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The Financial Ombudsman Service (“FOS”) is stated to be ‘The official independent expert in settling complaints between consumers and businesses providing financial services.’ It is a public body that was established by Parliament and is authorised to deal with a very broad range of complaints in areas ranging from banking and insurance, to loans, credit and hire purchase and savings and investments. The standard it applies when determining complaints, is what in the opinion of the ombudsman is fair and reasonable in all the circumstances of the case ; with the ability to award ‘fair’ compensation for loss or damage. Indeed, the FOS has come to enjoy a considerable reputation due to its efficiency, independence, and impartiality when dealing with complaints, dealing with almost a million enquiries, settling over 150,000 disputes a year, and settling a third of cases within three months. In fact, in the latest six-monthly (between 1st January and 30th June 2010) complaints data released on individual financial businesses, the FOS received 84,212 new complaints and upheld an average of 44% of complaints in favour of consumers.

The FOS has therefore demonstrated a strong complaints-handling performance with cases usually settled informally. Moreover, consumers are still free to reject a FOS decision and take their case to court instead if they so wish. Given such credentials, it might seem to be the case that consumers having complaints relating to insurance are well protected under the FOS regime. However, it is submitted that the draft Consumer Insurance (Disclosure & Representations) Bill (the “Bill”) recommended by the Law Commission (“LC”) is of significant practical benefit to consumers, and brings a great deal to the table in relation to insurance contracts. In fact, if enacted the Bill would represent a watershed in the law governing disclosure and representation in consumer insurance contracts. Inherent difficulties stem from the fact that this area of law is governed by archaic legislation in the form of the Marine Insurance Act 1906 (“MIA 1906”). The main difficulty is that the MIA 1906 stipulates that ‘A contract of marine insurance is a contract based upon the utmost good faith, and, if the utmost good faith be not observed by either party, the contract may be avoided by the other party.’

In fact, this principle of utmost good faith or ‘uberrimae fidei’ is of antiquated origin and imposes very strict disclosure requirements on the part of the assured to an insurance contract. Thus, the assured must disclose ‘every material circumstance which is known to the assured’ , with the assured being ‘deemed to know every circumstance which, in the ordinary course of business, ought to be known by him.’ Furthermore, material circumstance is expounded as including ‘Every circumstance is material which would influence the judgement of a prudent insurer in fixing the premium, or determining whether he will take the risk.’ The relevant test was elucidated upon further in Pan Atlantic Insurance Co Ltd & Another v Pine Top Insurance Co Ltd where the House of Lords held that the test of materiality of disclosure required any relevant circumstance to have had an effect on the mind of a prudent insurer in weighing up the risk, i.e. objective in nature. However, a certain degree of subjectivity was also attached to the test in that it was also held that an insurer would only be entitled to avoid an insurance policy if the material non-disclosure or misrepresentation had actually induced the making of the policy. Finally, every material representation made by the assured or his agent to the insurer prior to the making of a contract must be true or the insurer may also avoid the contract, even for honest mistakes leading to untrue material representations.

Consequently, if the assured fails to disclose all such material information the insurer may avoid the contract and refuse to pay out for any claim under the insurance contract. Thus, whilst this strict duty of disclosure may have been pertinent for commercial merchants at the turn of the twentieth century, it is difficult to justify the policy behind its continuation into a twenty-first century replete with a plethora of insurance contracts taken up by ordinary lay consumers. Its often harsh and unfair effects are exemplified by the case of Lambert v Co-operative Insurance Society Ltd. In Lambert, the Court of Appeal held that an insurer was entitled to avoid an insured’s policy on the basis that the insured had failed to inform the insurers that her husband held previous convictions, even though she had not been asked this. Nevertheless, the convictions were held to constitute material circumstances which should have been notified to the insurers under the ‘prudent insurer’ standard. Even whilst acknowledging the point in law proved by the defendants, the judge professed that they would be acting decently if they were to pay her nonetheless, even adding that ‘It might be thought a heartless thing if they did not, but that is their business, not mine.’

Even in 1975 one can see the excessive nature of the uberrimae fidei standard acting to the detriment of the innocent party. It is one thing for Parliament to set out insurance requirements precluding any misrepresentation at a time when the insurance market was in its infancy (following the Lloyd’s Act, 1871); it is quite another to continue to impose such draconian standards on millions of ordinary consumers a century later. Indeed, as recognised by the LC: ‘We think the time has now come to update the law to meet the needs of a different century’ ; with it identifying five main problems with the existing law. Firstly, it found that consumers were only able to obtain justice from the FOS and not from the courts, as the courts were forced to apply the unfair rules. Moreover, the LC stated that the compulsory jurisdiction of the FOS was limited to awards of ?100,000. This effectively sets a dual standard depending on whether the consumer is rich or not, with those individuals insured for figures in excess of ?100,000 (e.g. buildings or life insurance) forced to take their chances in courts with much stricter standards. The LC noted the FOS would decline to hear cases which required cross-examination of witnesses, so cases venturing into complex areas or involving third parties again ostracised consumers.

Secondly, the LC considered the current rules were ‘unacceptably confused’, with many consumers not realising a right to complain to the FOS, and with the ‘resulting muddle leading to a loss of confidence in the insurance industry’. Thirdly, the LC believed the legal system penalised some vulnerable groups and cited problems experienced by older individuals, those with criminal convictions , or even those with Multiple Sclerosis (owing to early but undiagnosed symptoms leading to a rejection of critical illness insurance claims). Fourthly, the LC believed the system imposed an inappropriate role on regulators, as the FOS and Financial Services Authority were forced to effectively act as policy and rule-makers. Additionally, the courts were systematically forced to reach unfair decisions. Finally, in the face of across-the-board European Union harmonisation, it stated that it was ‘difficult to justify the present incoherent layers of law to an international audience.’

The LC’s recommendation for reform of the onerous legal position ‘in which the strict letter of the law had been overlain by successive layers of self-regulation, FSA rules and FOS guidelines’ , took the form of the recommended enactment of the Bill. Under the Bill, a consumer insurance contract (“CIC”) is defined as one entered into ‘…by an individual wholly or mainly for purposes unrelated to the individual’s trade, business or profession’. The Bill replaces the duty of utmost good faith by instead stipulating that: ‘It is the duty of the consumer to take reasonable care not to make a misrepresentation to the insurer’ in any disclosures or representations made by the consumer to an insurer prior to entering into, or varying, a CIC. ‘Reasonable care’ is said to be determinable ‘…in the light of all the relevant circumstances.’ This includes things such as ‘the type of consumer insurance policy in question, and its target market’ ; the insured’s produced or authorised explanatory materials or publicity ; the clarity and specificity of the insurer’s questions ; and ‘whether or not an agent was acting for the consumer.’ Also the Bill, prevents contracting out of these obligations by putting the consumer in a worse position , or the use of ‘basis of the contract’ clauses, namely clauses which convert consumer representations into warranties, breach of which automatically terminates insurance cover.

The Bill also provides for balanced insurers’ remedies for different types of misrepresentations. For example, an honest and reasonable misrepresentation by the assured does not affect the validity of the insurance contract whereas a deliberate or reckless qualifying misrepresentation allows the insurer to avoid the contract, refuse any claim and keep any premiums paid (unless good reasons exist why they should not be kept). However, the insurer’s remedies for any careless representations are based on what the insurer would have done if the consumer had complied with the reasonable care duty. This ranges from avoiding the contract to proportionate reduction of a claim (because the insurer would have charged a higher premium). Although widely accepted, the proposed reforms are not without criticism. For example Soyer has argued that the reasonable assured test for materiality is nebulous and has not been previously tested; that the availability of ‘proportionate’ remedies may lead to uncertainty as well as being open to criticism from theoretical and economic perspectives; and that statutory control is not practical and undesirable.

Nevertheless, it is submitted that such criticisms are weak in the face of the currently manifestly unfair application of dated insurance law principles which are adversely affecting consumers. The law is clearly in need of reform and the proposals set out in the Bill clearly represent a fairer, more balanced and transparent process relating to consumer insurance contracts. Butcher has even suggested that ‘…to talk of insurance contracts as being contracts of good faith tends to be either useless or positively harmful to a coherent development of the law.’ He considers good faith to be a redundant concept, with rules now in place which have gone a good deal further than necessary to maintain good faith relations, and which have provided insurers with a weapon which produces the opposite results of what good faith would demand. Whilst it is true that the service provided by the FOS is currently invaluable to thousands of insurance consumers across the UK, it cannot be a viable substitute for properly focused and balanced reforms. The Bill achieves this and it is submitted there is no reason to delay its enactment.

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Steyn, J. (1992) ‘The role of good faith and fair dealing in contract law: a hair-shirt philosophy?’ Arbitration, 58(1), 51-56.

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The Financial Ombudsman Service (2010a) [Online] Available from: http://www.financial-ombudsman.org.uk/. [Accessed 1st December 2010].

The Financial Ombudsman Service (2010b) ‘About us.’ [Online] Available from: http://www.financial-ombudsman.org.uk/about/index.html. [Accessed 2nd December 2010].

The Financial Ombudsman Service (2010c) ‘ombudsman releases latest complaints data on individual financial businesses.’ (14th September) [Online] Available from: http://www.financial-ombudsman.org.uk/news/updates/complaints-data-Sept-10.html. [Accessed 2nd December 2010].

The Law Commission (2009) Consumer Insurance Law: Pre-Contract Disclosure and Misrepresentation. Law Com No 319, Cm 7758, SG/2009/255 (December).

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Introduction

The European Court of Justice (ECJ) devised the direct effect doctrine to give international treaties EU legal effect. The doctrine permits individuals to rely on European law in proceedings taken against EU Member States. This paper discusses selected direct effect cases decided since the seminal ECJ Van Gend en Loos decision to highlight persistent direct effect ambiguities and contradictions. Suggested law reforms are also provided in the Conclusion.

Historical Background

In Van Gend en Loos, the ECJ determined it did not have jurisdiction to decide whether international law can override domestic law. The Treaty was only intended for interstate compliance; direct effect is contrary to such intention. The ECJ decided that EU treaties must promote a ‘community not only of states but also of persons, [requiring] participation of all persons,’ with ‘community law [intended] to confer upon individuals any rights which form part of their legal heritage.’ In Van Gend en Loos, the ECJ explains direct effect principles as (i) subject measure must be clear; (ii) unconditional; (iii) require no additional implementation measures; (iv), State or institutional discretion is not permitted. Directives may have vertical or horizontal effect. Vertical direct effect permits enforcement against a Member State, where horizontal effect is individual citizen enforcement against another.

There have been contradictory applications of both the horizontal and vertical direct effect. In Van Duyn, the ECJ found direct effect where the State obligations were sufficiently clear to assessed by a court. In contrast, Ratti provided that a similar directive only operated directly when the implementation date had passed; ‘indirect effect’ applied to bypass this outcome. Regulations also may have horizontal and direct effects. Their implementation date does not hinder their operation, as Article 288 provides regulations have (i) general application, as (ii) binding and directly applicable in all Member States. This approach is confirmed in Commission v Italy, where regulations were not to be subject to additional implementation requirements.

Ambiguous Application of the Doctrine

The issue of the legality of horizontal direct effects has attempted to be bypassed in various cases. In Von Colson, the ECJ avoided it by finding that domestic law should be interpreted ‘harmoniously with’ international law, or as close as reasonably practicable. If application of the law would lead to the substantially the same Directive outcome, the ECJ will look at whether the horizontal direct effect should be allowed, and labelled this the ‘indirect effect.’ This idea was supported in later cases, for example in Marleasing, where the ECJ decided that domestic laws enacted before or after the Directive would nevertheless require implementation, even if national law does not relate to the Directive and is not enacted to specifically implement it.

