibid 27.
- [2013] UKSC 5(SC)
- Sealy and Worthington (n2) 51.
- Re Patrick and Lyon Ltd [1933] Ch 786 (Ch).
- s.251 Companies Act 2006.
- [1916] 2 AC 307 (HL).
- [1933] Ch 935 (CA).
- Adams v Cape Industries Plc [1990] Ch 433 (CA).
- D French and S Mayson and C Ryan, Mayson, French & Ryan on Company Law (27th edn Oxford University Press, Oxford 2010) 136.
- [1953] 1 WLR 483 (Ch).
- Sealy and Worthington (n2) 59.
- [1940] 1 KB 576 (KB).
- Wurzel v Houghton Main Home Delivery Service Ltd [1937] 1 KB 380 (KB).
- Sealy and Worthington (n2) 60.
- Taylor (n7) 31.
- The Albazero [1977] AC 774 (HL).
- [1976] 1 WLR 852 (CA).
- [1978] P & CR 521 (HL).
- Taylor (n7) 34.
- French, Mayson and Ryan (n16) 145.
- Dignam (n3) 40.
- Para 35.
- L Stockin 'Piercing the corporate veil: reconciling R. v Sale, Prest v Petrodel Resources Ltd and VTB Capital Plc v Nutritek International Corp' (2014) 35(12) Company Lawyer 364.
- Ibid, 363.
- Para 92.
- J Fulbrook, 'Chandler v Cape Plc: personal injury: liability: negligence' (2013) 3 JPIL C138.
- Thompson v Renwick Group Plc [2014] EWCA Civ 635 (CA).
- Fulbrook (n33) 138.
- Dignam (n3) 46.
- French, Mayson and Ryan (n16) 150.
- [2005] EWCA Civ 1302 (CA).
- [2000] 1 WLR 1545 (HL).
- Anon, 'Case Comment: Chandler v Cape Plc: is there a chink in the corporate veil?' (2012) 18(3) HSW 2.
- Ibid.
- Stockin (n30) 365.
- Para 127.
- Dignam (n3) 49.
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"Salomon is in the shadow. It is still alive but no longer occupies the centre of the corporate stage" (Schmitt off, C.M., 'Salomon in the shadow' [1976] JBL 305).. (2017, Jun 26).
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Legal Rules Contract
Offer and Acceptance
With reference to the legal rules relating to offer and acceptance of a contract, advise the club whether it can claim the joining fee from Mary, Frank and Ali. Mary posted her application. She telephoned the club to confirm whether or not her application was accepted but was unable to get through to speak to anyone. In the meantime the committee took two months to confirm whether or not they would accept her application based on a character investigation. In accordance with the legal stipulations of offer and acceptance Mary is under no obligation to pay her joining fee for a number of reasons. Although she returned her application form the offer of membership was not formally accepted as she failed to contact the club secretary when she was told to telephone. This meant that she wasn't provided with an answer to the outcome of her application, the time of which was made very clear in terms of when she needed to do this by yourselves. Legally 'an agreement is reached when an offer by one party is unequivocally accepted by the other'. Which did not occur. You do not confirm whether the club actually wrote to Mary in September when the decision was made to accept her. If this was not done and payment was merely requested on the basis that Mary Jones had been granted membership, once again she would not be liable as Australian Law dictates that a person cannot accept an offer of which he/she has no knowledge. And considering the club waited over two months to inform Mary, she had no understanding that she had ever been considered in the first place. Additionally silence cannot be construed as acceptance. The club was not within its rights to assume that Mary would accept the offer, having failed to communicate with them by telephone and not receiving confirmation until several months after the membership cut-off date. In the English case of Felthouse and Bindley, the courts ruled against Felthouse who had considered the horse he had acquired for his own, on the basis that his Nephew had not written to confirm otherwise. He lost the case because the court confirmed there had been no acceptance of a contract. Frank's case is similar in that he never contacted the club secretary to confirm his membership, therefore no official acceptance was made. In addition he had stipulated in writing that his terms of agreement were related to gaining a contract of work from the club. Because this written condition was not agreed to, Frank was within his rights not to have to pay for membership. Additionally and somewhat ironically correspondence with offer, or the 'mirror image rule' states that if you accept an offer it must be accepted exactly as it is offered, without any modifications. This being the case Frank's offer had already turned into a null and void counter-offer as soon as he wrote the condition of interest, on the understanding that he would receive a contract of work by way of membership. The "mirror image rule" states that if you are to accept an offer, you must accept an offer exactly without any modifications; if you change the offer in any way, this is a counter-offer that invalidates the original agreement. Once again no formal agreement has been instigated by Ali as he failed to contact the secretary to discuss or accept membership. He would have assumed that his membership was disregarded as it was late and he never received written confirmation. However his assumption of failure to be invited to membership may not be enough in terms of rendering Ali not culpable. When he posted the letter he was in effect accepting the offer. Likewise although the letter of agreement never found its way to him it was physically sent by the club. Ali also followed up his request to apply for membership over the telephone, thus legitimizing his desire to join. By law if an offer is accepted by post, the contract becomes valid at the time it was posted. As with the well documented case of Adams v Lindsell, which determined that a posted acceptance is contractually binding. But it did arrive after the stated and agreed deadline which would no doubt make him non eligible for payment of membership fees. Suppose that Tony is determined to take Court action and is looking for cases to support his arguments. Identify ONE case that may help support Tony's demands that he be accepted as a member to the club and explain to him, with reasons, how a Court in your state of Australia is likely to treat this previous case. As part of your answer you should discuss what parts of the case are important and what parts are not. With regard to your contesting the outcome of the Tennis Club to accept you as a member. Bearing in mind that you sent your letter well within the deadline date for which membership would be considered; only to be refused on the basis that your application arrived late due to a postal strike, there may be a case for us to adopt the approach of the Postal Acceptance Rule. This is an exception in law to the principal that the offeree (In this case yourself) communicates your acceptance to the Offeror. (The Country Tennis Club). In this instance acceptance is granted when the letter stating acceptance is actually posted and not when it is received by the offeror. The most famous case for determining this law was by way of Adams vs Lindsell in 1818. Lindsell (the defendant) wrote to Adams (the plaintiff) to make him an offer of some wool and asked for an agreement for this sale to be issued by return of post which Adams provided. However Lindsell's original letter arrived late as he managed to address it incorrectly. Thus Linssell automatically assumed that his offer had been rejected having waited so long for a response. He consequently decided to sell the wool on to another buyer. The problem arose as this exchange took place after Adams had already replied to say that he would indeed buy the wool and he was expecting to receive it. The court in this case ruled in favour of Adams and it was deemed that the date of agreement was made from when he posted the letter back requesting the wool and not when it arrived, which was in this case too late. This has a striking resemblance to your own situation. The court imagined that this would elevate the issues concerned when each individual is waiting for a receipt of confirmation, which can hinder business. The law has been criticized for having ulterior motives that were connected with publicizing the post office in the nineteenth century, although it does seem feasible that it was a law passed to aid the practicalities of business efficiency. But it does place the offeror in a vulnerable situation as they are often bound by contract without even being aware of it. This is not a completely straightforward law as it does only apply to acceptances and no other type of communication and only where it is reasonable that this acceptance needs to be made by post. This makes a good case for you against the club as you were responding to their requests. Saying that this particular rule can always be displaced by the offeror if they request that the offer takes a specific form, for example a speedy reply or a deadline, which means it cannot take effect on arrival as the deadline has passed. Which makes your case unfounded. However what is stipulated in this law as reiterated in the case of Henthorn v Fraser 'Where the circumstances are such that it must have been within the contemplation of the parties that, according to the ordinary usages of mankind, the post might be used as a means of communicating the acceptance of an offer, the acceptance is complete as soon as it is posted' is the need for the offeror to consider what is reasonable to expect in the case of making an offer available. In other words it is very conceivable that the Tennis club will be liable by way of neglecting to take into consideration the potential disruption or inevitable delays that might arise through the postal system or any extenuating circumstances whereby the application might be received slightly later than anticipated. Because the Tennis Club failed to put in place these obvious influencing factors they should by law be obliged to provide you with the membership that you applied for within the designated time given. 3). Suppose that the Club's constitution provides that "any member who fails to pay any money owed to the club promptly and in full will be subject to imprisonment on the premises for six days for each offence and during this time must scrub the kitchen with a toothbrush". Assuming Mary refuses to pay, can the club enforce this provision of its constitution against her? Why or why not? (30 marks) No Mary would not be subjected to this type of punishment as she is not officially a member of the club and the constitution clearly states 'any member'. She has not officially accepted membership therefore she is not liable to carry out the actions requested. A constitution in this sense establishes the laws and principles of the club itself which do not infringe on the external it reflects a temporary law or measure which has little power in the external world around its governing area. In this case the club constitution is limited to the confines and members of its club. A constitution is defined as 'a set of rules which governs an organsation. Every organization, whether social club, Trade Union or nation state, which has defined objectives and Departments or offices established to accomplish those objectives, needs a constitution to define the powers, rights and duties of the organizations members' In a club, such as the Country tennis Club members have to obey the laws and house rules as laid down in the constitution. But only as members of the club. The extent by which the members are controlled is dependent on the constitution. What it does not have is the power to force its members to carry out things against their will. As with any constitution, it can discriminate and create its own internal laws which might have an affect on those trying to seek membership. It represents an internal oligarchy that control their own small governing group which has no legal standing in terms of enforcing its own rules directly onto external individuals, although this may be indirect as mentioned before in terms of prejudice or discrimination against those people it wants as its members and those it chooses not to accept. In addition the nature of this constitution, regardless of its company policies and rules it is infringing on civil and human rights issues. The fact that the Tennis Country Club constitution expects degrading and humiliating activities to be performed by its members is both unacceptable and contravenes a number of laws. Examples of some of these laws in Australia include those thought to encourage Societal Abuses and Discrimination, The Right of Association. The law also provides all workers and public servants with the right of association domestically and internationally and protection 'against antiunion discrimination, and workers exercised these rights in practice' One point to note is that Australia has no Federal Bill of Rights. However it does have one of the best human rights records in the world. So even if Mary was for some reason expected to make payment for her club membership and then refused, even if membership had been granted, yet not accepted. Under any of these extenuating circumstances she would be well within her rights to report the club for at the least anti-social behavior, at worst for crimes against human and civil rights.Bibliography
Tillotson, J.Contract Law in Perspective: Routledge; 1995 Suff, M. Essential Contract Law: Cavendish Publishing; 1997 Nixon, A, Wolstenholme Holland, R.Commercial Law: Longmans, Green and Co; 1907 Frey, M.A, Hurley Frey, P. Essentials of Contract Law: Thomson Delmar Learning; 2000 Stone, R. The Modern Law of Contract: Routledge Cavendish; 2005 Stone, R. The Modern Law of Contract: Routledge Cavendish; 2005 Stone, R.The Modern Law of Contract: Routledge Cavendish; 2005 Barnett, H.Constitutional & Administrative Law: Rutledge Cavendish; 2004 Harriman, E.A.The Constitution at the Cross Roads: A Study of the Legal Aspects of the League of Nations, the Permanent Organization of Labor and the Permanent Court of International Justice: The Lawbook Exchange, Ltd; 2003 Australian Human and Civil Rights. Available at: https://home.vicnet.net.au/~victorp/vphuman.htm Accessed August 26, 2008Cite this page
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Critically Comment on the above Statement of Legislative Change Introduced by Labour Governments
Critically comment on the above statement with reference to effect of legislative change introduced by Labour Governments since 1997 in relation to one or more areas of individual employment rights.
I. Introduction
On the back of four electoral defeats, the Labour party sought to get the party into power by introducing a new set of ideas. Branded as “New Labour”, and under new leadership, the Party moved to the middle ground of politics. The Party discarded policies that were perceived to be unattractive to the electorate, such as unilateral disarmament, extension of public ownership and restoring legal immunity for trade unions. Instead, the Party embraced reforms that had their origins in the late 1980s under the leadership of Neil Kinnock. Tony Blair, as the new leader, had no objections to policy when he found himself at the helm. He insisted upon putting a draft manifesto to a ballot of members in 1996, which was subsequently duly approved. This document later emerged as the 1997 general election manifesto titled: New Labour: Because Britain Deserves Better. (my italics) The Party made a number of bold assertions in the document, such as: Britain will be better with new Labour . The manifesto then set out the commitments and policy pledges that the Party promised to fulfil if elected. More specifically, the Party outlined a raft of ‘family friendly' policies/commitments. In seeking to achieve this aim, the Party's mantra was, inter alia: ‘We will help build strong families and strong communities...' ‘We Will Strengthen Family Life' ‘…..British men work the longest hours in Europe' Work and Family ‘…..There must be a sound balance between support for family life and the protection of business from undue burdens - a balance which some of the most successful businesses already strike.' i. The Labour Party's Election Victory The Labour Party's won a landslide victory in May 1997, when it elected to office with a majority of 146 seats over its rivals. This victory was based, inter alia, on ‘New Labour's' ideology and the ‘10 commitments covering a range of policy pledges' , as enshrined in the Party manifesto. It was evidently a manifesto designed to win votes. The distancing of Labour from its close Union ties was to be replaced by a commitment to ensuring that: ‘There will instead be basic minimum rights for the individual at the workplace, where our aim is partnership not conflict between employers and employees.' This work seeks to outline the legislative changes that have been introduced by the Government of the day since arriving in office in 1997. The focus of the work is specifically targeted towards aspects of those legislative provisions that have had the greatest impact on the balance between family and working life in the UK, namely: the National Minimum Wage (‘NMW') per se and Working Time Regulations and, more specifically, paid annual leave entitlement.II. Legislation in the Making
i. The Case for a Minimum Wage 2006 marked the centenary for calls for the implementation of a NMW (Sanders 1906). These calls were finally realized on 31st July 1998, when the NMW Bill received Royal Assent. The system of minimum wage protection that was in operation in the UK hitherto was termed the Wage Councils (Metcalf 1981), which had been abolished in 1993. However, this system was far from perfect, inter alia, as it did not cover all sectors. The minimum wage policy has its roots in and is clearly tied to other areas of social welfare, such as: housing, health care and public assistance. The primary goal of such a policy was to improve the income of those at the bottom of the salary scale, with the objective of furnishing an improvement in the lives on those living in a state of poverty. This would also help to ‘reduce economic inequality and social unrest' . The latter has proved to be one of the main causes of strikes and work stoppages. It accordingly came as no surprise when seeking to fulfil their ‘family friendly' manifesto commitments that the Government of Tony Blair embraced the notion of a NMW by seeking to introduce legislation to achieve this end . On being elected to office, the ‘New Labour' government promised to introduce the legislation as soon as possible in the Queen's speech on 1st May 1997. On 26 November 1997, as promised, the NMW Bill was introduced before Parliament. The NMW Act 1998 acquired Royal Assent on 31 July 1998. Albeit the Act was placed on the Statue book, the Bills passage through parliament was not smooth sailing. Concerns about the impact of introducing such far-reaching legislation were made apparent during the debating sessions. Most prominent was the concern expressed about the legislations expected serious adverse implications for jobs in the UK. It was stated during a Standing Committee D debate by Mr Tim Boswell (Daventry), that experts had forecast ‘up a million job losses' as a result of introducing the Act. These concerns were echoed on behalf of most industry sectors. The rationale for these concerns was largely based on the premise that a NMW would increase costs for business, which could only be avoided if this put up employment until the wages bill dropped: it would lead to people pricing themselves out of jobs. Moreover, there were fears that a NMW would result in instability in ‘local and regional economies and in job markets' Irrespective of the concerns aired, the Government remained steadfast in defending its commitment to introducing a NMW. Following the introduction of the Act, the Low Pay Commission (‘LPC') was subsequently established as an independent statutory public body, which was established under the NMW Act 1998, in order to advise the Government about the NMW. Members of the independant LPC were appointed in July1997. Her Majesty's Revenue and Customs was to play the role of enforcement by prosecuting offenders. In September – November 1998, a public consultation took place on the draft National Minimum Wage Regulations (‘NMW Regulations). On 6th March 1999, the NMW Regulations received Parliamentary approval, and came into force on 1st April1999. In July 1999, the Employment Relations Act 1999 (c.26) received Royal Assent. The Act contained two NMW provisions. At the inception of the NMW, the LPC set a minimum wage of £3.60 per hour for adults (those aged 22 and above), which covered some 1.2 million jobs . A rate of £3.00 per hour was set for those aged between 18-21 (development rate). A rate of £3.00 per hour was introduced on 1st October 2004 for those between 16-17. On 1st October 2008, the NMW was set at £5.73 for adults, £4.77 for the development rate and £3.53 for those between 16-17. ii Limits on Working Time The origins of the Working Time Regulations can be traced to the Fundamental Social Rights of Workers, which was adopted at Strasbourg on 9th December 1989. Pertaining to the regulation of working time, the following declarations were made: ‘ Every worker in the EC shall have a right to a weekly rest period and to annual paid leave…..to ensure the safety and health of Community workers, the latter must be granted minimum daily, weekly and annual periods of rest and adequate breaks.' Prior to the introduction of the Working Time Regulations, legislation had never been introduced restricting the number of working hours. Before to the introduction of the aforementioned legislation, the labour market operated under an industry-based system known as the Wages Council (see Dickens, Machin and Manning, 1999; Machin and Manning, 1994), which was abolished in 1993. As noted at the outset, however, the impetus for the legislation has its source in the European Union (‘EU'). EU law became an increasingly more important source of employment rights in the 1990s. This stemmed from the agreement on the Social Charter in 1989 and as a result of European Court of Justice (‘ECJ') case law, albeit the UK opted out of the Social Charter until 1997. When Labour was handed over power, there were no nationwide legislative provisions regulating working time in the UK. Whilst that is the case, the Working Time Directive 93/104/EC should have been implemented by all Member States by 23 November 1996. The Directive was adopted pursuant to Article 138 (previously Article 118) of the Treaty of Rome, as amended by the Amsterdam Treaty. The Directive, which is strictly health and safety legislation, only required majority consent for its implementation. The legislation provided rights for workers of 4 weeks paid annual leave, minimum daily/weekly rest periods and a maximum 48-hour working week. The UK, however, failed to implement the Directive on time. In fact, the Conservative Government of the day, challenged the legality of the Directive (see United Kingdom v Council of the European Union (1997)). The UK did, however, eventually implement the Directive by introducing the Working Time Regulations 1998 (SI 1998/1833), albeit two years late. The original Regulations were subsequently amended by the Working Time Regulations 1999 (SI 1999/3372) to address a number of uncertainties in their original form. There have been successive amendments since in response to revisions, which have effectively broadened the remit of the legislation, inter alia. The Working Time Directive (93/104/EC) has now been repealed and replaced by the Working Directive (2003/88/EC), which came into force in August 2004.III. Impact of Legislative Changes
