A-Level Law

Unit 1 The Nature of Law and the English Legal System

1.1 Nature of Law

Learning Outcomes
- Basic understanding of the distinction between enforceable legal rules and principles and
other rules and norms of behaviour.
- Basic understanding of the differences between criminal and civil law and between
different sources of law including custom, statute law and the common law.

Definition of Law
Law can be defined as “a set of special rules governing behaviour”.

Rules can be created between individuals; for example, co-owners deciding who is to do the
housework. However, legal rules are devised by the State and are developed to achieve equality,
fairness and justice.

Why have law?

- Some rules may be conceived as morally wrong e.g., do not be impatient.

- The law creates a system whereby certain rules are deemed to be illegal and can be
enforced by the courts. These are known as legally and morally wrong rules e.g., murder,
fraud, theft, etc.
- Some rules are legally wrong but may not be interpreted as morally wrong by all individuals
e.g., parking rules.

What are the aims of law?

- To protect individuals from evil and criminal elements in society.

- To bring offenders to trial and punish them.
- To provide a system whereby private citizens may settle disputes and grievances between
themselves.
- To ensure an orderly and peaceful society so that everyone can conduct their everyday lives
without unlawful interference.
- To develop a society which cares for the needs of its citizens in the terms of health, welfare,
housing, education, etc.
- To provide a structure in which desired business objectives can be developed and practised.

To be effective the law must be enforceable, otherwise there would be no point in having
the system. Parliament provides various bodies with roles in carrying out the law, for
example the Crown Prosecution Service, Trading Standards and the NSPCC. Some of the
bodies have the power to prosecute wrongdoers.
 Law is classified in several ways:
- Public Law and Private Law
- Criminal Law and Civil Law
- Common Law and Statute Law
- Common Law and Equity

Public Law
Concerned with the legal relationship between the individual and the state.
Criminal Law Constitutional Law Administrative Law
Obvious example of public Mechanics of government, Law relating to welfare
law. The commission of a including laws regulating benefits systems; agents
crime affects not only the Parliament, civil services, that, administer them.
victim, but also the courts.
community.

Private Law
Concerned with the legal relationship that individuals have with each other
Contract Tort Land Law Succession Family
Body of law Civil wrongs as Lays down the Deals with the Relatively new
developed from opposed to rights, duties, destiny of land area of law
the middle ages criminal obligations and and other concerns itself
concerns wrongs, i.e., responsibilities property on with matters
millions of they are in connection death of a such as: the
agreements actionable by with buying, person. Sets out requirement of
made between the individual selling and various Acts and a valid
individuals and rather than owning of land. cases and marriage;
companies state e.g., covers the divorce, nullity
which are trespass to land, situation where and separation;
intended to be trespass to deceased did children.
legally binding. person, etc. not make a will.

Classification of Law

Statutory Law Common Law Equity

A Statute, or Act of The law established, by Literally ‘fairness’. In
Parliament, is a specific piece precedent, from judicial medieval times, people could
of law (legislation) introduced decisions and established petition the King for redress
into the body of law by within a community. in cases that could not be
Parliament, often under the dealt with adequately in the
guidance of the Government. common law as it then stood.
UK statutes tend to be broad The process was called
in scope, so typically less than ‘equity’.
a hundred are passed each
year. However, statutes
aren’t the only form of
primary legislation in the UK:
some European Union
legislation has to be regarded
 as primary as well.

If you have not been to the magistrates’ or crown court before, follows these links to see the
inside of a magistrates’ court: http://osclinks.com/4294 or the inside of a crown court:
http://osclinks.com/4295 .

Additionally, you could plan a court visit to bring to life both the court system and an area of
substantive law.

Within both common law and statute there is an important distinction between criminal law and
civil law.

Definition of Criminal Law:

“a system of law concerned with the punishment of offenders”.

Definition of Civil Law:

“the part of a country’s set of laws which is concerned with the private affairs of citizens, for
example marriage and property ownership, rather than with crime”.

Differences:

CRIMINAL CIVIL
AIM Punish wrongdoers Regulate relationship
TYPE OF LAW Public Private
PROCEEDINGS Prosecution Claimant/Plaintiff
COMMENCED BY
PERSON BRINGING CPS (on behalf of Crown) Private individual
CASE
CASE BROUGHT Defendant Respondent
AGAINST
BURDEN OF PROOF Beyond reasonable doubt Balance of probabilities
PERSON BEARING Crown or Appellant Claimant or appellant
BURDEN
OUTCOME Conviction or acquittal Liable
REMEDY Punishment Remedy: damages, specific
performance, injunction
COURTS Magistrates’/Crown County/High
1.1.1 Law and Society
Learning outcomes
- The role law plays in society
- The effect of law on enforceable rights and the balance required between competing
interests (e.g., public and private).
- The meaning and importance of fault in civil and/or criminal law.

Imagine that you are walking home, and you come across a little green alien from
Mars. You strike up a conversation. When the Martian learns that you are studying
law, they look puzzled. t turns out that the concept of law does not exist on Mars.
How would you explain this to them?

In order for society to be peaceful and problem free there must be rules and laws
for people to abide by. The aim is to create a society where justice, fairness and
equality is provided where the courts and governments will apply the same law to
anyone within their jurisdiction. Protection is afforded to victims and those who
have broken the law are punished and have to face the consequences.

When we look at fault-based liability we are looking for blame or responsibility

where something has gone wrong. This is integral to the English Legal system and
this is evidence in crimes where mens rea, the state of mind of the accused, has to
be proven and in civil cases where intention is also an element in various torts
against a defendant. These are often based on blameworthy activity and there is a
close connection between the degree of moral blameworthiness that the
defendant is believed to have possessed and the punishment/remedy.

The exception to this is strict liability which can be found in both criminal and civil
law and this is where no intention is required, and the act alone is sufficient to be
guilty/liable. A good example of this is negligence. In order to be liable, there is a
duty of care, a breach of that duty and injury caused to the claimant. An example
in criminal law is the controversial use of fault in State of Affairs crimes, where the
defendant may have involuntarily committed an offence, yet is still guilty, For
example, in Winzar v Chief Constable of Kent a drunken man was taken from a
hospital onto a road outside by the police, and then arrested for being drunk on
the highway, even though he would never have made it onto the highway without
the "help" of the police.

1.1.2 Law and Morality

Learning outcomes
- The distinction between law and morality and the diversity of moral views in a
pluralist society.
- The relationship between law and morality and its importance.
- The legal enforcement of moral values.

The Oxford dictionary defines Law as: "The system of rules which a. particular
country or community recognizes as regulating the actions of its members and
which it may enforce by the imposition of penalties.

Morality can be defined as "The principles concerning the distinction between

right and wrong or good and bad behaviour” (Oxford Dictionary, 2018).

Mary Warnock (academic) stated that our perspective as to what is right or wrong
will change throughout our lifetime and what we thought was morally right or
wrong today may be different in years to come. This goes alongside changes to
society, our tastes, etc.

Durkheim (French sociologist) noted that just as we have a modern, developed

society which has a wide range of ethnic backgrounds, statuses, etc. there are
many different moral values shared and therefore it would be impossible to have
one set shared by all.

The concept of English Law is primarily based on statutes and the moral values of
the church and this had a large impact on common law. Our morals may arise from
social and religious influence. For example, the 10 commandments can be found in
various laws. E.g., thou shalt not steal is a crime of theft and thou shalt not kill is
covered in our homicide laws. They are also found in civil laws, for example,
adultery is a fact for providing divorce.

As we are now a multi-cultural society, religions other than Christianity are

affected. For example, English law states that we can only marry one person, or
we commit bigamy, which coincides with Christianity, however, goes against other
religions now found within England.
There are also instances where law conflicts with morality in many ways and is not
always flexible; for example, there are various challenges between the Church and
Parliament and a recent example would be the Marriage (Same Sex Couples) Act
2013.

Some laws may not be morally wrong and but are made to avoid havoc.
Furthermore, laws and morals can conflict with different views. Some day-to-day
examples of what could be deemed moral only, legal only or where they overlap
and where conflict can arise, include speeding, telling lies, parking on yellow
lines, abortion, euthanasia, etc.

Our law is constantly evolving and needs to adapt in line with changes in society.
Examples of how morals have influenced changes in legislation include the Smoking
Ban, the Abortion Act, the Civil Partnership Act and the Equality Act 2010. We have a role
in this through lobbying MPs and voting.

Learning activity 1
Watch the following lecture on the Hart/Devlin debate: http://osclinks.com/4296
Should law reflect morality? Devin believed, yes; Hart believed, No. Why?

Learning activity 2
Classify the following rules: are they rules of law, rules of morality, mixed rules.
Some other form of rule, or, indeed, are they rules at all?
- Men should not wear hats in church
- Fishermen should always dry their nets within 50 metres of the beach
- The Highway Code
- The Code of Practice under the Mental Health Act 1983
- Thou shalt not commit adultery
- The rules of chess
- People in glass houses shouldn't throw stones
- All human beings deserve care and respect, even before birth
- Everyone has a right to work
- You must not tell lies
- You must not work on a Sunday
- You must not smoke cigarettes on college premises
- The price of a box of chocolates is £3.50
- Children should be seen and not heard
- Christmas Day falls on 25 December
- A Bill, that has duly passed through Parliament, must be signed by the monarch
 before it can become law
- Corporal punishment should not be administered in schools

1.1.3. Law and Justice

Learning outcomes
- The meaning of justice and theories of justice.
- The extent to which the law (civil and/or criminal) achieves justice.

Justice is defined in the dictionary as "just behaviour or treatment" or "a judge or

magistrate, in particular a judge of the Supreme Court of a country or state.
However, there are various meanings of the word 'justice' and there have been
many competing theories, some of which are outlined below:

Distributive Justice This concerns the distribution of goods and

outcomes which should be equal,
proportionate and fair.
Utilitarianism Whether an action is morally right or wrong
depends upon the effect of the action and
whether it produces a good or bad result.
Harm Principle John Stuart Mill, a British Philosopher,
stated that the only actions that can be
prevented are ones that create harm.
Liberal-Natural Rights theories Founded by Philosopher John Locke, who
argued that each man has a natural right to
life, liberty and property which should not
be violated by governments.
Libertarian-market theories Interference in the market distribution of
benefits and burdens would be unjust if it
restricted or intervened with a person's
individual freedom.
Marx, Perelman, Nozick, Hart and Hart linked the idea of justice with morality
Compensation and stated that these should be treated alike.
Rawls and the original position John Rawls, an American Jurist, analysed
that a rational person would pay for items if
they wanted them badly enough in his "A
theory of Justice" (1971).
Nozick and Historical entitlement Robert Nozick state in "Anarchy State and
Utopia" (1974) that justice is based on rights
which include the right to retain our
property.
Watch lecture 1: http://osclinks.com/4297 and lecture 2: http://osclinks.com/4298 from
Michael Sandel to help you understand the theories of justice and morality.

Justice can also be formal or substantive. Formal justice concerns itself with the procedures.
Procedure law is regulated by statutory law and deals with the ways and which substantive
law can be enforced. There are no independent powers. The idea is that the processes should
be fair. Substantive Law, on the other hand, does have independent powers to decide the fate
of a case and this deals with the areas of law which establish the rights of the individuals.
This is regulated by an Act or Parliament or Government implementation. Rather than
focusing on the procedures, this focuses on the treatment and behaviours.

Does our system uphold justice?

Justice, as defined by the Oxford Dictionary of Law, is ‘a moral ideal that the law
seeks to uphold in the protection of rights and the punishment of wrongs’.

As stated above, there are various theorists who provide concepts on the
relationship between law and justice. In addition, justice can also be categorised
as follows:

• Formal Justice - equal application of procedural format of rules

• Substantive Justice - actual just nature of the rules
• Natural Justice - a duty to act fairly.

It is natural justice which is usually at the heart of our system.

Judicial review plays a large part of ensuring that a system of justice is

maintained. The powers of the state are examined by an independent judiciary
who examine the powers of the state or organisation of the state and how they use
them.

Justice can only be measured by also looking at whether or not it is accessible to

all. Public funding was introduced by the Legal Aid Act 1949 which assisted those
who qualified under the means testing, however those in the middle income'
status were too rich to qualify for legal aid but too poor to afford to pay their own
legal costs.

The Access to Justice Act 1999 exhausted legal aid further by introducing a limit
on the amount that could be spent on legal aid every yea., and when this runs out
no aid is available. Therefore, the problems created from 1949 still exist and there
are also now further restrictions as to the type of work that can be covered under
a certificate. For example, personal injury claims are now excluded.
In addition to access and funding, the procedures themselves should be analysed.
Before the introduction of the Civil Procedure Rules 1999, the civil system was
seen as unfair and Lord Woolf reported in 1996 that a number of aims should be
put in place to which the civil justice system should aspire. These were to
efficiently, justly and fairly deal with cases and litigants. The Civil Procedure Rules
introduced these aims by way of the overriding objective and gave rules on pre-
action protocols that save time and money via negotiation and also made judges
pro-actively manage cases. Set timescales were introduced by way of 3 tracks,
whereby cases are allocated according to value and complexity.

The criminal justice system has also been scrutinised following cases such as the
Guildford Four, the Maguires and the Birmingham Six where police compromised
principles and therefore the reliability of the evidence in order to secure
convictions for various murders.

1.2 The Rule of Law

Learning outcomes

Basic understanding of the constitutional doctrine of the rule of law and its application to
law making, the legal system and substantive law:

- no person shall be sanctioned except in accordance with the law

- equality before the law
- fairness and clarity

In order to understand the doctrine or the rule of law and how this is applied to law making,
we must first compare the differences between legal and social norms as these influence the
behaviours and laws in society.

The phrase the Rule of Law' refers to a political situation father than legal rule. There are
various elements to this. First, those with authority to uphold the law such as politicians and
the judiciary, should govern the same within their powers. Secondly, the law applies equally
to all. Finally, the law.is certain.

No-one is above the law and therefore it applies to everyone including politicians. There have
been concerns as to whether this is upheld in all circumstances. For example, the powers of
the prime minister and other ministers are based on the royal Prerogative which is not subject
to judicial Oversight. Furthermore, given that Parliament makes laws, and can therefore
amend or remove existing laws by creating a new Act of Parliament, it can be seen as being
'above the law'. As head of the Legal System, the Queen is not properly subject to the law.

Everyone should have the same access to the legal system regardless of their religion, wealth
or social status, However, for many, the cost of obtaining legal services or advice is too high
and even though public funding is available, various tests have to be satisfied in order to be
eligible.

In order to be effective, the law should always be applied, However, not all crimes are
reported and even when they are, there are not always enough resources to take the matter
further. When the law is applied it should be fair and equal, however elaborated media
reports can lead to rash judgments or punishment by the public even if acquitted in court.

It is important that the courts are not influenced by other branches of government and that
they work independently from them. This is to ensure the rule of law Judicial independence is
important to the idea of separation of powers. The principal institutions are usually taken to
be the Executive, These are the Crown and the government, and this includes the Prime
Minister and cabinet ministers: the Legislature, which is the Crown, the House of Commons
and the House of Lords and the Judiciary, comprising the judges of the courts of law, those
holding judicial office in tribunals and lay magistrates.

The Prime Minister is the head of the executive and the legislature, These are therefore,
linked and, in particular, this is seen in delegated legislation referred to in 1.3.2 below.

The separation of powers also applies to the separation between legislature and judiciary.
Judges are not permitted to stand for election to Parliament. When interpreting legislation
(see 1.3.3 below) judges apply certain rules; however ultimately, they must consider what
Parliament intended when they created the Act and are not permitted to challenge the Act.

Although new Justices are called Lord or Lady, they are not influenced by politics and cannot
sit in the House of Lords and do not have a peerage which maintains the separation of
powers. This also prevents them from being involved in the creation of legislation and
allowed them to interpret and rule on legal disputes in an impartial way. The Constitutional
Reform Act 2005 modified the role of the Lord Chancellor and in doing so strengthened the
independence of the judiciary.

The three branches of government keep each other in check, ensuring there is never an over-
concentration of power. The risk of power being abused is reduced as a result of this.

Learning activity 3
Watch Lord Bingham's speech on 'the Rule of Law' http://osclinks.com/4299

1.3 Law Making

History of the Common Law

'Equity' is an integral part of the English legal system and accounts for the need for decisions
to be made fairly. Prior to 1066 and the Norman conquest there was little commonality in law
across England; the declaration by William the Conqueror that he would be ruler of the entire
country resulted in the development of a system of rule from which the principles of equity
ultimately evolved.

Feudal System

It was the creation of the feudal system that enabled William I to maintain control of those
areas of the country well beyond easy reach of his primary residence in the city of
Westminster. This system was reliant on a hierarchy, an intricate class system at the top of
which were the King's most trusted nobles and existing English Barons who proved willing to
submit to his control. Vast swathes of land were given to each of these individuals who in
turn were obliged to fulfil certain services or 'tenures' to the King, including such things as
the provision of produce and labour and the provision of soldiers to fight for the King. Above
all the tenures, the most important was 'fealty', the promise of loyalty to the King himself.
Those who did not abide by this particular tenure would be subject to death and their lands
would be taken from them.

The consolidation of the legal system within England began with the introduction of the
Eyre' and resulted in representatives of the King being sent from his seat in Westminster to
monitor the smaller administrations being run across the country. Whilst their initial objective
was recording of wealth and collection of taxes, dealing with disputes as and when they were
presented, the resolution of disputes ultimately came to be their primary function. These
individuals were known as the 'Curia Regis', translated to mean 'King's Council' and from it
there eventually emerged a variety of courts.

Common Law was founded as a result of the King's representatives liaising with one another
following their visits to compare the disputes they encountered and agree upon common
resolutions to these problems. The first court established to deal with specific disputes was
named the Court of the Exchequer which became firmly established during the rule of
successive monarchs. Gradually the court was expanded to hold jurisdiction over specific
areas of disputes.

Common Law Courts

The Court of the Exchequer was ultimately abolished along with the Court of Common Pleas
by the Judicature Acts 1873-1875. However, whilst these two courts were still in existence, a
further court known as the Court of the King's Bench, dealing with disputes relating to the
King, was established. This was the court that came to hold supervisory jurisdiction over
lesser courts and government bodies. Four "Prerogative Writs' were formed setting out the
means by whích the Court of the King's Bench supervised these lesser courts; Prohibition,
Mandamus, Certiorari and Habeas Corpus are still in existence today and known as
'Administrative Orders'. Unlike the Court of the Exchequer and the Court of Common Plea,
the Court of the King's Bench was incorporated within a new Supreme Court of Judicature;
today this incorporates the High Court.

Flaws in the Common Law System

The Statute of Westminster Il 1285 went some way towards mitigating against this problem
by stating that a new Writ could be issued but only if the claim were similar to those covered
by an existing Writ. Whilst this statute was a significant marker in the history of the
development of 'equity', it was nevertheless relatively conservative.

The bureaucracy of the court system similarly led to delays as the procedure of each court
was required to be strictly followed and as a result a case could be thrown out due to errors in
the required paperwork. Court cases would also be held up by up to a year as either party in a
case could state that they would be unable to attend court by reasons such as sickness or
flooding. In the event that a case was successfully heard in court, the only outcomes available
were damages requiring that a sum be paTd by one party to another. Understandably, this did
not always suit each case and, as such, an Injunction or similar could not be enforced as it
would be today.

Ultimately the development of the needs of society was not reflected within the law; the
development of Trusts, for example, did not come about until later, "Stare decisis', translated
as "let the decision stand' meant that decisions made by the courts were equally inflexible and
as a result often unsuited to the case in hand.

Development of Equity

Given that the King held ultimate power over the law of the land, it came to be the case that
dissatisfied individuals would petition the King for a decision to be overruled or amended as
they saw fit. The continued inflexibility of the court system resulted in such a great number
of these petitions that they were deferred to the Lord Chancellor to rule on such decisions on
the King's behalf. This change marked a significant milestone in the development of 'equity'
as the first Lord Chancellor appointed such responsibility was a Catholic Priest. The
decisions he made therefore were founded in moral beliefs and understandings as opposed to
the law of the land as set out in document. The Lord Chancellor made a decision based on the
most equitable option for the circumstances.

Whilst the issues dealt with by the Lord Chancellor were initially undertaken in the name of
the King, the decisions came to be made in his own name with the first being issued in 1474.
As had happened previously, the Lord Chancellor too became overwhelmed with petitions
being made to him directly and the Court of the Chancery was formed to deal with the
increase in these petitions. Where common law offered no solution to a case, the Court of the
Chancery would deal with such matters.

Conflict between Common Law and Equity

Ry the time of the rule of James I, disputes had arisen between the Court of the Chancery and
the existing courts administering common law. The Attorney General, Sir Francis Bacon was
subsequently ordered to arbitrate the matter, and this led to the order by James I that "where
there is a conflict between common law and equity, then equity should prevail". This was
decided in the Earl of Oxford's Case 1615. Whilst this is still the case in modern law, the
intention has never been that equity should supersede common law; rather, it is intended to
supplement common law and seek to provide a solution where none exists already.

Equitable Remedies

The development of equity has brought with it a number of significant remedies to issues
arising in common law. The most notable of these are Injunctions, Specific Performances,
Rectifications and Rescissions. It nevertheless remains the case that the application of equity
in any case is at the discretion of the court and these solutions can themselves only be granted
'in equity'.

Equitable Maxims

As with common law, there remain 'rules surrounding the granting of an Order by the Court
of Chancery in equity. Known as the Maxims of Equity, these rules are still applied today.
Over the years whilst these rules remained in place, the way in which equity was enforced
within the courts varied "with the length of the Chancellor's foot" i.e. there was significant
variation over the years in the way in which the Maxims of Equity were interpreted.

Judicature Acts 1873-1875

It was only with the passage of many centuries that equity as a system came to be a rigid
system comparable to common law. The streamlining of the court system in particular was a
major factor in the refining of equity. The Judicature Acts 1873-1875 went some way in
cutting down on the number of inefficient courts in place and since then, further reforms have
led to a mare logical, manageable and fair system today.

Over the years equity has enabled an otherwise rigid system of law enforcement to adapt to
the needs of a developing society. Equity enables the law to be interpreted as needed, when
needed, without requiring long, drawn-out changes to be made to law by Parliament. The
creation of such remedies as the Anton Pillar Order have come about due to the principle of
equity and as a result has led in many cases to a fairer trial as a Claimant is able to enter the
premises of the Defendant in order to prevent documents or other evidence relevant to the
case from being destroyed. Were the rule of the country to be based solely upon common law
it is clear that there would frequently be situations arising for which no outcome could be
determined. Equity allows for the best suited and fairest interpretation of the law based on the
circumstances at the time.

1.3.1 Parliamentary Law Making

Learning outcomes

Parliamentary law making including:

- Green and White papers

- the formal legislative process
- the influences on parliament
- the doctrine of parliamentary supremacy and limitations on it
- the advantages and disadvantages of influences on parliamentary law making.

Legislation (also known as a statute or Act of Parliament) is the name given for laws which
are made in Parliament.

The process starts with the new law being proposed by Cabinet (minsters and the Prime
Minister) and drafted by Parliamentary Counsel The Government sets out its ideas in a
discussion document (known as a Green Paper). Organisations are asked to comment.
Permanent officials (civil servants) gather together the opinions. The government department
may then produce firm proposals (known as White Paper).

The Bill is then produced to the First House (usually the House of Commons).

During the first reading photocopies are produced and the title is read out. This lets Members
of Parliament in the House know about the Bill.

At the Second Reading the general principles are discussed. The Bill can be thrown out at this
stage. The purpose of the Bill is explained to the House. Provided the Bill has passed the
Second Reading. it will then go to the Committee Stage, This is where specialists in the
subject area look at the Bill clause by clause in small groups (known as Standing
Committees).

At the Report Stage the Chairman of select committee reports findings to the House and
further consideration and changes are then made by the whole House. The Third Reading is a
formality; only minor amendments are allowed, and this is where an overall examination of
the Bill takes place and there is a chance for the House to decide whether they want it to go
any further.

The Bill then goes to the other House (House of Lords, as the Commons usually start the
process) which follows the same process as the House of Commons, The Lords can suggest
amendments to the Bill and send it back to the Commons, who may send it back again until
an agreement can be reached. If no agreement can be reached, the House of Commons can
reintroduce the Bill the following year, knowing that the Lords cannot reject a Bill if it is
passed by the Commons in two Successive sessions (years). In the Lords the First and Second
Readings are almost the same however there is no select committee as there will be no
specialists and therefore the whole house deals with the Bill. This also means there is no need
to report. The Third Reading fs the same as that in the Commons.

The Bill is then passed back to the Commons for them to consider any amendments made by
the Lords. If the Commons do not agree they bypass the Lords after 12 months and an
example of when this Occurred was the Hunting Act 2004.

If everything is agreed the Bill will then be passed to the Queen For Royal Assent. The
Queen does one of two things. She either signs what are known as Letters Patent which allow
the Speakers of the two Houses (the Speaker of the House of Commons and the Lord
Chancellor) to announce that the Queen has given-her assent or she signs a document known
as Commission once a year, which commands certain Lords known as Royal Commissioners,
to go the House of Lords to let both Houses know that Royal Assent has been given. The Act
comes into force at midnight unless stated otherwise.

Learning activity 4

Go onto the parliament website: http://osclinks.com/4300 to watch a video on how laws are
made.
The Influences on Parliament

Government Policy Each party has its Own manifesto which it uses to encourage
members of the public to vote for them. The manifesto will then
become part of that government's programme of reform. It may
include aspects such as Brexit, education, economy, foreign
affairs, etc.
European Union An Act-of Parliament may be passed through the House of
Law Commons and House of Lords to bring domestic law in line with
EU Law. For example, a European Regulation or Directive.
Individual Members Your local MP will attend Parliament and is your voice. Although
of Parliament (MPs) it is unusual for an MP to introduce an Act of Parliament, they can
do so. This is known as a Private Members Bill.
Other influence Law reform agencies, commissions or inquiries may lead to
changes-in-the law
Pressure groups Members of these groups target politicians and lobby MPs on
points they are passionate about. For example, Greenpeace.
Media TV, radio, newspapers and journals highlight public concern.
Reform Bodies and The Law Revision Committee was set up in 1935 and operated
Commission until the Second World War. In 1965 a full-time Law reform body
was set up, called the Law Commission (see below).
Law Reform A part time committee which was created in 1952 to deal with
Committee some areas of civil law. Examples of how proposals have led to
changes in law include the Occupiers Liability Act 1957, Civil
Evidence Act 1968 and the Latent Damage Act 1986.
Criminal Law This was set up in 1957 and sat monthly until 1986 and produced
Revision Committee 18 reports. Its recommendations were not often heard due to the
lack of parliament time. One of its main achievements was the
Theft Act 1968.
The Law As stated above, this was set up in 1965 by the Law Commissions
Commission Act. It is full time and is made up of a High Court Judge who is
the chairman, 4 other law commissioners, researchers and
parliamentary draftsmen. Topics are referred by the Lord
Chancellor. The Law Commission researches the law

and publishers a consultation paper which will state the current

law, the problems with it and proposals for reform.
http://losclinks.com/4301
Repealing Law The Law Commission prepares a Statute Repeal Bill for
Parliament to pass to repeal old laws that are-still on the statute
books but are no longer relevant. http://osclinks.com/4302
Consolidation There are often several acts on the same area of law.
Consolidation enables them to be put under one Act.
http://osclinks.com/4427
Codification The Law Commission aims to bring all the law on one topic into
one source of law. http://osclinks.com/4303
 Judges E.g. the Woolf Reform - see above.
Royal Commission Sits part-time and comes together to investigate and report on an
area of law, then disbands.

The Doctrine of Parliamentary Supremacy and Limitations on it

The Parliament is said to be a sovereign lawmaker and therefore a Statute is generally

regarded as the highest form of law. Although Parliament can make laws concerning
anything, one mustn't forget that laws can be repealed and changed. and new laws introduced
by a future Parliament. Judges can interpret Acts of Parliament using various rules and
presumptions; however they cannot question the actual Act itself. Therefore, judicial review
is not possible; however, Parliamentary Sovereignty can be seen to have been somewhat
modernised as time passes, limiting its supremacy in some ways:

1. A devolved government resulting in the granting of powers to regional assemblies in

Scotland, Wales, and Northern Ireland.
2. The United Kingdom's membership of the European Union since 1973.
3. Certain statutes are protected as Constitutional Statutes. In the case of Thoburn v
Sunderland City Council, Lord Justice Laws held that certain statutes of constitutional
importance including Magna Carta and the European Communities Act 1972 could
not be repealed by the doctrine of implied repeal (explained earlier). This, as well,
limits the Parliamentary Sovereignty.
4. The enactment of the Human Rights Act 1998. This Act gives the courts the power to
issue a declaration of incompatibility when they believe the Act of Parliament
contravenes the Human Rights Act 1998.

The Advantages and Disadvantages of Influences on Parliamentary Law Making

Advantages:

- The process between the Houses is thorough allowing for debates, scrutiny and
amendments.
- The House of Commons controls most of the law-making process and they are elected
into power by members of the public ensuring democracy.
- The power of the House of Lords was reduced following the Parliament Acts 1911and
1949 and the elected government can leapfrog to our Queen. This process is rarely
used and has only been used a handful of times.
- There are various methods by which a Bill can be introduced to Parliament, thus
ensuring flexibility of the types presented.

Disadvantages:

- Unlike the House of Commons, the House-of Lords is not elected into power,
meaning they can change what they don't like within reason, and this impacts on the
democracy.
- It can take months or years to pass a Bill into a law.
- Out of date or complex language which is difficult to interpret.
- The Government can vote out any private members' Bill that does not fit their agenda
from their manifesto.
1.3.2 Delegated Legislation

Learning outcomes

- Types of delegated legislation: orders in council, statutory instruments, by laws

(from local authorities and public bodies).
- Parliamentary and judicial controls on delegated legislation.
- The reasons for the use of delegated legislation.
- The advantages and disadvantages of delegated legislation.

Delegated legislation is law made by individuals and institutions acting under a grant of
legislative authority from Parliament.

Delegated powers are usually granted in an enabling Act (also known as an "umbrella Act'"
or ""parent Act'". This Act will establish a framework of general principles and grant powers
to fill in the details.

Example: The Health and Safety at Work Act 1974 gives the Secretary of State for the
Environment the power to create Statutory Instruments such as COSHH.

Types of Delegated Legislation

Type Explanation Example

Statutory Instruments These are rules, regulations Example: The Minister
and orders issued by responsible for transport has
Ministers and are national in the power to change the
effect. I.e., everyone in the maximum speeds allowed
country must abide by them. on motorways and roads.
Byelaws These are issued by local Example: In certain areas of
authorities (and some public Cornwall Council, you must
corporations) and are only keep your dog on a lead.
local in effect. I.e., only
those who reside in that Learning Activity 5: follow
particular area must abide by this government link on
them. changes to the making of
byelaws:
http://osclinks.com/4304

Try and find a bylaw that

applies to your local area.
Orders in Council The Government, usually in
times of emergency, may be
given the power to make
laws in this way. Such an
 order requires a meeting of
the Privy Council and the
signature of the King.

Delegated Legislation saves parliamentary time as it is able to to deal with complex and
technical issues (e.g., health and safety regulations). it is quicker and easier to amend and
update than enact new primary legislation. It is also able to respond quickly to emergencies
and allows for local variation to meet local need.

However, there is a large volume, and it can often be poorly drafted. Some say there is a lack
of control by Parliament.

Delegated Legislation results from transferring law-making powers from the legislature to the
executive, Therefore, delegated powers must be subject to effective checks and controls to
ensure accountability and prevent misuse.

Consultation

This is often required by the enabling Act and acts as a check in two ways:

- directly - by requiring a public exercise of the power

- indirectly - may form the basis for judicial review

Parliamentary Oversight

This may seem to conflict with the need to save parliamentary time; however, a responsible
Parliament must monitor the use of powers it has delegated. There are two main forms of
oversight:

Affirmation process

The Enabling Act may specify that the Statutory Instrument must be laid before Parliament.
This is known as being affirmed before coming into force.

- positive affirmation - instrument only comes into force after approval by positive
resolution in Parliament
- negative affirmation - instrument comes into force unless annulled by a negative
resolution in Parliament
- negative affirmation is more common BUT reliance on this may mean draft
instruments receive inadequate policy scrutiny

Scrutiny committee

The Committee reviews technical merits of all draft Statutory Instruments. It refers to
Parliament those giving cause for concern (e.g., unusual or unexpected use of the power). The
Committee acts as a filter so that Parliament need only consider the small number of
instruments referred.
The Legislative and Regulatory Reform Act 2006

This Act was enacted to replace the Regulatory Reform Act 2001.

Section 1 gives Ministers certain powers to make orders ("legislative reform orders") that
remove or reduce burdens resulting directly or indirectly from legislation. It also sets out
what the powers are, the conditions and restrictions which apply to them, and the procedure
which must be followed in exercising them.

Section 2 makes similar provision in relation to orders that promote principles of better
regulation. It contains provisions which are intended to promote more effective inspection
and enforcement by regulators and to ensure that they exercise their functions in a way that is
consistent and proportionate without compromising regulatory standards or outcomes.

Section 3 sets out facts that the Minister proposing to make a legislative reform order has to
address. They include positive tests (need for legislation, proportionality, and fair balance of
interests) and negative ones (no removal of necessary protection, no unreasonable
interference with rights and freedoms, no constitutional significance). The Minister can only
proceed if satisfied that all relevant section 3 tests are passed. It also makes provision about
legislation relating to the European Communities.

It amends the interpretation Act 1978 to

1. make provision about references in domestic legislation to Community instruments

which have already been amended at the time that the domestic legislation is made;
and to make provision about references in domestic legislation relating to the
European Economic Area.
2. makes provision about how Community obligations are implemented in domestic law,
primarily in order to reduce the number of domestic instruments that need to be made.

Amendments are made to the European Communities Act 1972 ("the 1972 Act"] so that:

- under section 2(2) of the 1972 Act, an order, rules or a scheme can be made as well as
regulations.
- certain subordinate legislation can make ambulatory references to Community
instruments; and
- the power to make a statutory instrument under section 2(2) of the 1972 Act can be
combined with the power to make a statutory instrument under another enactment,
where the procedural requirements attaching to the exercise of the two powers differ.

Judicial Review

The limited nature of delegated powers means that courts can annul delegated legislation
where it is ultra vires (outside or beyond the power).
 - substantive ultra vires - subject matter outside scope of power (A-G v Fulham Corp
[1921))
- procedural ultra vires - subject matter intra vires but serious failure to comply with a
mandatory procedural requirement e.g., failure to consult (Agricultural Training
Board v Aylesbury Mushrooms [1972])

Publishing

S2 Statutory Instruments Act 1946 states that Statutory Instruments and Orders in Council
must be published as soon as they are made. Failure to do so can result in an offence.

1.3.3 Statutory Interpretation

Learning outcomes

- The rules of statutory interpretation: literal, golden and mischief rules; the
purposive approach.
- Internal (intrinsic) and external (extrinsic) aids.
- The impact of European Union law and of the Human Rights Act 1998 on statutory
interpretation.
- The advantages and disadvantages of the different approaches to statutory
interpretation.

English legislation is written in the English language, which is not necessarily well suited for
expressing precise and unambiguous facts. Sometimes the language will have two possible
interpretations.

This means that courts, judges in particular, will generally have to interpret the words of
statutes with regard to the facts of each particular case. Surprisingly, there is relatively little
statutory control over the interpretation of legislation; it is mostly a matter for judicial
convention and precedent.

There are three main rules which the judges use to help them when they have to interpret
unclear words or phrases in Acts of Parliament: these three rules are explained below:

The Literal Rule

By the literal rule, words in a statute must be given their plain, ordinary meaning. The
objective of the court is to discover the intention of Parliament as expressed in the words
used. This approach will be used even if it produces absurdity or hardship, in which case the
remedy is for Parliament to pass an amending statute.

In Fisher v Bell [1960] a shopkeeper displayed a knife in his window. While the Restriction
of Offensive Weapons Act 1959 made it an offence to sell such a knife, the Defendant
succeeded in arguing that a display in a shop window is not an offer for sale. Under contract
law it is an invitation to treat with any offer made by customers. It was presumed that
Parliament did not intend to change common law.

In Whiteley v Chappell [1868] the Defendant was charged under a section which made it an
offence to impersonate 'any person entitled to vote'. The Defendant had voted using a dead
person's name. The Court held D was NOT guilty since a dead person is not, in the iteral
meaning of the word, 'entitled to vote'.

In Rv Judge of the City of London Court [1892] Lord Esher said, in applying a literal
approach: "If the words in the Act are clear then you must follow them even if they lead to a
manifest absurdity. The court has nothing to do with the question of whether the legislature
has committed an absurdity."

In London & North Eastern Railway v Berriman [1946] the claimant's husband was killed
while oiling points along a railway line. Compensation was only payable if he had been
"relaying or repairing" the line. The House of Lords held that oiling points was maintaining
the line and not "relaying or repairing."

The Golden Rule

The golden rule provides that if the words used are ambiguous the court should adopt an
interpretation which avoids an absurd result. It therefore allows judges to avoid the harsh
result and repugnant situations which would be produced by a literal reading.

In Rv Allen (1872) s.57 of the Offences Against the Person Act 1861 made it an offence to
'marry' whilst the original spouse was still alive (i.e. with no divorce). The Defendant claimed
he could not "legally marry' because he was not divorced. The court decided that in the Act
the word 'marry' means "to go through a ceremony of marriage'. To accept otherwise would
produce an absurd result.

In Re Sigswarth [1935] The defendant had murdered his mother. She did not have a Will and
he stood to inherit her estate as next of kin, by being her "issue. The court applied the golden
rule and held that "issue" would not be entitled to inherit where they had killed the deceased.

Learning activity 6

Read the following article on the base of R Miranda v Home Secretary [2016]:

http://osclinks.com/4305 How is this an example of the golden rule?

The Mischief Rule

The mischief rule is contained in Heydon's Case [1584] and allows the court to look at the
state of the former law in order to discover the mischief in which the present statute was
designed to remedy. It allows judges to put into effect the remedy which Parliament chose to
cure a problem in the common law.

There are four points a Court should consider:

1. What was the common law before the Act?

2. What was the mischief and defect which the common law did not provide?

3. What is the remedy Parliament has resolved?

4. The true reason of the remedy.

The Judges should then suppress the mischief and apply the remedy.

In Smith v Hughes (1960) prostitutes were charged with soliciting on the streets contrary to
the Street Offences Act 1958. The Defence made that they were inside a building and tapping
on a window to attract men (thus not on the street). Despite such, the Court applied the
Mischief Rule and found them guilty because the Act was designed to prevent prostitution.

In Royal College of Nursing v DHSS [1981] the Abortion Act 1967 allows abortions by "a
registered medical practitioner", Doctors carried out the first part of the procedure and the
second was performed by nurses but without a doctor being present. The House of Lords held
(by 3-2) that this procedure was lawful because the mischief Parliament was trying to remedy
was back street abortions performed by unqualified people.

Purposive Approach

This approach is a European Union link. It looks at the purpose behind the legislation so as to
give effect to that purpose.

In Pickstone v Freeman (1988) the Court of Appeal held that Article 119 of the Treaty of
Rome on equality of treatment for men and women was clear and could be applied directly.
Thus, they assumed that Parliament's intent was to comply with EU law.

In Rv Registrar General ex parte Smith (1990) Smith wanted a certificate in order to find his
mother - problem was, he was a dangerous murderer in Broadmoor Mental Hospital. The
Literal rule said he could have the certificate, however the purposive approach was applied
since 'Parliament could never have intended to promote such serious crime.'