The doctrine also allows remedies for individuals in situations where a State has not appropriately implemented laws to properly reflect the Directive as the EU intended it to be applied. It is the responsibility of the Member State to certify that its institutions, authorities and court systems are following the rules of the Directive, therefore domestic courts can be sure the laws are applied to reflect their intended meaning. Discerning the ‘intended meaning’ is difficult, as the ECJ often will not recognise a horizontal effect expressly, only impliedly by permitting a ruling to bypass the intention of the Directive by overriding the conflicting domestic legislation. This means a Directive can disapply a domestic law, permitted in CIA Securities v Signalson, where particular provisions in Belgium were found invalid as they did not properly follow the Directive.

Conflicting Judicial Approaches

The ECJ has creatively used methods to either ensure the doctrine can be applied. For instance, in the Foster case, the court formulated a ‘reverse vicarious liability’ decision. This was used to find subsidiaries of the Member State responsible for failures of the domestic legislature, which becomes confusing given that at the same time, a private citizen also does not influence the implementation of a Directive but cannot be found liable. Contrastingly, in Ratti, the ECJ applied estoppel to hold a State liable and obliged to give effect to the Directive appropriately, because if this does not occur, citizens cannot rely on it at a domestic level. The State which does not correctly give effect to it is committing an equitable wrong against individuals. Complications also become evident in Marshall and Defrenne (No 2). In Marshall, the ECJ held a Directive only bind Member States, and invalidated any horizontal direct effect. However, in Defrenne, it held that Article 157, directed at Member States, could also be applied horizontally against individuals.

As mentioned, the Van Duyn case caused ambiguity as the ECJ found that Article 45 could be directly effective yet did not meet the requirement of being unconditional, because the power of the Member States was regulated judicial control. However, since no treaty has ever been found to not be regulated by judicial control, the Van Duyn case therefore removed the limitation of unconditionality. The second requirement of clarity was applied flexibly in Defrenne (No 2), as the court held that Article 157 was directly effective due to its dual meaning, the first being a general interpretation based on a ‘mere aspiration’ of gender equality, the second being a specific restriction disallowing unequal remuneration in the workforce.

The ruling in Marshall has caused the most controversy in recent times, as the court held that Directives will only have a direct effect on Member States and not in litigation between private individuals. However, the ECJ then used various methods to avoid its own ruling, allowing Directives to have a de facto effect with the same outcome. Additionally, the ECJ interprets ‘Member States’ inconsistently to allow them to be subject to vertically effective Directives in some situations and not others. This was shown in Foster v British Gas, where the court held an authority ‘in any legal form’ with the duty of providing any public service ‘under control of the State’ held powers beyond regular rules imposed on individuals and hence would be bound by unimplemented Directives.

Recent Commentary

Developing from the original restrictions imposed in Van Gend en Loos, various approaches have been adopted by the courts. Academic commentary posits that European law must become less influential and permit domestic courts to have more discretion in the event of conflicting national law, especially if the provisions in question are from local constitutions. To begin, there are established criteria to be met before any EU legislative provision can take a direct effect, which is carried forward from the original decision in Van Gend en Loos. The second point developed from the Marshall case it that the Directives can only legally have a vertical direct effect; the horizontal effect is allowed impliedly on some occasions. Problematically, legislation in Member States do not contain any guiding regulations on these limitations, possibly due to the ongoing inconsistent approach taken by the ECJ. However it should be noted that the first type of restriction has been flexibly applied recently and the Van Gend en Loos principles are less strict, while still broadly applied.

Considering the doctrine beyond the level of Member States has also led to inconsistencies with application to individual citizens. For example, obligations are often imposed to restrict individuals through use of the de facto horizontal direct effect, such as free-market regulations, although these were never intended by parliament apply to private individuals. The case of Alemo-Herron outlined this problem, where the ECJ addressed a Directive on transferring of undertakings contained in Article 16 of the Charter which permits free formulation of contracts while conducting business. The interpretation under international law overruled that of the domestic application of contractual freedom Academics say this unfair application should be avoided, and greater domestic judicial discretion permitted by mandating a margin to favour local courts who are applying the EU law if the international application will adversely affect fundamental rights.

Conclusion

The ECJ doctrine of direct effect has applied inconsistently and ambiguously at various times by the Court. These inconsistencies have led to the doctrine being legitimately critiqued as a political tool to strengthen the power of European Union laws over sovereignty in the domestic sphere. It has led to ongoing problems within the judicial system deriving from the criteria of Van Gend en Loos, which saw the ECJ bypass specific discussions by State Representatives stating they did not intend for the Treaty to be distinguished from other international treaties, and did not accept that it should provide rights to citizens to enforce at a domestic level either.

There is now apparent ongoing ECJ application of de facto rules that conflict with national legislation, where inconsistent circumventions sanctioned by the ECJ do not uphold the objective of international courts to prevent application of a horizontal effect. By removing the original restrictions on the doctrine, the local court system may be given more discretion to apply provisions fairly between individuals and Member States, and a flexible approach will allow the doctrine to be used for the benefit of both individuals and organisations seeking effective enforcement.

Cases

CIA Security International SA v Signalson SA and Securitel Sprl [1996] ECR 1-2202.

Costa v. E.N.E.L. [1964] ECR 1141.

Defrenne v Sabena (No 2) [1976] ECR 455

Foster and Others v British Gas plc [1990] ECR I-3313.

Francovich and Bonifaci v Italy [1991] ECR I-5357.

Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) [1986] ECR 723

NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1.

Publico Ministero v Tullio Ratti [1979] ECR 1629.

Van Duyn v Home Office [1974] ECR 1337.

Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891.

References

Betlem, G. ‘The principle of indirect effect of community law,’ ERPL, 1995, Vol. 3, Issue 1.

Betlem, G. and Nolkaemper, A. ‘Giving Effect to Public International Law and European Community Law before Domestic Courts. A Comparative Analysis of the Practice of Consistent Interpretation,’ European Journal of International Law, 2003, Vol. 14.

Chalmers, D., Davies, G. and Monti, G. European Union Law (2nd ed., Cambridge University Press: 2010).

Craig, P. and de Burca, G. European Union Law: Text, Cases, and Materials (5th ed., Oxford University Press: 2011).

Mastroianni, R. ‘On the distinction between vertical and horizontal direct effect of derivatives: what role for the principle of equality?’, 1999, EPL, Vol. 5, pp. 417-38.

Nolkaemper, A. ‘Revisiting Van Gend En Loos,’ Jean Monnet Working Paper 06/14, New York School of Law, 2014, available online at: http://www.jeanmonnetprogram.org/papers/14/documents/JMWP06Nollkaemper.pdf

Robin-Olivier, S. ‘The evolution of direct effect in the EU: Stocktaking, problems, projections,’ International Journal of Constitutional Law, 2014, Vol. 12, Issue 1, pp. 165-188, available online at: http://icon.oxfordjournals.org/content/12/1/165.full

Sebba, I. ‘The Doctrine of ‘Direct Effect: A Malignant Disease of Community Law.’ Legal Issues of Economic Integration, 1995, Vol. 22, Issue 2, pp. 35–58.

Footnotes
Ilan Sebba, ‘The Doctrine of ‘Direct Effect: A Malignant Disease of Community Law.’ Legal Issues of Economic Integration, Vol. 22, Issue 2, 1995, p. 35.
Van Gend en Loos, above n 2.
Ibid, at [20].
Ibid, at [21].
NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen (‘Van Gend en Loos’) [1963] ECR 1.
Gerrit Betlem & Andre Nollkaemper, ‘Giving Effect to Public International Law and European Community Law before Domestic Courts. A Comparative Analysis of the Practice of Consistent Interpretation,’ European Journal of International Law, 2003, Vol. 14, p. 569.
Van Duyn v Home Office [1974] ECR 1337.
Publico Ministero v Tullio Ratti [1979] ECR 1629, at para. 23.
Treaty on the Functioning of the European Union (TFEU), Article 288.
Commission v Italy [1973] ECR 101, at para. 17.
Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891.
R. Mastroianni, ‘On the distinction between vertical and horizontal direct effect of derivatives: what role for the principle of equality?’, EPL, 1999, Vol. 5, p. 417.
Marleasing SA v La Commercial de Alimentacion SA [1990] ECR 1-4135
Von Colson, above n 8, at [3].
G. Betlem. ‘The principle of indirect effect of community law’, 1995, ERPL, Vol. 3, No. 1.
CIA Security International SA v Signalson SA and Securitel Sprl [1996] ECR 1-2202.
Foster and Others v British Gas plc [1990] ECR I-3313.
Ibid.
Publico Ministero v Tullio Ratti [1979] ECR 1629, at para. 23.
Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) [1986] ECR 723.
Defrenne v Sabena (No 2) [1976] ECR 455.
Van Duyn, above n 8.
Ibid.
Defrenne, above n 22.
Marshall, above n 21.
Sophie Robin-Olivier, ‘The evolution of direct effect in the EU: Stocktaking, problems, projections,’ International Journal of Constitutional Law, 2014, Vol. 12, Issue 1, available online at: http://icon.oxfordjournals.org/content/12/1/165.full
Foster, above 18.
Paul Craig and Grainne de Burca, EU Law: Text, Cases, and Materials (5th edition: Oxford University Press: 2011), p. 188.
Van Gend en Loos, above n 2.
Marshall, above n 21.
Robin-Oliver, above n 26.
Ibid.
Case C-426/11 Alemo-Herron and others, July 18, 2013, unreported.
Directive 2001/23 of March 12, 2001: approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, 2001 O.J. (L 016).
Damian Chalmers, Gareth Davies and Giorgio Monti, European Union Law (2nd ed., Cambridge University Press: 2010), p. 288.
Andre Nolkaemper, ‘Revisiting Van Gend En Loos’, Jean Monnet Working Paper 06/14, New York School of Law, 2014, available online at: http://www.jeanmonnetprogram.org/papers/14/documents/JMWP06Nollkaemper.pdf, p. 5.
Ibid, p. 6.

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A. Maria Haines has recently converted to the muslim faith and has now insisted on wearing the appropriate religious dress which requires Maria to wear clothing revealing only her eyes. Customers have refused to deal with her – Maria is the sole Receptionist as BIS and they have told her that they will have to terminate her contract.

If BIS decides to terminate Maria’s contract, then it is likely that she will commence proceeding against BIS for unfair dismissal, pursuant to section 94(1) of the Employment Rights Act 1996 (as amended). It is likely that the primary basis for her claim will be that her right to freedom of religion, under Article 9 of the Human Rights Act 1998, has been infringed by her employer’s decision to dismiss her for wearing her religious head veil. Article 9(1) of this Act provides that, “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.” (Art. 9(1) HRA 1998) Maria will likely argue that in wearing a veil she is publically manifesting her religion in practice and observance. She may even try to rely upon the recent House of Lords decision in the case of R (Begum) v Governors of Denbigh High School [2006] UKHL 15 to support this argument. By virtue of section 98(1) of the Employment Rights Act 1996, the burden of proof will rest upon BIS to satisfy the Tribunal, on the balance of probabilities, that the dismissal was not unfair.

Maria may also argue that BIS has unlawfully discriminated against her on grounds of her religion and belief, in accordance with regulation 3 of the Employment Equality (Religion or Belief) Regulations 2003. Her argument would likely be that, in dismissing her, BIS treated her “less favourably than [it] treats or would treat other persons.” (Reg. 3(1)(a) EE(RoB)R 2003)

There are several aspects to this claim which present opportunities for BIS to mount a successful defence to these claims: The first argument that BIS might make is that the dismissal in question was not unfair, because the reason for her dismissal “relates to [her] capability… for performing work of the kind which [she] was employed by BIS to do.” (s.98(2)(a) ERA 1996) There is clear evidence here that Maria could not continue as receptionist, because BIS’s customers refused to have any further dealings with her, due to her insistence on covering her face with a religious veil.

BIS can argue that Maria’s rights under Article 9(1) of the Human Rights Act 1998 are not absolute because they are qualified by Article 9(2) of that same Act, which provides that, “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” (Art. 9(2) HRA 1998) BIS can argue that its right to run an effective business is one of the rights against which Article 9 must be weighed and that this latter right must prevail. There is recent and good judicial authority for this proposition; namely, in the case of Copsey v WWB Devon Clays Ltd [2005] EWCA Civ 932 which applied the earlier case of Stedman v United Kingdom (1997) 23 E.H.R.R. CD 168.