i. National Minimum Wage Act 1998 (c.39) (‘NMWA 1998') The Act was introduced on 1 April 1999, and the National Minimum Wage Regulations 1999 (SI/1999/584) (‘NMW Regulations') was soon after adopted by virtue of s 2 of the Act. S 1(1) of the NMWA 1998 imposes an obligation on employers to pay workers in any pay reference period, at a rate no less than the NMW. Pursuant to Regulations 10(1) and (2) of the NMW Regulations, a pay reference period is one month, or a shorter period in cases in which workers are paid in shorter intervals. Under the Act, the entitlement of the NMW belongs to a worker in accordance with s 54(3) of the Act. The meaning of both “worker” and “employer” are given broad definitions under the legislation. All those qualifying as workers according to s 54(3) of the NMW Act 1998 are entitled to the NMW, providing s/he is working in the UK and is no longer of compulsory school age (see s 1(2) of the Act). A worker includes those working under a contract of employment and those under other applicable contracts . This also includes the likes of agency workers (see s 34 on the NMWA 1998) and home workers (see s 35 of the NMWA 1998) . An example of how the courts have approached this problem can be found in the case of Wolstenholme v Post Office Ltd [2003] ICR 546. In the Wolstenholme case, the Employment Appeal Tribunal held that a sub-postmaster and postmistress were not workers, because they had a choice whether or not to do the work themselves. Furthermore, in the notable case of Edmonds v Lawson [2000] ICR 587, the Court of Appeal held that a pupil barrister was not a worker. Following the decision in Carmichael v National Power plc [1999] ICR 1226, almost certainly the definition of worker applies to casual workers also. Ultimately, the definition of a worker in the NMWA 1998 can be analysed similarly to other definitions of a worker in employment law: See Bamford v Persimmon Homes N W Ltd UKEAT/006/06 (HH Judge Peter Clark presiding), and Green v St Nicholas Parochial Church Council UKEAT/0904/04 (Rimer j presiding). In the event of a complaint about minimum wage, the person responsible is regarded as the person providing the salary (see s 34 NMWA 1998). By virtue of s 28(1), there is a presumption that an individual who claims to be covered by the Act does fall within its terms. This in turn places the burden of proof on the employer to prove that the complainant is not a worker for the purpose of the Act. Those under 18 years of age were not covered at the outset (see Regulation 12(1) of the NMW Regulations 1999). However, these provisions were omitted by virtue of Regulation 3 of the National Minimum Wage Regulations 1999 (Amendments) (No.2) Regulations 2004 (SI 2004/1930), which were given effect from 1st October 2004. However, the NMW does not apply to self-employed people, volunteers, those between 16-17 on apprenticeships, those over 18 but under 26 during the first twelve months of their apprenticeships (see Regulation 2(5) and(8)), member of the armed forces and people working and living as part of a family unit (see Regulations 2(2) – (4) of the NMW Regulations 1999). In determining the rate of remuneration to be paid, the NMW Regulations 1999 define different categories of work: Time work; Salaried hours work; Output Work and Unmeasured Work (see Regulations 3 – 6). As to what qualifies as ‘working time', the case law has indicated that this is to be interpreted broadly. In Scottbridge Construction Ltd v Wright [2003] IRLR 21, the Court of Session found that time spent by a night watchman on the employer's premises counted as working time, albeit he was entitled to sleep. Furthermore, in British Nursing Association v Inland Revenue [2002] EWCA Civ 194; [2003] ICR 19, time spent at home waiting to answer the telephone on employer's night time service was deemed to be ‘working time'. The procedure for determining the NMW is set out at Regulation 14 of the NMW regulation 1999. Essentially this is calculated by taking the remuneration for the pay reference period and dividing it by the number of hours worked. By virtue of s 17 of the NMWA 1998, the entitlement to a NMW is implied into the contract of employment. Accordingly, a failure by an employer to pay an employee at least the NMW for work carried out will give rise to a claim in the civil courts or the employment tribunal for a breach of contract, or more specifically an unauthorized deduction from wages, inter alia. A complaint can also be made to HM Revenue and Customs who actively enforce non-compliance with the legislation. Finally, a number of changes have been introduced by the Employment Act 2008, which came into force on 6 April 2009. These changes set out at sections 8 – 14 largely relate to non-compliance issues pertaining to the NMWA 1998. ii The Working Time Provisions a. The Definition of Worker As is the case for the NMW, the Working Time provisions apply to workers. The meaning of worker is given the same definition as that under the NMW legislation. In the case of Redrow Homes (Yorkshire)Ltd v Wright [2004] EWCA Civ 469; [2004] 3 All ER 98, a group of bricklayers who had sub-contracted to carry out work, were deemed to be workers for the purpose of this legislation because they were obliged to perform work personally. According to Pill LJ's observation in the Redrow case, the issue is whether the person is contractually obliged to carryout the work in question (see [2004] 3 All ER 98, at para. 21). However, the remit of the legislation does not extend to children, as noted in Addision v Ashby [2003] ICR 667, where a paper boy was found not to be entitled to annual leave. All workers are covered by the legislation except: (i) jobs where you can choose freely how long you will work; (ii) the armed forces, emergency services and police are excluded in some circumstances; (iii) domestic servants in private houses; (iv) sea transport workers; and (v) mobile workers in inland waterways and lake transport workers on board sea going fishing vessels b. Paid Annual Leave Entitlement The significance of qualifying as a worker can not be under estimated, as pursuant to regulation 13(1)(c) of the Working Time Regulations (SI 1998/1833) (‘WTR 1998'), a worker is entitled, inter alia, to 4 weeks paid annual leave each year. Any provisions within a contract, claiming that there is no entitlement to paid leave have been held to be void: The College of North East London v Leather, EAT (30/11/01). The paid annual leave entitlement has been extended by Regulation 13A, which was introduced by Regulations made under the Work and Families Act 2006. In effect, this will mean an extra 8 days leave for those working a standard 5 day week. This is aimed at giving workers leave on bank and public holidays in addition to the regular 4 weeks leave period. Also, pursuant to Regulation 13, part-time workers are entitled to leave, but on a pro-rata basis. Young people between the ages of 16-18 are not normally entitled to work more than 8 hours a day or 40 hours per week . The original qualifying period of 13-weeks was challenged in the European Court of Justice by the Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU). Many of BECTU's members work on short-term contracts, which resulted in complications about how to arrange paid annual leave on such contracts. The qualifying period was found to be inconsistent with the European Working Directive, and as such workers were found to have accrued paid leave entitlement from their first day at work: See R v Secretary of State for Trade and Industry ex parte BECTU [2001] ECR I-4881 Working Time (Amendment) Regulations 2001 (SI 2001/3256), which came into effect on 25th October 2001, introduced provisions implementing the Working Time Directive which provide employees with the right to paid leave upon immediately commencing employment, instead of after 3 months, as was hitherto the case. c. “Rolled Up” Rate A number of employers tried to overcome the aforementioned problem by inclusion of an element of holiday pay in their worker's salary, or as it was commonly known “rolled up” rate. However, whilst this was regarded as a genuine attempt to combat the problem in some cases, in others, employers made spurious claims that the “rolled up” rate included holiday pay when it did not. This very point came before the European Court of Justice (‘ECJ') in the joined appeals of Robinson-Steele v RD Retail Services Ltd; Clarke v Frank Staddon Ltd; Caulfield and Others v Hanson Clay Products Ltd [2006] IRLR 386 ECJ. All the cases involved workers who had been paid so called “rolled-up” holiday pay. The Court of Appeal and the Scottish Court of Session differed in their opinions about the permissibility of this type of pay. The matter was accordingly referred to the ECJ for its ruling. In its judgment, the ECJ stated, inter alia: ‘….By those questions the referring courts are asking, in essence, whether Article 7 of the Directive precludes payment for minimum annual leave within of that provision from being made in the form of part payment staggered over the corresponding annual period of work and paid together with the remuneration for work done… The Directive precludes the payment for minimum annual leave within the meaning of that provision from being made in the form of part payments staggered over the corresponding annual period of work and paid together with remuneration for work done, rather than in the form of a payment in respect of a specific payment during which the worker actually takes leave.' d. The New Rates With effect from 2 August 2004, the Working Time Directive 93/104/EC and 2000/034/EC were revoked and consolidated by Working Directive 2003/88/EC, which introduces new annual holiday entitlements. These new rates are being phased in from October 2007 to April 2009 by the implementation of the Working Time (Amendment) Regulation 2007 (SI 2007/2079). Whilst public holidays can be taken as annual leave entitlement, there is no automatic right for employees to have leave on public holidays, unless their contract so provides: see Campbell & Smitth Construction Group Ltd v Greenwood (2001) IRLB, 667, 10. Furthermore, a rest period could not amount to annual leave as noted in Gallagher and ors v Alpha Catering Services Limited [2005] ICR 673 (CA). e. What Constitutes ‘Working Time'? In so far as what amounts to ‘Working Time' for the purpose of the WTR provisions, this is to be construed as time in which the worker is: (i) Working; (ii) at the employer's disposal; and (iii) carrying out his duties. A notable case in which the ECJ considered this point is Sindicato de Medicos Consumo de la Generalidad Valenciana (Case C-303/98) [2001] ICR 1116. The question faced by the ECJ was whether or not time spent by doctors “on call” during which they were required to be present at the health centre was ‘working time' for the purpose of the Directive. It was found that those doctors who were required to be present and available at the centre were working, whereas those who are only required to be contactable at all times but not physically present at the health centre are not deemed to be working, unless they were providing health care services. f. Complaints and Enforcement In the event that an employee alleges that s/he is denied the above rights, they must set out their complaint in writing and submit it to their employer in the first instance. If the complaint is not resolved satisfactorily, they may initiate proceedings in the employment tribunal, but such a claim must be made within 3 months of the act or omission complained of having first arisen. If successfully argued, a claimant could receive compensation and /or a declaration of their rights. Any award would be calculated according to what is just and equitable in the circumstances or, if the claim pertains to holiday entitlement upon termination of employment, what is owed to the claimant.IV. Conclusion
The NMW and the WTR have undoubtedly been the most influential pieces of legislation of the current Government's legacy to date. In fact, the very electorate who voted them in office afforded the former the honour of being Tony Blair's greatest legacy before he left office . At least in relation to the NMW, it can be categorically stated therefore that irrespective of the stern opposition during the Bill's passage through Parliament, the Party's decision to introduce the NMWA 1998, has largely proved to be a success without the concern about mass job losses manifesting. In fact, according to a study carried out titled the Impact of the National Minimum Wage on Profits and Prices: Report for Low Pay Commission, the effects of the NMW on employment have been tenuous, if not non-existent (Machin; Manning and Rahman, 2003; Stewart 2004). The focus of that particular study was placed on whether or not minimum wages priced workers out of jobs, one of the main concerns raised during the legislations passage through both Houses. This particular concern was not unfounded however, as it had also been predicted by labour market theorists (Borjas, 2004; Brown, 2003). The focus of the same study also concentrated on whether there is any effect on employment at all, as emphasized in so-called ‘revisionist' circles. (Cord and Krueger, 1994) Whilst the NMW is about to celebrate its eleventh anniversary, evidence of its success is axiomatic by concerns which arose about the perceived threat to NMW rules by the introduction of discriminatory legislation, such as the Employment Equality (Age) Regulations 2006 (SI 2006/1031). The Employment Equality (Age) Regulations 2006 came into force on 1st October 2006, and would permit tens of thousands of workers who are ‘fit and healthy' to continue working past the age of 65, thereby prohibiting direct and indirect discrimination against them. In one article, it was claimed that the NMW, could be challenged as being discriminatory, given that workers under 21 can be paid less than their older counterparts . It was felt that this would result in job losses. On the whole, however, studies on the NMW suggest that the “minimum wage has not only significantly reduced the incidence of low pay, it has also helped to contain wage inequality” (Fitzner, 2006, p.14). The effects of the European Working Time Directive, on the other hand, are still being felt. Whilst the Directive applies to most sectors, the National Health Service is a sector which is currently in the process of trying to ensure that it meets the August deadline for doctors in training. The Directive currently applies across all clinical and staff groups. In relation to junior doctors, however, the 48 hour working week has been being introduced incrementally. In 2004, the hours were reduced to 58 per week, in 2007 they were reduced to 56, and the final shift is 48 hours per week by 1st August 2009. It is expected that by this date all services (bar 24-hour patient care) will work a 48 hour a week. The implications for failing to meet the deadline could be dire for the Trust, as this could mean penalties for non-compliance. These can be awarded by employment tribunals, or alternatively orders for compliance being issued by the Health and Safety Executive, and ultimately fines. It was suggested in April 2008 that “53.4% of junior doctors were estimated to be compliant”. If the deadline is missed, the UK could also face enforcement proceedings by the European Commission for non-compliance. On the whole, however, what is apparent is that the legislation introduced by the Labour Party since taking up office in 1997 has drastically changed the landscape of individual employment rights in the UK. Admittedly, in relation the Working Time Regulations, these changes were spearheaded and thrust upon the Government by the European Union. Whilst that may be the case, it cannot be denied that the NMW and the WTR regulations have collectively worked in tandem to improve the working conditions for hundreds of thousands of workers in the UK, and ultimately contributed to providing workers with the discretion to decide on how to strike the right balance between their family and working life commitments.Bibliography
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Mutual Trust and Confidence in Contracts of Employment
Mutual Trust and Confidence in Contracts of Employment
In order to answer this question one must first assess and consider the law relating to the implied duty of mutual trust and confidence in contracts of employment. This concept will need to be examined in accordance with case law and current working practices. The idea of mutual trust and confidence is regarded as an implied term that is placed into the contract of employment. It is worth noting that other implied terms exist within a contract of employment. These can be compared and contrasted against the principles of expressed terms. The ideas of an implied terms include the notion of obedience between employer and employee; the duty of co-operation, again between employer and employee; and finally, the duty of fidelity, which is totally influenced by the principles of equity. The idea of the contract of employment is to place both parties to it in a position of bargaining. This is the general principle of contract law and is designed to provide both parties to the contract with mutually beneficial things. It is worth noting though that terms can be implied into contracts of employment when it gives either business efficacy or can objectively viewed by the officious bystander. According to MacKinnon LJ in the case of Shirlaw v Southern Foundries (1926) Ltd, the requirement of inserting an implied term into the contract of employment can be viewed objectively by the officious bystander test. Accordingly, ‘any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common ‘Oh, of course!'. Thus, the usage of an implied term could be objectively viewed in accordance with the principles and nature of the contract. Further, according to Bowen LJ's dictum in the case of The Moorcock, an implied term must be ‘founded on presumed intention and upon reason'. However, this presumed intention is no longer a requirement and therefore does not need to be present once a contract of employment is constructed. This can be evidenced by the case of Courtaulds Northern Spinning Ltd v Sibson and TGWU. It was held by Slade LJ that any court or tribunal does not have to be satisfied that the parties to the contract of employment would only have agreed upon the term if it was reasonable. This test can be compared and contrasted to that of the business efficacy test. According to Scrutton LJ in the case of Reigate v Union Manufacturing Co Ltd, an alternative test is ‘necessary in the business sense to give efficacy to the contract'. Thus, it is arguable that the nature of implied terms may not be expressly desired, but nevertheless are necessary for the effectively and efficient running of a business. Lord Steyn described the general implied terms as being ‘default rules'. In terms of the idea of the implied duty of mutual trust and confidence, the law has attempted to imply an enforceable term that binds both employer and employee to co-operate with one another. This is an attempt to try and create a harmony within the working practices. This can be seen by the general statement found by in the case of the Secretary of State for Employment v ASLEF (No 2). In this particular case the Secretary of State for Employment was given the legal authority, under the Industrial Relations Act of 1971, to order a cooling off period for industrial action where the employees were in breach of their contract of employment. The trade union that was acting for the employees of British Rail, provided that the employees stance of ‘work to rule' was not a breach of contract. It was submitted that the employees were following the rule book created by British Rail. Lord Denning, in judgment, identified a potential breach of contract. He held that ‘If the employee, with others, takes steps wilfully to disrupt the undertaking, to produce chaos so that it will not run as it should, then each one who is a party to those steps is guilty of a breach of contract.' He followed this statement with a ‘homely instance' of what he regarded as a breach of contract. Lord Denning provided ‘Suppose I employ a man to drive me to the station. I know there is sufficient time, so that I do not tell him to hurry. He drives me at a slower speed than he need, with the deliberate object of making me lose the train, and I do lose it. He may say that he has performed the letter of the contract; he has driven me to the station; but he has wilfully made me lose the train, and that is a breach of contract beyond all doubt'. It is clear from this judgment that Lord Denning cited the fact that an employee must not go out of his way to disrupt the overall business management of the employer. However, Lord Denning did disapprove of this notion taking a further step forward, he provided that ‘a duty to behave fairly to his employer and do a fair day's work', was a step too far. He continued to provide that ‘A man is not bound positively to do more for his employer than his contract requires. He can withdraw his goodwill if he pleases'. Clearly, this duty is regarded as an important consideration in the creation of a contract of employment. The basis of mutual trust and confidence was again defined and examined by Buckley LJ, who stated that ‘an employee must serve the employer faithfully with a view to promoting those commercial interests for which he is employed'. It is clear from this statement that the implied term of mutual trust and confidence is an important consideration in the construction of a contract of employment. The implied term of mutual trust and confidence has been seen in many different situations. According to the case of Robinson v Crompton Parkinson, an employee who had a totally unblemished work record and was of good standing, was accused of theft. At his criminal trial he was acquitted and he sought an apology from his employer. Subsequently, the apology was refused, and the employee terminated his contract of employment. The Employment Appeal Tribunal stated that an implied duty of mutual trust and confidence could exist in cases such as this, however, they found that such a duty did not exist in this particular case. However, the Employment Tribunal did find a serious breach of the duty in the case of Courtaulds Northern Textiles v Andrew. In this case a manager had a row with a foreman of 18 years' service, stated that ‘You can't do the bloody job anyway'. This was regarded due to the clear contexts of the argument and the possible future repercussions for a working relationship. It has also been held to be a breach of trust and confidence in cases such as that of Gardner v Beresford. In this case, the Employment Tribunal held that it was arbitrary to refusal to give a pay rise to one employee when every other employee received one. Equally, it was held in the case of the Post Office v Roberts, that a breach of the implied duty of mutual trust and confidence could exist where a senior officer described an employee as wholly unsuitable for a promotion. The principle of the implied duty was further examined in the case of Malik v the Bank of Credit and Commerce International SA (in liquidation). In this particular case the Bank of Credit and Commerce International collapsed due to fraudulent and corrupt dealings in the past. Subsequently, the employee's of the Bank attempted to sue for breach of contract amounting from the breach of mutual trust and confidence, and argued that their reputations were tainted due to their association with the fallen Bank. The House of Lords stated that the duty should be followed in these terms, ‘……the employer shall not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee'. It is finally worth noting that these cases all demonstrate the fundamental requirement that an employer, as-well-as an employee, must not act in a way which destroys the implied duty of mutual trust and confidence. This was the ruling from the case of Woods v WM Car Services (Peterborough) Ltd. It is worth providing that the concept of mutual trust and confidence is implied into every contract of employment. The consequences of breaching the said term is that the non-breaching party can treat the contract of employment as repudiated. If the non-breaching party is the employee of the company, then they can resign and consequently claim constructive dismissal. The ethos behind breaching the implied duty is seen as a formulation that damages or destroys the working relationship. This responsibility was again examined in the High Court on a point of law. In this case, an independent film company acquired and distributed television programmes. The issues that surrounded this case was were an employee, who joined the company as a director, sold his shares in another company to his present company for almost £2 million. A term in the sale of the shares allowed for restrictive covenants to be inserted into the contract of sale. These provided that the employee was not to work for a competitor for a period of 3 years if he left within the catch period. At a differing period of time, the employee met with a competitor of his present company and was said to have disclosed confidential information to the other company regarding his present company. The employee agreed to join the rival company and stated his ability to bring with him some of the company's projects and hence clients. Subsequence to this the employee gave 6 month's contractual notice and sought assistance in obtaining a reduction in the notice period that he was required to give. The company placed the employee on garden leave and sought to enforce the restrictive covenants preventing him from working for a competitor within a said period of time. The existing company informed the press of the employee's conduct, who informed the Tribunal that he considered the conduct of the company to be ‘poisonous' and an attempt to damage his reputation, and the comments were founded on mere fiction. The main plank of these allegations included a reference to a £2 million share payment, and quotes such as ‘if you take the money you do the bloody job' and ‘it's just so dishonourable'. Consequently the employee claimed to have been dismissed constructively. This was denied by the company and the employee reasserted his claim of unfair dismissal and refused to accept remuneration from the company. The company accepted this letter as a repudiation of contract of employment, and treated the employee as having resigned. Subsequently, the company applied for an injunction enforcing the restrictive covenants in the sale agreement. The employee counterclaimed on the basis of constructive dismissal. It was held by the court that in assessing whether there has been a breach of the implied duty of mutual trust and confidence, the impact of the employer's behaviour on the employee and not their intention was the relevant consideration. Further, the court held that whether representations made to others could form the basis of a claim of constructive dismissal depended on whether the employer had reasonable and proper cause to make the representations and whether the representations themselves were reasonable and proper. The trial judge further held that in referring to the £2 million payout reported in the press, whilst remaining confidential, were not damaging to the employee per se. Likewise the reference to the non-compete clause in the share sale agreement was factual and thus not damaging to the employee's reputation. However, the court did believe that one newspaper interview constituted a serious attack on the employee's character and, whether true or not, constituted conduct beyond what was reasonable and proper, which was designed to destroy the employment relationship between the parties. It is arguable from the above facts that the trial judge was prepared to accept the standing of the duty of mutual trust and confidence. However, the judge found that the employee could not rely on the employer's breach of the implied term of mutual trust and confidence. The judge further held that the employee's actions at the meeting with the rival company constituted a prior breach of the implied duty of mutual trust and confidence by the employee. Accordingly, the judge held that the employee's employment ceased by reason of dismissal and the company were entitled to dismiss him without further notice. The 3 year restriction on working with a rival company was upheld. The judge provided a guide in allowing employers to deal with senior employee's by providing that the ‘fact that a public statement is true may provide a defence to a defamation claim, but it will not necessarily protect an employer against a constructive dismissal claim. What matters is whether the representations were reasonable and proper and were calculated or likely to destroy the relationship of trust and confidence'. Further that ‘Whilst representations to others by the employer can be the basis of a claim, discussions between the Board of Directors cannot. The Board is the ‘controlling mind' of the Company and representations between Directors, said the judge, are ‘merely equivalent to the Company thinking aloud to itself.' The judge continued that, ‘It is not yet the law that an employer is prohibited from thinking even negative and unworthy thoughts about an employee on his payroll'. Thus, the implied duty of mutual trust and confidence is something that is bound by and regarded at the highest level of administration. It is worth noting that certain websites that identify the nature of mutual trust and confidence provide that‘
You and your employer owe each other a duty not to act in a way that is likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. This is often called ‘the term of mutual trust and confidence'. This is a term which is implied by the law into every contract of employment. The range of conduct that may breach the term is broad. Subjecting an employee to serious verbal abuse, allowing an employee to be sexually harassed by colleagues, seriously undermining the authority of a manager and imposing disciplinary sanctions without any kind of disciplinary procedure have all been held to breach the term. The term may be breached by a failure to act as well as a positive action, for example where an employer gives a benefit to all its employees except one. If your employer breaches the implied term of trust and confidence, this may constitute a fundamental breach of your contract. This will entitle you to resign and treat yourself as constructively dismissed'. Thus, the implied duty of mutual trust and confidence is seen as a factor that is vital ingredient in the construction of the employment contract. In conclusion, mutual trust and confidence is an important implied term in the contract of employment. It allows for a happy working practice to be achieved between employer and employee. It is a mutually binding obligation, that imposes a positive obligation upon both parties to the contract of employment. Without such an implied term, either the employer or employee would be permitted to act in a way that is not necessarily in strict accordance with the spirit of the contract. The contract of employment is designed to be a fluid substance that allows for mutually beneficial occurrences.Bibliography
- Textbook on Labour Law, 7th Edition by Simon Honeyball & John Bowers, published by Oxford University Press in 2002.