In Cutter v Eagle Star (1998) the Defendant insurance company would be liable to pay
damages if Cutter was injured on a road (he was on a car park). The Court of Appeal decided
that a car park was a road for the purposes of the Road Traffic Act 1988. The House of Lords
reversed this with Lord Clyde saying ..

"It may be perfectly proper to adopt a stained construction to enable the object and purpose of
legislation to be fulfilled. But it cannot be taken to applying unnatural meanings to familiar
words or to stretch the language that its former shape is transformed into something which is
not only significantly different but has a name of its own. This must be particularly so where
the language has no evident ambiguity or uncertainty about it."
In addition to these major rules of interpretation, there are others known as the rules of the
language:

The 'Ejusdem Generis" Rule

This rule provides that in a statute where general words follow specific words, they must take
their meaning from the specific words. E.g., n the phrase 'cats dogs or other animals", 'other
animals’ would mean domestic pets and not all animals.

In Powell v Kempton Park Racecourse [1897] the Defendant had been operating an outside
betting place. The Act stated ‘house, office, room or other place of betting'. The court
therefore had to define 'other place of betting’. As all of the previous terms were indoor
places, it was held that "other place of betting' would also be indoors.

The "’Expressio Unius Est Exclusio Alterius’" Rule

This simply means that what is included excludes that which is not. An example can be seen
in Tempest v Kilner [1846]. This considered the Statute of Frauds Act 1677 which noted that
a contract for the sale of 'goods, wares and merchandise of E10 or more' needed to be
evidenced in writing. This case concerned stocks and shares and because they were not
expressly mentioned in the list they were excluded.

The ""Noscitur a Socciis Sociis'” Rule

This means that words must be read in the context of surrounding words. In Rw Harris (1836]
the defendant bit off a prostitute's nose. The statute made it an offence to 'stab, cut or wound'.
The court held that 'stab or cut' implied a weapon or instrument would be used and teeth did
not come within this definition.

Presumptions

There may also be ""presumptions", some of which include the presumption against criminal
liability: the presumption against ousting the jurisdiction of the courts; and the presumption
that the Crown is not bound by statute unless it expressly so provides. These include:

- Against alteration of common law

- No criminal liability will exist in absence of guilty mind
- Statute will not apply retrospectively
- Against deprivation of individual's liberty, property or rights
- Against application to the Crown

External Aids

Following the case of Pepper v Hart [1993] courts can look at Hansard where they consider
the law is ambiguous.

Internal Aids

From 1999 a set of explanatory notes are issued with each Bill - these are designed to assist
understanding and are not part of the Act.
1.3.4 Judicial Precedent

Learning outcomes

- The doctrine of judicial precedent.

- The hierarchy of the courts including the Supreme Court.
- Stare decisis, ratio decidendi and obiter dicta; law reporting in outline and the
reasons for it.
- The operation of judicial precedent: following, overruling, and distinguishing.
- The advantages and disadvantages of the doctrine of judicial precedent and the
operation of precedent.

Judicial precedent is where an earlier decision by the courts is followed by another court
where the facts of the case are similar.

The principle of stare decisis i.e., to stand by the decided is paramount in the application of
precedent. To achieve this inferior courts are bound to apply the legal principles set down by
superior courts in earlier cases.

The decision or judgement of a judge may fall into two parts: the ratio decidendi (reason for
the decision) and obiter dictum (something said by the way).

- The ratio decidendi of a case is the binding element and the principle of law on which
a decision is based. The judge will provide the reasons for the decision when the
judgement is delivered.
- There is also a non-binding element of a judgment known as obiter dictum where a
judge includes in the summing up what the outcome might have been had the
circumstance been slightly different. Although not binding, it is persuasive (see
below).

When reading the law report, it can be difficult to establish which part is the ratio decidendi is
and it may not be until it is required to be interpreted for another Case that it is questioned.

As stated above, precedents set by superior courts are binding on the lower courts. The court
hierarchy is as follows:
The European Court of Justice
All decisions of the European Court of justice are binding in matters of Community Law on
all courts including the Supreme Court.

The Supreme Court (previously the House of Lords)

This is the highest court in the land unless a matter of EC law is involved.

The House of Lords was bound by its own decisions until a Practice Statement was issued by
Lord Gardiner LC in 1966. Following this the House of Lards has the option to depart from
its decisions where it appears right to do so; however, in general the Lords would still follow
their own decisions. This was seen as an important event, but in the years since that decision,
the House of Lords has used the power sparingly. The Lords has overruled its own previous
decisions in the following cases:

Current Case Overruled Case Details

British Railways Board v Addie v Dumbreck (1929) the duty of care owed to a
Herrington (1972) child trespasser
Murphy v Brentwood Anns v Merton London duty of care owed by local
District Council (1990) Borough Council (1977) authorities
Pepper v Hart (1993) Davis v Johnson (1979) that banned the use of
Hansard in statutory
interpretation
Rv Shivpuri (1986) Anderton v Ryan (1985) on attempting the impossible
in theft
Rv Howe (1987) Rv Lynch (1975) stated that duress was no
defence to a murder charge

A decision of the House of Lords binds all lower courts.

Court of Appeal (Civil Division)

The Court of Appeal is bound by decisions of the House of Lords/Supreme Court. It is also
bound by its own decisions subject to the following exceptions which were set out in Young
v Bristol Aeroplane Co Ltd [1944]:

1. If there is more than one decision which conflicts, the Court of Appeal must decide
which to follow and which to reject.
2. If a decision made by the Court of Appeal conflicts with one of the House of
Lords/Supreme Court on another case, it just follows the decision of the House of
Lords/Supreme Court.
3. The Court of Appeal need not follow a decision of its own if satisfied that it was
given per incuriam (literally, by carelessness or mistake).

Decisions of the Court of Appeal itself are binding on the High Court and the county courts.

Court of Appeal (Criminal Division)

Although the principle of Stare Decisis applies in both divisions, in practice (in addition to
the Young exceptions, because a person's liberty may be at stake ) precedent is not followed
as rigidly in the criminal division.

The High Court

The High Court is not bound by its own decisions; however, it is of strong persuasive
authority and is usually followed. Decisions of individual High Court judges are binding on
the county courts.

Crown Courts

Decisions made on points of law are not binding, though they are of persuasive authority.

County Courts and Magistrates' Court

The decisions of these courts are not binding.

Although the court hierarchy sets out which courts must follow others, there are
circumstances where the precedent can be avoided.

Distinguishing

The facts and the legal principle/point of law will be looked at. If a judge can distinguish a
case on either of these then it can distinguish between them so as to avoid having to follow
the precedent.

Overruling

This occurs where a superior court overrules a decision made in an earlier case by a lower
court.

Reversing

This occurs where an appeal is made to a higher court and the decision is reversed.

Per Incuriam

Where the decision resulted from carelessness or mistake, a court can avoid it by stating per
incuriam.

Persuasive Precedent

These are not binding but can provide assistance, For instance, superior courts can look at the
decisions made by courts below them despite not being bound. Decisions of the Judicial
Committee of the Privy Council are also not binding. If English courts have not come across
a matter before, they can look at the decisions of the courts in Scotland. Ireland. the
Commonwealth and the USA for guidance.
There are various advantages and disadvantages to precedent. Although it creates certainty in
the law, it can be difficult to locate the precedent or distinguish what the ratio decedent is.
There is unity, however only if a case for a point to be decided has arisen. There is flexibility,
however this then allows for inconvenient precedents to be distinguished. Although there is a
vast amount of detail, the volume can be a hindrance and it can be complex.

Learning activity 7

Complete this revision quiz on judicial precedent: http://osclinks.com/4306

You can read a lecture on judicial precedent and then complete the relevant quiz.

1.3.5 Law Reform

Learning outcomes

- The work of the Law Commission: reform, codification, consolidation and repeal.
- The advantages and disadvantages of reform through the Law Commission.
- Identify the different aspects of the Commission's work.
- Evaluate the effectiveness of the Commission in reforming the law.

The Law Commission is an independent body. It was set up in 1965 by the Law
Commissions Act. It is full time and is made up of a High Court Judge who is the chairman, 4
other law commissioners who are experienced barristers, solicitors or teachers of law. They
are supported by researchers and parliamentary draftsmen. Topics are referred by the Lord
Chancellor. The Law Commission researches the law and publishers a consultation paper
which will state the current law, the problems with the law and proposals for reform.

Our law is vast - it is made up of common law, precedent and statutes which go back many
centuries. Therefore, it is impossible for reform to be tasked with Parliament or Judges and a
wider consultation with experts and those affected by the reforms is paramount.

As stated in section 1.3.1 above, the Law Commission has various functions including statute
repeals, consolidation of law and codification.

The Commission is often engaged on 20 to 30 projects at a time, all of which will be at

different stages, The Law Commissions Act requires the Commission to keep "all the law"
under review, When the Commission was introduced, it sets out a programme to codify
family law, contract law, and landlord and tenant law. However, they changed this to just
codifying small sections of law that can be added to later.
The Commission produces about 5 consolidation bills each year. Unfortunately, more Acts
are being introduced and these often supersede the Bill produced by the Commission
following their report. For example, the Powers of Criminal Courts Act 2000, consolidated
the law on sentencing, however the Criminal Justice Act 2003 was passed changing the law
again.

Due to the vast extent of the task, although it has not achieved its original plan of
codification, it has been successful in dealing with smaller areas of law.

Although the first 2 years saw much success with 20 law reform programmes being
implemented, by 1990 this slowed down and none of the reforms saw implementation and
this resulted in a back log of 36 bills by 1992. Twenty-six reports were waiting to be
implemented in 2006 with the oldest one dating back to 1991.

Despite the backlogs and struggles with the volume, the Commission has been very
successful in some areas, notably the Land Registration Act 2002 which reformed and
modernised the method of registering land.

The largest problem remains Criminal law and despite a draft criminal code being published
in 1985, it has never been considered by parliament.

Learning activity 8

Access the Law Commission website: http:/losclinks.com/4307

Here you can see the work they do and laws they are currently reforming.

1.3.6 The European Union

Learning outcomes

- The institutions of the European Union: The Council, the Commission, the
Parliament and the Court of Justice of the European Union and their functions.
- The different sources of European Union law: treaties, regulations, and directives.
- The impact of European Union law on the law of England and Wales.

Council

Based in Brussels, the Council is the EUs main decision-making body. Like the European
Parliament, the Council was set up by the founding treaties in the 1950s. It represents the
member states, and its meetings are attended by one minister from each of the EU's national
governments.

Which ministers attend which meeting depends on what subjects are on the agenda. If, for
example, the Council is to discuss environmental issues, the meeting will be attended by the
environment minister from each EU country, and it will be known as the 'Environment
Council'.
The EU's relations with the rest of the world are dealt with by the 'General Affairs and
External Relations Council'. Each government will choose a Minister or State Secretary to
attend meetings at the Council for general policy issues.

Each minister in the Council is empowered to commit his or her government. In other words,
the minister's signature is the signature of the whole government. Moreover, each minister in
the Council is answerable to his or her national Parliament and to the citizens that parliament
represents. This ensures the democratic legitimacy of the Council's decisions.

There are 3 types of voting procedure in the Council:

1. Unanimity

2. Simple Majority

3. Qualified Majority

Commission

The Commission is independent of national governments. Its job is to represent and uphold
the interests of the EU as a whole. It drafts proposals for new European laws, which it
presents to the European Parliament and the Council.

It is also the EU's executive arm - in other words, it is responsible for implementing the
decisions of Parliament and the Council. That means managing the day- to-day business of
the European Union: implementing its policies, running its programmes and spending its
funds.

Like the Parliament and Council, the European Commission was set up in the 1950s under
the EU's founding treaties.

European Parliament

The European Parliament (EP) originates from the founding Treaties in the 1950s. Since 1979
the members (MEPS) are elected by the people they represent.

Elections are held every five years, and every EU citizen who is registered as a voter is
entitled to vote. Parliament thus expresses the democratic will of the Unions citizens (more
than 455 million people), and it represents their interests in discussions with the other EU
institutions. The present parliament elected in June Z018 has 750 members. (European
Parliament, 2018)

Members of the European Parliament (MEPS) do not sit in national blocks, but in Seven
Europe-wide political groups. Between them, they represent all views on European
integration, from strongly pro-federalist to the openly Eurosceptic.

The current President of the European Parliament is Roberta Metsola.

With regard to law making, the role of Parliament was originally stated to be "advisory and
supervisory". It advises the Council of Ministers on Commission proposals. Committees of
Parliament present reports on Commission proposals for debate by the full Parliament.
Decisions made by Parliament are influential on the Council of Ministers but are not binding.

European Court of Justice

This is the European Union's supreme judicial authority. It is responsible for ensuring the
application and interpretation of EU Law.

The Court gives rulings on cases brought before it. The four most common types of case are:

1. The preliminary ruling procedure

The national courts in each EU country are responsible for ensuring that EU law is properly
applied in that country. However, there is a risk that courts in different countries might
interpret EU law in different ways.
To prevent this happening, there is a 'preliminary ruling procedure'. This means that if a
national court is in any doubt about the interpretation or validity of an EU law it may, and
sometimes must, ask the Court of Justice for advice. This advice is given in the form of a
'preliminary ruling'.

2. Proceedings for failure to fulfil an obligation

The Commission can start these proceedings if it has reason to believe that a member state is
failing to fulfil its obligations under EU law. These proceedings may also be started by
another EU country. Following the investigation, the Court will provide a judgment and the
accused member state will be asked to set things right and may also receive a fine.

3. Actions for annulment

If any of the member states, the Council, the Commission or (under certain Conditions)
Parliament believes that a particular EU law is illegal they may ask the Court to annul it.

4. Actions for failure to act

If a decision required under a Treaty has not been complied with, the member state or
Community Institution that has failed to do so can ask the court to officially record a
complaint against the member state or community institution that is the cause of the
complaint.

Economic and Social Committee

This committee has advisory status. When the Council consults the Commission, the
Commission will obtain the opinion of this committee which represents economic and social
sectors of the EU.

The General Court

The General Court is made up of at least one judge from each Member State (54in 2020). The
judges are appointed by agreement of the Member State governments for a renewable
mandate of six years. They appoint their President, for a period of three years, from amongst
themselves. They appoint a Registrar for a mandate of six years.
The judges carry out their tasks in a totally impartial and independent manner. Unlike the
Court of Justice, the General Court does not have permanent Advocates General. However,
that task may, in exceptional circumstances, be carried out by a Judge.

The General Court sits in Chambers of five or three judges or, in some cases, as a single
judge. It may also sit as a Grand Chamber (thirteen judges) or as a full court when the legal
complexity or importance of the case justifies it. Approximately three quarters of the cases
brought before the General Court are heard by a Chamber of three judges. The President of
Chambers is one of these judges who is elected by the others and the President sits for 3
years.

The General Court has its own Registry but uses the services of the Court of Justice for its
other administrative and linguistic requirements.

Types of EU Law

Primary Source: Treaties

The European Union is based on the rule of law. This means that everything that it does is
derived from treaties, which are agreed on voluntarily and democratically by all Member
States. Previously signed treaties have been changed and updated to keep up with
developments in society.

The Treaty establishing a Constitution for Europe, aimed to replace all the existing Treaties
with a single text, is the result of the work done by the Convention on the Future of Europe
and an Intergovernmental Conference (IGC). The Constitution was adopted by the Heads of
State and Government at the Brussels European Council on 17 and 18 June 2004 and was
signed in Rome on 29 October 2004. It was ratified by each Member State, in line with their
own constitutional arrangements (i.e. by parliamentary procedure and/or by referendum).

However, the rejection of the document by French and Dutch voters in May and June 2005
brought the ratification process to an end.

Following a period of reflection, the Treaty of Lisbon was created to replace the
Constitutional Treaty. This contained many of the changes that were originally placed in the
Constitutional Treaty but was formulated as amendments to the existing Treaties (see below).
It was signed on 13 December 2007 and came into force on 1 December 2009.

In 1957 the Treaty of Rome (also known as the EC Treaty) established the European
Community (now the European Union) to achieve "ever closer union" amongst the people of
Europe.

The Single European Act (SEA), signed in Luxembourg and the Hague, and entered into
force on 1 July 1987, provided for the adaptations required for the achievement of the
Internal Market. The SEA established the European Council, which formalises the
conferences or summits of the Heads of States and Government. Social poticy is already
regulated by the EC Treaty, but the Act introduced new policies. Furthermore, with regard to
industry, the aim was to remove all physical, technical, and financial barriers with regard to
trade, The Treaty on European Union 1992 (also known as the Maastricht Treaty) amended
the EC treaty in order to achieve its aims. This included an economic and monetary union,
including the development of:

• a single currency

• common citizenship

• common foreign and defence policies

The Treaty of Amsterdam, signed on 2 October 1997, entered into force on 1 May 1999. It
amended and renumbered the EU and EC Treaties. Consolidated versions of the EU and EC
Treaties are attached to it. The Treaty of Amsterdam changed the articles of the Treaty on
European Union, identified by letters A to S, into numerical form.

The Treaty of Nice, signed on 26 February 2001, entered into force on 1 February 2003. It
dealt mostly with reforming the institutions so that the Union could function efficiently after
its enlargement to 25 Member States. The Treaty of Nice, the former Treaty of the EU and
the Treaty of the EC have been merged into one consolidated version.

The Treaty of Lisbon, signed on the 13th December 2007, entered into force on 1t January
2009. It amended the Treaty on European Union and the Treaty establishing the European
Community. This Treaty restructured the EU and now, two treaties set out its rules:

1. The Treaty of European Union [TEU]

2. The Treaty of the Functioning of the European Union [TFEU]

Secondary Sources/Delegated Legislation:

Regulations These have general application. They are binding in their

entirety and directly applicable in all Member States. They
take effect in the UK without the need for further
implementation. Regulations prevail over national laws of
the member states.
Directives These are binding, as to the result to be achieved, upon
each Member State to which they are addressed, but leave
to national authorities the choice of form and methods.
These are not directly applicable as it is left to the
individual member state to implement them. In the UK,
this may be done by an Act of Parliament or an Order in
Council/Statutory Instrument.
Decisions These may be made by the Council or Commission as a
formal method of pronouncing policies or initiating
actions. These are binding upon those to whom they are
addressed which could be the State, a company or an
individual.
Recommendations/Opinions These state the view of the institution issuing them,
however, have no binding effect on the Member States.

In 2016, the UK voted to leave the European Union.

Read an article on Brexit and EU law: http://osclinks.com/4308

1.4 The Legal System

The Court Service carries out the administrative and support tasks for: The Court of Appeal;
the High Court; the Crown Court; the county courts; the Probate Service and certain tribunals
The structure of the courts in England and Wales is set out below.
1.4.1 The Civil Courts and Other Forms of Dispute Resolution
 Learning outcomes

- Basic understanding of civil courts, including the track system and the appeal
system.
- Other forms of dispute resolution: outline of the tribunal structure and the role of
tribunals. The roles of mediation and negotiation

Civil litigation covers both commercial and private clients in many types of dispute.
Proceedings are brought in the County Court, High Court and Court of Appeal.

The Civil Procedure Act 1997 gives effect to the Lord Woolfs report "Access to Justice" and
establishes a Civil Procedure Rule Committee with power to make rules for all civil
legislation (except family proceedings).

Previously there were a set of rules for the High Court - the Rules of the Supreme Court 1965
(RSC) and a set of rules for the County Court - the County Court Rules 1981 (CCR). Since
26 April 1999 a unified set of rules, the Civil Procedure Rules 1998, have been in force.

The Civil Procedure Rules (CRP) were created under the authority of the Civil Procedure Act
1997 and give effect largely to the recommendations of the Woolf Report. The purpose of the
rules is to unify the procedures for civil claims in the High Court, the county courts and, in
some cases, in the Civil Division of the Court of Appeal.

Overriding Objective

The philosophy behind the CPR is set out in Rule 1.1(1) which says that "These Rules are a
new procedural code with the overriding objective of enabling the court to deal with cases
justly. The 'overriding objective' is described in more detail in R1.1(2), which says that
dealing with cases justly should include:

- ensuring that the parties are on an equal footing.

- saving expense; dealing with the case in ways which are proportionate (i) to the
amount of money involved; () to the importance of the case; (iti) to the complexity of
the issues; and (iv) to the financial position of each party;
- ensuring that it is dealt with expeditiously and fairly; and
- allotting to it an appropriate share of the court's resources, while taking into account
the need to allot resources to other cases.

R1.2 says that courts must carry out their duties in such a way as to give effect to the
'overriding objective', and R1.3 says that the litigants must do likewise. R1.4 says that courts
must 'actively manage' cases, which includes encouraging parties to co-operate and to seek
Alternative Dispute Resolution, encouraging settlement, fixing timetables, and dealing with
as many issues as possible at the same time.

The Rules in sections 2-73 deal with the substantive procedures that are intended to
implement the overriding objective. Each section is accompanied by a Practice Direction
(PD) (sometimes more than one) which seeks to clarify the application of the Rules in that
section. There are also PDs of general applicability in the appendices, even a PD describing
the procedure for issuing new PDs.

Under the Civil Procedure Rules civil cases are assigned to ether the small claims track, ‘Fast
track’ or 'Mut-track.

- Small claims - claims with monetary value of less than L10,000 (or L1,000 for
personal injury claims)
- Fast Track claims with a monetary value in range of L10,000- 25,000 (or personal
injury claims from C1,000- [25,000). A 30-week trial period will be allocated with the
trial Lasting between 3 hours and 1 day. Public Funding may be available.
- Multi Track larger and more important cases with monetary value in excess of
C25,000. As the case is likely to be more complex, state funding may be available,
and the trial may take longer.

County Court

Civil Litigation is always commenced in the County Court. Examples include debt recovery,
breach of contract and personal injury claims. Depending on the value of the claim the case
will either stay at the County Court or proceed to the High Court. The County Court hears
claims worth up to E5,000 (small claims track).

People found in the County Court

- Circuit Judge /District Judge

- Barrister /Solicitor for Claimant and Defendant (advocate)
- Legal Executive (assist advocates)

High Court

There are three divisions to the High Court and each deal with particular areas:

Queen's Bench Division

This deals with contract and tort cases and appeals from certain tribunals. The Magistrates'
Court and the Crown Court. It also has a specialised Admiralty Court and Commercial Court.

- Headed by Lord Chief Justice

- Approximately 50 High Court Judges (puisne judges) in this division
- Barrister/solicitor advocate for claimant and defendant
- Legal executive (assist advocate)

Chancery Division

This deals with cases regarding trusts, property, mortgages, probate, etc. It also hears appeals
from the County Court on bankruptcy and land matters and from the Commissioners of
Inland Revenue.

- Headed by Vice-Chancellor
 - Assisted by 12 Puisne Judges
- Barrister/solicitor advocate for claimant and defendant
- Legal executive (assist advocate)

Family Division

This deals with cases regarding marriage, divorce, annulment, children and financial issues
relating to the same. It will also hear appeals from the county court and magistrates court
(when dealing with family matters).

- Headed by President (senior judge)

- Assisted by 16 Puisne Judges
- Barrister/solicitor advocate for each party
- Legal executive (assist advocate)

Magistrates' Court

Although this is a criminal court it does have jurisdiction to deal with civil matters:

1. Debt Recovery: e.g., repayment of service bills (gas, electricity, rates, etc.)
2. Family Proceedings Court: custody of children, maintenance and affiliation orders,
adoption, etc.
3. License Applications: for the sale of liquor, for entertainment, gambling, showing
films, etc.
4. Presided by Magistrates (or possibly District Judges who are paid a salary)

Learning activity 9

Go onto the Judiciary website: http://osclinks.com/4309 to find out more about the role
of the County Court.

Alternative Dispute Resolution

The traditional way to resolve a dispute has always been at trial before a judge. Alternative
Dispute Resolution is now encouraged fer several reasons:

- Complexity
- Court time
- Cost of litigation
- Public funding
- Stress to litigants
- Publicity

The Civil Procedure Rules 1998 encourage use of alternative dispute resolution and are
encompassed throughout the Civil Procedure Rules. They farm part of the overriding
objective and are encouraged throughout the pre-action protocols and reiterated at various
parts of the procedure.

There are various types of ADR:

- Negotiation: This is where there is no independent third party involved; however, it

may include the use of solicitor's letters. Parties are encouraged to discuss and
negotiate an outcome.
- Mediation: This is much tike negotiation, however in order to assist the parties, an
independent third party passes on comments to each other.
- Conciliation: As per mediation, an independent third party is involved to assist the
negotiation. The difference is that a conciliator will also give his/her suggestions.
- Arbitration: Here an arbitrator decides the outcome. The hearing is held in private,
and the decision is final and binding.
- Tribunals: There are over 130 different types with 20 or so that it regularly includes.
They deal with approximately one million cases a year outcome. A Chairman (legally
qualified) and 2 lay members (not qualified) decide the outcome.
- Ombudsmen: An ombudsman is a person who looks into complaints about
companies or organisations. The company's own complaints procedure must be
followed first. There are various types of ombudsman and some examples include:
Pensions Ombudsman, Legal Ombudsman, Property Ombudsman, Furniture
Ombudsman, etc).

Arbitration

Arbitration is where the parties agree to submit their claims to the judgement of an
independent person instead of taking a court case.

The arbitrator may be a lawyer or, alternatively, an expert in the field of the dispute. Either
way, the decision is legally binding.

Arbitration is governed by the Arbitration Act 1996 - you can use this as an introduction in
your essays.

Uses of Arbitration

- Technical matters: the arbitrator can be an expert in the field of the dispute which
saves time as they will understand the technicalities and terminology without this
having to be explained to them.
- Professional disagreements: the parties can ensure that the chosen arbitrator
understands their profession and is able to comprehend the usual practices in the area.
- Trade matters: the case can be looked at as a whole where the trade crosses national
boundaries.
- Codes of practice: some organisations have their own codes of practice which
members of the organisation must abide by. Within these codes of practice, it is often
the case that an arbitration clause is present stating that if the dispute concerns one of
their members, then the consumer has a choice of whether to use arbitration instead of
litigation e.g., Association of British Travel Agents (ABTA).
The decision of arbitrator is binding upon the parties, whereas parties must agree to a solution
in mediation. This is less expensive than litigation and the parties can choose their arbitrator,
whereas they cannot choose their judge in litigation. It is also faster than litigation in
resolving disputes and can be done at times that are more convenient to the parties, making it
less stressful than litigation. It is also held in private.

Many of you will have seen the movie, Erin Brockovich, starring Julia Roberts. In that
movie, a lawsuit was started against a utility company. In the end, the case went to arbitration
because it was quicker than going through the regular court process.

The disadvantage is that an unexpected legal point may arise in the case which is not suitable
for decision by a non-lawyer arbitrator. If a professional arbitrator is used, his fees may be
expensive. The rights of appeal are limited. Another disadvantage of private arbitration is the
lack of any setting of precedent by the arbitration award. They do not bind any person other
than the parties.

There are several reasons for using an arbitrator:

1. the legislation concerning the dispute states that arbitration must be used as an
alternative to be going to in place of litigation.
2. the parties can choose to use arbitration court see Scott v Avery (1855).
3. the parties may have entered into a legally binding contract which contains an
arbitration clause stating that if a dispute arose in the future, they would settle this
through arbitration.

Steps in Arbitration

1. Arbitrator is chosen
Choices may be stipulated by a pre-contractual term in an agreement which has given
rise to the dispute. Alternatively, if nobody is named and the parties cannot agree, the
court will decide.
2. Arbitrator will be contacted - will he act?
Before making a decision, the arbitrator would wish to see all relevant documentation.
It would also be appropriate to ask the arbitrator for an estimate of the fees involved at
this stage. If the arbitrator refuses to act, the court can appoint someone else.
3. Arbitrator is appointed.
Once the arbitrator can confirm the appointment, they cannot change their mind. If
either party or the arbitrator wishes to change the arbitrator, they must seek an order
from the court.
4. Arbitrator calls a preliminary meeting.
A preliminary meeting will be held at arbitrator's request. This may be a joint session
with everyone present or may be conducted by telephone conference. It gives the
arbitrator the opportunity to give directions to the parties stipulating how they should
prepare for the case.
5. Further meetings.
These are used to tidy up any outstanding queries or points.
6. Hearing takes place.
Although ADR is designed to be more informal, some arbitrators decide to hold the
hearing itself in a very similar manner to civil court proceedings with the normal court
 rules of evidence applying (e.g., witness evidence Sworn on oath, legal representation,
etc.)
7. Arbitrator makes an award.
Since the matter is likely to be complex (hence the arbitrator is an expert in the field
of the dispute), it is unusual to make an award at the hearing. The arbitrator will
therefore reserve the award until he/she has had time to study all of the facts before
making a decision. There is also the power to make an award for costs which can be
assessed by the arbitrator or the court.
The award could be:
• Specific Performance - ordering the losing party to do something.
• Damages - compensation.
8. Is there a right of appeal?
You can only appeal to the High Court on a point of law.
9. Enforcing the award.
This is done through the High Court.

Tribunals

As a result of the Leggatt Report 2000 tribunals went under review and reform. Previously,
each tribunal had their own separate jurisdiction and procedures. The report outlined that
tribunals should be more like the court system and encouraged there to be a set structure. As a
consequence, the Tribunals, Courts and Enforcement Act 2007 (TCEA) has brought about a
fundamental change to the structure of tribunals, creating a system that is analogous to the
court structure. There are now two new tribunals: and generic rules of procedure and a system
for appeals. These are under the Senior President.

There are two tiers to the tribunal structure. The First Tier Tribunal and the Upper Tribunal.
The Upper Tribunal can hear appeals from the First Tier and is also able to hear judicial
review cases.

1.4.2 The Criminal Court and Lay People

Learning outcomes

- Basic understanding of the criminal process including the classification of offences,

and the appeal system.
- Criminal court powers and sentencing of adult offenders.
- The role of lay people: the role and powers of magistrates in criminal courts and the
role of juries in criminal courts.
- The advantages and disadvantages of using juries in criminal courts.

The Magistrates Court

There are three main functions of this court:

1. Court of Summary Jurisdiction: criminal offences are categorised into three levels
of seriousness: summary, either-way and indictable. The Magistrates' court is
responsible for hearing those which are summary (least serious) and some either-way
offences. Examples include road traffic offences, theft, criminal damage, assault etc.
 2. Court of Transfer and Preliminary Hearing: all criminal cases commence in the
Magistrates' court. However, those which are more serious (some either-way and all
indictable offences) will be committed to the Crown Court for trial. The Magistrates'
Court still concludes around 90% of all Criminal Cases.
3. Youth Court: offenders between the age of 10 and 17 will be tried by this court on
all criminal charges save for homicide. As it deals with minors the cases are heard in
private in a place where other sittings of the court have not taken place and will not do
so within one hour of the hearing.

People found in the Magistrates' Court:

- Bench of Lay Magistrates/Justices of the Peace (sit in 3s): voluntary work - only paid
expenses, Have only basic legal training.
- Clerk of the Court (guides bench on points of law)
- Solicitors/Barristers for the Prosecution and Defendant (advocates)
- Legal Executive (assists advocate)

ALL cases start in the Magistrates Court.

A defendant will attend court either on bail (by summons or charged and granted bail from
the police station), on a date arranged or within 24 hours of charge from the police station if
bail is refused from the police station.

The first hearing at the Magistrates Court will take a different format depending on the
offence(s) charged.

Indictable Only Offences

This type of case (e.g., robbery, murder, conspiracy, burglary with violence) will have one
appearance in the Magistrates Court and then will be transferred straight to the Crown Court.
The essential purpose of the Magistrates Court hearing will be any bail application and to get
the case "in the system'.

Either Way Offences

These cases (e.g., theft) will start in the Magistrates Court. On the first appearance the
procedure known as 'mode of trial' will take place.

The Defendant can enter a guilty plea but will be informed that the Magistrates may decline
jurisdiction to sentence and could commit the case to the Crown Court for sentencing.

The Defendant will further be informed that if a not guilty plea is entered, having heard
representations from the Prosecution (and Defence) the Magistrates may decline jurisdiction
to hear the trial and send the case to the Crown Court for trial.

On a not guilty plea whether or not the Magistrates accept jurisdiction the Defendant has the
right to elect a Crown Court trial.

If the plea is guilty the Magistrates may proceed to sentence or commit the case to the Crown
Court for sentence.
If the plea is not guilty and the Defendant elects a trial in the Magistrates Court a trial date
will be set, and the matter adjourned. If a Crown Court trial is elected the matter will be
adjourned for a committal hearing. At this hearing the case will be sent to the Crown Court
provided there is a 'case to answer’.

Bail applications may still be important for an either-way offence.

Summary Only Offences

These are offences which can only be tried in the Magistrates Court e.g., drunk and
disorderly, most driving offences, minor public order offences and harassment.

On the first appearance if the plea is not guilty the matter will be adjourned for trial. At
the conclusion of the trial or following a guilty plea the Magistrates will move to pass
sentence.

The Youth Court

Youth Court is a different jurisdiction. Offences will remain in the Youth Court if the
defendant is under 18 unless they are Grave Crimes - punishable by 14 years or more in
the case of an adult. The Youth Court can decline jurisdiction for a Grave Crime.

N.B. if a youth is charged jointly with an adult the case commences in the Magistrates
Court in the usual way. The adult will determine jurisdiction throughout the trial process
until sentencing when the Case may or may not be remitted to the Youth Court.

The Crown Court

The Courts Act 1971 established this court. It hears either-way and indictable criminal
offences. Should a person who is aggrieved by a decision made in the Magistrates' Court
wish to appeal they will do so to this court. This may be conviction itself or the sentence
imposed.

Crown Courts are categorised into numbered tiers:

1. Found in major cities - High Court Judge (e.g., Old Bailey)

2. Found in cities - High Court Judge
3. Less serious indictable offences - Circuit Judge/Recorder

The Crown Court has four main functions:

1. Bail decisions/appeals.

2. Committals for sentence

• Judge sitting alone.
• Determine sentence with Crown Court powers

3. Appeals against conviction and/or sentence from the Magistrates Court

• Judge sitting with two Magistrates.
 • Re-hearing.
• Can re-sentence only to maximum of Magistrates Court powers.

4. Trial of indictable only or either-way offences (where trial elected, or Magistrates

decline jurisdiction)
• Judge sitting with a Jury (note new provisions CJA 2003 for trial by judge alone where
Defendant elects or in case where jury likely to be intimidated).
• N.B. a Defendant may entera guilty plea at the Crown Court and that court will then
move to sentence.
• At the conclusion of a trial the Crown Court will sentence.

People found in the Crown Court

• High Court Judge tries most serious (e.g., murder)

• Circuit Judge also hears serious offences (e.g., murder, rape)

• Recorder hears less serious offences (e.g., burglary, theft, assault, etc)

• Jury (12 members of public selected at random)

• Barristers (Counsel)/Solicitor Advocate for the Prosecution and Defendant

• Solicitor/Legal Executive (assists advocate)

The High Court

The criminal function of the High Court is limited to dealing with appeals from the
Magistrates Court 'by way of case stated' (i.e., that the Magistrates got the law not the facts
wrong). In rare cases this may also apply to Crown Court cases (e.g., sentence in excess of
power) and applications for judicial review (can be from any lower court i.e., Magistrates
Court, Crown Court or Youth Court). Judicial review in essence concerns procedure (e.g.,
jurisdiction decisions).

The High Court did have a very important function as an appeal court for a refusal of bail, but
this has recently been removed except in exceptional cases. Habeas Corpus remains.

A writ of habeas corpus directs a person, usually a prison warden, to produce the prisoner and
justify the prisoner's detention. If the prisoner argues successfully that the incarceration is in
violation of a constitutional right, the court may order the prisoner's release.

An appeal from the High Court goes straight to the Supreme Court.

The Court of Appeal

The Court of Appeal (Criminal Division) will hear and determine appeals from Crown Court.

This includes indictable offences heard at the Crown Court and other offences heard at the
Magistrates' Court but sentenced at the Crown Court. The Court can either quash the decision
(change it), vary the sentence, or order a new trial.
With regard to appeals against conviction, the test is whether the conviction is unsafe. An
appeal against conviction is NOT on the facts. It must be on a legal basis i.e., the Judge got
the law wrong or applied the law incorrectly, or in the case fresh evidence (still part of the
'unsafe' test).

Appeals against sentence - the test applied is whether the sentence manifestly excessive or
wrong in principle in all of the circumstances.

The Supreme Court

The appellate duty of the Supreme Court is to determine appeals from the Court of Appeal
i.e., that the Court of Appeal got the law wrong!

European Court of Human Rights

By virtue of the European Convention on Human Rights (ECHR) the European Court of
Human Rights provides a further dimension to the criminal justice system. Once is granted
(only after domestic remedies are exhausted) the court will hear an appeal and judge in
accordance with law and convention of the ECHR.

Criminal Cases Review Commission

This body was established after well-publicised miscarriage cases from 1980s by
recommendation of the 1991 Runciman Roval Commission on Criminal Justice. It can refer a
case back for trial and can look at facts as well as law. It can order a new
investigation/conduct own investigations e.g., Range Rover murders.

Jury

Jurors are chosen at random from the electoral roll to serve on a jury - their job is to decide
the outcome of a trial.

A jury is always made up of 12 people selected at random from the electoral roll.

If summoned, you are legally required to serve on a jury unless you are ineligible for, or
disqualified from, jury service.

The Jury Summons tells you which court you have been summoned to attend and the date and
time on which your service will begin. It also provides contact details for the Jury Central
Summoning Bureau, where you may direct any queries, you have about jury service at that
point. The remainder of the form constitutes your reply to the Jury Summons and allows you
to give the Jury Central Summoning Bureau additional information about yourself. You must
reply to the Jury Summons within 7 days of receipt.

If you have confirmed that you are able to serve at the time you have been summoned, you
will receive details of how to get to the court and what to expect once you're there.

If you apply to have your jury service deferred or to be excused from jury service, you will
receive confirmation of whether your application has been granted.
More than 12 people may be taken into court. This is to show that the requirement for the 12
jury members to be selected at random has been fulfilled. It also ensures that sufficient jurors
are there in case any challenges are made by the defence or prosecution. When a case is
expected to go on for more than two weeks, a larger group of people will be taken up to
court, as there will be some people who will be unable to serve on the jury for that long.

Sentencing

Before sentencing takes place, the judge will take various matters into consideration. For
example:

- Conviction
- Antecedents
- Reports (if required)
- Plea in mitigation
- Sentence

The Defendant may assist the police by helping them solve other offences on the basis
that he /she will not be charged for them. A schedule is prepared by police will go to the
court after conviction. The advantage is that they would not be charged in the future and
in practice their sentence would not be greatly increased as saved time and expense.

The court can defer for up to 6 months on request of accused. They must show a good
reason, e.g.,:

- Starting rehabilitation
- Starting responsible job
- Both of which can show he has reformed

If a Defendant pleads guilty at the start of the court proceedings this will save time and
money and the court may consider a 'discounted' sentence. This will depend on time and
circumstances of the guilty plea.