Maria might try to rebut this argument and distinguish these authorities on the basis that, in those cases, the employees in question refused to accept offers of alternative employment, although the success of this argument will depend upon whether or not it was viable for BIS to make such an offer in this case. In light of the fact that BIS is only a small company, it may well be the case that there did not, at the time of dismissal, exist any other vacancies for which Maria would have been suitably qualified.

BIS might also try to argue, in light of the fact that Maria has only recently converted to Islam, that her religious beliefs are not sufficiently cogent, serious or important to warrant her reliance on Article 9 of the Human Rights Act 1998; while the success of this argument will fall on the Courts interpretation of the facts, there is judicial authority, at least at the European level, that lack of real or strong religious belief precludes the operation of Article 9 of the European Convention on Human Rights 1950 (Campbell and Cosans v United Kingdom (1982) 4 EHRR 293). A similar argument to this that BIS might try to rely upon is that Maria, in wearing a head veil, was not manifesting her religious beliefs, but was merely motivated to wear religious dress by those beliefs; again, there is judicial authority at the European level to support the validity of this argument (Arrowsmith v UK (1978) 3 EHRR 218).

BIS can distinguish the decision handed down by the House of Lords in the case of R (Begum) v Governors of Denbigh High School [2006] UKHL 15 on the basis that this case concerned the treatment of a student in compulsory full-time education. Both Brooke LJ and Mummery LJ both explicitly declared in this case that the principles in operation were not the same as those applicable in the employment context (Sandberg, 2009:272).

In regard to the argument that BIS’s dismissal constitutes discrimination under regulation 3 of the Employment Equality (Religion or Belief) Regulations 2003: BIS can argue that, in light of the reaction of its customers to Maria’s head veil, requiring her to remove the veil during working hours became a genuine and proportionate occupational requirement, in accordance with regulation 7(2) of the 2003 Regulations (Nairns, 2007:93).

In conclusion, so long as BIS can satisfy the Court that it was not in a position to be able to offer Maria any alternative employment, where she would have been able to continue wearing her religious dress, then it is highly unlikely that any of Maria’s claims will be successful.

B. Josie Rimson has been employed in BIS cafeteria to prepare staff meats. She has noticed that some of the meats and sauces are out of date, but, having raised the issue, was told: “Your job is to make the meals, just get on with it”. She has now heard that some staff are off sick with suspected food poisoning and she is afraid she will be blamed. Repeated complaints to Senior Managers at BIS have been rejected – so now she has reported the problem to Bramley Council. An item on the matter has now appeared in the Bramley Gazette. BIS has decided to discipline her, and have warned that she may be dismissed.

The main issue here is whether or not a dismissal of Josie by BIS would be deemed unfair under the Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998, an Act which inserted into the 1996 Act clause 103A, which provides that, “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.” (s. 103A ERA 1996; s. 5 PIDA 1998)

The term ‘protected disclosure’ is defined by sections 43A and 43B of the Employment Rights Act 1996 (as amended) as, “…any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following— (…) (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (…) (d) that the health or safety of any individual has been, is being or is likely to be endangered (…) (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.” (s. 43A & 43B ERA 1996)

In the present case, it is reasonably clear, on the facts, that the reason Josie reported this matter to the Bramley Gazette was because she felt that her Senior Managers were trying to conceal or, at least, disregard the possibility that the instances of staff poisoning were the result of their consuming out of date food in the staff canteen, in which case section 43B(f) of the Employments Rights Act 1996 would likely be deemed satisfied. It may also be the case that Josie felt, in light of the despondence of BIS’s senior managers, that unless she reported this incident to the Bramley Gazette, the events giving rise to these incidences of food poisoning would repeat themselves in the future, in which case section 43B(d) of the Employments Rights Act 1996 would likely be deemed satisfied. If the Tribunal is satisfied (1) that Josie ‘reasonably believed’ that there had been malpractice on the part of her Senior Managers (Babula v Waltham Forest College [2007] EWCA Civ 174); and, (2) that Josie’s disclosure was the reason for her dismissal (Kuzel v Roche Products Ltd [2008] EWCA Civ 380), then it is highly likely that Josie will be able to bring a successful claim against BIS for unfair dismissal.

BIS might try to argue that Josie is being dismissed for gross negligence, in preparing staff meals using foods which were out of date , and that when the Senior Managers told her “Your job is to make the meals, just get on with it,” they were merely reminding her that it is within her job capacity to make decisions in regard to which food stuffs to use and which to discard. While this argument might have had some merit if Josie’s Senior Managers had commenced disciplinary proceedings after Josie admitted that the recent outbreak of food poisoning was potentially attributable to her having served out of date food stuffs in the staff canteen, the fact that such proceedings were only initiated after the article was published in the Bramley Gazette, renders this version of events highly improbable.

C. Harriet Jameson has recently returned from sick leave following a serious car accident, which required her to have extensive surgery for major facial injuries. The surgery left her with very visible red scarring on her face. BIS has interviewed her and suggested removing her from her post as Manager of the company creche because the children of the employees have refused to attend: they have been having nightmares, and this is affecting attendance of the female employees at work. Harriet has refused her relocation to the personnel Department, claiming discrimination.

The main issue which falls for determination here is whether or not Harriet, if dismissed from her position as Manager of the company creche, will be able to mount a successful claim against BIS for unfair dismissal.

We have been told that Harriet is claiming that she is being discriminated against on the basis of her facial disfigurement. However, in order for this argument to have legal validity, it is necessary that Harriet can satisfy the Tribunal that her facial scarring qualifies her for protection under the Disability Discrimination Act 1995.

For the purposes of this Act, a ‘person with disability’ is defined as follows: “… a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.” (s. 1(1) DDA 1995)

While there is no doubt that Harriet’s purported disability is physical in nature, in order for her to argue that it is a qualifying impairment, she must satisfy the Tribunal that it is having substantial adverse effects, that those substantial adverse effects will likely remain for the long-term and that they affect her ability to carry out normal day-to-day functions or activities (Department for Work and Pensions, 2005:3).

The Guidance issued by the Secretary of State on the definition of disability, pursuant to section 3 of the Disability Discrimination Act 1995 confirms that, with some limited exceptions (e.g. for self-inflicted scarring, piercing or tattoos), bodily scarring or disfigurement will be deemed to have substantial adverse effects on a person’s ability to undertake normal day-to-day activities (Department for Work and Pensions, 2005:6; Adams, 2008:375). To satisfy the ‘long-term’ criterion of the 1995 Act, the scarring must either have been present for 12 months or be likely to remain for that period (Adams, 2008:375). In this present case, while the surgery was only recent, it seems likely, due to its severity, that the scarring will remain for at least this length of time.

Having established that Harriet qualified for protection under the Disability Discrimination Act 1995, it is now necessary to consider whether or not she has been discriminated against on the basis of her disability. ‘Discrimination’ is defined by section 5 of the 1995 Act: “For the purposes of this Part, an employer discriminates against a disabled person if— (a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified.” (s. 5(1) DDA 1995).

While it is certainly the case that BIS has asked Harriet to accept a lateral move on the basis of her disability, BIS will seek to show that this did not constitute discrimination because it was not appropriate for her to remain working with children, in light of the effect that her disfigurement has had on them, in practice. In the opinion of this author, BIS has acted reasonably and proportionately in asking Harriet to relinquish her role as Manager of the company creche and to accept an alternative employment position in the company. As Adams (2008:367) argues, albeit in a slightly different context, “An employer… may be justified in refusing to employ as a model for cosmetics someone who suffers from a disfiguring scarring…”

In conclusion, if Harriet refuses to accept BIS’s offer of alternative employment, BIS will be entitled to terminate her contract, without fear of any legal repercussions under the Employment Rights Act 1996 or the Disability Discrimination Act 1995.

References/ Bibliography

The Employment Rights Act 1996.

The Employment Rights Act 2002.

The Employment Equality (Religion or Belief) Regulations 2003.

Stedman v United Kingdom (1997) 23 E.H.R.R. CD 168.

The Human Rights Act 1998.

Copsey v WWB Devon Clays Ltd [2005] EWCA Civ 932.

The European Convention on Human Rights 1950.

Campbell and Cosans v United Kingdom (1982) 4 EHRR 293.

Arrowsmith v UK (1978) 3 EHRR 218.

R (Begum) v Governors of Denbigh High School [2006] UKHL 15.

Sandberg, R., 2009. The Changing Position of Religious Minorities in English Law: The Legacy of Begum. In RD Grillo (ed.), Legal Practice and Cultural Diversity, Ch. 14. Aldershot: Ashgate Publishing Limited.

Nairns, J., 2007. Employment law for business students. 3rd edition. London: Pearson Education Publishing.

The Public Interest Disclosure Act 1998.

Babula v Waltham Forest College [2007] EWCA Civ 174.

The Disability Discrimination Act 1995.

Kuzel v Roche Products Ltd [2008] EWCA Civ 380.

Department for Work and Pensions, 2005. Disability Discrimination Act consultation document: guidance on matters to be taken into account in determining questions relating to the definition of disability. London: The Stationary Office.

Adams, A., (2008). Law for business students. 5th edition. London: Pearson Education Publishing.

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Employment law race religion

Ben, Catriona, Amrit and Jenna all work for Styles For All Ltd

Ben is an Orthodox Jew who currently works Mondays to Fridays. The company intends to introduce a shift system, and as a result he will have to work alternative Saturdays, which he does not feel able to do for religious reasons. His boss is not sympathetic. It is pointed out to Ben that everyone else has agreed to the changes, and if he does not like it he should leave.

Catriona is a single parent and she has applied for a job as a machinist. She has been turned down for the job because there are concerns that she will be unreliable because of her childcare commitments.

Amrit has made a rather surprising job application to the company. He has applied for a job as a model to show the latest range of female swimwear. The company does not even bother to respond to the application and it was put straight in the bin.

Jenna has been employed by the company as a secretary for three years. She has been diagnosed as being deaf but she is reluctant to tell anyone in case she is not treated equally. Her long hair conceals her deaf aids. Unfortunately her deafness has made her rather poor at taking dictation under pressure, as she finds it difficult to lip read and write at the same time. This can mean that the work is full of mistakes. As result of her poor work, the company has decided that this year Jenna will not be entitled to a performance related bonus.

Advise Ben, Catriona, Amrit and Jenna of any claim for discrimination that they may have against Styles For All Ltd.

Employment Law Essay

i) Ben’s Case

In accordance with the ruling in Seide v Gillette Industries [1980] IRLR 427, Ben, as a person of Jewish faith, is classed as a member of an ethnic group. This affords the protections offered under the pertinent legislation.

Race Relations Act 1976 (RRA 1976).
Firstly, s 1 of the RRA 1976 prohibits discrimination on grounds of race. Under s.3 of the Act, the definition of ‘race’ is given as follows: ‘colour, race, nationality or ethnic or national origins.’ It is accordingly apparent that Ben can rely on the provisions of the aforementioned Act for protection. It is an offence under s. 1(b)(1) of the Act to impose a requirement:

‘(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it;

It is also required that the employer is unable to justify such a requirement.

In respect of the meaning of the words: “can comply”, it was laid down by Lord Fraser in Mandla v Dowell Lee [1983] ICR 385 that the words ought to be read as meaning ”can in practice” comply, or “can consistently with the customs and cultural conditions of that racial group.” Ben is therefore clearly able to satisfy this requirement due to his religious beliefs/customs.

Further, by virtue of s. 1(A) of the Act an employer discriminates if he applies ‘a provision, criterion or practice’ which either places persons of the same race or ethnic origin ‘at a particular disadvantage when compared with other persons’ not of such a category of persons (see s.1(A)(a) of the Act), ‘which puts that other at that disadvantage'(s.1(A)(b)), and ‘he cannot show to be a proportionate means of achieving a legitimate aim'(s.1(A)(c)).

