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Critically evaluate the process of change management carried out by a leisure and sport organisation with which you are familiar. Use appropriate theory to evaluate the change management process in question.

Sports and fitness has come a long way over time, it is now looked upon as an industry, which operates on a global scale. Sports and Fitness could comprise clubs, health centres, big games like the Olympics, football clubs, golf courses, championships and titles ranging a multitude of sports and games. Each of these activities are part of organisations which are run just like any other organisation with management control, finance, marketing, human resource management and strategy. Each of these areas contribute to the success or failure of the enterprise. Due to immense media coverage and sponsorships, the sector has become very active, glamorised and highly competitive. The competition in this sector is becoming stronger and more players realise the lucrative benefits this sector has to offer. Television and media have greatly publicised the health and sports segment, to an extent where people are beginning to see the advantages of being part of it. Many beauty pageants have also been instrumental in creating the message about beauty, health and fitness. The outcome has been a combination of fitness and leisure centres, these are training grounds for athletes and people who would like to achieve a fitness regime by being part of these centres. More and more people are now keen to be fit and involved in sports of some kind to keep up their fitness levels and be healthy.

Crichter (1984) says, the paradox of sport is that it provides such moments of self-realisation even as it confirms their apparent impossibility elsewhere. It both realises human identity and denies other kinds of especially racial and sexual identity. It is both uncontaminated by the rest of social life and shot through with economic and political influences. It is both timeless and a product of history [Frank Kew (1997), p 12 – 25]. Sports and fitness are about helping create a self-identity, which is high on self-esteem, confidence and good belief. The following is information on sports psychology which helps understand the reasons behind so many fitness and leisure centres springing up across countries including UK.

Another interesting quote about sports comes from Huizinga, 1972, Play is essentially a free activity quite consciously outside ‘ordinary’ life as being ‘not serious’, but at the same time absorbing the player intensely and utterly. Play has no material interest, and no profit can be gained by it. It proceeds within its own proper boundaries of time and space according to fixed rules and in an orderly manner. It promotes the formation of social groupings which tend to surround themselves with secrecy and to stress their differences from the common world by disguise or other means [Cox H. Richard (1998), p 15 – 30].

The feature about sports, which is of great interest, is that the ways these organisations work have wholly different perspectives. The social practices, rule structures are self-contained and independent and so applying management practices would need to take this psychology in context to the final argument. The people who work in this industry are also influenced by the way this industry operates, their psychology is determined by this. The concept of sports and fitness as joint collaborative projects can be analysed further, there are social dynamics involved in this ball game. In this context, the social dynamics pertains to practitioners who interact with each other. As per Guttmann (1978), modern sports and fitness is monitored and handled by multinational companies, who administer and control the operations by local, regional or international levels. The people in this organisation exercise a lot of power, power to ‘oversee and sanction athletes, teams and events make up rules and enforce them, organise events and certify records’ [Cox H. Richard (1998), p 20 – 34]. As the sports industry had gained momentum and is diffused with different social and national groups of personnel, the bureaucracy needed to oversee the governance process of sports have become more complex and powerful. In organisations driven by such force bringing about change would be a tall order, which would need more than good management skills. Although sports and health organisations are a new phenomenon compared to a lot of sectors and industries, which have been around for decades now, change management is a subject which will be difficult and need strategic management inputs when applied to this sector. Yet given the volatile markets and external environment, change would be a factor organisations cannot avoid. Change in any organisation could be triggered due to either internal or external circumstances.

The organisation in question for this paper is a health club, which has three divisions – sports, health and beauty and a leisure centre. For the sake of protecting the identity of the club, the name of the organisation has been changed to ‘Fitness first’. The problems in this organisation first started with the introduction of a new arm to the organisation – Sports Centre, where world famous coaches along with fringe benefits of private training gave professional and prospective athletes the option of being part of a club. Fitness first was initiated and conceptualised in the year 2001, the infrastructure and management were the best in the industry and finance was not a problem since the funding came from heavy weights in the Sports industry. To begin with the senior management that was brought on board by the two directors were given a lot of autonomy in running the business and expansion plans. The first two years in the business witnessed an inflow of members who were ready to pay a hefty annual fee to be part of the club. This was because of the personal care and interest each member was able to enjoy along with the state of the art infrastructure. The members realised the value of such benefits and were promoting the club through the word of mouth. Any business is good to go once the customers are satisfied with the deliverables and they see value for money. By the year 2003, the club had opened up 20 branches across England with additional features like a Beauty centre, which was very popular with both, the male and female members. The problem started in the year 2004 with the initiation of the Sports centre facility, the directors increasing interference, bureaucracy, lack of autonomy for the management and complacency on part of the management towards the operational and customer service aspects of the business.

The first sign was the failure of a club, which had opened up in the posh area of Kensington, London. The management was unable to understand the reasons for the lack of members despite heavy promotional campaigns. It was then observed that almost seven clubs had not enrolled new members over a period of three months. Finally the first Sports centre initiated at the Reading branch was showing blatant signs of failure. From a membership base of six professional athletes and 4 beginners, three beginners had already dropped out in the first month itself and the remaining members were considering giving up membership of the sports centre. All this had a combined effect on the revenue figures as well as dwindling profits in the first quarter of 2004. Fortunately the two directors realised that there were serious problems with the health club and leisure centre and a meeting was called upon with the entire management team across all clubs. A whirlwind strategic conference was organised, which lasted four days, and everyone realised that there was a need for introspection and change. The main problems identified during the conference were –

1.

Lack of Autonomy

2.

Lack of focus on customer service

3.

Lack of flexibility amongst management

4.

Lack of improvisation tools to enhance business prospects

5.

Lack of focus on new customers as well as old

6.

Lack of personalisation, which had been a competitive advantage at one time

The problem now was to understand and plan a strategy to combat all the problems listed above. Change is always a difficult proposition since it needs people to do something new, something they are not aware of and this especially since it takes them into an insecure environment.

The framework involving strategic change might comprise the organisation structure, culture and skill set. When implementing plans for a change proposal, one needs to comprehend if the change runs as deep as the organisation structure and culture since the latter is a deep process which needs a lot of time, patience, acceptability and understanding. Peters and Watermans (1982) defined strategy as the core structure of change, strategy is the deliberate or emergent pattern of decisions which shape an organisation’s future and its fit within its environment. These decisions may involve changing the future scope and shape of activities or major areas of internal change aimed at protecting or enhancing capability. [Grundy Tony (1993), p 28]

The changes at ‘fitness first’ would not only need the management personnel who were part of the conference but also individuals who were contributing at one level or another at every branch. Each personnel needed to understand the extent of the problem and be willing to bring about the required change so that the organisation could once more progress towards growth, profitability and satisfied customers. Carnall (1986) is an important contributor to the process of managing change. As per Carnall, implementing change goes through a series of stages, which involve, denial, defence, discarding, adapting and internalising. Change needs very adept and fragile handling of people, according to Lewin (1935), the cycle of change spans a considerable amount of time, it depends on how fundamental or challenging the change is, also there is always some decline in performance in managers and that’s what the change agents need to account for [Grundy Tony (1993), 40 – 46]. A change agent is the person in charge of bringing about the change process; the agent might be internal or external depending on the circumstances as well as the extent of change. This agent is a manager with special qualities, which will make him/her effective and successful in planning and executing the process. Charles Handy (1999) uses the ten roles defined by Mintzberg as a basis for making one understand the different roles of the manager. As leading personnel the manager needs to be a figurehead, leader and liaison, all these are interpersonal roles. In the capacity of an administrator, he/she needs to monitor, disseminate and be a spokesperson these are informational roles. Lastly as a fixator, he/she need to be an entrepreneur, disturbance handler, resource allocator and negotiator, these are decisional roles. Since the meeting at Fitness First, it was strategically decided that each centre would be assigned a change agent who will be internal given the extent of the problem. The senior management, local teams and the directors based on a compilation of all the above qualities, mutually listed the change agents. Charles Handy brings in some interesting perspective on how organisations are, as much as people would like to view them as well-oiled machinery, they comprise of people. People from different backgrounds, cultures, lives, opinions and behaviour. All these people compete for resources, power, recognition and their own judgements. There will always be a difference of opinions, values and culture, each one would conflicts of priorities and goals, ‘there are pressure groups and lobbies, cliques and cabals, rivalries and contests, clashes of personality and bonds of alliances’. [Charles Handy (1999), p 209 – 210]

Since the problems being faced at Fitness First were grave in appearance, the directors were very forthcoming in following a participative approach, from top to down in the organisation. They realised that the autonomy and right to exercise power in the individual sphere of the managers was a positive attribute, which had to return to the way the organisation functioned. As per Rosabeth Moss Kanter (1983), the participative approach is only taken when the change agents view the problem as internally driven, based on choice and responsiveness, rather than something which is imposed externally facing extreme resistance. The architecture of change needs an awareness of foundations, Rosabeth Moss Kanter (1983) an academic expert on change management states that the change agents need this history of relationships, coordination, mutual trust to learn from a successful story and imbibe the values in the new process. The art and architecture of change, also involves designing reports about the past to elicit the present actions required for the future [Rosabeth Moss Kanter (1983), p 288 – 290].

The building blocks of change can be easily interpreted from Quinn’s definition of managing strategic change, The most effective strategies of major enterprises tends to emerge step-by-step from an iterative process in which the organisation probes the future, experiments, and learns from a series of partial commitments rather than through global formulations of global strategies. Good managers are aware of this process, and they consciously intervene in it. They use it to improve the information available for decisions and to build to improve the information available for decisions and to build the psychological identification essential to successful strategies. Such logical incrementalism is not ‘muddling’ as most people understand that word it honours and utilises the global analyses inherent in formal strategy formulation models and embraces the central tenets of the political or power-behavioural approaches to such decision making [Rosabeth Moss Kanter (1983), p 288 – 295].

The process of change as defined by so many academics needs trust, loyalty and faith in the change agent who will lead the people involved through the process. The managerial style in organisations like Fitness First needs to change as part of the change management process. The hierarchical form needs to become more networked where people have access to information, there is informality, equality and there is lateral bottom up communication. Birchall and Lyons (1995), talk some more about the way businesses need to become more effective and efficient, as this will help in the change process, similar to fitness first businesses need to rethink the way work is being organised and executed. This is due to the changing demands of the customers, the expectations and aspirations of the employees; the transformation comes through with revamping of operations and by taking advantage of emerging possibilities.

Expectations and communication brings us back to the way the change agents would draw personnel at Fitness First into rectifying the problems being faced by the organisation. Change is not always about something new; sometimes it is about going back to the foundation and grass root level of the origination of the business. Since the change was primarily internal, managing the expectations of the people involved about the quantity and quality of change would be very important. The people involved need to know that the change is being brought about within the structure and culture of the organisation to eventually benefit everyone by being part of a successful venture. Since the profits are dwindling, it does call for extreme measures, which people might not be expecting. The biggest fear amongst employees in the face of change is the insecurity of not having a job, these fears had to be allayed by the change agents at the earliest else the performance would dip to a large extent. The second step was to know expectations and then communicating the plan for managing and executing change in the way work was being handled. The final steps needed at Fitness First were –

1.

Changing the organisation structure in certain places depending on the agenda and need

2.

Make the business more result oriented through customer satisfaction

3.

Training for all personnel to understand customer relationship management

4.

Motivate the employees through personal belief to work towards rectifying the problems

5.

Open door communication policies to make operations transparent

6.

Introduce annual reward management system for employees and customers

A communication plan was the first step towards personnel involvement in the change process. When complacency sets in and people get comfortable with their surroundings, change mostly uproots them from this comfort zone and more often than not, the results are not very encouraging. The change agents brought into play an effective communication plan, which covered the scope of change, the effects and results. Since there was a need for restructuring, the involvement of people is necessary, listening and learning become prime to making it a success. The agent has to take people into confidence about how the change will affect them internally as well as externally, from the view point of the organisation as well as personally. Another important factor to be remembered by the change agents is the five-model process for managing change – diagnosis, planning, implementation, control and learning. At fitness first the first two stages were near completion and the following three were moving at a parallel pace with the ensured commitment of the staff. According to Margaret Davis and David Weckler (1996), a major factor underpinning the success of failure of change is the capability of the organisation in question. Organisational capability is a big part of the organisation’s competitive advantage; it is also a reflection of its inherent flexibility, adaptability, and capacity to preserve single-mindedness, rationality despite all pressures, internal or external.

Coming to fitness first, now that a detailed analysis of the organisation structure and resources was through with a new one in place, displacement of employees from their previous positions had to be dealt with patience. It is important to time and again bring in communication tools and enforce the change objective and what it does on a larger scale. The anxiety and insecurity need to be dealt with, once the commitment is part of the change project, success is not difficult. Once the change agents had spent time, money and effort in designing the new organisation chart, it was important to see how well it could be implemented. This brought us to the three important ingredients of implementation – communication, impact analysis and transition management. In this case the employees needed to know if the reporting system would be different, working in different divisions under different people would be a part of this transition. The customers needed to know if the services changed with this process in flow and if the representatives they dealt with earlier would also change. On all accounts, effective communication was introduced through a first ever group wide meeting being called to mitigate or absolve any doubts which might hinder the change process. The customers were dealt with newsletters and individual meetings as deemed appropriate. Fitness First change agents had devised a list of ripples these changes might create and so there were already back up resources and plans in place. Each Change Agent had accounted for a transition manager in their teams who would be responsible in overseeing that the transition took place as effectively and smoothly as possible.