There are various types of sentence:

- Absolute discharge
- Conditional discharge
- Financial penalties (fines)
- Community sentences
- Community orders
- Custodial sentences (imprisonment)
- Other sentences
- Ancillary orders
- Custody plans and intermittent custody

The Sentencing Guidelines Council was established by Criminal Justice Act 2003 and advises
courts on sentencing. The Council has produced a short video which gives the basics on what
kinds of sentences there are and how judges and magistrates decide what sentence to give:
http://osclinks.com/4310
 Learning activities 10

1. Watch the film: 12 Angry Men: http://osclinks.com/4311 to look at some of the

problems that may happen in a jury trial.
2. Watch the jury deliberations in Channel 4's The Trial: a murder in the family (a
real jury/a fictional case): http://osclinks.com/4312
3. Use the following Magistrates Association website: http://osclinks.com/4313 to
see how you apply to become a magistrate and how they are appointed, selected
and the role they play.
4. Go onto: http://losclinks.com/4314 and complete the sentencing activity.

1.4.3 Legal Personnel and the Judiciary

Learning outcomes

- Basic understanding of the different roles of barristers, solicitors and legal

executives.
- Basic understanding of the regulation of legal personnel.
- The judiciary: types of judges.
- The role of judges in civil and criminal courts.
- The independence of the judiciary: security of tenure, immunity from suit,
independence from the Executive.
- Reasons for and advantages of judicial independence and the methods by which it
is achieved.

Solicitors

The governing body of solicitor is the Law Society which supervises training and discipline
of solicitors and represents the profession.

Solicitors carry out various types of work including advocacy in the lower courts
(magistrates' court and county court) with limited rights of audience in the Crown Court and
High Court. Most solicitors provide general advice and do 'paperwork, e.g., writing letters,
drafting contracts and tenancies, conveyancing, wills, divorce petitions. Solicitors can form
partnerships with other solicitors and work in ordinary offices all over England and Wales.
There are approximately 170,000 solicitors.

Clients can approach a solicitor directly and a solicitor decides whether or not to take the
case.

In order to qualify as a solicitor, you must first complete a Law degree or any degree and a
Diploma in Law (previously, CPE). This is then followed by the Legal Practice Course (one-
year full time or z years part time). Trainee solicitors must then secure a Training Contract
(two years paid at the Law Society minimum: E19,122 outside London; E21,561 in inner
London). A Professional Skills Course (twenty days and includes an advocacy module) must
be undertaken, Once qualified your name is then added to roll of solicitors. Solicitors must
undertake a minimum amount of Continuing Professional Development per year.
Dissatisfied complainants can go to the Solicitors Regulation Authority or the Legal
Services Ombudsman.

Solicitors can be sued for negligence and can also be suspended from practice or struck
off by the Solicitors' Disciplinary Tribunal.

The Law Society now has greater powers to inspect solicitors' files and accounts under
the Access to Justice Act 1999, sched.7

Barristers

Barristers are governed by the Bar Council which supervises training and discipline of
barristers and represents the profession.

Barristers are advocates in the superior courts (Crown Court, High Court, Court of
Appeal and House of Lords) as well as rights of audience in the lower courts but also deal
with some paperwork including drafting legal documents and providing written opinion.

Barristers are self-employed who work in chambers shared with other Barristers. They are
managed by a Clerk and more than two thirds are based in London. Barristers are not
permitted to form partnerships. There are approximately 16,500 practising barristers.

Contact is usually engaged by a solicitor on behalf of client as they work on the 'cab rank'
rule. The current guidance can be located at: http://osclinks.com/4315

To qualify as a barrister there are 4 main stages you must complete:

1. Academic Stage
Undergraduate degree in law, or undergraduate degree in any other subject at the
minimum of a 2ii. If you choose the route of an undergraduate degree in a subject
other than Law, you must take a Diploma in Law (previously, CPE).
2. Vocational Stage
You must join one of the four Inns before you commence this stage of training. The
Bar Vocational Course, one-year full time or two years part time. Once you have
successfully completed the BVC you will be Called to the Bar by your Inn. However,
from 2008, Call will not take place until you have completed pupillage. You will also
have to undertake 12 qualifying sessions (previously known as "dining") before Call
to the Bar. See the BVC section for full information on the BVC, Inns and qualifying
sessions.
3. Pupillage
One year spent in an authorised pupillage training organisation (either barristers'
chambers or another approved legal environment). See the Pupillage section for full
information.
4. CPD
Continuing professional development. Barristers are now subject to certain
requirements in order to keep their practising certificates. CPD is usually in the form
of courses or lectures. See the CPD section for full information.

Promotion to the judiciary has always been possible to all levels.

In 1969 following the case of Rondel v Worsley (1969) barristers were not able to be sued for
negligence. However, it was later decided that they could be sued for work outside court
following the case of Saif Ali v Sydney Mitchell & Co (1978). In the case of Arthur Hall &
Cov Simons (July 2000) the House of Lords decided that Barristers can now be sued for
negligence.

Complaints were made to the Bar Council until a lay Complaints Commissioner appointed in
1997. Complaints Commissioner can refer complaints to a Complaints Committee who can
require barristers to reduce, refund or waive fees and order compensation of up to £2,000
(although work in court was not covered because of immunity from being sued in
negligence).

The Legal Services Ombudsman deal with complainants who are dissatisfied with the service
they receive. They will investigate and will make recommendations to the Complaints
Commissioner who will reconsider the complaint, and/or order compensation to be paid.
Under the Access to Justice Act 1999, s49, the LSO can now order that the barrister or Bar
Council pay compensation to the client.

Barristers can be disciplined and even disbarred by the Senate of the Inns of Court for failing
to maintain the standards of the Code of Conduct.

Legal Executives

Legal Executives are qualified lawyers specialising in a particular area of law. They are
governed by the Chartered Institute of Legal Executives.

They will have passed the CILEX Professional Qualification in Law in an area of legal
practice to the same level as that required of solicitors. They will have at least five years'
experience of working under the supervision of a solicitor in legal practice or the legal
department of a private company or local/national government.

Fellows are issued with an annual practising certificate, and only Fellows of ILEX may
describe themselves as 'Legal Executives'.

Legal Executives specialise in a particular area of law and their day-to-day work is similar to
that of a solicitor. They:

- handle various legal aspects of a property transfer

- assist in the formation of a company,
- may be involved in actions in the High Court or county courts, draft wills,
- advise clients accused of serious or petty crime or families with matrimonial
problems
- deal with many other matters affecting people in their domestic and business
affairs

Legal Executives are fee earners - in private practice their work is charged directly to clients -
making a direct contribution to the income of a law firm. This is an important difference
between Legal Executives and other types of legal support staff who tend to handle work of a
more routine nature. (Slapper, 2016)

CILEX have a promotional video which can be viewed at: http://osclinks.com/4316

Judges

Since 3rd April 2006, judges have been selected by the independent Judicial Appointments
Commission (JAC).

This means that JAC recommends candidates for all judicial offices (listed in Schedule 14 to
the Constitutional Reform Act 2005) and applies to effectively all judges up to and including
Appeal Court Judges and Heads of Divisions. It does not apply to Law Lords or Magistrates
(for the time being, they will select magistrates in the future).

The JAC is responsible for running selection exercises for posts up to and including the High
Court. It is also asked to convene panels that recommend candidates for appointment to other
senior posts such as:

- Lord Chief Justice

- Heads of Division
- Senior President of Tribunals
- Lords Justices of Appeal

(Judicial Appointment Commission, 2018)

Lord Chancellor

The Lord Chancellor has occupied an important place in the English legal system, for better
or worse, for nearly a thousand years. In the Middle Ages, the Chancellor was a sort of chief
administrator to the King. Eventually he came to occupy a judicial role, hearing cases on
behalf of the King.

These days the Lord Chancellor has three distinct governmental roles, much to the annoyance
of those who favour a strict separation of powers - see below. He

1. is a member of the Cabinet:

2. is a judge and a selector of judges; and sits in the legislature in the House of Lords.

In England and Wales, the judiciary comprises in order of increasing seniority:

Magistrate

Magistrates serve as justices in magistrates' court. Two groups are recognised: Justices of the
Peace, and District Judges (formally called 'stipendiary magistrates').

Justices of the Peace are lay people of good character who serve on the Bench without
payment (although they may be able to claim expenses). They are appointed by the Lord
Chancellor.
District Judges - formally called 'stipendiary magistrates'- are legal professionals including
barristers or solicitors of at least 7 years' standing. They carry out similar work to JPs. Apart
from the fact that they are paid, they differ from JPs in that they are empowered to sit alone
on cases that would require two JPs. Most District Judges sit in London.

Circuit Judge

Historically, judges were sent out by the King to attend various regional hearings, and then
returned to discuss cases with their colleagues. This is the origin of the term 'circuit', This
term is still used to denote a number of court centres served by a specific judge. A 'circuit
judge' is one that serves in the Crown Court and county courts. Those eligible for
appointment are barristers of 7 years’ standing or Recorders of 5 years’ standing. Circuit
judges usually retire at 72 years of age but may work until 75.

There are currently six circuits in England and Wales, centred on London, Birmingham,
Leeds, Cardiff, Bristol, and Manchester

Recorder

A 'Dart time' judge of the Crown Court. A Solicitor or Barrister is eligible for appointment as
a Recorder after 10 years in practice.

High Court Judge

Judges of the High Court, also called "’puisne’" judges, are officially appointed by the
Monarch on the recommendation of the Lord Chancellor. Barristers of 10 years' service are
eligible for appointment.

District Judge

This term is used to unify two categories of legal professional, both of which require similar
qualifications and experience of the post-holder. These are what used to be known as a
"'stipendiary Magistrate", and a Registrar of the court. Where the distinction is significant, it
is conventional to write "’District Judge (Magistrates’ Court)’" for the former.

Lord Chief Justice

Head of the Queen's Bench Division of the High Court and of the Criminal Division of the
Court of Appeal.

Master of the Rolls

Head of the Civil Division of the Court of Appeal. The Master of the Rolls is also in charge
of enrolling solicitors, hence the title.

Master of the Supreme Court

The Masters of the Supreme Court deal with matters in the Chancery and Queen's Bench
Divisions of the High Court. Masters of the Queen's Bench division are typically, barristers,
while those of the Chancery Division are usually solicitors. In both cases, they must be
lawyers of at least 10 years' service. There are also "Taxing Masters'" who deal with issues
relating to the charging and collection of Court costs.

Lord Justice of Appeal

A judge of the Court of Appeal.

Law Lord

The 'law lords' (technically Lords of Appeal in Ordinary) are the senior judges that sit in the
Supreme Court and act as the ultimate appeal authority for the UK courts.

Separation of Powers

The concept of “'separation of powers’" is that in good government, those who make the law
should differ from those who administer the effects of governmental decisions, who should
also differ from those who administer the law. Accordingly, there could be no one person
exerting an influence which would favour the Government more than it would the people.

Government in this country is divided into three units.

1. The Legislature who make the laws under which the country should be run – i.e. the
two Houses of Parliament including the political parties (Government and
Opposition);
2. The Executive - e.g. the different Ministries and the Civil Service) responsible for
running the country and putting into effect the decisions of the Government, and
3. The Judiciary responsible for administering and enforcing the Law.

1.4.4 Access to Justice and Funding

Learning outcomes

- Basic understanding of alternative sources of legal advice: help lines, Citizens

Advice Bureau (CAB), law centres and trade unions.
- Private funding: own resources, insurance, and conditional fee agreements.
- Basic understanding of public funding: criminal and civil state funding.

There are various places where legal advice can be obtained.

Legal advice can be expensive, however there are various places where free legal advice can
be obtained including:

- Citizen's Advice Bureaux

- Local authority (e.g., environmental health officer/trading standards officer)
 - Churches
- Charities
- Consumer advice centre
- Housing advice centre
- Local solicitors may offer free consultations/surgery
- Community Legal Service Website
- Law Centres
- Claims Management Companies
- Other agencies such as the AA/RAC, trade unions, charities and insurance

Citizens' Advice Bureaux

Members of the public can obtain free legal advice in these centres. They are staffed by
volunteers (often law graduates, but also qualified solicitors). Although the main advice
focuses on social welfare problems and debts, they also assist with some legal matters. If they
are not able to assist, they will direct the customer to a list of solicitors who do government
funded legal work.

Law Centres

These also offer free legal advice, mainly in housing, welfare, employment and
discrimination. Although predominately advice is given, they are also able to offer
representation although this is limited. Law Centres rely heavily on funding and
unfortunately, some have been forced to close.

Claims Management Companies

You may have seen these advertised largely on television. They are litigation services who
specialise in personal injury cases and Pl claims from banks. The service is not free; however,
they largely operate using Conditional Fee Agreements so that there is no upfront cost to the
client.

Trade Unions

Trade unions are where a group of employees get together to ensure they have the best
working conditions. This may include wages, health and safety, benefits, etc. The TUC
represents 48 different unions. Further information can be found on their website:
http://osclinks.com/4317

Private Funding

Solicitors charge an hourly rate, however, can offer fixed fees. In addition to the solicitor's
charges disbursements are often incurred such as court fees, conveyancing searches and
experts' fees.

When dealing with a case on an hourly rate, a solicitor will time-record all work Undertaken.
Most firms use units, and one unit equals 6 minutes. The file is then costed at the end of the
case (sometimes by specialist costs draftsmen) and a bill sent to the client.
Under the Solicitors Regulation Authority Handbook, Chapter 1 states that a client care letter
must be sent to the client at the outset of the matter confirming instructions, costs, the
timescales, etc.

As legal advice can be expensive, some firms offer Conditional Fee Agreements.

Conditional fee agreements are agreements between a client and lawyer which mean that the
client pays the solicitor less (or nothing, depending on what is agreed) if you lose a case, but
a full fee (usually with a ""success fee'" or ""uplift'": again, subject to agreement) if you win.

They are sometimes called ""no-win, no-fee'" agreements.

CFAS are a similar concept to ""contingency fees" used in other jurisdictions such as the
USA. Those however involve taking a slice of the damages if one is Successful. They are not
presently used in the UK and in any event would not normally apply in public law work
because damages are not usually recovered in such cases.

If you win, you can usually recover most of your costs from the other side. including the
uplift and insurance you may have taken out to cover the costs in the event of losing.

Conditional fees are therefore more attractive than they used to be for both clients and
lawyers.

Conditional fee agreements must be in writing and the agreement must deal with various
specific points, as laid down in regulations.

A potentially difficult issue is how to decide what"'success" means. Wrestling with this has
caused some agreements that lawyers have produced to be almost incomprehensible.

One of the problems is when it comes to the expenses of third parties which do not come
under the CFA with the solicitor. For example, Counsel and Experts may need to be
instructed throughout the process. Although it is not common, these third parties are also able
to work on a conditional basis.

CFAS were originally introduced by s58 Courts and Legal Services Act 1990 as amended by
s27 Administration of Justice Act 1999.

s58 states that the CFA must:

- be in writing
- not relate to criminal or family work
- not have a success fee or more than 100% of the winnings

The rules/regulations which a solicitor must abide by depend on when the CFA was entered
into. If it was before 1 November 2005, it will be regulated by the Conditional Agreements
Regulations 2000. After 1 November 2005 they follow the Solicitors Costs Information and
Client Care Code.

The new regime for conditional fee agreements and collective conditional fee agreements
began on 1 November 2005. On that date the current Conditional Fee Agreements
Regulations 2000 and the Collective Conditional Fee Agreements Regulations 2000 were
revoked and primary responsibility for client care, contractual and guidance matters fell
under the Law Society's Solicitors' Costs Information and Client Care Code 1999 (""the
Code"").

The mandatory requirements in section 58 of the Courts and Legal Services Act 1990 (as
amended by section 27 of the Access to Justice Act 1999) remain. Agreements still have to be
in writing, not relate to criminal or family proceedings, and in the case of a success fee, must
specify the percentage increase, which must not exceed that specified by the Lord Chancellor
(currently set at 100%).

If section 58 requirements are not met then the agreement is unenforceable, and by virtue of
the indemnity principle, the losing party is not liable for the winning party's costs.

For the most part the Law Society requirements in the Code simply repeat the existing
regulations as to the information about costs which must be given to clients. There is one
amendment to the Code, and this will come into force at the same time as the regulations are
revoked.

The amendment provides that where clients are represented under a CFA or CCFA the
solicitor should explain:

- the circumstances in which the client may be liable for their own costs and for the
other party's costs.
- the client's right to assessment of costs, wherever the solicitor intends seek payment
of any or all of their costs from the client; and
- any interest a solicitor may have in recommending a particular policy or other
funding.

Criminal Public Funding

The Legal Services Commission look after legal aid in England and Wales.

The old system of criminal legal aid was replaced in April 2001 with the Criminal Defence
Service. The aim is to ensure that people suspected or accused of a crime have access to
advice, assistance, and representation in order to ensure the interests of justice.

The Criminal Defence Service Act 2006 (c 9) is an Act of the Parliament of the United
Kingdom. It makes provision about legal representation funded as part of the Criminal
Defence Service. They are also responsible for ensuring that people get the information,
advice and legal help they need to deal with a wide range of everyday problems.

In order to obtain funding, the applicant must satisfy a means and/or merits test:

Means test: Judged on the financial status and capital of the applicant

Merits test: Judged on the ‘interests of justice’

There are various types of assistance:

Duty Solicitor: Police Station

Free service which everyone is entitled to no matter how wealthy the suspect is. No
means/merits test is required. Solicitors work on a rota system to participate in scheme.

Duty Solicitor: Magistrates' Court

A solicitor is always present in the court to deal with situations where the defendant appears
in court unrepresented. The first court appearance is free, and no contribution will be
required. No means/merits tests are required for this first appearance.

Advice and Assistance

Help and advice is given from a solicitor who may write letters, make phone calls, etc. This is
Means tested - partner's capital and income may also be included in the assessment.

Advocacy Assistance

This covers initial cost of solicitor appearing in both the Magistrates' and Crown Court. There
is no means test, however the solicitor carries out merits test and decides if case warrants
such assistance. No contribution is payable by the client

Further information on the means testing can be viewed at http://osclinks.com/4318

Civil Public Funding

Civil: Through the Community Legal Service (CLS) they help people who are eligible for
legal aid to protect their rights. Only certain types of matters are eligible for CLS funding and
the firms who offer the same must hold a Contract. Personal injury is not covered, however
examples of areas of law which can be dealt with under the contract include family (divorce,
domestic violence, benefits, etc), employment, mental health and community care. Those
with a Contract come under a network of Quality Marked Solicitors and funding is also given
to the Citizens Advice Bureau and other advice providers.

The General Civil Contract (Solicitors) was introduced on 1 January 2000 and provides the
mechanism for the provision of publicly funded civil legal services through solicitors' offices.
The 2018 Standard Civil Contract governs the provision of face-to-face legal aid services in
all civil categories. The contract is under the Access to Justice Act 1999. The contract covers
only civil work. Contract work may comprise either Controlled Work or Licensed Work or
both.

In order to qualify for civil legal aid, the client must meet the means testing criteria. The
means test is set out within Civil Legal Aid (Financial Resources and Payment for Services)
Regulations 2013. (Gov UK, 2018)

There are various levels of assistance including:

Legal Help
This covers cost of preparation work only including letters, phone calls, meetings, etc. It does
not cover going to court. This is means tested.

Help at Court

This is the same as Legal Help but in addition covers costs of appearing in court, without
formally acting in whole of proceedings.

Legal Representation

This covers all work needed to take legal proceedings to trial and beyond, It is means tested
and a contribution may be payable by client. The statutory charge (see below) may apply.

Family Mediation

This covers the use of mediation to attempt to resolve a family dispute by way of a mediator.

Family Help (Lower)

This provides a fixed fee for work carried out before proceedings take place. There must be a
'significant family dispute' which means that it Is very likely that the dispute will end with
proceedings being issued.

Family Help (Higher)

This is on an hourly rate and used when proceedings are absolutely necessary as all other
attempts to resolve the dispute have been exhausted.

Statutory Charge

If money or property is gained in a civil case, a repayment of some of all legal costs may
have to be paid out of that property. As the asset is tied up in the house, a Charge is put
against the deeds in favour of the Legal Services Commission so that they can be paid back at
a later date when the house is sold.
Unit 2 Criminal Law

2.1 The Rules of Criminal Laws

Learning outcomes
- Rules and principles concerning general elements of criminal liability and liability for
offences against the person, property offences and attempt.

'Crime' is a difficult concept to define. Some actions would be viewed as 'criminal' by everyone.
Other activities may be considered to be 'criminal' by the majority of people, but not everyone. A lot
of the crimes that you will have heard of are crimes against people and property. There is, however,
a vast array of crimes relating to public safety, driving, and being an 'accessory' to a crime, i.e.
helping someone to commit a crime. There is also a category of offences known as "white collar'
crime, where, for example, a businessman employed by a company abuses his position to make
money.

This is law governed by the State which regulates or prohibits the way we can behave. If our
behaviour is against what the law says, we will be punished by the state. Some behaviour is
obviously bad; for example, murder, manslaughter, rape, theft, robbery, criminal damage, etc. Other
behaviour is not necessarily bad, however exists to ensure that society can operate smoothly and
efficiently; for example, public health, health and safety at work, pollution, consumer affairs, etc.

Actus non facit reum nisi mens sit rea

This translates to: "an act does not make a person guilty unless the mind is legally blameworthy".

Depending on the definition of the crime in question, the actus reus may be:

- a particular act
- a failure to act
- an act producing a particular result, or a particular state of affairs
- or some combination of these.

The mens rea of an offence is the state of mind required to accompany the actus reus. Depending on
the offence, this may be:

- intention (to do or not to do an act or achieve a result)

- knowledge (of relevant circumstances),
- recklessness (as to a result or circumstances),
- mere carelessness
- or some combination of these.
- in strict liability offences, it may not be necessary to prove any mens rea at all.

2.2 Theory in Criminal Law

 Learning outcomes
- Harm as the basis for criminalising cone conduct.
- Autonomy, fault and individual responsibility.
- Principles in formulating rules of criminal law:
• fair labelling
• correspondence
• maximum certainty
• no retrospective liability.

In module 1 we explored various theorists and their reasoning behind why we have laws. One in
particular was John Stuart Mill, a British philosopher, who stated that the only actions that can be
prevented are ones that create harm. This suggests that harm to others is the only justifiable basis
for imposing criminal liability.

However, Joel Feinberg in The Moral Limits of the Criminal Law (1984-88) disagrees with this and
stated that the view that behaviour, which is not harmful, but which is offensive (to a sufficiently
high standard) could justifiably be criminalised. An experiment he considered included how far an
offensive behaviour should go for passengers travelling on a bus by a fellow passenger before the
criminal law should be invoked.

Patrick Delvin endorsed legal moralism in his book, The Enforcement of Morals (1965) and
considered that morally wrong conduct should also be criminalised.

It could be argued that generally the criminal law system is based on proving fault, and this largely
coincides with the mens rea of a crime which is set out later in this module. However, there are
some crimes which do not require intent, and these are known as strict liability crimes. This is where
the action alone (actus reus) is sufficient to prove guilt. This may seem harsh; however, these laws
are generally there to protect us, e.g., speeding.

Although the majority of the criminal law system is based on fault-based liability, an accused is
'innocent until proven guilty'. The level of fault in each crime is defined by its mens rea, For example,
in murder the mens rea is malice aforethought (intent to kill or cause GBH) which is a direct
intention, whereas for assault, recklessness, defined in Cunningham as a 'reasonably foreseeable
consequence of the defendant's actions' would suffice. In both crimes, there is a level of fault and
intention, however one is higher than the other.

When someone is convicted of an offence it is important that the description of the crime resembles
their wrongdoing. For example, for someone to be convicted with rape (and labelled with the term
'rapist') sexual intercourse would need to have taken place. If the accused had conducted other
inappropriate behaviour such as a slap on the bum to a work colleague, this would not be
considered 'rape'.

Labelling is important for various reasons:

- The sentence/punishment should fit the crime

- Offenders should be punished in proportion to their wrongdoings i.e., what crime has
been committed and to ensure fairness to the wrongdoer.
- Communication to the public, the offender and other agencies within the criminal justice
system
- Fairness to the victim
If the offence is defined in terms of certain consequences and certain circumstances, the mental
element ought to correspond with that by referring to the consequences or circumstances. If a
mental element as to a lesser consequence were acceptable, this would amount to 'constructive
liability' (Ashworth and Campbell, 1991).

The principle holds that where the actus reus and mens rea do not correspond the liability of the
accused should not exceed the harm actually encompassed by his own mens rea. The major problem
is the risk of unfair labelling, e.g., manslaughter. Using the correspondence principle, the accused
would be guilty of homicide, In constructive act manslaughter the mens rea is not to cause death but
instead is the intention for the unlawful act, yet the accused is still found guilty of homicide.

In order to be found guilty, the judge (and/or jury) must have no reasonable doubt that the accused
did not commit the crime. In civil law, the standard of liability is much less being a balance of
probabilities (i.e., more certain than not).

A person can also only be guilty of an offence where the crime existed at the time the
action/behaviour occurred. For example, it was legal to smoke inside public areas until the 1 July
2007. A person could be convicted for smoking inside a public area after this date but could not be
accused or found guilty of this crime had they been caught on CCTV smoking inside a public building
on the 1 June 2007 as this was before it was illegal to do so.

Learning activity 1
Explore the concept of fault by going onto: http://osclinks.com/4314 and completing the activity.

2.3 General Elements of Liability

Learning outcomes
- Actus reus:
• conduct; acts and omissions and state of affairs
• voluntariness and involuntariness
• causation
• consequences.
- Additional fault elements:
• mens rea; intention and subjective recklessness
• negligence
• transferred malice. See Gnango (2011)
https://www.lawteacher.net/cases/r-v-gnango.php
- No fault: strict liability.
- Coincidence of actus reus and mens rea.

Actus Reus

This is the Latin phrase for the ""guilty act" which must be proved in a criminal case.

Each crime must be looked at individually to see what must be proved to establish its actus reus.

Examples:

- Burglary: the actus reus is an act of entering a guilty plea (or part of it) as a trespasser
- Criminal damage: the actus reus is any act which has the consequence of destroying or
damaging property belonging to another
Result Crimes

This is where the actus reus requires a certain consequence. For example, the actus reus of murder
(e.g., stabbing) must result in the death of the victim.

By Omission

The general rule is that there can be no liability for failing to act, unless at the time of the failure to
act the defendant was under a legal duty to take positive action.

Examples of crimes resulting from an omission are failure to disclose documents to the police or
failure to provide a breath specimen.

Stone v Dobinson [1977]: http://osclinks.com/4320

By an "event" or "’state of affairs’"

This is where, for example, the offence requires "’possession’" of some prohibited article e.g.,
weapons, drugs or control of something, e.g., sleeping in car whilst under influence of alcohol.

Winzar v Chief Constable of Kent [1983]

The police removed the defendant from a hospital and put him on the highway. They then
immediately arrested him for being drunk on the highway!

Theory of Causation

Where the definition of an actus reus requires the occurrence of certain consequences, the
prosecution must prove that it was the defendant's conduct which caused those consequences to
occur.

For example, in murder the prosecution must prove that the victim died.

Various legal rules are considered:

1. The accused's action must at least be a factual cause of death

Example case: Rv White [1910]: http://losclinks.com/4321
2. The accused's conduct need not be the sole cause of death:
Example case R v Pagett [1983]: http://osclinks.com/4322
3. The contributory negligence of the victim is no defence:
Example case R v Holland [1841]: http://osclinks.com/4323
4. The accused will be held to blame if the victim dies while attempting to escape from his
attack.
5. "You must take your victim as you find him" or the ""thin skull " rule: In R v Hayward [1908],
the defendant's wife had pre-existing heart condition and when he threatened her this
caused her to suffer a heart attack. In Rv Blaue [1975]: http://osclinks.com/4324 a Jehovah's
Witness was stabbed and refused a blood transfusion which would have saved her life due
to her religious beliefs. The defendant was still guilty.
6. If the victim is killed by the intervention of the medical profession, the accused may still be
liable in causation: In R v Jordan [1956], the defendant was admitted to hospital with stab
wounds. The wounds had largely healed when the victim died 8 days later. The wounds were
not the substantial cause of the death and therefore the medical acts had broken the chain
of causation. However, in Rv Smith [1959] the facts were similar to Jordan, but as the
 wounds had not substantially healed the poor medical treatment did not constitute a break
in the chain and the defendant was still liable for the victim's death.

Mens Rea

The mens rea of an offence is the state of mind required to accompany the actus reus. The definition
of the crime usually contains express words as to what the mens rea entails, e.g., intention,
recklessness, malice, negligence, etc.

Intention

In law there are two types of intention.

1. Direct intent (also known as purpose intent) is the typical situation where the consequences
of a person's actions are desired.
2. Oblique intent (also known as foresight intent) covers the situation where the consequence
is foreseen by the defendant as virtually certain, although it is not desired for its own sake,
and the defendant goes ahead with his actions anyway.

There are also two further ways of categorising intent:

1. Specific intent-the mens rea goes beyond the actus reus; i.e. the defendant had some
ulterior purpose in mind. Examples of these are where there are two types of offence, a
basic one and an aggravated version. E.g., Criminal Damage is 'aggravated' where there is
also a 'specific intent' to endanger life.
2. Basic intent - the mens rea does not exceed the actus reus. Looking back to our example of
Criminal Damage, there would be no intention to danger life.

In Hyam v DPP [1975] the defendant put a burning newspaper through a letterbox to frighten a
woman who lived in the house following an affair she was having. The lady's two children
subsequently died, and it was held that the Defendant foresaw his actions were likely or highly likely
to cause death or GBH.

In RV Moloney [1985] the defendant was having a shooting contest with the victim and accidently
shot him. The jury were asked whether death or GBH was the natural consequence of the
defendant's acts and did he foresee this. If yes, intention could be inferred.

In R V Hancock and Shankland [1986] the defendant wanted to block the road used by non-striking
miners and threw a concrete block onto the motorway. This killed a taxi driver. The court looked at
the probability of the consequence and the greater the probability, the more likely it would be
foreseen and therefore intended.

In Rv Nedrick [1986] the defendant wanted to frighten the owner of a house and put a petrol bomb
through the letterbox. A child died, and the jury were directed that if they were satisfied that
defendant recognised that death or serious injury would be a virtually certain result of his act, then
they may infer that D intended to cause that result, but they were not obliged to do so. This test was
then applied in two further cases:

Firstly, in R v Scalley [1995] a defendant set fire to a house in order to destroy the flat and a child
died. Although the judge explained that if jury were satisfied that the defendant did see death or
serious injury as virtually certain, he did not state that they could infer intention but did not have to.
Secondly, in Rv Woollin [1998] the defendant lost his temper as he was frustrated with a baby crying
and threw the baby onto a hard surface causing death. The jury were directed to use the Nedrick
'virtual certainty' test.

Recklessness

Recklessness is the taking of an unjustified risk. There were previously two different tests developed
by the courts, however the latter of these was abolished following R vG and R (20031. In this case
the two appellants were aged 11 and 12 and had gone camping without seeking their parent's
permission. They set fire to some newspapers and threw them under a wheelie bin. They assumed
the fire would naturally disperse and left, however it spread and caused over one million pounds
worth of damage to a Co-op shop.

The defendants were initially convicted, however upon appeal these were quashed. The House of
Lords overruled MPC v Caldwell [1982] and state that the appropriate test of recklessness for
criminal damage is:

"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with
respect to -

(i) a circumstance when he is aware of a risk that it exists or will exist;

(ii) a result when he is aware of a risk that it will occur;

and it is, in the circumstances known to him, unreasonable to take the risk."

The test which was abolished was known as the Caldwell or Objective test.

The test for recklessness whether the defendant knows the risk, is willing to take it and takes it
deliberately. This test was first established in: R v Cunningham [1957] and the question that must be
asked is a subjective one. I.e., "was the risk in the defendant's mind at the time the crime was
committed?"

Negligence

Negligence is usually associated with the private law sector of tort; however, it can also arise in
Criminal Law.

Examples of offences include careless driving, dangerous driving. gross negligence manslaughter.

Strict Liability

Not all offences require mens rea in order to be a crime. These are known as strict liability and in
order to be guilty they only need to have committed at least one or more elements of the actus reus,
even if the there was no intention.

Offences tend to be regulatory in nature. Examples: road traffic offences, environmental health,
pollution, etc.

There are various justifications for strict liability offences:

- Force people to think about compliance.

- Minor offences with small punishments
- Save court time
- Proof of fault not required due to the above
Prosecution do not have to prove intention, recklessness or negligence in respect of one or more
elements of the actus reus:

E.g., Pharmaceutical Society of Great Britain v Storkwain [1986]. A pharmacist was convicted of an
offence under s.58(2) of the Medicines Act 1968 of supplying prescription drugs without a
prescription given by an appropriate medical practitioner and was appealing the conviction. He used
the facts that the prescriptions were fake, and the signature of the doctor was forged, and he
believed these to be genuine. As the offence was one of strict liability the conviction was upheld.

The wording of the Act of Parliament needs to be interpreted to see if the offence is one of strict
liability:

Sweet v Parsley (1970] A schoolteacher let her house out to students who unbeknown to her
smoked cannabis in the house. She was charged with an offence of being concerned with the
management of premises contrary to s.5(6) of the Dangerous Drugs Act 1965, The statute did not
state any requirement of mens rea of the offence and the House of Lords therefore looked at the
common law before the statute was made, The common law required knowledge of the activities in
order to impose liability which and when interpreting the Act, they therefore used the presumption
that statutes do not change the common law (see statutory interpretation in module 1).

In Gammon v Attorney-General for Hong Kong [1985 it was also noted that there is a presumption of
mens rea unless it can be rebutted.

B (a Minor) v DPP (2000] and K (2001] both had points on presumption of mens rea:

- Presumption is that mens rea is needed.

- More so for serious offences.
- Statutory offences would need to look at words used and relationship with other sections in
the statute.
- If statute deals with social concern, presumption can be displaced.
- Presumption rebutted if strict liability would reduce that particular crime: Harrow London
Borough Council v Shah [1999]

Learning activity 2
- Name the case and the principle from the following AR and MR clip:
http://osclinks.com/4325

2.4 Fatal Offences Against the Person

Learning outcomes
- Common law offence of murder:
voluntary manslaughter:
• loss of control (s54 Coroners and Justice Act 2009)
• diminished responsibility (s2 Homicide Act 1957 as amended).
- Common law offence of involuntary manslaughter:
• unlawful act manslaughter
• gross negligence manslaughter.

Murder
Murder can be defined as the unlawful killing of a human being under the Queen's peace with
malice aforethought. Sir Edward Coke (1797) defined murder as follows:

"Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any
country of the realm any reasonable creature in rerum natura under the King's peace, with malice
aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc.
die of the wound or hurt, etc. within a year and a day after the same."

The actus reus is the unlawful killing unless the defendant is successful in raising a defence which
makes the killing lawful; for example, self-defence. The act (or omission) of the defendant must have
been the legal cause of the death of the victim.

The killing must be of a living human being. Certain legislation is in place in terms of abortion to
allow for a termination or child destruction.

Under the Queen's peace means that in the course of war, the killing of an enemy will not be
murder.

The year and a day rule was abolished by the Law Reform (Year and a Day Rule) Act 1996.

The prosecution must prove that the victim's death was caused by the defendant even if it was not
the only or main cause of death (see the section above regarding novus actus interveniens). There
are two elements to causation:

1. Causation in fact - i.e., were the circumstances that the defendant's act or conduct cause
the victim's death?
2. Causation in law - See section 2.3 above.

You will recall that we looked at the 6 legal rules for causation in section 2.3 for the actus reus. Here
we should consider causation in fact and causation in law.

To establish causation in fact, the "But for'" Test established in Rv White [1910] must be applied.

For causation in law, the defendant's act would be regarded as the cause in law if it could be shown
that it was the operating and substantial cause of the victim's death: see R v Smith [1959] above.

I refer you to the section 2.3 regarding actus reus and the rules of causation.

The mens rea for murder is malice aforethought, In R y Moloney [1985] the House of Lords held that
nothing less than intention to kill or cause grievous bodily harm (GBH) would suffice and merely
foreseeing the victim's death as probable was insufficient.

Murder isa crime of specific intent. Intention in this context includes direct or oblique intent. You will
recall from the section 2.3 above that direct intent covers the situation where the defendant desired
the death and oblique intent covers the situation where the death is foreseen by the defendant as
virtually certain, although not desired for its own sake.

Upon conviction of murder a mandatory sentence of life imprisonment applies as fixed by the
Murder (Abolition of Death Penalty) Act 1965. The judge can also make recommendations to the
Home Secretary as to the minimum period which should elapse before the prisoner is released on
licence.
 Learning activity 3
Read the following article on the double murder of Katie and Elizabeth Edwards:
http://osclinks.com/4326 and watch the relevant videos. Consider why a partial
defence was not available. How can you use this to evaluate the law?
NB This link has limited access as it is The Times and a subscription is needed. This
link is more accessible http://osclinks.com/5402

Learning activity 4
Watch this video clip on "The Philpott' case:
http://osclinks.com/4327 and apply this to the rules on gross negligence manslaughter.

Involuntary Manslaughter

When the mens rea for murder (malice aforethought) is not present, however the victim dies, the
defendant may be found guilty of Involuntary manslaughter.

Unlawful Act Manslaughter (Constructive Act Manslaughter)

This is where the death of the victim arises following an unlawful and dangerous act. The Court of
Appeal in Rv Mitchell [1983] said that to establish this type of manslaughter it had to be shown:

1. that the accused had committed an unlawful act.

2. that the act was dangerous in the sense that a sober and reasonable person would inevitably
recognise that it carried some risk of harm.

3. that the act was a substantial cause of death; and

4. that the accused intended to commit the act as distinct from intending its consequence.

The actus reus is the unlawful act which must be dangerous and a substantial cause of death. The
unlawful act must be a criminal one and the consent of the victim will not prevent this. An act is
considered dangerous if an average person would recognise this to be the case.

The mens rea consists of the mens rea as to the unlawful act itself (i.e., intention or recklessness
depending on what the necessary mens rea is for the act). For example, if the act was Crimínal
Damage it would be the mens rea for criminal damage that would need to be proven.

The defendant need not realise the risk of causing some harm. As long as the reasonable man in his
position would have so realised, this is sufficient mens rea.

If there is no mens rea for the unlawful act the defendant will not be liable.

As with voluntary manslaughter, if a defendant is convicted of involuntary manslaughter the

sentence is at the discretion of the trial judge and can range between life imprisonment and an
unconditional discharge.

Recommended cases for reading include the following which can be viewed here:
http://osclinks.com/4328

Rv Mitchell [1983]

Rv Franklin [1883]
Rv Lamb [1967]

Rv Arobieke [1988]

Rv Cato [1976]

Rv Larkin [1943]

Rv Church [1966]

Rv Dawson [1985)

Rv Watson [1989]

Rv Ball [1989]

Rv Dalby [1982

Rv Mitchell [1983]

Rv Goodfellow ([986]

Rv Watson [1989]

DPP V Newbury and Jones [1976]

Voluntary Manslaughter

In addition to the general defences available for all crimes, there are also special defences which can
be used for murder. If successful, these can reduce the charge from one of murder to that of
voluntary manslaughter.

Diminished Responsibility

By far the most common of these special defences is this one Diminished responsibility was originally
defined in s2(1) Homicide Act 1957. However, this was updated with a more modern definition by
way of Section 52 of the Coroners Justice Act 2009. If successful, this acts as a partial defence to
murder and reduces the verdict to manslaughter.

The definition provides that a person who kills or is a party to the killing of another is not to be
convicted of murder if the defendant was suffering from "an abnormality of mental functioning""
arising from ""a recognised medical condition which substantially impairs the defendant's ability to
do one or more of three things set out in s2(1) (a) as follows:

1. the ability to understand the nature of his or her conduct.

2. the ability to form a rational judgement.
3. the ability to exercise self-control.