Ben clearly has an arguable point under the above provisions due to the employer’s introduction of a shift system which includes Saturdays. It is understandable that as a member of the Jewish faith, Ben, will find this objectionable. Therefore, irrespective of whether or not everyone else has agreed to the changes, it does not detract from the discriminatory impact on Ben and other members of the Jewish faith.

Accordingly, based on the above reasoning, Styles For All Ltd decision to introduce a shift pattern compelling employees to work alternate Saturdays could effectively be indirectly discriminatory against members of the Jewish faith, given that Saturday is their holy day.

In order to establish this point, however, Ben would be required to illustrate that the proportion of persons of Jewish heritage, who are unable to comply with the imposed requirement, is considerably smaller than the proportion of those not of the same faith who can comply.

Anyone complaining that their rights under the Act have been violated ought to bring a claim within 3 months of the occurrence of the discrimination (see s. 68(1)). If Ben can establish his case, he may recover compensation (s.65(1)(b)) and / or the tribunal could make a recommendation under s.56(1)(c) of the Act to remove the adverse effect of the discrimination.

Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660)

The above provisions are also pertinent to somebody in Ben’s situation. They provide protection for those in employment, as defined by regulation 2(3). Regulation 2(1) defines ‘religion’ as; inter alia, ‘any religion’. Under the Regulations, ‘Direct’ and ‘Indirect’ discrimination are set out at regulations 3(1) (a) and (b), respectively. Whilst there is no defence of justification under the provisions for direct discrimination, the employer can justify indirect discrimination.

An indication of how the Regulations ought to apply in practice can be found in the Government explanatory notes which state that if an employer refuses a break to a Muslim to pray at a particular time, this would not amount to direct discrimination if all employees are refused breaks at those times. Peculiar to Ben’s case, however, under Regulation 3(1)(b) indirect discrimination occurs if:

‘(1) A applies to B a provision, criterion or practice which A applies equally to other persons not of the same religion or belief as B, but

(2) which puts persons of the same religion or belief as B at a particular disadvantage when compared with others, and
(3) which also puts B at a disadvantage, and
(4) A cannot show to be a proportionate means of achieving his or her legitimate aim.’

ECHR

Ben can also raise a point under Article 9 of the European Convention on Human Rights, which provides, inter alia: ‘Everyone has the right to freedom of thought, conscience and religion’. Under s.3 of the Human Rights Act 1998, the courts are obliged to read ‘primary and subordinate’ legislation in a manner which is compatible with one’s Convention rights. Under s. 7(1)(b) the Convention right issue can be raised in any court/tribunal.

The above points can therefore be raised in the employment tribunal (or county court) on grounds of discrimination. It ought to be borne in mind by Ben that a discrimination case has to be made within 3 months of the alleged discrimination occurring (see s. 68(1) of the RRA 1976).

ii) Catriona’s Case

The ambit of the Sex Discrimination Act 1975 (‘DDA 1975?) applies not only to employment, but also to the recruitment process. Part I, s.1 of the Act sets out circumstances in which Direct and / or Indirect discrimination can occur. Under s.1 a person discriminates against another if on the grounds of sex the person treats the other ‘less favourably’ than they would treat others of a different sex. In this instance, it is apparent that the imposition of a precondition that the successful candidate for a job ought to not have children is going to disproportionately discriminate against women per se. The test applied by the courts is the ‘but for’ test (see James v Eastleigh Borough Council [1990] 1990 IRLR 288.)

In support of Catriona’s case, in Thorndyke v Bell Fruit Ltd [1979] IRLR 1, it was found that a rule providing that the successful candidate for a job should not have young children was ruled to be discriminatory. This would present prima facie evidence that Catriona has been discriminated against.

Procedurally, in order to establish her case, Catriona would be required to identify a pool of comparators in order to highlight that the proportion of females who are unable to comply with the requirement of having no children will be considerably smaller than the proportion of males who can comply. Further, pursuant to the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 (SI 2001/2660), Catriona need only establish the facts of her case and the burden will then shift to Styles For All Ltd to rebut the presumption of discrimination. If they are unable to do so, Catriona will have made out her case and proved that she was a victim of discrimination.

Based on the information available, Catriona has an arguable case for discrimination that she can either initiate in the county court or employment tribunal. In the event that the case is upheld, the potential remedies, pertinent to Catriona’s case include the following: an order that the discrimination ceases; a recommendation; declaration and / or award of compensation.

Should Catriona be minded to bring an action, she is required under s.76(1) of the SDA 1975 to make a complaint within 3 months of the occurrence of the discrimination.

iii) Amrit’s Case

S. 2 states that the provisions of the SDA 1975 apply equally to men as it does to women. Also, the provisions of the Act apply not only to people in employment, but to those applying for jobs.

Evidently, on the facts available, Amrit has been treated ‘less favourably’, by not being considered for the position of model to display female swimwear. Given that the company failed to respond to his application and placed it in the bin, this would indicate that he was clearly the victim of discrimination in this regard. However, s.7 of the SDA 1975 provides a complete defence to an allegation of sex discrimination where there is a “genuine occupational qualification”. The tribunal is likely to find that modelling female swimwear qualifies as such an example. However, the provisions of the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 (SI 2001/2000) do still apply. Therefore, once Amrit has established the facts of his case, the burden of proof will shift to Styles For All Ltd to rebut the presumption of discrimination.

That said, whilst the courts have a tradition of interpreting a “genuine occupational qualification” strictly (see Wylie v Dee & Co. (Menswear) Ltd [1978] IRLR 103), it would appear entirely valid, in these circumstances, that Styles For All Ltd required a female to model their female swimwear. Therefore, it would appear, Amrit has no merits to establish a case on the basis of discrimination in this instance.

Amrit ought to bear in mind, however, that an action in cases of discrimination ought to be brought within 3 months of the alleged occurrence of discrimination having first arisen.(see s.76(1) SDA 1975)

iv) Jenna’s Case

Pursuant to Part I, s.1(1) of the Disability Discrimination Act (‘DDA 1995?) 1995, a ‘disability’ is defined as being:

‘ ……….a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.’

Further, Part II, s. 4 (2) (b) states that it is:

‘ …unlawful for an employer to discriminate against a disabled person whom he employs—

(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;’

Based on the above information, it would appear that Jenna has a prima facie case for discrimination against her employer, as a result of them not deciding not to award her a performance related bonus. This is due to the fact that her work is evidently impeded by her disability. However, according to s. 7(1) of the DDA 1995, companies with less than 20 employees are exempt from the provisions under Part II of the Act. Therefore, it needs to be ascertained whether or not Styles For All Ltd fall into this category. In addition, according to s.5(1), discrimination only occurs if:
‘(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot show that the treatment in question is justified.’

Implicit from wording at s.(5)(a) above is that for an employer to be placed in a position in which he can commit a breach of the Act, he must have advanced knowledge of the ‘disability’ in question. In fact, this very point was established in the case of O’Neill v Symm & Co. Ltd [1998] IRLR 23, in which the court found that there must a requirement that the employer knew or could reasonably have known. Therefore, the law stipulates that if it had been the case that Jenna notified her employer of her deafness, then Styles For All Ltd would have had a duty under s.6(1) to make necessary adjustments to cater for her disability. However, in the circumstances, Jenna’s concealment of her deafness means that the employer has no duty to take ‘reasonable steps’ (see s. 6(4)) to provide for a disability that they have no knowledge of.

Jenna is accordingly advised to bring her condition to the employer’s attention forthwith. The employer would then be obliged under s. 6 of the Act to take ‘such steps as it is reasonable’ to ensure her disability does not place her at a ‘substantial disadvantage’ to those persons without such a disability.

Given that Jenna has been employed with the company for 3 years, she ought not be concerned about the company’s response, as she has served the requisite 1 year under s.108 of the Employment Rights Act 1996 in order to bring an action in the employment tribunal for unfair dismissal if she is threatened with termination, or relieved of her position due to the employer discovering her disability. Further, under s. 76(1) of the SDA 1975 Jenna should issue proceedings within 3 months of any alleged discrimination occurring if she wishes the case to be considered by the employment tribunal.

WORD COUNT: 2047

Bibliography

Text Books:

Sargeant, M. and Lewis, D. (2006) Employment Law, 3rd edition, Pearson Longman

Bell, A.,C. and Desmond, H. Employment Law, 2nd edition, Thompson: Sweet & Maxwell

Duddington J.G. (2003) Employment Law, Pearson Longman

Lewis, D. and Sargeant, M. (2004) Essentials of Employment Law, 8th Edn. Cipd

UK Statutes:

Employment Rights Act 1996 (c.18), London

Sex Discrimination Act 1975 (c.65), London

Race Relations Act 1976 (c.74), London

Race Relations (Amendment) Act 2000 (c.43), London

Disability Discrimination Act 1995 (c.50), London

Secondary Legislation

The Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660)

The Sex Discrimination Act 1975 (Amendment) Regulations 2003(SI 2003/1657)

Race Relations Act 1976 (Amendment) Regulations 2003 (SI 2003/1626)

EAT Cases:

Mr. N J Alldred v The Chief Constable of West Midland Police, 28July 2006, Appeal No. UKEAT/0082/06/ZT

Mrs Aileen Brown v McAlpine & Co. Ltd, 22 September 2005, Appeal No. EATS/0009/05

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Introduction

A. V. Dicey’s traditional definition of parliamentary sovereignty cast Parliament as the supreme legislative force in the British constitution.^[1] The verdict was given in 1885, prior to many of the pressing constitutional changes of the twentieth century. His definition had three aspects. First, Parliament is the supreme law-maker, entitled to formulate and pass any law that it wishes. Second, the supremacy of legislation means that no other constitutional body, including the courts, can question it. Third, no Parliament is able to bind its successors or alternatively been bound by its predecessors. This essay will assess the traditional Diceyan view in the context of modern developments.

Parliament as supreme law-maker

Parliament’s status as the only body able to formulate and pass legislation has its roots in the conflict between the monarchy and the legislature in the seventeenth century, when the king attempted to rule by prerogative. The Bill of Rights that followed in 1689 subordinated the monarchy and the judiciary to Parliament’s supreme law-making power.^[2] Parliament can even go so far as to pass laws with retrospective force, as it did with the War Damage Act 1965 to deny compensation to an oil company whose installations had been damaged during the Second World War.^[3]

In the recent landmark case of R (Jackson) v AG,^[4] Parliament’s ability to use the Parliament Act 1911 to amend the Parliament Act 1949 was questioned in the light of the controversial Hunting Act of 2004. This would have represented an existential challenge to parliamentary supremacy. However, the House of Lords concluded that in fact there were no limits to the type of laws that Parliament could pass using the Parliament Acts, except where Parliament had limited itself by limitations in the legislation.

It may be argued that the trend towards devolution does in fact serve to undermine Parliament’s supreme position. However, it is perhaps truer to say that devolution limits Parliament’s jurisdiction rather than its authority. The most powerful devolved body, the Scottish Parliament, has carved out powers over many areas including health policy and criminal justice, but can scarcely be regarded as a ‘rival’ to a Parliament whose authority delegated those powers in the first place.^[5] In the light of the recent independence referendum the Scottish Parliament will expand its remit further, but will not be able to overrule Westminster where the UK Parliament retains jurisdiction.^[6]

Deference to Acts of Parliament

The deference of the executive and judiciary to Parliament is underpinned by the Bill of Rights 1689, which drastically reduced monarchical power and prevented the courts from overruling statute with common law.^[7]

The House of Lords in Jackson was keen to stress that while it was free to interpret the wording of the Hunting Act 2004, it could not question the standing of Parliament by challenging the law itself with reference to the earlier Parliament Acts. Although the case was controversial, the House of Lords’ approach in fact neatly illustrated the supremacy of Acts of Parliament. Unlike the US system, there can be no recourse to a supreme court to plead on the ‘unconstitutional’ nature of legislation. Indeed, the traditional view of supremacy was confirmed in the case of Pickin v British Railways Board,^[8] in which the House of Lords had declared that the courts had no power to challenge the validity of an Act of Parliament (this is sometimes known as the ‘enrolled bill rule’).