After long, fitness first had brought changes in the structure and introduced open communication channels; there was more autonomy in the organisation. This gave way to a common platform for employees to chip in ideas about growth potential and customer enrolment. The sports centre introduction was seen as a moderate expansion plan and so new associates and trainers were introduced to cater to the demands of upcoming talent. Apparently a talk with the old members revealed that they missed personal training regimes and a dedicated coach scenario, which led them to the decision of quitting membership. The introduction of the Customer Relationship Management program was an effective measure, which reintroduced one to one personal communication between members and the club centres. There was a monthly reward program for the most successful idea of the month; all these tools went a long way in hauling employee confidence, motivation and loyalty. The customers were also content and satisfied with the resurgence of these change measures, which showed responsiveness on part of the club towards their reaction and value. Customers always need to feel important and taken care of; this is the oldest adage for any successful business.

To conclude the design of an organisation cannot be rigid. Given the current competitive environment and unpredictable markets, they need to be more in tune with the customers and changing business conditions. The only constant is change and so any organisation – their structure and business processes need to be productive, flexible, adaptable and responsive to changing business needs. Fitness First was able to bring about internal changes which the management deemed fit, yet in the future there will always be need for more review processes to see when and where another change might be required. This was a learning lesson for fitness first, a platform for them to realise the need to become a learning organisation to stay abreast of competition and external environment. Senge (1990) introduced the concept of the learning organisation, one, which constantly reflects, understands, and evolves and changes based on internal and external conflicts and needs. All organisations need to imbibe the qualities of a learning organisation and the sooner they do o the better. Finally Change involves the interaction of a number if systems within an organisation. These may interact with one another in ways, which will either facilitate or inhibit change. A key factor in managing change effectively is to understand how these systems interact with one another. Openness to understanding these interdependencies is identified by Senge as being a crucial part of ‘the learning organisation’ [Handy Charles (1999), p 12 – 25].

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Part A

In the UK, trademarks are filed and protected on a first-come first-served basis. In this case, therefore, the Canadian All Reds have registered a trademark in the UK and this will take priority over the attempt by Preston Rugby Union Club (PRU). Therefore, when PRU go to register the name ‘Lancashire All Reds’, the Canadian All Reds could object to the registration. There are several grounds upon which they could object to the registration; these objections would have to be lodged at the Company Names Tribunal which is a department within the UK Intellectual Property Office. In order to make an objection, it will be necessary for the Canadian All Reds to show that the name is the same as their name and that they have built up a degree of goodwill or reputation with the name. The name does not have to be exactly the same; however, it does have to be so similar that it is likely to mislead individuals into believing that the two are linked.

One of the factors that have been established when objecting to a trademark registration is that ‘a genuine, properly substantiated likelihood of confusion’ exists. The case of Royal Berkshire Polo Club stated that, in order for an objection to be successful, it is absolutely essential that there is this element of confusion. In this case, the Royal Berkshire Polo Club attempted to register a trademark that was objected to by the Polo Ralph Lauren Company by virtue of section 5(2) of the Trade Marks Act 1994, stating that it believed the mark was similar to identical goods. This would be the same objection that the Canadian All Reds would bring, due to the fact that they are similar products and that confusion is likely . It was also argued by Ralph Lauren that they had built up a substantial amount of goodwill and as the Canadian All Reds have been in operation for over a century and gained considerable success in this time, it is likely that this argument could also be used by the Canadian All Reds.

It was held, in this case, that it was necessary to consider what a reasonable consumer would think and whether confusion would be reasonably likely. Based on this, it will be necessary for the Canadian All Reds to argue that allowing the name ‘Lancashire All Reds’ (particularly given their nickname ‘All Reds’) would confuse consumers. As the Canadian All Reds’ trademark is registered in the UK and the Lancashire All Reds are also attempting to register in the UK, there is a definite overlap of jurisdiction. Moreover, it is also highly likely that there would be some confusion due to the fact that both organisations operate substantially in the same market place, i.e. in rugby. Based on this and combined with the fact substantial goodwill has been built up in the name ‘Canadian All Reds’, it would seem likely that they would be able to object, successfully, to this trademark registration.

Part B

One of the first issues that the Canadian All Reds will have to consider is whether or not they actually own the intellectual property rights to the logo. The logo was designed by an independent designer employed by the Canadian All Reds. In these circumstances, it would be normal for the contract between the designer and the Canadian All Reds to ensure that any intellectual property rights stemming from the relationship are vested in the Canadian All Reds; this needs to be checked, before the Canadian All Reds could bring any action.

The logo is not registered and therefore the action open to the Canadian All Reds would be either passing off or design right infringement . Design rights protect the unique shape or design of a product and not the two dimensional shape. For example, in this case, the actual design of the scarves could be protected and the Canadian All Reds could bring an action against John in relation to the scarves, alongside any action being brought in relation to the logo itself. Design rights are not registered; they are automatically vested in a new design when it is recorded in material form. The Canadian All Reds, therefore, need to ensure that the design right in the merchandise is vested in them, before they become available to the public. This will be the evidence required in order to ensure that an action against John is possible. It should be noted that design rights only exist in the UK and although international recognition is possible, it is not offered as standard. Clothing is capable of gaining design right protection as held in the unreported case of Jo-Y-Jo Ltd v Matalan, in 1999, where knitted vests were held to have design right protection.

Alternatively, the Canadian All Reds could bring an action for passing off as defined in Reckitt & Colman Ltd v Borden Inc , which they would be able to bring if they could prove that they have built up goodwill in their logo and that the logo of PRU was established and could be a misrepresentation which would confuse consumers. Finally, the Canadian All Reds would have to prove that they had suffered loss as a result. In this case, it may be difficult to prove that the loss has actually occurred, unless the Canadian All Reds could show that individuals were purchasing items from PRU instead of themselves, by accident, which is unlikely for rugby union fans who would understand the differences between the two teams.

Part C

In this case, the Canadian All Reds would have to rely on the law of passing off in order to prevent John from selling the scarves outside the grounds. It does not confer an exclusive right on the owner; it is a protection from misrepresentation. In order to prove the case for passing off, it would be necessary for the Canadian All Reds to show that they had goodwill in the mark, which they do have, and that there had been some form of misrepresentation and that this had damaged their goodwill . It would be up to the Canadian All Reds to show that they did have goodwill in the goods and the logo; they would also have to prove that there had been some form of false representation, whether it was intentional or not, to the public, by virtue of the goods being offered by John. For this to be the case, it will be necessary for them to show that there is a likelihood that the public would be deceived, but it has been established that the standard is not that of a ‘moron in a hurry’, but rather the public at large . The court will determine whether or not there is a similarity in terms of the goods . This may result in a difference of opinion in terms of whether or not the scarves without the words ‘All Reds’ on them would be deemed passing off, in comparison to the ones without the words on the scarves. When considering all factors including the look of the scarves, it is more likely that the court will deem the scarves with the words ‘All Reds’ written on them to be more deceptive than the plain scarves.

A similar case was seen in Arsenal Football Club v Matthew Reed . In this case, Mr Reed was selling unofficial merchandise such as scarves and hats that included marks similar to those of the Arsenal crest and logo. Arsenal brought an action for trademark infringement against Mr Reed, but Mr Reed argued that he was not using the mark as a trademark and was using it, rather, as merchandising, despite the fact that it was accepted that the customers did not necessarily think that the goods had come from the club, but rather that is was a ‘badge of support, loyalty or affiliation’. It was held, in this case, that it could be a trademark infringement where the use of the mark undermined the essential function of a trademark and that by allowing the merchandise to be sold, it would mean that the function of a trademark was a way of identifying origin. The judge stated: ‘As the ECJ pointed out, the actions of Mr Reed meant that goods not coming from Arsenal but bearing the trademarks, were in circulation. That affected the ability of the trademarks to guarantee the origin of the goods’.

Based on this, it is expected that the Canadian All Reds could rely on this case to prevent John from selling the merchandise.

Bibliography
Bainbridge, David I., Intellectual Property, Pearson Education, 2006
Bogusz, Barbara, Cygan, Adam Jan & Szyszczak, Erika M., The Regulation of Sport in the European Union, Edward Elgar Publishing, 2007
Bosworth, Derek L. & Webster, Elizabeth, The Management of Intellectual Property, Edward Elgar Publishing, 2006
Colston, Catherine & Middleton, Kirsty, Modern Intellectual Property Law, Routledge Cavendish, 2005
MacQueen, Hector L., Waelde, Charlotte & Laurie, Graeme T., Contemporary Intellectual Property: Law and Policy, Oxford University Press, 2007
Michaels. Amanda & Norris, Andrew, A Practical Guide to Trade Mark Law, Sweet & Maxwell, 2002
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Wadlow, Christopher, The Law of Passing-Off, 3rd revised ed., 2005

This work was produced by one of our professional writers as a learning aid to help you with your studies

“Homicide law should be reformed as it is inappropriate for someone to be held liable for murder if they did not intend to kill.”

To what extent do you agree with this statement?

Homicide is the collective term for both murder and manslaughter in England and Wales. Murder is a common law offence that has developed through the courts over time. The common definition of murder comes from Edward Coke who wrote, murder occurs when a person of sound body and mind unlawfully kills any human being under the Queen’s peace with malice aforethought. [1] This definition lays out both the actus reus and mens rea of the offence. The actus reus is uncontroversial: the killing of any human being during the Queen’s peace. This makes murder a result crime; liability flows from an action (or omission) of the defendant resulting in death. Controversy and academic debate surrounds the second part of the offence, namely the mens rea element. Malice aforethought has been interpreted by the courts as meaning with intent to kill or cause grievous bodily harm. It is this second interpretation of malice aforethought that brings the debate. It means a person can be convicted of the legal system’s ultimate, heinous crime despite a lack of intention to kill. Lord Steyn expressed the problem eloquently in R v Powell; “in English law, a defendant may be convicted of murder who is in no ordinary sense a murderer.” [2]

The proponents of change base their arguments around fair labelling, mandatory sentencing, interpretation of the current law and the contradictory results of as is. Debate only follows where there are two points of view, and despite the pitfalls of the current law on murder, there are proponents of the current system. The arguments for the current system revolve around the sanctity of life, difficulty of overcoming the evidential burden, a deterrent approach and a view of social responsibility. These differing viewpoints will be explored below in more detail.

One of the major complaints about the current law is based on the idea of fair labelling. In our society it is seen as unjust to label someone inaccurately, especially when that label is one of murderer. Glanville Williams wrote, “the particulars stated in the conviction should convey the degree of the offender’s moral guilt, or at least should not be positively misleading as to that guilt… In any case, a man may feel a sense of injustice if the terms of the conviction do not represent his real guilt.” [3] To be labelled a murderer without holding the intention to kill would not be representative of the defendants ‘real guilt’. Being convicted of murder not only results in a mandatory life sentence, but once, or if, the defendant leaves prison, the label remains. This will impact on that person’s life potentially destroying his family, his career and right to a normal life after serving his sentence. Roger highlights the problem of fair labelling, “present labels of murder and manslaughter are each much too broad and lose their core meaning on account of their breadth. The law of murder at present equates the paedophile who kills his victim to ensure his silence with the man who intends to cause grievous bodily harm because he is getting carried away in an argument, or perhaps in defending his property.”[4] Society draws a great distinction between the two individual scenarios mentioned by Roger however the label of murderer does not. When this label is present, society tends to overlook the details of the individual circumstances and takes the label on its own.

Another major problem with the current law is the mandatory life sentence for murder. Many people would agree the most heinous crime deserves the most severe punishment however, as has been highlighted already, a convicted murderer has not necessarily carried out this heinous act as perceived by society. Currently, judges have no discretion with a murder conviction. Since the Murder (Abolition of Death Penalty) Act 1965 a conviction of murder carries with it the sentence of life imprisonment[5]. The precise length of the sentence varies under the guidelines derived from Coroners and Justice Act 2009 [6] however this still sets the minimum sentence at 15 years for a defendant over the age of 18. This is to be contrasted with manslaughter for which the judge has absolute discretion on sentencing up to a maximum of life imprisonment. This allows for a judge to mitigate the severity of the crime through the sentence, a mechanism unavailable in murder[7]. Due to a court interpreted definition of murder, a defendant faces a mandatory life sentence instead of a much lower sentence based on the crime he truly had the mens rea for. It is this draconian approach to sentencing that makes someone held to be liable for murder when they did not intend to kill inappropriate.

There are practical issues alongside legalistic ones, such as is the definition of grievous bodily harm, or serious bodily harm. If the liability for murder depends on the intention to cause this level of harm, there should be very clear and concise guidelines as to what this level of harm is. William Wilson writes about the obscurity of grievous bodily harm, “it is defined to mean nothing more precise than “serious” as opposed to “actual” bodily harm.”[8] This definition and guidance is not robust enough to fairly legitimise a murder charge. Further, to the abstruseness of the level of harm required, allowing grievous bodily harm to lead to a murder charge at all can result in the prosecution and conviction of a person for not only something he did not intend, but actually for something he precisely intended to avoid. There are several famous examples of this undesirable outcome such as that of kneecapping, a practice whereby the knees are targeted to punish the victim but with the precise intention of keeping them alive. Lord Goff entertained this scenario along with another of glassing. Despite the resulting death and clear intention to cause serious bodily harm with a broken glass, the jury “could not bring themselves to call him a murderer” and Lord Goff sympathised with them. [9]

It is the combination of the above arguments that lead people to cry out for reform of the law of homicide as it is currently inappropriate in regards to a murder charge without the intention to kill. However, there are also proponents of the current law.