Under s2(1)(b) provides that the abnormality of mental functioning must be a significant
contributory factor in causing the defendant to act as he did. This is to ensure that there is some
causal connection between the abnormality of mental functioning and the killing otherwise the
partial defence could succeed in cases when the defendant's mental condition made no difference to
their behaviour, and they would have killed regardless of the medical condition. It need not have
been the only cause, the main cause or the most important factor, but it must be more than merely
trivial.
In Rv Akmol Miah and Shihabuddin Choudhury [2011] the Prosecution called two experts in response
to the defendants' defence of diminished responsibility. Both experts stated that Choudhury was a
man of reasonable intellect, having an IQ of 80 being within the normal range, albeit not very bright,
and did not have a learning disability. There was no evidence that he suffered from mental illness,
however, birth trauma was a permanent condition throughout his life, and he was probably
functioning in the low/average borderline range of cognitive function. He was not an unusually
compliant individual, but his memory recollection was highly selective. Whilst he had some odd
personality traits, he did not have a personality disorder. There was no basis for diminished
responsibility.

Loss of Control

This was previously known as 'provocation which was a common law offence, however, this was
repealed by section 56 Coroners Justice Act 2009 and replaced with the new defence of loss of
control.

The former defence of provocation could be raised by someone who was provoked by things said or
done to lose his or her self-control. If successful, it would act as a partial defence and reduce the
charge of murder to manslaughter.

Sections 54 and 55 of the Coroners and Justice 2009 Act between them provide for a new partial
defence to murder of ""loss of control"". Section 54(1) sets out the circumstances in which the new
partial defence to murder of loss of control applies. S54(1)(a) states that these are that the
defendant must at the time of the offence have lost self-control resulting in them killing a person in
one of three types of situations (described in the Act as 'qualifying triggers'). These qualifying
triggers are:

- where the defendant fears serious violence.

- when certain things have been said or done which amount to circumstances of an
extremely grave character and caused the defendant to have a justifiable sense of being
seriously wronged; or,
- when a combination of the first two situations applies.

The qualifying triggers are defined fully in section 55. In order to succeed an objective test is applied
whereby the court will consider whether a person with certain characteristics might have acted in
the same or similar way to the defendant. These characteristics are that:

(i) they were of the same sex and age as the defendant.

(ii) they had an ordinary level of tolerance and self-restraint; and

(iii) they were in the same circumstances of the defendant (section 54(1)(c).

S94(3) provides that the circumstances of the defendant in this context include any circumstances,
except those whose only relevance to the defendant's conduct is that they impact on the
defendant's general capacity for tolerance and self-restraint. This means that if the defendant is
known to have a short temper, this may not be taken into account by the jury for these purposes. On
the other hand, a person's history of abuse at the hands of the victim could be taken into account.
So, if, for example, the defendant is, say, a 23-year-old woman whose partner whom she has killed
has beaten her frequently, the jury must consider whether a woman of that age with that history
and with an ordinary level of tolerance and self-restraint might have done the same ora similar thing
to their partner.
Under s54(2) the defendant's loss of control need not be sudden - in other words, there may be a
delay between the incident which was relevant to the loss of control and the killing. However, the
judge may - when deciding whether to leave the defence to the jury - and the jury may - when
deciding whether the killing resulted from the loss of control - take into account any delay.

Fear of Serious Violence Only

Two factors are taken into account:

- This is a subjective test where the defendant need not prove his or her fear was reasonable,
only that the fear was genuine.
- The fear of serious violence needs to be in respect of violence against the defendant or
another identified person.

Defendant's Loss of Control Attributable to Things Said or Done Only

Under s55(4) this can only find the defence where the thing or things done or amounted to
circumstances of an extremely grave character and caused the defendant to have a justifiable sense
of being seriously wronged.

Two factors must be considered:

1. An objective test is applied: was the defendant's sense of being seriously wronged
justifiable?
2. Sexual infidelity is to be disregarded under section 55(6)(C) unless the thing done or said
can still potentially amount to a 'qualifying trigger' if (ignoring the sexual infidelity). For
example, finding out a family member has been raped.

Defendant Seeks to Rely on Both a Fear of Serious Violence and a Thing Done or Said

The burden of proof is on the prosecution who must disprove any evidence raised by the defendant
in terms of this defence. This applies where the objective test in the first trigger fails, however when
put with the second trigger they may have reacted in a similar way.

More Than One Defendant

S54(8) provides that where more than one person is charged with murder and one of the defendants
successfully pleads this defence and secures a conviction of manslaughter, all other defendants must
be convicted of manslaughter (rather than murder) as well.

2.5 Non-Fatal Offences against the Person

Learning outcomes
- Common assault:
• assault
• battery.
- Offences Against the Person Act 1861:
• s47 assault/battery occasioning actual bodily harm
• s20 unlawful and malicious wounding or inflicting grievous bodily harm
• S18 unlawful and malicious wounding or causing grievous bodily harm with intent to
cause grievous bodily harm.

In law, assault and battery theoretically mean different things.

In Fagan v MPC [1969], the court said that an assault is 'any act which intentionally or possibly
recklessly causes another person to apprehend immediate and unlawful personal violence' Le., no
actual physical contact need be made.

Battery is the intentional or reckless application of unlawful force to the body of another person.
Unlike assault, physical contact is required.

Both of these offences were originally common law offences, triable only on indictment but are now
classified as summary offences as per s9 of the Criminal Justice Act 1988.

Assault

The actus reus of assault is any act which causes the victim to apprehend an immediate infliction of
violence, e.g., raising a fist or pointing a gun.

The mens rea is causing the victim to apprehend the infliction of immediate force either intentionally
or recklessly. You will recall from earlier on in this module that recklessness now has a subjective
test and according to R v Spratt [1990], this is what applies in this instance.

The following cases can be reviewed here: http://osclinks.com/4329

Fagan v MPC [1969]

Logdon v DPP [1976]

Smith v Superintendent of Woking Police Station [1983]

RV Arobieke [1988]

Rv Meade and Belt (1823)

Rv Ireland [1997]

Rv Constanza [1997]

Tuberville v Savage (1669)

Rv Venna [1976]

Rv Spratt [1990]

Battery

Battery is the inftiction of unlawful force by one person upon another.

For the octus reus, the east touching of another will suffice.

For the mens rea, in Rv Venng [19761, James J stated, "the element of mens reg in the offence of
battery is satisfied by proof that the defendant intentionally or recklessly applied force to the person
of another". The subjective, Cunningham meaning. is applied to recklessness in this context.

Cases which apply can be found here: http://osclinks.com/4329

Fogan v MPC (1969)

Cole v Turner (1705)

Wilson v Pringle [1986]

Rv Brown [1993]

Cole v Turner; Tuberville v Savoge; Collins v Wilcock [1984)

Rv Venna [1976]

Malicious Wounding or GBH

Section 20 of the Offences Against the Person Act 1861 states that:

“Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any
person, either with or without any weapon or instrument, shall be guilty of an offence, and being
convicted thereof shall be liable to imprisonment for five years."

This offence is triable either way and punishable on conviction on indictment with a maximum of five
years' imprisonment.

The actus reus is either maliciously wounding or causing grievous bodily harm.

The mens rea required is denoted by the word 'maliciously. It is sufficient to prove that he intended
his act to result in some unlawful bodily harm to some other person, albeit of a minor nature, or was
subjectively reckless as to the risk that his act might result in such harm. The defendant must foresee
the possibility of some physical harm occurring.

Cases which apply can be found here: http://osclinks.com/4329

Moriarty v Brooks (1834)

MLoughtin (1838)

JCC (A Minor) v Eisenhower (1984)

Rv Sanders [1985]

DPP v Smith [1961]

Rv Martin (1881)

Rv Wilson [1984]

Rv Burstow [1997]

Rv Mowatt [1968]

Rv Savage;

DPP V Parmenter [1991]

Rv Sullivan [1981]

Malicious Wounding or GBH with Intent

Section 18 of the Offences Against the Person Act 1861 provides:

Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous
bodily harm to any person, with intent to do some grievous bodily harm to any person, or with
intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of an
offence, and being convicted thereof shall be liable to imprisonment for life."

This offence is triable only on indictment.

The actus reus of the offence is the same as s20, In R v Mandair [1994] it was held that 'causing" was
wider or at least not narrower than the word 'inflict.

For the mens rea, the defendant must be malicious' (see above under s20) but in addition he must
be proved to have had a further specific intent:

(1) to do some grievous bodily harm to the victim, or

(2) to resist or prevent a lawful arrest or detention.

Cases which apply can be found here: http://osclinks.com/4329

Rv Mandair [1994]

Rv Belfon [1976]

Actual Bodily Harm (ABH)

Section 47 of the Offences Against the Person Act 1861 provides that:

"Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be
liable . to be imprisoned for any term not exceeding five years."

Such a charge is triable either way and punishable with a maximum of five years imprisonment on
conviction on indictment.

The actus reus of the offence is:

(a) an assault, i.e. any act which causes the victim to apprehend an immediate infliction of violence
or the actual infliction of violence

(b) occasioning

(c) bodily harm.

Liability is established if the defendant has the mens rea of common assault (intention or
recklessness). No mens rea at all is required as to causing actual bodily harm. All that need be
proved is the causal link between the assault and the harm.

Cases which apply can be found here: http://osclinks.com/4329

Rv Roberts (1971)

Rv Savage

DPP V Parmenter [1991]

Rv Chan-Fook [1994]

Rv Ireland [1997]

RV Constanza [1997]
 2.6 Property Offences

Learning outcomes
- Theft (s1 Theft Act 1968)
- Robbery (s8 Theft Act 1968)

Theft

Theft is defined under section 1(1) of the Theft Act 1968 (TA 1968) as "A person is guilty of theft if he
dishonestly appropriates property belonging to another with the intention of permanently depriving
the other of it."

This definition can be split down into 5 elements, all of which have to be proven beyond reasonable
doubt in order to find the accused guilty. The actus reus of theft consists of the appropriation,
property and belonging to another whereas the mens rea focuses on the intention; namely, the
dishonesty and the intention of permanently depriving the other of it.

Appropriation

s3(1) provides the definition which states that appropriation is any assumption by a person of the
rights of an owner.

S3(2) provides some protection to the bona fide (in good faith) purchaser e.g. when buying property
and being unaware that it is stolen.

The House of Lords held that a person can appropriate property even where the Owner consents to
the taking of property. Lawrence v MPC [1972] an Italian man didn't speak English and when he had
to pay a taxi driver, he held out his hand with money for the taxi driver to take what was owed. The
taxi driver took more than the fare and although the passenger consented it was still theft.

The House of Lords have also made it plain that an assumption of any right of an owner will be an
appropriation:

In both RvMorris [1983] and Anderton v Burnside [1984] labels were switched in a supermarket to
pay a lower price.

Property

s4(1) provides a general definition of property for the purposes of theft, Where it states: "Property
includes money and all other property, real or personal, including things in action and other
intangible property.

s4(2) provides that land cannot be stolen unless the person is dealing with land in a special capacity,
for example as a trustee (and makes a dishonest appropriation); or a person not in possession of the
land severs something from it, for example crops or turf; or a person in possession of the land as
tenant appropriates a fixture or structure let with the land, for example by selling an outbuilding-

s4(3) states that you can pick mushrooms, flowers, fruit or foliage growing wild provided you do not
sell it or use it for commercial purposes.

s4(4) provides that animals in zoos, safari parks and domestic pets can all be stolen, even if they are
appropriated having escaped from captivity. A wild animal, whether live or dead, cannot be stolen
unless it has already been taken into possession by somebody else.
Belonging to Another

Section 5(1) provides "property shall be regarded as belonging to any person having possession or
control of it, or having in it any proprietary right or interest Therefore, mere possession or control is
enough.

Provided he has the necessary mens rea, a person can steal his own property from someone with a
lesser interest: Rv Turner (No 2) [1971]. In this case a garage had repaired a car. The owner of the car
took the car without paying for the repairs.

The 'possession or control' of the car was that of the garage at the time and not the owner of the
car.

If the property is not owned by anyone at the time it is appropriated, then this would not amount to
theft. A question arises as to whether the property has been abandoned or not. i.e., if you have lost
something, at what time are you considered to have given up the search? Imagine you lose your
wedding ring, you may not continue to search for it, but you would not have abandoned it. It is
therefore important to be cautious when deciding whether a person has relinquished his rights of
ownership:

Wiltiams v Phillips (1957) - When you put your refuse out for collection it remains in your ownership.
It only becomes the ownership of the local authority once it has been collected and therefore if
someone other than the local authority takes it, it would be considered theft.

Rv Woodman [1974]. Scrap metal was sold on a business site; however, the buyer couldn't remove it
all. It was subsequently taken, however as the owner of the site was still in control of it and has put
up fencing and notices he had excluded others and theft occurred.

Rv (Adrian) Small [1987]. A car was left with its keys in for over a week. The defendant took the car
stating that they honestly believed it had been abandoned.

s5(1) states that property subject to a trust is regarded as belonging to the beneficiaries as well as to
the trustees.

S5(2) deals with trusts for charitable purposes. If the trustees dishonestly appropriate the Trust this
can be enforced by the Attorney-General rather than the beneficiary.

s5(3) provides that it is theft if a person receives property under an obligation to deal with it in a
certain way but instead uses it for his own purposes.

R v Hall [1973]. A travel agent took money for tickets but failed to purchase them. When the agency
went bust, he was convicted of theft.

Davidge v Bunnett [1984). The defendant shared a flat with others and took cheques from them as
payment towards the gas bill. He didn't pay the bill and instead spent the money. He was guilty of
theft.

s5(4) states if a person is given property by mistake it will still be treated as belonging to the person
who gave it (subject to some complex civil law rules as to whether there is a civil obligation to return
the property or not).

AttorneyGeneral's Reference (No 1 of 1983) [1985). A policewoman was overpaid with her wages
and was guilty of theft when she noticed but didn't pay it back.
Rv Shadrokh-Cigari [1988] A child was paid £286,000 instead of £286. The guardian of the child
withdrew the money and was guilty of theft.

In addition to the actus reus elements, in order to be guilty of the theft the mens rea elements must
also be present:

Dishonesty

Section 2(1) sets out the situations whereas a matter of law a person is not dishonest:

"A person's appropriation of property belonging to another is not to be regarded as dishonest (a) if
he appropriates the property in the belief that he has in law the right to deprive the other of it, on
behalf of himself or of a third person; or
(b) if he appropriates the property in the belief that he would have the other's consent if the other
knew of the appropriation and the circumstances of it; or
(c) if he appropriates the property in the belief that the person to whom the property belongs
cannot be discovered by taking reasonable steps."

The judge will direct the jury that as a matter of law they must acquit the accused unless the
prosecution is able to disprove s2(1) beyond reasonable doubt. To assist in determining whether the
prosecution has done this, a test was established following the case of R v Ghosh [1982] as follows:

(1) Would a reasonable and honest person have done the same and considered this dishonest? If
not, the accused would not be dishonest, and the case goes no further. (objective test)

(2) If the objective test fails, it follows that the jury (or magistrates) must consider whether the
defendant himself must have realised that what he was doing would be considered dishonest by a
reasonable honest person. (subjective test)

Intention to Permanently Deprive

Only the intention to permanently deprive need be present and if the accused was never successful
in actually permanently depriving the owner of his property this would be no defence.

The jury determines whether the evidence is sufficient to show intention and the judge will direct
the jury as to whether they can infer this from the evidence.

Theft is triable either way. If convicted on indictment the maximum is seven years by s26 of the
Criminal Justice Act 1991.

Robbery

Section 8 of the Theft Act 1968 provides:

“(1) A person is guilty of robbery if he steals, and immediately before or ot the time of doing so, and
in order to do so, he uses force on any person or puts or seeks to put any person in fear of being
then and there subjected to force.

(2) A person guilty of robbery, or of an assault with intent to rob, shall on conviction on indictment
be liable to imprisonment for life.”

Robbery is triable only on indictment.

Steals
Robbery is theft aggravated by the threat or use of force and it therefore has the same elements of
theft which must all be established. If the accused threatens someone to hand over money, honestly
believing they have a legal right to the same, they will not be guilty of theft (or robbery).

In Rv Robinson [19771, the defendant was owed E7 by the victim's wife. He got into a fight with the
victim and brandished a knife. The victim paid £5 but [2 was still outstanding. The defendant was not
guilty of theft and had a right in law to deprive the victim of the money.

In Rv Forrester [1992] the defendant did not receive his £200 following termination of a tenancy
agreement. He therefore went into the house (a friend restrained the victim) and took items to sell
which did not belong to him in lieu of the deposit. He was convicted of robbery.

If the accused is not successful in appropriating the item but has it temporarily, it will still amount to
theft. E.g., grabbing a handbag but dropping it as part of the wrestle with the owner: Corcoran v
Anderton (1980).

If the appropriation isn't present, however the force (or fear or force) is, there is an offence can be
convicted of which is assault with intent to rob, which is also triable only on indictment.

Use of Force

The jury will determine whether force has been used or not.

In R v Dawson [1976] a 'nudge' to cause the victim to lose his balance was not robbery.

In R v Clouden [1987] if the victim gives no resistance, then there is no robbery, e.g. pickpocketing.

In order to steal

The force, or threat of force, must be used in order to steal according to s8(1). If a wallet falls out of
a pocket, there cannot be robbery if someone runs off with it.

Immediately before or at the Time of Stealing

Under Section 8(1) force must be used immediately before, or at the time of, stealing.

In R v Hale (1978) the defendant went upstairs to steal jewellery whist the victim was tied up by
another. There was a question as to which occurred first the stealing or the tying up. The court
stated this was irrelevant as the appropriation should be regarded as a continuing act.

Mens Rea

The mens rea is that of theft. S8 does not provide any further definition, however, it is clear that the
force or threatened force must be used in order to steal.

2.7 Preliminary Offence

Learning outcomes
- Attempt (s1 Criminal Attempts Act 1981)

Attempt

Section 1(1) of the Criminal Attempts Act 1981 provides that: "if, with intent to commit an offence to
which this section applies, a person does an act which is more than merely preparatory to the
commission of the offence, he is guilty of attempting to commit the offence.
Under s1(4) only indictable offences are affected unless it is specifically provided for in another
statute. Under the Criminal Law Act 1967 it was possible to be liable for attempting to aid, abet,
counsel or procure, however s1(4) CAA 1981 abolished this.

Actus Reus

The defendant must have committed an act which was "more than merely preparatory". This must
be proven by the prosecution and is a question of fact for the jury to decide.

In R v Gullefer (1990), Lord Lane CJ in state that the offence is committed when the merely
preparatory acts come to an end and the defendant embarks upon the crime proper.

Mens Rea

Section 1(1) refers to the defendant acting ""with intent to commit an offence". The mens rea is
therefore the same as the offence he is attempting. E.g., attempted theft would have the means rea
elements of dishonesty and the intention to permanently deprive.

Impossibility

Under the decision of Haughton v Smith [1975] the defence of impossibility was available. This was
reversed by 1(2) of the Criminal Attempts Act 1981, which provides that:

"A person may be guilty of attempting to commit an offence to which this section applies even
though the facts are such that the commission of the offence is impossible."

Although the House of Lords were initially reluctant to apply this, in R v Shivpuri [1986]. The
defendant was found to have a suitcase of white powder. He confessed stating they were drugs and
was prosecuted. It later transpired that the white powder was not drugs and he stated he could not
be guilty as drugs were not present, however this was immaterial - he believed them to be drugs and
this is what counted.

The only exception is Rv Taaffe (1984). The facts are similar to that of Shivpuri in that the defendant
was smuggling drugs. However, the difference here is that he believed he was carrying currency and
not drugs. His lack of knowledge therefore saw his Conviction quashed.

Withdrawal

Once steps taken towards committing an offence are sufficiently far advanced to amount to an
attempt, failure to complete the crime has no consequence even if it is due to a voluntary
withdrawal by the defendant and crime of attempt still exists.

2.8 Defences

2.8.1 Capacity Defences

Learning outcomes
- Insanity.
- Automatism.
- Intoxication.

Insanity

An accused may have committed a crime when actually insane.

M'Naghten Rules

When we look at the term 'insanity' it has two meanings. Firstly, the medical/psychological meaning
and secondly the legal meaning. It is the latter which applies here.

The Rules derive from MNaghten's Case (1843):

"... the jurors ought to be told in all cases that every man is presumed to be sane, and to possess a
sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their
satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that,
at the time of the committing of the act, the party accused was labouring under such a defect of
reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or,
if he did know it, that he did not know what he was doing was wrong.”

A special verdict of "not guilty by reason of insanity'" can been given and the benefit of this is that
although acquitted, it puts the defendant under the control of the court.

Disease of the Mind

As stated above, the medical meaning is ignored and whether a particular condition amounts to a
disease of the mind within the rules is therefore a legal question. A disease of the mind does not
have to be a disease of the brain or a physical defect, provided it produces a malfunctioning of the
mind. It therefore includes any internal disorder, which results in violence and is Likely to recur.

Rv Kemp [1957] 1 QB 399: the defendant had no history of violence. He had arteriosclerosis and
stated this was the reason for hitting his wife with a hammer initially pleading automatism (see
below). The jury were directed that this was insanity, not automatism and the defence succeeded.

Bratty [1963] the defendant suffered with psychomotor epilepsy and during an episode killed a
young woman he had given a lift to. He initially raised the defence of automatism, which was
rejected, and the jury were directed to insanity.

This was reaffirmed in R v Sullivan [1984] which is another case relating to epilepsy. The defendant
kicked and injured a man during a minor epileptic fit.

Rv Hennessy [1989] the defendant was diabetic. He had forgotten to inject his insulin and stole a car.
The lack of insulin was a natural factor caused by the diabetes and automatism therefore didn't
apply but insanity did.

Sleepwalking is also considered insanity rather than automatism where this is caused by internal
factors and not an external causal factor.

R v Burgess (1991). The defendant fell asleep whilst watching a video with a friend and smashed a
bottle and the video recorder over her head. He initially pleaded guilty however the trial judge ruled
that the only defence the evidence revealed was that of insanity., He was later found not guilty by
reason of insanity by the jury.

If the cause is an external factor then insanity is not applicable, however the defence of automatism
(see below) may be raised.

Defect of Reason

The disease of the mind must have given rise to a defect of reason which had one of two
consequences: either
 (a) the defendant did not know the nature and quality of his act. "Nature' in this sense means
the physical act and "quality' is where the defendant does not know what they are doing.
This was illustrated in Kemp [1957] where the defendant's actions were carried out whilst he
had a 'blackout' and was unaware of what he was doing.
(b) he did not know his act was wrong. This must not be confused with absentmindedness and
the defendant's powers of reasoning must be impaired.

R v Clarke [1972]

If the defendant knew what he was doing, then he will still be insane if he did not know that he was
doing something legally wrong.

R v Windle [1952]. The defendant overdosed his wife. Although he was suffering from a mental
illness, the evidenced showed that he knew that he was committing a crime. He even made a remark
to the police, at the time of arrest, "I suppose they will hang me for this". The trial judge refused to
allow the defence of insanity to go to the jury.

Court Procedure

The burden of proof is on the defendant to convince the jury. The jury will consider this on a balance
of probabilities and under s1 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991
they would return a special verdict that "the accused is not guilty by reason of insanity"". This can
only be provided upon the written or oral evidence of two or more registered medical practitioners
of whom at least one has special experience in the field of mental disorder.

Disposal of the Defendant

This was initially dealt with under s3 of the Criminal Procedure (Insanity and Unfitness to Plead) Act
1991 however this was repealed by the Domestic Violence, Crime and Victims Act 2004.

Depending upon the type of offence the court can make in respect of the accused:

- a hospital order (with or without a restriction order); or

- an interim hospital order; or
- a supervision order; or
- an order for his absolute discharge.

The relevant section of the Act can be located here: http://osclinks.com/4330

Automatism

Automatism is an alternative to insanity where an external factor prohibits the accused form
pleading insanity. The external factor must render the defendant unable to control what he is doing.

Bratty v Attorney-General for N. Ireland [1963]

As the act is involuntary, it can then be argued that there is a lack of actus reus. With regards to the
mens rea, it can be argued that the lack of consciousness also means there is no intention.

Total Loss of Voluntary Control

Where the defendant's mind is functioning, albeit imperfectly, the defence is not available.
Broome v Perkins [1987]. We previously looked at diabetics under insanity above. There are two
types of diabetes- one where the body produces too much insulin and the other where it doesn't
produce enough. The distinction is important when raising the defence of automatism.

In this case the defendant had driven erratically while suffering from hypoglycaemia (low blood
sugar level caused by an excess of insulin in the bloodstream). He was still in some control of the car
and therefore could not plead insanity as he didn't have a total loss of control.

In Attorney-General's Reference (No 2 of 1992) (1993] the defendant pleaded automatism based on
"’driving without awareness’" induced by “’repetitive visual stimulus experienced on long journeys
on straight flat roads’” when he crashed his lorry into cars on the hard shoulder of a motorway.
Driving without awareness was not sufficient for this defence to succeed.

External Factors

This inability to control one's acts must result from the operation of some external factor upon the
working of the brain, rather than an inherent mental defect.

Example case: R v Quick [1973]: http://osclinks. com/4331

The external factor could be a traumatic event including severe shock provided it is more than
general stress or anxiety.

Example case: Rv T [1990]: http:/losclinks.com/4332

Self-Induced Automatism

If the defendant can be shown to be in some way at fault for bringing on the state of automatism the
defence may fail. The principal authority on this point is the Court of Appeal decision in: R v Balley
(1983] where the defendant, who was diabetic, assaulted his ex-girlfriend's new boyfriend after
taking a mixture of sugar and water without eating anything.

The outcome will be different depending upon whether the crime is one of specific intent or basic
intent. For the former, he will have a defence if mens rea was not formed. For the latter, the
defendant will have no defence if he was reckless.

Evidential Burden

It is for the defendant to produce sufficient evidence of automatism for a jury to act upon in order to
succeed with the defence.

Effect

If successfully established, automatism operates as a complete defence and the defendant, will be
acquitted. Unlike insanity, the courts then have no control over the defendant courts are often
reluctant to recognise the defence of automatism in certain situations.

Therefore, the courts will consider whether the defendant should in fact be classed as criminally
insane if automatism is raised.

Learning activity 5
Use this criminal law clip: http://osclinks.com/4333 to revise automatism.
Intoxication

If a defendant voluntarily takes drink or drugs it can only potentially negate mens rea in crimes
requiring specific intent if the defence is successful.

There is a difference between being drunk and being intoxicated and the distinction is important in
whether or not the defence will succeed, A drunken man may commit acts whilst under the
influence of drink or drugs that he would never commit whilst sober, but if he is stil able to form the
mens rea for the crime, he will still be charged. It is only if the intoxication is such that the mens reo
cannot be formed that it will be successful. Rv Sheehan and Moore [1975), that "a drunken intent is
nevertheless an intent In Rv Stubbs (1989), it was stated that the intoxication needed to be “’very
extreme’”.

Specific/Basic Intent

As stated above, self-induced intoxication is only a defence to specific intent crimes:

Example cases:

DPP v Majewski [1977]: http://osclinks.com/4334

DPP v Beard [1920]: http://osclinks.com/4335

Intoxication by Drugs

Self-induced intoxication to 'go on a trip" or to become hallucinated, is not a defence to a basic

intent crime. In R v Lipman [1970] the defendant voluntarily consumed LSD and struck the victim
with two blows on the head and stuffed 8 inches of a bedsheet into her mouth thinking he was
fighting off snakes. His defence of intoxication was rejected at his trial and he was convicted of
unlawful act manslaughter.

Burden of Proof

The defendant must provide some evidence of intoxication and the prosecution then need to
establish beyond all reasonable doubt, that despite such evidence, the defendant still had the
necessary mens rea to form the specific intent.

Effect

If the prosecution is unable to prove beyond reasonable doubt that the specific intention was not
formed, self-induced intoxication will operate as a partial or complete defence. If there is a lesser
offence which requires only basic intent, the liability may be reduced to the "lesser included'" basic
intent crime, e.g., murder can be reduced to manslaughter. However, if no such lesser offence exists
the defendant will be acquitted e.g. theft.

Soporific Effect

Not all drugs have a hallucinatory or 'trip' effect. Some drugs, when normally taken have a soporific
(sleepy) effect. In these circumstances, the jury will be directed to consider whether the defendant
was reckless in consuming the drugs.

Example case:

R v Hardie [1985]: http://osclinks.com/4336

Dutch Courage Intoxication

Intoxication is not a defence where a person deliberately gets himself intoxicated to give himself
'Dutch Courage" to commit a crime. In Attorney-General for N. Ireland v Gallagher [1963] the
defendant decided to kill his wife. He bought a knife and a bottle of whisky which he drank to give
himself "'Dutch Courage", Then he killed her with the knife. The intent was made before the killing
took place. Lord Denning stated:

“If a man, whilst sane and sober, forms an intention to kill and makes preparation for it, knowing it is
a wrong thing to do, and then gets himself drunk so as to give himself Dutch courage to do the
killing, and whilst drunk carries out his intention, he cannot rely on his self-induced drunkenness as a
defence to a charge of murder, not even as reducing it to manslaughter. He cannot say that he got
himself into such a stupid state that he was incapable of an intent to kill. So also, when he is a
psychopath, he cannot by drinking rely on his self-induced defect of reason as a defence of insanity.
The wickedness of his mind before he got drunk is enough to condemn him, coupled with the act
which he intended to do and did do, "

Involuntary Intoxication

Involuntary intoxication is narrowly defined. A person who knew he was drinking alcohol could not
claim that the resulting intoxication was involuntary because he underestimated the amount of
alcohol he was consuming or the effect it would have on him.

R v Allen [1988] the defendant drank extremely strong home-made wine and committed sexual
offences. Despite being unaware of the strength of the wine the Court of Appeal held that this did
not amount to involuntary intoxication.

Involuntary intoxication is confined to cases where the defendant did not know he was taking
alcohol or an intoxicating drug at all, e.g., where his food or drink is laced without his knowledge. In
such cases, the House of Lords has held that involuntary intoxication is not in itself sufficient to
negate the necessary mental element of an offence unless the intoxication is such that the
defendant could not form any intent at all.

Example case: R v Kíngston [1994]: http://osclinks.com/4337

2.8.2 Necessity Defences

Learning outcomes
- Self-defence/prevention of crime.
- Duress.
- Duress of circumstances.

Self Defence

At common law the defence of self-defence operates in three spheres. It allows a person to use
reasonable force to:

(a) Defend himself from an attack.

(b) Prevent an attack on another person

(c) Defend his property.

In addition, s3(1) of the Criminal Law Act 1967 provides that:

"A person may use such force as is reasonable in the circumstances in the prevention of crime, or in
effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully
at large.”

It is possible for both versions to be used by a defendant.

Reasonable Force

In order to assess what is reasonable, the circumstances as to what the defendant believed them to
be will be taken into account.

In Palmer v R [1971] Lord Morris felt that a jury should be directed to look at the particular facts and
circumstances of the case. He stated a person who is being attacked should not be expected to
"weigh to a nicety the exact measure of his necessary defensive action" and the jury should consider
what the ant thought in the heat of the moment and whether they honestly and instinctively
thought it was necessary at that time to commit the action they did. A told that the defence of self-
defence will only fail if the prosecution shows reasonable doubt that what the accused did was not
by way of self-defence.

What is the defendant was mistake as to the amount of force necessary?

R v Scarlett [1994] the defendant evicted the victim from his premises. He thought the victim was
going to strike him so pinned his arm to his sides and placed him against a wall outside. The victim
fell down 5 steps and struck his head. He later died, The defendant was initially convicted, however
appealed whereupon the jury were directed not to convict him unless they were satisfied that the
degree of fore was more than call for and his belief unreasonable.

A Duty to Retreat?

There is no rule of law that a person attacked is bound to run away if he can.

R v Bird [1985] - The defendant hit a man with a glass in her hand after she had been slapped and
pushed by him. She forgot she was holding the glass. The Court of Appeal quashed the defendant's
conviction saying that it was unnecessary to show an unwillingness to fight and there were
circumstances where a defendant might reasonably react immediately and without first retreating
and the jury must decide whether a reasonable man would have run away.

Imminence of Threatened Attack

Lord Griffith said in Beckford v R [1988)1:

"A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the
first shot; circumstances may justify a pre-emptive strike."

Defence of Property

It can rarely, if ever, be reasonable to use deadly force for the protection of property.

In R v Hussey (1924), the defendant fired a gun through the door of his home which he had
barricaded himself to avoid being evicted by his landlady and some accomplices. He was acquitted of
the wounding charge on the grounds of self-defence. It was stated that it would be lawful for a man
to kill one who would unlawfully dispose him of his home. Note the fear of this case and the fact that
this would likely be deemed unreasonable under s3 Criminal Law Act 1967.
There have been many stories in the news recently where people have defended their home and
pleaded self-defence.

Learning activity 6
Search for and read a media articles where someone has defended their home and apply the
principles of self-defence. Do you think their defence would be valid? http://osclinks.com/5403
http://osclinks.com/5404

Mistake as to Self Defence

A defendant might believe that he is being threatened or that an offence is being committed but
actually be mistaken. As to whether this will impact on the validity of the defence and whether it will
be successful depend upon the circumstances.

The defendant is entitled to be judged on the facts as he honestly believed them to be:

In R v Williams (Gladstone) (1984), the defendant saw a man chasing a victim stating he had
committed robbery and that he was a policeman arresting him which was untrue. The defendant
hadn't witnessed this so asked to see his warrant card, Following a struggle, the defendant was
charged with ABH and at his trial raised the defence that he had mistakenly believed that M was
unlawfully assaulting the youth and had intervened to prevent any further harm. The trial judge
directed the jury that his mistake would only be a defence if it was both honest and reasonable. The
Court of Appeal quashed the conviction and held that the defendant's mistaken but honest belief
that he was using reasonable force to prevent the commission of an offence, was sufficient to afford
him a defence.

Duress by Threats

Duress occurs where the defendant is forced to break the law due to an under an immediate threat
of serious harm befalling himself or someone else, The defendant bears the burden of introducing
evidence of duress and it is then up to the prosecution to prove beyond all reasonable doubt that
the defendant was not acting under duress.

The Threat

The defence must be based on threats to kill or do serious bodily harm. Anything less will not suffice
but may assist in mitigation. In R v Singh [1973], the Court of Appeal held that a threat to expose the
defendant's adultery would not be sufficient grounds to plead duress.

It is generally accepted that threats of violence to the defendant's family would suffice.

The threats must be directed at the commission of a particular offence:

In R v Coles [1994] the defendant was charged with committing a number of robberies at building
societies. His family had been threatened if he didn't pay back money that he owed: however, he
was not told to commit the robberies in order to do so. Therefore, the threat was not for the crime
to be committed itself and therefore the defence was unsuccessful.

The Test for Duress

The two-stage test for duress is contained in R v Graham (1982) 1 WLR 294. In this case the
defendant had a homosexual partner and a wife whom all lived together. The defendant was on
drugs for anxiety and the partner, who was jealous of the wife, put a flex around her neck and told
the defendant to pull the other end. Both were charged with murder. The defence of duress was not
successful, despite the judge directing the jury favourably on this, and he was convicted. The Court
of Appeal, in confirming the conviction, laid down the model direction to be given to a jury where
the defence of duress was raised. The jury should consider:

(1) Whether the circumstances, as the defendant honestly believed them to be, compelled the
defendant to act as he did because he thought his life was in immediate danger. (Subjective test)

(2) Whether a sober person sharing the defendant's characteristics and of reasonable firmness
would have responded in the same way to the threats? (Objective test). Example case: R v Bowen
[1996]: http://osclinks.com/4428

(3) The jury should be directed to disregard any evidence of the defendant's intoxication as a part of
the duress (although intoxication can still be raised as a separate defence in its own right.

Immediacy

A person who is under duress must seek the protection of the law as soon as he can do so, Failure to
do this could render the defence unsuccessful. Furthermore, if the threat reduces or ceases then the
person must abstain from committing the crime as soon as he reasonably can.

In R v Hudson and Taylor [1971] two teenage girls were witnesses in a trial. During the trial gang
members of the accused threatened them and a member of the gang was sitting in the public gallery
during the trial to check what they said. Because of the threats the two girls committed perjury. In
appeal Lord Widgery CJ stated:

"The threat was no less compelling because it could not be carried out there if it could be carried out
in the streets of the town the same night and the rule does not distinguish cases in which the police
would be able to provide effective protection, from those when they would not. The matter should
have been left to the jury with a direction that, whilst it was always open to the crown to shown that
the defendants hod not availed themselves of some opportunity to neutralise the threats, and that
this might negate the immediacy of the threat, regard had to be had to the age and circumstances of
the accused".

Violent Gangs Voluntarily Joined

If the defendant has voluntarily jointed a violent gang, they cannot raise the defence of duress if that
gang later threatens them. Gnango (2011) http://osclinks.com/5405

Limitations

Duress is considered to be a general defence in criminal law, but there are a number of offences in
relation to which duress cannot be raised as a defence including murder and attempted murder.

Duress of Circumstances

Recently the courts have begun to show a willingness to allow the defence of necessity, or duress of
circumstances as some judges have described it, where there is a fear of death or serious bodily
injury:

Example case: R v willer (1986): http://osclinks.com/4338

Example case: R v Conway [1988]: http://osclinks.com/4339

Principles of the Defence

In Rv Martin [1989), the defendant who was disqualified from driving drove his stepson to work
claiming that he had done this because his wife had threatened to commit suicide unless he did so,
as the boy was in danger of losing his job if he was late. The wife had suicidal tendencies and a
doctor stated that it was likely that she would have carried out her threat. The Court of Appeal
allowed the defendant's appeal against his conviction, as the defence should have been left to the
jury.

Time Limit on the Defence

If the threat has ceased, then Duress of circumstances will be no excuse.

In R v Pommell [1995] the defendant was found guilty of being in possession of a firearm without a
firearms certificate after he had confiscated it from a friend in the early hours. He had intended to
take it to the police station the next day. The court of appeal quashed the convicting stating that the
trial judge had erred in ruling that the defendant's failure to hand over the gun to the police at the
earliest opportunity effectively denied him the right to have the matter left to the jury.

Application of the Defence

In R v Pommell [1995], the Court of Appeal held that the limited defence of duress of circumstances,
developed in English law in relation to road traffic offences, was closely related to the defence of
duress by threats and applied to all crimes except murder, attempted murder and some forms of
treason.

Unit 3 Tort Law

3.1 The Rules of Tort Law

Learning outcomes
- Rules and principles concerning liability and fault in actions for negligence, occupiers'
liability, nuisance and vicarious liability, and associated defences and remedies.

The law of tort deals with civil disputes between individuals and this module looks

at:

- Negligence
- Nuisance
- Negligent Misstatement
- Occupiers' Liability
- Vicarious Liability

Definition of Tort

The Oxford dictionary states that tort is:

"A wrongful act or an infringement of a right (other than under contract) leading
to legal liability."
Public nuisance is a crime as well as a tort
The word tort comes from the French meaning 'wrong'. Tort concerns civil wrongs leading to
possible compensation.

The relationship between tort and contract include:

- Duties in tort are imposed by law and apply generally, but contract duties are agreed by
the parties and apply to them only.
- Statute now imposes many contractual duties.
- There are potential overlaps, e.g., negligence and breach of implied conditions.
- Difficulties are created both by the exceptions to the privity rules in contract, and by the
tort action for economic loss, which blur the distinctions between the two areas.
- Sometimes a claimant has a choice in which area to sue, e.g. in contract for private
medicine where there is negligence.