- Employment Law, 5th Edition by Gwyneth Pitt, published by Thomson Sweet & Maxwell in 2004.
- Bowers on Employment Law, 6th Edition by John Bowers, published by Oxford University Press in 2002.
- Selwyn's Law of Employment, 11th Edition by N. M Selwyn, published by Butterworths in 2000.
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Law Essay Example – the Enforcement of Covenants Affecting Freehold Land
The Enforcement of Covenants Affecting Freehold Land
This question concerns the enforcement of covenants affecting freehold land. In order to logically address the issues raised in this question, we will begin with a brief outline of the law relating to such covenants and then we will deal with each party/case individually. In this context, a covenant is simply an agreement contained in a deed normally made between one party selling a portion of their land and the other party purchasing it. These covenants are used as a form of private planning control by the vendor to ensure that they can ‘shape' the uses to which the land they are selling is put to e.g. a covenant may dictate that no building above three floors can be erected on the servient land so as to preserve the view of the retained dominant lands. Most difficulties arise when such lands have been sold on to different owners and the owner of the dominant land seeks to enforce a covenant against the servient land. This is the case in the question posed. When addressing issues relating to enforcing covenants, it is essential to first identify who the original covenantee was i.e. whose land was benefited by the covenants agreed to and who were the original covenantors i.e. whose lands were burdened by the agreements. In this case, Lola was the original covenantee and Anthony, Bob and Cait were the original covenantors. This tells us that Lola's land benefited from the requirements of the covenants and A, B and C's were burdened by them. The core question now is that bearing in mind that all these original parties have sold their lands, can the current owner of the western plot of land, May, enforce the original covenants against D, E and F who are the current owners of the eastern plots. The law on this matter is complex but the underlying rationale is clear and it is critical to focus on this: because the current parties in this dispute are not the original parties to the agreement, the courts have always been very careful not to burden land with any unnecessary restrictions which may over time hamper its use and ultimately its saleability . The efficient use of land is essential to commerce and society and it should ideally be unhindered by private agreements made between parties who no longer own it. For this reason, the courts apply very strict tests when ordering the enforcement of such covenants. In order to enforce a covenant, it must be demonstrated by May that she is entitled to the benefit of the covenants and that D, E and F are subject to the burden of them. Unless both of these can be established, then May will not be able to obtain relief from the courts . This is also known as the benefit and burden ‘running' with the land and as such it is normal to examine the passing of the benefit and burden separately to ascertain enforceability. Now let's examine each case.Denise's Case
May is attempting to enforce the covenant against Denise which prohibits her operating a business from her plot. The first and most critical step is to decide if a covenant is either negative or positive . The simple test to apply to ascertain which type of covenant you are dealing with is to ask if it compels you to do something rather than not do something. The usual acid-test is from Haywood v Brunswick and asks whether it requires one to spend money to comply with the covenant. If it does, then it is a positive covenant. In this case, the covenant does not require the expenditure of money it just restricts the use to which the premises can be put and as such is a negative covenant . This is a fortunate for May as the courts severely limit the enforcement of positive covenants. Now we must examine if the burden and benefit has passed in relation to this covenant. It has been long established at law that the burden of covenants cannot run with land , see Austerberrv V Corp. of Oldham and recently confirmed in Rhone v Stephens . The reason for this is, as outlined above, that the law does not like to see cumulative and excessive burdens imposed on land. If these were allowed, then over the centuries the uses of some land could become so restrictive as to make it worthless. However, equity stepped in to ameliorate such a strict embargo and in Tulk v Moxhay it was established that in certain cases the burden will be allowed to run with the land once certain requirements are met. The requirements are that (i) the covenant must be negative rather than positive. This condition has been met. (ii) The covenant must confer a benefit to an identifiable dominant plot and not to a person. This requirement is broad but essentially requires that the original covenantee retained land which benefited from the covenant at the date of the covenant. Furthermore, that the covenant ‘touches and concerns land'. The core of this requirement is that equity will only enforce covenants which benefit land and not a person and that covenants cannot exist without an identifiable dominant/servient relationship. In this case, Lola retained the dominant land and this was passed to May. Also, the covenant does grant a benefit to the dominant land as the absence of any commercial activities on the servient land reduces noise, traffic, etc . And even though we are not told that the two plots are adjacent (although it is implied because of the access road), this would not matter as immediate adjacency is not absolute necessity see Kelly v Barrett . (iii) The original parties must have intended that the burden runs with the land. Equity requires that the parties intended the burden to run with successors in title. We are not told this exactly just that it was for the “benefit of the retained land” which should suffice but by virtue of LPA 1925 S.79, the covenantor is also deemed to have intended the burden to run unless specifically excluded . (iv) Equity requires notice to enforce covenants. The essence of Tulk v Moxhay was that the purchaser had knowledge of the covenant involved and it was unconscionable for him to then breach it. Today the concept of notice is much more formalised, namely a land registry and any covenants affecting the land of D, E, F would have to have been registered as a notice in the charges register relating to their land as per LRA 2002 . The covenant would then have been discovered by Denise's solicitor during her purchase and as such she would have notice of the covenant. If, for whatever reason, it was not registered then no notice exists and the covenants would be unenforceable. We will assume she had notice and so as such we can state that the burden will have passed to Denise. Assuming we have proved that the burden runs in equity, we must also then prove that the benefit also runs with in equity. We cannot mix equity and law to achieve our result, both must run in equity. The simplest way that May can acquire the rights to the benefit of the covenants and thus enforcement rights is by “express annexation” i.e. the covenant stating that the covenant is for the benefit of the estate as per the ruling in Rogers V Hosegood . In this case, we are clearly told that the covenant was “for the benefit of the land retained” so we can assume the benefit has also passed in equity. Even if it was not expressly annexed in Federated Homes v Mill Lodge, the courts have held that once the covenant can be shown to be for the benefit of the covenantee lands, there will be an assumption of annexation. With both the burden and the benefit passing in equity, then it is likely that May can enforce the covenant preventing Denise operating a business. In theory, the remedies available to May would be the equitable remedy of an injunction or damages in lieu of an injunction as per s.50 of the Supreme Court Act 1981. Considering that the guesthouse is already operating, the court would look at a number of factors. If as in Shelfer v City of London , it was held that injunctive relief was excessively detrimental to Denise, then the court might not be willing to issue a mandatory injunction ordering Denise to close her business. This would be so especially if May had knowledge that the guesthouse was going to be opening and did nothing until it was opened. Equity abhors delay. Furthermore, a small guesthouse with occasional guests might be considered a mild transgression of the covenant and the court may order damages to the level of what Denise might have had to pay May to agree to lift the covenanted restriction as per Jaggard v Sawyer . The courts will not simply issues injunctions upon request – equitable remedies are not automatic rights. To conclude, May can likely enforce the covenant but whether she can shut down the guesthouse or just get minor damages would be decided by the court based on the facts.Elizabeth's Case
In order to comply with the covenant, Elizabeth would have to maintain the fence and fix it and this obviously requires here to do something. Hence, the covenant is positive. It should as such fail because the law will not allow the burden of any covenant to run with land and equity will not allow a positive covenant to be enforced. There is however a possible avenue which may assist May in ensuring the fence is maintained. It has been accepted that based on the ruling in Austerberry v Corp. Of Oldham, that the original covenantor, Bob in this case, can be held liable for the burden of the covenant under law - even though he may have sold the land . May would however, have to prove at law that she is also entitled to the benefit of the covenant. This will require that she meet the requirements of P & A Swift Investments v CESG . These state that (i) the covenant must touch and concern the covenantee's land; (ii) the covenantee must have held the legal estate; (iii) there must have been the intention the benefit would run with the land. The first requirement necessitates that it must be for the benefit of the land and not a personal covenant. The maintenance of fencing obviously concerns the land and benefits it. The second requirement is also met as we are told they all purchased the freehold. The final requirement is the most important and can be satisfied in a number of ways. Firstly, s (78)1 of the Law of Property Act 1925 implies that the benefit runs with the land unless contradicted in the covenant. Furthermore, all agreements made after May 2000 would be affected by the Contracts (Rights of Third Parties) Act which also states that a person who is not a named party could potentially be able to enforce it. But neither of these routes are really necessary because it appears clear that the covenant expressly stated that it was for the benefit of the land. So we can assume that the benefit would run at common law and that the original covenantor can still be held liable for the burden. The only problem with this contrived method of enforcement is practicality. Bob may or may not have obtained an indemnity covenant from Elizabeth to maintain the fences – he would have been advised to do so or possibly even required under the terms of Lola's covenant. If he did, then May's legal action might compel him to enforce his covenant against Elizabeth and this may result in the fences being repaired. But the difficulties of such an operation over a small amount of money is obvious. Furthermore, Bob may not have obtained an indemnity covenant from Elizabeth and/or he may be living in Australia, untraceable or dead. To conclude, it is impossible for May to compel Elizabeth to maintain the fence directly. Therefore, her only possible remedy is to pursue Bob and hope that he obtained an indemnity covenant. However, the financial practicality of such an option is questionable over minor damage to the fence.Fay's Case
On the ‘covenant' to take in ironing, we can quickly dispense with this issue. In theory this may be described as a covenant. However, the taking in of ironing was a personal service between the original parties and as stated above any covenant must ‘touch and concern' land in order to have any chance of enforceability. To be required to take in ironing is a personal not a proprietary right and clearly fails . No court would enforce it on Fay. The maintenance of the common road is however a more substantial matter. It is clearly a positive covenant based on the arguments above and the general rule is that neither equity nor law will normally enforce positive covenants . However, there is one exception to this rule which was established in Halsall v Brizell . In Halsall, it was established you can be obliged to assume the burden or a positive covenant if you choose to enjoy the benefit. In Rhone v Stephens and in Thamesmead Town Ltd v Allotey , it was emphasised that this exception will be tightly controlled and the benefit and burden must be closely linked. In Thamesmead, the current owner was only obliged to pay service and road charges for a road he could and did use. In Fay's case the facts are similar. The original party was originally granted the express right to the use the road over Elizabeth's land for the benefit of their land i.e. an easement. Furthermore, we can assume that Fay must be using the road to access her property. Based on this, the courts would likely hold such a covenant enforceable as she clearly is assuming the benefit to access her property and so she should carry the burden of the covenant . The only escape might be a claim that she does not use the road, or possibly uses it very little relative to the others. The covenant states a “fair” amount and this may suggest a pro rata amount in relation to usage. If she did not use the road – because she possibly acquired another route to the man road - then she has no benefit and need assume no burden. If the courts found in Elizabeth's favour then the remedy would most likely be damages in lieu of an injunction for the “fair” amount of maintenance money.Answers to specific Questions :
1. Whether the benefit of freehold covenants runs with the land at common law; Yes, it can run under specific circumstances detailed above. 2. Whether the burden of freehold covenants runs with the land at common law; No, common law has rejected the running of the burden at common law. 3. Whether there is a way of circumventing the common law rules and whether this is relevant on the facts of the question; Yes, using the Tulk v Moxhay rationale you can circumvent the common law rules. This is relevant in one of instances outlined above. Halsall can also be used to circumvent the common law rules. 4. Whether the burden of freehold covenants run in equity; The burden can run in equity in certain circumstances and these are outlined above. 5. Whether it is necessary to consider if the benefit of the covenants runs in equity If the burden runs in equity then the benefit must also run for there to be enforceability of covenants. This is detailed above.References
Burn, E, 2004, Land Law – Maudsley & Burns 8th Ed., Oxford University Press. Duddington, J, 2007, Land Law Express, Pearson Longman. Gray, G, 2006, Land Law – Core Text Series 4th Edition, OUP. Mackenzie, J, 2004, Textbook on Land Law - 10th Edition, OUP. Wilkie, M, 2005, Land Law Q & A - 5th Edition, OUP.Fraud Order 200764
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Law Essay Example about Muslim Faith
- A. Maria Haines has recently converted to the muslim faith and has now insisted on wearing the appropriate religious dress which requires Maria to wear clothing revealing only her eyes. Customers have refused to deal with her - Maria is the sole Receptionist as BIS and they have told her that they will have to terminate her contract.
- B. Josie Rimson has been employed in BIS cafeteria to prepare staff meats. She has noticed that some of the meats and sauces are out of date, but, having raised the issue, was told: “Your job is to make the meals, just get on with it”. She has now heard that some staff are off sick with suspected food poisoning and she is afraid she will be blamed. Repeated complaints to Senior Managers at BIS have been rejected - so now she has reported the problem to Bramley Council. An item on the matter has now appeared in the Bramley Gazette. BIS has decided to discipline her, and have warned that she may be dismissed.
- C. Harriet Jameson has recently returned from sick leave following a serious car accident, which required her to have extensive surgery for major facial injuries. The surgery left her with very visible red scarring on her face. BIS has interviewed her and suggested removing her from her post as Manager of the company creche because the children of the employees have refused to attend: they have been having nightmares, and this is affecting attendance of the female employees at work. Harriet has refused her relocation to the personnel Department, claiming discrimination.
A. Maria Haines has recently converted to the muslim faith and has now insisted on wearing the appropriate religious dress which requires Maria to wear clothing revealing only her eyes. Customers have refused to deal with her - Maria is the sole Receptionist as BIS and they have told her that they will have to terminate her contract.
If BIS decides to terminate Maria's contract, then it is likely that she will commence proceeding against BIS for unfair dismissal, pursuant to section 94(1) of the Employment Rights Act 1996 (as amended). It is likely that the primary basis for her claim will be that her right to freedom of religion, under Article 9 of the Human Rights Act 1998, has been infringed by her employer's decision to dismiss her for wearing her religious head veil. Article 9(1) of this Act provides that, “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.” (Art. 9(1) HRA 1998) Maria will likely argue that in wearing a veil she is publically manifesting her religion in practice and observance. She may even try to rely upon the recent House of Lords decision in the case of R (Begum) v Governors of Denbigh High School [2006] UKHL 15 to support this argument. By virtue of section 98(1) of the Employment Rights Act 1996, the burden of proof will rest upon BIS to satisfy the Tribunal, on the balance of probabilities, that the dismissal was not unfair. Maria may also argue that BIS has unlawfully discriminated against her on grounds of her religion and belief, in accordance with regulation 3 of the Employment Equality (Religion or Belief) Regulations 2003. Her argument would likely be that, in dismissing her, BIS treated her “less favourably than [it] treats or would treat other persons.” (Reg. 3(1)(a) EE(RoB)R 2003) There are several aspects to this claim which present opportunities for BIS to mount a successful defence to these claims: The first argument that BIS might make is that the dismissal in question was not unfair, because the reason for her dismissal “relates to [her] capability… for performing work of the kind which [she] was employed by BIS to do.” (s.98(2)(a) ERA 1996) There is clear evidence here that Maria could not continue as receptionist, because BIS's customers refused to have any further dealings with her, due to her insistence on covering her face with a religious veil. BIS can argue that Maria's rights under Article 9(1) of the Human Rights Act 1998 are not absolute because they are qualified by Article 9(2) of that same Act, which provides that, “Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” (Art. 9(2) HRA 1998) BIS can argue that its right to run an effective business is one of the rights against which Article 9 must be weighed and that this latter right must prevail. There is recent and good judicial authority for this proposition; namely, in the case of Copsey v WWB Devon Clays Ltd [2005] EWCA Civ 932 which applied the earlier case of Stedman v United Kingdom (1997) 23 E.H.R.R. CD 168. Maria might try to rebut this argument and distinguish these authorities on the basis that, in those cases, the employees in question refused to accept offers of alternative employment, although the success of this argument will depend upon whether or not it was viable for BIS to make such an offer in this case. In light of the fact that BIS is only a small company, it may well be the case that there did not, at the time of dismissal, exist any other vacancies for which Maria would have been suitably qualified. BIS might also try to argue, in light of the fact that Maria has only recently converted to Islam, that her religious beliefs are not sufficiently cogent, serious or important to warrant her reliance on Article 9 of the Human Rights Act 1998; while the success of this argument will fall on the Courts interpretation of the facts, there is judicial authority, at least at the European level, that lack of real or strong religious belief precludes the operation of Article 9 of the European Convention on Human Rights 1950 (Campbell and Cosans v United Kingdom (1982) 4 EHRR 293). A similar argument to this that BIS might try to rely upon is that Maria, in wearing a head veil, was not manifesting her religious beliefs, but was merely motivated to wear religious dress by those beliefs; again, there is judicial authority at the European level to support the validity of this argument (Arrowsmith v UK (1978) 3 EHRR 218). BIS can distinguish the decision handed down by the House of Lords in the case of R (Begum) v Governors of Denbigh High School [2006] UKHL 15 on the basis that this case concerned the treatment of a student in compulsory full-time education. Both Brooke LJ and Mummery LJ both explicitly declared in this case that the principles in operation were not the same as those applicable in the employment context (Sandberg, 2009:272). In regard to the argument that BIS's dismissal constitutes discrimination under regulation 3 of the Employment Equality (Religion or Belief) Regulations 2003: BIS can argue that, in light of the reaction of its customers to Maria's head veil, requiring her to remove the veil during working hours became a genuine and proportionate occupational requirement, in accordance with regulation 7(2) of the 2003 Regulations (Nairns, 2007:93). In conclusion, so long as BIS can satisfy the Court that it was not in a position to be able to offer Maria any alternative employment, where she would have been able to continue wearing her religious dress, then it is highly unlikely that any of Maria's claims will be successful.B. Josie Rimson has been employed in BIS cafeteria to prepare staff meats. She has noticed that some of the meats and sauces are out of date, but, having raised the issue, was told: “Your job is to make the meals, just get on with it”. She has now heard that some staff are off sick with suspected food poisoning and she is afraid she will be blamed. Repeated complaints to Senior Managers at BIS have been rejected - so now she has reported the problem to Bramley Council. An item on the matter has now appeared in the Bramley Gazette. BIS has decided to discipline her, and have warned that she may be dismissed.
The main issue here is whether or not a dismissal of Josie by BIS would be deemed unfair under the Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998, an Act which inserted into the 1996 Act clause 103A, which provides that, “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.” (s. 103A ERA 1996; s. 5 PIDA 1998) The term ‘protected disclosure' is defined by sections 43A and 43B of the Employment Rights Act 1996 (as amended) as, “…any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following— (…) (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (…) (d) that the health or safety of any individual has been, is being or is likely to be endangered (…) (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.” (s. 43A & 43B ERA 1996) In the present case, it is reasonably clear, on the facts, that the reason Josie reported this matter to the Bramley Gazette was because she felt that her Senior Managers were trying to conceal or, at least, disregard the possibility that the instances of staff poisoning were the result of their consuming out of date food in the staff canteen, in which case section 43B(f) of the Employments Rights Act 1996 would likely be deemed satisfied. It may also be the case that Josie felt, in light of the despondence of BIS's senior managers, that unless she reported this incident to the Bramley Gazette, the events giving rise to these incidences of food poisoning would repeat themselves in the future, in which case section 43B(d) of the Employments Rights Act 1996 would likely be deemed satisfied. If the Tribunal is satisfied (1) that Josie ‘reasonably believed' that there had been malpractice on the part of her Senior Managers (Babula v Waltham Forest College [2007] EWCA Civ 174); and, (2) that Josie's disclosure was the reason for her dismissal (Kuzel v Roche Products Ltd [2008] EWCA Civ 380), then it is highly likely that Josie will be able to bring a successful claim against BIS for unfair dismissal. BIS might try to argue that Josie is being dismissed for gross negligence, in preparing staff meals using foods which were out of date , and that when the Senior Managers told her “Your job is to make the meals, just get on with it,” they were merely reminding her that it is within her job capacity to make decisions in regard to which food stuffs to use and which to discard. While this argument might have had some merit if Josie's Senior Managers had commenced disciplinary proceedings after Josie admitted that the recent outbreak of food poisoning was potentially attributable to her having served out of date food stuffs in the staff canteen, the fact that such proceedings were only initiated after the article was published in the Bramley Gazette, renders this version of events highly improbable.C. Harriet Jameson has recently returned from sick leave following a serious car accident, which required her to have extensive surgery for major facial injuries. The surgery left her with very visible red scarring on her face. BIS has interviewed her and suggested removing her from her post as Manager of the company creche because the children of the employees have refused to attend: they have been having nightmares, and this is affecting attendance of the female employees at work. Harriet has refused her relocation to the personnel Department, claiming discrimination.