Arguably, the only challenge to the validity of Acts of Parliament now emanates from the European Union, whose Court of Justice can strike down Member State legislation which does not accord with EU primary legislation. This was evident in the infamous Factortame case^[9], in which it was held that the UK’s Merchant Shipping Act 1988 – designed to prevent Spanish trawlers from fishing in British waters by registering their boats as British – was invalid because it derogated from EU law, which is supreme over national law. For the UK Parliament this painfully illustrated the vulnerability of Acts of Parliament to scrutiny by an outside body.^[10]

However, it is doubtful that the episode presents an existential challenge to parliamentary supremacy because at any time Parliament could itself extricate itself from EU scrutiny by legislating to leave the European Union. Nor does the Human Rights Act 1998 pose a real challenge to supremacy. As one commentator points out, Parliament is free to choose not to amend a provision of the Act even when it has been declared incompatible with the European Convention on Human Rights by a judge.^[11]

The principle of binding successive parliaments

It has been suggested on the basis of ‘constitutional’ nature of the European Communities Act 1972 – which incorporates the law of the EU into the domestic law of the UK – that in practical terms Parliament is not free to repeal all the legislation of its predecessors.^[12]

In Thoburn v Sunderland City Council,^[13] Lord Justice Laws suggested that there were a variety of so-called ‘constitutional’ statutes (including the ECA 1972) that Parliament could only expressly repeal, but not impliedly. On the face of it, this seemed to produce a measure of uncertainty both with regard to which statutes were in fact ‘constitutional’ statutes, and whether ‘implied’ repeal could be challenged in the courts.

In fact, given the established convention that the courts cannot question the validity of Acts of Parliament (including those that repeal previous Acts), it is doubtful that even implied repeal could give rise to conflict. In any event, Parliament could simply legislate to expressly repeal certain statutes such as the ECA 1972 that were regarded in Thoburn as ‘constitutional’.

Further, it is doubtful that executive dominance (the so-called ‘elective dictatorship’) could compromise the principle of not binding successor Parliaments because the executive does not have statutory tools at its disposal that could override Acts of Parliament.

Conclusion

There is no doubt that certain constitutional developments of the twentieth and first part of the current century, particularly in relation to the UK’s membership of the European Union and the tendency towards devolution in Scotland, Wales and Northern Ireland, have provided a series of challenges to the traditional Diceyan view of parliamentary supremacy. Nevertheless, in practice the three elements that Dicey espouses have held up remarkably well, and it will be intriguing to see if this continues.

Bibliography

Case Law

Burmah Oil v Lord Advocate [1965] AC 75 HL
Edinburgh Dalkeith Railway Co v Wauchope (1842) UKHL J12
Pickin v British Railways Board [1974] AC 765 HL
R (Jackson) v AG [2005] UKHL 56
R v Secretary of State for Transport ex p. Factortame [1990] UKHL 7
Thoburn v Sunderland City Council [2002] EWHC 195

Legislation

European Communities Act 1972
Human Rights Act 1998
Parliament Act 1911
Parliament Act 1947
War Damage Act 1965

Secondary Sources

Allen, M. & Thompson, B. Cases and Materials on Constitutional and Administrative Law (10th ed, OUP, 2011)
Bell, C. ‘Constitutional transitions: the peculiarities of the British constitution and the politics of comparison’ in Public Law (2014) July, 446-71
Dicey, A. V. An Introduction to the Study of the Law of the Constitution (Elibron, 1982)
Judge, D. The Parliamentary State (OUP, 1993)
Smyth, D. ‘Reeling in the years – the Factortame saga’ in Practice and Procedure (1999) Dec 85-6
Tomkins, A. Public Law (2003, OUP)
Unauthored case comment, ‘Constitutional law: status of the ECA’ in Public Law (2002) June 351
Footnotes
Albert Venn Dicey, An Introduction to the Study of the Law of the Constitution (Elibron, 1982) 37-82
David Judge, The Parliamentary State (OUP, 1993) 20
Burmah Oil v Lord Advocate [1965] AC 75 HL
[2005] UKHL 56
Christine Bell, ‘Constitutional transitions: the peculiarities of the British constitution and the politics of comparison’ in Public Law (2014) July, 446-71
Charles Livingstone, ‘Constitutional debate rumbles on after No vote’ in In-House Lawyer (2014) Nov 53-55
Michael Allen & Brian Thompson, Cases and Materials on Constitutional and Administrative Law (10th ed, OUP, 2011) 55
[1974] AC 765 HL; this was a restatement of a position in Edinburgh Dalkeith Railway Co v Wauchope (1842) UKHL J12.
R v Secretary of State for Transport ex p. Factortame [1990] UKHL 7
David Smyth ‘Reeling in the years – the Factortame saga’ in Practice and Procedure (1999) Dec 85-6
Adam Tomkins, Public Law (2003,OUP) 122
Unauthored case comment, ‘Constitutional law: status of the ECA’ in Public Law (2002) June 351
[2002] EWHC 195

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To what extent would you describe the reasoning in Krell v Henry [1903] 2KB 740 and Herne Bay Steam Boat Company v Hutton [1903] 2 KB 683 as either compatible or incompatible?

Date authored: 23 ^rd July, 2014.

On the 9th August 1902, the coronation of King Edward VII and Queen Alexandria took place. However, the festivities were originally planned for the 26th June of that year, having been postponed due to the King falling ill with an abdominal abscess. This delay gave rise to a number of cases brought by parties who had contracted into arrangements whereby they could watch and participate in the (as originally scheduled) royal celebrations.

Of these so-called ‘coronation cases’, Krell v Henry [1]

and Herne Bay Steamboat Co v Hutton [2]

are the two that arguably led to the greatest refinement of the English law doctrine of frustration of contract. Both relied on the authority of Taylor v Caldwell [3]

which clarified the position on contractual impossibility, a flavour of frustration which asserts that both parties to a contractual obligation may be freed from it if, by no fault of their own, performance of the contract was made impossible. Particularly, if the impossibility pertains to something which ‘strikes to the root’ of the contract, then both parties would be restored to their original position, as far as was possible.

The assumed approach to frustration of contract involving contractual impossibilities was to examine whether or not the absence was implicitly central to the contract. Both of the aforementioned cases took this test – and the Taylor case as a whole – as a starting point, though the differing judgements present a prima facie incompatibility. However, it could be argued that the reasoning in both cases is largely compatible and logically consistent. Moreover, it could be argued that both cases read together have led to a greater clarification of the doctrine of frustration which is evident from subsequent case law.

Krell and Herne Bay are distinguishable in terms of both the material facts and the decision reached. Krell concerned a defendant who rented a flat from which he intended to watch the coronation procession. The contract was held to be frustrated, even though he could still rent and occupy the flat, as the viewing of the procession (now impossible due to its rescheduling) was deemed to be the foundation of the contract. Even though the coronation was not explicitly mentioned during the pre-contractual negotiations, the court concluded that this intent was both implicit and integral.

In Herne Bay Steamboat Co v Hutton the defendant contracted to hire a steamship to watch the royal naval review and to take a “day’s cruise around the fleet”. This contract was not held to be frustrated; even though the naval review was no longer possible, the defendant could still take part in the cruise regardless.

We see, therefore, a fundamental irreconcilability in the application of the ‘implied term’ test established in Taylor; in both cases the parties entered into their respective contracts with the royal festivities being the implicit reason for the contract. That there is another element – that of a general cruise around the fleet – in Herne Bay should be irrelevant; ostensibly the court had taken a less absolute view of the hiring parties’ intent in making their judgement. Criticism has particularly focused on Krell – Roberts (2003, para. 30.) paints the ruling in Mr Henry’s favour as being fundamentally at odds with the common law principle of sanctity of contract.

In Herne Bay, Stirling J accepted the logic of Taylor, but said the fact that the parties could still visit the fleet denied the possibility of frustration. He opined that the royal naval review was descriptive as to the nature of the trip, but not fully indicative of what was contracted for. In essence, the contract was limited, but not utterly diminished; that is, the cruise itself could still, and would still, go ahead as planned, merely without the coronation element.

Therefore, the cases demonstrate judicial analysis of Taylor yet a reluctance to adhere to its core tenets; in Herne Bay there was held to be no frustration even in the case of a unique subject matter, lost due to impossibility, which stood as an overt reason for forming the contract. The treatment in this case becomes more similar to non-frustratory contract cases where a pursuer sues over a ‘loss of enjoyment’, such as in Jarvis v Swan Tours [4].

I would argue, however, that instead of an incompatibility – the extent to which either case followed the Taylor reasoning – these decisions instead indicate a move to the more elegant test discussed in the later case of Davis Contractors v Fareham Urban District Council [5]. In this case, Lord Radcliffe reasoned that frustration would be possible when “…such a change [has occurred] in the significance of the obligation that the thing undertaken would, if performed, be a different thing from that contracted for.”

This test asserts that if the supervening act radically changes the subject matter of the contract then it will be frustration. If Krell and Herne Bay indeed contain an early iteration of the test in Davis, then they are compatible within this framework. To elaborate, in Herne Bay the royal presence may have formed part of the pre-contractual consensus; however, the contract would not be radically different after the change of circumstances as Mr Hutton could still make a profit from taking passengers on a pleasant tour around the fleet regardless of the timing of the coronation. Mr Henry’s use of the flat, conversely, would be radically different as he would be obliged to make payment for a flat he has no use for, watching the coronation being the sole purpose of the rental agreement. Krell, therefore, is not merely distinguishable and of limited scope of application as opined by Koffman and Macdonald (2010. p.511), but just as thematically consistent with the ‘radical difference’ test as Herne Bay.

Continuing to suppose that Krell and Herne Bay share an early adoption of the “radical difference” test, we may examine two cases which share the echoes of their logical reasoning; Nickoll and Knight v Ashton Eldridge & Co [6]

and Tsakrioglou & Co Ltd v Noblee Thorl GmbH [7]

. Nickoll concerned a stranded ship which was unable to deliver its cargo. As in Krell, the impossibility of performance is clearly radically different to what both parties intended. In Tsakrioglou, another merchant shipping case, the ship in question was unable to deliver its cargo through the Suez canal – as originally agreed by both parties – due to political reasons. The court held that taking the alternative Cape of Africa route was not frustratory. This case, as in Herne Bay, may have fallen on a bare interpretation of Taylor, but the court maintained that even limited performance should be upheld. It also suggests a high bar for situations in which courts will agree that frustration has taken place.

This high bar further supports the idea that Krell and Herne Bay share compatible reasoning; the courts have been keen to prevent frustration from being an easy escape from a contract for fickle parties. Treitel (2004, para 7.14) points out that the continuation of any part of the contract apart from something trivial makes frustration unlikely.In Blackburn Bobbin Co v Allen [8] the outbreak of war was held not to be frustratory, even given concerns by the merchant shipping company that the goods would be destroyed due to the predations of the Imperial German navy. This high threshold – which exists to prevent buyers evading a minor disappointment, or vendors a more difficult method of supply – is evident in Krell and Herne Bay (with regards the former, Morgan (2013, p120) suggests the high threshold has been reached as Mr Henry lacked an obligation to reschedule given that the King may not have survived his appendix surgery).

As well as both cases being decided “correctly” against the high threshold for successful frustration, both demonstrate a common judicial reluctance to infer too much of the mental thought processes of the parties. Brownsword (1993, p246-247) puts forward a key distinction; Mr Krell was treated as a consumer – he had a very specific intent in mind, an assumption the court had little difficulty in basing their judgement upon. In Herne Bay, however, the Court of Appeal was unwilling to infer such a clear purpose. Mr Hutton intended to hire the steamship so that he could in turn hire the use of it to paying guests. Stirling J asserted that the “risk fell on the defendant whose venture the taking of passengers was”. This suggests a shared reasoning – the judges are more likely to be able to establish the root of a contract where it concerns a disappointed consumer rather than assess the nebulous interests of remote third parties in the more commercial situation seen in Herne Bay.