There is a strong argument for the law to enforce responsibility for one’s actions. If one attacks another with the intention to cause them serious bodily harm, and that attack results in the death of victim, then the attacker is morally culpable for the victim’s death. This is a view endorsed by William Wilson and others, “I take the uncomplicated view, as the Criminal Law Commissioner has elsewhere argued, that those who intentionally attack others are morally responsible for and so fully legally accountable for the consequences of so doing whether or not such consequences were foreseen.”[10] This view depends on one’s idea of the purpose of the criminal law however, for the law to hold society responsible for the outcome of their actions is more than acceptable for the majority. The current law also fits with the harm principle whereby, “the State is justified in criminalizing any conduct that causes harm to others”[11]. This view is compatible with sanctity of life arguments. For many in society, sanctity of life is sovereign, as shown by its inclusion in the European Convention of Human Rights[12]. This granting of the Right to Life necessitates any taking of life to be regulated tightly. This has led to problem areas in the law such as euthanasia and abortion, the laws for which are based on the law of murder. In light of high profiles decisions of the court system in these areas such as Nicklinson v Ministry of Justice

[13]

the time for change in the homicide area is not now. Parliament refuses to reform the law and neither do the courts. These decisions have been made in light of high volumes of political and legal argument yet the current system has won through. Changing the definition of murder could not only have a negative impact on the law of homicide, but also these other, highly emotive and controversial areas of law.

The current law is not only compatible with these controversial areas but has also been affirmed at the highest level. The so called ‘GBH rule’ was the subject of a House of Lords decision in R v Cunningham

[14]

in which the rule was affirmed by the House including the then Lord Chancellor. Further, “the adjective ‘serious’ has not caused problems in the past, where juries have been instructed in murder cases” [15], and as such does not need to be reformed. This affirmed law is aligned with arguments for the law to act as a deterrent of social harms. The intentional causing of serious bodily harm is without doubt something society wants deterred, and having a severe punishment for this harm, not only in the law of homicide but also through the Offences Against the Person Act 1861[16], is a method of deterrence. Without the inclusion of this element in the law of homicide, not only would the deterrent for serious bodily harm be weaker, but many ‘true’ murderers would escape conviction for murder, thus creating a fair labelling problem, contradicting one of the arguments put forward by proponents of change. This is because it is very difficult to prove true intent to kill. There would be many scenarios where the defendant did intend to kill the victim however this couldn’t be proved due to the evidential burden. However, by using the intention to cause grievous bodily harm, a number of these defendants could be found guilty of murder.

On balance there are strong arguments for homicide law to be left as is to deter violent crimes and make society responsible for their actions. However the law cannot be left simply because other areas of law are based upon them. There are many problems with the law as it is currently, particularly surrounding fair labelling, mandatory sentencing and difficulty of interpretation and implementation. These problems go right to the core of our legal system and cannot continue to go unchanged. The Law Commission has been ignored repeatedly by parliament but their worries remain and proposals could improve the current system. Homicide law should be reformed as it is inappropriate for someone to be held liable for murder if they did not intend to kill and equality for all under the law must always be the ultimate practice.

Bibliography

Ashworth A and Horder J, The Principles of Criminal Law (7^th edn, OUP 2013) 28

Coke E, ‘Institutes’ 3 Co Inst 47

Ashworth A, ‘Principles, Pragmatism and the Law Commission’s Recommendations on homicide law reform’ [2007] Crim L R 333

Goff R, ‘The mental element in the crime of murder’ (1988) 104 LQR 30

Wilson W, ‘The structure of criminal homicide’ [2006] Crim LR 471

Williams G, ‘Convictions and Fair Labelling’ [1983] CLJ 85

Roger J, ‘The Law Commission’s proposed restructuring of homicide’ (2006) 70(3) J Crim L 223

Crown Prosecution Service, ‘Sentencing Manual’ (CPS, Jan 2012) < http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/murder/> accessed 21 August 2014

R v Powell [1999] 1 AC 1

Nicklinson v Ministry of Justice [2014] UKSC 38

R v Cunningham [1982] AC 566

Offences Against the Persons Act 1861

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 2

Criminal Justice Act 2003

Coroners and Justice Act 2009

Murder (Abolition of Death Penalty) Act 1965

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“In view of a justification defence to both direct and indirect discrimination, the law will continue to do little to prevent age discrimination”

Critically evaluate this statement as a reflection of the current position of the law in this area.

The current law on discrimination is laid down in the Equality Act 2010. Age is one of the protected characteristics within the Act. ¹ The term ”Age” refers not only to a person’s age, but also to persons in a particular age group.² The Equality Act stipulates that direct discrimination occurs where a person treats less favourably another due to the latter’s protected characteristic. ³ Thus, there must be a comparator to compare with. If one does not exist, the court would create an imaginary comparator. The comparator must be in the same or not in a materially different position from the plaintiff in all aspects with the exception of being a member of the protected class.⁴ The comparison exercise must be reasonable.⁵ The Tribunal applies an objective test for less favourable treatment. ⁶ Indirect discrimination can be claimed where there is an ostensibly neutral provision, criterion or practice which indirectly discriminates against the claimant.⁷ The indirect discrimination provisions are aimed to tackle ”disguised age barriers” rather than barriers stemming from retirement. Thus, the fact that an individual cannot obtain a qualification needed for a promotion before retirement does not mean that he has been discriminated against. ⁸

In contrast to other forms of direct discrimination, direct age discrimination can be justified. Although the motive for discriminating is irrelevant, ⁹ the employer could raise a defence that the discriminatory acts were proportionate means of achieving a legitimate aim.¹⁰ Legitimate aims and proportionality are distinct issues which must be examined by separately by the Tribunal.¹¹ Indirect discrimination is justified using the same principle. The Tribunal must strike an objective balance between the discriminatory effect of the provision and the reasonable needs of the business. There must be a need for the provision and it must be reasonably necessary. ¹²

The peculiarities of age as a protected characteristic should be pointed out. Age discrimination includes a wide range of objective justifications unlike sex discrimination where there are very few and race discrimination where there are virtually none. This is logical given the fact that age discrimination is related to many complex issues such as retirement, business needs or working culture. Such peculiarities superficially imply that in most occasions, the employer’s policies would be justifiable and age discrimination claims should be a response only to the most heinous conduct. Even though direct discrimination claims are becoming a rare phenomenon as most companies have developed solid equal opportunities policies and training, there have been several recent direct age discrimination cases where managers have made discriminatory remarks in view of the employee’s performance. ¹³ Furthermore, a 2012 DWP report pointed out that age-related assumptions and stereotypes are still prevalent in the UK.¹⁴ Thus, a careful balancing act between the employer’s legitimate aims and the severity of the discriminatory measure is prudent.

The background of the current legislation should also be considered. The Equality Act 2010 is a consolidating legislation, replacing the provisions of the Employment Equality (Age) Regulations 2006 which implemented the Equal Treatment Directive. In that regard, the objective justification defence is a recognised concept in EU Law. InIncorporated Trustees of the National Council on Aging v Secretary of State for Business, Enterprise and Regulatory Reform (the Hayday case) ¹⁵ The European Court of Justice acknowledged that it is acceptable to derogate from the provisions of the Equal Treatment Directive¹⁶ relating to age discrimination in situations where there are legitimate public interest objectives. The means of implementing the objectives must be appropriate to the aim and reasonably necessary for its achievement. ¹⁷ The Court has recognised legitimate objectives such as inter-generational fairness and dignity. A policy, criterion or provision which is justified based on staff retention and workforce planning meets the inter-generational fairness objective. Avoiding the necessity to dismiss older workers on the basis of incapacity or underperformance has been directly related to the dignity objective. Avoiding the need for expensive and divisive disputes about capacity and underperformance would also meet said aim. However, it is recognised that direct and indirect age discrimination cannot be identically justified. ¹⁸

Age Discrimination and Retirement

An example of a discriminatory but justifiable provision is a legislation permitting compulsory retirement on the ground of age. The European Court has held that said legislation was necessary for checking unemployment and encouraging recruitment. ¹⁹ A compulsory retirement clause for partners in a law firm has also been justified on the grounds that it allowed associates of the firm the opportunity of partnership after a reasonable period; facilitated the planning of the partnership by having a realistic long term expectations as to when vacancies would arise; and limited the need to expel partners by way of performance management, which contributed to the collegiate environment within the firm.²⁰

In Harrod v Chief Constable of West Midlands Police the authority applied a compulsory retirement provision within the Police Pensions Regulations 1987 to force a large number of officers to retire. Generally, a discriminatory practice is not justifiable on the basis of cost but may be justified on the basis of efficiency. However, the distinction between the two can sometimes be blurred. Improving efficiency was accepted by the Tribunal as a legitimate aim. However, the measure was disproportionate. The discriminatory practice was applying the Regulation to all officers only because they were within its ambit. There were other less discriminatory alternatives such as voluntary retirements, part-time working and career breaks, which were not considered.²¹

In Bloxham v Freshfields Bruckhaus Deringer²² the Tribunal held that Bloxham had been treated less favourably than partners aged 55 or over as, being only 54, he was subject to a 20 per cent reduction. However, modification of the pension scheme to make it more financially sustainable and fairer to younger partners was held to be a legitimate and necessary aim and the firm had successfully demonstrated that the amendments were a proportionate means of achieving this aim.

Access to Employment

Another example of a justifiable policy is restricting a job position to applicants over a certain age. ²³ This constraint may be reasonable considering the requirements of the job in question. In the same spirit, the Equality Act recognises an exception to some of its provisions²⁴ relating to promotion and access to employment if the employer can demonstrate that age is an occupational requirement and that said requirement is a proportionate means of a achieving a legitimate aim.²⁵ This is particularly relevant for professions within the film or sports sectors.

Enhanced Redundancy Payments

The Equality Act permits employers to consider age as a factor when deciding whether to make an enhanced redundancy payment. ²⁶ Although such practices may be prima facie discriminatory, there have been many cases of recognised justifications. For example, a redundancy scheme whereby payments are raised depending on age and length of service was held to meet legitimate aims.²⁷ Such aims were: encouraging loyalty, supporting older workers who are more vulnerable in the job market and providing an incentive to older workers to volunteer for redundancy, which would free senior posts for younger employees. In another example, the employer, DWP, justified an enhanced payment for older employees as part of a scheme by presenting evidence which demonstrated that older employees were unemployed for a longer period of time and had more family and financial responsibilities. ²⁸ The aim of the enhanced payment policy was to provide proportionate monetary support until the employee finds other employment or retires. The court recognised that even though the scheme could have been made non-discriminatory at no extra cost by reducing the payments, this did not render the scheme disproportionate. This implies that there is no requirement that it is absolutely necessary to take into account whether there are alternative, less discriminatory measures. It was also recognised that due to the nature of the scheme, the individual circumstances of the claimant could not be taken into account. The caveat is that such subtleties may serve as a carte blanche for employers to discriminate on the grounds of age.

Dismissal due to Age

Although in both direct and indirect discrimination the Tribunal employs the same test, following Seldon v Clarkson Wright and Jakes ²⁹ the employer must demonstrate a social policy aim not merely a private business aim to justify direct discrimination. Because of the more severe nature of direct discrimination, it is not illogical to argue that more scrutiny should be placed on the legitimacy of the employer’s objectives and the proportionality of its measures.

In O’Reilly v BBC³⁰ the plaintiff was successful in her claim for age discrimination. The company dismissed her in order to change the image of the Countryfile program to appeal to a younger audience. The tribunal acknowledged that this was a legitimate aim, but it held that the measure was disproportionate as it was not necessary to replace the plaintiff with younger presenters to achieve the aim. Similarly, in McCririck v Channel 4 Television Corporation ³¹ the claimant was dismissed in order to change the image of the program. An important distinguishing point in that case was that the defendants conducted a research exercise which identified negative views associated with the claimant’s image and character. No such research was carried out in O’Reilly. Moreover, Channel 4 considered the plaintiff’s personal qualities, particularly his reputation as holding old-fashioned views, which were indirectly linked with his age. ³² The Tribunal concluded that the defendants have used proportionate means.

An interesting point is that in McCririck, the decision to dismiss was justified by evidence and based to a larger extent on the plaintiff’s style and to a lesser extent on his age. In contrast, in O’Reilly, the decision was based primarily on the stereotype that the plaintiff could not appeal to a younger audience because she was older. This serves as an example of a situation where the law should intervene to protect the employee from counterproductive stereotypes which may, in certain situations, by disguised under neutral, ubiquitous policies.

In conclusion, the cases examined demonstrate the wide array of justifications within different contexts. Some of the justifications appear to be specific only to age discrimination. Objectives such as dignity may be unnecessarily vague particularly against the background of a company policy or scheme where the employee’s individual’s circumstances are seldom a relevant consideration. Justifications such as avoiding the need for costly and divisive disputes can be controversial in light of the potential harm suffered by the plaintiff. Medical research by Florida State University College of Medicine demonstrated that older people who perceive age discrimination experience lower physical and emotional health than people who perceive sex or race discrimination.³³ In that regard, cases such as O’Reilly and McCririck represent an illustrative example of the very thin line between a proportionate measure based on evidence and a measure based on stereotype.