The main issue which falls for determination here is whether or not Harriet, if dismissed from her position as Manager of the company crèche, will be able to mount a successful claim against BIS for unfair dismissal. We have been told that Harriet is claiming that she is being discriminated against on the basis of her facial disfigurement. However, in order for this argument to have legal validity, it is necessary that Harriet can satisfy the Tribunal that her facial scarring qualifies her for protection under the Disability Discrimination Act 1995. For the purposes of this Act, a ‘person with disability' is defined as follows: “… a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.” (s. 1(1) DDA 1995) While there is no doubt that Harriet's purported disability is physical in nature, in order for her to argue that it is a qualifying impairment, she must satisfy the Tribunal that it is having substantial adverse effects, that those substantial adverse effects will likely remain for the long-term and that they affect her ability to carry out normal day-to-day functions or activities (Department for Work and Pensions, 2005:3). The Guidance issued by the Secretary of State on the definition of disability, pursuant to section 3 of the Disability Discrimination Act 1995 confirms that, with some limited exceptions (e.g. for self-inflicted scarring, piercing or tattoos), bodily scarring or disfigurement will be deemed to have substantial adverse effects on a person's ability to undertake normal day-to-day activities (Department for Work and Pensions, 2005:6; Adams, 2008:375). To satisfy the ‘long-term' criterion of the 1995 Act, the scarring must either have been present for 12 months or be likely to remain for that period (Adams, 2008:375). In this present case, while the surgery was only recent, it seems likely, due to its severity, that the scarring will remain for at least this length of time. Having established that Harriet qualified for protection under the Disability Discrimination Act 1995, it is now necessary to consider whether or not she has been discriminated against on the basis of her disability. ‘Discrimination' is defined by section 5 of the 1995 Act: “For the purposes of this Part, an employer discriminates against a disabled person if— (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified.” (s. 5(1) DDA 1995). While it is certainly the case that BIS has asked Harriet to accept a lateral move on the basis of her disability, BIS will seek to show that this did not constitute discrimination because it was not appropriate for her to remain working with children, in light of the effect that her disfigurement has had on them, in practice. In the opinion of this author, BIS has acted reasonably and proportionately in asking Harriet to relinquish her role as Manager of the company crèche and to accept an alternative employment position in the company. As Adams (2008:367) argues, albeit in a slightly different context, “An employer… may be justified in refusing to employ as a model for cosmetics someone who suffers from a disfiguring scarring…” In conclusion, if Harriet refuses to accept BIS's offer of alternative employment, BIS will be entitled to terminate her contract, without fear of any legal repercussions under the Employment Rights Act 1996 or the Disability Discrimination Act 1995.References/ Bibliography
The Employment Rights Act 1996. The Employment Rights Act 2002. The Employment Equality (Religion or Belief) Regulations 2003. Stedman v United Kingdom (1997) 23 E.H.R.R. CD 168. The Human Rights Act 1998. Copsey v WWB Devon Clays Ltd [2005] EWCA Civ 932. The European Convention on Human Rights 1950. Campbell and Cosans v United Kingdom (1982) 4 EHRR 293. Arrowsmith v UK (1978) 3 EHRR 218. R (Begum) v Governors of Denbigh High School [2006] UKHL 15. Sandberg, R., 2009. The Changing Position of Religious Minorities in English Law: The Legacy of Begum. In RD Grillo (ed.), Legal Practice and Cultural Diversity, Ch. 14. Aldershot: Ashgate Publishing Limited. Nairns, J., 2007. Employment law for business students. 3rd edition. London: Pearson Education Publishing. The Public Interest Disclosure Act 1998. Babula v Waltham Forest College [2007] EWCA Civ 174. The Disability Discrimination Act 1995. Kuzel v Roche Products Ltd [2008] EWCA Civ 380. Department for Work and Pensions, 2005. Disability Discrimination Act consultation document: guidance on matters to be taken into account in determining questions relating to the definition of disability. London: The Stationary Office. Adams, A., (2008). Law for business students. 5th edition. London: Pearson Education Publishing.Cite this page
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The Financial Ombudsman Service Essay
The Financial Ombudsman Service
The Financial Ombudsman Service ("FOS") is stated to be 'The official independent expert in settling complaints between consumers and businesses providing financial services.' It is a public body that was established by Parliament and is authorised to deal with a very broad range of complaints in areas ranging from banking and insurance, to loans, credit and hire purchase and savings and investments. The standard it applies when determining complaints, is what in the opinion of the ombudsman is fair and reasonable in all the circumstances of the case ; with the ability to award 'fair' compensation for loss or damage. Indeed, the FOS has come to enjoy a considerable reputation due to its efficiency, independence, and impartiality when dealing with complaints, dealing with almost a million enquiries, settling over 150,000 disputes a year, and settling a third of cases within three months. In fact, in the latest six-monthly (between 1st January and 30th June 2010) complaints data released on individual financial businesses, the FOS received 84,212 new complaints and upheld an average of 44% of complaints in favour of consumers. The FOS has therefore demonstrated a strong complaints-handling performance with cases usually settled informally. Moreover, consumers are still free to reject a FOS decision and take their case to court instead if they so wish. Given such credentials, it might seem to be the case that consumers having complaints relating to insurance are well protected under the FOS regime. However, it is submitted that the draft Consumer Insurance (Disclosure & Representations) Bill (the "Bill") recommended by the Law Commission ("LC") is of significant practical benefit to consumers, and brings a great deal to the table in relation to insurance contracts. In fact, if enacted the Bill would represent a watershed in the law governing disclosure and representation in consumer insurance contracts. Inherent difficulties stem from the fact that this area of law is governed by archaic legislation in the form of the Marine Insurance Act 1906 ("MIA 1906"). The main difficulty is that the MIA 1906 stipulates that 'A contract of marine insurance is a contract based upon the utmost good faith, and, if the utmost good faith be not observed by either party, the contract may be avoided by the other party.' In fact, this principle of utmost good faith or 'uberrimae fidei' is of antiquated origin and imposes very strict disclosure requirements on the part of the assured to an insurance contract. Thus, the assured must disclose 'every material circumstance which is known to the assured' , with the assured being 'deemed to know every circumstance which, in the ordinary course of business, ought to be known by him.' Furthermore, material circumstance is expounded as including 'Every circumstance is material which would influence the judgement of a prudent insurer in fixing the premium, or determining whether he will take the risk.' The relevant test was elucidated upon further in Pan Atlantic Insurance Co Ltd & Another v Pine Top Insurance Co Ltd where the House of Lords held that the test of materiality of disclosure required any relevant circumstance to have had an effect on the mind of a prudent insurer in weighing up the risk, i.e. objective in nature. However, a certain degree of subjectivity was also attached to the test in that it was also held that an insurer would only be entitled to avoid an insurance policy if the material non-disclosure or misrepresentation had actually induced the making of the policy. Finally, every material representation made by the assured or his agent to the insurer prior to the making of a contract must be true or the insurer may also avoid the contract, even for honest mistakes leading to untrue material representations. Consequently, if the assured fails to disclose all such material information the insurer may avoid the contract and refuse to pay out for any claim under the insurance contract. Thus, whilst this strict duty of disclosure may have been pertinent for commercial merchants at the turn of the twentieth century, it is difficult to justify the policy behind its continuation into a twenty-first century replete with a plethora of insurance contracts taken up by ordinary lay consumers. Its often harsh and unfair effects are exemplified by the case of Lambert v Co-operative Insurance Society Ltd. In Lambert, the Court of Appeal held that an insurer was entitled to avoid an insured's policy on the basis that the insured had failed to inform the insurers that her husband held previous convictions, even though she had not been asked this. Nevertheless, the convictions were held to constitute material circumstances which should have been notified to the insurers under the 'prudent insurer' standard. Even whilst acknowledging the point in law proved by the defendants, the judge professed that they would be acting decently if they were to pay her nonetheless, even adding that 'It might be thought a heartless thing if they did not, but that is their business, not mine.' Even in 1975 one can see the excessive nature of the uberrimae fidei standard acting to the detriment of the innocent party. It is one thing for Parliament to set out insurance requirements precluding any misrepresentation at a time when the insurance market was in its infancy (following the Lloyd's Act, 1871); it is quite another to continue to impose such draconian standards on millions of ordinary consumers a century later. Indeed, as recognised by the LC: 'We think the time has now come to update the law to meet the needs of a different century' ; with it identifying five main problems with the existing law. Firstly, it found that consumers were only able to obtain justice from the FOS and not from the courts, as the courts were forced to apply the unfair rules. Moreover, the LC stated that the compulsory jurisdiction of the FOS was limited to awards of A£100,000. This effectively sets a dual standard depending on whether the consumer is rich or not, with those individuals insured for figures in excess of A£100,000 (e.g. buildings or life insurance) forced to take their chances in courts with much stricter standards. The LC noted the FOS would decline to hear cases which required cross-examination of witnesses, so cases venturing into complex areas or involving third parties again ostracised consumers. Secondly, the LC considered the current rules were 'unacceptably confused', with many consumers not realising a right to complain to the FOS, and with the 'resulting muddle leading to a loss of confidence in the insurance industry'. Thirdly, the LC believed the legal system penalised some vulnerable groups and cited problems experienced by older individuals, those with criminal convictions , or even those with Multiple Sclerosis (owing to early but undiagnosed symptoms leading to a rejection of critical illness insurance claims). Fourthly, the LC believed the system imposed an inappropriate role on regulators, as the FOS and Financial Services Authority were forced to effectively act as policy and rule-makers. Additionally, the courts were systematically forced to reach unfair decisions. Finally, in the face of across-the-board European Union harmonisation, it stated that it was 'difficult to justify the present incoherent layers of law to an international audience.' The LC's recommendation for reform of the onerous legal position 'in which the strict letter of the law had been overlain by successive layers of self-regulation, FSA rules and FOS guidelines' , took the form of the recommended enactment of the Bill. Under the Bill, a consumer insurance contract ("CIC") is defined as one entered into '...by an individual wholly or mainly for purposes unrelated to the individual's trade, business or profession'. The Bill replaces the duty of utmost good faith by instead stipulating that: 'It is the duty of the consumer to take reasonable care not to make a misrepresentation to the insurer' in any disclosures or representations made by the consumer to an insurer prior to entering into, or varying, a CIC. 'Reasonable care' is said to be determinable '...in the light of all the relevant circumstances.' This includes things such as 'the type of consumer insurance policy in question, and its target market' ; the insured's produced or authorised explanatory materials or publicity ; the clarity and specificity of the insurer's questions ; and 'whether or not an agent was acting for the consumer.' Also the Bill, prevents contracting out of these obligations by putting the consumer in a worse position , or the use of 'basis of the contract' clauses, namely clauses which convert consumer representations into warranties, breach of which automatically terminates insurance cover. The Bill also provides for balanced insurers' remedies for different types of misrepresentations. For example, an honest and reasonable misrepresentation by the assured does not affect the validity of the insurance contract whereas a deliberate or reckless qualifying misrepresentation allows the insurer to avoid the contract, refuse any claim and keep any premiums paid (unless good reasons exist why they should not be kept). However, the insurer's remedies for any careless representations are based on what the insurer would have done if the consumer had complied with the reasonable care duty. This ranges from avoiding the contract to proportionate reduction of a claim (because the insurer would have charged a higher premium). Although widely accepted, the proposed reforms are not without criticism. For example Soyer has argued that the reasonable assured test for materiality is nebulous and has not been previously tested; that the availability of 'proportionate' remedies may lead to uncertainty as well as being open to criticism from theoretical and economic perspectives; and that statutory control is not practical and undesirable. Nevertheless, it is submitted that such criticisms are weak in the face of the currently manifestly unfair application of dated insurance law principles which are adversely affecting consumers. The law is clearly in need of reform and the proposals set out in the Bill clearly represent a fairer, more balanced and transparent process relating to consumer insurance contracts. Butcher has even suggested that '...to talk of insurance contracts as being contracts of good faith tends to be either useless or positively harmful to a coherent development of the law.' He considers good faith to be a redundant concept, with rules now in place which have gone a good deal further than necessary to maintain good faith relations, and which have provided insurers with a weapon which produces the opposite results of what good faith would demand. Whilst it is true that the service provided by the FOS is currently invaluable to thousands of insurance consumers across the UK, it cannot be a viable substitute for properly focused and balanced reforms. The Bill achieves this and it is submitted there is no reason to delay its enactment.Bibliography
Achampong, F. (1987) 'Uberrimae fides in English and American insurance law: a comparative analysis.' I.C.L.Q., 36(2), 329-347. Bennett, H.N. (1993) 'The duty to disclose in insurance law.' L.Q.R., 109(Oct), 513-518. Butcher, C. (2008) 'Good faith in insurance law: a redundant concept?' J.B.L., 5, 375-384. Hird, N. (1998) 'How to make a drama out of a crisis.' J.B.L., May, 279-287. Soyer, B. (2008) 'Reforming the assured's pre-contractual duty of utmost good faith in insurance contracts for consumers: are the Law Commissions on the right track?' J.B.L., 5, 385-414. Soyer, B. (2009) 'Reforming pre-contractual information duties in business insurance contracts - one reform too many?' J.B.L., 1, 15-43. Steyn, J. (1992) 'The role of good faith and fair dealing in contract law: a hair-shirt philosophy?' Arbitration, 58(1), 51-56. Tarr, Julie-Anne and Tarr, A.A. (2001) 'The insured's non-disclosure in the formation of insurance contracts: a comparative perspective.' I.C.L.Q., 50(3), 577-612. The Financial Ombudsman Service (2010a) [Online] Available from: https://www.financial-ombudsman.org.uk/. [Accessed 1st December 2010]. The Financial Ombudsman Service (2010b) 'About us.' [Online] Available from: https://www.financial-ombudsman.org.uk/about/index.html. [Accessed 2nd December 2010]. The Financial Ombudsman Service (2010c) 'ombudsman releases latest complaints data on individual financial businesses.' (14th September) [Online] Available from: https://www.financial-ombudsman.org.uk/news/updates/complaints-data-Sept-10.html. [Accessed 2nd December 2010]. The Law Commission (2009) Consumer Insurance Law: Pre-Contract Disclosure and Misrepresentation. Law Com No 319, Cm 7758, SG/2009/255 (December).Cite this page
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Pre-recorded Video Evidence in Sexual Assault and Rape Trials
The use of pre-recorded video evidence in sexual assault and rape trials. Has the law of criminal evidence managed to strike an appropriate balance between protecting the victims of sexual assault, who are usually the prime witnesses in prosecution proceedings, and protecting the due process rights of defendants charged with these crimes, in particular the right to properly test the evidence which has been admitted against them?
Introduction:
i. Background to the conflicting issues of this research
In the title of this paper, it is conjectured that victims of sexual assault are usually the prime witnesses in prosecution proceedings for these types of crime. The reason for this is that most sexual assaults are perpetrated in private by someone already known to the victim. What is more, often there is no forensic evidence available and so victims of sexual assault are not only the prime witnesses in prosecution proceedings for these types of crime but, often, the only evidence that a crime has taken place at all . This can place real burden on sexual assault victims during the trial stage of the prosecution. For one thing, the victim must relive the traumatic events in question, by explaining them to the court, jury and defence barrister. Secondly, a common defence strategy is to undermine the credibility of the victim and to convince the Court either that no sexual contact occurred or that it was consensual. In the absence of forensic evidence, often it boils down to the victim's word over that of the defendant and it is very difficult to resolve two conflicting accounts to the satisfaction of the criminal standard of proof required for a successful conviction. As the Office for Criminal Justice Reform writes, “Those victims whose cases do make it to court are faced with the intimidating prospect of having to recount traumatic and often intimate details, endure cross-examination and in some cases have information about their past sexual behaviour presented to the court as evidence against them. ” In light of this, it is not surprising that (i) the rates of conviction for rape and sexual assault are so low (approx. 6% of all cases brought result in a successful prosecution ); and, (ii) a substantial number of victims of sexual assault or rape do not report their crimes to the police, either in a timely manner* or at all**, or choose to drop their claims when it transpires that they will have to testify as a prime witness in the prosecution against their attacker . Research suggests that the drop-out rate is currently 33%. As the Office for Criminal Justice Reform writes, “Research has found that victims who declined to complete the initial investigative process and victim withdrawals accounted for over one-third of cases lost at the police stage. Key contributory factors were not being believed and fear of going through the criminal justice process. ” *The chances of securing a successful prosecution against a rapist or sexual attacker decrease substantially as time passes and therefore anything that leads victims to delay reporting their crime to the Police has the consequential effect of reducing the rate of successful conviction. **This author does not purport to suggest that these are the only reasons why victims of sexual assault choose not to report their crimes to the Police; it is well documented that victims of sexual assault often feel shame and guilt for what has happened to them, as if they are somehow to blame, and this is another major reason why such victims often prefer to keep their ordeals secret . Other factors include fear of retaliation and the distrust of the reactions of family and friends . While these barriers to timely reporting and successful prosecution cannot all be redressed by criminal justice reform, nevertheless, in light of the fact that some of these barriers emanate from fear of or lack of confidence in the court process itself, the law of criminal evidence can play an important role in mitigating some of these barriers; for example, by protecting these vulnerable witnesses and making the ordeal of trial less traumatic, the law of criminal evidence could, eventually, change victims' perceptions of the trial process and make them less likely to allow their fears of that process to interfere with their decisions to report their sexual assaults. One reform proposal which is often discussed in this context is the use of pre-recorded video testimony for victims of sexual assaults. The idea behind this proposal is that victims of such crimes are less likely to be afraid of the trial process if they know that they can record their testimony in advance and that they cannot be cross-examined by their attacker's barristers (even if they are asked to respond to certain questions within their testimony). Such reforms have been implemented in the field of youth justice for some time—for example, there are various provisions under the Youth Justice and Criminal Evidence Act 1999 which allow for the use of video links to shield child victims of sexual or physical abuse from their attackers—but are relatively new in the context of adult rape and sexual assault cases. While the use of video testimony is clearly beneficial to victims, prima facie it poses a real risk to the integrity of the due process rights of defendants charged with these crimes. Under the criminal justice system of England and Wales there is a presumption that all persons charged with a criminal offence are innocent of that offence until proven guilty . This is provided, inter alia, by Article 6(2) of the Human Rights Act 1998 which states that, “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. ” What is more, it is a human right of all persons charged with a criminal offence to be able to challenge effectively the accuracy of any evidence which is admitted against them. This is provided inter alia by Article 6(3) of the 1998 Act which states that, “Everyone charged with a criminal offence has the following minimum rights: (…) (b) to have adequate time and facilities for the preparation of his defence; (…) (d)to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him… ” In this present research paper, we are concerned specifically with the question of whether or not the use of video testimony in sexual assault cases (involving both adult and child victims) unduly prejudices the right of criminal defendants to properly challenge the accuracy and reliability of evidence adduced against them.
ii. The aims and objectives of this research:
The primary aim of this research is to evaluate the extent to which the law of criminal evidence has managed to strike an appropriate balance between protecting the victims of sexual assault, who are usually the prime witnesses in prosecution proceedings, on the one hand, and protecting the due process rights of defendants charged with these crimes, in particular the right to properly test the evidence which has been admitted against them, on the other? The secondary aim of this research is to derive recommendations for reform to the law of criminal evidence to effect a more appropriate balance between protecting the victims of sexual assault on the one hand, and protecting the due process rights of defendants charged with these crimes on the other. The objectives of this research paper are as follows: To identify the legal provisions which purport to allow the use of video evidence in sexual assault and rape trials; to identify the procedures which must be adhered to when utilizing this kind of evidence; to evaluate the likely impact of the use of video testimony on rates of reporting and successful prosecution; to examine the right of criminal defendants to test the evidence relied upon against them by the Crown Prosecution Service and to identify the extent to which it might be argued that this right is a qualified right under the law of England and Wales; to evaluate the extent to which the use of video evidence might prejudice the right of criminal defendants to test the evidence relied upon against them by the Crown Prosecution Service; to identify and critically evaluate the safeguards which exist currently to ensure that the use of video evidence is not permitted where its use would prejudice the ability of the defendant(s) in question to receive a fair trial; to evaluate whether or not an appropriate balance has been struck in practice between protecting the interests of victims through the use of video testimony on the one hand and preserving the interests of justice and the right of criminal defendants to test the evidence relied upon against them by the Crown Prosecution Service, on the other; to derive high level recommendations for reform to the way that the law currently permits the use of video evidence in sexual assault and rape trials.
iii. The structure of this research paper.
The structure of this paper takes the following form: In chapter one, this author traces the development of the use of video evidence in sexual assault and rape trials, identifies the legal provisions which regulate the use of such evidence and the procedures which must be followed when this type of evidence is relied upon by the Crown Prosecution Service and critically evaluates whether or not the use of video evidence is really likely to have any impact on rates of reporting and rates of successful prosecution of rapists and sexual offenders. In chapter two, this author traces the development of the right of criminal defendants to a fair trial, generally, and, specifically, their right to test the evidence adduced against them, identifies the legal provisions which give rise to these rights and evaluates the nature of those rights (i.e. whether they are absolute rights or qualified rights) and evaluates the extent to which the use of video evidence might prejudice the right of criminal defendants to test the evidence relied upon against them by the Crown Prosecution Service, and the circumstances under which that prejudice is likely to be the greatest. In chapter three, this author identifies and critically evaluates the safeguards which exist currently to ensure that the use of video evidence is not permitted where its use would prejudice the ability of the defendants to receive a fair trial and evaluates whether or not, in practice, the law has managed to strike an appropriate balance between protecting the interests of victims through the use of video testimony on the one hand and preserving the interests of justice and the right of criminal defendants to test the evidence relied upon against them by the Crown Prosecution Service, on the other. Also, in this chapter, this author derives high level recommendations for reform to the way that the law currently permits the use of video evidence in sexual assault and rape trials. Finally, this author presents his conclusions to this research.
1. Using video evidence in sexual assault and rape trials; is it likely to have a positive impact on rates of reporting and rates of successful prosecution of rapists and sexual offenders?