Capacity in Relation to Tort

A claimant or defendant must have sufficient capacity in order to be a party to a civil claim. Although
a minor does not have capacity for this purpose, a suitable adult can represent them on their behalf.
This also applies to someone who is of unsound mind.

The Fault Principle

The general principle is that 'there can be no liability without fault', In Donoghue v Stevenson [1932]
Lord Atkin stated that the law of tort is "’based upon a general public sentiment of moral
wrongdoing for which the offender must pay’".

Most torts, although not all, require a standard of behaviour to be adhered to. A failure to meet this
can lead to negligence or, if the other person's rights have been infringed, could lead to trespass.
Failure to meet the standard can result in a legal remedy being provided to the aggrieved person.

The best example of where a claimant would need to prove fault is the tort of negligence. Among
the problems which such a claimant face are:

- Evidential difficulties it is not always possible to prove that the defendant was at faut even
though damage has been suffered.
- The need in some cases, for example where the damage suffered is nervous shock, to bring
the claimant within a recognised class of ‘victim’- failure may mean that although the actual
damage is the same, some claimants may succeed while others fail.

Whitehouse v Jordan [1981]: The claimant was a baby who suffered severe brain damage after a
difficult birth. The Lords found that the doctor's standard of care did not fall below that of a
reasonable doctor in the circumstances and so the baby was awarded no compensation.

Strict Liability

Not all torts require a standard of intention fault and the act alone is sufficient in order to be a tort.
These are known as strict liability. Examples include:

Product Liability under Consumer Protection Act 1987

Directive 85/374/EEC, which was transposed into UK law in Part 1 of the Consumer Protection Act
1987 (CPA), imposes strict lability on producers for harm caused by defective products.
This means that people who are injured by defective products can sue for compensation without
having to prove the producer negligent, provided that they can prove that the product was defective
and the defect in the product caused the injury.

The Directive applies to consumer products and products used at a place of work.

Liability under Rylands v Fletcher [1868]

In Rylands v Fletcher (1868) an independent contractor who was employed by the defendants failed
to seal mines they had located when digging to create a reservoir. As a result, when the reservoir
was filled it water it escaped into the mines owned by the Plaintiff causing damage. The Plaintiff was
successful both as part of the original claim and on appeal. Blackburn stated in this judgment that in
order to succeed in this tort the claimant must show:

1. That the defendant brought something onto his land;

2. That the defendant made a "non-natural use" of his land (per Lord Cairns, LC)

3. The thing was something likely to do mischief if it escaped;

4. The thing did escape and cause damage.

This rule was undermined in Cambridge Water Co Ltd v Eastern Countries Leather plc [1994],
however was confirmed to still have had a part to play in protecting the environment in the 21
century in Transco plc v Stockport Metropolitan Borough Council [2003].

Defences include:

- Consent
- Act of stranger - e.g., if a stranger over whom the defendant exercises no control causes the
escape there then is no liability.
- Act of God - this will only succeed for conditions of nature 'which no human foresight can
provide against' - e.g., extreme weather conditions.
- Statutory authority - if the escape is a direct result of carrying out the duty.
- Contributory negligence - damages may be reduced if the claimant is partly at fault for the
escape.

Vicarious Liability

If an employee commits a tort during their employment the employer may be liable for that
employee's negligent acts or omissions under the principle of vicarious liability, even if they hadn't
authorised the act. However, the employer may escape liability if he can demonstrate that employee
was acting 'on a frolic of his own'. In order to be vicariously liable, the tort by the employee must
also be established. No intention by the employer is required.

Limitation Periods

The Limitation Act 1980 sets down the time limits for bringing civil litigation claims:

s2 Most other tort claims 6 years

s5 Contract claims 5 years
s11 Personal Injury 3 years
S15(1) Recovery of land 12 years
s21(3) Breach of trust 6 years
s10(1) Contribution under Civil Liability (Contribution) Act 1978 2 years
Time will start to run as soon as the claim can be brought. Technically, this is the day after the
relevant fact occurred, as the law disregards any part of a day.

E.g., a person has an accident in work on Monday 1 November. If they wish to make a personal
injury claim time will start running from Tuesday 2 November. Therefore, the claim must be brought
by 1 November within 3 years. However, if the last day occurs on a day when the court is not open,
the claim must be issued on the first open day afterwards.

S33 LA 1980 gives the court discretionary power to extend these time limits. The court will consider
all the relevant circumstances of the case and what stopped the claimant from bringing the claim
within the specified time period.

E.g., if the claimant did not know the identity of the defendant; in a personal injury case, if the
claimant's injury was so serious that it justified him not bringing proceedings earlier; or, if the
defendant did not know that the injury was attributable to the alleged default.

Remedies

Under common law damages are available as of right as a remedy. You will recall from unit 1 that
equitable remedies are at the discretion of the court and these include specific performance and
injunctions. Remedies are further considered Later in this module.

3.2 Theory of Tort Law

Learning outcomes
Analysis and evaluation of when tort law imposes liability, with particular reference to the issues
specified below:
- basic understanding of the public policy factors governing the imposition of a duty of care
(the Caparo three-part test - see below) in a claim for physical injury to people and
damage to property
- basic understanding of the policy factors governing imposition of liability for pure
economic loss and psychiatric injury
- basic understanding of the factors governing the objective standard of care in an action
for negligence
- basic understanding of the factors governing the grant of an injunction as a remedy, and
the way in which conflicting interests are balanced
- basic understanding of the nature and purpose of vicarious liability.

A duty of care may be imposed in situations where two parties are not in a contractual relationship.
If harm is caused by someone's negligence, damages may be due.

Over the course of this section we will be looking at various types of tort and, in particular, the
following:

Public Policy - physical If society as a whole does not recognise that a duty of care should
injury to people and exist in certain circumstances then, as a matter of policy, it will not
damage to property be recognised. This is illustrated in the following case: Hill v Chief
Constable of West Yorkshire [1988]
Under the Caparo test in Caparo v Dickman (1990) the claimant
must establish:
1. That harm was reasonably foreseeable
 2. That there was a relationship of proximity
3. That it is fair, just and reasonable to impose a duty of care
Public policy- economic Pure economic loss is financial damage suffered as the result of the
loss and psychiatric injury negligent act of another party which is not accompanied by any
physical damage to a person or property. The Hedley Byrne v Heller
& Partners Ltd (1964) case introduced the concept that a claimant
could recover for economic loss arising from negligently made
statements.

Psychiatric injury is a complex area which has both expanded and

contracted. It must involve an actual psychiatric condition, e.g.,
post-traumatic stress disorder; temporary grief or fright is
insufficient.
Standard of care in The first element of negligence is that a duty of care exists between
negligence the claimant and the defendant. The leading case is Dononghue v
Stevenson (1932) which states: "You must take reasonable care to
avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbours .. who are persons so directly
affected by your act that you ought reasonably to have them in
contemplation. " In order to ascertain whether a duty arises, the
courts will look at the foreseeability, proximity and public policy as
per the Caparo 3-part test.
Injunctions This is an equitable remedy which prohibits the person whom it is
against from continuing with their actions.
Vicarious liability The party who causes the tort is known as a tortfeasor. Vicarious
liability is a means of imposing liability for a tort onto a party other
than the tortfeasor. For example, the employer of an employee. If
the employee carries out an authorised act, albeit in an
unauthorised way, the employer may be liable for the employee's
negligence.

3.3 Liability in Negligence for Physical Injury to People and Damage to Property

Learning outcomes
- Duty of care: the 'neighbour principle; the Caparo three-part test.
- Breach of duty: the objective standard of care.
- Damage: factual causation and legal causation (remoteness of damage).

Elements of Negligence

To establish negligence, an injured party must show 3 things:

- Defendant owed a duty of care to the Claimant

- Defendant breached that duty
- Claimant suffered damage as a result

The criteria came from the following case:

Donoghue v Stevenson [1932]: The claimant's friend bought her a bottle of ginger beer from a café.
The Claimant drank the ginger beer and then noticed a decomposed snail. She became ill and sued
the café. She tried to sue the retailer; however, it was held that there was no contract between
them as she did not purchase the beer.

This case created a general principle of liability in tort known as the 'neighbour principle'. This
emerged from the judgement given by Lord Atkin, who said:

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would
be likely to injure your neighbours who are persons so directly affected by your act that you ought
reasonably to have them in contemplation, "

Examples of neighbours include:

- Fellow employees at work

- Friends and family at social gatherings
- Fellow road users when driving your car

Therefore, a claimant can recover for any personal injury caused by someone's negligence.

Duty of Care

The first element is that a duty of care exists between the claimant and the defendant. It is therefore
necessary to question whether or not such a duty does exist. In order to come toa conclusion, the
House of Lords set out the requirements in Caparo v Dickman [1990] which state that the court
should first look at previously decided cases (judicial precedent). If no similar case exists, the extent
of the duty of care is questioned by several factors:

1. That harm was reasonably foreseeable

2. That there was a relationship of proximity

3. That it is fair, just and reasonable to impose a duty of care

Foreseeability

This involves the concept of the "reasonable man', the objective test. If the reasonable man could
not foresee injury, then no duty is owed: Bourhill v Young [1943] where a pregnant lady heard a car
crash, Her husband had died. She did not witness the crash as it was 50 metres away but returned to
the scene shortly after his body was removed and saw blood on the road. She went into shock and
had a still birth. The defendant was not liable as she had not witnessed the actual crash.

Proximity

This is just the modern term which is used to establish the 'neighbour test'. It requires that, in order
to prove the existence of the duty of care, there must be some proximity fact establishing a
relationship between the claimant and the defendant:

- Physical proximity (co-workers, fellow road users): the people around a defendant at any
time.
- Legal proximity (solicitor, financial advisor, manufacturer): thus, a legal advisor must make
certain that his advice to his client is not negligent, and a manufacturer must make certain
that his product does not negligently injure the consumer. In such a relationship there may
be no physical contact between the parties. They could be in contact by letter or telephone,
but there is a relationship which can establish a duty of care.
Blood ties (family relationships): This is an important test in the area of nervous shock. This is
demonstrated in: McLoughlin v 0'Brian [1982] where a family were involved in a car crash with one
family member dying. The car behind was being driven by a friend who also had the son of the family
in the car. As she witnessed the crash and saw the injuries she was entitled to claim for psychiatric
injury. This should be contrasted with Bourhill v Young; had she not been related to the victims then
her claim would have likely failed.

Alcock v Chief Constable of West Yorkshire [19921 this case was a result of the Hillsborough disaster
where 96 people died and over 400 were injured at a football match. Sixteen claims were brought by
people who witnessed the incident (some on television), however only 10 were sUccessful. Lord
Oliver set out the distinction between primary and secondary victims. For secondary victims to
succeed in a claim for psychiatric harm they must meet the following criteria:

1. A close tie of love and affection to a primary victim

2. Witness the event with their own unaided senses

3. Proximity to the event or its immediate aftermath

4. The psychiatric injury must be caused by a shocking event

Public Policy

If society as a whole does not recognise that a duty of care should exist in certain circumstances
then, as a matter of policy, it will not be recognised. This is illustrated in the following case: Hill v
Chief Constable of West Yorkshire [1988]. This involved the famous of case of the Yorkshire Ripper'
and was brought by the mother of a victim against the police as she believed them to be negligent in
their detention and detention of Peter Sutcliffe (the Yorkshire Ripper).

Limitation of a Duty of Care:

Prior to the acceptance of the Caparo three-part test judges often in the past identified policy
reasons as to the justification for refusing to impose liability in certain situations. There are many
examples of policy based either on the particular class of defendant or on the circumstances in
which the claim arises.

These are considered below:

- A lawyer owes a duty of care to their clients, Until Arthur Hall & Co v Simons [2000]
advocates enjoyed an immunity from being sued for negligence. Following this case, the
immunity was removed, and advocates can now be sued for negligence.
With regard to work carried out by a lawyer, other than advocacy, it has always been
possible to sue for negligence. Many past cases concern the preparation of wills:
Ross v Caunters [1980] where the solicitor failed to tell the testator not to have his signature
witnessed by the spouse of a beneficiary
White v Jones [1993] where the solicitor was instructed to make a Will but failed to do so
before the testator died.
- The police do not enjoy a general exemption from the ordinary law, but in some cases, it has
been held that no duty of care is owed: Hill v Chief Constable of West Yorkshire [1989]. In
some situations, a special relationship may arise however this does not mean that the duty
of the police to suppress crime includes a duty of care to victims of criminal activities. Osman
v Ferguson [1993]. A teacher had an obsession with a 14-year-old boy and took photos of
him and followed him home. The police were informed but no action taken. The teacher
 then stopped the boy talking to another student thinking they were having a homosexual
relationship. The teacher was suspended, and the police called on numerous occasions. The
teacher had admitted to the police that he was unable to control himself and would do
something criminally insane if not stopped. No action was taken, and he subsequently shot
the boy, who survived and his father, who died. The police were not liable due to the blanket
ban on negligence on the police following Hill v Chief Constable of West Yorkshire [1989].
However, there have been successful claims against the police in the past.
- Someone exercising a statutory power. Examples of a statutory duty of care include:
• Trustees of charities under Trustee Act 2000
• Education sectors
• Under the Data Protection Act 1998,
• Under Health and Safety at Work Act 1974
• Section 34(1) of the Environmental Protection Act 1990 imposes a duty of care on any
person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a
broker, has control of such waste.

A breach of a statutory duty is not in itself sufficient to give rise to a cause of action in tort.

- In some situations, the emergency services such as the fire authority will enjoy immunity
against actions for negligence. This is because no sufficient proximity or special relationship
exists between the services and the injured party and therefore, no duty in common law
exists. However, an emergency service may be liable if a named individual can be identified:
Kent v Griffiths (2000].
- Crown Prosecution Service. This has been considered in two cases:
Elguzouli-Daf v Metropolitan Police Commissioner [1995] where it took 22 days from finding
out that the semen sample take as evidence of rape did not match that from the victim to
release the accused from custody.
McBrearty v Ministry of Defence and Others [1995] where a person was detained for 85 days
following a bomb attack as he had residue of explosives on his hands but no other evidence.

Circumstances affecting the existence of the Duty of Care

Economic Loss

The Hedley Byrne case introduced the concept that a claimant could recover for economic loss
arising from negligently made statements. However, the courts have always distinguished such an
action from 'pure economic loss' arising out of negligent acts. The tradition was very clear - there
was no liability for a 'pure economic loss'. In the past this was based on policy and the idea that
'economic loss', for instance a loss of profit, was a concept applicable to contract law rather than
tort. The principle has been quite clearly stated and illustrated in past cases.

Spartan Steel v Martin & Co (Contractors) Ltd [i973]. In this case the road outside a factory was being
dug up and they accidently cut through a cable which impacted on the power supply. The claimants
sued for damage to the metal being smelted when the power turned off and also loss of profits
whilst being non-operational.

In the case Lord Denning explained the basis of the rule as follows: "It seems to me better to
consider the particular relationship in hand, and see whether or not, as a matter of policy, economic
loss should be recoverable or not."
There appears to be an artificial distinction here created for policy reasons purely for the purpose of
restricting any extension to liability. The distinction has the obvious potential to create unfair
anomalies in the law. For instance, it might mean that an architect giving negligent advice leading to
the construction of a defective building could be liable where the builder whose negligence leads to
a defect in a building may not be.

Nevertheless, other cases have confirmed the principle that a pure economic loss arising from a
negligent act is unrecoverable, Weller & Co v Foot and Mouth Disease Research Institute [1966]. A
virus escaped and affected cattle. A claim was brought under Rylands v Fletcher (see later) but was
unsuccessful.

Further erosion of the basic principle that pure economic loss is unrecoverable came as a result of
Lord Wilberforce's 'two-part' test, Anns v Merton London Borough Council [1978] where the council
failed to notice the foundations of flats were insufficient when carrying out an inspection, Lord
Wilberforce introduced the two-stage test:

"in order to establish that a duty of care arises in a particular situation, it is not necessary to bring
the facts of that situation within those of previous situations in which a duty of care has been held to
exist. Rather the question has to be approached in two stages. First one has to ask whether, as
between the alleged wrongdoer and the person who has suffered damage there is a sufficient
relationship of proximity or neighbourhood such that, in the reasonable contemplation of the
former, carelessness on his part may be likely to cause damage to the latter-in which case a prima
facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to
consider whether there are any considerations which ought to negate, or to reduce or limit the
Scope of the duty or the class of person to whom it is Owed or the damages to which a breach of it
may give rise."

Because of the availability of the Anns two-part test, the s0-called 'high water mark' was then
reached in respect of recovery for a pure economic loss. Junior Books Ltd v Veitchi Co Ltd [1983].
This case concerned subcontractors of the plaintiff who had been contracted to install a floor. The
floor was faulty, and the plaintiff brought an action for negligence for loss of profits. Lord Fraser's
explanation of the reasons for liability was that "the proximity of the parties is extremely close,
falling onty just short of a direct contractual relationship".

Almost immediately judges considered that the relaxation of the principle concerning recovery for
economic loss had now gone too far and they tried to limit the scope following various further cases.
Anns was eventually overruled (and is now covered by the Caparo test) and thus back to a more
restrictive attitude towards economic loss.

Psychiatric Damage

This is a complex area which has both expanded and contracted. It must involve an actual psychiatric
condition, e.g., post-traumatic stress disorder, temporary grief or fright is insufficient. Originally,
cases failed on the floodgates' argument and fear of faking.

The rules are as follows:

Deliberately caused shock is always actionable. Wilkingson v DowntOwn [1897. The defendant made
a joke to the wife of a friend that her husband had been in an accident and had broken both of his
legs. She suffered shock to her nervous system and weeks of incapacity. As his false representation
was a 'wilful injuria' and malicious the injury caused was not too remote and her claim succeeded.
Primary Victim: primary victims may not necessarily suffer any physical injury, however if they suffer
shock or were at risk of harm, this will be sufficient. Traditionally this included those who were
present at the scene. The test is a subjective one and therefore, if one person is more susceptible to
shock than another, it would not impact on claim.

Secondary Victim: Although not a primary victim, this category includes someone who witnessed the
incident, or its immediate aftermath and they have a close tie or love and affection for the victim.
The probable limit of this is in: McLoughlin v O'Brian [1982] and this can be contrasted with: Alcock v
Chief Constable of South Yorkshire [1992]. The test is an objective one, i.e., what would an ordinary
man have done' and therefore if the secondary victim was more susceptible to shock than another
this would not be taken into consideration. In Page v Smith [1996]. The claimant was in a car
accident which triggered his ME to become chronic and permanent. He was awarded E162,000 in
damages. Had he just witnessed an accident and not known any of the victims of the accident then
his claim may have failed through lack of "love tie and affection' to the victim.

In Alcock the judges were reluctant to allow claims because of a lack of both proximity in time and
space to the incidents at Hillsborough and turned down claims from people who had identified
bodies in the morgue sometime after the events of the match, Lord Oliver said that in order for a
'passive witness' to claim psychiatric damage, four factors must be taken into account:

- Relationship: A close tie may be presumed in certain relationships such as

parents/children /spouses.
- Physical proximity: for secondary victims their claims must arise from shock at being present
at the scene of the event or its immediate aftermath.
- See or hear the event or its immediate aftermath: it is not sufficient just to be told about it.
Furthermore, most television broadcasts would not suffice either, as in the Hillsborough
situation. This is because as there were so many victims it was not possible to identify deaths
of recognisable individuals. However, if the only primary victims involved were the relatives
of the secondary victims their claim may succeed.
- Sudden shock: In order to be successful generally the shock has to be associated with a
single traumatic event. Therefore, it is unlikely to be Successful where psychiatric injury is
sustained by a secondary victim over a gradual series of events.

The principles established in Alcock were applied in McFarlen v Caledonia Ltd [1995] where the
claimant was unsuccessful in claiming psychiatric injury when he assisted in putting out a serious fire
on an oil rig as at no point was he in physical danger.

Although the distinction between primary and secondary victims is still part of the law, its
importance was questioned in: White v Chief Constable of South Yorkshire Police [1999] which also
involved the Hillsborough disaster, however the claims were brought by the police in attendance
that day and not the public.

Omissions

The law does not include any general liability for omissions or failing to act. Historically, this is
because showing that somebody failed to prevent harm is much more difficult that showing that
they caused it; and ft is hard to define the situations in which it could be said that a defendant
should act and there is a distinct possibility of unfairness in doing so. For instance, should a person
who sees someone drowning be obliged to jump in to attempt a rescue even if he cannot swim
himself?
The law has, however, recognised a number of exceptions where there will be a duty to act and
liability resulting where a party then fails to act:

The defendant owes a duty by a contractual or other undertaking: In general, liability in this
instance will arise as a result of an omission, the failure to act according to the terms of the contract.
The duty might also arise from the specific character of an actual undertaking. An example is a
passenger injured in a car accident because the driver failed to apply the brake. The duty of care
arises from the negligent driving rather than the failure to apply to the brake.

The defendant owes a duty because of a special relationship with the claimant:

Clearly in certain situations the nature of the defendant's duty arises because of the potential
danger to the public presented by the activity carried out by the defendant. This duty is particularly
appropriate to public bodies. In such a case the defendant may have a duty to act and a failure to act
will lead to liability: Barrett v Ministry of Defence [1995]. The Claimant's husband died after drinking
an excessive amount of alcohol during a drinking competition whilst serving the navy and staying on
their base in Norway. The claim was successful as the MOD had breached their duty of care by
allowing excessive drinking which practice. The damages were reduced due to contributory
negligence.

Trespassers to Land

There is a limited duty of care owed to trespassers of land by the oCCupier. Revill v Newberry [1996].
The owner of an allotment had taken to sleeping in his shed following various break ins., One night
he shot the thief through the shed door. Both were charged with their crimes, however the
allotment owner escaped criminal conviction. The thief brought a civil action for his injuries and was
successful but had his damages reduced due to contributory negligence.

Until the Occupiers Liability Act 1984 was introduced, trespassers could only rely on the common
law to bring a claim against an occupier. This was extremely limited and generally there was no duty
of care towards trespassers unless the occupier had deliberately or recklessly inflicted damage or
injury.

Rescuers

For the defendant to successfully raise the defence that the claimant made a voluntary acceptance
of the risk, the claimant must have had a genuine free choice, freedom of will and no feeling of
constraint.

The fact that the claimant has engaged in or attempted a rescue does not mean that he has
voluntarily accepted the risk: Haynes v Harwood [1935]. A horse and cart which had been left
unattended bolted when a boy threw a stone. A police officer was injured, and the owner of the
horse was liable as she shouldn't have left them unattended.

However, if there is no actual danger then a claimant in such circumstances may indeed, have
voluntarily accepted the risk of harm, Cutler v United Diaries (1933]. The claimant entered afield to
calm some horses; however, his claim was unsuccessful as there was no immediate danger to
persons or property so there was no need to intervene.

The courts do look favourably on people who have attempted a rescue and suffer injury as a result
even where there was no duty to rescue the person in distress. It should be noted that rescuers do
not usually act voluntarily and instead feel compelled to act by the situation.
There are two tests:

1. A person who creates a dangerous situation is liable for all the foreseeable consequences of his
negligence.

2. The courts have decided as a matter of policy that a rescuer deserves favourable consideration on
moral grounds.

The rules have been extended to impose liability for injury to members of the emergency services.
Ogwo v Taylor [1987] where a fireman suffered burns and injury when attempting to extinguish a fire
set by the defendant who was burning off paint from the fascia boards on his home.

In Hale v London Underground [1992] where a firefighter assisting the fire of 1987 at the Kings Cross
Station collapsed from exhaustion and suffered post-traumatic stress disorder and depression.

Breach of the Duty

In order to ascertain whether a defendant has breached their duty of care, the courts will look at
whether an ordinary reasonable man would have done the same. In addition, the courts will take
into account various other factors.

Likelihood of Danger

The more likely the harm, the more caution is required: in Bolton v Stone [1951] where a cricket ball
was struck and went over the fence hitting someone on the head. It was held that as the ball had
only gone out of the stadium 6 times in the last 30 years the likelihood was remote, and no further
precautions should have been made.

The Vulnerability of the Claimant

If the risk of serious injury is higher than normal, then further caution is required. In circumstances
where the risk of serious injury is higher, more caution is required. For example, employees' age,
disability, experience, etc. Paris v Stepney Borough Council [1951). The claimant had lost an eye in
the war. He was employed as a mechanic and a piece of metal went into his only eye and rendered
him blind, It was held that goggles should have been supplied.

The Utility of the Defendant's Action

If the purpose is socially valuable and important, abnormal risk is more justified: Watt v
Hertfordshire County Council [|1954]. A firefighter was injured following loading cutting equipment
onto a normal lorry rather than the specialist vehicle as it was urgently needed at a serious road
accident. The claim failed.

Cost of Avoiding the Harm

The cost of eliminating the danger is not a valid defence. However, the court does recognise a
balance between the risk and the cost of elimination. If the risk is very remote and the precautions
to be taken to eliminate it are very expensive, the defendants may be justified in doing nothing.
However, the greater the risk the less consideration is given to the cost of the measures which the
defendants could have taken to guard against it.

Ultimately, the courts will look at whether the defendant had acted reasonably in the circumstances.
This is seen in: Latimer v AEC I19531, Sawdust had been put down on an oily factory floor following
an exceptionally heavy storm. The claimant slipped and injured his ankle; however, the defendant
was not liable despite the sawdust not going over the whole floor.

Proof of the Breach

The burden of proof is on the claimant to show that the defendant was negligent. The standard of
proof is on the balance of probabilities.

S11(1) Civil Evidence Act 1968 states:

In any civil proceedings the fact that a person has been convicted of an offence by or before any
court in the United Kingdom or by a court-martial there or elsewhere shall (subject to subsection
(3) below) be admissible in evidence for the purpose of proving, where to do so is relevant to any
issue in those proceedings, that he committed that offence, whether he was so convicted upon a
plea of guilty or otherwise and whether or not he is a party to the civil proceedings; but no
conviction other than a subsisting one shall be admissible in evidence by virtue of this section.

This allows a claimant to produce evidence of a conviction for any criminal offence arising out of the
situation which led to the action for negligence. For example, if the defendant was convicted of
careless driving and the claimant was claiming for damage as a result of the same accident, he can
use the conviction as evidence in his trial. This shifts the burden of proof to the defendant to show
he wasn't negligent.

Res Ipsa Loquitur

This means the thing speaks for itself - it is a means of establishing negligence where proof is hard to
come by.

The doctrine in effect means that the defendant has to prove that he was not negligent if the plea is
raised successfully. Scott v London & St Katherine Docks Co [1985] where heavy bags of sugar fell
from a crane and injured the claimant. It was difficult to establish the breach as the claimant could
not prove what happened. Res lpsa Loquitur was applied, and the court held that this accident was
not the sort of thing which would occur unless someone had been negligent.

There are 3 essential aspects to the plea:

1. At all material times events leading to the damage were under the control of the defendant;
2. The incident is of a type usually associated with negligence.
3. There is no other explanation.

The application has been seen in two contrasting cases:

Ward v Tesco Stores [1976] where the claimant fell on spilt yoghurt on the floor at Tesco. Pearson v
North Western Gas Board [1968). The gas main outside the claimant’s house exploded, killing her
husband and destroying the house. The gas board was able to show they had not been negligent as
they had taken all reasonable precautions to prevent gas leaks.

Damage and Causation

There must be a causal link between the breach and the loss. This means that it must be proved that
the defendant's breach of the duty of care resulted in the claimant suffering the loss. This is divided
into causation in fact and causation in law.

Causation in Fact
The courts will look at the facts of the case and one test they apply is the 'but for" test, i.e. would the
claimant have suffered ""but for" the defendant's negligence? If the answer is 'no', then the
defendant is liable. To demonstrate this, we can look at the case Barnett v Chelsea & Kensington
Hospital [1969]. Here Mr Barnett had gone to the hospital with severe stomach pains and vomiting.
The nurse telephoned the doctor on duty who said to send him home and he died 5 hours later of
arsenic poisoning, Even if the doctor had seen him and diagnosed the illness correctly, he would stilL
have died.

However, the 'but for' test does not solve all problems.

In cases where there are several causes of injury the claimant need only show that the defendant's
negligence made a material contribution to the damage.

The position is more complicated when the claimant's second injury occurs when he is doing
something that he would not have been doing had it not been for the first injury. Baker v Willoughby
[1970] where the claimant was first knocked down by a car and suffered injury to his left leg which
left him with mobility issues. Three years later he became a victim during an armed robbery where
he sustained gunshot wounds to the same leg. The leg was then amputated. The court took the view
that if Mr Willoughby had not been negligent in his driving to begin with, the complainant would not
have lost his leg and he was therefore liable for the overall injury.

Jobling v Associated Diaries [1982] where a butcher slipped on the floor and suffered a slipped disc
at work. He was put into a different role due to his inability to carry out heavy lifting but saw a 50%
drop in his wages. It transpired he had a pre-existing spinal disease which was not part of the
accident and he would have been unable to work even if the accident had not oCcurred. He was
therefore only awarded damages and partial earnings for 4 years.

Causation in Law

If the defendant is liable in fact, it is necessary to decide whether it is recognised in law.

Factors taken into consideration:

Remoteness of Damage

The defendant's act may cause the damage, but he will not be liable if the damage is too remote.
Therefore, if the damage is not of the kind, type or class foreseeable, then the defendant will not be
liable. This is seen in the following case: The Wagon Mound [1961] where oil leaked from a ship into
the Sydney Harbour and a spark from welding set it on fire. The events and damage could not be
reasonably foreseen and therefore the claimant was unsuccessful when claiming for damage to the
wharf.

If the kind of damage can be foreseen, the defendant will be liable.

Novus Actus Interveniens

The defendant's negligent act may be just part of the chain of causation leading to damage to the
claimant. If, after the defendant's original negligent act, a new act happens which overrides his
negligent act, this is known asa 'novus actus interveniens', a new act intervening. This will have the
effect of transferring the liability from the defendant to whomsoever caused the new act.

The intervening act may be that of the claimant himself:

Mckew v Hollan & Hannen & Cubitts (Scotland) Ltd [1969] where the claimant injured his back and
hips at work due to his employee's breach of duty. His legs were prone to giving way, yet he
attempted to go down steep concrete steps. Realising he was not going to be able to get to the
bottom he jumped 10 steps and broke his ankle leaving him with permanent disability. The employer
admitted breach to the first injury but not the second. The claimant's action amounted to a novus
actus interveniens as his attempt to go down the stairs unaided was unreasonable. The defendant
was therefore not liable for the injuries resulting from the incident on the stairs.

Sayers v Harlow Urban District Council [1958]. The claimant was locked in a public toilet for 15
minutes so decided to try and climb over the door. She stood on the toilet roll holder and slipped
causing injury. The Council were found liable; however, her damages were reduced due to
contributory negligence.

The act may also be of an intervening third party: Topp v London Country Bus Ltd [1993]. A minibus
had been left in a layby with the keys in the ignition overnight. The employee didn't turn up to
collect this for his shift and the bus was stolen. The thieves ran over a woman on her bicycle;
however, it was held that this was not foreseeable, and the bus company did not owe a duty for the
third party.

The position may be different if there is a special relationship between the claimant and defendant if
the defendant has assumed responsibility for the claimant: Stansbie v Trowman [1948] a decorator
was left at a home he was working in alone. He went out for 2 hours but left the door unlocked
during which time a thief entered and stole various items. It was held that the decorator was liable
as he had a duty to take reasonable care when leaving the premises unoccupied.

The 'Eggshell Skull Rule

The defendant 'must take his victim as he finds him'. This means that if the claimant has a special
sensitivity and suffers more than the ordinary person would have then this is no defence. This is
demonstrated in: Robinson v Post Office [1974). An employee was injured at work and suffered from
tetanus. He was given an anti-tetanus drug; however, the doctor didn't conduct a test first to check
for an allergic reaction and gave him the full dose instead of waiting 30 minutes from the test dose.
It was held that the allergic reaction he did sustain would not have been visible after 30 minutes, so
the employer was still liable for the reaction to the treatment.

Learning activity 1
Watch this lecture on the duty of care:
https://www.youtube.com/watch?vmv1 b3AoDkblg
this is a more direct link to the lecture on the duty of care
http://osclinks.com/4340

3.4 Liability in Negligence for Economic Loss and Psychiatric Injury

Learning outcomes
- Liability for pure economic loss caused by negligent acts and negligent misstatements.

Whilst physical damage and personal injury fall within tort and compensation will be payable for
them, economic loss is not so easy to claim as this tends to fall more within the remit of contract
law.
Traditionally, negligent statements were only actionable under the tort of deceit and the statement
had to be fraudulent.

The House of Lords eventually accepted that there should be a duty of care to the investor and any
third parties: Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964]. In this case a reference was given
by the bank to an advertising agent who was entering into a contract with a client where they would
be personally liable if the client defaulted. The reference was favourable; however, it included an
exclusion clause and when the client defaulted the advertising agency tried to sue the bank. The
claim failed and the bank could rely on their exclusion clause. However, the House of Lords ruled the
pure economic loss would arise if 4 conditions were met:

1. a fiduciary relationship of trust & confidence arises/ exists between the parties;

2. the party preparing the advice/information has voluntarily assumed the risk;

3. there has been reliance on the advice / info by the other party, and

4. such reliance was reasonable in the circumstances.

Elements of Negligence Misstatement

A duty can therefore apply even where there is no contractual relationship and liability for an
economic loss can be imposed. Strict guidelines for when the principle could apply were laid down
by the House of Lords:

1. There must be a special relationship between the two parties-based on the skill and judgement of
the defendant and the reliance placed upon it.

2. The person giving the advice must be possessed of special skill relating to the type of advice given-
so the defendant ought to have realised that the claimant would rely on that skill.

3. The party receiving the advice has acted in reliance on it and in the circumstances it was
reasonable for the claimant to rely on the advice.

The claimant must prove that he relied on the statement and the defendant knew he was relying on
it or knew that the reliance was highly likely.

Claimant's Reliance

It is only fair and logical that if there has been no reliance placed on the advice given then there
cannot be liability on the defendant for giving it. Where there is a foreseeable reliance on advice
that has been given, there will be a duty of care owed. Inevitably for a claim to succeed it must be
shown that reliance on the negligent given advice was indeed reasonable. Chaudhry v Prabhakar
[1989)

Defendant's Knowledge

The second test is obviously whether the defendant knew or ought reasonably to be expected to
know of the reliance on the advice given. This means that the defendant must have known that the
claimant would have relied on the advice and Known what action the claimant was likely to take
following the advice being given. Caparo Industries plc v Dickman [1990]
The defendant must know who is likely to rely on the advice and also the type of undertaking that is
to be based on the advice. Smith v Eric S Bush (A Firm) [1989]. A mortgage valuation failed to note
that the chimney of a house had structural damage. The question arose as to whether the valuer
who was employed by the lender was also responsible to the borrower who was not a party to their
contract. It was held that they were as the borrower was a private individual using the property as a
family home, however the outcome may have been different had it been a business property.

There is generally no liability to a claimant who relies on the information intended for another
person. Goodwill v British Pregnancy Advisory Service [1996] where a woman brought a claim after
she conceived a child with a man who had undergone a vasectomy which was unsuccessful. He had
not been notified of the risks of reversal. It was held there was no duty of care to her.

Development of Negligent Misstatement

It has been seen that the courts are sometimes willing to extend the situations in which damages will
be awarded for negligent statements. Spring v Guardian Assurance plc [1994] where a past employer
provided an unreasonable reference for a new employment position.

3.5 Occupiers' Liability

Learning outcomes
- Liability in respect of visitors (Occupiers' Liability Act 1957).
- Liability in respect of trespassers (0ccupiers' Liability Act 1984).

Occupiers' liability concerns the liability of an 'occupier' of land or premises for the injury or loss or
damage to property suffered by claimants while on the occupier's premises.

Occupiers' liability is a recent tort and is found in two statutes:

1. the Occupiers' Liability Act 1957- which is concerned with the duty of care owed to all lawful
visitors; and

2. the Occupiers' Liability Act 1984 - which is concerned with the duty owed to people other than
lawful visitors, the major group here being trespassers.

The law overlaps with that of negligence and the claimant is entitled to sue in both: Ward v Tesco
Stores [1976] (see above).

Liability to Lawful Visitors

Who is an Occupier?

An occupier has no statutory definition in either the 1857 or 1984 legislation. However, s1(2) of the
1857 Act states that the rules apply ".in consequence of a person's occupation or control of
premises"", As there is no firm statutory test, the courts will therefore look to the common law,
Wheat v E Lacon & Co Ltd [1966]. The claimant's husband fell down the stairs which were steep and
narrow and unlit in a public house and died. It was held that both the Brewery and the Landlord had
a duty of care.

It may be that there is more than one occupier. For example, the owner of the property and also a
party who was in control of the premises such as a building contractor.

Who is a Visitor?
Although the common law did deal with the duty owed by occupiers, it was complex and varied,
Therefore the 1957 Act was passed in order to simplify this. The Act introduced a common law duty
to be applied to all lawful visitors.

s1(2) sets out the classes of people to whom the occupier owes a duty, and these

are known as 'visitors':

- Invitees - people who not only have permission to enter but whose entry is in the material
interest of the occupier. E.g., friends making a social call or people invited onto land, for
example, to give a quote for work.
- Licensees - these are people whose entry is to the material interest of the occupier, for
example customers. They can include anyone with permission to be on the premises for
whatever purpose.

An Implied licence can also be created in the following situations, for example:

Those entering under a contractual agreement which could occur in one of two situations:

a. Where the person has a direct contract with the occupier, for example, a painter, plumber, etc.

b. Where the person entering has a contract with a third party, for example, a sub-contractor. In this
case they act as a licensee.

Those not requiring any permission to enter because of a legal right to enter, for example meter
readers, police officers in execution of a warrant, etc.

The 1957 Act imposes no duty of care towards trespassers. A more limited duty is owed to
trespassers under the Occupiers' Liability Act 1984.

Definition of Premises

As with the definition of 'occupier there is no fixed definition within either of the Acts. Again, there is
some limited reference which is given in s1(3)(a) and this refers to a person having occupation or
control of any “… fixed or moveable structure, including any vessel, vehicle and aircraft”.

As a result, the common law again applies and besides the obvious such as houses, buildings and the
land itself, premises have also been held to include:

- Ships in dry dock

- Vehicles
- Aircraft
- Lifts
- And even a ladder!

The Common Duty of Care

SZ(1) sets out the extent of the duty as "an occupier owes the same duty, the common duty of care,
to all his visitors except insofar as he is free to do and does extend, restrict, modify or exclude his
duty to any visitors by agreement or otherwise".

S2(2) sets out the nature of the duty "to take such care as in all the circumstances of the case is
reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for
which he is invited or permitted by the occupier to be there".
Liability to Children

Under s2(3) the occupier 'must be prepared for children to be less careful than adults . the premises
must be reasonably safe for a child of that age'.

Therefore, the standard of care is measured subjectively rather than objectively. What may pose a
threat to a child may not be a risk to an adult. Children do not appreciate risks in the same way as
adults and could be 'allured' into taking a risk by being attracted to the danger.

In Glasgow Corporation v Taylor [1922] a 7-year-old boy died after eating poisonous berries when
visiting a botanical garden.

The courts will sometimes take the view that very young children should be under the supervision of
a parent or other adult. In this case the occupier might find that he is relieved of liability. Phipps v
Rochester Corporation [1955] where a 5-year- old boy was injured after falling into a trench when
walking in open land with his 7-year-old sister.