Word Count: 1774

BIBLIOGRAPHY
Books

Bell, A; Employment Law (2^nd edn; Sweet & Maxwell, London 2006)

Honeyball, S; Honeyball & Bowers’ Textbook on Employment Law (11^th edn; Oxford University Press, Oxford, 2010)

Slewyn, N; Selwyn’s Law of Employment (16^th edn; Oxford University Press, Oxford, 2011)

Online Resources:

The Lawyer, ‘Age Discrimination Time for Revision’ http://www.thelawyer.com/download.aspx?ac=68830 accessed 20 July 2014

Legal Week Law, ‘ More than just a number – three key age discrimination lessons from recent cases ‘ http://www.legalweeklaw.com/download/-key-age-discrimination-lessons-recent-20289 Legal Week Law accessed 20 July 2014

Richard Lister, ‘Channel 4 dismissed John McCririck because of style, not age’ [2013] Lewis Silkin http://www.lewissilkin.com/Knowledge/2013/December/Channel-4-dismissed-John-McCririck-because-of-style-not-age.aspx#.U8w07vumXlQ accessed 20 July 2014

Table of Statutes

EC Directive 2000/78/EC

Employment Equality (Age) Regulations 2006

Equality Act 2010, c.5, c.13, c. 13(2), c.19,

c. 39(1) (a); c.39 (1) (c); c.39 (2) (b); c. 39(2) (c); Schedule 9, paragraph 1; Schedule 9, paragraph 13

Table of Cases

Bloxham v Freshfields Bruckhaus Deringer ET 2205086/2006

Clements v Lloyds Banking plc UKEAT/0474/13/JOJ

Eweida v British Airways [2010] EWCA Civ 80

Homer v Chief Constable of West Yorkshire Police [2010] EWCA Civ 419

Incorporated Trustees of the National Council on Aging v Secretary of State for Business, Enterprise and Regulatory Reform (the Hayday case ) [2009] All ER (EC) 619

James v Eastleigh BC [1990] 2 AC 751

James v Gina Shoes Ltd UKEAT/0384/11/DM

Lockwood v Department of Work and Pensions [2013] EWCA Civ 1195

MacCulloch v ICI plc [2008] ICR 1334

McCririck v Channel 4 Television Corporation ET 2200478/2013

O’Reilly v BBC ET 2200423/2010

Network Rail Infrastructures v Gammie (EAT (Scotland), 6 March 2009)

Palacios de la Villa v Cortefiel el Servicios SA [2008] All ER (EC) 249

Seldon v Clarkson Wright & Jakes [2012] UKSC 16

Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11

Smith v Safeways Stores [1996] IRLR 456

Wolf v Staldt Frankfurt am Main [2010] IRLR 244

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Introduction

The declaratory theory of law is quite simply that judges do not make or create the law, the merely declare what the law is and what it has always been. The declaratory theory of law has often been used by members of the judiciary and constitutional lawyers as a shield against the accusations of others that judges do in fact create law. The issue with the creation law by the judiciary is that the judiciary is an unelected body and therefore not accountable to the general public for their actions and judicial reasoning. The legislative body of the United Kingdom, Parliament, is elected and therefore, in theory, a reflection of the majority view on key issues such as euthanasia, gay marriage and terrorism measures. The reality is the English legal system has two main sources of law when it comes to the determination and deliverance of justice. There is the common law doctrine of precedent which has evolved with the judiciary and as a result, some would argue is highly uncertain. The second source of law takes the form of statute and as a result of the legislative wording that exists, is significantly more certain. Regardless of an individual’s view on the matter, it has to be accepted, as stated by Lord Irvine of Laring, that, within a certain limit, the role of judges will require a degree of legitimate law-making. The limits of this law making ability is defined by the English constitution and entangled key principles, such as parliamentary supremacy.

“The judges do every day make law, though it is almost heresy to say so.”

The reality is that the English Legal System has developed as such that the judiciary do demonstrate a degree of judicial creativity which results in the creation of law. There are two key cases, well known to all English lawyers which demonstrate the fact that the judiciary do make the law. The first is the famous tort case of Donoghue v Stevenson . In this instance, the claimant was asking the judiciary to develop a principle that was otherwise not in existence. The problem was that the claimant was asking the judges to not only change the law so that it supported her case but to also retrospectively apply that law to the event in question (i.e. the snail in the ginger beer incident). The result was that in 1932 the judges stated that the defendant had a duty of care towards the claimant that did not actually exist in 1928 when the incident occurred. There are two schools of thought as to how it can constitutionally be possible for the judiciary to act in this manner. The first is the most obvious but equally the most constitutionally concerning theory that the judges simply created new law and then retrospectively applied it to the event in question. There are some obvious issues here in terms of the principles of law and also the English constitution . The second of school of thought is the least applicable in terms of academic sway but is the most compatible with the principle of the English judicial system. This is the application of the declaratory theory of law, whereby the judges in this case were simply stating the law as it always has been. The next important case for consideration in this aspect is the criminal law case of R v R . This case involved the conviction of a defendant for raping his wife. Prior to the determination of this case there was no such thing as rape within a marital relationship; it was implied through the virtue of being married that sex would always be consensual. However, this conviction drastically changed the law by removing this marital exemption. The declaratory theory of law would have you believe that this is what the law had always been and that there was no new law being made. However 300 years of precedent in the form of such an exemption existing would contradict such a position. As a result, it has to be accepted that the declaratory theory of law is not a valid theory anymore and that judges do create law for legitimate purposes.

Separation of Powers

As the law has developed, so have the academic theorists who argue that the judiciary can make law within certain narrow confines. This is not necessarily a negative concept, as many would have you believe, as the ability of the judiciary to make law without accountability is both an advantage and a disadvantage. The development of law in this manner means that the fact that judges do not have to worry about voting statistics is an advantage in ensuring that the correct and just path is followed . Rather than issues being dealt with in accordance with the mob mentality of the general public, they are determined without such pressures and in accordance with a pure moral conscious. The law can be changed quickly in this manner which makes the judiciary incredibly versatile. There is however a limitation on this power, which is embodied in the separation of powers which contains levels of checks and balances. It is important to appreciate two aspects of this problem. The first is the United Kingdom is one of the few countries in the world that does not have a written or codified constitution . This means that there are an extensive number of areas which have had to develop through doctrine and principle over a long period of time as there has been no specific document to resolve the question at hand. The second is that the concept of the separation of powers is a political notion and not a legal principle . The political concept of separation of powers is possibly as old as democracy itself, as its origins can be traced back to the father of logic, Aristotle. However, a number of legal principles have influenced the manner in which the political world has functioned. The most influential is that of Dicey’s theory of parliamentary supremacy . This principle has influenced and dictated the extent of judicial creativity and activism and has acted as a check on the judiciary . This effectively makes the judicial branch the weakest branch of the three as the courts recognise that they can be overridden by Parliament. This was demonstrated in the case of Burmah Oil v Lord Advocate . In this case, the House of Lords held that the proprietor of the oil fields was entitled to compensation from the government for the lawful damage that had been caused. However, Parliament then enacted the War Damage Act 1965 which retrospectively exempted the Crown from paying such compensation. This effectively frustrated the decision of the House of Lords and resulted in the Court being overridden.

Conclusion

It has to be accepted that the judiciary to alter the law and allow for it to develop through their judicial reasoning. However this is not something to be feared, as the judiciary is still the weakest branch out of the three constitutional branches and it has not yet exceeded its judicial remit. The use of parliamentary principles such as Parliamentary Sovereignty means that the powers of the judiciary are limited without the concept of justice being infringed upon.

Bibliography

Cases

Burmah Oil v Lord Advocate [1965] AC 75

R v R (rape – marital exemption) [1991] HL

Books

Alan, TRS, Law, Liberty and Justice: the legal foundations of British Constitutionalism Oxford University Press, Oxford, 2003, chapter 3

Lord Denning, The Reform of Equity in C.J. Hamsori (ed). Law Reform and Law-Making (1953)

Pollard, D. Constitutional and Adminstrative Law: Text with Materials Oxford University Press, Oxford, 2007, 15

Journals

Baroness Hale ‘ A Supreme Court for the United Kingdom’ (2003) 119 LQR 49

Lord Bingham ‘The Old Order Changeth’ (2006) 122 LQR 211

Lord Steyn ‘Democracy, the Rule of Law and the Role of Judges’ [2006] EHRLR 243, 246

Woodhouse, D. ‘The Constitutional and political implications of a United Kingdom Supreme Court’ (2004) 24 LS 134

Legislation

War Damages Act 1965

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The International court of justice held that ”it is for non-member states to act in accordance (sic) with those decisions (of the UN security council)” ( Namibia Opinion (1971) para.126 )

Introduction

The sources of public international law have been articulated within Article 38(1) of the Statute of the International Court of Justice; United Nations Security Council resolutions are not included within this. The Namibia Opinion, despite its suggestion in para.126, cannot be considered an authority for the proposition that Security Council resolutions are binding on non-member States, particularly read within the context of the ICJ judgement as a whole. Nor does the judgement support the view that UN Security Council resolutions are a source of public international law. More recently, however, there has been some support for the view that certain Security Council resolutions have taken on a legislative character, that the Security Council is becoming a legislature for the World and therefore becoming a law-making body. Not surprisingly, there are a number of States who have expressed concern with this view. This is not least because the Security Council appears to have extensive powers, which having little legal regulation and coupled with the fact that the organisation is highly undemocratic, does not afford the impartiality that is required for such a function.

Security Council Resolutions

The term ‘resolution’ has been used in United Nations (UN) practice in a generic sense, but it includes broadly two kinds of statements: recommendations and decisions. When the International Court of Justice (ICJ) refers to Security Council resolutions, it reserves the expression ‘decision’ for binding resolutions and ‘recommendation’ for non-binding ones. Security Council resolutions are generally only binding on the addressee, which may be one member, some members, all members, or other UN organs. It can even be binding on ‘those members of the Security Council which voted against it and those members of the United Nations who are not members of the Council’. However, with regard to non-UN member states, Oberg has argued that the most coherent interpretation of a difficult passage in the Namibia Opinion rejects any direct binding effect. Therefore, it is argued that despite the ICJ statement in the Namibia opinion in that ‘it is for non-member states to act in accordance (sic) with those decisions (of the UN Security Council)’, that such resolutions are not binding on non-member states. In general, treaties only bind parties, in accordance with the concept within international law that consent is required to be bound by such obligations. Finally, since almost all States are now members of the UN, it would be hard to find non-member States to be bound in this way.

Sources of Public International Law

The sources of public international law are articulated within Article 38 (1) of the Statute of the ICJ. These include international conventions, international custom, and general principles. Judicial decisions and academic writings are also subsidiary means of legal interpretation. Therefore, if UN Security Council resolutions are a source of public international law, they must fall within one of these categories.

De Brichambaut has explained that since the Security Council adopts resolutions, it can be assumed that it creates norms within the institutional framework that is defined by the UN Charter. However, this does not mean that these norms are source of public international law, but that the Security Council can create rights and obligations with respect to UN member States. The Security Council therefore acts only in accordance with its authority as delineated within the UN Charter.

Chapter VII UN Charter

The Security Council is a political organ and makes political decisions; however, it does produce resolutions, which have legal consequences. It is a legally effective collective security system, and its activities are defined within Chapter VII of the UN Charter. If the Security Council therefore makes a determination that there has been a ‘threat to peace, breach of the peace, or act of aggression’ under Article 39, it may exercise powers pursuant to Articles 40 to 42 of the UN Charter. Since this concept has no definition within the UN Charter, it gives the Security Council the ability to exercise wide discretion. Once the conditions within Article 39 are satisfied, Article 40 enables the Security Council to impose ‘provisional measures’, which are legally binding on States. Article 41 then empowers the Security Council to impose economic or diplomatic sanctions, in order to give effect to the resolution. Finally, Article 42 authorises the Security Council to take action by air, sea or land forces to maintain or restore international peace and security. Therefore, the UN Security Council may appear to be imposing legal sanctions on states, however, the link between the Charter mechanisms for peace maintenance and the concept of legal sanctions is tenuous. The purpose of enforcement action ‘is not: to maintain or restore the law, but to maintain, or restore peace, which is not necessarily identical with the law’.

Mandatory decisions under Chapter VII, triggered by Article 39, are the outcome of political considerations, not legal reasoning, nor are its proceedings subject to judicial procedures. The determination of what constitutes a ‘threat to peace, breach of the peace, or act of aggression’ is a selective and to a large extent arbitrary process. The Security Council is not required to match the gravity of the situation to its response and it is not required to adopt the measures provided under Chapter VII in any particular order. Therefore, it is hard to conceive of the Security Council as a law-making body.

Advisory Opinion on Namibia

In the Namibia Opinion, the ICJ recalled that although non-member States are not bound by Article 24 and 25 of the UN Charter, that they had been called upon in Security Council ‘resolution 276 (1970) to give assistance in the action which has been taken by the United Nations with regards to Namibia’. The ICJ went on to say that any state entering into relations with South Africa concerning Namibia, could not expect the UN or its members to recognise such a relationship. Since the UN General Assembly Mandate of South Africa in Namibia had been terminated, ‘and South Africa’s continued presence in Namibia been declared illegal’ the ICJ considered that ‘it is for non-member States to act in accordance with those decisions’.

However, as Gowlland-Debbas has explained that Security Council determinations of illegality and invalidity are essentially declaratory and not intended to create the illegality or nullity of the acts in question. The powers of the Security Council cannot be considered to be legislative powers therefore, even in a broad sense. As Judge Onyeama emphasised in his separate opinion in the Namibia case, stating:

The declaration of illegality of the continued presence of South Africa in Namibia did not itself make such presence illegal; it was… a statement of the Security Council’s assessment of the legal quality of the situation created by South Africa’s failure to comply with the General Assembly’s resolution… it was in fact a judicial determination.

Therefore, it is clear that the Security Council does not make the law and therefore its resolutions do not constitute a source of public international law. They do have a role however, in interpreting current law and contribute to the law-making process.

Customary International Law

Article 38 of the ICJ Statute refers to ‘international custom, as evidence of general practice accepted as law’. In the Fisheries case, Judge Read described customary international law as ‘the generalisation of the practice of States’. As Crawford has explained, ‘it is the conclusion drawn by someone as to two related questions: (a) is there a general practice; (b) is it accepted as international law?’ A custom arises therefore when a particular practice has become general. It is considered that the practice of international organisations can constitute one element of State practice. In Libya/Malta Continental Shelf case, the ICJ explained that the substance of customary international law should be sought from State practice and opinio juris of States. Opinio juris may be obtained from General Assembly or Security Council resolutions, if their subject matter is not too restricted to particular circumstances. Therefore, although Security Council Resolutions are not a source of public international law, they do constitute State practice, which may contribute to customary international law.