As noted in the introduction of this paper, it has been argued in the academic literature that a significant barrier to the timely reporting of sexual offences (and also one of the reasons why the drop-out rate—i.e. the number of victims choosing to withdraw their claims before the conclusion of the trial—is so high ) are common victim perceptions that if they report their assault they will be subjected to a traumatic trial process in which their account of events will be cross-examined by their perpetrator's legal representatives and their character will be called into question . The use of pre-recorded video testimony is designed to mitigate these barriers (ultimately) to prosecution by protecting these vulnerable witnesses and making the ordeal of trial less traumatic for them. Over time, it has been conjectured, victims' perceptions of the trial process will change and they will be less afraid of the trial process and more willing to report their sexual assaults when they occur. Currently, there are two video-based special measures for vulnerable victims . These are provided by the Youth Justice and Criminal Evidence Act 1999. The first is where the victim is permitted to present his or her evidence-in-chief in the form of a video statement rather than in person. This is provided by section 27(1) of the Youth Justice and Criminal Evidence Act 1999 which states that, “A special measures direction may provide for a video recording of an interview of the witness to be admitted as evidence in chief of the witness. ” Section 27(4) of the 1999 Act however makes it clear that dispensation to use this special measure will only be granted where the court is satisfied that the witness in question will be made available for cross-examination (whether that be cross-examination in person or via a ‘special measure' alternative equivalent): “Where a special measures direction provides for a recording to be admitted under this section, the court may nevertheless subsequently direct that it is not to be so admitted if— (a) it appears to the court that— (i) the witness will not be available for cross-examination (whether conducted in the ordinary way or in accordance with any such direction), and (ii) the parties to the proceedings have not agreed that there is no need for the witness to be so available; or (b) any rules of court requiring disclosure of the circumstances in which the recording was made have not been complied with to the satisfaction of the court. ” The intention behind this provision was to ensure that criminal defendants accused of crimes against vulnerable victims were not unduly prejudiced by the existence of this special measure; if the court and jury watched a video statement from a victim explaining how they witnessed the defendant commit a criminal offence, that defendant would be grossly prejudiced if he did not have an opportunity to challenge any aspects of the video statement in question. The second type of video-based special measure provided under the Youth Justice and Criminal Evidence Act 1999 is where the cross-examination and re-examination of a witness's testimony by the defence's legal team is pre-recorded rather than conducted live in the courtroom, in front of the defendant. This is provided by section 28(1)(b) of the Youth Justice and Criminal Evidence Act 1999: “Where a special measures direction provides for a video recording to be admitted… as evidence in chief of the witness, the direction may also provide— (a) for any cross-examination of the witness, and any re-examination, to be recorded by means of a video recording; and (b) for such a recording to be admitted, so far as it relates to any such cross-examination or re-examination, as evidence of the witness under cross-examination or on re-examination, as the case may be. ” To ensure that this special measure does not dilute the defence's ability to cross-examine or re-examine a witness, the 1999 Act provides that the court and the defence's legal representatives must be able to see and hear the live recording session and be able to communicate directly with the persons in the room. The Act also provides that the defendant should be able to see and hear the examination and that he or she should be able to communicate with his or her legal representatives throughout the process: “Such a recording must be made in the presence of such persons as rules of court or the direction may provide and in the absence of the accused, but in circumstances in which— (a) the judge or justices (or both) and legal representatives acting in the proceedings are able to see and hear the examination of the witness and to communicate with the persons in whose presence the recording is being made, and (b) the accused is able to see and hear any such examination and to communicate with any legal representative acting for him. ” If a court has granted the use of this special measure then it is imperative that the defence's legal representatives ask the child witness all of the questions, the answers of which they plan to later rely on in court as they will not be entitled to put any new questions to the witness on completion of this recording session unless any new matters come to light which the defendant or his legal team could not have been expected to have discovered previously with reasonable diligence . These special measures are available to adult victims of sexual assault or rape by default. However, it is up to each witness to decide whether or not they wish to take advantage of one or both of these measures. This presumption of vulnerability is provided by section 17(4) of the 1999 Act which states that, “Where the complainant in respect of a sexual offence is a witness in proceedings relating to that offence (or to that offence and any other offences), the witness is eligible for assistance in relation to those proceedings by virtue of this subsection unless the witness has informed the court of the witness' wish not to be so eligible by virtue of this subsection. ” By virtue of section 16(1) of the 1999 Act, these measures are also available to child witnesses aged sixteen or less: “For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this section (…) if under the age of 17 at the time of the hearing… ” For child witnesses, not only is there a presumption that their testimony will be given via video but this is nearly mandatory. As Burton, Evans and Sanders explain, “For child witnesses in need of special protection (defined by section 21 of the YJCE Act) the provision of video evidence-in-chief or live television links is near mandatory, and it is not necessary to demonstrate that they would improve the quality of the witness's evidence. ” Leaving aside any discussion of the potential prejudicial impact that these special measures can have on defendants' ability to defence a claim of sexual assault or rape of a minor or adult—a discussion which will be reserved for the following chapter of this paper—the first question which, in the opinion of this author, must be asked, is whether or not these special measures actually mitigate the barriers to effective testimony identified previously in this paper. It will be recalled that one such barrier was the victim's fear of cross-examination and being made to feel like the one to blame for the ordeal . And yet, while the second of the two special measures discussed above does allow the cross-examination to take place in a venue other than a court of law, in all other respects a video cross-examination is equivalent to a live court-based cross-examination. As the Crown Prosecution Service explains, in its ‘CPS Policy for Prosecuting Cases of Rape', “Giving evidence in court can be a particularly traumatic experience for victims of rape. In particular, some victims may find it difficult to give evidence in the sight of the defendant. If this is so, we can apply to the court for the victim to give evidence in another way so that he or she can give their best evidence. These alternative ways of giving evidence are known as ‘special measures'… [While] the victim or witness will not have to give ‘live' evidence about what happened to them… they will still have to answer questions put to them by the defendant's lawyer in crossexamination. ” (emphasis added) Therefore, while this special measure might make it more comfortable for a vulnerable or intimidated witness, it is not entirely clear, at least in theory, how it purports to mitigate the victim's fear of cross-examination itself. This is a point raised by Childs and Ellison, who argue that the efficacy of these special measures are undermined by the fact that the process remains an adversarial one, even though it is pre-recorded and conducted in a venue other than a court of law: “There is also a risk… that a commitment to traditional adversarial values and methods may yet limit the impact of reforms. ” Another barrier that was identified previously was the victim's fear of being in contact with the defendant. While pre-recorded video evidence certainly allows a vulnerable witness to give their testimony and responses (to cross- or re-examination) without having to be in the same room as the defendant, as noted previously the defendant is allowed to listen into the recording session and therefore it is not entirely clear how the victim receives any benefits from these special measures whatsoever, other than those which they would be able to enjoy anyway through the use of screens or live links pursuant to sections 23, 24 or 25 of the Youth Justice and Criminal Evidence Act 1999 . Another criticism which has been raised, especially in respect of the use of pre-recorded video cross-examination, is that, historically, these measures have not often been made available to victims of sexual offences, the Courts preferring to rely upon live testimony, whether given orally in court or via a live video link (via the special measures provided by sections 23 and 24 of the Youth Justice and Criminal Evidence Act 1999. As Childs and Ellison argue, writing in 2000, “While the special measures contained in the YJCEA 1999 are to be welcomed, the protection they afford rape complainants has, disappointingly, been constrained by a continuing attachment to the primacy of oral evidence… Adult rape complainants are to benefit from the availability of screens and CCTV but they are to be denied the protection inherent in the use of video-recorded evidence. Generally, adult rape complainants will still be required to give live oral evidence in criminal proceedings, albeit via a TV link. ” Another criticism which has been levied against the use of these video-based special measures is that somehow a victim's testimony is diluted by the fact that the jury is unable to see the witness in a live environment. As Burton et al note, “Some practitioners had reservations about televised evidence because they thought it was less convincing than ‘live' evidence. ” While this argument has real intuitive appeal, in reality there is very little evidence to support this view. As Burton et al conclude, “There is no research evidence to indicate that acquittals are more likely using these methods, however. ” This is something that will be discussed in more detail in the following section of this paper. In conclusion to this chapter, while this author cannot comment upon the general advantages or disadvantages of video-based special measures in cases of rape or sexual assault*, he is not wholly convinced that they manage to discharge the barriers which are faced by rape and sexual assault victims and therefore is not convinced that their use is having the effect of increasing rates or reporting and conviction for these types of offence. Victims still have to undergo a adversarial style cross-examination, which has been reported to be the most daunting prospect of a rape trial for rape victims, and even though this might be conducted in a venue outside of the courtroom, the rape victim nevertheless has to respond directly to questions from the defendant's legal representatives while knowing that the defendant is listening into the recording session and able to communicate with their lawyers throughout. In light of this, the pre-recorded video measures provided by the Youth Justice and Criminal Evidence Act 1999 is unlikely to alleviate victim perceptions that if they report their assault they will be subjected to a traumatic trial process in which their account of events will be cross-examined by their perpetrator's legal representatives and their character will be called into question. In any event, it appears that these measures, particularly pre-recorded video cross-examinations, are rarely used with adult victims, the Courts preferring to grant other special measures to these vulnerable witnesses such as screening or live CCTV links. * In this chapter this author has been concerned only with the extent to which video-based special measures are able to help vulnerable victims overcome the barriers which are reported to be responsible for under-reporting and low overall conviction rates. These measures may well have benefits other than overcoming these barriers, but these are not of relevance to this present research paper. Therefore, one should be cautious not to use the conclusions of this paper to support an argument that video-based special measures should not be used; all that can be said is that they are not apparently very effective at meeting their direct intended objectives.
2. The right of criminal defendants to a fair trial and to test the evidence adduced against them; are these rights prejudiced by the use of video evidence and under what circumstances, in particular?
As noted in the introduction to this paper, Article 6(3) of the 1998 Act provides that any person charged with a criminal defence has the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him . The question which falls for determination in this chapter is whether or not this right is unduly prejudiced by the use of the two video-based special measures identified and analysed in the previous section of this paper. While it is the case that these special measures are not used in every case of adult rape or sexual assault, in this chapter we are concerned with the potential for prejudice when either or both of these measures are employed. In other words, the fact that these special measures, particularly pre-recorded video cross-examination, are rarely used in adult cases will not (and should not ever) be cited as a defence to any claims of prejudice which are levied towards them. The first thing to do is to evaluate what kind of right is created by Article 6(3)(d) of the Human Rights Act 1998; if this right is an absolute right then it would never be appropriate to derogate from it in the interests of protecting vulnerable witnesses . However, if the right is a qualified right, then it might be legitimate, where the circumstances dictate, to derogate wholly or partially from that right to serve a competing but legitimate interest . If one relied upon the wording of Article 6 of the Human Rights Act 1998 then one would be forced to conclude that Article 6(3)(d) is an absolute right as it states unequivocally that all persons charged with a criminal offence are entitled to enjoy this right, which grants upon them an ‘equality of arms' and the tool required to be able to clear themselves of the charges brought; namely, the right to cross-examination . This interpretation seems to be in line with the Strasbourg jurisprudence . However, there is good common law authority for the proposition that this right is a qualified right and also for the proposition that, under certain circumstances, it is appropriate to derogate from this right in the interests of protecting vulnerable witnesses. For example, in the recent case of Bonhoeffer, R (on the application of) v General Medical Council [2011] EWHC 1585 the Court allowed a key witness to admit his evidence in written form only, which precluded cross-examination, on the basis that the witness would face persecution back in Kenya, where he lived, if he appeared as a witness and admitted to being a homosexual. In this case, the Court accepted that the defendant's right to cross-examination under Article 6(3) of the Human Rights Act 1998 had been derogated from; however, the Court justified this derogation using a utilitarian (least harmful path) justification. A similar justification was employed in the case of R v Xhabri [2005] *. *Some authors have argued that this interpretation of Article 6 is at odds with the wording of the 1998 Act and while this present author agreed with that thesis, this is not the time or the place to engage with this subsidiary debate. For our present purposes, all that matters is that it is settled law that Article 6(3)(d) is a qualified right and not an absolute standard. Therefore, we must conclude that the right to cross-examine is a qualified right and, consequently, that the potential for video-based special measures to cause an infringement of a defendant's right to cross-examine is limited; after all, it cannot be said to be an infringement of a right if that derogation can be legitimized through legal authority. In any event, it is not entirely clear that the use of video-based evidence is always likely to be prejudicial to defendants. For one thing, as argued in the previous chapter of this paper, these special measures do not substantially affect the cross-examination process, and therefore it is not straightforward to contend that a defendant's right to cross-examine is affected, let alone limited, by the employment of pre-recorded video cross examination. What is more, there is no evidence to suggest that a conviction is more likely to result from the use of video-based special measures. In their experimental study entitled, ‘The impact of pre-recorded video and closed circuit television testimony by adult sexual assault complainants on jury decision-making', Taylor and Joudo found that juries were not more likely to convict defendants charged with rape or sexual assault when the victim's testimony was presented as a pre-recorded video, than they were when it was presented face-to-face or via a live link CCTV . This study had a strong methodology: the researchers conducted 18 mock trials using a total of 210 jurors. In one third of the trials, the jurors heard the victim's evidence live, face-to face; in one third of the trials, the jurors heard the victim's evidence live, via a live link CCTV system; and, in the remaining third of the trials, the jurors heard the victim's evidence from a pre-recorded video. After the trials, the researchers undertook perception and attitude surveys via a questionnaire. This sought to measure a range of attitudes and perceptions including the degree to which the jurors felt they were able to empathize with the victim and whether or not they thought the accused was guilty of the crime. The conclusion of this study was that the mode of transmission of victim testimony had no statistically significant impact upon juror perceptions: “The study finds, overall, that immediately following the trial but before jury deliberation, mode of presentation of testimony (face-to-face, CCTV or pre-recorded videotape) did not impact differentially on juror perceptions of the complainant or the accused, or guilt of the accused. ” While the methodology of this research study was generally sound, there is anecdotal evidence to support the view that real victims come across better on pre-recorded video than they do live. As the Office of Criminal Justice Reform reports, “In one case the video was not used as it required substantial editing to remove inadmissible evidence. However, prosecution counsel later commented that they wished in hindsight that the video had been used, as the victim was not as good live as on the recording. ” While one might argue that such evidence is of limited use, in the opinion of this author if Taylor and Joudo's study was repeated using real rape victims in real rape trials then it is highly likely that the mode of presentation of testimony would impact differentially on juror perceptions of the complainant; after all, they are likely to feel more comfortable giving testimony about their horrific ordeal in a video recording studio than they would be giving that same testimony live, in a court of law, with twelve jurors, a judge and several lawyers all looking at them. Further research needs to be conducted to test these claims empirically. If nothing else, the pre-recorded testimony would likely have been recorded closer to the actual events with which the defendant has been charged and therefore the witness's memory of events should be fresher and more compelling. As the Office for Criminal Justice Reform concedes, “Enabling the jury to see and hear a rape victim being interviewed at the time of the complaint by means of a video recorded statement used as evidence in chief will usually provide more compelling and coherent evidence than evidence given in court several months later. ” If the above conclusions are correct, then one might argue that rather than prejudicing defendants, all these measures are doing is ensuring that jurors more information on which to base their decisions. In light of the fact that the jurors are asked to presume innocence and derive guilt from lack of reasonable doubt, it follows that the provision of extra information will result in a greater number of successful convictions over time. However, it should also result in an increase in the accuracy of juror's verdicts and therefore it is more likely to adversely affect defendants who are guilty of the crimes with which they have been charged than it is defendant's who are, in fact, innocent. In conclusion, it must be argued that, in the vast majority of cases, the use of video-based special measures will not significantly affect defendant's rights to cross-examine under Article 6(3)(d) of the Human Rights Act 1998. However, each case should be approached on an ad hoc basis and where there is a conflict in a given case, the interests of the defendant should be weighed up against the interests of the victim and a decision reached as to the appropriateness of employing video-based special measures in that case. In the following and final chapter of this paper, this author will briefly evaluate the safeguards that are in place to ensure that the Courts approach this balancing act appropriately. 3. Evaluating the safeguards which are in place to prevent video evidence from being used when it would be contrary to the interests of justice for it to be so used; does the law currently strike the correct balance between protecting the victims of sexual assault on the one hand, and protecting the due process rights of defendants charged with these crimes on the other? The Youth Justice and Criminal Evidence Act 1999 makes it clear that video evidence should not be admitted as evidence-in-chief if to do so would cause prejudice to the accused disproportionate to the legitimate aim of protecting the witness. This is provided by section 27(3) of the Youth Justice and Criminal Evidence Act 1999, which states that, “In considering… whether any part of a recording should not be admitted under this section, the court must consider whether any prejudice to the accused which might result from that part being so admitted is outweighed by the desirability of showing the whole, or substantially the whole, of the recorded interview. ” What is notable about the wording of this provision is how wide a judicial discretion it confers on the courts to override legitimate prejudice concerns; while it does point to the need for a proportionality assessment of some sort, it seems to suggest that this is just one of the factors that the court should take into account when making its decision whether or not to allow video evidence-in-chief to be admitted. This discretion is restricted marginally by section 27(2) of the 1999 Act which provides that, “A special measures direction may, however, not provide for a video recording, or a part of such a recording, to be admitted under this section if the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording, or that part of it, should not be so admitted. ” However, the concept of ‘the interests of justice' is itself a broad one and therefore, in practice, the discretion of the court to decide whether or not to allow video evidence-in-chief to be admitted remains very broad indeed, notwithstanding this provision. The leading authority on the resolution of the interests of vulnerable witnesses and the Article 6 rights of criminal defendant's is the case of R v Camberwell Green Youth Court and others [2003] . In this case the Court confirmed that the special measure provisions of the Youth Justice and Criminal Evidence Act 1999 were compatible with Article 6(3)(d) of the Human Rights Act 1998 so long as they are employed legitimately to protect vulnerable witnesses (in that case, a child). This case confirms that where the legitimate interests of a vulnerable witness come up against the right of a criminal defendant under Article 6, the former will usually, if not always, prevail.
Conclusions to this research.
In answer to the question, has the law of criminal evidence managed to strike an appropriate balance between protecting the victims of sexual assault, who are usually the prime witnesses in prosecution proceedings, and protecting the Article 6 rights of defendants charged with these crimes, in particular the right to properly test the evidence which has been admitted against them, this author presents the following assertions: (1) The video-based special measures considered in this paper do not manage to discharge adequately the barriers which are faced by rape and sexual assault victims and are not having the effect of increasing rates or reporting and conviction for these types of offence. For these measures to be effective they would have to circumvent altogether the adversarial cross-examination process and be used more frequently. (2) As it stands, because the process of pre-recorded cross-examination is so similar to live cross-examination, at least in terms of the defendant's right to properly test the evidence levied against him or her, concerns that these measures over-step the boundaries of Article 6(3)(d) of the Human Rights Act 1998 are overstated. (3) In any event, the right conferred by Article 6(3)(d) of the Human Rights Act 1998 is a qualified right and so it is legitimate to derogate from it in the interests of protecting vulnerable witnesses. (4) The Court's presumption that the interests of a vulnerable victim should override the interests of a defendant to the safeguards enshrined in Article 6(3)(d) of the Human Rights Act 1998 is not, in the opinion of this author, necessarily appropriate. However, in light of the previous conclusions, this point is moot.
References/ Bibliography:
Office for Criminal Justice Reform, Convicting Rapists and Protecting Victims – Justice for Victims of Rape A Consultation Paper Spring 2006—A consultation (London, HMSO, 2006) [Online] <https://www.mensaid.com/documents/cons-290306-justice-rape-victims.pdf> accessed 19th February 2012. J Gregory and S Lees, Policing Sexual Assault (London, Routledge Publishing, 1999). R McElvaney, Delays in Reporting Childhood Sexual Abuse and Implications for Legal Proceedings. In D P Farrington, C R Hollin and M McMurran (eds.), Sex and violence: the psychology of crime and risk assessment (London, Routledge, 2001). L L Holmstrom and A W Burgess, The victim of rape: institutional reactions (2nd edition, London Transaction Publishers, 1978). C Gibson and D M Vandiver, Juvenile sex offenders: what the public needs to know (London, ABC-CLIO, 2008). Genevieve Muinzer, New to the UK: a guide to your life and rights (London, Routledge, 1987). The Human Rights Act 1998. N Morris, Reforms give rape victims right to give video evidence (London, The Independent, 2007) [Online] <https://www.independent.co.uk/news/uk/crime/reforms-give-rape-victims-right-to-give-video-evidence-760831.html> accessed 17th February 2012. The Youth Justice and Criminal Evidence Act 1999. A Keane, The Modern Law of Evidence (7th edition, Oxford, Oxford University Press, 2008). M Burton, R Evans and A Sanders, Are special measures for vulnerable and intimidated witnesses working? Evidence from the criminal justice agencies (London, Home Office Online Report, 2006) [Online] <https://library.npia.police.uk/docs/hordsolr/rdsolr0106.pdf> accessed 19th Feb 2012. Regina v. Camberwell Green Youth Court and others [2003] EWHC 227. N Cross, Criminal Law & Criminal Justice: An Introduction (London, Sage Publishing, 2009). CPS, CPS Policy for Prosecuting Cases of Rape (London, HMSO, 2009) [Online] <https://www.cps.gov.uk/publications/prosecution/rape.html#_07> accessed 18th February 2012. M Childs and L Ellison, Feminist Perspectives on Evidence (London, Psychology Press, 2000). M Fabri and F Contini, Justice and technology in Europe: how ICT is changing the judicial business (The Netherlands, Kluwer Law International, 2001). M Burton, R Evans and A Sanders, Are special measures for vulnerable and intimidated witnesses working? Evidence from the criminal justice agencies (London, Home Office Online Report, 2006) [Online] <https://library.npia.police.uk/docs/hordsolr/rdsolr0106.pdf> accessed 19th Feb 2012. L J Clements and J Read, Disabled people and European human rights: a review of the implications of the 1998 Human Rights Act for disabled children and adults in the UK (London, The Policy Press, 2003). J Young, Human rights are children's rights: a guide to ensuring children and young people's rights are respected (London, NCB Publishing, 2008). Cambridge University and Clifford Chance, The Human Rights Act and the criminal justice and regulatory process (London, Hart Publishing, 1999). Dombo Beheer B.V. v the Netherlands (37/1992/382/46) Application 5362/72 X v Austria 42 CD 145 (1972) McMichael v United Kingdom (1995) 20 EHRR 205. R v Xhabri [2005] EWCA Crim 3135. L Wolhuter, N Olley and D Denham, Victimology: victimisation and victims' rights (London, Taylor and Francis, 2008). N Taylor and J Joudo, The impact of pre-recorded video and closed circuit television testimony by adult sexual assault complainants on jury decision-making: an experimental study (Australia, Australian Institute of Criminology, 2005). R v Camberwell Green Youth Court and others [2003] EWHC 227.