Alternatively, it can be said that compatibility simply is not relevant. As indicated above, it can be argued that the evolution from Taylor to the test in Davis is a move towards a fairer system. However, Lord Wilberforce in National Carriers v Panalpina [9] was reluctant to assert the supremacy of either test. He suggested they overlapped considerably and that the one used is the one “most appropriate to the particular contract under consideration”, that is, the tests should be used on a case by case basis depending on the specifics of that particular situation. Furmiston et al (2012, p.722) draws an analogy to the standard of the reasonable man, suggesting the organic approach taken in these cases was correct.

To conclude, the reasoning in both the cases examined is compatible. The judges Vaughan Williams J, Stirling J and Romer J sat on both cases, and it cannot reasonably be inferred that they intended to create clarification on the precedent laid down in Taylor without ensuring the cases can be read in concert with one another. Indeed, the words of the judges suggest that they had precedential consistency very much aforethought; Vaughan Williams J stated that all cases of this type must be decided on their own merits, indicating a preference for the more organic approach later seen in Davis. He even went on to evoke a strong analogy akin to the facts of Herne Bay when making his judgement in Krell; that of someone who has hired a taxi to take him to the Epsom Derby. Even in the event of the cancellation of the Derby, the contract to convey the hirer to Epsom still exists.

As previously stated, both cases stand under the weight of the later approach taken towards frustration in cases such as Davis, that of looking at whether or not the contract is so radically different as to make freeing the parties from it the only fair and reasonable course of action. Additionally, the cases clearly delineate situations in which a court will be willing to apply the doctrine of frustration – the court plainly saw the contract was robbed of its commercial value in Krell yet recognised the situation in Herne Bay was still commercially viable; as Lord Roskill in Pioneer Shipping v BTP Tioxide [10]

remarked, the doctrine of frustration was “not lightly to be invoked to relieve contracting parties of the normal consequences of imprudent commercial bargains”. The cases clearly demonstrate how this doctrine may be correctly applied.

As the cases fit so comfortably within the radical difference test and the reasoning applied to each of them can be seen in following case law, we can conclude that they are compatible.

Bibliography
References

Furmston M. P. (2012) Cheshire, Fifoot & Furmston’s Law of Contract (16^th edition, Oxford University Press)

Koffman L. and Macdonald E. (2010) The Law of Contract (7^th edition, Oxford University Press)

Treitel, G. (2004) Frustration and Force Majeure (2^nd edition, Sweet & Maxwell)

Brownsword, R. (1993) ‘Towards a rational law of contract’, in Willhelmson, T. (ed), Perspectives of Critical Contract Law (Aldershot: Dartmouth)

Morgan, J. (2014) Contract Law Minimalism: A Formalist Restatement of Commercial Contract Law (1^st edition, Cambridge University Press)

Roberts, T. (2003) ‘Commercial Impossibility and Frustration of Purpose: A Critical Analysis’, 16 Can. J. L. & Juris 129

Cases

Blackburn Bobbin Co Ltd v Allen (T.W) & Sons Ltd [1918] 2 KB 467

Davis Contractors Ltd v Fareham Urban District Council [1956] UKHL 3

Herne Bay Steamboat Co v Hutton [1903] 2 KB 683

Jarvis v Swans Tours Ltd [1972] EWCA Civ 8

Krell v Henry [1903] 2 KB 740

National Carriers v Panalpina [1981] AC 675

Nicholl and Knight v Ashton , Eldridge & Co [1901] 2 KB 126

Pioneer Shipping Ltd v BTP Tioxide Ltd [1982] AC 724

Taylor v Caldwell [1863] EWHC QB J1

Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962] AC 93

Internet Resources

www.lexisnexis.co.uk

legalresearch.westlaw.co.uk

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

Critically evaluate the definition of consent for the purposes of sexual offences since the enactment of the Sexual Offences Act 2003, with particular regard to the presumptions in ss.75 and 76.

Date authored: 15 ^th August, 2014.

Described by the Home Office Review, Setting the Boundaries, as a ‘patchwork quilt of provisions’, the old law on sexual offences was a hodgepodge of archaic and discriminatory requirements. [1] Despite progressive changes by the court, the law on consent was in particularly confusing. The Sexual Offences Act 2003 (SOA) attempted to clarify the law in this regard and whilst setting out several, detailed provisions, as a guide to both jury and judge, there is still a lot to be desired. In a society trying desperately to rid itself of outmoded rape myths, too much discretion has been left to the jury in deciding one of the most central points of all sexual offence disputes: consent.

Historically, consent was not defined by the law. The case of R v Olugboja was the only case to provide a real indication on the question of consent.[2] In this case it was found that the issue itself should be left to the jury, to be given its ordinary meaning, requiring the judge only to direct the jury as regards the difference between “real consent” and “mere submission”. Under the SOA, consent is now defined by s.74 as the ability to consent by choice, with the freedom and capacity to make that choice.

Before progressing further, we can already identify clear issues with such a definition. The words “freedom” and “capacity” can prove difficult for a jury to understand and have been found by Temkin and Ashworth to be lacking. [3] Firstly, the word freedom is a loaded term and heavily context dependent; what about social boundaries such as economic or religious freedom? Take, for example, a woman who is financially dependent upon her perpetrator and believes that, without her consent to sexual intercourse, this allowance will be retracted, leaving her destitute. Can this truly be described as freedom even if there is no threat of actual removal? Secondly, capacity can cause problems for the jury, for example in the case of R v C, a twenty-eight year old woman with schizophrenia caused severe problems for the courts, resulting in a conviction at first instance, subsequently quashed by the Court of Appeal, and finding at the House of Lords that capacity had been insufficiently defined to the jury due to its ability to fluctuate.[4] Such terms are therefore open to jury interpretation, rendering the matter of consent still open to jury bias.

To tackle such moments, ‘the Sexual Offences Review recommended that there should be… a non-exhaustive list of circumstances where consent was not present, an approach adopted by some Australian States.’ The intent was to serve as a ‘clear indication to the courts and to society at large about circumstances where sexual activity was unacceptable.’ [5] Such an approach has been replicated to an extent by the exhaustive list found in s.76. However, feeling that this was too tougher line, the more comprehensive list of situations is found in s.75: the rebuttable presumptions.

We shall begin with the exhaustive list of conclusive presumptions, found in s.76 (2). In a scenario wherein a defendant ‘intentionally deceived the complainant as to the nature or the purpose of the relevant act; or the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant,’ a lack of consent will be presumed and the mens rea of the act, that the defendant did not believe the complainant consented to the act, will be, by indication, fulfilled. One of the clearest examples of deception as to the nature of the act is found in R v Williams: here, a singing teacher told a sixteen year old girl that he was aiding her with “breathing exercises,” when he did in fact rape her.[6]R v Jheeta is also a key case in this regard due to its discussion as to what deceptions may or may not count. [7] There is a suggestion made by Judge LJ that the jury will interpret this provision narrowly, so that the deception refers only to an act very different to the one they are engaging. [8] For example, in Jheeta itself, the defendant was found guilty only under the general definition of s.74 lack of consent, as opposed to under s.76. This was due to the fact that the claimant new they were engaging in sexual intercourse, despite her belief that, in doing so, she was following police orders to avoid the defendant’s suicide.[9]

The presumption in regard impersonation also has limitations. The impersonation itself cannot be anyone, otherwise many Lothario roles we see on our TV’s, pretending to be film stars, to seduce a woman, would be guilty of an offence. ‘The person must be personally known to the complainant and the complainant must intentionally have been induced to consent by the impersonation.’ [10]

This is a restrictive list and there is no way to rebut such a presumption. This creates issues of compatibility in regard the European Convention on Human Rights (ECHR) Article 6(2), the presumption of innocence, and may well explain Parliament’s reticence to extend the list further. The right to the presumption of innocence can be lost if it serves a legitimate aim, is justifiable, and is a proportionate response to that aim. As Card notes, it would be almost unthinkable for a jury to find a defendant innocent in one of the above scenarios and therefore the loss of Article 6(2) may be justified. [11] Yet realistically, what non-biased jury would find a defendant innocent in scenarios where an individual was unable to communicate consent due to disability, or the defendant had caused the administration of a substance, rendering consent void? Parliament has, arguably, been far too cautious in their determination to leave so many circumstances, rebuttable.

The evidential presumption requires proof to be adduced either to raise the issue with the claimant’s valid consent, or to display a reasonable belief in consent on the part of the defendant. This is a particularly difficult area and has often been privy to jury bias, caused by knowledge of previous sexual involvement and horrendous issues surrounding voluntary intoxication, and individual sexual preference. The list includes violence, threat of violence, unlawful detention, unconsciousness, physical disability and causing the claimant to administer a substance which renders their consent invalid.[12] Herring notes that such rebuttable presumptions could well prove difficult to explain to a jury: for example, if the defendant argues that the threat, or use, of violence came before the couple had made up, leading to a valid consent to intercourse. Would this be enough to rebut the presumption? If so, then this would be very easy to rebut, leaving the door open for repeated offences by abusive partners, so long as they secured a “yes”, however unwilling, before the act occurred: ‘court guidance on the meaning of, ‘sufficient evidence is adduced to raise,’ is eagerly awaited’. [13]

Perhaps the most problematic aspect of this section is proving when acts have been voluntarily undertaken. Parliament have left all of these issues open to rebuttal to cover such moments as voluntary intoxication, along with voluntary sadomasochism or detention. There are countless scenarios where an individual could be seen by the partner to be engaging in consensual sexual intercourse. Yet here we find a problem: what counts as a reasonable belief in consent? Just because an individual has frequently consented to harm for sexual gratification before, does not necessarily mean they do now; just because someone has voluntarily become intoxicated, does not mean their drunken demeanour implies consent.

Voluntary intoxication is a huge issue, as it falls between the areas of capacity to decide, unconsciousness and the inducement of substances. In 2005, Amnesty International found that two thirds of all people asked believed that an individual who has been drinking is partly to blame for what has happened to them, including jury members, police officers and prosecutors. [14] Such belief’s led to the appalling conclusion in R v Dougal that ‘drunken consent is still consent’, failing to discuss capacity at all. [15] R v Bree readdressed this balance, concluding that drunken consent was still consent, as she had decided to argue that she had capacity, despite her intoxication. [16] A string of monstrous cases have followed this decision, wherein just because the individual could not remember whether they said yes or no, their argument was negated. Such a mindset does nothing more than promulgate rape myths within a jury and fails to take into consideration that many people lose their capacity after the intake of alcohol, although it must be stated here that there are few other ways to deal with such a problematic issue.

Rape and other sexual offences bare one of the highest attrition rates of all crimes and this is unsurprising considering the wealth of hurdles a victim must overcome to gain a conviction. From dependence on, to fear of, the perpetrator; to the dread of knowing you will have to recount the experience at trial: the last thing a victim needs is the knowledge that their own refusal may be found wanting.

In conclusion it must be found that Parliament has not gone far enough in directing the jury as regards consent. By not taking a firmer hand and creating a more comprehensive list, Parliament has left the door open to the real possibility of jury bias. In addition, whilst a non-exhaustive list, Card finds there is a whole host of other frequently occurring scenarios, from, ‘threat of dismissal or economic harm, threats of non-immediate violence, abuse of a relationship of power and self-induced mistake as to the nature or purpose of the act,’ which are not addressed in the SOA. [17] In such instances the burden will be on the prosecution, from the start, to prove the absence of consent and of a reasonable belief in consent. In such a “he said, she said” scenario, it seems unthinkable that the jury should be given no more direction than an incomplete list of possible indicators, which may frequently bare no guidance to the matter at hand. Parliament have been too cautious, leaving the UK in a position where almost every form of consent may be rebutted and placing the issue itself predominantly in the hands of a jury which, corrupted by centuries of rape misnomers, may well be blind to the truth.