Treaty Law

Article 103 UN Charter provides that obligations of member States under the UN Charter should prevail over other International agreements. Therefore, since Security Council Resolutions are obligations under the UN Charter, these can take precedence over International Treaties. However, Security Council resolutions are created using a very different process to Treaties. In the Kosovo advisory opinion, the ICJ considered factors relating to the interpretation of resolutions of the Security Council. They explained that ‘Security Council resolutions are the product of a voting process provided for in Article 27 of the Charter, and the final text of such resolutions represents the view of the Security Council as a body’.

Interpretation of Security Council resolutions is also very different to interpretation of Treaties. According to the Vienna Convention on the Law of Treaties, the starting point is the intent of the parties, and the best evidence of common intent is the specific language of the treaty. In terms of Security Council Resolutions, their implications can be incredibly far reaching, particularly for the State against whom the enforcement measures are being taken. As Frowein has argued: ‘such a resolution is the legal basis for the most severe encroachment upon the sovereignty of a member of the United Nations’. Therefore, although such resolutions have considerable impact and may even take precedence over Treaty law, they are essentially only a source of rights and obligations for member States of the UN and not a source of public international law.

Security Council as Lawmaker

Despite the fact that Security Council Resolutions cannot be considered to be sources of international law, there are many areas where the Security Council has made significant contributions to the body of international law. These areas have been enumerated by Michael Wood and include statehood: recognition and non-recognition; the law of treaties; State responsibility; international criminal law; international humanitarian law; international human rights law; and the international administration of territory.

Reference has been made to the Security Council as a ‘World Legislature’ and it has been suggested that a new legislative stage started with the adoption of Resolution 1373 on September 28, 2001. The president of the UN Security Council, in referring to the planned adoption of Resolution 1540 of April 28, 2004, described the ongoing consultation process for that resolution as ‘the first major step towards having the Security Council legislate for the rest of the United Nations membership’. Krisch has even gone so far as to say that ‘[b]y means of its enforcement powers, the Security Council has in fact replaced the conventional law-making process on the international level.’

Talmon has claimed that the hallmark of any international legislation is the general and abstract character of the obligation imposed. He suggests that Security Resolutions are framed in this manner. For example Resolution 1390, relating to the freezing of Al Qaeda assets, exhibit the characteristics of the legislative or generic resolution. This kind of resolution has also been referred to as a ‘resolution, not in response to a particular fact situation’. Therefore, it is argued that these resolutions are similar to obligations entered into states as international agreements. These new legislative or generic resolutions therefore have been referred to as international legislation.

At the same time, there are those who express concern at the Security Council’s increasing tendency to assume new and wider powers on behalf of the international community, by passing resolutions which are binding on all member States. There are others who express the opinion that the Council has no such legislative authority, claiming that the purported enactment of global legislation ‘is not consistent with the provisions of the United Nations Charter’. There may be some justification in these concerns, after all the UN Security Council is a political institution and not a legal one. It is also a highly undemocratic and has few legal constraints upon its own actions. Therefore, if it is the case that UN Security Council Resolutions are making their way into the realms of public international law via this route, then this appears to be a dangerous step.

Conclusion

The ICJ’s Namibia Opinion did not make Security Council resolutions binding on non-member states. Although paragraph 126 has been referred to as a ‘difficult paragraph’, taking the judgement as a whole it is hard to arrive at this conclusion. It is also clear that this judgment did not impact upon Security Council resolutions status as a source of public international law. Although such resolutions may add to the body of state practice which influences the development of customary international law, these resolutions cannot be considered law in themselves. Nevertheless, there is a growing body of opinion that has spoken of the legislative function of the Security Council and has identified certain ‘generic’ or ‘legislative’ resolutions. Some UN Member States have expressed the view that these are the beginnings of a legislative function within the Security Council. There are clear dangers in recognising this view, the Security Council is first and foremost a political and not a law making body and appears to lack the impartiality required to fulfil such a function.

References
Cases

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, 404

Fisheries (UK V Norway). ICJ Reports 1951

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Critically evaluate protections to minority shareholders and their effectiveness in protecting the smaller shareholders from the unfair dominance of the Majority.

Abstract

In order to adequately protect holders of minority interests of a corporate entity against oppressive shareholders whose actions might be at variance with the Company’s Articles, there are several remedies and protection available to minority shareholders as members of the company. Some of these remedies are inclusive of, but not exclusive to, petition on the ground of unfair prejudice, just and equitable winding up and the derivative claim principle. The majority of these remedies are firmly rooted in the common law but recently, these rules have been codified under the Companies Act 2006. For the purpose of this project, the protection afforded to minority shareholders will be critically evaluated and its effectiveness will be highlighted to portray the usefulness of the available remedies.

One of the major factors indirectly responsible for the destruction of a business or corporate enterprise due to loss of management time or excessive cost of litigation is shareholder disputes.¹ The earliest remedies being afforded to minority shareholders dates back to the Cohen Committee Report where corporate bodies gave the court a broad jurisdiction to ascertain what actions of the majority would amount to oppression, and what could be the preliminary hurdles to bring a valid claim against unfair prejudice. ² The claims against majority shareholder oppression has been a long-serving legislative constant even before 1985 where the ability for a minority shareholder to bring an action against the majority was encapsulated in the Companies Act (CA). ³ Protecting the interest of the minority is mandated by law and it is part of the life of a corporate entity.⁴ This right however does not empower the minority to make decisions on the company’s nor does it allow company policies to be set up exclusively by the majority. ⁵

The vast majority of disputes involves shareholders who are in a minority capacity who wish to seek redress because it will be unreasonable for the majority shareholders to bring an action since they could exercise their voting power to seek redress without court interference. ⁶ Nevertheless, before an action could be brought against the majority, there must be elements of good faith on the part of the minorities because if the powers to bring a claim cannot be controlled, company stakeholders could face certain amount of oppression from frivolous law suits.⁷ In the case of Re a Company,⁸ Lord Hoffman stated that the provision of s 75 CA ⁹ must be carefully applied so that it doesn’t become a “means of oppression”.

Petition on the ground of Unfair Prejudice

This is an important remedy which equips the minority shareholder to petition the Court for an order against the majority. This remedy is found in s 994 CA 2006 which was formally s 459 of the CA 1985. This action can furnish an allegation if it is found that the conduct of the majority are performed in an unfairly prejudicial manner against the interest of the stakeholders including the claimant, or that an act or proposed omission of the company is or would likely be prejudicial against the stakeholders by the company. ¹⁰ The action will be against those in authority to act on its behalf and not just the conduct of a member acting in a personal capacity of a shareholder.¹¹ The acts complained of could be in relation to a breach of fiduciary duty between director and stakeholders, breach of legal bargain between shareholders as agreed in the Articles of Association, misappropriation of assets or breach of understanding. In Re Leeds United Holdings plc ¹², the court rejected the petition which was saddled on the assertion that the shareholders did not dispose of their shares as to the manner agreed. The petition was quashed on the ground that the disposal of shares did not relate to the conduct of affairs of the company.

In most cases, this remedy having been upheld by the court after petitioning under s 994, the shares of the minority shareholder/petitioner will be purchased at a fair value.¹³ Since this remedy is relied on by the discretion of the Court, it could then be that the court could mandate the majority to remit their shares for a fair purchase by the minority depending on the seriousness of the breach. However, before resort to the courts, it is important that the petitioner is aware of the nature of fair offer made by respondents. If the respondents i.e. the majority shareholders have made a fair offer to the petitioner which entitles him to rights enjoyable under s 994 CA 2006 but he refuses to accept, the court could strike off his petition.¹⁴ It is worth noting that only company members have a right to petition under this remedy. A case for petition could even be instituted by a nominee shareholder as seen in Atlasview Ltd v Brightview Ltd.¹⁵

The Derivative Claim Principle

It is trite law that only the company excluding all stakeholders can bring an action suo moto.¹⁶ This common law principle is derived from the celebrated case of Foss v Harbottle.¹⁷ The two major principles enunciated in this case are – any matter which negatively affects the company can only be commenced by the company,¹⁸ and only the simple majority of the members can bring a claim on behalf of the company.¹⁹ Part 11 CA 2006 governs the principles of derivative claims.²⁰ A derivative action is normally for the benefit of the company which contrasts with s 994 unfair prejudice remedy. ²¹ If a shareholder brings a petition against the majority instead of a derivative action, the court will not set aside the claim per incuriam but will require the petitioner to bring a derivative action if the wrongdoing is against the company.²²

To bring a claim on behalf of the minority shareholders of the company, the complainant must seek the leave of court before his claim can be entertained in court.²³ It then means that an action against the majority shareholders can only be instituted under the company’s name. Lord Denning MR while echoing the immortal words of Professor Gower, ²⁴ he states that where a derivative action is allowed, a minority shareholder is not suing in his own personal capacity as member of the company or on behalf of other members but solely on behalf of the company. ²⁵ The company is bestowed with the responsibility and authority to bring an action against the wrongdoers in its own personal capacity except if shareholders have been duly delegated such a right to bring a claim. ²⁶

To institute a derivative action is quite a complicated exercise because the court is saddled with the responsibility of screening frivolous cases against the company which may threaten its daily operations, avoidance of multiplicity of individual actions which could be better brought jointly in one suit, etc. In the famous case of Barrett v. Duckett²⁷ the House of Lords held inter alia that there was a more favourable method of resolving shareholder disputes instead of a derivative action which could negatively affect the shareholders’ relationship as members of the company.

The rule in Foss v Harbottle has gone a long way to ease the constraints the common law has over derivative claims. Some of the exceptions to the above common law rule are – a shareholder is permitted to bring an action against the majority which is ultra vires the Articles of association of the company, a shareholder may sue if he is denied his bona fide membership rights, a shareholder may sue the majority if certain element of fraudulent activities are committed against the minority shareholders and where a corporate decision is decided by simple majority when more than a simple majority is required. The ‘fraud on the minority’ provision tends to be the most popular of the common law exception because it is for the benefit of the company in contradistinction to the other three which seeks to ameliorate the personal rights of the minority shareholder. ²⁸

To sum it up in regards to the provisions of Part 11 CA 2006, a derivative claim may be instituted in court against any member including ex-directors or shadow directors or any other person who is directly involved in the accused breach;²⁹ it could be brought where there is negligence, default or breach of trust and duty by a director of the who failed to act in accordance with his duties. ³⁰ It then means that any breach of duty done knowingly or unknowingly will be actionable in court against such director. A derivative claim could also be institute by any company member however few the share capital he holds in the company. ³¹ There is a feeling however that without any sort of restriction on the amount of shares held by a petitioner before he can bring an action in this capacity, the tendency for it to be abused is present. Nonetheless, it will be more theoretical than real for a petitioner who has a single share in a company to bring a derivative action against the majority knowing fully well that he will pay cost as penalty if the law suit is rendered frivolous.

Just and Equitable Winding Up

The Insolvency Act (IA) 1986 provides shareholders with a statutory remedy in the form of a winding-up order on a just and equitable ground pursuant to certain provisions and rights inherent in the CA 2006.³² The aim of a petition via this remedy in the IA 1986 is to oblige the company to seek a validation order thereby putting pressure on the company if a petition for unfair prejudice has also been brought in tandem.³³ However, the court has a certain level of discretion under the IA 1986 as to whether to allow a winding-up petition to be entertained.³⁴ If there is a better alternative remedy apart from the just and equitable winding up such as the unfair prejudice claim, the court will most likely dismiss the former. ³⁵

It seems quite unlikely that a petitioner will be satisfied with winding up a company where he possesses certain amount of shares as shareholder. As earlier discussed, it will be prudent for the petitioner to seek a quote on the remuneration of his shares and exit the company without the burden of pursuing a winding up order. From this standpoint, it can therefore be asserted that the just and equitable winding up remedy will most likely be useful only if s 994 CA 2006 does not satisfactorily mend the wrongdoing complained of by the minority shareholders.

Conclusion

It has been recognised that certain discrepancies were inherent in the common law such as the fraud on the minority and majority rule which didn’t suit the minority shareholders because of its uncertain nature as to whether they had the locus standi to sue and also the disadvantage of power concentration with the majority. Crucially, the advent of the 2006 CA has now filled the void which the common law failed to address adequately. The rigid exceptions in the common law have been relatively softened by the CA.

If the courts decide to condone a liberal attitude, the company will be subjected to unnecessary and trivial claims while if it adopts a strict procedure, the minority will be parachuted to the pre-2006 CA situation where the rules where quite restrictive. Nevertheless, the most important objective is to protect the minority from majority shareholder abuse, at the same time, uphold the needs of the majority.

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The use of pre-recorded video evidence in sexual assault and rape trials. Has the law of criminal evidence managed to strike an appropriate balance between protecting the victims of sexual assault, who are usually the prime witnesses in prosecution proceedings, and protecting the due process rights of defendants charged with these crimes, in particular the right to properly test the evidence which has been admitted against them?