Research Trail:
An internet search using the search term ‘protecting victims of rape' led this author to the Office for Criminal Justice Reform's 2006 Consultation Paper entitled, ‘Convicting Rapists and Protecting Victims – Justice for Victims of Rape'. One of the special measures highlighted for discussion by this report was the use of pre-recorded video statements and video cross-examination and, interested in how these measures interfaced with defendant's rights under Article 6(3) of the Human Rights Act 1998, this author selected the evaluation of these special measures as the subject matter for this research project. This source made it clear that historically rates of reporting of sexual offences have been low and that victim fears and perceptions of the prosecution process were in some way responsible. This source also conjectured that it was this lack of timely reporting that made it so hard to secure convictions for these types of offence. Keen to find out more about the nature of these barriers, this author undertook a library search using the search terms ‘under+reporting+of+sexual+offences' led this author to the following sources which provided very useful insights into these barriers:
- J Gregory and S Lees, Policing Sexual Assault (London, Routledge Publishing, 1999).
- R McElvaney, Delays in Reporting Childhood Sexual Abuse and Implications for Legal Proceedings. In D P Farrington, C R Hollin and M McMurran (eds.), Sex and violence: the psychology of crime and risk assessment (London, Routledge, 2001).
- L L Holmstrom and A W Burgess, The victim of rape: institutional reactions (2nd edition, London Transaction Publishers, 1978).
- C Gibson and D M Vandiver, Juvenile sex offenders: what the public needs to know (London, ABC-CLIO, 2008).
- M Childs and L Ellison, Feminist Perspectives on Evidence (London, Psychology Press, 2000).
The next stage of this research required this author to identify and understand the legal framework which allows vulnerable victims to enjoy these video-based special measures. The Office for Criminal Justice Reform's 2006 Consultation Paper made passing reference to the Youth Justice and Criminal Evidence Act 1999 which this author searched for and found on the Westlaw Database. It was straightforward to identify the provision which were relevant to this research, as the provisions of this Act are well labelled. This author referred to A Keane, The Modern Law of Evidence (7th edition, Oxford, Oxford University Press, 2008) and N Cross, Criminal Law & Criminal Justice: An Introduction (London, Sage Publishing, 2009) to assist with his interpretation of this legal text. To critically evaluate these special measures this author searched for sources which provided some insights (empirical or otherwise) into whether or not they were working, in practice. This search yielded the following sources:
- N Taylor and J Joudo, The impact of pre-recorded video and closed circuit television testimony by adult sexual assault complainants on jury decision-making: an experimental study (Australia, Australian Institute of Criminology, 2005).
- M Burton, R Evans and A Sanders, Are special measures for vulnerable and intimidated witnesses working? Evidence from the criminal justice agencies (London, Home Office Online Report, 2006) [Online] <https://library.npia.police.uk/docs/hordsolr/rdsolr0106.pdf> accessed 19th Feb 2012
- M Fabri and F Contini, Justice and technology in Europe: how ICT is changing the judicial business (The Netherlands, Kluwer Law International, 2001).
- Regina v Camberwell Green Youth Court and others [2003] EWHC 227.
Next, this author undertook a search to find sources relevant to Article 6 of the Human Rights Act 1998. The sources consulted here included:
- The Human Rights Act 1998.
- Genevieve Muinzer, New to the UK: a guide to your life and rights (London, Routledge, 1987).
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- J Young, Human rights are children's rights: a guide to ensuring children and young people's rights are respected (London, NCB Publishing, 2008).
- Cambridge University and Clifford Chance, The Human Rights Act and the criminal justice and regulatory process (London, Hart Publishing, 1999).
- Dombo Beheer B.V. v the Netherlands (37/1992/382/46)
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Krell V Henry and Herne Bay Stream V Hutton
[1]
and Herne Bay Steamboat Co v Hutton[2]
are the two that arguably led to the greatest refinement of the English law doctrine of frustration of contract. Both relied on the authority of Taylor v Caldwell[3]
which clarified the position on contractual impossibility, a flavour of frustration which asserts that both parties to a contractual obligation may be freed from it if, by no fault of their own, performance of the contract was made impossible. Particularly, if the impossibility pertains to something which ‘strikes to the root' of the contract, then both parties would be restored to their original position, as far as was possible. The assumed approach to frustration of contract involving contractual impossibilities was to examine whether or not the absence was implicitly central to the contract. Both of the aforementioned cases took this test – and the Taylor case as a whole – as a starting point, though the differing judgements present a prima facie incompatibility. However, it could be argued that the reasoning in both cases is largely compatible and logically consistent. Moreover, it could be argued that both cases read together have led to a greater clarification of the doctrine of frustration which is evident from subsequent case law. Krell and Herne Bay are distinguishable in terms of both the material facts and the decision reached. Krell concerned a defendant who rented a flat from which he intended to watch the coronation procession. The contract was held to be frustrated, even though he could still rent and occupy the flat, as the viewing of the procession (now impossible due to its rescheduling) was deemed to be the foundation of the contract. Even though the coronation was not explicitly mentioned during the pre-contractual negotiations, the court concluded that this intent was both implicit and integral. In Herne Bay Steamboat Co v Hutton the defendant contracted to hire a steamship to watch the royal naval review and to take a “day's cruise around the fleet”. This contract was not held to be frustrated; even though the naval review was no longer possible, the defendant could still take part in the cruise regardless. We see, therefore, a fundamental irreconcilability in the application of the ‘implied term' test established in Taylor; in both cases the parties entered into their respective contracts with the royal festivities being the implicit reason for the contract. That there is another element – that of a general cruise around the fleet – in Herne Bay should be irrelevant; ostensibly the court had taken a less absolute view of the hiring parties' intent in making their judgement. Criticism has particularly focused on Krell – Roberts (2003, para. 30.) paints the ruling in Mr Henry's favour as being fundamentally at odds with the common law principle of sanctity of contract. In Herne Bay, Stirling J accepted the logic of Taylor, but said the fact that the parties could still visit the fleet denied the possibility of frustration. He opined that the royal naval review was descriptive as to the nature of the trip, but not fully indicative of what was contracted for. In essence, the contract was limited, but not utterly diminished; that is, the cruise itself could still, and would still, go ahead as planned, merely without the coronation element. Therefore, the cases demonstrate judicial analysis of Taylor yet a reluctance to adhere to its core tenets; in Herne Bay there was held to be no frustration even in the case of a unique subject matter, lost due to impossibility, which stood as an overt reason for forming the contract. The treatment in this case becomes more similar to non-frustratory contract cases where a pursuer sues over a ‘loss of enjoyment', such as in Jarvis v Swan Tours[4]. I would argue, however, that instead of an incompatibility – the extent to which either case followed the Taylor reasoning – these decisions instead indicate a move to the more elegant test discussed in the later case of Davis Contractors v Fareham Urban District Council [5]. In this case, Lord Radcliffe reasoned that frustration would be possible when “...such a change [has occurred] in the significance of the obligation that the thing undertaken would, if performed, be a different thing from that contracted for.” This test asserts that if the supervening act radically changes the subject matter of the contract then it will be frustration. If Krell and Herne Bay indeed contain an early iteration of the test in Davis, then they are compatible within this framework. To elaborate, in Herne Bay the royal presence may have formed part of the pre-contractual consensus; however, the contract would not be radically different after the change of circumstances as Mr Hutton could still make a profit from taking passengers on a pleasant tour around the fleet regardless of the timing of the coronation. Mr Henry's use of the flat, conversely, would be radically different as he would be obliged to make payment for a flat he has no use for, watching the coronation being the sole purpose of the rental agreement. Krell, therefore, is not merely distinguishable and of limited scope of application as opined by Koffman and Macdonald (2010. p.511), but just as thematically consistent with the ‘radical difference' test as Herne Bay. Continuing to suppose that Krell and Herne Bay share an early adoption of the “radical difference” test, we may examine two cases which share the echoes of their logical reasoning; Nickoll and Knight v Ashton Eldridge & Co[6]
and Tsakrioglou & Co Ltd v Noblee Thorl GmbH[7]
. Nickoll concerned a stranded ship which was unable to deliver its cargo. As in Krell, the impossibility of performance is clearly radically different to what both parties intended. In Tsakrioglou, another merchant shipping case, the ship in question was unable to deliver its cargo through the Suez canal – as originally agreed by both parties – due to political reasons. The court held that taking the alternative Cape of Africa route was not frustratory. This case, as in Herne Bay, may have fallen on a bare interpretation of Taylor, but the court maintained that even limited performance should be upheld. It also suggests a high bar for situations in which courts will agree that frustration has taken place. This high bar further supports the idea that Krell and Herne Bay share compatible reasoning; the courts have been keen to prevent frustration from being an easy escape from a contract for fickle parties. Treitel (2004, para 7.14) points out that the continuation of any part of the contract apart from something trivial makes frustration unlikely.In Blackburn Bobbin Co v Allen [8] the outbreak of war was held not to be frustratory, even given concerns by the merchant shipping company that the goods would be destroyed due to the predations of the Imperial German navy. This high threshold – which exists to prevent buyers evading a minor disappointment, or vendors a more difficult method of supply – is evident in Krell and Herne Bay (with regards the former, Morgan (2013, p120) suggests the high threshold has been reached as Mr Henry lacked an obligation to reschedule given that the King may not have survived his appendix surgery). As well as both cases being decided “correctly” against the high threshold for successful frustration, both demonstrate a common judicial reluctance to infer too much of the mental thought processes of the parties. Brownsword (1993, p246-247) puts forward a key distinction; Mr Krell was treated as a consumer - he had a very specific intent in mind, an assumption the court had little difficulty in basing their judgement upon. In Herne Bay, however, the Court of Appeal was unwilling to infer such a clear purpose. Mr Hutton intended to hire the steamship so that he could in turn hire the use of it to paying guests. Stirling J asserted that the “risk fell on the defendant whose venture the taking of passengers was”. This suggests a shared reasoning – the judges are more likely to be able to establish the root of a contract where it concerns a disappointed consumer rather than assess the nebulous interests of remote third parties in the more commercial situation seen in Herne Bay. Alternatively, it can be said that compatibility simply is not relevant. As indicated above, it can be argued that the evolution from Taylor to the test in Davis is a move towards a fairer system. However, Lord Wilberforce in National Carriers v Panalpina [9] was reluctant to assert the supremacy of either test. He suggested they overlapped considerably and that the one used is the one “most appropriate to the particular contract under consideration”, that is, the tests should be used on a case by case basis depending on the specifics of that particular situation. Furmiston et al (2012, p.722) draws an analogy to the standard of the reasonable man, suggesting the organic approach taken in these cases was correct. To conclude, the reasoning in both the cases examined is compatible. The judges Vaughan Williams J, Stirling J and Romer J sat on both cases, and it cannot reasonably be inferred that they intended to create clarification on the precedent laid down in Taylor without ensuring the cases can be read in concert with one another. Indeed, the words of the judges suggest that they had precedential consistency very much aforethought; Vaughan Williams J stated that all cases of this type must be decided on their own merits, indicating a preference for the more organic approach later seen in Davis. He even went on to evoke a strong analogy akin to the facts of Herne Bay when making his judgement in Krell; that of someone who has hired a taxi to take him to the Epsom Derby. Even in the event of the cancellation of the Derby, the contract to convey the hirer to Epsom still exists. As previously stated, both cases stand under the weight of the later approach taken towards frustration in cases such as Davis, that of looking at whether or not the contract is so radically different as to make freeing the parties from it the only fair and reasonable course of action. Additionally, the cases clearly delineate situations in which a court will be willing to apply the doctrine of frustration – the court plainly saw the contract was robbed of its commercial value in Krell yet recognised the situation in Herne Bay was still commercially viable; as Lord Roskill in Pioneer Shipping v BTP Tioxide[10]
remarked, the doctrine of frustration was “not lightly to be invoked to relieve contracting parties of the normal consequences of imprudent commercial bargains”. The cases clearly demonstrate how this doctrine may be correctly applied. As the cases fit so comfortably within the radical difference test and the reasoning applied to each of them can be seen in following case law, we can conclude that they are compatible.Bibliography
References
Furmston M. P. (2012) Cheshire, Fifoot & Furmston's Law of Contract (16th edition, Oxford University Press) Koffman L. and Macdonald E. (2010) The Law of Contract (7th edition, Oxford University Press) Treitel, G. (2004) Frustration and Force Majeure (2nd edition, Sweet & Maxwell) Brownsword, R. (1993) ‘Towards a rational law of contract', in Willhelmson, T. (ed), Perspectives of Critical Contract Law (Aldershot: Dartmouth) Morgan, J. (2014) Contract Law Minimalism: A Formalist Restatement of Commercial Contract Law (1st edition, Cambridge University Press) Roberts, T. (2003) ‘Commercial Impossibility and Frustration of Purpose: A Critical Analysis', 16 Can. J. L. & Juris 129Cases
Blackburn Bobbin Co Ltd v Allen (T.W) & Sons Ltd [1918] 2 KB 467 Davis Contractors Ltd v Fareham Urban District Council [1956] UKHL 3 Herne Bay Steamboat Co v Hutton [1903] 2 KB 683 Jarvis v Swans Tours Ltd [1972] EWCA Civ 8 Krell v Henry [1903] 2 KB 740 National Carriers v Panalpina [1981] AC 675 Nicholl and Knight v Ashton , Eldridge & Co [1901] 2 KB 126 Pioneer Shipping Ltd v BTP Tioxide Ltd [1982] AC 724 Taylor v Caldwell [1863] EWHC QB J1 Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962] AC 93Internet Resources
www.lexisnexis.co.uk legalresearch.westlaw.co.uk[1] [1903] 2 KB 740 [2] [1903] 2 KB 683 [3] [1863] EWHC QB J1 [4] [1972] EWCA Civ 8 [5] [1956] UKHL 3 [6] [1901] 2 KB 126 [7] [1962] AC 93 [8] [1918] 2 KB 467 [9] [1981] AC 675 [10] [1982] AC 724
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Second Language Learning
A Brief Literature Review and Self-reflection on the Critical Period Hypothesis
Introduction
Is there really an ideal age at which second language learning should begin? Is there only a slim chance for an adult learner to master a second language? These thought-provoking questions arising from the Critical Period Hypothesis, as well as the interesting phenomena relating to the hypothesis that occurred during my life as a teacher make it the focus of discussion of the essay.The Critical Period Hypothesis: A highly debatable issue
One prominent proponent of the Critical Period Hypothesis (CPH) was Eric Lenneberg (1967), who based his hypothesis on neurological development. He explained that there is a maturation process called cerebral lateralization, during which the brain loses its plasticity as it gradually matures. This process, starts at around two, is supposed to be completed at puberty, after which it is very difficult or even impossible for a learner to successfully acquire a new language. The CPH has been widely discussed in the area of second language acquisition (SLA) and has aroused much controversy. The CPH is most closely linked to the acquisition of the phonological system. As put forward by Scovel (1988), it is not possible for learners beyond the age of 12 to attain a native-like pronunciation though they might be able to master the syntax and vocabulary of a second language. A similar view regarding phonological attainment was propounded by Flege and Fletcher (1992, p.385). They concluded from their studies that 'a foreign accent first emerges at an age of L2 learning of between 5 and 8 years', which probably implies, in the domain of phonology, that the 'critical period' ends even earlier than what Lenneberg proposed. This coincides with later studies conducted by Krashen (1973), who claimed that lateralization is completed at around age 5. Mark Patkowski (1980) conducted a study on how the age factor is related to the acquisition of linguistic features other than accent. The findings further supported the CPH as the results indicated that the age factor is very important in a sense that it limits the learner's development of a native-like mastery of various linguistic features of a second language. Jacquline Johnson and Elissa Newport (1989) also carried out a study relating to the rules of English morphology and syntax and found that those earliest starters got the highest scores on the grammaticality judgement test. Despite some clear evidence that supports the CPH, a remarkable research undertaken by Catherine Snow and Marian Hoefnagel-Ho_hle (1978) provided evidence against it. The findings revealed that both adolescent and adult learners could surpass the children learners by making enormous and rapid progress in a wide range of language knowledge. White and Genesee (1996) also revealed in a grammaticality judgement task that late starters are able to achieve near-native proficiency. Robert Dekeyser (2000) done something along the line of Johnson and Newport and found that adult and children might have different way in learning language.Insights gained from the CPH: A Self-reflection
Taking into account what I have explored from the literature review, I do believe that the evidence for CPH is somewhat mixed, especially when I reflected upon the L2 learners I taught in a secondary school in Hong Kong. In all my years of teaching, I have had a chance to teach a fairly large number of L2 learners who are immigrants from the Mainland. They are of diverse backgrounds in terms of age, gender, financial condition, etc. Very importantly, not all of them started learning English at the same age. There are a few cases which impressed me most. Two girls who first came to Hong Kong at the age of 17 joined my S4 class. Both of them started learning English at the age of around 12 when they were in the mainland. What was so remarkable was that both of them could write very fluently with highly accurate grammar and a variety of sentence patterns. Their performance in writing and reading even surpassed their local counterparts who started taking up English in kindergarten. This can somewhat be taken as counter-evidence to the CPH. Both girls revealed that they had an extraordinary strong motivation to improve their English and to catch up with their classmates. These social-psychological factors did play a part in their success of L2 acquisition. As discussed in Lightbown (2006), learners beginning at primary school level might not have an absolute advantage over adolescent learners in attaining greater proficiency in the long run. This is especially true when learners, confining to a classroom setting, receive just a few hours of training every week. Interesting enough, despite extra tutorials to improve the girls' oral skills, they carried a rather strong foreign accent. In fact, they do speak Cantonese (a different dialect) with an accent, let alone English, a language which is far different from their mother tongue. This seems to support findings demonstrating that it is very unlikely for late starters to attain native-like pronunciation.Conclusion
As an experienced and sensible teacher, I believe that one should not constrain ourselves too much in any one of the theories or models. If a teacher is a true believer of the CPH, it would somehow affect their expectation on their students who are beyond the puberty period. This in turn would also lead to a lower expectation of the students themselves even though they are not aware of the fact that their teachers assume that they have already gone beyond the optimal period of learning a second language. Instead we should be flexible and reflective enough to cater to our learners' needs and facilitate their learning regardless of their age. Though I am convinced that the age factor does play a part in affecting SLA, I concern more in how I could adjust my teaching methods to suit the needs of learners at different ages. It is no doubt that the hypothesis should not be oversimplified and overgeneralized and to be indiscriminately applied to our students because second language learning is a really complicated process in which a lot of factors can be intermingled to affect how successfully a person can learn a second language. To conclude, there has been no overwhelming evidence showing that young learners have absolute superiority over their adult counterparts. Despite the difference in the research findings, there seems to be a general consensus that there are a number of factors interacting to affect SLA, and it is possible that late learners might achieve success in SLA, most likely via a different route from children learners, as discussed by Krashen (1975); (Dekeyser 2000). I believe it is also due to this reason that a lot of other factors cognitive, psycholinguistic and socio-cultural that come into place as to how a learner acquire a second language.References
Lightbown, P. & Spada, N. (1993). How Languages Are Learned. Oxford University Press Robertson, P. (2002) The Critical Age Hypothiseis, The Asian EFL Journal (On-Line) https://www.asian-efl-journal.com/marcharticles_pr.php Flege, J.E. and Fletcher, K.L. 1992, talker and listener effects on degree of perceived foreign accent. Journal of the Acoustical Society of America 91, 370-89. Daniels, D. and Moos, R.H. (1990). Assessing Life Stressors and Social Resources among Adolescents: Applications to Depressed Youth. Journal of Adolescent Research, 5, 268-289. Erikson, Erik H. (1980). Identity and the life cycle. W.W. Norton & Company, Inc. Hall, J.A. (1987). Parent-Adolescent Conflict. An Empirical Review. Adolescent, 22, 767-789. Montemayor, R. (1986). Family Variation in Parent-Adolescent Storm and Stress. Journal of Adolescent Research, 1, 15-31. Ormrod, J.E. (2000). Educational psychology: developing learners (3rd ed.). London: Prentice Hall. Rice, F.P. (1993). The adolescent: Development, relationships, and culture (7th ed.). Boston: Allyn and Bacon. The concept of critical period was initially introduced by Wilder Penfield and Lamar Roberts (1959). As summed up by Hong and Morgan (2005), they proposed that the relatively higher plasticity of a child's brain, as compared to that of an adult, enables a child to learn a language more easily.Cite this page