Liability to Persons Entering to Exercise a Calling

With regard to professional visitors, s2(3)(b) states that in relation to activities carried n within the
trade the occupier is entitled to except that “... a person, in the exercise of his calling, will appreciate
and guard against any special risks ordinarily incident to it”.

Where tradesmen fail to guard against risks which they should know about the occupier will not be
liable. Roles v Nathan [1963] where two brothers, chimney sweeps, died after ignoring various
warnings from an engineer as to the risk of carbon monoxide and after being physically removed
from the building and told to come back tomorrow they returned in the evening to finish the work
without authorisation.

Liability to Contractors

The level of trust put into the contract must be reasonable. This may differ according to the scenario
including the status of the parties (private individual or business) and the nature of the work.

The occupier may be expected to inspect the work. It is the occupier's duty to ensure that a
competent contractor is chosen who has public liability insurance cover. Gwilliam v West
Hertfordshire NHS Trust (2002]. The hospital held a fayre and contracted with an entertaining
company for a splat wall (trampoline bouncing onto Velcro). The splat wall was not set up correctly
and a 63-year-old lady injured herself. It was held that the hospital should have checked the
insurance of the contractor.

Defences

Under s2(1) the occupier is free to extend, restrict, modify or exclude his duty to visitors and there
are various methods of achieving this:

Warnings

Under s2(4)(a) a warning will not absolve the occupier of liability unless .. in all the circumstances it
was enough to enable the visitor to be reasonably safe.'

What amounts toa sufficient warning then will be a question of fact in each case. In Roles V Nathan
[1963] a warning that access over a footbridge was unsafe as it was rotten was not acceptable as
there was no other means of access, so the visitor had no choice but to go over the same.
Exclusion Clauses

In article 4, Contract Law, you will learn that a clause may be inserted into a contract which aims to
exclude or limit one party's liability for breach of contract or negligence. E.g. in a car park you will
find notices avoiding liability for damages to cars.

S2(1) of the 1957 Act allows an occupier to exclude liability 'by agreement or otherwise'. The use of
exclusion clauses, however, will be subject to various restrictions:

- You cannot exclude liability to a person entering under a legal right.

- Visitors must have had a chance in advance to agree to the exclusion.
- If a child is unable to read or understand the terms it will not apply.
- Consumer Rights Act 2015 states you cannot exclude liability for death or personal injury.

You cannot exclude the minimum standard of care to trespassers under the Occupiers Liability Act
1984.

Consent

S2(5) provides that an occupier is not liable to a visitor for risks which the visitor willingly accepts.

Liability to Trespassers

Under the common law trespassers were dealt with harshly and therefore the 1984

Act was introduced to provide a limited duty of care mainly towards trespassers.

An example of a case before the legislation was enacted is British Railways Board v Herrington [1972]
where a 6-year-old boy was electrocuted and suffered severe burns when he wandered from a park
onto a live railway. Under previous case law the occupier would have been found not liable if the
Lords had followed precedent. However, they used the 1966 Practice Statement to allow them to
depart from their previous decisions and found that the railway board, who had known about the
gap in the fence but not fixed it, were liable.

By s1(1)(a) a duty applies in respect of people other than visitors (who are covered by the 1957 Act)
for injury on the premises by reason of any danger due to the state of the premises or things done or
omitted to be done on them.

Damage to property is not covered under the 1984.

The occupier will only owe a duty under s1(3) if:

(a) he is aware of the danger or has reasonable grounds to believe it exists; (a subjective test)
(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger
(in either case whether the other has lawful authority for being in that vicinity or not);
(subjective test) and:
(c) the risk is one against which, in all the circumstances of the case, he may reasonably be
expected to offer the other some protection. (objective test)

According, to s1(4) the duty is to "... take such care as it reasonable in all the circumstances' to
prevent injury to the non-visitor 'by reason of the danger concerned'.

This was applied by the Court of Appeal in: Revill v Newberry [1996] (referred to above)
As with negligence, an objective test is applied, i.e the ordinary man. The facts of each case will be
considered and how serious the risk was. If the risk were significant then greater precautions would
be required. Various factors will be considered such as how easy it is to put the precautions in place,
the type of premises, whom the risk is applicable to, i.e. is it a child or an adult?

Ratcliff v McConnell & Others [1999] - the claimant became paralysed after diving into the shallow
end of the college pool in the evening after he had been out drinking with friends. Although the pool
had signs to state the depths, the college were still liable as they were aware that the pool was often
used by students in the prohibited hours. The damages were reduced by 60% due to contributory
negligence.

The mere fact that the occupier has taken precautions or fenced the premises does not in itself
indicate that the occupier knew or ought to have known of the existence of danger.

Defences

S1(5): the occupier may give an effective warning to the trespassers

S1(6): the consent of the trespasser is also a defence as no duty is owed for risks 'willingly accepted'.

Learning activity 2
Research the case of: Furmedge v Chester-le-street District Council [2011] and watch the
following Dreamspace accident scene video: http://osclinks.com/4341
What does it tell us about an occupier?

3.6 Nuisance and the Escape of Dangerous Things

Learning outcomes
- Private nuisance.
- The rule in Rylands v Fletcher.

Nuisance is anything that disturbs the free use of one's property, or that renders its ordinary use
uncomfortable. In tort law it is a wrong arising from unreasonable or unlawful use of property to the
annoyance or damage of another or of the public.

What is Nuisance?

Nuisance is defined as 'continuous, unlawful and indirect interference with a person's enjoyment of
land or some right over, or in connection with it'.

It is thus a legal action to redress harm arising from the use of one's property.

The two types of nuisance are private nuisance and public nuisance.

- A private nuisance is a civil wrong; it is the unreasonable, unwarranted, or unlawful use of

one's property in a manner that substantially interferes with the enjoyment or use of
another individual's property, without an actual trespass or physical invasion to the land.
- A public nuisance is a criminal wrong; it is an act or omission that obstructs, damages, or
inconveniences the rights of the community.

Private Nuisance
Private nuisance is a continuous, unlawful and indirect interference with the use or enjoyment of
land, or of some right over or in connection with it. Lord Lloyd in Hunter v Canary Wharf [1997]
stated that private nuisances are of three kinds.

They are:

(1) nuisance by encroachment on a neighbour's land;

(2) nuisance by direct physical injury to a neighbour's land; and

(3) nuisance by interference with a neighbour's quiet enjoyment of his land.

The claimant must prove the following in order to succeed with a claim of private nuisance:

Substantial Interference

The claimant must show that he has suffered a substantial interference with his enjoyment or use of
land, or material physical damage to the land or things on the land.

In order to rely on physical injury to the property it must reduce the value and must be 'more than
merely trifling'. This must be distinguished from personal discomforts as illustrated in St Helen's
Smelting Co v Tipping [1865] where the claimant purchased a manor house with 1300 acres of land
which was situated a short distance from the defendant's copper smelting business. He brought a
nuisance action against the defendant in respect of damage caused by the smelting works to their
crops, trees and foliage. The defendant argued that the use of property was reasonable given the
locality and the smelting works existed before the claimant purchased the property. Where there is
physical damage to property, the locality principle has no relevance. It is no defence that the
claimant came to the nuisance.

This also makes it clear that where actual physical damage is caused as a result of the activity, the
issue of locality is not relevant. In St Helen's Smelting Co v Tipping [1865] the fact that the industrial
use which caused physical damage occurred in an industrial area was held to be irrelevant.

The interference may be over a short period or a long period of time. Generally, the latter is more
likely to be successful, however, provided it is continuous, an isolated incident can still lead to
nuisance. Castle v St Augustine's Links Ltd [1922) where golf balls were constantly being hit onto a
road close to the course due to the location of one of the holes. This was held to constitute a public
nuisance.

The Interference was Indirect.

The interference must be indirect. A simple example to illustrate this arises from a garden bonfire.
The lighting the bonfire may not be a nuisance, however the indirect consequence of that activity is
the smoke which goes onto neighbour's washing and through their open windows.

The Defendant's Conduct was Unreasonable or Unlawful

The claimant must prove that the defendant's conduct was unreasonable. The rule is sic utere tuo ut
alienum non laedas (so use your own property as not to injure your neighbour's).

The court will take the following factors into account in assessing the reasonableness or otherwise of
the defendant's use of land:

- The locality: It was stated in Sturges v Bridgman (1879) that: "What would be a nuisance in
Belgravia Square would not necessarily be so in Bermondsey."
 - The utility of the defendant's conduct: If the community will benefit then it is unlikely to be
a nuisance. In Harrison v Southwark Water Co [1891] building work carried out at reasonable
times of the day did not amount to a nuisance, however in Adams v Ursell [1913] a fried-fish
shop was a nuisance in the residential part of a street.
- Motive: It is not necessary to establish malicious behaviour on the part of the defendant,
but it may be regarded as evidence of unreasonableness. In Christie v Davey [1893] the
plaintiff had been giving music lessons in his semi-detached house for several years. The
defendant, irritated by the noise, banged on the walls, shouted, blew whistles and beat tin
trays with the malicious intention of annoying his neighbour and spoiling the music lessons.
An injunction was granted to restrain the D's behaviour, In Brodford Corporation v Pickles
(1895] the plaintiff deliberately diverted water flowing through his land, away from his
neighbour's property as he intended to force them to buy his land at an inflated price, It was
held that he was committing no legal wrong because no-one has a right to uninterrupted
supplies of water which percolates through from adjoining property.

How Practical is it to Stop Nuisance?

In Moy v Stoop [1909] an elderly woman living in apartment took action against neighbour for the
constant crying of a baby. It was held that the mother was not doing anything wrong and the baby
was not being neglected. As there was no treatment for the crying there was no nuisance.

The Degree and Duration of the Damage

The interference must be continuous, and an isolated incident can be a nuisance if arising from a
continuous state of affairs. The cause could be over a long-time span, but very short time spans have
also been accepted.

The Effect on the Claimant's Land

If the claimant's own use of land is hypersensitive to the interference he may fail as the real reason
for the loss of use or enjoyment may not be from the defendant's activity. In Robinson v Kilvert
[1889] the claimant's paper which was being stored was unusually sensitive to heat. The defendant
was not liable as the conditions in the factory were not unusual.

However, if the defendant can show that the damage would have been caused regardless of the
sensitivity of the land, the claim may succeed. McKinnon Industries Ltd v Walker [1951] where the
claimant's orchids which he grew for commercial reasons were damaged by the defendant's steel
business causing noxious fumes and smut.

There are times when a nuisance may arise from natural causes. Where this occurs, the occupier
should take reasonable steps to ensure that the nuisance is diminished in order to prevent the harm
taking place. Leakey v National Trust [1980] where natural falls of land from the defendant's
property caused damage to the claimant's property. She had previously notified the defendant of
cracks and had offered to pay half. The defendant was liable.

Who Can Sue?

Only a person who has a proprietary interest in the land affected by the nuisance will succeed in a
claim, e.g. as owner or reversioner, or be in exclusive possession or occupation of it as tenant or
under a licence to occupy.

Malone v Laskey [1907] - The plaintiff was using a toilet when the lavatory cistern fell on her head
because of vibrations from machinery on adjoining property. Her claim failed as she was merely the
wife of a mere licensee and had no proprietary interest herself in the land. However, today she
would be able to claim in negligence.

However, the wife of a homeowner would be able to sue as she has a beneficial interest in the
matrimonial home, per Lord Hoffman, Hunter v Canary Wharf [1998].

Who May be Sued?

Creator of the nuisance: Any person who creates the nuisance Can be sued, whether or not that
person is the occupier of the land at the time of the action, Occupiers: Occupiers who adopt and
continue to allow nuisances on their land may also be liable, even if such nuisances were created by
predecessors in title, trespassers or third parties. Example: Sedleigh Denfield v O'Callaghan [19401:
http://osclinks.com/4342

Landlord: A landlord may be liable for nuisances emanating from land, e.g. if the landlord had
knowledge of the nuisance before letting, or where the landlord reserved the right to enter and
repair the premises. For example: Tetley v Chitty [1986] when the Council granted permission for a
go-kart track on council-owned land they were liable in nuisance for noise.

Remedies for Private Nuisance

- Injunction: An injunction will only be granted at the discretion of the court, For example, an
injunction was refused: Miller v Jackson [1977] Where a cricket club was liable for the
nuisance created by balls being hit out of the ground.
- Damages: In cases of nuisance by encroachment or damage to land, the measure of
damages will be the diminution in the value of land; in cases of interference with enjoyment
the measure will be the reduction in amenity value. The cost of repairs or other remedial
works is also recoverable.
- Abatement: This is the remedy of self-help, e.g. removing over-hanging tree branches, which
are a nuisance.

Public Nuisance

In A-G v PYA Quarries (1957] Lord Justice Romer stated that Public nuisance is an act "which
materially affects the reasonable comfort and convenience of life of a class of Her Majesty's
subjects".

It is primarily a crime, prosecuted by the Attorney-General. An individual may also bring an action
where he can show that he has suffered special and peculiar damage over and above the rest of the
public: Halsey v Esso Petroleum [1961] The claimant lived down the road from Esso Petroleum and
claimed that emissions are an offensive smell; that they damage his linen and car's paint and that he
is also kept up at night by the noise from the trucks. It was held that this was nuisance and an
injunction was granted at night.

The factors required to prove public nuisance are similar to those of private nuisance. One main
difference is that public nuisance is not limited to damage caused to the land owned by the claimant.
Attorney-General v Gastonia Coaches [1977] see here for the case summary:
http://osclinks.com/4343

An example of public nuisance would be unreasonable use and obstruction of the

highway.

Defences
 - Statutory authority: If it can be shown that the activities complained about by the claimant
were authorised (expressly or impliedly) by a statute then this will be a defence. In Allen v
Gulf Oil [1981] Parliament intended a refinery to be constructed and there was a statutory
immunity in respect of any nuisance which was an inevitable result.
- Prescription: If the nuisance has continued for 20 years without interruption the defendant
will not Liable if s/he pleads a prescriptive right to the nuisance. In Sturges v Bridgman
[1879] a Doctor built a consulting room next to a confectioner's workshop which had been
operating for over 20 years; the court held that the prescriptive right began on the use of
the room.

Rylands v Fletcher

Generally, the rule under Rylands v Fletcher is a strict liability tort, and no intent or negligence needs
to be shown; however, it is not actionable per se and some damage must be shown for the rule to
apply.

The Rule was stated in the case of Rylands v Fletcher (1868), by Blackburn J., (in the Court of
Exchequer Chamber), and states:

"The person who, for his own purposes, brings onto his land and collects and keeps there anything
likely to do mischief if it escapes, must keep it at his peril, and if he does not do so, is prima facie
answerable for all the damage which is the natural consequence of its escape".

The circumstances of the case were that the defendant employed independent contractors to
construct a reservoir on his land and to use the waterpower for his mill. In the course of
construction, the contractors came across some disused mineshafts and passages filled with earth
and marl which, unknown to the defendant and the independent contractors, communicated with
the claimant's mines. When the reservoir was filled, the water escaped through the shafts and
flooded the claimant's mine. It was found as a fact that the defendant had not been negligent.
Nevertheless, the defendant was held liable, first by the Court of Exchequer Chamber and secondly
on appeal to the House of Lords where the judgment was confirmed but the rule was restricted to
damage due to a non-natural user of the land.

The case related to an escape of water, but the rule has been applied to various kinds of 'escape, for
example:

- Electricity (National Telephone Co. v Baker (1893),

- Yew trees (Crowhurst v Amersham Burial Board (1878)),
- Wire fencing (Firth v Bowling Iron Co. (1878),
- Sewage (Jones v Llanrwst U.D.C. (1911),
- Explosives (Rainham Chemical Works v. Belvedere Fish Guano Co. (1921), and even
- Gypsies (Attorney General v Corke (1933) where the defendant allowed gypsies to occupy
his land, living in caravans and tents. The gypsies fouled and caused damage to adjoining
land. It was held that the rule in Rylands v Fletcher applied since although it was lawful to
allow gypsies on the land, it was not a natural use of the land. However, it may be that, with
gypsies, the tort of nuisance may be more appropriate (Page Motors v Epsom B.C. (1980)
and also, animals, chemicals, industrial use of gas and electricity and even, but exceptionally,
humans.

There are several important points to observe in the rule.

(a) The defendant is liable notwithstanding his employment of a competent independent contractor,
and whether or not there is any default by the Contractor.

(b) There must be an actual 'escape' or leakage from the defendant's land of the dangerous or
harmful thing, beyond the boundaries of the land and the dangerous thing must move from the
defendant's land to the claimants.

In Read v Lyons [19471, for example, the claimant was employed as an inspector of munitions
factories. She was injured by a shell, which exploded whilst it was being manufactured, She claimed
under the Rule in Rylands v Fletcher (because she could not prove negligence) but failed because
there had been no escape of the dangerous thing over the boundaries of the defendant's land. The
House of Lords gave the opinion (obiter not part of the decision) that the making of munitions in
wartime was a natural usage of land.

(c) Things 'naturally on land' are excluded from the Rule and these include thistles. insects, rats
(unless their numbers increased as a result of defendant's acts or omissions), rocks (when these
crumble and fall naturally there is no liability on the defendant, though it would be otherwise if the
fall were due to negligent quarrying or if increased falls resulted from quarrying). Liability for such
things may, however, be actionable in nuisance or trespass. Many things are brought on to land by
landowners, and the question arises as to whether their introduction and use amounts to 'non-
natural usage'.

In Giles v Walker (1890], the occupier of land ploughed it up, and shortly afterwards a large crop of
thistles grew up. As a consequence, thistle seeds were blown on to the land of the neighbours. Held:
that the rule of Rylands v. Fletcher did not apply. The defendant had not brought the thistles on to
his land, for they had accumulated there naturally. The claimant could, however, possibly have
succeeded in nuisance.

(d) The act must be a 'non-natural' use of the land. Natural usage includes the working of mines and
the planting of trees, though if these are poisonous and they escape, the defendant will be liable.
The storage of water in quantities and the storage of electricity have been held as non-natural.

Crowhurst v Amersham Burial Board [1878]. Yew trees were planted by the Defendants on the
boundaries of their land, The yew tree branches protruded over the land occupied by claimant. The
claimant's horse ate some leaves and was poisoned and died. Held: that defendants were liable, for
it was a non-natural use of land to plant such poisonous trees, and the branches had 'escaped into
claimant's field.

Defences:

The defences to this tort are:

(i) Act of God. The defendant may evade liability if he can prove that there was an escape
due to what is described as an Act of God, for example, an extraordinary rainfall that
could not reasonably have been anticipated (Nichols v Marsland, [1876].
(ii) Act of a Stranger. The defendant can evade liability if he can prove that the escape was
due to the unlawful act of a third party ('stranger) over whom the defendant had no
control.

Rickards v Lothian [1913]. R, the lessee of a building, sub-let the second floor to L. A third, unknown,
person blocked the waste pipes of a washbasin on the fourth floor (which was in R's control) and
turned the tap on. L's stock on the second floor was damaged by the overflow of water. It was held
that R was not liable since the damage was due to the act of stranger, which R could not reasonably
have prevented.

(iii) Default of Claimant. Where the escape of the dangerous thing was caused by the default
of the claimant.
(iv) Consent of the Claimant. Where the claimant voluntarily consented to the presence or
existence on the defendant's land of the dangerous thing or source of the mischief. For
example, fire extinguishers, water pipes or water cisterns in a block of flats. Common
benefit is evidence of consent.

SV Prince of Wales Theatres Ltd. [19431. The defendants leased to P a shop in a building used as a
theatre, The theatre, with knowledge of P, contained a water-sprinkler system against fire risk, the
system extending to P'S shop. During a frost, water poured from the system, damaging P's stock. P
claimed damages under Rylands v Fletcher",. Held: that the water-sprinkler system had been
installed for the common benefit of the claimant and the defendant; the rule in Rylands y. Fletcher
did not, therefore, apply and, as there was no negligence on the part of defendant, there was no
liability under that head either.

(v) Statutory Authority. A local authority or public-utility corporation may escape liability if
the terms of the statute are clear (Green v Chelsea Waterworks Co. [1894]. This,
however, does not apply to escape of water from reservoirs (Reservoirs Act, 1975).
Green v. Chelsea Waterworks Co. [1894]. The defendants were authorised by statute to
lay a water main. The main burst and flooded the claimant's premises. Held: that
statutory authority precluded liability under Rylands v Fletcher; and as there was no
negligence on the part of the defendants, they were not liable under that tort either.

Learning activity 3
Watch this lecture on Rylands v Fletcher liability: http://osclinks.com/5406

3.7 Vicarious Liability

Learning outcomes
- Nature and purpose of vicarious liability.
- Testing employment status.
- Other areas of vicarious liability.

Vicarious liability is not an individual tort in the same way that we have looked at other torts such as
negligence or nuisance. It is a means of imposing liability for a tort onto a party other than the
tortfeasor, the party causing the tort. This often relates to employers being responsible for the
actions of their employees.

Justifications for Vicarious Liability

Most of the justifications are due to the victim of the wrong having a means of gaining
compensation:

The employer has a degree of control over their employees and may well have requested that the
actions were carried out on their employer's behalf.

- The employer should not be careless when hiring and selecting staff.
- The employer has a responsibility to ensure their staff are adequately trained.
 - In return for the benefit received by the employer from the employee carrying out their
duties, they should also bear the burden when something goes wrong.
- Most employers can claim off insurance when being sued, whereas an employee will not
usually be covered by such policies.
- It may be easier to identify the employer rather than a specific employee responsible.

Who is an Employee?

It is important to distinguish between employees and independent contractors as employers are

only responsible for the former. The parties' intention and conduct will be looked at together as they
can conflict.

Contrast, for example: Ferguson v Dawson Partners [(1976] where although the builder was hired as
a labour only subcontractor tor tax and NI purposes, however because he was treated in every other
way as an employee, it was held he was not a 'contractor. In Massey v Crown Life Insurance [1978]
although there was a detailed written contract, the parties' intention prevailed.

Various tests for establishing an individual's employment status have been developed:

The Control Test

This test is the oldest of the available tests and derives from the days of 'master and servant' laws.
Various key features were identified in Short v JW Henderson Ltd. [1946] including how the 'servant'
is selected, what control the 'master has over the method of working and whether the master can
suspend or dismiss the payment of wages.

The Organisation Test

This test was established by Lord Denning in Stevenson Jordan and Harrison Ltd v McDonald & Evans
[1969]. The test ascertains whether a person is fully integrated into the business and if they are, they
are an employee. If the work is not integrated and is only an accessory, then they are not an
employee.

The Multiple Test

Ready Mixed Concrete v Minister of Pensions [1976] - A delivery driver for a mixed concrete
company used his own vehicle, however the contract stated it must be painted in the company
colour and the contract also set out his wages and expenses. There were also various other rules
regarding keeping his vehicle in repair. This case involved payment of national insurance and the
rate at which this was paid depended upon whether he was an employee or independent contractor.
The court therefore looked at the terms of the contract and the obligations on each party rather
than whether they had called the worker an employee or contractor.

Furthermore, a contract of service will be deemed employment when:

(1) a person agrees to a perform a service for a company in exchange for remuneration; and

(2) a person agrees, expressly or impliedly, to subject himself to the control of the company to a
sufficient degree to render the company his "master," including control over the task's performance,
means, time; and

(3) the contractual provisions are consistent with ordinary contracts of service.
In this case, despite the requirements of the logo and upkeep of the vehicle, the driver was able to
perform the service (i.e. delivery of concrete) with his own choices, i.e. he could choose what vehicle
he owned and could make his own choices on other matters in order to complete the task. He was
therefore an independent contractor.

Subsequently modifications to the test have been applied and factors might include:

- The ownership of tools, plant or equipment

- The method of payment.
- Tax and National Insurance contributions.
- Self-description.
- Level of independence.
- Benefit of any insurance available.

The Course of Employment

It is often difficult to ascertain whether an employee is acting in the course of employment and
unfortunately there is no test for this. However, in Joel v Morison [1834] Parke B state that "the
servant must be engaged on his master's business, not 'on a frolic of his own."

An employer will usually be liable for:

(a) an act which is wrongful which he has authorised the employee to carry out (i.e. he knew it was
wrong but authorised it anyway).

(b) acts which the employer authorised where the employee has carried them out in an
unauthorised way or a method which was prohibited by the employer;

(c) acts of a criminal nature.

Authorised Acts

In the case of (a) above, the employer would be primarily liable.

Wrongful Modes of Doing Authorised Acts

When an employee is outside the course of his employment he is sometimes said to be 'on a frolic of
his own'. When acting on a 'frolic', the employer will not be vicariously liable.

In the following cases it was held that the employer was vicariously liable for torts of the employee:

Century Insurance Co v Northern Ireland Transport Board [1942)

A petrol tanker driver, smoking a cigarette threw away a match, causing an explosion.

Rose v Plenty [1976]

A milkman employed a 13-year-old assistant despite being told not to by the employer. The assistant
was injured by the milkman's negligent driving. As the act here was done for the employer's business
the employer was vicariously liable.

In the following cases it was held that the employer was not vicariously liable:

Beard v London General Omnibus Co. [1900]

A bus conductor drove a bus injuring a pedestrian. As he was going down side streets and not on the
usual bus route the employer was not liable.
Twine v Bean's Express Ltd. [1946]

A hitchhiker had been given a lift contrary to express instructions and was fatally injured. Lord
Greene MR said that the servant was doing something totally outside the scope of his employment,
namely, giving a lift to a person who had no right whatsoever to be there.

Hilton v Thomas Burton (Rhodes) Ltd. [1961]

Workmen drove seven or eight miles for tea, immediately after finishing their lunch in a pub. The
van overturned, and a passenger was killed.

Criminal Acts

An employer will not usually be liable for the criminal acts of employees. However, if the employee
performs their duties in a criminal manner, an employer may be liable.

Morris v Martin L td. [1965]

A fur coat sent to cleaners was stolen by the employee whose job it was to clean the coat, The
cleaners were liable for the theft.

The Effect of Vicarious Liability

The injured party has the choice of suing both the employer and the employee. In practice the
employer is often used as the chance of recovering damages is higher as they are usually insured.

One of the common law duties imposed on an employee is to indemnify the employer. This means
that he may have to pay back any compensation paid by the employer as a result of the employee's
negligence even though this isn't usually a term of the employer's insurance policy.

The employer would probably be entitled to dismiss the employee on grounds of misconduct.

Activities:

Look at this article on the liability of a school: http://osclinks.com/4345 and see how you can apply it
to vicarious liability.

Look at this Supreme Court Judgement: http://osclinks.com/4346 of Cox v MoJ [2016].

Look at this article on vicarious liability http://osclinks.com/5407

3.8 Defences

Learning outcomes
- Contributory negligence.
- Consent (volenti non fit injuria).
- Defences specific to private nuisance and the rule in Rylands v Fletcher.

Inevitable Accident

This was defined by Sir Frederick Pollock as:

"Not avoidable by any such precautions as a reasonable man, doing such an act then and there,
could be expected to take."
If the defendant can prove that the accident occurred despite him exercising reasonable care, he will
escape liability.

Act of God

Act of God amounts to a claim that an accident occurred as a result of natural forces outside the
control of the defendant or anyone else. As such it may be a defence to a claim of liability under
Rylands v Fletcher. It will only succeed for condition of nature "which no human foresight can
provide against ...' e.g., extreme weather conditions.

In Nichols v Marland [1876] the defendant diverted a natural stream on his land to create
ornamental lakes. Exceptionally heavy rain caused the artificial lakes and waterways to be flooded
and damage adjoining land. The defendant was held not liable under Rylands v Fletcher as the cause
of the flood was an act of God.

Statutory Authority

If the defendant carried out an act which is permitted by an Act of Parliament this will usually
provide a complete defence. The wording of the statute must be checked and if the authority is
absolute there will be no liability providing the act was committed reasonably and there was no
alternative method available.

Volenti Non-Fit Injuria (consent)

This is a complete defence, unlikely contributory negligence which only reduces damages, and if
successful then a claimant will recover no damages. The defence succeeds because there is a
voluntary assumption of the risk of harm by the claimant and a simple translation would be that no
injury is done to one who freely consents to the risk.

Distinction must be drawn between:

- An intentional infliction of harm - which is negated by consent, for example where a patient
signs a consent form in respect of an operation there is no battery; and
- A negligent infliction of harm - in which for the defendant to avoid liability for his otherwise
negligent act the claimant must voluntarily accept the risk of injury.

It must be remembered of course that before the defence can be applied successfully it must be
shown that the defendant did in fact commit a tort.

Contributory Negligence

In cases where a claimant suffers damage partly through his own negligence as well as through the
negligence of the defendant then contributory negligence may be used to reduce the damages by
the extent to which the claimant was responsible for his own loss or injury.

Contributory negligence was originally a complete defence so that no damages at all were payable if
the defence succeeded.

The Law Reform (Contributory Negligence) Act 1945 changes the nature of the rule so that damages
could be altered according to the extent to which the claimant had contributed to his own harm,
Damages will then be reduced proportionately accordingly.

For a successful claim a defendant must prove:

 - Fault on the part of the claimant (that he failed to take reasonable care for his own
safety); and
- That negligence by the claimant (.e. a failure to take reasonable care) was a cause of the
damage suffered.

A person fails to take reasonable care for his own safety if:

1. he is partly to blame for the accident. Fitzgerald v Lane [1989] see here for the case
summary: http://osclinks.com/4429
2. he puts himself in a dangerous position which exposes him to the risk of involvement in the
accident in which he is harmed. Davies v Swan Motor Co (Swansea) Ltd. [1949] where Davies
was killed after standing on the steps of dust lorry down a narrow lane when it passed a bus.
3. a claimant might also place himself in a position that is not dangerous, but which involves
circumstances making it more likely that he will suffer harm. An example is where a claimant
knows that a driver is drunk but nevertheless accepts a lift. Also, a claimant might place
himself in a position which is not dangerous in itself but then fails to take precautions to
avoid danger and in doing so increases the amount of harm suffered. For example, not
wearing a seatbelt Platform Home Loans Ltd v Oyston Shipways lLtd. & Others [1999].

In certain situations, the courts are relatively slow to put blame of contributory negligence to the
claimant:

Children

If the claimant is a child, he will be judged on the standard of an ordinary child of the same age. The
courts are generally reluctant to find contributory negligence.

Employees

The courts are often lenient; however, they will find the claimant as having contributed to the
negligence where they haven't complied with regulations. E.g., not wearing protective clothing
under health and safety legislation.

Rescuers

The courts are sympathetic to rescuers as a matter of policy and they are reluctant to find a rescuer
as being contributorily negligent when attempting a rescue. However, there are cases where
rescuers have been found contributorily negligent.

Doctrine of Alternative Danger

This is also known as the 'dilemma principle'. It is used where the claimant has found themselves in a
situation where they must decide as to what course of action to take. Each could inevitably lead to
injury and the claimant must choose the best option.

There is an important limitation: if the damage would have been just as great had the claimant not
been negligent, his damages will not be reduced.

The defendant must therefore establish that the claimant had contributed to the cause of his injury
either by being partly to blame or that he contributed to the damage suffered.
 3.9 Remedies

Learning outcomes
- Basic understanding of compensatory damages for physical injury to people, damage to
property and economic loss; basic understanding of the principle of mitigation of loss.
- Injunctions.

Damages:

• Compensatory Damages - The aim of these damages is to put the injured party back in the
position they would have been had the tort not have been committed. This is the principle of
restitutio in integrum.

• General Damages - This is compensation for losses which have arisen and losses which may arise in
the future. For example, in a personal injury case for the injuries sustained, a lower quality of life, as
well as loss of earnings or opportunities in the future. It is often difficult to put a figure on these
losses.

• Special Damages - These are for expenses where a figure is available, and the losses have been
incurred prior to the trial. For example, travel expenses, medical prescriptions, insurance claims, etc.

• Benefits

If the claimant receives any social security benefits as a result of the loss/injury the defendant may
be ordered to pay some of the damages back to the government under the Social Security
Administration Act 1992 as revised by the Social Security (Recovery of Benefits) Act 1997. This
results in the claimant being paid partly from the social benefits and partly from the defendant. The
claimant will receive what they are entitled to; the government will be reimbursed; and the
defendant will not benefit from his wrongdoing.

• Nominal damages – Nominal Damages are awarded in certain cases where, although the claimant
has not sustained actual loss or injury, nominal damages are intended as a statement that the type
of conduct the defendant engaged in should not be permitted. For example, if you own a large plot
and a neighbour continually cuts across your property line, you may not have sustained any damage,
but an award of "nominal" damage will vindicate your right to exclusively occupy your land.

• Contemptuous Damages - This is usually the smallest coin of the realm and these damages are
awarded where, although the claimant was successful, the claim should not have been brought as
there was no merit in the same.

• Exemplary (punitive) Damages

'Aggravated damages' are awarded where the circumstances in which the tort was committed
warrant higher damages than normal to reflect the greater injury to the claimant. These are
distinguished from exemplary which, although are awarded due to the conduct of the claimant, they
are punitive in nature. The former is awarded where the conduct shocks the claimant and the latter
is where the conduct shocks the court.

Injunctions

The court may be able to restrain a party from committing a breach of contract by injunction. This is
an equitable remedy which is at the discretion of the courts. There are three types of injunction:
 - A prohibitory injunction orders a defendant to refrain for doing something. A court will grant
these even if it would be onerous on the defendant to comply with the same without giving
very much benefit to the claimant.
- A mandatory injunction orders a defendant to reverse the effects of an existing breach.
Before awarding this the court will apply 'balance of convenience' test. If the hardship to the
defendant to comply with the injunction would outweigh the consequential advantages to
the claimant, it will be refused.
- An injunction quia timet ("because he fears") is given to prevent something the claimant
fears might happen, or to ask for an interlocutory injunction, which is designed to regulate
the position of the parties pending a hearing.

Unit 4 Law of Contract

4.1 The Rules of Contract Law

Learning outcomes
• Rules and principles of contract law concerning formation, terms, vitiating factors, discharge
of a contract and associated remedies.

Definition

A contract may be defined as a legally binding agreement which creates rights and obligations. If
these are not complied with, they can be enforced in the courts and remedies include the common
law damages but also equitable remedies such as rescission, injunctions, and specific performance.

Classification

Contracts may be divided into two broad classes:

1. Contracts by deed

A deed is a formal legal document signed, witnessed and delivered to effect a conveyance or
transfer of property or to create a legal obligation or contract. A deed is not necessary for all
contracts and it will depend upon the type of contract as to whether a deed is required. For
example, the contract of a sale of land must be made in writing but does not need to be
witnessed.

2. Simple contracts

These are more informal contracts which are not made by deed and can be made expressly in
writing or orally or can also be implied by the courts.

Another way of classifying contracts is according to whether they are "bilateral”. or "unilateral".

1. Bilateral contracts

This is where one party makes a promise in exchange for a promise by the other. The 'promise is
known as consideration which is explained later in this module. Thus, in a contract for the sale of
goods, the buyer promises to pay the price and the seller promises to deliver the goods. I.e.,
both parties make a promise.

2. Unilateral contracts
 A unilateral contract is where one party makes promises to do something in return for an act of
the other party, e.g., a reward is offered (the promise) to anyone who finds a lost item (the act).

In order for a contract to be legally binding it must consist of various essential elements:

1. Agreement

This involves an offer by one party which is accepted by the other.

2. Consideration

Each side must promise to give or do something for the other.

3. Intention to create legal relations.

The parties must have intended their agreement to have legal consequences. There are two
presumptions the law will use depending upon whether the agreement was fora domestic/social
reason or a commercial reason.

3. Form

As stated above, in some cases, certain formalities must be observed. For example, the contract
of a sale of land must be in writing.

5. Capacity

The parties must be legally capable of entering into a contract. There are various rules relating to
minors or those without mental capacity to enter into a contract.

6. Consent

The agreement must have been entered into freely. Consent may be vitiated by duress or undue
influence. There are also other vitiating factors such as mistake and misrepresentation.

7. Legality

The purpose of the agreement must not be illegal or contrary to public policy.

If one or more of the above are missing it will render the contract either void, voidable or
unenforceable. The terms of the contract may be either expressly made (orally or in writing) or
they may be implied through statute, custom or the courts.

Enforceability

1. Void contracts

If a contract is deemed as "'void'" it is considered to have never existed. Any goods or money
obtained under the agreement must be returned. If the items cannot be returned because they
have already been resold toa third party, they may be still be recovered by the original owner as
the other party never had the Ownership or right to sell them to the third party.

2. Voidable contracts

If a contract is voidable, it is a valid contract unless and until one of the parties takes steps to
avoid it. Again, anything obtained under the contract must be returned, however, unlike a void
contract, if goods have been resold before the contract was avoided, the original owner will not
be able to reclaim them.
 3. Unenforceable contracts

This is a valid contract, but it cannot be enforced in the courts if one of the parties refuses to
carry out its terms. Items received under the contract cannot generally be reclaimed.

4.2 Essential Requirements of Contract

Learning outcomes
- Offer and acceptance.
- Consideration (including privity of contract).
- Intention to create legal relations.

Offers

When a person makes an offer, they are expressing their willingness to make a contract as soon as it
is accepted.

In order to ascertain whether an offer is genuine it must be distinguished from an invitation to treat.
An invitation to treat invites the other person to make an offer which the owner of the property is
then free to accept or reject. There are various examples:

Auctions

When an item is auctioned, the bids are treated as offers. The acceptance occurs when the hammer
is hit.

Display of Goods

Items in a shop, whether in the window or on the shelf, are also invitations to treat. When you go to
the till you make an offer which the cashier is free to accept or reject.

Fisher v Bell [1960]

A shopkeeper displayed a flick knife with a price tag in the window which contravention of the
Restriction of Offensive Weapons Act 1959. The shopkeeper was not convicted as there had been no
offer.

P.S.G.B. v Boots Chemists [1953)

This concerned the sale of drugs under a self-service system. Again, the contract was only completed
once the cashier accepted the buyer's offer.

Advertisements

Advertisements of goods for sale are normally interpreted as invitations to treat.

Partridge v Crittenden [1968]

In a newspaper advert the defendant advertised wild birds for sale which was illegal. This was
deemed to be an invitation to treat.

Consider this scenario: you advertise your car for sale in your local newspaper. Three people
telephone you and agree to pay your asking price. Which one do you sell it to? If it were an offer you
would be obliged to sell to all three, however you do not have 3 cars to sell. However, as it would be
an invitation to treat you can accept or reject any of the 3 offers.
Some advertisements in newspapers are deemed to be valid offers and this is where they are
unilateral, i.e. open to all the world to accept.

In Carlill v Carbolic Smoke Ball Co [1893] an advert was placed for 'smoke balls' to prevent influenza
with a reward of E100 to anyone who used the ball but still came down with flu. In order to show
their sincerity, they deposited E1,000 with a bank.

The plaintiff bought one, but still contracted flu and it was held that she was entitled to the £1,000.

Mere Statements of Price

If someone states the minimum amount which they would sell, it does not mean they have made an
offer.

Harvey v Facey [1893]

The plaintiffs sent a telegram to the defendant, "Will you sell Bumper Hall Pen? Telegraph lowest
cash price". (request for information) The defendant 's reply was Lowest price E9007. (Statement of
price) The plaintiffs telegraphed: "We agree to buy for £900 asked by you. (offer)

Tenders

Goods advertised for sale by tender is an invitation to treat.

Termination of the Offer

If the offer is accepted, then it will come to an end, Likewise, if the offer is rejected it will also come
to an end. For example, I offer to sell you my car for E5,000. The offer is valid. f you reject the offer it
will come to an end. If you contact me 2 weeks later to state that you wish to buy my car for the
E5,000 this would be a new offer by you to me which I would be free to accept or reject.