Introduction:
i. Background to the conflicting issues of this research

In the title of this paper, it is conjectured that victims of sexual assault are usually the prime witnesses in prosecution proceedings for these types of crime. The reason for this is that most sexual assaults are perpetrated in private by someone already known to the victim. What is more, often there is no forensic evidence available and so victims of sexual assault are not only the prime witnesses in prosecution proceedings for these types of crime but, often, the only evidence that a crime has taken place at all . This can place real burden on sexual assault victims during the trial stage of the prosecution. For one thing, the victim must relive the traumatic events in question, by explaining them to the court, jury and defence barrister. Secondly, a common defence strategy is to undermine the credibility of the victim and to convince the Court either that no sexual contact occurred or that it was consensual. In the absence of forensic evidence, often it boils down to the victim’s word over that of the defendant and it is very difficult to resolve two conflicting accounts to the satisfaction of the criminal standard of proof required for a successful conviction. As the Office for Criminal Justice Reform writes, “Those victims whose cases do make it to court are faced with the intimidating prospect of having to recount traumatic and often intimate details, endure cross-examination and in some cases have information about their past sexual behaviour presented to the court as evidence against them. ”

In light of this, it is not surprising that (i) the rates of conviction for rape and sexual assault are so low (approx. 6% of all cases brought result in a successful prosecution ); and, (ii) a substantial number of victims of sexual assault or rape do not report their crimes to the police, either in a timely manner* or at all**, or choose to drop their claims when it transpires that they will have to testify as a prime witness in the prosecution against their attacker . Research suggests that the drop-out rate is currently 33%. As the Office for Criminal Justice Reform writes, “Research has found that victims who declined to complete the initial investigative process and victim withdrawals accounted for over one-third of cases lost at the police stage. Key contributory factors were not being believed and fear of going through the criminal justice process. ”

*The chances of securing a successful prosecution against a rapist or sexual attacker decrease substantially as time passes and therefore anything that leads victims to delay reporting their crime to the Police has the consequential effect of reducing the rate of successful conviction.

**This author does not purport to suggest that these are the only reasons why victims of sexual assault choose not to report their crimes to the Police; it is well documented that victims of sexual assault often feel shame and guilt for what has happened to them, as if they are somehow to blame, and this is another major reason why such victims often prefer to keep their ordeals secret . Other factors include fear of retaliation and the distrust of the reactions of family and friends .

While these barriers to timely reporting and successful prosecution cannot all be redressed by criminal justice reform, nevertheless, in light of the fact that some of these barriers emanate from fear of or lack of confidence in the court process itself, the law of criminal evidence can play an important role in mitigating some of these barriers; for example, by protecting these vulnerable witnesses and making the ordeal of trial less traumatic, the law of criminal evidence could, eventually, change victims’ perceptions of the trial process and make them less likely to allow their fears of that process to interfere with their decisions to report their sexual assaults.

One reform proposal which is often discussed in this context is the use of pre-recorded video testimony for victims of sexual assaults. The idea behind this proposal is that victims of such crimes are less likely to be afraid of the trial process if they know that they can record their testimony in advance and that they cannot be cross-examined by their attacker’s barristers (even if they are asked to respond to certain questions within their testimony). Such reforms have been implemented in the field of youth justice for some time—for example, there are various provisions under the Youth Justice and Criminal Evidence Act 1999 which allow for the use of video links to shield child victims of sexual or physical abuse from their attackers—but are relatively new in the context of adult rape and sexual assault cases.

While the use of video testimony is clearly beneficial to victims, prima facie it poses a real risk to the integrity of the due process rights of defendants charged with these crimes. Under the criminal justice system of England and Wales there is a presumption that all persons charged with a criminal offence are innocent of that offence until proven guilty . This is provided, inter alia, by Article 6(2) of the Human Rights Act 1998 which states that, “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. ” What is more, it is a human right of all persons charged with a criminal offence to be able to challenge effectively the accuracy of any evidence which is admitted against them. This is provided inter alia by Article 6(3) of the 1998 Act which states that, “Everyone charged with a criminal offence has the following minimum rights: (…) (b) to have adequate time and facilities for the preparation of his defence; (…) (d)to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him… ”
In this present research paper, we are concerned specifically with the question of whether or not the use of video testimony in sexual assault cases (involving both adult and child victims) unduly prejudices the right of criminal defendants to properly challenge the accuracy and reliability of evidence adduced against them.

ii. The aims and objectives of this research:

The primary aim of this research is to evaluate the extent to which the law of criminal evidence has managed to strike an appropriate balance between protecting the victims of sexual assault, who are usually the prime witnesses in prosecution proceedings, on the one hand, and protecting the due process rights of defendants charged with these crimes, in particular the right to properly test the evidence which has been admitted against them, on the other?

The secondary aim of this research is to derive recommendations for reform to the law of criminal evidence to effect a more appropriate balance between protecting the victims of sexual assault on the one hand, and protecting the due process rights of defendants charged with these crimes on the other.

The objectives of this research paper are as follows: To identify the legal provisions which purport to allow the use of video evidence in sexual assault and rape trials; to identify the procedures which must be adhered to when utilizing this kind of evidence; to evaluate the likely impact of the use of video testimony on rates of reporting and successful prosecution; to examine the right of criminal defendants to test the evidence relied upon against them by the Crown Prosecution Service and to identify the extent to which it might be argued that this right is a qualified right under the law of England and Wales; to evaluate the extent to which the use of video evidence might prejudice the right of criminal defendants to test the evidence relied upon against them by the Crown Prosecution Service; to identify and critically evaluate the safeguards which exist currently to ensure that the use of video evidence is not permitted where its use would prejudice the ability of the defendant(s) in question to receive a fair trial; to evaluate whether or not an appropriate balance has been struck in practice between protecting the interests of victims through the use of video testimony on the one hand and preserving the interests of justice and the right of criminal defendants to test the evidence relied upon against them by the Crown Prosecution Service, on the other; to derive high level recommendations for reform to the way that the law currently permits the use of video evidence in sexual assault and rape trials.

iii. The structure of this research paper.

The structure of this paper takes the following form: In chapter one, this author traces the development of the use of video evidence in sexual assault and rape trials, identifies the legal provisions which regulate the use of such evidence and the procedures which must be followed when this type of evidence is relied upon by the Crown Prosecution Service and critically evaluates whether or not the use of video evidence is really likely to have any impact on rates of reporting and rates of successful prosecution of rapists and sexual offenders.

In chapter two, this author traces the development of the right of criminal defendants to a fair trial, generally, and, specifically, their right to test the evidence adduced against them, identifies the legal provisions which give rise to these rights and evaluates the nature of those rights (i.e. whether they are absolute rights or qualified rights) and evaluates the extent to which the use of video evidence might prejudice the right of criminal defendants to test the evidence relied upon against them by the Crown Prosecution Service, and the circumstances under which that prejudice is likely to be the greatest.

In chapter three, this author identifies and critically evaluates the safeguards which exist currently to ensure that the use of video evidence is not permitted where its use would prejudice the ability of the defendants to receive a fair trial and evaluates whether or not, in practice, the law has managed to strike an appropriate balance between protecting the interests of victims through the use of video testimony on the one hand and preserving the interests of justice and the right of criminal defendants to test the evidence relied upon against them by the Crown Prosecution Service, on the other. Also, in this chapter, this author derives high level recommendations for reform to the way that the law currently permits the use of video evidence in sexual assault and rape trials.

Finally, this author presents his conclusions to this research.

1. Using video evidence in sexual assault and rape trials; is it likely to have a positive impact on rates of reporting and rates of successful prosecution of rapists and sexual offenders?

As noted in the introduction of this paper, it has been argued in the academic literature that a significant barrier to the timely reporting of sexual offences (and also one of the reasons why the drop-out rate—i.e. the number of victims choosing to withdraw their claims before the conclusion of the trial—is so high ) are common victim perceptions that if they report their assault they will be subjected to a traumatic trial process in which their account of events will be cross-examined by their perpetrator’s legal representatives and their character will be called into question .

The use of pre-recorded video testimony is designed to mitigate these barriers (ultimately) to prosecution by protecting these vulnerable witnesses and making the ordeal of trial less traumatic for them. Over time, it has been conjectured, victims’ perceptions of the trial process will change and they will be less afraid of the trial process and more willing to report their sexual assaults when they occur.

Currently, there are two video-based special measures for vulnerable victims . These are provided by the Youth Justice and Criminal Evidence Act 1999. The first is where the victim is permitted to present his or her evidence-in-chief in the form of a video statement rather than in person. This is provided by section 27(1) of the Youth Justice and Criminal Evidence Act 1999 which states that, “A special measures direction may provide for a video recording of an interview of the witness to be admitted as evidence in chief of the witness. ”

Section 27(4) of the 1999 Act however makes it clear that dispensation to use this special measure will only be granted where the court is satisfied that the witness in question will be made available for cross-examination (whether that be cross-examination in person or via a ‘special measure’ alternative equivalent): “Where a special measures direction provides for a recording to be admitted under this section, the court may nevertheless subsequently direct that it is not to be so admitted if— (a) it appears to the court that— (i) the witness will not be available for cross-examination (whether conducted in the ordinary way or in accordance with any such direction), and (ii) the parties to the proceedings have not agreed that there is no need for the witness to be so available; or (b) any rules of court requiring disclosure of the circumstances in which the recording was made have not been complied with to the satisfaction of the court. ” The intention behind this provision was to ensure that criminal defendants accused of crimes against vulnerable victims were not unduly prejudiced by the existence of this special measure; if the court and jury watched a video statement from a victim explaining how they witnessed the defendant commit a criminal offence, that defendant would be grossly prejudiced if he did not have an opportunity to challenge any aspects of the video statement in question.

The second type of video-based special measure provided under the Youth Justice and Criminal Evidence Act 1999 is where the cross-examination and re-examination of a witness’s testimony by the defence’s legal team is pre-recorded rather than conducted live in the courtroom, in front of the defendant. This is provided by section 28(1)(b) of the Youth Justice and Criminal Evidence Act 1999: “Where a special measures direction provides for a video recording to be admitted… as evidence in chief of the witness, the direction may also provide— (a) for any cross-examination of the witness, and any re-examination, to be recorded by means of a video recording; and (b) for such a recording to be admitted, so far as it relates to any such cross-examination or re-examination, as evidence of the witness under cross-examination or on re-examination, as the case may be. ”

To ensure that this special measure does not dilute the defence’s ability to cross-examine or re-examine a witness, the 1999 Act provides that the court and the defence’s legal representatives must be able to see and hear the live recording session and be able to communicate directly with the persons in the room. The Act also provides that the defendant should be able to see and hear the examination and that he or she should be able to communicate with his or her legal representatives throughout the process: “Such a recording must be made in the presence of such persons as rules of court or the direction may provide and in the absence of the accused, but in circumstances in which— (a) the judge or justices (or both) and legal representatives acting in the proceedings are able to see and hear the examination of the witness and to communicate with the persons in whose presence the recording is being made, and (b) the accused is able to see and hear any such examination and to communicate with any legal representative acting for him. ”

If a court has granted the use of this special measure then it is imperative that the defence’s legal representatives ask the child witness all of the questions, the answers of which they plan to later rely on in court as they will not be entitled to put any new questions to the witness on completion of this recording session unless any new matters come to light which the defendant or his legal team could not have been expected to have discovered previously with reasonable diligence .

These special measures are available to adult victims of sexual assault or rape by default. However, it is up to each witness to decide whether or not they wish to take advantage of one or both of these measures. This presumption of vulnerability is provided by section 17(4) of the 1999 Act which states that, “Where the complainant in respect of a sexual offence is a witness in proceedings relating to that offence (or to that offence and any other offences), the witness is eligible for assistance in relation to those proceedings by virtue of this subsection unless the witness has informed the court of the witness’ wish not to be so eligible by virtue of this subsection. ”

By virtue of section 16(1) of the 1999 Act, these measures are also available to child witnesses aged sixteen or less: “For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this section (…) if under the age of 17 at the time of the hearing… ” For child witnesses, not only is there a presumption that their testimony will be given via video but this is nearly mandatory. As Burton, Evans and Sanders explain, “For child witnesses in need of special protection (defined by section 21 of the YJCE Act) the provision of video evidence-in-chief or live television links is near mandatory, and it is not necessary to demonstrate that they would improve the quality of the witness’s evidence. ”

Leaving aside any discussion of the potential prejudicial impact that these special measures can have on defendants’ ability to defence a claim of sexual assault or rape of a minor or adult—a discussion which will be reserved for the following chapter of this paper—the first question which, in the opinion of this author, must be asked, is whether or not these special measures actually mitigate the barriers to effective testimony identified previously in this paper.

It will be recalled that one such barrier was the victim’s fear of cross-examination and being made to feel like the one to blame for the ordeal . And yet, while the second of the two special measures discussed above does allow the cross-examination to take place in a venue other than a court of law, in all other respects a video cross-examination is equivalent to a live court-based cross-examination. As the Crown Prosecution Service explains, in its ‘CPS Policy for Prosecuting Cases of Rape’, “Giving evidence in court can be a particularly traumatic experience for victims of rape. In particular, some victims may find it difficult to give evidence in the sight of the defendant. If this is so, we can apply to the court for the victim to give evidence in another way so that he or she can give their best evidence. These alternative ways of giving evidence are known as ‘special measures’… [While] the victim or witness will not have to give ‘live’ evidence about what happened to them… they will still have to answer questions put to them by the defendant’s lawyer in crossexamination. ” (emphasis added)

Therefore, while this special measure might make it more comfortable for a vulnerable or intimidated witness, it is not entirely clear, at least in theory, how it purports to mitigate the victim’s fear of cross-examination itself. This is a point raised by Childs and Ellison, who argue that the efficacy of these special measures are undermined by the fact that the process remains an adversarial one, even though it is pre-recorded and conducted in a venue other than a court of law: “There is also a risk… that a commitment to traditional adversarial values and methods may yet limit the impact of reforms. ”

Another barrier that was identified previously was the victim’s fear of being in contact with the defendant. While pre-recorded video evidence certainly allows a vulnerable witness to give their testimony and responses (to cross- or re-examination) without having to be in the same room as the defendant, as noted previously the defendant is allowed to listen into the recording session and therefore it is not entirely clear how the victim receives any benefits from these special measures whatsoever, other than those which they would be able to enjoy anyway through the use of screens or live links pursuant to sections 23, 24 or 25 of the Youth Justice and Criminal Evidence Act 1999 .