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Critical Analysis of Police Powers on Search, Arrest and Detention
Police Powers: A Critical Analysis of Police Powers on Search, Arrest and Detention
Aims and Objectives
This proposed dissertation has a number of key aims it intends to meet. These can be expressed as follows: 1. To provide an overall perspective of the role of policing in the community; 2. To demonstrate the historical development of the nature of policing, due to changes in social circumstances; 3. To address any key differences between public and ‘private' forms of policing (e.g. security, private investigation etc); 4. To assess the current powers of police in relation to search, arrest and detention, and highlight the differences with historical times; and 5. To assess the governance of police, with particular reference to internal resolution and discipline procedures.Feasibility
This proposal requires no data collection or fieldwork, and is virtually entirely theory based. By minimising the extraneous fieldwork requirements, it allows this dissertation to focus mainly on the underlying theory and social policy behind policing, allowing for an adequate analysis of the benefits and consequences of increased police powers in the modern context. There may be some critique of internal police processes, such as dispute and conflict resolution and discipline, which may require some liaison with police officials; however it does not require the same depth and preparation as a large-scale data collection, saving time and resources.Rationale
The role of policing is ever changing and expanding. Throughout history, the concept of policing has had to adapt to respond to a number of challenges that have faced society. >From the industrial revolution, through to both world wars and now the apparent growing threat of terrorism, policing has changed and grown to equip itself to deal with a number of new circumstances. Perhaps most notably since the attacks of September 11 on New York City, the threat of terrorism has never appeared so real. As a consequence, many national governments, including the United States, United Kingdom and Australia (among others) have amended the powers of police in an attempt to deal with terrorism and terrorist groups. The primary purpose of this proposed dissertation is to consider the general idea of policing (as highlighted throughout historical development), and also determine whether these increases in the powers of police represent a proportionate and measured response to the threat of terrorism and 21st century society, or whether it is simply an overreaction by lawmakers and police groups.Research Points
1. The nature and function of policing The primary purpose of this chapter is to provide a broad overview of the general theories behind policing, such as the prevention of crime and enhancement of public safety. The main points of interest in this area will be the role of police in the State and legal system, as well as the pluralisation of the police forces. Another area for explanation by this chapter will be the relationship between the police and other aspects of policing, such as forensic investigation and the court system, for example. By illustrating this, the audience will be ‘read into' the idea behind policing, rather than simply limiting policing to the simple concept of arresting those who break the law, and thus deterrence will also be a point worthy of highlighting. 2. The historical development of policing This chapter will be largely theory based, presenting a number of views and opinions on the development of policing over time. Of particular interest here will be the differences in opinion between historical theory and that present in modern times. This will prepare the audience for the debate that this dissertation intends on contributing to: the idea of over-extending police powers, creating a disproportionate response to modern day issues. The idea of this chapter is to highlight key events in history that have seen the development of police, and measure the police response to these events. This will allow for a comparison with modern day ideas and objectives. 3. Police work, and the impact of police organisations There are a number of key issues that this chapter will seek to address, however it is primarily concerned with identifying the real perception of police work, rather than relying on any possibly fabricated reports from tabloids and other media. Particularly, this chapter will attempt to identify the possible existence of elements of discrimination arising from the reliance upon police discretion in carrying out police work. This is an issue that has received notorious media coverage, highlighted especially by the Rodney King incident and consequent Los Angeles riots in the United States in 1992, as a result of the officers' acquittal in a state court. Another area of interest will be the measurement of effectiveness (i.e. how does one measure when policing is effective?). 4. The characteristics and dynamics of police organisations As with any workplace, there are certain policies and procedures in place to ensure that the environment is both manageable and productive. The main rationale of this chapter will be to highlight these policies that are in place in many of the popular police forces, and also to assess whether they sufficiently address issues such as discipline and reporting lines, for example. The most important aspects of this chapter will be the management structures in place to run the force, as well as any issues relating to personnel (eg. Recruitment, training etc). Additionally, the informal nature of management will also be important; to determine if convention and custom play any significant role in the way police work is carried out. This chapter may require first-hand research from police bureaus, which will most probably be conducted by way of interview with a senior official or similar. 5. Specialist areas of policing This chapter will highlight other areas of policing, such as criminal investigation processes, and the control of public order in particular circumstances (eg. Riots, major events etc). This will give an indication of the more specialised roles that police play in modern society, and the need for more focused policy rather than broad ideals. 6. The relationship between State and ‘private' policing The intention of this chapter is to raise the question of private security and other measures that do not rely on public policy. The main question is where does state responsibility end and private responsibility begin? 7. The legal powers of the police This is perhaps one of the most important chapters of the dissertation. It will focus primarily on the sources of law for police powers, particularly in the United Kingdom jurisdiction. Primarily, this source is from legislation, and is found in relevant sections of the Police and Criminal Evidence Act 1984; however certain aspects are also covered at common law. Furthermore, other legislation should also be assessed, such as the Mental Health Act 1983, Road Traffic Act 1988, Misuse of Drugs Act 1971, Aviation Security Act 1982, Criminal Law Acts 1966 and 1967, Terrorism Act 2000, Public Order Act 1936 and 1986, Firearms Act 1968, Police Acts 1996 and 1997, Criminal Justice and Public Order Act 1994, Customs and Excise Management Act 1979; as well as cases such as Moss v McLachlan (1980), Donnelly v Jackman (1970) and Thomas v Sawkins (1935). As one can see, this chapter is quite detailed and requires much consideration of a wealth of sources of police power, and thus there is ample opportunity for a review to be conducted on police power in more specialised areas of policing, such as terrorism, traffic and drugs, to name a few. 8. Police accountability and control This chapter will primarily focus on the governance of the police force, with a particular emphasis on the impact that the legislature and judiciary can have on the regulation of police power, and thus protection of the public. Also, the complaints process available for use by the public will also be discussed, and thus the effectiveness of this system as a means of conflict resolution will be assessed. 9. The role of the police organisation in the formation of law and criminal justice policy It is also important to understand the broad role that a police organisation has in contributing to its own regulation and governance. In this chapter, the amount of input that the police have in this area will be discussed and thus a conclusion will be drawn as to whether the police are an entity that can effectively self-govern, or one that requires the constant oversight and minding of the Parliament and court system in order to determine its boundaries and aims. 10. The rights of the police In the final chapter, the debate will be contributed to by the question: do police have any rights in relation to stop, search and arrest? Or is it merely the rights of the public that are governed by legislation? Also, how are police represented in misconduct and disciplinary hearings? The rights to safety and representation of the members of the police force will be discussed by this chapter, and contrasted with the statutory and common law rights of the public that form the source of police law.Methodology
As this proposal has already mentioned, this dissertation is significantly theory based, meaning that the methodology for the research is simply statute, case law, as well as other authors' works on various issues relevant to the topic. There will be some aspects which may require first-hand liaison with members of the police force and their senior officials, particularly those relating to the mechanics of police work which cannot be discussed by simply reading other works. This should be primarily collected by interviews with certain members, and possible government officials, and suitable ethics clearance will be obtained from the relevant committee at a time when the participants in these interviews become clear.References
· Anon., ‘Divisional Court – Police Power to Remove Masks from Demonstrators' (2002) 66 Journal of Criminal Law 197 · Bell, J., Police and Policing Law (2006), Aldershot, UK: Ashgate · Brayne, H., ‘Detention under the Police and Criminal Evidence Act 1984' (1987) 84(1) Law Society Gazette 28 · Clayton, R., and Tomlinson, H., ‘Safeguards and Sanctions under the Police and Criminal Evidence Act 1984' (1988) 138(6350) New Law Journal 216 · Davenport, A., ‘Court of Appeal – Stop and Search: Lawfulness of Extended Powers' (2005) 69 Journal of Criminal Law 16 · Edwards, C., Changing Policing Theories for 21st Century Societies (2005, 2nd ed), Sydney: The Federation Press · Ferguson, P.W., ‘The Limits of the Police Power of Search' (1992) 37(3) The Journal of the Law Society of Scotland 113 · Harrison, R., ‘Police Right to Stop and Search for Weapons' (2000) 64 Journal of Criminal Law 156 · Holdaway, S., The Racialisation of British Policing (1996), Hampshire, UK: Macmillan Press · Jason-Lloyd, L., An Introduction to Policing and Police Powers (2005), London: Routledge-Cavendish · Leishman, F., and Mason, P., Policing and the Media: Facts, Fictions and Factions (2003), Devon, UK: Willan Publishing · Lidstone, K.W., and Palmer, C., Bevan and Lidstone's The Investigation of a Crime – a Guide to Police Powers (1996, 2nd ed), London: Butterworths · Miller, S., and Blackler, J., Ethical Issues in Policing (2005), Aldershot, UK: Ashgate · Mimmack, A., ‘Police Station Practice' (2006) 10(1) Magistrate's Court Practice 6 · Morgan, R., and Newburn, T., ‘Radically Rethinking Policing' (1994) 144(6659) New Law Journal 1092 · Nicholls, S., ‘Police Station Practice' (2006) 10(6) Magistrate's Court Practice 6 · Poyser, S., ‘The Role of Police Discretion in Britain and an Analysis of Proposals for Reform' (2004) 77 Police Journal 5 · Reiner, R., ‘Responsibilities and Reforms' (1993) 143(6611) New Law Journal 1096 · Reiner, R., The Politics of the Police (2000, 3rd ed), London: Oxford University Press · Roberts, A., ‘European Court of Human Rights: Search Warrant: Compatibility with Articles 8 and 13 of the European Convention on Human Rights' (2006) 70 Journal of Criminal Law 479 · Spencer, J.R., ‘Extending the Police State' (2005) 155(7170) New Law Journal 477 · Starmer, K., Criminal Justice, Police Powers and Human Rights (2001), London: Blackstone · Stone, R., The Law of Entry, Search and Seizure (2005, 4th ed), London: Oxford University Press · Zander QC, M., ‘The Police Reform Act 2002 – Pt 1' (2002) 152(7047) New Law Journal 1355Fraud Order 200975
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The Law for Psychiatric Harm by Secondary Victims
Critically analyse the way the courts have developed and limited the law in relation to claims for psychiatric harm by secondary victims.
Date authored: 18 th August, 2014. Introduction This paper will attempt to analyse the development of the law regulating the negligent infliction of psychiatric harm to secondary victims. This area of law is one filled with uncertainty due to the various limitations that have been introduced in an attempt to restrict an expansion of potential claims. The Law Commissions has expressed its concerns in their report entitled ‘Liability for psychiatric illness', stating that “the common law has taken a wrong turn” [1] with respect to psychiatric injury. This paper aims to demonstrate the legal shortcomings surrounding psychiatric injury to secondary victims and how they have come to be. What is psychiatric injury and how is it established? The concept of psychiatric injury is, in itself, quite difficult to quantify. Indeed, when writing the Diagnostic and Statistical Manual of Mental Disorders, the American Psychiatric Association admitted that: “no definition adequately specifies the precise boundaries for the concept of ‘mental disorder'” [2]. The wide scope of this concept has led to judicial activism in imposing control mechanisms preventing the opening of floodgates to litigation. However, as Lord Steyn famously observed, this activism has created “a patchwork quilt of distinctions which are difficult to justify” [3]. The law has developed to only compensate those who suffer from a “recognised psychiatric illness”, as enunciated by Lord Denning in Hinz v Berry[4]. Such an approach is very restrictive when considering that medicine and psychology are ever-developing disciplines. The reason behind a requirement of ‘recognised medical condition' is the judiciary's attempt to limit claims. Alcock v Chief Constable of South Yorkshire[5]
proved to be useful precedent in doing so. Indeed, the case illustrated judicial control mechanisms restricting potential claims, including: the existence of a relationship between the claimant and the victim of physical harm; proximity of space and time between the claimant and the event (or its immediate aftermath); sudden shock suffered by the claimant; and a perception of the event with their unaided senses. Although at a first glance these mechanisms may appear innocuous, when examined individually they prove to be restrictive and perhaps unreasonably insular. Establishing a relationship between the claimant and a victim Requiring the claimant to prove a relationship of close ties of love and affection between them and a victim of harm has been the subject of much debate. Although Lord Keith in Alcock[6] determined what such a relationship may consist of, the circumstances under which it is presumed are limited, excluding siblings and cohabitees, among others. Considering that the law must promote what is “fair between one citizen and another” [7], is it right to deny compensation to an unmarried claimant who has lived with their partner for several years? The injustice is further highlighted through the exclusion of rescuers from bringing claims for psychiatric injury, a rule controversially established in the cases of White v Chief Constable of South Yorkshire [8]. The result is a denial of protection to those who risk their lives to save others. Yet, the courts have used public policy considerations as a defence to these control mechanisms, forming a powerful limitation on the imposition of liability. Proximity of space and time between the claimant and the event Furthermore, in finding liability for psychiatric injury it is necessary to prove a physical proximity between the claimant and the event. This need to establish proximity is, once more, a matter of policy, limiting claims to only those who have witnessed the event or its immediate aftermath. As the law used to stand, the claimant had to witness the actual event[9]. However, following cases like McLoughlin v O'Brian[10]
, and the concept of ‘immediate aftermath', this rule appears to have become increasingly relaxed. It should be noted that over active judicial intervention in this area might not increase fairness, as Michael Jones comments, “Liability for psychiatric illness should not depend upon the race between the plaintiff and the ambulance” [11]. However, the term ‘immediate aftermath' has been the cause of confusion and uncertainty. In Alcock the court held that the passing of 8 hours meant that the ‘immediate aftermath' criterion was not satisfied. Establishing such a precedent meant there was a limited time frame for which a person could claim, further restricting access to justice in this area. Indeed, in Lord Oliver's words: “the concept of ‘proximity' is an artificial one which depends more upon the court's perception… than upon any logical process of analogical deduction ”[12]. Such a statement is evidenced by the controversial case of Ceri Ann Walters v North Glamorgan Health Authority[13]
where a woman was allowed to successfully claim for nervous shock 36 hours after the death of her son. Although the Court of Appeal insisted that this case was not to be treated as a change in the law, it made clear that the requirement of proximity is not applied coherently. If the criterion was indeed of temporal proximity it would be clear cut – if the claimant witnesses the aftermath of the event outside a specified time frame then they are barred from claiming. Yet, the courts have not applied the rules in a uniform way, leading to a lack of certainty as to how the term ‘immediate aftermath' will be applied on any given day. Sudden shock to the claimant In an attempt to prevent a flood of litigation, the courts have imposed a further requirement that the claimant suffer a sudden shock. However, such a test fails to take into account that people react to shocking situations differently. Equally, it is rare for shock to arise as “a rabbit punch to the nervous system”[14] and the law has failed to keep pace with medical opinion in this area. Alcock went on to define nervous shock as “the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind” [15]. Yet, requiring proof of sudden shock may not always lead to just outcomes, considering people may have different perceptions of and reactions to like events. Indeed, in Sion v Hampstead Health Authority[16] a father who watched his son die over 14 days was denied compensation due to a lack of sudden shock, illustrating the extent of injustice caused by such a requirement. Witnessing the event with one's unaided senses Aside from sudden shock, a claimant has the burden of proving that they witnessed the event “through the medium of the eye or ear without direct contact” [17]. Satisfying such criteria may be troublesome for those who hear of the event in question from others and are not present at the scene. Indeed, it seems unfair that a mother, having gone into shock from hearing about her child's death could fail in her claim. Winfield and Jolowicz have stated that the legal principles surrounding psychiatric injury present “the law with the most profound problems and it has only kept it under control by drawing a series of arbitrary lines” [18]. However, the courts continue to enforce these arbitrary rules by putting forward a defence of public policy in favour of limiting potential claims. Public policy arguments against extending liability for psychiatric injury to secondary victims The unchanging and confusing state of the law governing psychiatric injury to secondary victims can be wholly attributed to the overuse of public policy arguments. In Anns v London Borough of Merton[19] Lord Wilberforce stated that it is “ necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed ”[20]. Indeed, such reasoning has become an essential element when determining whether liability should be imposed and the courts have increasingly used it to prevent claims being brought. Furthermore, in White, the court made it clear that justice must be seen to be done by the public. Lord Hoffman stated that the greatest consideration is whether the public “ would think it wrong that policemen… should have the right to compensation for psychiatric injury out of public funds while bereaved relatives are sent away with nothing ”[21]. Yet, the courts' overzealous attempt to satisfy public opinion means that potential injustices are overlooked in favour of policy. Indeed, despite judges like Lord Lowry expressing concerns about public policy considerations acting to defeat good claims [22], the floodgates argument remains as strong as ever, placing heavy restrictions on potential claims. Public policy arguments continue to shape the law governing psychiatric injury, causing uncertainty as to which claims can be successful. Conclusion The control mechanisms used by the courts in establishing psychiatric injury to secondary victims are overly exclusive and judicial discretion in applying them has created confusion and uncertainty. The present state of the law in this area can be attributed to the courts constant reliance on public policy arguments. The developments in this area of law have neither followed developments in the field of psychology nor modern consensus on allowing such claims. Equally, it can be said to have put the law into a position which is beyond saving through judicial intervention. As the Law Commission noted, “the common law has taken a wrong turn” [23] and it is this author's opinion that reform is necessary to restore fairness and justice to an area of law beset on all sides.[1] Law Commission Report No. 249, March 1998, para 4.2 [2] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, DC, American Psychiatric Association, 1994, at xxi [3] White and Others v Chief Constable of South Yorkshire and Others [1999] 2 AC 455, at 500 [4] [1970] 2 QB 40, 42 [5] [1992] 1 AC 310 [6] Ibid, at 397 [7] White (n. 3), at 511 [8] Ibid [9] Bourhill v Young [1943] AC 92 [10] [1981] QB 599 [11] M Jones, Liability for Psychiatric Illness – More Principle Less Subtlety [1995] WJCLI 4, at 9 [12] Alcock (n. 5), at 411 [13] [2003] PIQR 16 [14] S Allen, Post-Traumatic Stress Disorder: The Claims of Primary and Secondary Victims (2000) JPIL 108 [15] Alcock (n. 5), at 387 [16] [1994] 5 Med. L. R. 170 [17] Bourhill (n. 10), at 103 (Per McMillan LJ) [18] W Rogers, Winfield and Jolowicz on Tort (16th edn, Sweet & Maxwell 2002), at 189 [19] [1978] AC 728, at 752 [20] Ibid, at 510 [21] White (n. 3), at 510 [22] Spring v Guardian Assurance [1995] 2 AC 296, at 326 [23] Law Commission Report No. 249, March 1998, para 4.2
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The Evolution of the News, Newspapers and the Internet
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Kreis, Steven, 2000. The Printing Press, The History Guide website, https://www.historyguide.org/intellect/press.html, retrieved July 27, 2008. Widner, James F., 2008. Hindenburg Disaster, https://www.otr.com/hindenburg.shtml, retrieved July 28, 2008. Hughes, Lain, 2004. The New Georgia Encyclopedia, https://www.georgiaencyclopedia.org/nge/Article.jsp?id=h-2643, retrieved July 29, 2008. Whitworth, Damian. 2008. Oral History: The Monica Lewinsky Scandal Ten Years On. Times Online https://women.timesonline.co.uk/tol/life_and_style/women/relationships/article3185449.ece, retrieved July 28, 2008.Cite this page
The Evolution of The News, Newspapers and The Internet. (2017, Jun 26).
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Sexual Offences Act 2003
Critically evaluate the definition of consent for the purposes of sexual offences since the enactment of the Sexual Offences Act 2003, with particular regard to the presumptions in ss.75 and 76.