Bibliography

Card R, Sexual Offences: The New Law (rev edn, Jordans 2004).

Herring, Criminal Law: Text, Cases and Materials (4^th edn, Oxford University Press 2010).

Temkin J and Ashworth A, ‘The Sexual Offences Act 2003: (1) Rape, sexual assaults and the problems of consent’,[2004] CLR 328.

Sexual Offences Review Paper, ‘Setting the Boundaries: Reforming the Law on Sexual Offences’, (The Home Office, 2000)

‘Rape: is a woman’s behaviour to blame?’ (BBC News, 21 November 2005) < http://news.bbc.co.uk/1/hi/programmes/breakfast/4455622.stm> accessed 12 August 2014

R v Bree [2007] EWCA Crim 804

R v C [2009] UHKL 42

R v Dougal [2005] Swansea Crown Court 435

R v Jheeta [2007] EWCA Crim 1699

R v Olugboja [1982] QB 320 CA

R v Williams [1923] 1 KB 340

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This question raises issues of the criminal litigation process as well as evidential issues involved during the questioning of suspects and subsequent litigation. In the interests of proper case analysis, I have decided to deal with the parties in turn by considering the legal issues that arise in relation to each party’s case.

R v. Sir Joseph Priestley

Sir Joseph Priestley has been convicted of indecent exposure based on evidence given by Ms. Amanda Robert. The case has been heard in a Magistrates Court by a sole magistrate. Sir Joseph Priestley now wishes to appeal against the decision of the magistrate. In advising Sir Joseph Priestley, the first issue to be touched upon is the right of appeal in decisions rendered by the magistrates’ courts.

A decision of a magistrates’ court can be challenged in one of three ways: firstly, by an appeal to the Crown Court; secondly, by an appeal to the High Court by way of case stated by the magistrates for the high court’s opinion, or on application to the High Court for judicial review. In this case, Sir Joseph Priestley will be advised to proceed on the basis of an appeal to the High Court by way of case stated. Most appeals by way of case stated are aimed at overturning either a summary acquittal or conviction, as in the case of Sir Joseph Priestley, a conviction. Appeals by way of case stated is governed by the Magistrates’ Court Act 1980 and section 111(1) provides that any person who was a party to any proceeding before a magistrates’ court or is aggrieved by the conviction of the court may question the proceeding on the ground that it is wrong in law or in excess of the court’s jurisdiction.

Sir Joseph Priestley’s application will be made on the basis that District Judge Asquith’s decision is wrong in law. The basis for such a conclusion is premised on the substantial evidential issues arising during the course of the trial. In his summing up, the District Judge alluded to three issues which deserve our attention. The first is his statement regarding the veracity of Ms Robert as a truthful witness. DJ Asquith refers to the witness’s evidence as corroborated as a result of her fragrant appearance. Such a statement is not of itself improper but it gives cause for concern when the only corroboration of the witness’s account of events is her fragrant appearance. In this case, the appropriate method of corroboration might have been through other witnesses who saw the offence committed or through witnesses who know the accused or the victim and can testify as to their veracity for the truth. The issue here is simple – the victim’s evidence has not been tested and it is unsafe to convict Sir Joseph Priestley based on this untested evidence.

Secondly, as to the issue of Sir Joseph Priestley’s defence of mistaken identity, DJ Asquith suggests in his speech that the burden of proving this defence lies on the accused – that is clearly not the case. The general rule with regards to the burden of proof in criminal cases is that the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt. There is a statutory exception to the rule which is contained in section 101 of the Magistrates’ Court Act 1980 which basically surmises that in a summary trial where the defendant relies for a defence on any statutory exception, exemption, provision or qualification to the statutory offence charged, the burden of proving that exception is on the defendant. In this case, Sir Joseph Priestley’s defence is not an exception or provision forming part of the offence charged. It is simply a defence of mistaken identity to the offence charged and which forms part of the case that the prosecution has to prove. While Sir Joseph Priestley had the evidential burden of raising the defence, it was for the prosecution to disprove such a defence. It was clearly wrong for DJ Asquith to cast the burden of proving the mistaken identity on Sir Joseph Priestley and this clearly provides a basis upon which an appeal can be sought.

Thirdly, with respect to the Judge’s reference to Sir Joseph Priestley’s refusal to discuss the facts of the case during police interrogation, we must consider the effect of section 34 of the Criminal Justice and Public Order Act 1994 ( CJPOA) which deals with the defendant’s failure to mention facts when questioned or charged. In such a case where the defendant has been questioned and he has not responded to those questions, the tribunal of fact may draw such inferences as appear proper from the defendant’s refusal to mention those facts which he later seeks to rely on. However this present case must be distinguished from the classic section 34 cases such as R v Condron and R v Cowan because Sir Joseph Priestley clearly stated during interview that it was a case of mistaken identity. Assuming that it truly was a case of mistaken identity, then there would have been nothing further to discuss during interview and the judge would be wrong in drawing the inferences from Sir Joseph Priestley’s interview with the police.

Another point which must be discussed is the fact that despite alluding to the defence of mistaken identity during police interrogation, the police did not conduct further investigations to enquire whether anyone else on the train might have witnessed the crime. One would imagine that travelling from Buckinghamshire everyday to Neasden, Sir Joseph Priestley would have established a travel pattern which would yield the possibility of discovering regular travel companions who might know about Sir Joseph Priestley and whether he has ever engaged in such an act. The inability of the police to yield additional evidence to support the Ms Robert’s case seems to be particularly detrimental in proving the case against Sir Joseph Priestley. It would therefore seem that Sir Joseph Priestley has a good chance of overturning the conviction on appeal.

R v. Mr. Harry Collingwood and Mr. Fred Vaughan

The facts reveal that both Fred and Harry have been convicted of the crimes of murder and conspiracy to cause explosions. They now seek to appeal against their convictions. The issue raised here is whether the conviction is safe in the light of the evidential shortcomings displayed during the criminal litigation process. The general rule with respect to appeals from the crown court is encapsulated within section 2 of the Criminal Appeals Act 1995. This section states that a person convicted on indictment may appeal on the single ground that the conviction is unsafe. In the case of R v. Chalkley, the Court considered the definition of “unsafe” and suggested that it was more or less a subjective question of whether there still remained a lurking doubt in the minds of people which made them wonder whether an injustice has been done.

There are a number of issues which must be discussed in the light of the conclusion that the conviction appears to be unsafe. The first issue relates to the procedure followed during the interrogation of both Fred and Harry. The facts reveal that during questioning, both parties were denied access to a solicitor. The general rule with respect to rights of suspects to legal advice is contained within section 58 of the Police and Criminal Evidence Act 1984 (“PACE”). Section 58 provides that a person who is arrested and held in custody at a police station has a right, at his request, to consult privately with a solicitor at any time. Furthermore, Article 6(3) of the ECHR requires that consultation with a legal adviser must take place out of the hearing of a third party. Fred and Harry therefore ought to have been informed of their right to see a solicitor upon arriving at the police station, and they also had the right to consult with solicitors without the presence of Inspector Lewis or any other third party. The refusal of the right to consult with a solicitor is clearly grounds for the exclusion of the evidence obtained as a result of the denial of the accused’s right.

The second issue relates to the refusal by the police to allow both Fred and Harry inform a family member of their whereabouts. Under PACE, section 56(1) the suspect has the right to have a friend or family member informed of the arrest. However this right may be delayed in certain circumstances. One of such circumstances might be where the officer has reasonable grounds to believe that such friend or family member may interfere with the evidence connected with an offence, thus hampering the police investigation. It would therefore appear that in this case the police might have been justified in refusing both Fred and Harry the right to inform family members of their whereabouts.

The third issue here relates to the apparent physical threats made by Inspector Lewis to both Fred and Harry and the manner and condition under which the confessions were made. The threats and the manner of eliciting the confessions can be said to amount to oppression. Oppression is defined in section 76(8) of PACE as ‘torture, inhuman or degrading treatment, and the use or threat of violence. In 1968, Lord MacDermott commented to the Bentham Club that: “oppressive questioning is questioning which by its very nature excites hopes or fears or so affects the mind of the suspect that his will crumbles and he speaks when otherwise he would have remained silent.”

While PACE does not define any of the three concepts of torture, inhuman or degrading treatment, one can look to the decision of the European Court of Human Rights in The Greek Case where the commission defined inhuman treatment as such treatment as deliberately causing severe suffering, mental or physical and degrading treatment as treatment which grossly humiliates the individual before others or drives him to act against his will or conscience. Furthermore in the case if Republic of Ireland v. United Kingdom the court was concerned with certain techniques of interrogation used upon suspects in detention which included wall standing, hooding, deprivation of sleep, food and drink. In this case, the court held that the techniques amounted to inhuman treatment because they caused physical and mental suffering and also led to acute psychiatric disturbances during interrogation. Relying on the above decisions, it can be said that the station house treatment of both Fred and Harry amounted to inhuman treatment and the nature of the questioning was clearly oppressive.

In the light of this fact, the next logical question to be decided falls to be: Of what evidential value is the confession purported to have been signed by both Fred and Harry. Having determined that the confession was the product of oppressive questioning, we now turn to look at section 76 of PACE. Firstly as with all confessions made to the police, if the prosecution wishes to rely on it, they must satisfy the rule of admissibility that is in section 76(2). In this case, the Judge should have proceeded to hear issues as to the admissibility of the confession in a separate proceeding known as the voir dire, or the trial within the trial and then deciding as to whether or not the evidence ought to be allowed in. Failing to do this, the judge clearly breached the procedural rules relating to the admission of evidence and this clearly presents a ground for challenging the conviction.

The next issue concerns the joint trial of Fred and Harry, where both defendants rely on different defences. What exactly do I mean? Well we need to examine what section 76(1) of PACE states. It states that a confession made by an accused is admissible against him. This shows that it is only admissible against its maker and not against any other person including a co-accused who may be named in the confession. In this case, the learned judge has not used his discretion to order separate trials, give a limiting warning to the jury or sought to edit the confession so that it does not implicate Harry Collingwood, whose defence is that he was not present at the time of the bombings, but was in china on vacation. Once again, such flagrant disregard for criminal procedure by Mr. Justice Jeffreys lends credible support to the conclusion that the criminal procedural system was so flawed as to render the convictions unsafe.

The final issue to be touched upon relates to the unusual nature of the Judge’s summing up to the Jury. As it has been noted in Blackstone’s Criminal Practice 2008, errors resulting the judge’s summing up are clearly capable of rendering a conviction unsafe. It is therefore necessary to carefully dissect the summing up in this case to see where the judge erred.

The first issue to be raised with the summing up is that of the burden of proof. While the Judge makes mention of the fact that the burden of proof is on the prosecution, he fails to mention the standard to which the burden must be proven. Secondly, the Judge’s statements that the Jury ought to disregard Ms Lopez’s testimony without any proper basis for its dismissal is clearly erroneous in the light of the fact that the law clearly states that the judge has a general duty to remind the jury of the evidence, and as part of that duty. He has got to remind them of the defence case – Ms. Lopez’s alibi of Mr. Collingwood forms part of the defence case for Mr. Collingwood and the judge ought not to have made light of the fact that love is blind and can lead people to do silly things which clearly forms a bias against Ms. Lopez’s testimony.

Overall, the judge’s summing up was clearly biased and in favour of the Prosecution. The judge’s statement that the prosecution evidence is best corroborated by the jury’s knowledge of the world is clearly erroneous and devoid of proper reasoning or sound legal knowledge. Any corroboration that the jury might need ought to have been in the evidence presented, and not in any external factors such as their knowledge of the world.

In the case of Berrada, the judge referred to defence allegations which suggested that police had fabricated evidence as “really monstrous and wicked”. On Appeal, it was decidedly stated that in directing the jury, the judge has a duty to state matters impartially, clearly and logically and not inappropriately to inflate evidence to sarcastic and inappropriate comment. Similarly in R v. Marr, the judge’s dismissive attitude towards a large volume of character evidence had been held as grounds for having the conviction quashed. Although in the case of O’Donnell, it was held that the judge should be allowed some leeway in commenting upon the evidence and in the case of Canny, it was held that a conviction will be in danger only when the judge crosses the line into blatant unfairness and apparent pro-prosecution bias.