Revocation

A person who has made an offer can revoke it at any tíme. In the scenario above if I offered to sell
you my car, I could change my mind at any time prior to your acceptance, however I must
communicate the revocation to you for it to be effective.

Byrne v Van Tienhoven [1880]

1 Oct. D posted a letter offering goods for sale (offer)

8 Oct. D revoked the offer: (not valid until recelved by P)

11 Oct. P accepted by telegram (occurred before receiving the notice of revocation). (Valid contract
made)

15 Oct. P posted a letter confirming acceptance. (Irrelevant as telegram was deemed acceptance)

20 Oct: letter of revocation received by P (Too late!)

The revocation can be done via a reliable third party.

Dickinson v Dodds [1876]

Dodds offered to sell his house to Dickinson, the offer being open until 9am Friday. On Thursday,
Dodds sold the house to Allan. Dickinson was notified that the property had been sold by Berry, the
estate agent, yet he still delivered an acceptance before 9am Friday. As he was aware the property
was no longer available before he put his acceptance in, his claim for specific performance failed.

Once the offeree has commenced performance of a unilateral offer, the offer or may not revoke the
offer. See:

Errington v Errington [1952)

A father bought a house for his son and daughter in law on the basis that they would pay the
mortgage and he would then transfer the house into their name once it was paid off. Before they
finished paying the instalments he died, and his widow claimed the house, Possession of the house
was given to the daughter in law.

Denning LJ stated: "The father's promise was a unilateral contract a promise of the house in return
for their act of paying the instalments. It could not be revoked by him once the couple entered on
performance of the act, but it would cease to bind him if they left it incomplete and unperformed,
which they have not done. if that was the position during the father's lifetime, so it must be after his
death. If the daughter-in-law continues to pay all the building society instalments, the couple will be
entitled to have the property transferred to them as soon as the mortgage is paid off:; but if she
does not do so, then the building society will claim the instalments from the father's estate and the
estate will have to pay them. I cannot think that in those circumstances the estate would be bound
to transfer the house to them, any more than the father himself would have been."

Counteroffer

The acceptance of the offer must be in the same terms as that made by the offeror. If the offeree
introduces a new term or varies the offer, then this is said to be a counteroffer which can be
accepted or rejected.

I.e., I offer to sell you my car for E5,000 (offer). You come back to me and state that you will pay me
E4,750 for my car (counteroffer). I am now free to accept or reject your offer.

Hyde v Wrench [1840]

6 June W offered to sell his estate to H for E1000; (offer)

H offered e950 (counteroffer)

27 June W rejected Hs offer (rejection of offer - no offers current in place as both terminated)

29 June H offered E1000. (new offer)

W refused to sell (no acceptance)

H sued for breach of contract. (unsuccessful)

A counteroffer should be distinguished from a mere request for information.

Stevenson v McLean [1880]:

Saturday: the defendant offered to sell iron to the plaintiff at 40 shillings a ton, open until Monday.
(offer)

On Monday at 10am, the plaintiff sent a telegram asking if he could have credit terms. (request for
information)
At 1.34pm the plaintiff sent a telegram accepting the defendant's offer. (acceptance)

However, at 1.25pm the defendant had sent a telegram: Sold iron to third party arriving at 1.46pm.
(breach of contract- successful claim)

Lapse of Time

How long should an offer be valid? If a time was imposed as part of the offer, then this will stand. If
not, it will be valid for a reasonable time as it could not remain open forever.

Ramsgate Victoria Hotel v Montefiore [1866)

The defendant offered to buy shares in the plaintiff company but did not hear anything for 6 months
when the plaintiff accepted and said he would sell them. The defendant no longer required the
shares and it was held the offer had lapsed and was no longer valid.

Death

The offeree cannot accept an offer after notice of the offeror's death. However, if the offeree does
not know of the offeror's death, and there is no personal element involved, then he may accept the
offer.

Learning activity 1
Read the following article on Carlill v Carbolie Smoke Ball Co:
http://osclinks.com/4347
What legal principles can we take from this case?
Go onto the following revision website:
http://osclinks.com/4348 and complete the quiz.

Acceptance

This is a final and unqualified acceptance of the terms of an offer and therefore no changes can be
made (otherwise this would be a counteroffer) and it must match the offer exactly except in certain
cases:

Example case: Brogden v Metropolitan Railway Co. [1877]: http://osclinks.com/4430

The following rules have been developed by the courts with regard to acceptance:

Counter Offers

As per the information under termination of offers above, a counteroffer is not an acceptance. A
further case is: Butler Machine Tool v Excell-o-Corp [1979): http://osclinks.com/4349

Conditional Acceptance

If the offeree puts a condition in the acceptance, then it will not be binding.

Communication of the Acceptance

The general rule is that an acceptance must be communicated to the offeror.

Lord Denning in Entores v Miles Far East Corp. [1955]: http://osclinks.com/4350

The acceptance must be communicated by the offeree or someone authorised by the offeree. If
someone accepts on behalf of the offeree, without authorisation, this will not be a valid acceptance:
Powell v Lee [1908] where the plaintiff applied for a job as a headmaster. The school managers
initially wanted to employ him, however later decided to appoint someone else. One of the mangers
had told him he was accepted before they changed their mind but had no authority to do so, It was
held that there was no valid contract.

Silence will not amount to acceptance.

In Felthouse v Bindley [1862] the plaintiff discussed buying a horse from his nephew and wrote to
him "fI hear no more about him, I consider the horse mine, No reply was given and although the
nephew had intended to accept the offer the horse was accidentally sold at auction. It was held that
there was no valid offer and so the plaintiff was unsuccessful.

If the method of communication is instantaneous, e.g., telex, it will take effect when and where it is
received.

See Entores v Miles Far East Corp [1955] (above).

Exceptions to the Communication Rule:

a) Carrying out a task in a unilateral contract is sufficient to be acceptance.

b) If the communication is waived by the offeror either expressly or impliedly,

c) The Postal Rule- acceptance is complete as soon as the letter of acceptance is posted, If the letter
does not actually reach the offeror because it was lost or destroyed, the acceptance it is still valid.
This is also the case if it is delayed.

Adams v Lindsell [1818]

2 Sept. The defendant wrote to the plaintiff offering to sell goods asking for a reply “’in the course of
post’” (offer)

5 Sept. The plaintiff received the letter and sent a letter of acceptance. (acceptance valid from this
date)

9 Sept. The defendant received the plaintiff’s acceptance but on 8 Sept had sold the goods to a third
party. (Breach of contract)

Household Fire Insurance Co. v Grant [1879]

Grant applied for shares (offer) which were allotted to him by way of a letter which was posted
(acceptance as soon as posted). The letter never arrived; however, Grant was still liable to contribute
the amount outstanding when the company went bust as the contract was binding.

There are now various methods of communication such as email, fax, etc. A traditional method was
telegram. Where the mode is ‘instantaneous’ such as fax or email, the rule does not apply. With
non-instantaneous methods, i.e., physically posting a letter, the postal rule will not apply:

(i) If the letter has not been properly posted. It must go through the post box and cannot
be handed to a postman: Re London and Northern Bank [1900],
(ii) If the address is incorrect.
(iii) If the express terms of the offer exclude the postal rule,
(iv) where it would produce a "'manifest inconvenience or absurdity’”.

Example case: Holwell Securities v Hughes [1974]: http://osclinks.com/4351

Consideration

Offer and acceptance (agreement) alone does not make a contract. There must also be consideration
unless the contract is made by deed.

If I promise to clean your house, l am the promisor, and you are the promisee. If I did this for free
and for nothing in return you would not be able to enforce this contract with me unless you also
provided consideration. If you were paying me to clean your house, then you would be providing
consideration.

Definition

Consideration was defined by Lush J. in Currie v Misa [1875] as:

"... some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss
or responsibility given, suffered or undertaken by the other."

The definition given by Sir Frederick Pollock, approved by Lord Dunedin in Dụnlop v Selfridge Ltd
[1915] AC 847, is as follows:

An act or forbearance of one party, or the promise thereof, is the price for which the promise of the
other is bought, and the promise thus given for value is enforceable."

Types of Consideration

Executory: the promise has not yet been fulfilled but it is agreed that it will be at a later date.

Executed: Once the promise has been fulfilled it is executed.

Rules Governing Consideration

Consideration Must Not Be Past

You cannot make a promise based on an act you have already performed. For example, I give you a
lift home. The next day, you offer to give me money for the petrol when you have been paid next
week, and I accept. I cannot enforce this against you as my consideration had already been executed
and was in the past before we made our agreement.

Re McArdle [1951]

The defendant's daughter in law did some decoration works at the property they lived in and the
defendant later promised to pay her £488 and they signed a document (not a deed) to this effect,
The contract was unenforceable as the decoration works were past consideration.

Exceptions to the Rule

If the promisor has previously asked the other party to provide goods or services, then a promise
made after they are provided will be treated as binding. See:

Lampleigh v Braithwaite (1615)

Braithwaite killed someone and then asked Lampleigh to get him a pardon. Lampleigh got the
pardon and gave it to Braithwaite who promised to pay Lampleigh £100 for his trouble. The request
for the pardon was treated as part of the agreement. Had it not been then the promise to pay would
have been based on past consideration. However, as they looked at the scenario the agreement was
legally binding. If something is done in a business context and it is clearly understood by both sides
that it will be paid for, then past consideration will be valid.

Re Casey's Patents [1892]

Two parties owned a patent and offered a third share in the same to a manger who had worked on
the same for two years. Despite transferring the share over the two initial parties claimed their
return. They were unsuccessful due to the business nature.

Under s27(1) of the Bills of Exchange Act 1882 it is provided that any antecedent debt or liability is
valid consideration for a bill of exchange. For example, I mow your lawn and a week later you give
me a cheque for £10. The work I carried out on your lawn is valid consideration in exchange for the
cheque despite there being no agreement about the money at the time the lawn was mown.

Consideration Must Be Sufficient but Need Not Be Adequate

The courts are not concerned whether the consideration is adequate or equal. It is considered as
'real' or 'sufficient' provided it has some value.

Chappell & Co Ltd v Nestle Co Ltd [1959]

Wrappers from a chocolate bar were held to be valid consideration when used as part of an offer
where members of the public could send them off to Nestle in return for a music record.

Consideration Must Move from the Promisee

The consideration must be provided by the person who was part of the agreement and not someone
else.

Price v Easton [1833]

Easton made a contract with X that in return for X doing work for him, Easton would pay Price £19. X
did the work, but Easton did not pay, so Price sued. It was held that Price's claim must fail, as he had
not provided consideration.

Forbearance to Sue

If a person has a valid claim against another (in contract or tort) but promises to forbear from
enforcing it in return for a promise by the other to settle the claim, it will be deemed to constitute
valid consideration.

Alliance Bank v Broom [1864]

An unsecured debt was owed to the plaintiffs. The defendant promised to provide goods as security
and the plaintiff forbore the debt on this basis. The goods were never delivered, and the plaintiff
sought to enforce the contract for the goods. There forbearance to sue was deemed to be valid
consideration.

Existing Public Duty

If someone is under a public duty to do a particular task, then agreeing to do that task is not
sufficient consideration for a contract.

Collins v Godefroy [1831] 1 B & Ad 950.

Godefroy promised to pay Collins if Collins would attend court and give evidence for Godefroy.
However, as he had already been served with a subpoena (i.e. a court order telling someone they
must attend) he was under a legal duty to attend in any event, so the action failed.

If someone exceeds their public duty, this may be valid consideration.

Glassbrooke Bros v Glamorgan County Council [1925].

The police protected a coal mine during a strike by being stationed on the premises upon the
request of the mine owner. As mobile units would have sufficed instead of being stationed, they
were going above their duty as police and were entitled to the payment for the extra protection.

Existing Contractual Duty

There is no consideration where someone promises to do something they are already bound to do
under an existing contract.

Stiltk v Myrick [1809)

There was no consideration when two out of eleven sailors deserted a ship and the remaining nine
were promised extra money to sail the ship back.

Hartley v Ponsonby [1857]

There was consideration where nineteen out of thirty-six Crew of a ship deserted and the remaining
were promised extra money to sail back as the ship was so seriously undermanned that the rest of
the journey had become extremely hazardous and therefore above the normal duties.

If the performance of an existing contractual duty confers a practical benefit on the other party this
can constitute valid consideration.

Williams v Roffey Bros Ltd [1990]

Roffey had a contract to refurbish a block of flats and had sub-contracted the carpentry work to
Williams who unfortunately underestimated the cost of the work and was in financial difficulties.
This would have an impact on Roffey who would be in breach of his own contract and would sustain
a penalty. To ensure the work would be completed on time, Roffey agreed to pay Williams an extra
payment per flat. Williams completed the work on more flats but did not receive full payment so
stopped work and brought an action for payment. It was held that where an incentive or bonus is
offered to ensure that the terms of a contract are performed, this is legally binding, and he was
entitled to the additional payment.

Existing Contractual Duty Owed to a Third Party

If a party promises to do something for a second party but is already bound by a contract to do this
for a third party, this is good consideration.

Example case: Scotson v Pegg (1861]: http://osclinks.com/4352

Part Payment of a Debt

If I owe you £50 and I ask you to accept £40 in full and final payment and you agree, this is not
considered good consideration and you could still seek the balance of the £10 at a later date.

In Pinnel's Case [1602], Cole owed Pinnel E8-10s-0d (E8.50) which was due on 11 November. Pinnel
requested that this was paid on an earlier date, 1 October at a lower rate of £5-2s-2d (£5.11) and
stated that he would accept this as full and final settlement. Cole paid the lower sum on the earlier
date. Pinnel later sued Cole for the balance. It was held that although the part-payment was not
consideration, there was fresh consideration in bringing the date forward and this should be taken
into account and the part payment was valid. Other types of fresh consideration could be a different
place rather than time, a different method of payment such as a chattel instead of money.

Apart from the exceptions to the rule mentioned in Pinnel's Case itself, there are two others in
common law and one exception in equity.

- Part payment by a third party Hirach and Punamchand v Temple [1911] A father cleared his
son's debts by paying a smaller sum to a money lender which they accepted in full
settlement. The lender later sued for the balance but was unsuccessful.
- The rule does not apply to composition agreements. This is an agreement between a debtor
and a group of creditors, under which the creditors agree to accept a percentage of their
debts (e.g. 50p in the pound) in full settlement.

Promissory Estoppel

This is an equitable doctrine which was set out in the obiter in Central London Property Trust Ltd v
High Trees House Ltd [1947]. The principle is that if someone acts upon a promise that has been
made to them, it would be inequitable to go back on this promise, even if they did not provide
consideration.

Example cases:

Hughes v Metropolitan Railway [1877]: http://osclinks.com/4353

High Trees (1947]: http://osclinks.com/4354

Tool Metal Case [1955]: http://osclinks.com/4355

In order to be satisfied certain requirements must be satisfied:

- There must be a contractual or legal relationship.

- The promisor must make a clear and unambiguous statement that he will not enforce his
legal rights
- The promisee must have acted in reliance on the promise.
- It must be inequitable for the promisor to go back on his promise and revert to his strict
legal rights.
- Equity can only be used a shield and not as a sword. I.e. it can be used as a defence to a
claim but not as a basis for a case.

Intention to Create Legal Relations

In order to be legally binding the parties must have intended the contract to be enforceable. As this
is difficult to ascertain two presumptions are applied by the courts depending upon whether the
contract is a social and domestic agreement or a business/commercial one.

Social/Domestic Agreements

Let's say you agree to meet your friends for a meal, and you put down a deposit as the restaurant is
an award winning one has to be booked 6 months in advance. Is it intended that your agreement to
meet is legally binding? if your friends cannot make it would you insist upon them paying you back
the deposit?
The law presumes that social agreements are not intended to be legally binding unless the
presumption can be rebutted.

Example cases:

Balfour v Balfour [1919]: http://osclinks.com/4356

Merritt v Merritt [1970]: http://osclinks.com/4357

Jones v Padavatton [1969]: http://osclinks.com/4358

Simpkins v Pays [1955] http://osclinks.com/4359

Business/Commercial Agreements

In business agreements the presumption is that the parties intend to create legal relations and make
a contract unless this presumption can be rebutted.

Example cases:

Jones v Vernons Pools [1938]: http://osciinks.com/4360

Edwards v Skyways [1964]: http://osclinks.cam/4361

4.3 Contract Terms

4.3.1 General Terms

Learning outcomes
- Express and implied terms.
- Conditions, warranties and innominate terms

Representations and Terms

In order to ascertain what the terms of a contract are, one must initially establish what the parties
said or wrote.

- A representation is not a term of the contract; however, it is a statement of fact made by

one party which induces the other to enter into the contract and can lead to an action for
misrepresentation if incorrect.
- A term of the contract can be categorised as either a condition or a warranty. Depending
upon which type, the breach of a term will entitle the injured party to claim damages and/or
repudiate the contract.

Express Terms

This is where the courts will look at what the parties said and wrote. If the terms are set out in a
document, extrinsic evidence is not admissible to vary or interpret the document. This is known as
the parol evidence rule. The exemptions to this will be if the written document was not intended to
be the whole document, if the contract was deemed not to be valid or the contract was silent on
terms which are normally implied by law.

Burges v Wickham [(1836] where a ship was known to be unseaworthy by the insurer, yet they
insured it in any event, Therefore, the usual implied warranty of seaworthiness did not apply in this
case.
City & Westminster Properties v Mudd [1959] when a lease of a shop was renewed a new term was
included to change it to business use only. The Landlord knew the tenant had resided at the shop
during the previous term of the Lease over the last 6 years and the defendant therefore questioned
the new term, The landlord assured him he could continue to sleep there, however the term was not
removed from the new Lease. The defendant was able to rely upon the verbal assurance of the
landlord which acted as a collateral contract.

These are terms which are not expressly made by the parties, but can be implied either by custom,
the court or statute.

An example of a custom is a baker's dozen which is 13 instead of the usual 12.

Terms can be implied by the court in two circumstances:

(i) Intention of the Parties/Terms Implied as Fact. The court will look at the intention of the
parties including the 'business efficiency and if an officious bystander were to suggest
the provision the parties would reply with 'oh of course'.

Example cases:

The Moorcock [1889]: http://osclinks.com/4362

Shirlaw v Southern Foundries [1940]: http://osclinks.com/4363

(ii) The law will impose model or standardised terms as a form of regulating some types of
relationship. For example, landlord and tenants.

Example case: Liverpool City Council v Irwin [1976]: http://osclinks.com/4364

Terms can also be implied by statute.

Consumer Rights Act 2015

http://osclinks.com/4368

Conditions and Warranties

Conditions:

This is a major term which is vital to the main purpose of the contract and breach of the same would
entitle the injured party to repudiate the contract and claim damages.

Example case:

Poussard v Splers [1876]: http://osclinks.com/4369

Warranties

This is a less important term and as it does not go to the root of the contract an injured party can
only claim damages if the warranty is breached and cannot repudiate the Contract.

Example case:

Bettini v Gye [1876]: http://osclinks.com/4370

Innominate Terms
Sometimes it is not possible to classify a term into a condition or warranty and therefore the courts
must look at these individually. These are known as innominate terms. Depending upon the
outcome, the court may award damages only and/or repudiation.

Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha [1962]: http://osclinks.com/4371

4.3.2 Specific Terms Implied by Statute and in Relation to Consumer Contracts

Learning outcomes
• Consumer Rights Act 2015.
• Terms implied into a contract to supply goods:
- s9 (satisfactory quality)
- s10 (fitness for particular purpose)
- s11 (description).
• Remedies for the breach of a term implied into a contract to supply
- s20 (short term right to reject)
- s23 (right to repair or a replacement)
- s24 (right to a price reduction or a final right to reject).
• Terms implied into a contract to supply services:
- s49 (reasonable care and skill)
- s52 (performance within a reasonable time).
• Remedies for the breach of a term implied into a contract to supply services:
- s55 (right to repeat performance)
• s56 (right to a price reduction).

The Act consists of 3 parts and 10 Schedules. The general arrangement of the Act is outlined in the
explanatory notes of the Act which can be viewed at: http://osclinks.com/4372

The Consumer Protection Act 2015 only applies to contacts between traders and consumers and
therefore existing legislation which relates to other types of contract (for instance, those between
businesses) continue to apply. A summary of the legislation affected is set out below
http://osclinks.com/4373

Supply of Goods For business to consumer contracts the provisions of the Supply of Goods
(Implied Terms) Act (Implied Terms) Act 1973 (“SGITA”) will be replaced by the Consumer
1973 Rights Act 2015. It will be amended so that it covers business-to-business
contracts and consumer-to-consumer contracts only.
Sale of Goods Act For business-to-consumer contracts this will mainly be replaced by the
1979 Consumer Rights Act 2015, but some provisions of SGA will still apply, for
example, rules which are applicable to all contracts of sale of goods (as
defined by that Act - essentially these are sales of goods for money),
regarding matters such as when property in goods passes. The SGA will
still apply to business-to-business contracts and to consumer-to-consumer
contracts.
Supply of Goods and For business-to-consumer contracts, this Act's provisions will be replaced
Services Act 1982 by the Consumer Rights Act 2015. The SGSA will be amended so that it
covers business-to-business contracts and consumer to-consumer
contracts only.
Sale and Supply of This Act amended the SGA and the SGSA and as such will be superseded
Goods Act 1994 by provisions in the Consumer Rights Act 2015 for business-to-consumer
contracts.
Sale and Supply of These will be replaced by provisions in the Consumer Rights Act 2015.
 Goods to Consumers
Regulations 2002
Unfair Contract In respect of business-to-consumer contracts the Act's provisions will be
Terms Act 1977 replaced by the Consumer Rights Act 2015. The UCTA will be amended so
that it covers business-to-business and consumer-to-consumer contracts
only.
Unfair Terms in These will be replaced by the Consumer Rights Act 2015.
Consumer Contracts
Regulations 1999

The main provisions of the Act you should be aware of are as follows:

Terms Implied into a Contract to Supply Goods:

s9 (satisfactory quality) Legislation: Explanatory Notes:

http://osclinks.com/4374 http://osclinks.com/4375
s10 (fitness for particular Legislation: Explanatory Notes:
purpose) http://osclinks.com/4376 http://osclinks.com/4377

s11 (description) Legislation: Explanatory Notes:

http://osclinks.com/4378 http://osclinks.com/4379

S9: Goods to be of Satisfactory Quality

To ascertain whether goods are of satisfactory quality, this section provides that factors which will
be taken into account include the description of the goods, the price and other relevant
circumstances. If the state and condition of the goods is described then the quality will be assessed
as to whether it is fit for purpose, the appearance and finish, and the freedom from minor defects.
Safety and durability are also taken into account. If the quality 1s brought to the consumer's
attention before the contract or the consumer has first examined the goods, then this not apply.

S10: Goods to be Fit for Particular Purpose

If the consumer makes the trader aware of their purpose for the goods. The contract is to be treated
as including a term that the goods are reasonably fit for that purpose. This applies even if the
consumer is intending to use the goods for a purpose that they are not usually used for.

S11: Goods to be as Described

The goods should match the description. This includes a sale by sample, It also includes the situation
where the goods were selected by the consumer before the contract was made.

Remedies for the Breach of a Term Implied into a Contract to Supply Goods

s20 (short term right to reject) Legislation: Explanatory Notes:

http://osclinks.com/4380 http://osclinks.com/4381
s23 (right to repair or Legislation: Explanatory Notes:
replacement) http://osclinks.com/4382 http://osclinks.com/4383
s24 (right to a price reduction Legislation: Explanatory Notes:
or a final right to reject) http://osclinks.com/4384 http://osclinks.com/4385
s20: Right to Reject
There are various rights to reject depending upon whether the rejection is made short term or as a
final matter. Either way, the consumer is entitled to reject the goods and treat the contract as at an
end. The consumer is entitled to a refund but is under a duty to make the goods available for
collection by the trader or (if there is an agreement for the consumer to return rejected goods) to
return them as agreed.

With regard to the costs involved of returning goods, these must be borne by the trader.

The amount of the refund will depend upon the type of contract. For example, if the contract is for
the hire of goods, the entitlement to a refund extends only to anything paid or otherwise transferred
for a period of hire that the consumer does not get because the contract is treated as at an end.

Refunds must be given without undue delay, and in any event within 14 days beginning with the day
on which the trader agrees that the consumer is entitled to a refund using the same method of
payment as the consumer used unless the consumer accepts an alternative method.

S23: Right to Repair or Replacement

If goods are faulty, the consumer has the right to have these repaired or replaced with an
alternative. This must be done within a reasonable time (which will depend upon the nature of the
goods and purpose for which they were acquired) and without significant inconvenience to the
consumer. The trader will bear any costs involved in this. The trader is not under an obligation to
repair or replace goods where it would be impossible to do so, or it is disproportionate compared to
other remedies.

S24: Right to Price Reduction or Final Right to Reject

A trader may be required to reduce by an appropriate amount the price the consumer is required to
pay under the contract. This may involve providing the consumer with a partial refund. This,
however, does not apply if the contract cannot be divided up to calculate the reduction, or where
the items cannot be given back in its original state. It will apply where after one repair or one
replacement, the goods do not conform to the contract or the goods cannot be repaired. The
legislation provides for various circumstances as to whether how long the consumer had the goods,
whether the trader failed to collect them at an agreed time and the types of goods. For example, no
deduction may be made if the final right to reject is exercised in the first 6 months, unless:

(a) the goods consist of a motor vehicle, or

(b) the goods are of a description specified by order made by the Secretary of State by statutory
instrument.

Terms Implied into a Contract to Supply Services:

s49 (reasonable care and Legislation: Explanatory Notes:

skill) http://osclinks.com/4386 http://osclinks.com/4387
s52 (performance within a Legislation: Explanatory Notes:
reasonable time) http://osclinks.com/4388 http://osclinks.com/4389

S49: Service to be Performed with Reasonable Care and Skill

Where a Contract is to supply a Service, there is an implied term that that service will be exercised
and carried out with reasonable care and skill.
S52: Service to be Performed within a Reasonable Time

If the contract is silent as to the timescale for which it must be completed, this term implies that it
must be performed within a reasonable time. This is a question of fact depending upon the
circumstances.

Remedies for the Breach of a Term Implied into a Contract to Supply Services

S55 (right to repeat Legislation: N/A

performance) http://osclinks.com/4390
S56 (right to a price reduction) Legislation: N/A
http://osclinks.com/4391

S55: Right to Repeat Performance

This is where the trader is expected to perform the service agreed again. This can only be requested
by the consumer if it will enable conformity with the contract. When requested, the trader must at
their own cost (i.e. labour and materials) provide the service within a reasonable time and without
significant inconvenience to the consumer. What is a reasonable time will depend upon the
circumstances?

S56: Right to Price Reduction

This term enables a consumer to pay a reduced price which may be by way of a refund. This may
even be the full amount rather than just a partial reduction.

There are two situations where this provision takes effect:

1. the consumer cannot require repeat performance; or

2. the consumer has required repeat performance, but the trader is in breach of the
requirement to do it within a reasonable time and without significant inconvenience to the
consumer.

The refund must be given within 14 days using the same means of payment as the consumer
used to pay for the service unless the consumer expressly agrees otherwise.

4.3.3 Exclusion Clauses

Learning outcomes
- Basic understanding of the nature of exclusion and limitation clauses.
- Common law control of exclusion clauses: rules relating to incorporation; brief
understanding of the rules relating to construction.
- Statutory control of exclusion clauses: Consumer Rights Act 2015 (s31, s57 and s65).

A clause may be inserted into a contract which aims to exclude or limit one party's liability for breach
of contract or negligence. You will see examples of these in car parks where it states that cars are
parked at the owner's risk. The clause is only effective if it has been incorporated into the contract.
Even if it is incorporated it can still fail if the wording is ambiguous or it is deemed unfair under the
Consumer Rights Act.

Incorporation
An exclusion clause can be incorporated in the contract by signature, by notice, or by a course of
dealing.

Signed Documents This will be binding even if the party Lestrange v Graucob [1934]:
didn't read the document. http://osclinks.com/4392
Unsigned documents The clause must be in a Contractual Chapelton v Barry [1940]:
document and not in a receipt. http://osclinks.com/4393

The existence of the clause must be Olley v Marlborough Court

brought to the notice of the other Hotel [1949]:
party before or at the time the http://osclinks.com/4394
contract is made.
Thompson v LMS Railway
Reasonable sufficient notice must be (1930):
given. Actual notice fs not required. http://osclinks.com/4395

This will depend upon the Thornton v Shoe Lane Parking

circumstances. [1971]:
http://osclinks.com/4396
Previous Dealings It may be implied that an exclusion Spurling v Bradshaw [1956]:
clause would be included if the terms http://osclinks.com/4397
were consistent with those previous
dealing. Hollier v Rambler Motors
(1972]:
A consideration amount of past http://osclinks.com/4398
transactions may be required if the
consumer is private Consumer rather
than a business one.
Privity of Contract Only a person who is a party to the
contract can be bound by the exclusion
clause.

Interpretation

An exclusion clause must be interpreted to see whether it covers the breach that has occurred. The
basic approach is that liability can only be excluded by clear words. If this is not the case, then the
contra proferentem rule is applied. I.e., the courts will look in favour of the other party and not the
person who inserted it into the contract.

Consumer Rights Act 2015

S62 There is a requirement for all consumer contract terms and notices to be fair.

S65 Prohibits exclusion or restriction of liability for death or personal injury resulting from
negligence.

4.4 Vitiating Factors

Learning outcomes
- Misrepresentation (nature, types and remedies).
- Economic duress (definition and remedies).
Misrepresentation
A misrepresentation is a false statement of fact made by one party to another that induces the other
party to enter the contract. It will not be a term of the contract; however, it can make the contract
voidable if it is untrue and the innocent party will be entitled to rescind the contract and/or claim
damages.

False Statement of Fact

Opinions are not actionable, and it must be a false statement of fact.

Example case:

Bisset v Wilkinson [1927]: http://osclinks.com/4399

Some expressions of opinion are mere puffs. Thus, in Dimmock v Hallet [1866] the description of
land as 'fertile and improvable' was held not to constitute a representation.

Statements as to the Future

This cannot be a misrepresentation unless the person making the statement knows that his promise,
which has induced another to enter into a contract, will not in fact be carried out.

Statements as to the Law

These are not actionable as everyone is presumed to know the law.

Silence

The maxim caveat emptor which means 'let the buyer beware' applies and generally, silence is not a
misrepresentation.

Example case:

Smith v Hughes [1871]: http://osclinks.com/4400

However, there are three fundamental exceptions to this rule:

(i) Half-truths-i.e. telling only part of the truth and remaining silent on the rest.
(ii) Statements which become false - i.e. providing a true statement which later becomes
false and then not disclosing this.
(iii) Contracts uberrimae fidei (contracts of the utmost good faith) where one party is in a
stronger position to know the truth they must disclose this.

The Misrepresentation must have Induced the Contract

The misrepresentation must be material and it must have been relied on.

Types of Misrepresentation:

Fraudulent a false statement that is Derry v Peek [1889]: Rescission

made (i) knowingly, or (ii) http://osclinks.com/4401 Damages (deceit)
 without belief in its truth, or
(iii) recklessly, careless as to
whether it be true or false.

Negligent This is a false statement Hedley Byrne v Heller Recission Damages

made by a person who had [1964] (negligence)
no reasonable grounds for
believing it to be true. Esso Petroleum v Recission with an
Mardon [1976]: indemnity
There must be a special http://osclinks.com/4402
relationship between the
parties.
Innocent This is a false statement damages in lieu of
which the person makes rescission under
honestly believing it to be the court's
true. discretion in s2(2)
Misrepresentation
Act 1967

Remedies

Rescission Setting aside the Contract and putting the parties in the original
position they would have been in had the contract never been
made.
Damages (Deceit) The aim is to restore the victim into the position he was in
before the representation was made.
Damages (negligence) See module 3 regarding negligent misstatement. Damages can
only be recovered for reasonably foreseeable loss.
Damages (s2(2) The court has a discretion to award damages in lieu of
Misrepresentation Act rescission i.e. one or the other.
1967)

Learning activity 2
Look at this 2017 case: First Tower Trustees v CDS (Superstores International) and make notes
about the key points: http://osclinks.com/4403

Duress

For there to be a valid contract the parties must act freely. If one of the parties is forced to make the
contract by violence or the threat of violence, that is duress, and renders the contract voidable.

Duress to the Person

Although recognised during the 19h century the scope of this was very limited and to succeed there
must be an actual or threatened violence to the victim.

Economic Duress

The courts now recognise that certain forms of commercial pressure could amount to economic
duress.
Example case:

The Sibeon and The Sibotre [1976]; Pao On v Lau Yiu Long [1980): http://osclinks.com/4404

All that is now required is a suppression of the victim's will and voluntary consent.

4.5 Discharge of a Contract

Learning outcomes
- Performance.
- Breach (actual and anticipatory breach).
- Frustration.

When a contract is discharged, it is brought to an end. There are various methods of achieving this
and these include performance, agreement, breach, or frustration.

Performance

In order to discharge obligations, all the terms of the contract must be completed. However, there
are a few exceptions to this rule.

Acceptance of Partial Performance

If the other party accepts the partial performance and has received the benefit of the work carried
out to date and it is possible to infer from the circumstances that an agreement has been made, he
is obliged to pay a reasonable price for this. Had he rejected the work no payment would be
required, and the contract would still be valid.

Entire and Divisible Contracts

An entire contract would be a contract whereby the consideration, that is the act to be performed in
return for payment, is not broken down into stages but is instead to be carried out in full, In such a
contract, total performance must be completed in line with the terms of the contract and a party
who has not performed his obligations in their entirety cannot claim anything for the work that they
have carried out towards the performance of the contract.

An example of such an occurrence can be seen in the case of Cutter v Powell [1795], whereby Cutter
was promised payment if he worked as Second Mate on a voyage from the West Indies to Liverpool.
Unfortunately, Cutter died before the ship reached Liverpool, but his widow failed in her claim for
payment in respect of the work he had carried out before his untimely death.

Another example of this can be seen in the case of Sumpter v Hedges [1898] where the Claimant
agreed to build a house for the Defendant for E565.00. He partially completed the building work
required and did work to the value of £333.00. He then stopped the job because he ran out of funds.
The Defendant, using the Claimant's materials that had been left on site, finished the construction
work himself. The Claimant claimed £333.00 for work carried out plus the value of his materials used
by the Defendant. He failed in his claim for the £333.00 because the Court found that this was an
entire contract and that the Claimant had not completely fulfilled his obligations as set out in it.

A divisible contract on the other hand, is that which enables a party to sue in respect of work carried
out, even though the contract has not been totally performed. Building contracts nowadays make
use of divisible contracts, allowing for payment on satisfactory completion of each stage of the build
and thus avoiding the issue as previously discussed in the case of Sumpter v Hedges.

A divisible contract is therefore that which may be divided into several parts and payments for the
parts that have been carried out can be claimed.

Whether a contract is divisible or not will depend on the intentions of the party when the contract is
first drafted. If the contract does not specify what the intentions of the party are in respect of the
contract being an entire/divisible Contract, then they are reluctant to infer it as being an entire
contract.

For example, in Roberts v Havelock [1832], the Claimant agreed to repair a ship. The contract did not
state when payment was to be made. The Court held that the Claimant was not bound to complete
all the repairs before being able to claim some payment.

Prevention of Performance

If a party is prevented from performing his terms under an entire contract by the promisee he can
recover a reasonable price for what he has in fact done on a quantum meruit basis in an action in
quasi-contract.

Example case: Planche v Colburn [1831] http://osclinks.com/4405

Substantial Performance

When a contract has been substantially performed but not entirely performed, the party performing
will be entitled to some payment for the work done. The court will calculate this by assessing the
contractual sum and reducing it by considering the work not yet done.

An example of substantial performance can be seen in the case of Hoenig v Isaacs [1952] where the
Claimant agreed to decorate and furnish the Defendant's flat for £750.00, It was an 'entire' contract,
but he did not completely finish the work and tried to claim on the basis that he had substantially
completed it. The work had several defects which could have been fixed for E55.00. The Defendant
argued that the Claimant was only entitled to a reasonable remuneration for the work that he had
done under the contract. The Court however, held that since he had substantially performed the
contract, the Claimant was entitled to the full contract rate, less the cost of fixing the defects.

This should be contrasted with Bolton v Mahadeva [1972] where the cost of rectifying defects for a
central heating system which had not be fully installed was £174. As the contract was for £560 the
difference between the cost of the work and cost of rectifying it was too wide and therefore there
had been no substantial performance.

Breach

A breach if where part or whole of the contract has not been complied with by one party. Depending
upon the seriousness of this, it may be sufficient to bring the contract to an end. This may be an
anticipatory breach where one party expressly or impliedly indicates they will not be able to perform
the contract: or an actual breach of a condition.

Anticipatory Breach

If one person anticipates that they will not be able to fulfil their promises they must communicate
this to the innocent party who can accept or reject the repudiation. It is possible for silence or
inaction to amount to acceptance of the anticipatory breach in some circumstances.
Vitol SA v Norelf Ltd [1996]

The end date of the contract does not have to be breach and the contract can come terminate
immediately.

Hochster v De La Tour (1853)

If the other party does not accept the breach and repudiation, the contract will remain open for a
reasonable time even if it increases the costs to the defaulting party.

Example cases:

Avery v Bowden [1855]: http://osclinks.com/4406

White & Carter v McGiregor [1962]: http://osclinks.com/4407

If the innocent party rejects the repudiation, he cannot later change his mind – he is stopped from
doing so. He must also continue to comply with his own obligations.

Frustration

A contract is described as being frustrated when performance becomes impossible due to an

unforeseen occurrence which is beyond the control of the contracting parties. When this occurs,
neither party will be liable for breach of contract.

Common Law Position

Frustration is a fairly new concept, with the original Common Law position (known as the 'doctrine
of absolute contractual duties') refusing to allow a party to be released from their contractual duties
simply because they had become impossible to perform.

Examples include:

- Destruction of the specific object essential for performance of the contract

- Personal incapacity
- Non-occurrence of a specified event may frustrate the contract
- Interference by the government
- A contract may become frustrated if it later becomes illegal

A contract will only be discharged by frustration where the change of circumstance is one that could
not have been foreseen and where it genuinely makes the contract impossible, as opposed to more
difficult/costlier, to perform.

An example can be seen in Davis Contractors Ltd v Fareham UDC [1956] where the Claimant agreed
to build 78 houses at a price of E94,000.00 in 8 months. Labour shortages caused the work to take
22 months and cost the Claimant E115,000.00. The Claimant claimed that the contract was
frustrated and claimed for their work on a 'Quantum Meruit' basis (a Quantum Meruit action is a
claim for a percentage of the contract price in direct proportion to the percentage of work done).
Lord Radcliffe denied that the contract had been frustrated: he stated instead that hardship,
material loss or inconvenience did not amount to frustration.

A further example is that of Amalgamated Investment and Property Co. Ltd v John Walker and Sons
Ltd [1975], where a contract for the purchase of a warehouse for £1,7 million and where both
parties knew that the intention of the purchaser was to demolish the building and re-develop, was
not frustrated by a preservation order being imposed on the building after contracts were
exchanged which reduced the value to £200,000.00. The contract was still possible to perform even
though the Claimants had lost money on it.

In Tsakiroglou and Co. Ltd v Noblee and Thurl GmbH [1961] a contract by the Claimants to sell a
consignment of ground nuts and to deliver them to Hamburg was not frustrated by the closure of
the Suez Canal which forced the consignment to be shipped via the Cape of Good Hope at far greater
expense.