Date authored: 15 th August, 2014. Described by the Home Office Review, Setting the Boundaries, as a ‘patchwork quilt of provisions', the old law on sexual offences was a hodgepodge of archaic and discriminatory requirements. [1] Despite progressive changes by the court, the law on consent was in particularly confusing. The Sexual Offences Act 2003 (SOA) attempted to clarify the law in this regard and whilst setting out several, detailed provisions, as a guide to both jury and judge, there is still a lot to be desired. In a society trying desperately to rid itself of outmoded rape myths, too much discretion has been left to the jury in deciding one of the most central points of all sexual offence disputes: consent. Historically, consent was not defined by the law. The case of R v Olugboja was the only case to provide a real indication on the question of consent.[2] In this case it was found that the issue itself should be left to the jury, to be given its ordinary meaning, requiring the judge only to direct the jury as regards the difference between “real consent” and “mere submission”. Under the SOA, consent is now defined by s.74 as the ability to consent by choice, with the freedom and capacity to make that choice. Before progressing further, we can already identify clear issues with such a definition. The words “freedom” and “capacity” can prove difficult for a jury to understand and have been found by Temkin and Ashworth to be lacking. [3] Firstly, the word freedom is a loaded term and heavily context dependent; what about social boundaries such as economic or religious freedom? Take, for example, a woman who is financially dependent upon her perpetrator and believes that, without her consent to sexual intercourse, this allowance will be retracted, leaving her destitute. Can this truly be described as freedom even if there is no threat of actual removal? Secondly, capacity can cause problems for the jury, for example in the case of R v C, a twenty-eight year old woman with schizophrenia caused severe problems for the courts, resulting in a conviction at first instance, subsequently quashed by the Court of Appeal, and finding at the House of Lords that capacity had been insufficiently defined to the jury due to its ability to fluctuate.[4] Such terms are therefore open to jury interpretation, rendering the matter of consent still open to jury bias. To tackle such moments, ‘the Sexual Offences Review recommended that there should be... a non-exhaustive list of circumstances where consent was not present, an approach adopted by some Australian States.' The intent was to serve as a ‘clear indication to the courts and to society at large about circumstances where sexual activity was unacceptable.' [5] Such an approach has been replicated to an extent by the exhaustive list found in s.76. However, feeling that this was too tougher line, the more comprehensive list of situations is found in s.75: the rebuttable presumptions. We shall begin with the exhaustive list of conclusive presumptions, found in s.76 (2). In a scenario wherein a defendant ‘intentionally deceived the complainant as to the nature or the purpose of the relevant act; or the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant,' a lack of consent will be presumed and the mens rea of the act, that the defendant did not believe the complainant consented to the act, will be, by indication, fulfilled. One of the clearest examples of deception as to the nature of the act is found in R v Williams: here, a singing teacher told a sixteen year old girl that he was aiding her with “breathing exercises,” when he did in fact rape her.[6]R v Jheeta is also a key case in this regard due to its discussion as to what deceptions may or may not count. [7] There is a suggestion made by Judge LJ that the jury will interpret this provision narrowly, so that the deception refers only to an act very different to the one they are engaging. [8] For example, in Jheeta itself, the defendant was found guilty only under the general definition of s.74 lack of consent, as opposed to under s.76. This was due to the fact that the claimant new they were engaging in sexual intercourse, despite her belief that, in doing so, she was following police orders to avoid the defendant's suicide.[9] The presumption in regard impersonation also has limitations. The impersonation itself cannot be anyone, otherwise many Lothario roles we see on our TV's, pretending to be film stars, to seduce a woman, would be guilty of an offence. ‘The person must be personally known to the complainant and the complainant must intentionally have been induced to consent by the impersonation.' [10] This is a restrictive list and there is no way to rebut such a presumption. This creates issues of compatibility in regard the European Convention on Human Rights (ECHR) Article 6(2), the presumption of innocence, and may well explain Parliament's reticence to extend the list further. The right to the presumption of innocence can be lost if it serves a legitimate aim, is justifiable, and is a proportionate response to that aim. As Card notes, it would be almost unthinkable for a jury to find a defendant innocent in one of the above scenarios and therefore the loss of Article 6(2) may be justified. [11] Yet realistically, what non-biased jury would find a defendant innocent in scenarios where an individual was unable to communicate consent due to disability, or the defendant had caused the administration of a substance, rendering consent void? Parliament has, arguably, been far too cautious in their determination to leave so many circumstances, rebuttable. The evidential presumption requires proof to be adduced either to raise the issue with the claimant's valid consent, or to display a reasonable belief in consent on the part of the defendant. This is a particularly difficult area and has often been privy to jury bias, caused by knowledge of previous sexual involvement and horrendous issues surrounding voluntary intoxication, and individual sexual preference. The list includes violence, threat of violence, unlawful detention, unconsciousness, physical disability and causing the claimant to administer a substance which renders their consent invalid.[12] Herring notes that such rebuttable presumptions could well prove difficult to explain to a jury: for example, if the defendant argues that the threat, or use, of violence came before the couple had made up, leading to a valid consent to intercourse. Would this be enough to rebut the presumption? If so, then this would be very easy to rebut, leaving the door open for repeated offences by abusive partners, so long as they secured a “yes”, however unwilling, before the act occurred: ‘court guidance on the meaning of, ‘sufficient evidence is adduced to raise,' is eagerly awaited'. [13] Perhaps the most problematic aspect of this section is proving when acts have been voluntarily undertaken. Parliament have left all of these issues open to rebuttal to cover such moments as voluntary intoxication, along with voluntary sadomasochism or detention. There are countless scenarios where an individual could be seen by the partner to be engaging in consensual sexual intercourse. Yet here we find a problem: what counts as a reasonable belief in consent? Just because an individual has frequently consented to harm for sexual gratification before, does not necessarily mean they do now; just because someone has voluntarily become intoxicated, does not mean their drunken demeanour implies consent. Voluntary intoxication is a huge issue, as it falls between the areas of capacity to decide, unconsciousness and the inducement of substances. In 2005, Amnesty International found that two thirds of all people asked believed that an individual who has been drinking is partly to blame for what has happened to them, including jury members, police officers and prosecutors. [14] Such belief's led to the appalling conclusion in R v Dougal that ‘drunken consent is still consent', failing to discuss capacity at all. [15] R v Bree readdressed this balance, concluding that drunken consent was still consent, as she had decided to argue that she had capacity, despite her intoxication. [16] A string of monstrous cases have followed this decision, wherein just because the individual could not remember whether they said yes or no, their argument was negated. Such a mindset does nothing more than promulgate rape myths within a jury and fails to take into consideration that many people lose their capacity after the intake of alcohol, although it must be stated here that there are few other ways to deal with such a problematic issue. Rape and other sexual offences bare one of the highest attrition rates of all crimes and this is unsurprising considering the wealth of hurdles a victim must overcome to gain a conviction. From dependence on, to fear of, the perpetrator; to the dread of knowing you will have to recount the experience at trial: the last thing a victim needs is the knowledge that their own refusal may be found wanting. In conclusion it must be found that Parliament has not gone far enough in directing the jury as regards consent. By not taking a firmer hand and creating a more comprehensive list, Parliament has left the door open to the real possibility of jury bias. In addition, whilst a non-exhaustive list, Card finds there is a whole host of other frequently occurring scenarios, from, ‘threat of dismissal or economic harm, threats of non-immediate violence, abuse of a relationship of power and self-induced mistake as to the nature or purpose of the act,' which are not addressed in the SOA. [17] In such instances the burden will be on the prosecution, from the start, to prove the absence of consent and of a reasonable belief in consent. In such a “he said, she said” scenario, it seems unthinkable that the jury should be given no more direction than an incomplete list of possible indicators, which may frequently bare no guidance to the matter at hand. Parliament have been too cautious, leaving the UK in a position where almost every form of consent may be rebutted and placing the issue itself predominantly in the hands of a jury which, corrupted by centuries of rape misnomers, may well be blind to the truth.[1] Sexual Offences Review Paper, ‘Setting the Boundaries: Reforming the Law on Sexual Offences', (The Home Office, 2000) . [2] [1982] QB 320 CA. [3] J Temkin and A Ashworth, ‘The Sexual Offences Act 2003: (1) Rape, sexual assaults and the problems of consent',[2004] CLR 328, 336. [4] [2009] UHKL 42. [5] (n 5) Card 41. [6] [1923] 1 KB 340 [7] J Herring, Criminal Law: Text, Cases and Materials (4th edn, Oxford University Press 2010) 426. [8] R v Jheeta [2007] EWCA Crim 1699, [23]-[27]. [9] (n 8). [10] (n 5) Card 46. [11] ibid. [12] Sexual Offences Act 2003 S.75(2)(a-f). [13] (n 8) Herring 429. [14] ‘Rape: is a woman's behaviour to blame?' (BBC News, 21 November 2005) < https://news.bbc.co.uk/1/hi/programmes/breakfast/4455622.stm> accessed 12 August 2014. [15] [2005] Swansea Crown Court 435. [16] [2007] EWCA Crim 804. [17] (n 5) Card 47. Bibliography Card R, Sexual Offences: The New Law (rev edn, Jordans 2004). Herring, Criminal Law: Text, Cases and Materials (4th edn, Oxford University Press 2010). Temkin J and Ashworth A, ‘The Sexual Offences Act 2003: (1) Rape, sexual assaults and the problems of consent',[2004] CLR 328. Sexual Offences Review Paper, ‘Setting the Boundaries: Reforming the Law on Sexual Offences', (The Home Office, 2000) ‘Rape: is a woman's behaviour to blame?' (BBC News, 21 November 2005) < https://news.bbc.co.uk/1/hi/programmes/breakfast/4455622.stm> accessed 12 August 2014 R v Bree [2007] EWCA Crim 804 R v C [2009] UHKL 42 R v Dougal [2005] Swansea Crown Court 435 R v Jheeta [2007] EWCA Crim 1699 R v Olugboja [1982] QB 320 CA R v Williams [1923] 1 KB 340
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Domestic Violence is very Real and Common in the UK
Domestic violence is very real and common in the UK, and indeed internationally
In the UK domestic violence accounts for a quarter of all crime, despite these figures it is recorded that only 5 per cent of recorded cases of domestic violence end in conviction, less than 20 per cent of rapes and sexual assaults are reported to the police, and less than 6 per cent of rapes result in conviction. Wells points out as a comparison, the number of women that are in prison, and the seemingly trivial reasons for there incarceration. There are now over 4,500 women in prison, an increase of 194 per cent in the last ten years. Most women are convicted of non-violent offences, such as shoplifting.
One woman out of 12 judges in the House of Lords, 5 women out of 43 police Chief Constables, 18 women out of 42 Chief Officers of Probation, 7 women out of 42 Chief Crown Prosecutors, 31 women out of 138 Prison Governors. There was evidence of sexual harassment and discrimination experienced by women working in the system. Domestic violence is not discriminatory and occurs between people of all social classes, amongst all racial and religious groupings and in all age groups. Crime and other statistics can only provide us with a taster of the real picture. The nature and extent of the suffering which is endured by families behind closed doors is very much something that is kept private. Victims of domestic assaults often do not complain of violence, either through fear of being further assaulted, or because they are too embarrassed and ashamed to reveal their plight to professionals who might be able to assist them. Although the traditional perspective is that victims of domestic violence are predominately women, this is not always the case, men, children and the elderly are vulnerable to domestic violence too.
This said there is an abundance of evidence to show that it is women and children who are the main victims. Children who themselves suffer violence at the hands of a parent are in the main protected by the state though child protection procedures.
The remedies provided by the civil law are therefore generally used to obtain protection for an adult victim. As Subedi points out There are several causes of violence against women. These range from historical unequal power relations between men and women to cultural perceptions, women’s sexuality, inaction on the part of the agents of the State to the traditional perception in law and practice that matters within the family and between a husband and wife are basically private matters in which outside or State involvement should be kept to a minimum. Unlike other forms of crime, the problem with domestic violence has been that even the law itself is not well- developed and the law that is there on this issue has not been enforced as vigorously as possible. It is from this premise that efforts have been made in the recent past both at national and international level to strengthen the law on traditional patterns of violence and to expand the scope of the law to cover new forms of violence. While the problem often encountered in this process at national level is the doctrine of privacy and the concept of the sanctity of the family, the dichotomy of the public/private sphere is the problem at international level. In the UK, domestic assaults are criminal offences and a man who attacks his wife can be prosecuted for his actions. He may be charged with one or more of various offences against the person included the offence of rape.
The Protection From Harassment Act 1997 introduced strong measures to assist those who are victims of a course of conduct, which amounts to harassment and made such conduct a crime. However, victims of domestic violence and harassment may be reluctant to become involved in the prosecution process for a number of reasons. These include the realisation by the victim that the matter is no longer under her control once she has reported an attack to the police. It will be up to the police to decide whether and how they wish to investigate her complaint, and it will be the decision of the Crown Prosecution Service whether or not to go ahead and press charges. This loss of control acts as a disincentive to women to report incidents of violence, as they may well fear the consequences of their action if the police and Crown Prosecution Service fail, as they see it, to respond in an appropriate fashion. In the past the police have been unwilling to intervene in cases of domestic violence, and to prosecute offenders. This perception of the police as unwilling to come to the assistance of victims of domestic assaults is still evident today, even though domestic violence is taken much more seriously by the police than in the past, and even though police practices in many areas have changed radically in favour of the victim. Figures from British Crime Surveys suggest that domestic violence forms the largest single category of violent crime. In a survey carried out by Davis and Gretny revealed that of a total of 448 assaults, all of which were referred to the CPS, there were 243 (54 per cent) non-domestics and 205 (46 per cent) “domestics”. If the British Crime Survey finding that domestic violence comprises 20 per cent of all assaults can be believed, and if the Bristol police files that they surveyed can be taken to be representative of the current position, it would appear that domestic assault is significantly more likely to be prosecuted than is assault in other contexts. This is remarkable given the widely accepted picture of domestic violence as a crime both under-reported and under-recorded. In such situations a victim of domestic violence, may apply for an injunction under the Davis G & Cretney A, (1996) Prosecuting Domestic Assault, Criminal Law Review Mar 162 – 174 or a non- molestation order under s42 of the Family Law Act 1996. The statutes have somewhat differing aims although both statutes do aim to prevent harassment and can be compared and this will be discussed.
Only ‘associated persons’ can apply under the FLA 1996; anybody can apply under the PHA 1997. There are wider remedies available under the FLA 1996, including the power to make ‘occupation orders’. Damages can be awarded only under the PHA 1997. This is an important point. Domestic violence/harassment knows no social boundaries and therefore an award of damages can be a salutory lesson. It can also be an important remedy for those who are scared to report, for fear of financial hardship. Such damages can, of course, if not promptly paid, be enforced in all the usual ways including execution, attachment of earnings or a charging order on land – if necessary followed by an order for sale. Presently, a power of arrest can be attached to FLA 1996 orders but not to PHA 1997 orders. However, although the power of arrest is retained for occupation orders it is to be abolished for non-molestation orders. A warrant of arrest can be issued under either statute.
Breach of an injunction under s 3 of the PHA 1997 is an offence breach of a non-molestation order is made an offence by s 42A of the FLA 1996.(7) District judges have full jurisdiction under both statutes to make orders, issue warrants and deal with contempt of court proceedings for breach of orders. Applications under the FLA 1996 are family proceedings governed by the Family Proceedings Rules 1991 and must be issued in a family proceedings court, a divorce county court, family hearing centre, care centre or in the Principal Registry or Lambeth Shoreditch or Woolwich County Courts.Applications under the PHA 1997 are civil proceedings governed by CPR 1998 Part 65 and can be issued in the High Court (Queen’s Bench Division) or in the county court for the district in which either the claimant or the defendant resides or carries on business. Exceptionally, concurrent proceedings under both statutes are appropriate. They should be consolidated and tried together. A person arrested and brought before the court pursuant to the FLA 1996 can be remanded in custody or on bail. There is no power to remand a person arrested and brought before the court pursuant to the PHA 1997. Punishment for contempt of court under either statute is subject to the maximum of 2 years’ imprisonment provided by the Contempt of Court Act 1981. The sentence must be proportionate to the seriousness of the contempt. Conviction for breach of an injunction under s 3 of the PHA 1997 or for breach of a non-molestation order under s 42A of the FLA 1996 both carry a maximum sentence of 6 months and/or a fine not exceeding the statutory maximum on summary conviction, and a maximum sentence of 5 years and/or fine on conviction on indictment.
Both statutes provide that a person cannot be both punished for contempt of court and prosecuted in respect of the same incident. The PHA 1997 also creates offences (ss 2 and 4) not dependant on a civil injunction; the FLA 1996 does not. By s 1 of the PHA 1997, a person must not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of another. By s 7(3) a ‘course of conduct’ must involve conduct on at least two occasions and by s 7(4) ‘conduct’ includes speech.
Section 7(3A) was inserted by the Criminal Justice and Police Act 2001 and provides: ‘A person’s conduct on any occasion shall be taken, if aided, abetted, counselled or procured by another: (a) to be conduct on that occasion of the other (as well as conduct of the person whose conduct it is); and (b) to be conduct in relation to which the other’s knowledge and purpose, and what he ought to have known, are the same as they were in relation to what was contemplated or reasonably foreseeable at the time of the aiding, abetting, counselling or procuring.’ The phrase ‘course of conduct’ has caused difficulty. In R v Hills held that assaults in April and October 1999 were not a ‘course of conduct’, particularly since the parties had been reconciled in the interim. In Lau v Director of Public Prosecutions quashed a conviction on the grounds that two incidents 4 months apart were not a ‘course of conduct’. The fewer the number of incidents and the wider the time lapse between them, the less likely that they give rise to a ‘course of conduct’. On appropriate facts, a charge of assault should be preferred. Indeed, many cases justify both a charge of assault and of harassment. The definition of harassment (and assault) is the same in civil and criminal proceedings, and thus arguments on whether or not there was a course of conduct can arise in both civil and criminal courts. In civil cases, where they may be doubt on whether there is a course of conduct then, as in crime, where appropriate, assault can also be alleged. In June 2003 the Home Office published a consultation paper setting out proposals to tackle domestic violence. The paper indicated the Government’s strategy was based on three elements: to prevent domestic violence occurring or recurring; to increase support for victims; and to ensure improved legal protection and justice for domestic violence victims. This led to the enactment of the Domestic Violence, Crime and Victims Act 2004 which came into force in March 2005. DVCVA 2004 closely links the civil and criminal processes through new police powers, and through a new criminal offence of breach of a non-molestation order. It also creates a new offence of causing or permitting the death of a child or vulnerable person. It also requires the adoption of a code of practice and a victims’ fund, to be financed by surcharges on fines and some fixed penalties. It creates the power for the Criminal Injuries Compensation Authority to recover money from offenders, and makes a variety of other changes to criminal procedure, powers and sentencing. Non-molestation or occupation orders are key tools in providing protection for those who fall within the category of “associated persons”. Prior to the enactment of the DVCVA 2004 eligibility extended to those living together as man and wife (“cohabitants”), or former cohabitants, and those who live or have lived in the same household (except if they are employees, tenants or boarders, or a lodger). DVCVA 2004 extends the category of “associated person” to include cohabitants in a same-sex relationship living in an equivalent relationship to that of husband and wife. The power to attach a power of arrest to a non-molestation order is removed by this act.
Instead, common assault becomes an arrestable offence under the Police and Criminal Evidence Act 1984 and breach of a non-molestation order becomes a criminal (arrestable) offence. If, for whatever reason, no prosecution is mounted, perhaps because of the wishes of the victim, that does not prevent an application to the civil court to commit for breach of the order. Nothing prevents the commencement of civil proceedings while criminal proceedings are pending, following arrest, though arguably a family court should await the determination of the criminal process. A new criminal offence is created under s42A will be punishable on conviction on indictment by a term of imprisonment not exceeding five years, or a fine, or both, and on summary conviction by a term of imprisonment not exceeding 12 months, or a fine not exceeding the statutory minimum, or both. The prosecution will need to prove the existence and terms of the order; the fact that the defendant was aware of the order; conduct that amounts to breach of that order, provided the breach is relevant only to sentence and not to guilt or innocence; and the lack of reasonable excuse. Minor changes are made to occupation orders under the DVCVA 2004 these require a court, in proceedings for an occupation order, to consider whether or not to make a non-molestation order. Other changes include changes to reflect cohabitation as opposed to marriage. Nothing in the new Act removes the right of the court to attach a power of arrest to an occupation order.
This may cause some difficulties where a court makes both a non-molestation order and an occupation order, particularly if a court has attached a radius clause, for example not to come within a specified distance of the applicant’s home. Restraining orders under PHA 1997 form an integral part of the machinery for the protection of victims of domestic violence. DVCVA 2004, s 12, will extend the court’s power to make a restraining order under s 5 of PHA 1997.Under s 5, when a court is sentencing or otherwise dealing with a person who is convicted of an offence under s 2 or s 4 of that Act, then as well as sentencing him or dealing with him in any other way, it may make a restraining order. The restraining order is particularly useful, as it provides for the continued safety of the victim but can only be made in cases where a conviction had been obtained for a s 2 or s 4 offence. As Wells points out: A vignette of current concerns suggests that much has changed in the last few decades. There is a ministerial group on domestic violence headed by Home Office minister, Baroness Scotland. The Solicitor General, a woman, has made tackling domestic violence a policy priority. She has talked to the President of Family Division, a woman.
The Law Commission has recommended the abolition of the partial defence of provocation for reasons largely to do with its differential impact on male and female partner killers. The psychological trauma associated with rape and other forms of sexual harassment has been acknowledged, much attention has been given to improving police practices, and the offences themselves have been reconfigured around the concept of trust. It is difficult to believe that these changes would have come about without the influence of feminism in general and feminist legal commentators in particular. These changes also fit into a much wider pattern in which victims have moved very much centre stage along with the associated restorative justice movement. Internationally moves are being made to improve the situation for women. There have been international efforts to strengthen women’s rights. This perception has contributed to the reluctance on the part of many countries to adopt either a protocol to CEDAW providing for individual petition or a protocol on violence against women with similar remedies for women.
Moreover, the perception of States towards certain types of violence seems to be different in developed Western countries from that of certain developing countries. While widespread dissemination of pornographic material and use of women as sex objects by the media has been viewed as violence against women by women in certain developing countries, the same does not necessarily hold true in certain Western countries such as the Netherlands and the United States, which opposed the inclusion of this type of violence in the definition of violence in the draft UN declaration on violence against women.
This type of activity cannot be violence for those women who voluntarily allow themselves to be used as sex objects by the media. But it may be seen as a psychological violence against women in general by those who disapprove of such treatment of women by the media. The protest campaigns organised recently by grass-root women’s groups in India against the world beauty competition in Bangalore is an example of such differences of opinion. So is British law sufficient? Does it protect women adequately? There is generally are much greater awareness of domestic violence, and the criminality and culpability has increased some what over the last decade. Awareness has been heightened, although it can be argued that the piece meal legislation is unacceptable and there needs to be some joined up thinking insofar as this area of law is concerned.
Whilst the new legislation is a move in that direction, it is a wasted opportunity as it is certainly desirable that the law on domestic violence should be consolidated.
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Domestic Violence is Very Real And Common in The UK. (2017, Jun 26).
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