Another criticism which has been raised, especially in respect of the use of pre-recorded video cross-examination, is that, historically, these measures have not often been made available to victims of sexual offences, the Courts preferring to rely upon live testimony, whether given orally in court or via a live video link (via the special measures provided by sections 23 and 24 of the Youth Justice and Criminal Evidence Act 1999. As Childs and Ellison argue, writing in 2000, “While the special measures contained in the YJCEA 1999 are to be welcomed, the protection they afford rape complainants has, disappointingly, been constrained by a continuing attachment to the primacy of oral evidence… Adult rape complainants are to benefit from the availability of screens and CCTV but they are to be denied the protection inherent in the use of video-recorded evidence. Generally, adult rape complainants will still be required to give live oral evidence in criminal proceedings, albeit via a TV link. ”

Another criticism which has been levied against the use of these video-based special measures is that somehow a victim’s testimony is diluted by the fact that the jury is unable to see the witness in a live environment. As Burton et al note, “Some practitioners had reservations about televised evidence because they thought it was less convincing than ‘live’ evidence. ”

While this argument has real intuitive appeal, in reality there is very little evidence to support this view. As Burton et al conclude, “There is no research evidence to indicate that acquittals are more likely using these methods, however. ” This is something that will be discussed in more detail in the following section of this paper.

In conclusion to this chapter, while this author cannot comment upon the general advantages or disadvantages of video-based special measures in cases of rape or sexual assault*, he is not wholly convinced that they manage to discharge the barriers which are faced by rape and sexual assault victims and therefore is not convinced that their use is having the effect of increasing rates or reporting and conviction for these types of offence. Victims still have to undergo a adversarial style cross-examination, which has been reported to be the most daunting prospect of a rape trial for rape victims, and even though this might be conducted in a venue outside of the courtroom, the rape victim nevertheless has to respond directly to questions from the defendant’s legal representatives while knowing that the defendant is listening into the recording session and able to communicate with their lawyers throughout.

In light of this, the pre-recorded video measures provided by the Youth Justice and Criminal Evidence Act 1999 is unlikely to alleviate victim perceptions that if they report their assault they will be subjected to a traumatic trial process in which their account of events will be cross-examined by their perpetrator’s legal representatives and their character will be called into question.

In any event, it appears that these measures, particularly pre-recorded video cross-examinations, are rarely used with adult victims, the Courts preferring to grant other special measures to these vulnerable witnesses such as screening or live CCTV links.

* In this chapter this author has been concerned only with the extent to which video-based special measures are able to help vulnerable victims overcome the barriers which are reported to be responsible for under-reporting and low overall conviction rates. These measures may well have benefits other than overcoming these barriers, but these are not of relevance to this present research paper. Therefore, one should be cautious not to use the conclusions of this paper to support an argument that video-based special measures should not be used; all that can be said is that they are not apparently very effective at meeting their direct intended objectives.

2. The right of criminal defendants to a fair trial and to test the evidence adduced against them; are these rights prejudiced by the use of video evidence and under what circumstances, in particular?

As noted in the introduction to this paper, Article 6(3) of the 1998 Act provides that any person charged with a criminal defence has the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him . The question which falls for determination in this chapter is whether or not this right is unduly prejudiced by the use of the two video-based special measures identified and analysed in the previous section of this paper.

While it is the case that these special measures are not used in every case of adult rape or sexual assault, in this chapter we are concerned with the potential for prejudice when either or both of these measures are employed. In other words, the fact that these special measures, particularly pre-recorded video cross-examination, are rarely used in adult cases will not (and should not ever) be cited as a defence to any claims of prejudice which are levied towards them.

The first thing to do is to evaluate what kind of right is created by Article 6(3)(d) of the Human Rights Act 1998; if this right is an absolute right then it would never be appropriate to derogate from it in the interests of protecting vulnerable witnesses . However, if the right is a qualified right, then it might be legitimate, where the circumstances dictate, to derogate wholly or partially from that right to serve a competing but legitimate interest .

If one relied upon the wording of Article 6 of the Human Rights Act 1998 then one would be forced to conclude that Article 6(3)(d) is an absolute right as it states unequivocally that all persons charged with a criminal offence are entitled to enjoy this right, which grants upon them an ‘equality of arms’ and the tool required to be able to clear themselves of the charges brought; namely, the right to cross-examination . This interpretation seems to be in line with the Strasbourg jurisprudence .

However, there is good common law authority for the proposition that this right is a qualified right and also for the proposition that, under certain circumstances, it is appropriate to derogate from this right in the interests of protecting vulnerable witnesses. For example, in the recent case of Bonhoeffer, R (on the application of) v General Medical Council [2011] EWHC 1585 the Court allowed a key witness to admit his evidence in written form only, which precluded cross-examination, on the basis that the witness would face persecution back in Kenya, where he lived, if he appeared as a witness and admitted to being a homosexual. In this case, the Court accepted that the defendant’s right to cross-examination under Article 6(3) of the Human Rights Act 1998 had been derogated from; however, the Court justified this derogation using a utilitarian (least harmful path) justification. A similar justification was employed in the case of R v Xhabri [2005] *.

*Some authors have argued that this interpretation of Article 6 is at odds with the wording of the 1998 Act and while this present author agreed with that thesis, this is not the time or the place to engage with this subsidiary debate. For our present purposes, all that matters is that it is settled law that Article 6(3)(d) is a qualified right and not an absolute standard.

Therefore, we must conclude that the right to cross-examine is a qualified right and, consequently, that the potential for video-based special measures to cause an infringement of a defendant’s right to cross-examine is limited; after all, it cannot be said to be an infringement of a right if that derogation can be legitimized through legal authority.

In any event, it is not entirely clear that the use of video-based evidence is always likely to be prejudicial to defendants. For one thing, as argued in the previous chapter of this paper, these special measures do not substantially affect the cross-examination process, and therefore it is not straightforward to contend that a defendant’s right to cross-examine is affected, let alone limited, by the employment of pre-recorded video cross examination.

What is more, there is no evidence to suggest that a conviction is more likely to result from the use of video-based special measures. In their experimental study entitled, ‘The impact of pre-recorded video and closed circuit television testimony by adult sexual assault complainants on jury decision-making’, Taylor and Joudo found that juries were not more likely to convict defendants charged with rape or sexual assault when the victim’s testimony was presented as a pre-recorded video, than they were when it was presented face-to-face or via a live link CCTV . This study had a strong methodology: the researchers conducted 18 mock trials using a total of 210 jurors. In one third of the trials, the jurors heard the victim’s evidence live, face-to face; in one third of the trials, the jurors heard the victim’s evidence live, via a live link CCTV system; and, in the remaining third of the trials, the jurors heard the victim’s evidence from a pre-recorded video. After the trials, the researchers undertook perception and attitude surveys via a questionnaire. This sought to measure a range of attitudes and perceptions including the degree to which the jurors felt they were able to empathize with the victim and whether or not they thought the accused was guilty of the crime. The conclusion of this study was that the mode of transmission of victim testimony had no statistically significant impact upon juror perceptions: “The study finds, overall, that immediately following the trial but before jury deliberation, mode of presentation of testimony (face-to-face, CCTV or pre-recorded videotape) did not impact differentially on juror perceptions of the complainant or the accused, or guilt of the accused. ”

While the methodology of this research study was generally sound, there is anecdotal evidence to support the view that real victims come across better on pre-recorded video than they do live. As the Office of Criminal Justice Reform reports, “In one case the video was not used as it required substantial editing to remove inadmissible evidence. However, prosecution counsel later commented that they wished in hindsight that the video had been used, as the victim was not as good live as on the recording. ” While one might argue that such evidence is of limited use, in the opinion of this author if Taylor and Joudo’s study was repeated using real rape victims in real rape trials then it is highly likely that the mode of presentation of testimony would impact differentially on juror perceptions of the complainant; after all, they are likely to feel more comfortable giving testimony about their horrific ordeal in a video recording studio than they would be giving that same testimony live, in a court of law, with twelve jurors, a judge and several lawyers all looking at them. Further research needs to be conducted to test these claims empirically.

If nothing else, the pre-recorded testimony would likely have bee

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The Case of Amanuel and His Political Asylum Claim in The United Kingdom

I. Introduction

This paper will establish that Amanuel has an appropriate case for refugee status in the United Kingdom on the basis of a legitimate claim for political asylum. The analysis that shall provide the underpinning for this legal conclusion is developed upon the following framework – a summary of the salient facts extracted from the scenario as presented; a review of the applicable international, European Community and United Kingdom conventions, statutes, regulations and case law that govern such claims; a critique of the Home Office position that is provided as the UK government opposition to Amanuel’s claim; the consideration of any further circumstances not specifically noted in the scenario that are submitted as operative in similar applications.

It is also submitted that were an appropriately constituted UK immigration tribunal to deny Amanuel’s claim for refugee status based on his asylum claim, Amanuel would properly qualify for the alternative relief of a temporary stay based upon humanitarian reasons in accordance with UK law.

It is noted that while there is a graphic quality to the facts, care as been taken to approach the issues as clinically and as dispassionately as possible. There is merit in the Home Office representation that on an international scale, the present case is not nearly the most serious of matters; asylum applications generally fit between a range of pure ‘political’ disagreements with a particular regime, to the wholesale displacement of peoples, acts of genocide and systematic abuses directed at identified groups within a particular country. Notwithstanding the relative lesser degree of physical harm experienced by Amanuel and his hear family, it is contended that the cumulative effect of the events presented provide an appropriate basis for asylum in the UK.

II. The relevant facts

The following facts are extracted from the scenario and presented as those essential to the legal issues framed by the statutes and the accompanying jurisprudence. Where an element of the scenario is not highlighted, such as Amanuel’s status as a law student, it is presumed to be irrelevant to the asylum analysis.

(1) Ethiopia has a lengthy history of political unrest, prolonged sectarian violence and general national disharmony. It is a nation of extreme poverty where ruling parties are dictatorships that have generally have maintained control either as direct instruments of the military or otherwise backed by military rule. Amanuel’s claim must be assessed in the context of this history; it is not an isolated example. The ongoing conflicts in neighbouring Eritrea have produced an additional humanitarian burden, as thousands of Eritreans fleeing their nation’s civil war have fled to Ethiopia as refugees.

(2) Political asylum as a component of refugee claims has become an increasingly common aspect of this process throughout the world. The UK and European case law cited in this paper are only a representative sampling of the larger body of jurisprudence that considers this complex issue. Further, Ethiopian refugee claims made to the UK have been a subject of specific Parliamentary concern; over 450 Ethiopian claimants were denied status in 2007.

(3) For the purposes of the present analysis, the Ethiopian Democratic Party (EDP) is presumed to be a legitimate political organization, i.e. one that is democratically constituted, with a party constitution or similar normal position that disavows terrorism or similar methods that are contrary to international law. Amanuel is not an applicant whose background or political involvement would otherwise disqualify him from the accepted definition of refugee.

(4) It is accepted that the EDP constitute a political opposition target for the Ethiopian government. Amanuel and his family are bona fide members of the EDP and their personal political convictions are legitimate self-expression; the actions undertaken by Amanuel in the course of his dealings with the government and its police arms are not a contrivance created to secure asylum; as noted below, some of the actions such as attending at a police station to complain may have been foolhardy, but they were not manufactured asylum seeking grounds.

The circumstances surrounding the disappearance of Saleh are consistent with this position. However, these particular facts only corroborate Amanuel’s position (recognising they are largely hearsay assertions) , as opposed to constituting ‘stand alone’ persuasive evidence of the risks faced by Amanuel and his family in Ethiopia.

(3) The cumulative effect of the events in 2006 concerning the house search by the Ethiopian police is also supportive of Amanuel’s position. As with the poorly corroborated evidence of Saleh’s disappearance, the weight to be attached to the single incident involving the search of Amanuel’s family is limited. This proposition is advanced in recognition that the official reason for the search is a seemingly dubious pretext, but the acts of threatened and actual violence directed to Amanuel, his mother Mary and his young sister are themselves not sufficient grounds on which to build a refugee cliam. The totality of the circumstances is important to the analysis provided below.

(4) The arrest and beating of Amanuel for his comments concerning the Ethiopian Constitution are relevant on two distinct bases. The first is that Amanuel’s ability to freely express himself concerning the scope of constitutional protection is very limited; the statements that he made were legitimate self-expression in any Western democracy, a fact that is also not determinative of the issues. However, by being labeled a criminal and opponent of the governing regime is evidence that Amanuel’s long term safety is directly related to his political views.

There is a second and insidious element to this portion of the scenario. It may be concluded that given the swift official response to Amanuel’s comments made in the relative obscurity of a law class, the government are monitoring his words and actions. This circumstance is consistent with someone who is now a targeted political opponent, and when taken together with the other facts identified in the scenario, these circumstances provide a compelling prima facie factual basis on which to consider the legal elements of the asylum application.

III. The Legal Framework

As noted in the Introduction, the legal framework against which the identified facts must be applied has three constituent elements, the relative importance of each to a UK application is considered below. These elements are the International law; the applicable EU provisions; UK statutes and related case law.