Self-induced Frustration

Elaborating on statements made above, the Court will not deem a contract to be frustrated where
express provision has been made in the contract for the eventuality concerned or where the
frustrating event is self-induced.

For example, in The Eugenia [1964], the charterer of the ship, in breach of contract, ordered the ship
into a warzone. The ship was subsequently detained. It was held that the charterer could not rely on
its detention as a ground for frustration because it was by his own doing that the ship was detained.

Vitiating Circumstances

The Court will of course allow a contract to be frustrated, as long the vitiating circumstances are
such that they deem it appropriate. Some examples of where the Court have deemed a contract to
be frustrated are as follows:

In contracts for personal services, where either party to a contract of personal service dies, becomes
seriously ill, is permanently incapacitated or is called up for military services, the Court will allow a
contract to be frustrated. In Condor v The Baron Knights Ltd [1966] the Claimant was the drummer
in a band. Owing to illness he was forbidden by his doctor from performing more than a few nights
per week. Since the nature of the work required him to be present seven nights a week, the contract
was held to be frustrated.

Where the contract depends on a state of affairs which no longer exists, the Court will allow
frustration, In Taylor v Caldwell [1863] the Defendant contracted to let a music hall to the Claimant
for four days. Before the first day the music hall accidentally burnt down, The Claimant claimed
damages, but it was held that the Defendant was released from his obligation when the music hall
burned down. The contract was therefore frustrated.

Commercial Viability

The Court have allowed frustration in circumstances where the commercial viability of the contract
has been frustrated. For example, in Jackson v Union Marine Insurance Co. Ltd [1874], a ship was
chartered to sail from Liverpool to Newport to take on a cargo of iron rails for San Francisco. The
ship hit rocks on the way to Newport and was forced to return to Liverpool for repairs that took
eight months to complete. The contract was held to be frustrated and the parties where therefore
discharged from the contract.

The reason that the Courts are cautious with their approach to frustration is due to the impact that it
has on a contract. If a contract is found to be frustrated then it is automatically discharged as to the
future, but it is not made void form the beginning. (In so doing, it therefore operates similarly to a
voidable contract).

Common Law Remedy

In respect of the Common Law approach, the loss was considered to lie where it fell. Any money
paid before the contract was frustrated could not be recovered and money payable before the
frustration remained payable. The only circumstance where this would not be the case is if there had
been a total failure of consideration.

For example, in Fibrosa v Fairbairn [1942]: http://osclinks.com/4408 a purchaser of machinery who

was due to pay £4,800.00 in total had paid £1,000.00 when placing his order. The machinery was to
be delivered to Poland, Unfortunately, not long after the contract was made, war broke out and
Poland was invaded by Germany. It was therefore impossible to deliver the machinery. The Claimant
succeeded in his action to recover the £1,000.00 paid since he had received absolutely nothing in
return for his payment. There had been a total failure of consideration.

Statutory Remedy

The Law Reform (Frustrated Contracts) Act 1943 provides that:

- Money paid before the frustrating event is recoverable and money that is due to be paid
before the frustrating event ceases to be payable.
- If one party has incurred expenses the Court may allow him to retain or be paid an amount
not exceeding the amount of the expenses.

Section 1(2) of the Act states: "All sums paid or payable to any party in pursuance of the contract
before the time when the parties were so discharged shall in the case of sums so paid, be
recoverable from him as money received by him for the use of the party by whom the sums were
paid, and, in the case of sums so payable, cease to be so payable."

The doctrine of frustration operates in situations where it is established that due to subsequent
change in circumstances, the contract is rendered impossible to perform, or it has become deprived
of its commercial purpose by an event not due to the act or default of either party.

4.6 Remedies

Learning outcomes
- Compensatory damages (including categories of recoverable loss, causation, remoteness
and mitigation).
- Equitable remedies of specific performance and rescission.
- Termination of contract for breach.

Damages

This is a common law remedy which s designed to put the injured party financially as near as
possible to the position he would have been in had the promise been fulfilled.

In Addis v Gramaphone Co Ltd [1909], Lord Atkinson said: "7 have always understood that damages
for breach of contract were in the nature of compensation, not punishment."

Remoteness of Damage

Not all damages are recoverable. If the loss flowing from the breach of contract is too remote, then
it cannot be recovered. Losses, to be recoverable, must have been within the reasonable
contemplation of the parties.

Hadley v Baxendale [1849]

Under Hadley v Baxendale damages are recoverable under two limbs:

(i) Damages which may fairly and reasonably be considered as arising naturally from the
breach.
(ii) Damages which may reasonably be supposed to have been in the contemplation of the
parties, as liable to result from the breach, at the time of the contract.

These principles have been considered in the following cases:

Victoria Laundry v Newman Industries [1949]: http://osclinks.com/4409

The Heron ll [1969]: http://osclinks.com/4410

Pilkington v Wood [1953]: http://osclinks.com/4411

Mitigation of Loss

The claimant must ensure that they do not increase the amount of damage done and this is known
as mitigating loss. Three rules are applied by the court:

(i) If the claimant could have taken reasonable steps to avoid the loss then they will to able
to recover the loss.
(ii) If the claimant could actually have avoided the loss, he will not recover the losses even if
he took more steps than were necessary to comply with this rule.
(iii) If the claimant took reasonable steps to mitigate the loss but did not succeed then the
loss can be recovered.

The plaintiff takes reasonable steps to minimise the loss. If he fails to do so, then he cannot recover
anything in respect of that extra loss.

Types of Damages

Nominal and Contemptuous

Nominal damages are awarded where the claimant has not suffered any loss but nevertheless
proves that the defendant has committed a tort.

This is usually the smallest coin of the realm and are awarded where, although the claimant was
successful, the claim should not have been brought as there was no merit in the same.

General and Special

General damages do not need to be pleaded as they are presumed to flow from the

action.

Special damages do need to be pleaded as they must be proven to be part of the cause, These often
relate to accrued expenses such as loss of earning, damaged goods, etc.

Aggravated and Exemplary

Aggravated damages are higher than normal to reflect a greater injury to the claimant.

Exemplary damages are awarded for conduct that shocks the court.

In Rookes v Barnard [1964] the House of Lords held that, except where specifically authorised by
statute, exemplary damages should be awarded only in two categories of case:
 (a) Oppressive, arbitrary or unconstitutional action by servants of the government.
(b) Where the defendant's conduct has been calculated by him to make a profit for himself
which may well exceed the compensation payable.

Equitable Remedies

Referring back to Unit 1, you will recall that one of the flaws in the common law system was that the
only remedy was damages, which does not always fit every situation. For example, if you have
contracted to purchase a house and the seller lets you down, you could be homeless. Damages may
be sufficient to return your money to you, but where are you going to live?

Specific Performance

This compels the person to whom the ordered is addressed to fulfil their terms of the contract. In
our example above regarding the house sale, it could be to compel the transaction and move out of
the home so that you can move in. As it usually involves the defaulting party to do something it is
usually positive in nature. The plaintiff will need to show that damages are inadequate, and the
following circumstances are examples of these:

(i) Where the plaintiff cannot get a satisfactory substitute.

(ii) Where the award of damages would be unfair to the plaintiff.
(iii) Where the quantum of damages is difficult to assess.
(iv) Under S55 Consumer Rights Act 2015 - The right to require repeat performance is a right
to require the trader to perform the service again, to the extent necessary to complete
its performance in conformity with the contract.

Specific performance will not be granted if constant supervision by the court would be needed to
ensure compliance with the order. Furthermore, it will not usually be given for a contract of personal
services, such as employment or a contract without consideration.

Specific performance must be available in principle to both parties if it is to be ordered.

Injunction

Unlike specific performance, these are usually negative in nature and occur where the party requests
the court to restrain a party from committing a breach of Contract. For example, if the parties had a
contract whereby a secret ingredient for the manufacture of some goods was disclosed to the other
party, you could seek an injunction if they were about to reveal the ingredient to a third party.

There are three types of injunction:

Interlocutory injunctions Designed to regulate the position of the parties

pending a hearing.
Prohibitory injunction Orders a defendant not to do something in
breach of contract even if it would be onerous
or the breach would cause the claimant little
prejudice.
Mandatory injunction Requires a defendant to reverse the effects of
an existing breach. The 'balance of
convenience' test is applied and if the
defendant would sustain hardship and this
outweighs the advantages to the claimant it will
not be ordered.
If the injunction would compel the defendant to do something which could also be specific
performance, the injunction would not be granted. This often relates to personal service contracts.

Example case:

Page One Records v Britton [1968]: http://osclinks.com/4412

Exceptions to the rule:

(i) If the service contract contains negative obligations which do not require positive
performance of the whole contract to be performed.
Example case: Lumley v Wagner [1852] http://osclinks.com/4431
(ii) A negative stipulation which is too wide can be severed and enforced in part. See:
Example case: Warner Bros v Nelson [1937]: http://osclinks.com/4413

Quantum Meruit

The expression quantum meruit means the amount he deserves'" or 'what the job is worth and in
most instances denotes a claim for a reasonable sum.

A claim on a quantum meruit does not usually arise if there is an existing contract between the
parties to pay an agreed sum, But there may be a quantum meruit claim where there is:

(1) an express agreement to pay a reasonable sum.

(2) no price fixed- the contractor does as he is entitled to be paid a reasonable sum for his labour
and the materials supplied.

(3) a quasi-contract. A reasonable sum will be paid for any work carried out during the course of
negotiations before the actual agreement is reached.

(4) work outside a contract. If one party makes a request for additional work outside the main
contact, an implied contract exists, and the other party is entitled to be paid a reasonable sum for
the work carried out.

Unit 5 Human Rights

5.1 Rules in Human Rights Law

Learning outcomes
- Rules and principles of law relating to the right to life, to liberty and security of person, to
privacy, to freedom of expression, and to freedom of assembly and association, as
 recognised by the European Convention on Human Rights and in the United Kingdom.

We do not have a written constitution (like the USA, however we do work on the 'Golden Principle’
which states that unless it is prohibited by law, we are able to do what we Like.

Freedom of Movement or Liberty

We are not allowed to be detained by the police/courts unless it is:

- Following a lawful arrest.

- On the order of a court while awaiting trial.
- A sentence of imprisonment after being found guilty of a crime.
- Under the Mental Health Acts.

If a person has been unlawfully detained, he may sue in the civil courts and claim damages for false
imprisonment.

Where the person is still being detained and there is a special writ (court order) that can be
obtained; this is the writ of habeas corpus. An application for this is made to the QBD of the High
Court and its effect is order that the detained person be brought before the court immediately. It
will be heard first that day and the court have to decide whether the detention is lawful or not.

Freedom of Speech

Defamation

Defamation is a tort and anyone who has been defamed has the right to sue for damages. This
protects people from having untrue statements made about them which could damage their
reputation. Defamation can also be a crime if the statement is in a permanent form and likely to lead
to a breach of the peace.

Censorship

There are certain laws relating to films, theatres, videos and printed words such as the age ratings
for films. The following statutes can apply:

- Cinematograph Acts 1909 and 1952

- Local Government Act 1972
- Theatre Act 1968
- Protection of Children Act 1978
- Video Recordings Act 1984
- Obscene Publications Act 1959-1964
- Criminal Justice and Public Order Act 1994
- Children and Young Persons (Harmful Publications) Act 1955
- Terrorism Act 2000
- Racial and Religious Hatred Act 2006

National Security

Publishing information that could put the security of the country at risk is forbidden. The Official
Secrets Acts create various criminal offences which forbid disclosing information. There is also the
crime of treason, which among other things, prevents broadcasting enemy propaganda in times of
war. Another offence which restricts freedom of speech is sedition. A person saying or publishing
material which would bring the Government into hatred or contempt or encourage a rebellion could
be prosecuted for sedition, although in practice prosecutions are very rare.

Freedom to Protest or Demonstrate

Meetings in private places are generally allowed unless there is likely to be a crime. However, there
are several restrictions on meetings in public places.

The Public Order Act 1986 creates 2 different offences about people using violent conduct in both
public and private places. These are:

- Riot: this is committed when 12 or more people present together use or threaten violence
for a common purpose which would cause a person of reasonable firmness to fear for his
personal safety.
- Violent Disorder: this is committed if there are three or more persons present together
using or threatening violence in such a way that a person of reasonable firmness would fear
for his personal safety.

The Public Order Act 1986 makes several rules about processions. The organisers should give written
notice to the local police of any intended procession at least 7 days before it is due to take place.
They must give details of the venue, how long it is to last and the maximum number of people that
may attend. However, annual processions such as local carnivals or May fairs are not included in this
provision.

When a procession takes place, the most senior police officer present may impose any conditions
necessary if he reasonably fears that serious public disorder is likely to result. So, the police can then
redirect the proposed route of the procession.

Finally, the Chief Constable for any area can apply to the district council for an order banning all (or
certain types of) procession within a local area for up to 3 months.

5.2 Theory in Human Rights

Learning outcomes
- Theories of rights.
- Rights contrasted with liberties.
- The scope of 'fundamental human' rights.

Human rights might be considered as a minimum level of protection that should be afforded in law
by a government to its citizens. They are inherent to all humans and a manifestation of human
dignity and they are inalienable.

Human rights differ from civil liberties in that the former are those considered to be universal and
therefore apply to everyone. The latter are the rights and freedoms which are recognised by a
particular country. For example, in England we are only permitted to have one spouse, whereas in
other countries some men have many wives.

Civil liberties are therefore governed by the country's own legal system which will create and
enforce their laws using their own methods of implementation. For example, in the English Legal
System we will pass an Act of Parliament. Many Civil liberties laws include human rights and a citizen
will automatically be protected by these and would not have to earn the same. Governments are
prevented from abusing their powers and restricted in their level of interference in peoples' lives.
The level of protection will differ from country to country depending on their circumstances and
some countries have a more authoritarian stance to others.

Where Do Civil Liberties Come From?

The first historical event occurred in 1215 under the realm of King John of England. At that time
medieval barons were rebelling against the supreme power of the throne and in order to placate
them he signed what is known as the Magna Carta. This was a document which guaranteed certain
basic levels of treatment and limited the power of the government to act without reason or abuse its
power. It is considered by many people to be the blueprint for constitutions and bills of rights all
over the world.

In 1787 the United States of America enacted the Bill of Rights and created the Constitution of the
United States. Certain civil liberties were created to provide citizens and residents with various
rights, including the right to speak or write freely, to assemble when they want, to practise the
religion of their choice and to "bear arms". These rights are frequently relied upon in the American
courts.

Human Rights and Civil Liberties in the UK

In the UK we do not have a written constitution, however various civil liberties have evolved
throughout time and we have an extensive common law history which recognises various freedoms,
and these are upheld by our courts. Our common law has influenced many written constitutions
around the world.

An old example of a common law right is the principle of ""Habeas corpus "", This has been
operational since at least the 14th Century and potentially before the Magna Carta. This rule
provides that anyone who has been arrested, or deprived of their liberty, may request that they are
presented before a judge to determine the legality of their detention.

Although we have an extensive common law to rely upon, the UK gave effect to the European
Convention on Human Rights by implementing the Human Rights Act 1998 which came into force in
2000. The Act protects breach of a person's rights by 'public authorities' and enables a case for a
breach of the European Convention to be brought in the UK courts. Before this was implemented
dissatisfied citizens would have to go to the European Court of Human Rights in Strasbourg.

In unit 1 we looked at judicial precedent and statutory interpretation. Following the Human Rights
Act decisions of the European Court of Human Rights are binding on our judicial system and must
therefore be considered when hearing cases. When interpreting legislation, judges must do so in a
way which is compatible with the European Convention unless it is not possible to do so in which
case, they would have to issue a 'declaration of incompatibility'. The UK Act would not be invalid due
to the declaration however an appeal can still be made to the European Court of Human Rights.

Civil Liberties Around the World

People will continue to argue for greater freedoms and the level and type of rights they campaign
for will depend upon that country's existing recognised rights. For example, in the UK same sex
marriage became law in 2013, however other countries who are still very restrictive may still be
seeking basic civil liberties such as the right of free speech.

5.3 Human Rights in International Law

 Learning outcomes
- The Second World War and its aftermath.
- The United Nations and the Universal Declaration of Human Rights 1948.
- The Council of Europe and the European Convention on Human Rights 1953.

The Second World War was outrageous and barbaric. This resulted in some countries getting
together in 1950 to agree some fundamental human rights that all citizens should be given and if
these were not forthcoming, help and protection would be given by the other countries. The
agreements were put in writing in a document known as the European Convention on Human Rights
and were signed by the participating countries. Britain signed this convention in 1951 and it came
into force in 1953 when it bound all members who signed it. Further rights have since been added,
these being the protocols at the end of the Convention.

5.4 Human Rights in the United Kingdom

5.4.1 Prior to the Human Rights Act 1998

Learning outcomes
- The status of the European Convention on Human Rights in the United Kingdom, and the
impact of decisions of the European Court of Human Rights

England has two systems of aw, which run side by side.

1. Domestic Legal System: This is our own legal system and made up of our common law and
legislation (see module 1 for further information).
2. International Law: law we must abide by having signed agreements with other countries
around the world such as the European Convention of Human Rights. The English Courts do
not have authority to enforce international laws. Therefore, unless they have passed their
own Act of Parliament to bring the international law into the UK system, the only redress
would be to seek assistance from the international law court. For example, before the
Human Rights Act 1988 was brought in, citizens would have to go to the European Court of
Human Rights.

Our system is known as 'dualistic'. A contrast to this is 'monistic' which can be seen in France.
International Treaties automatically become part of French Law without them needing to pass their
own legislation due to the international treaties they have signed. They therefore only have one
system.

The European Convention of Human Rights can be viewed here: http://osclinks.com/4414

5.4.2 After the enactment of the Human Rights Act 1998

Learning outcomes
- Extent and method of incorporation and interpretation of the provisions of the European
Convention on Human Rights.
- Impact on constitutional arrangements and on law in the United Kingdom including
entrenched nature of the Human Rights Act 1998 in the devolutionary settlement of
Scotland and Northern Ireland.
 - Criticisms of Human Rights.

European Convention on Human Rights

Although the Human Rights Act 1998 is now in force, up until the date of enactment, UK citizens
were protected by the Convention as soon as it came into force in 1953.

In 1948 the General Assembly of the United Nations made the Universal Declaration on Human
Rights and in 1950 the European Convention of Human Rights was adopted by the Council of Europe.

A separate international organisation was formed in 1949 known as the Council of Europe which is
separate to the European Union. 20 out of 21 members in 1950 signed the European Convention on
Human Rights. Several other European countries have joined the Council of Europe and signed the
Convention bringing the number up to 50 countries that have signed the Convention.

Convention Rights

The Convention sets out the rights and freedoms that the people of Europe should be entitled to:

Article 2 provides that everyone's right to life shall be protected by law. Although the death penalty
has been abolished in England, it is still used in other countries and the Articles do permit this for
those convicted of certain crimes.

Article 3 prohibits torture. The UK were found to be in breach of this in respect of treatment of
prisoners in Northern Ireland.

Article 4 declares that slavery is not allowed.

Article 5 states that everyone has the right to liberty, and they will not be deprived of this expect
where the law allows arrest or detention.

Article 6 states that there is a right to a fair and public hearing within a reasonable time and this
applies to both criminal and civil cases.

Article 7 states that no one shall be held guilty of a criminal offence if his act was not a crime at the
time he did it.

Article 8 states that everyone has the right to respect for their private and family life.

Under Article 9 everyone has the right to freedom of thought, conscience and religion. In the UK
individuals have the right to follow any religion they choose.

Article 10 states that everyone has the freedom of expression. This is the principle of freedom of
speech and it is often regarded as being one of the key features of a democratic society.

Article 11 gives the right to freedom of peaceful assembly and to the freedom of association with
others, including the right to join trade unions.

Article 12 states that everyone has the right to marry.

Article 13 gives the right for an 'effective remedy' before national authorities for violations of rights
under the Convention.
Article 14 says that all these rights and freedoms should exist without any discrimination on any
grounds such as sex, race, colour, language, religion, political or other opinion, national or social
origin.

A Guide to the Human Rights Act 1998 (HRA 1998)

s2 HRA 1998 relates to the interpretation of Convention Rights.

s2(1) states the court or tribunal in determining a question arising in connection with a Convention
Right must take account of any:

(a) judgement, decision, declaration or advisory opinion of the European Court of Human Rights

(b) opinion of the Commission in any report under Article 31

(c) decision of the Commission under Articles 26 or 27(2)

(d) decision of the Committee of Ministers under Article 46

whenever given or made, insofar as, in the opinion of the Court/Tribunal, it is relevant to
proceedings in which that question has arisen.

s2(2) states that evidence of any judgment, decision, declaration or opinion must

be given in accordance with the rules.

s2 requires domestic courts to have regard for the rulings of the European Court of

Human Rights together with the opinion and decisions of the Commission and the

Committee of Ministers. This does not mean that the court is bound to follow the European Court of
Human Rights, rather draw broad principles which the Convention establishes.

s3 HRA 1998 relates to the interpretation of legislation.

s3(1) provides that so far as it is possible to do so, primary legislation and subordinate legislation
must be read and given effect in a way which is compatible with the Convention rights.

s3(2) applies:

(a) to primary legislation and subordinate legislation whenever enacted.

(b) does not affect the validity, continuing operation or enforcement of any

incompatible primary legislation; and

(c) does not affect the validity, continuing operation or enforcement of any incompatible
subordinate legislation or (disregarding the possibility of revocation) primary legislation prevents
removal of the incompatibility.

s3 places courts under a duty to interpret legislation in a manner which is ECHR compliant. It
imposes an interpretive obligation on courts to interpret in in line with Convention Rights but only as
far as it is possible to do so. If it is unable to do so then under s4 a Declaration of Incompatibility
must be made. s3 does not affect validity or continuing operation of any incompatible primary
legislation, thus preserving the principle of Parliamentary Supremacy. It should be used as last
resort.
The courts must distinguish between their interpretive obligation and legislating. I.e., they must not
create new legislation.

An Incompatible or 'Bad' Law

Many of our laws were created before the Human Rights Act existed and, therefore, there are going
to be times where they conflict, or the existing law does not comply with the Human Rights Act. If
the courts and public authorities are not able to comply with the Human Rights Act they should try
to interpret the law in accordance with the Convention Rights in order to comply with the same. If
the law needs to be quickly amended the government can follow a "'fast track procedure'" to amend
the bad law.

Making 'Good' Law

Following the Human Rights Act, any laws which have been passed by Parliament since it was
implemented must state whether it follows the Human Rights Act. This is called a 'Statement of
Compatibility'.

Who is Bound to Uphold these Rights?

s6(1) states "it is unlawful for any public authority to act in such a way that is incompatible with a
right under the Convention."

You will note from the definition that only 'public authorities' are noted and therefore the duty does
not extend to individuals. The definition of 'public body is quite wide and includes the Government,
courts, schools, hospitals, local councils and other organisations who conduct government work.

The Act does not apply if the authority court would not, by virtue of primary legislation, have acted
differently; or acted to give effect to enforce a provision which is incompatible with a Convention
right.

Who May Bring Proceedings?

s7 (1)(a)(b) a 'victim" of any act (or proposed act) of a public authority who says that the act is
unlawful may bring proceedings against that authority or rely on the Convention rights in any legal
proceeding.

Time Limits

s7(5) provides that the time limit is 12 months from the date of the act complained of or such longer
period as the Court/Tribunal "considers equitable having regard to all the circumstances". There is
also a power to reduce the limitation period which Parliament can give effect to.

Freedom of Expression

If a claimant seeks relief in terms of stopping the defendant from their expression, for example, if it
could damage the claimant's reputation, when a court grants relief to a claimant, they must consider
whether or not such relief would be in contravention of the Convention right to freedom of
expression. Such circumstances are covered by st2(1) and the outcome depends upon whether they
were present or represented. If they were not, then the court will require evidence that all practical
steps to notify the respondent were taken or there is a compelling reason why they were not. The
courts will balance between the respondent's right to write journals, literary or create artistic
matters which will be made public against the claimant's privacy.
Freedom of Thought, Conscience and Religion

If a religious organization may be affected by a court (or tribunal's) decision in its freedom of
thought, conscience and religion then Section 13(1) states that the court must have particular regard
to the importance of that right.

The Principles of Interpretation

The Court at Strasbourg uses the following principles:

- Rule of law
- Legitimate aim(s)
- Proportionality
- Margin of Appreciation see Handyside v UK [1976]
- Derogations
- Interpretation of the Convention

Therefore, so must practitioners in the UK.

Rule of Law Where a Convention right is interfered with there must be ascertainable legal
basis for that interference if it is to be permissible. That legal basic must be
readily ascertainable: E.g., statute, common law.
Legitimate Aims A public authority seeking to defend itself following an alleged breach of a
Convention right must show that the interference was aimed at an identified
legitimate aim. More than one aim may be identified. Examples include
national security, public health, public safety and economic health of state.
Proportionality Is the interference with a Convention right proportionate? I.e., necessary in a
democratic society or a pressing social need? To ascertain this one must look at
the legitimate aim and how it can be pursued in proportion. For example,
access to legal advice may be refused or limited when detained at a police
station under the Prevention of Terrorism (Temporary Provisions) Act 1989.
Margin of Member States' religious, political and cultural backgrounds are often unique
Appreciation to that State (and its public authorities).
Derogations Article 15 states that a State has a power to restrict some of the rights under
the Convention in times of emergency. Under article 5(3) Everyone arrested
must be detained in accordance with the provision of paragraph 1(c) and must
be brought promptly before a judge or other offices authorised by law to
exercise judicial power and shall be entitled to a trial within a reasonable time.
Interpretation The fundamental purpose of the Convention is to protect the human rights of
the individual and the values of a democratic society. The Convention is
intended to guarantee real rights in a practical and effective manner; the rights
are not aspirations.

Judicial Remedies

S8 provides that the Courts retain their powers to grant remedies including in the Civil Courts the
power to award damages. s8(1) provides the relief or remedy is to be 'as it considers just and
appropriate'.

Remedies include:

- Damages
- Injunctions
 - Declarations
- Judicial Review
• damages
• quashing orders
• mandatory orders
• prohibition
- Compensation

s8(4) provides that in determining whether to award damages or the amount of an award, the court
must consider the principles applied by the ECHR in relation to the award of compensation under
Article 41. Under Article 13 everyone has a right to an effective remedy.

5.5 The European Convention on Human Rights 1953

5.5.1 Article 2

Learning outcomes
- Article 2.1: right to life.
- Article 2.2: justified exceptions.
- The right to life: an outline of criminal and civil law provisions and investigatory
procedures.

Article 2: The Right to Life

Everyone's right to live shall be protected by law. No-one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his conviction for a crime for which this
penalty is provided by law.

Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results
from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence

(b) in order to effect a lawful arrest or to prevent the escape of a person

lawfully detained

(c) in action lawfully taken for the purpose of quelling a riot of insurrection

The aim of this right is to prevent an individual from unreasonable force from the police or security
forces. The difficulty arises where there are two lives at stake the accused and the police officer.
Both must be taken into regard and the circumstances and facts will be taken into account. For
example, should a police officer shoot a hostage if it would save many other hostages? Compare this
to if the police use a 'shoot to kill' strategy and there are no hostages. Lethal force should not be
used unless it is absolutely necessary.

There are two elements to this article: positive and negative. On one hand, we must protect life,
however on the other we must also prevent death. Death in custody is always thoroughly
investigated as police should avoid methods of restraint that are dangerous for individuals.

Bubbins v UK (2005]
Killing of the applicant's brother by armed police was not a breach of Article 2.

Van Colle v Chief Constable Hertfordshire [2007]

Police failure to protect witness who was subsequently murdered was incompatible with Article 2.

Learning activity 1
Look at the following article on choosing where one's child is born in relation to Article 2.
http://osclinks.com/4415

5.5.2 Article 5

Learning outcomes
- Article 5.1: right to liberty and security of person.
- Article 5.1a-5. 1c: justified deprivation of liberty-awful arrest or detention.
- Article 5.2-5.5: additional requirements to justify deprivation of liberty in cases of lawful
arrest or detention.
- Deprivation of liberty.

Article 5: The right to liberty and security of the person

Everyone has the right to the liberty and security of person. No-one shall be deprived of his liberty
save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court.

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or
in order to secure the fulfilment of any obligation prescribed by law.

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed an offence or when it is
reasonably considered necessary to prevent him committing an offence or fleeing after having done
so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful
detention for the purpose of bringing him before the competent legal authority.

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of
persons of unsound mind, alcoholics or drug addicts or vagrants.

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the
country or of a person against whom action is being taken with a view to deportation or extradition.

Everyone who is arrested shall be informed promptly, in a language which he understands, of the
reasons for his arrest and of any charge against him. Everyone arrested or detained must be brought
promptly before a judge or other office authorised by law to exercise pending trial. Release may be
conditioned by guarantees to appear for trial. Everyone who is deprived of his liberty by arrest or
detention is entitled to take proceedings by which the lawfulness of his detention shall be decided
speedily by a court and his release ordered if the detention is not lawful. A victim of arrest or
detention in contravention of the provisions of this Article has an enforceable right to compensation.

In general, there are strict rules as to how long a person can be kept in custody or prison before they
appear before a judge for an initial appearance and before trial. There are some exceptions to this
for more serious crimes particularly where the public need to be protected. For example, a
suspected murderer. Guzzardi v Italy [1980]

Meaning of the term 'deprivation'

Cheshire West & Chester Council v P [2011]

"person is under continuous supervision and control and is not free to leave" Lady Hale-Supreme
Court judge

5.5.3 Article 8

Learning outcomes
- Article 8.1: right to respect for private and family life, his home and his correspondence
- Article 8.2: restrictions on the rights.
- Privacy and communication: criminal and civil law provisions which protect or restrict the
rights.

Article 8: Respect for private and family life, home and correspondence

This Article introduces a new concept into UK law- the idea that our private lives should be
protected. It means that public bodies, like the Government, cannot listen in to people's phone
conversations, or film them secretly, unless there is a very good reason for doing so. It also protects
people from laws that might unnecessarily infringe their private lives.

Everyone has the right to respect for his private and family life, his home and his correspondence.
The expanse of this article is very broad.

There shall be no interference by a public authority with the exercise of this right except in
accordance with the law and it is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or the protection of the rights and freedoms of others.

This includes:

- family life
- private lie
- home
- correspondence

Maric v Thames Water Utilities (2003]

Right to damages for flooding

Lambeth LBC v Annette Grant (2004]

Illegal immigrants right to welfare support

Blackburn-Smith v Lambeth LBC (2007]

Provision of local authority accommodation for illegal immigrant

Connors v UK [2004]
Eviction from local authority of a gypsy caravan site

Learning activity 2
 Go onto the following Liberty human rights website to investigate Article 8.
http://osclinks.com/4416
You can also use this website to look at other Articles.
http://osclinks.com/4417

5.5.4 Article 10

Learning outcomes
- Article 10.1: right to freedom of expression.
• Receive information and ideas.
• Communicate information and ideas.
- Article 10.2: restrictions on the rights.
- Expression, assembly, and association: in addition to relevant provisions identified above
which impact on the balance between privacy and the right to freedom of expression,
assembly, and association.

Article 10: Freedom of Expression

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions
and to receive and impart information and ideas without interference by the public authority and
regardless of frontiers. This Article does not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to
such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information received in confidence or
for maintaining the authority and impartiality of the judiciary.

(Legislation GOV UK, 2018)

This is a very important right which has been strongly protected by the European Court of Human
Rights. It protects political opinions, journalism, literature and even unpopular views that might
upset sections of the community. This right also ensures that democracy continues, and that the
Government is held accountable, so people can be free to speak out against the Government and
ask them why they are behaving in such a manner. This right, although it is important, must be
balanced with other rights. For example, Article 8 might come into direct conflict with this right. A
journalist might have the right to freedom of speech to write an intrusive article about a famous
person, but that famous person similarly has a right not to have their private life violated in this
fashion, The courts must balance the two rights and reach a compromise.

There have been many high-profile cases examining article 10:

McVicar v UK [2002]

A V BPIC & Another [(2002]

Footballer and 'ladies' right to report
Theakston v MGN (2002]
TV presenter and right to report

Douglas & Zeta Jones v Hello (2001]

No right to privacy under English Law

Steel v Morris v UK [2005]

'McLibel' case

Open Door and Dublin Well Woman v Ireland [1992]

Right to provide information

Yildirim v Turkey [2013]

Blanket blocking of access to internet breach of freedom of expression

5.5.6 Article 11

Learning outcomes
- Article 11.1: right to freedom of peaceful assembly and to freedom of association with
others.
- Article 11.2: restrictions on the rights

Article 11: Freedom of assembly and association

Everyone has the right to freedom of peaceful assembly and to freedom of association with others,
including the right to form and join trade unions for the protection of his interests.

No restrictions shall be placed on the exercise of these rights other than as are prescribed by law and
are necessary in a democratic society in the interests of national security or public safety, for the
prevention of disorder of crime, for the protection of health or morals or for the protection of the
rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on
the exercise of these rights by members of the armed forces, of the police or of the administration of
the State.

(Legislation GOV UK, 2018)

This Article gives people the right to peaceful assembly and to take part in peaceful demonstrations.
This means that the Government cannot stop people from meeting together to talk about things or
from demonstrating in public against something the Government might want to do. At present,
Britain has a relatively good record of allowing such demonstrations compared to many other
countries; think about pictures on the television of protesters marching to the Houses of Parliament.
The right of people to speak out and demonstrate against the Government is believed to be
important for democracy. Countries such as China do not permit such demonstrations (the trouble in
Tiananmen Square in 1989 was evidence of this). Under this Article, people are also given the right
to join trade unions, which fight collectively for better working conditions for their members. It also
means that people have the right not to join trade unions and they cannot lose their jobs by refusing
to do so.

Redfearn v UK (2012]
Freedom to associate
5.6 Enforcement

Learning outcomes
- Claims before the European Court of Human Rights; the role of domestic courts; the effect
of decisions on states and claimants.
- The process of judicial review.

In the event that an individual has been denied a remedy under UK law, for example, if it is
incompatible with the Convention or there is a gap in the legislation which cannot be filled with
common law, the individual can petition to the European Court of Human Rights in Strasbourg but
only as a last resort. All domestic remedies must first have been exhausted (including the Human
Rights Act 1998).

The procedure is as follows:

1. A complaint is first addressed to the Secretary of the Court of Human Rights (a single judge).
No special form is required.
2. A chamber of the court is made up of 7 judges and they will determine accessibility in
accordance with Articles 29 and 35 of the European Convention of Human Rights. The court
may rule on admissibility in exceptional cases, however generally claims cannot be brought
six months from the date of final decision; anonymous or repeat applications are not
accepted; abusive, unmeritorious and ill-founded applications will be rejected; the power to
reject applications as inadmissible at any stage of the proceedings and al Domestic remedies
must first be exhausted. Around 90% of complaints are ruled inadmissible.
3. Once the Committee (made up of 3 judges) have judged the complaint as being admissible
the European Court of Human Rights will try to reach a settlement with the government
concerned which may include reform of the rules.
4. If no settlement is reached, further submissions will be made including an oral hearing
where the parties may be represented.
5. The European Court of Human Rights may award compensation as part of its judgement.
6. The judgement does not change the UK as this is matter for the UK Government.
7. There is a right of appeal to the Grand Chamber (which consists of 17 judges) on issues of
general importance provided the first chamber gives their permission.

5.7 Human Rights and English Law

Learning outcomes
- The right to life: an outline of criminal and civil law provisions and investigatory
procedures.
- Civil law negligence.
- Obligations on police and others in planning dangerous operations.
- Protective policing.
- Independent investigation of deaths in custody or attributable to agents of the State

The Right to Life: An Outline of Criminal and Civil Law Provisions and Investigatory Procedures
You will recall from module 1 that our English legal system is made up of common law and
legislation. The right to life is protected by the common law to ensure that no person is deprived of
live intentionally. Homicide isa crime where both murder and manslaughter are recognised. It is a
human right to defend yourself and protect your right to life.

In civil law, the Fatal Accidents Act 1976 provides for damages to relatives of those who are killed by
the wrongdoing of others.

In certain circumstances, a death must be investigated in accordance with the Coroners Act 1988.

Perhaps one of the most difficult debates is whether a person should be able to end their own life.
Both aiding and abetting suicide and euthanasia are unlawful. Medical professionals have a duty to
keep patients alive unless to do so would be contrary to the patient's best interests. In order to
ascertain these the standard of care is assessed according to the practices accepted by the
professional body or other experts in that field.

Example case:

Bolam v Friern Hospital Management Committee [1957]: http://osclinks.com/4418

Termination of a pregnancy under certain conditions is now legal under the Abortion Act 1967.
Human embryos can also be stored provided they are done s under licence under the Human
Fertilisation and Embryology Act 1990.

Civil Law Negligence.

Articles 2 and 8 both apply to negligence.

Obligations on Police and Others in Planning Dangerous Operations and Others in Planning
Dangerous Operations and Positive Policing

Article 2 concerns the right to life, and this will have a bearing on the use of force in policing. Under
Article 3 the use of torture, inhuman or degrading treatment is prohibited.

As a person's liberty may be deprived if they are found guilty, Article 5 ensures their liberty and
security is protected.

The investigation and integrity of the criminal process falls under Articles 6 and 8. There are various
positive obligations arising under the Convention to investigate allegations of criminal activity in
order to protect the rights of individuals. Furthermore, when preventing or investigating a crime
Article 8 will have an impact upon the procedures used for surveillance and obtaining evidence
through searches. The use of undercover officers etc. will fall under Article 6.

Article 6 covers both the guarantee of a fair hearing and the detainee's rights whilst in police custody
including questioning and access to legal representation. It will also impact on the evidence that is
admissible it is was irregularly obtained. All persons accused of a crime are innocent until proven
guilty.

Policing democratic freedoms falls within Articles 8-11.

A handbook published in the framework of the Joint Program between the European Union and the
Council of Europe entitled 'Reinforcing the fight against ill-treatment and impunity' can be found
here: http://osclinks.com/4419
The Police and Justice Act 2006 states that "Police authorities shall monitor the performance of the
police force maintained for its area in complying with the duties imposed on that force by the
Human Rights Act 1998." Guidance from the Association of Police Authorities can be located here:
http://osclinks.com/4420

Independent Investigation of Deaths in Custody or Attributable to Agents of the State

The Joint Select Committee on Human Rights published a report regarding inquiries into deaths in
custody. The report can be viewed here: http://osclinks.com/4421

Further guidance can be found on the Crown Prosecution's website: http://osclinks.com/4422

There have been many articles in the media recently regarding deaths in custody:
http://osclinks.com/4423

5.8 Reform

Learning outcomes
Reform of the protection of Human Rights in the UK.

The Bill of Rights

Ever since it came into force the Human Rights Act has attracted criticism, most notably from right-
wing newspapers and politicians. This has been published heavily in the media and examples can be
viewed below:

http://osclinks.com/4424

http://osclinks.com/4426

It is therefore not surprising that former leaders have pledged to reform the same. David Cameron
pledged to reform the Human Rights Act in 2006 as part of his manifesto. When the Supreme Court
was created in 2009 this further called for reform so that it would be the highest court in our
hierarchy instead of the European Court of Justice. The coalition government from 2010 to 2015 saw
a conflict between the conservatives who were for reform and the liberal democrats who were in
favour of the current law. In 2012 the coalition government set up a 'Commission on the Bill of
Rights' to investigate reform, however no agreement was reached.

(BBC News, 2015)