(1) International law – the United Nations Convention

The convention is a component of international law that has been incorporated by specific reference into EU and UK law. The definition of ‘refugee’ is central to Amanuel’s position; he must establish that he has a “well-founded fear” of persecution that is a result of his political opinions; he must also establish that he is unable to obtain the requisite protection of his rights in Ethiopia from the domestic authorities.

(2) European Union refugee provisions

The EU provisions concerning asylum and refugee status are consistent with the general UN approach. In recent years, a significant body of EU case law has developed concerning the distinction between an asylum seeker and economic migrants. The Hague Programme has four distinct elements, of which the ‘qualification Directive’ is the most pertinent to Amanuel’s case.The central theme of this jurisprudence has been the stated fear that bogus asylum seekers will subvert the legitimate asylum claims; the EU approach is therefore directed to the prevention of illegal immigration that is cloaked in refugee clothing.

The ECHR provides a clear prohibition against the forced return of any person to their country of origin by a member state where the subject may be detained or tortured for their political views. By virtue of the Human Rights Act, 1998, this provision is submitted as operative in UK law.

(3) The UK Nationality, Immigration and Asylum Act (NIA) and the relevant case law

As a general proposition, the UK applies the UN Convention definition of refugee as stated above.The NIA also provides that an asylum claim must be made as soon as reasonably possible upon the claimant’s arrival in the UK. It is noted that not only has Amanuel evidently complied with this provision, he brings proverbial ‘clean hands’ to his application, in contrast to asylum seekers who make their applications based on false travel documents or whose application is advanced after they are held by UK authorities for failing to comply with entry provisions.

A large subset of the UK case law decided in the past 15 years on refugee issues has centred on the overarching question of ‘asylum overload’ as a threat to the general stability of UK society.In particular, the Court of Appeal has noted that the often stated “right” to asylum is nothing of the sort. The Court has emphatically determined in a series of decisions that refugee status is not the equivalent of an international passport in the UK, the right extends only to the ability to apply, not the acceptance of the claim by the state.

The UK cases have also delineated the distinction between certain torture and imprisonment for one’s political views on return to the country of origin, versus the degree of risk faced by the applicant of such a consequence. It is noted that as with all other elements of refugee claims, the UK courts do not assess the evidence to an absolute standard. The House of Lord’s definitions as established in the 1988 decision of Sivakumuran are applicable – the fear of persecution must be “well founded”, with a “reasonable degree of likelihood” that the applicant will be subjected to such treatment, not proof beyond a reasonable doubt. The standard must apply whether the subject’s return is voluntary or involuntary.

IV. The Home Office position – a critique

The Home Office position as expressed in the scenario requires careful attention. There are aspects of the position that are frankly illogical; these are specifically noted below. However, as with the general thrust of Amanuel’s’ claim, the best approach to the Home Office views is to determine whether its cumulative effect, like that of the Amanuel claim, provides a persuasive basis on which to reject the asylum application.

The Home Office position at its highest may be summarised as one that acknowledges that Amanuel and his family face a difficult time in Ethiopia given their political views. The Home Office position must not be taken as a sanction or otherwise endorse the methods employed by the Ethiopian government to quell apparent legitimate dissent. For the Home Office, the matter is clearly one of degree. Amanuel’s case, while regrettable in the extreme, does not in its eyes approach the stark circumstances necessary to grant the powerful remedy of asylum.

Implicit in the Home Office position is a recognition that asylum cases are plagued by a lack of third party verification or other independent evidence; it is generally the word of Amanuel as to the degree of his and his families’ difficulties with the government that are at the heart of his case. This is a legitimate concern but not an insurmountable barrier in the present application.

This observation is made in the notwithstanding the patent illogic of elements of the Home Office position. The most obvious of these are:

(i) The Ethiopian governmental ability to keep records is not proof of anything; if an enemy of the state were detained in contravention of international law, it is logical that the prisoner not be listed on an official record

(ii) Amanuel went looking for trouble by attending the police station, yet his pursuit of a complaint is evidence that Ethiopia provides a meaningful complaints process to its citizens

(iii) The apparent acceptance of ‘normal police activity’ in Ethiopia as including a beating or threats of physical violence

However, even with such circumstances stripped away from the Home Office position, the totality of the evidence and the conclusion that Amanuel’s’ case falls short of the requisite legal standard cannot be rejected out of hand.

IV. Other Circumstances

This paper establishes that Amanuel’s application must fall within the ambit of current UK refugee law. In the alternative, if he were to be unsuccessful in his application on the basis that the evidence tendered is not sufficiently compelling or it otherwise lacks sufficient third party verification, Amanuel has established that on a humanitarian basis he ought to be permitted a temporary stay on humanitarian grounds.

Taken in totality, notwithstanding questions of sufficiency, there is no question that Amanuel faces a threat to his personal safety if he were compelled to return to Ethiopia. The immediate government response to his in-class opinions concerning the Ethiopian Constitution is powerful evidence in this respect.

V. Conclusion

It is submitted that no single incident as alleged by Amanuel in the present scenario will provide a sufficient factual basis on which a viable asylum application can be advanced under UK law, a jurisprudence that encompasses the relevant provisions of UN and EU asylum law.

When the facts are assessed in totality, it is submitted that Amanuel should succeed with his refugee claim. Whether his action in provoking the local government as discussed were foolhardy is not a disqualification of his claim. A plain and uninterrupted linkage can be made between his political views and the likely harm that will befall him if he must return to Ethiopia.

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Contemporary Issue

The 2007 criminal case of R v Niehus, criticism of a District Court Judge Marie Shaw by State Upper House Member of Parliament Dennis Hood.

Question

Is Judicial Independence jeopardised by State Members of Parliament who publicly criticise the sentencing handed by Criminal Court Judges?

Judicial Independence is crucial to the operation of a democratic society, leaving little debate that an independent judiciary is the “fragile bastion” in our democratic system of government. Thus judges, when presiding over cases, are entirely free from any intrusion or intimidation executed by external forces.

The Westminster System, implemented from Britain, ensures the courts have the confidence of the community and all cases provide an outcome exclusively on merit, as Michael O’Connell, Victims of Crime Commissioner (Appendix 3) states: “The Judiciary shall decide matters due to impartiality on the basis of facts.”

However, questions have been raised whether judicial independence is jeopardised by external forces publicly criticising a judge’s verdict. One such example occurred when State Upper House Member of Parliament, Dennis Hood, publicly attacked District court Judge Marie Shaw’s final ruling in the 2007 criminal case of R v Niehus, prompting an order for her dismissal.

David Swain, Retired Chief Magistrate (Appendix 2) reports, “Judicial Independence is a vital part of the Westminster System.” To guarantee absolute judicial independence and uphold the confidence of the community, the judiciary must have complete separation from both the Legislative and Executive arms of Government, and any other external political forces. Accomplishment of this is achieved in a number of ways; first, Judges are appointed by the Executive arm and dismissed by the Legislative arm, to avert the chance of one arm of Government grasping complete control over the judiciary and Section 72 of “The Australian Constitution Act” (1900) specifies the dismissal of a judge can only occur on two grounds; misbehaviour and incapacity.

Secondly, a permanent tenure is provided, on the grounds a judge must retire at the age of 70, with the exception of Family Court Justices, who have an obligation to retire at 65. This assures judges cannot be removed if their decision does not support the government’s request, as Peter Hasket, Retired Magistrate (Appendix 4) states, “Even if a number of people don’t want them, their position stays the same.” Thirdly, a fixed remuneration is guaranteed, preventing both salaries from being diminished throughout tenure and manipulation occurring. However, salaries can be increased by government on objective factors.

Fourthly, judges are ensured judicial privilege, allowing them to have freedom of speech while presiding on the bench and delivering verdicts. Thus judges cannot be threatened by criminal prosecution or sued for vilification, a fact David Swain (Appendix 2) suggested “one can take comfort in.” Finally, individuals who are selected for judicial office must have suitable training and credentials in the law, and no discrimination is to occur on the basis of sex, colour, race, status, religion or political influence.

The Honourable Justice John Basten- Judge of the Supreme Court New South Wales (2005:1) reports, “Principles of open justice play an important part of our courts.” Justice is governed in an open court, where the public has complete access, although exceptions occur, for example, courtrooms can only provide for a small number of spectators. Furthermore, for those who do not attend, sentencing remarks are available via the Internet, and significant cases are usually covered in the print and electronic media.

This then ensures openness, as it is vital in promoting the public’s confidence. However, information handed to the public via the media raises questions to the extent of its reliability. David Swain (Appendix 2) reports, “99% of all cases, which go through the courts don’t get any media attention.” This indicates that the media has one priority, which is to attract public attention and have general appeal, in order to sell papers. As well as this, The Honourable Justice John Basten (2005:1) states, “reporters who cover trials often move from one court room to another during the course of a day, obtaining only an incomplete picture of what is happening in any particular case.”

Along with media attention, public criticism is also created. “Sentencing reflects the views of the community, because in effect, they are prescribing parliament’s will,” states Michael O’Connell (Appendix 3). However, it is impossible to please all citizens, thus generating criticism of certain cases, usually through the media. A recent significant case, which generated much public criticism and uproar, was the 2007 criminal case of R Vs Niehus, ruled by District Court Judge Marie Shaw. Dennis Hood, publicly attacked her final ruling, and called for her removal due to the leniency of her suspended sentence. Dennis Hood (2007:1) questioned, “What possible reason can there be to allow Judge Shaw to continue to hear cases and hand down grossly inadequate sentences to hardened criminals?”

Christopher Michael Niehus received a three-year suspended jail sentence, upon the condition that he entered a bond of $400 to uphold good behaviour for a two year period and perform 150 hours of community service, in respect of four counts of unlawful sexual intercourse. Marie Shaw (2007:3) states, “the matters which favour suspension to which your counsel has referred, are that you are a person of previous good character, you are someone who, both before these offences and subsequently, has engaged in age appropriate relationships.

In my view, you are unlikely to offend again.” Marie Shaw’s position as District Court Judge, entitles her to consider all facts and circumstances and provide an outcome exclusively on merit, which she has confidently done. However, Dennis Hood completely disagreed with Marie Shaw’s suspended sentence, complaining to the media that, “abusing a young girl, a 14-year-old girl” resulted in “a sentence of 150 hours of community service.” Denis Hood’s actions of publicly calling for Marie Shaw to be dismissed raised the question to the extent of criticism, which should be allowed without the risk of jeopardising Judicial Independence. David Swain (Appendix 2) states, “Every now and again one or two people, particularly politicians, turn to their favour, and politically ‘go too far,’ which can arguably be an attack on independence.”

Beneficial criticism of the Judiciary is welcomed and appropriate as it allows public scrutiny and maintains the confidence of the community through integrity. As well as this freedom of speech in our democracy is a fundamental right. Nevertheless, as Michael O’Connell (Appendix 3) states, “the criticism, as in any situation, should focus on the issue, not the individual,” Denis Hood’s public ‘out-burst,’ was directly aimed at Judge Marie Shaw, ultimately causing considerable distress and embarrassment, Marie Shaw (2007:1) states,” I was bitterly disappointed that he attacked my fitness for office on the basis of inaccurate statements.”

Soon after Dennis Hood’s public ‘outburst,’ leading judges raised alarms that Judicial Independence was under fire. Chief Justice John Doyle and Chief Judge Terry Worthington stated, “Mr Hood’s push for her removal is contrary to constitutional principle and threatens to undermine the judiciary’s independence, also that any attempt to remove a judge could lead to inappropriate pressure on judges to operate in a way acceptable to politicians and any threat to remove a judge from office because of criticism of a judge’s decision sets a dangerous precedent and who will be threatened next?”

Despite maintaining the integrity of its independence, the judiciary understands it will never be immune from public criticism, as it is an essential component of our democratic system of government. David Swain (Appendix 2) states, “The judiciary is in the same position as any other public institution. It must expect, and should be prepared to deal with, criticism.” However, reforms need to be made in Marie Shaw’s case, where public criticism was undoubtedly incorrect and taken to a level, which may have jeopardised her independence.

Any public criticism, of any arm of government, should always be of benefit to that arm of government. The criticism must purely be aimed at the issues involved and never a direct attack on an individual. In regards to certain views of ‘soft sentences,’ by politicians as such, the official method of parliamentary review should be employed, not via media outlets. As well as this Michael O’Connell (Appendix 3) states, “(I) rely on victims’ views. In general, victims who contact me feel that the sentence imposed was too lenient- in other words, they expected a harsher sentence.”

I am confident that the question posed: ‘Is Judicial Independence jeopardised by State Members of Parliament who publicly criticise the sentencing handed by criminal court judges?’ can be answered in the negative. Dennis Hood’s public ‘outburst,’ was certainly demoralising for Her Honour Judge Shaw, which moved Hood to apologise and retract his statements. Dennis Hood stated in his public apology, “I recognise that by making these assertions I have caused considerable distress and embarrassment to Judge Shaw.” Although the criticism was unjust, Michael O’Connell (Appendix 3) reports, “it will not affect the general sentencing practices.” Our Attorney-General often comments that, “courts in common law countries have been independent of the Parliament since the 1600’s.”

Our current sentencing system works effectively in Australia. There should be no need to make any reforms to the current system as any changes may in fact place the community’s trust in the overall system at risk. Our current judicial practices must be preserved to ensure that judges and the overall judicial system are preserved and the so called “Fragile Bastion” is at all times protected.

Judges are accountable for their overall actions and the decisions that they make. The issue is that parliamentarians need to be careful that when criticising judges it is done lawfully. As it was clearly stated by David Swain (Appendix 2), “The sentencing process is conducted in a manner that does reflect the values, morals and concerns of the community.” We need to trust in our current structures of being able to maintain Judicial Independence and preserve the community’s confidence in the legal system.

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