Applying the above cases to the present scenario, it is my opinion that the comments of the judge, during summing up, do clearly cross the line into blatant unfairness and prosecution bias as demonstrated in Canny. The judge could not be described as having been fair in his summing up, and if even allowed some lee way in commenting upon the summing up, his comments could not be described as harmless, but at best, were designed to perpetrate his politically minded agenda which showed a heavy disdain for political activists. However he failed to note that the bench is not the place to perpetrate such an agenda and that he has to remain neutral at all times during the course of the trial. The judge clearly did not achieve this level of fairness and as such the conviction of both Fred and Harry must be said to be unsafe and dangerous and warrants an immediate appeal.

BIBLIOGRAPHY

1) Peter Murphy, Blackstone’s, Criminal Practice, 2007, Blackstone Press.

2) Roderick Munday, Evidence, 2005, Third edition, Oxford University Press

3) Ian Dennis, The Law of Evidence, 2003, Second Edition, Sweet & Maxwell.

4) Adrian Keane, The Modern Law of Evidence, 2005, Sixth Edition, Lexis Nexis

5) Peter Hungerford-Welch, Criminal Litigation & Sentencing, 2004, Sixth Edition, Routledge Cavendish.

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

The most serious offence that Marion could be charged with is the murder of Spike and Toby. Murder is defined in law as causing the death of a human being within the Queen’s peace with the intention to kill or cause grievous bodily harm. Therefore murder comprises of two elements, these are 1) the act (actus reus) and 2) the intention (mens rea). Since the implementation of the Law Reform (Year and a Day Rule) Act 1996 it is not necessary for the death to occur within a year and a day of the act or omission. The first element to be satisfied is the actus reus and causation. Marion clearly performed the act of setting fire to Spike and Toby’s flat but did this cause the deaths of both Toby and Spike?

The accused’s act does not necessarily need to be the sole or even the main cause of death, it is required that the accused act made a significant contribution to the consequences as stated in R v Cheshire . Toby was pronounced dead at the scene of the fire and there is no information suggesting there was an alternative cause of death. Therefore it is clear that smoke inhalation from the fire was a significant contribution to the cause of Toby’s death. In the case of Spike’s death it is slightly more complicated as the medical treatment he received may constitute an intervening act (novus actus interveniens) in the chain of causation.

In the authority of R v Jordan it was decided if medical treatment received is the sole cause of death and was grossly negligent the chain of causation will be broken. However, if the injury caused by the accused is the operative cause of the victim’s death the chain of causation will not be broken as confirmed in R v Smith . In Smith the facts concerned a barrack room brawl in which the accused had stabbed the victim; the victim had been dropped twice on the way to the medical room. The medical staff failed to recognise the extent of the victim’s injuries resulting in the victim s‘death. The accused’s conviction for murder was upheld as the wound had been the operative cause of the victim’s death. in the case of R v Cheshire Beldam LJ stated “it will only be in the extraordinary and unusual case that such treatment can be said to be so independent of the acts of the accused that it could be regarded in law as the cause of the victim’s death to the exclusion of the accused’s act”. Therefore in the case of Spike’s death it will be considered if the fact that the life support machine was not properly connected was so independent of the injuries suffered from the fire. It is likely that the smoke inhalation from the fire will be considered as the operative cause of Spike’s death and the element of causation will be satisfied. Therefore the elements of the actus rea and causation will be satisfied in case of Spike and Toby‘s deaths

In order for the mens rea of murder to be satisfied the prosecution must establish that the accused intended to kill or cause grievous bodily harm as stated in R v Moloney and confirmed in R v Hancock and Shankland and R v Woollin in the House of Lords. In Woollin the House of Lords decided the intention would be satisfied if death or serious injury was a virtually certain result of the accused action. However, there is no absolute magic formula, Lord Scarman stated in Hancock the more probable the consequences the more probable the accused foresaw it. Marion may contend that she only intended for Spike to be re-housed by the council and she had no knowledge that Toby was in the house.

In the circumstances that an individual has the intention to commit a particular offence against a particular victim but actually commits that offence against another, the mens rea can be transferred to the actual victim. This principle is illustrated in the cases R v Mitchell and Attorney-General’s Reference No.3 of 1994 . In Mitchell the accused had been found guilty of manslaughter when he had deliberately punched a 72 year old man who had feel against an 82year old woman. As a result of the fall the 82 year old woman suffered a broken femur which required surgery, during the surgery the woman died due to complication that arose. The argument that the doctrine could only apply to the intended victim and not the actual victim were the same person was rejected by the Court of Appeal. Although the decision in Attorney-General’s Reference No.3 was reversed by the House of Lords the case illustrated that the question of mens rea is one of fact for the jury to decide. Therefore any malice towards Spike will be transferred towards Toby.

Marion may claim the defence of provocation under section 3 of the Homicide Act 1957 as her act was in response to the intimidation and harassment inflicted by Spike. The test for provocation is one of two limbs, these are; 1) the subjective condition that the accused was actually provoked to lose his self control and 2) the objective condition that the reasonable man would have done so. Devlin J stated in Duffy Circumstances which induce a desire for revenge are inconsistent with provocation…….a desire for revenge means that the person had time to think…that would negative a sudden temporary loss of self control”. However, Lord Taylor in R v Ahluwalia concluded that a delay in reacting will be taken into account but it will not necessarily negate the defence of provocation . The position currently is that killings that take place after a long period of provocation will be distinguished from cases of cumulative provocation. It can be that the last instance even if relatively minor can be a trigger as in Humphreys if the instance caused a loss of self control. Lord Tucker in Bullard v The Queen stated that the direction to the jury is that if they are not satisfied beyond a reasonable doubt that the killing is unprovoked the verdict is one of manslaughter.

The current standard of the objective element is that having regard to the actual provocation and the gravity for the defendant, would an individual of the same age having the ordinary power of self control might have done what the defendant has done as stated in-G for Jersey v Holley and confirmed in R v James . It is clear that Marion suffered a loss of self control it may also be possible that Spike’s last act of pretending to stab Marion will be viewed in light of the previous harassment by Spike.

In the circumstances that the Crown Prosecution Servicer or the jury are satisfied that Marion only intended for Spike to be re- housed she may be found guilty of constructive manslaughter. It will only be necessary or the prosecution to establish that Marion intended to start the fire not that she knew it was dangerous. The act will be deemed dangerous if a sober and reasonable person at the scene of the crime watching the unlawful act knowing what the defendant knows in the circumstances and seeing what the defendant sees would have foreseen the risk of some physical harm resulting there from as explained in R v Dawson .The court appeared to introduce a third element in to constructive manslaughter, this was that the accused act must be directed at the victim and likely to cause immediate injury. However, this was rapidly overturned for in R v Mitchell for the act must simply directed to another. In R v Goodfellow the accused had sent fire to his house with the intention of being re-housed by the council, the fire had resulted in the death of some of his family. The aimed at doctrine was rejected in favour of the act directed another test the accused was convicted of constructive and reckless manslaughter. In Andrew v DPP Lord Atkin stated “of all crimes manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and varying conditions, it is submitted that the mens rea for the unlawful act of criminal damage should suffice. This was confirmed by the decision in R v G . As Marion clearly intended to set fire to Spike’s flat it is likely that she will be found guilty of constructive manslaughter.

In the unlikely event that Marion is found not guilty of constructive manslaughter the least serious offence that she could be liable for are under the Criminal Damage Act 1971 such as, intentionally or recklessly endangering life under section 1(3) and arson under section 1(3).

Bibliography

Elliot & Quinn Criminal Law 7th Edition Pearson Education Limited

Jonathan Herring Text, Cases and Materials on Criminal Law Third Edition Oxford publishing

David Ormerod, Smith & Hogan Criminal Law 12th Edition Oxford

Blackstones Criminal Practice 2008 Oxford

Norrie. A “After Woollin” [1999] Crim LR 532

‘Legislating the Criminal Code: involuntary Manslaughter’, Law Commission No.237 [1996]

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

‘Parliament’s purpose in the legislation, as we divine it from the terms of the Act, was to assist in the evidence based conviction of the guilty, without putting those who are not guilty at risk of conviction by prejudice’ (R v Hanson [2005] 2 Cr App R 21, Rose LJ at [4]).

In light of the above statement, evaluate the provisions of the Criminal Justice Act 2003, and the relevant case law under the Act, relating to attack on another’s character.

Sections 98 to 113 of the Criminal Justice Act 2003 (CJA) represent a significant change from the accepted common law approach to the methods by which bad character evidence could be introduced in the course of criminal trial proceedings. Notwithstanding the criticisms directed against the legislation from various quarters, an objective appraisal of the provisions themselves and the judicial interpretations provided since the passage of the CJA confirms that to a large degree, the observations of Rose LJ noted in the title as to Parliament’s purpose are accurate. As importantly, the evidentiary regime established in the CJA strikes a fair and fundamental balance between the principles of reasonable doubt, the right of the defendant to make full answer and defence to a criminal charge, and the societal interest in the effective prosecution of crime.

This paper commences with an overview of the most important changes to the previous law concerning bad character that are now established by the CJA. The procedure contemplated by the joint effect of the CJA provisions and the Criminal Procedure Rules (CPR) is also considered and evaluated. The paper then provides an examination of the principles that support the admissibility of bad character evidence concerning defendant and non-defendant witnesses, with the seven specific ‘gateways’ for such evidence as defined by the CJA given specific consideration. The cases decided since 2004 and relevant academic commentaries are also highlighted.

There are three particular aspects to the CJA regime that guide the present analysis and require specific attention in this regard. These are:

The abolition of the common law rules that previously governed such admissibility as well as the prior rules provided in the Criminal Evidence Act 1898 concerning the cross-examination of defendants as to character

Evidence of bad character concerning a non-defendant is admissible by leave of the court on specific grounds

Evidence of the defendant’s bad character is generally admissible on a wider range of prospective trial issues, by virtue of the seven specific ‘gateways’ established by the CJA

There is no question that the Criminal Justice Act 2003, Part 11 represents a fundamental alteration of prior English law concerning the general admissibility of bad character evidence. Placed in an admittedly restricted nutshell, the prior law confirmed that the prosecution could not adduce evidence of the defendant’s bad character (other than evidence concerning the offence charged or offences against the administration of justice committed in relation to the offence charged). The prosecution was also prohibited from leading evidence of the defendant’s propensity to commit criminal acts even if relevant to the charge. In this way, the previous bad character evidence rules were an exception to the general rule that all relevant evidence is admissible in a criminal trial. The traditional caveat advanced in this respect that justified the exclusion of evidence of bad character was that it is often irrelevant to the proof of a defendant’s guilt; insofar as it is relevant, its prejudicial effect outweighs its probative value.

The reworking of the law in the CJA commences with the definition of bad character provided at s.98 and s.112. There are two specific ingredients in the definition. Bad character evidence may include any evidence of misconduct or a “disposition” towards misconduct; it may also include misconduct established through evidence of the “…commission of an offence or other reprehensible conduct”.

Subject to special procedures that governed the admissibility of ‘similar fact’ evidence that also may have provided the basis for bad character evidence to be admitted against a defendant, the case law that has subsequently interpreted the admittedly broad expressions ‘misconduct’ and ‘reprehensible conduct’ as employed in the CJA has given each phrase a sensible meaning. If the entire purpose of criminal evidence rules may be summarised as achieving the balance between private rights to full defence and the interest of the state as contended in the paper’s opening paragraph, the case law achieves this purpose. In Weir, the Court of Appeal determined that the propensity to commit crime on the part of an accused could be proven with reference to the defendant’s commission of other crimes, but the prosecution could establish propensity by other means. The ‘other means’ were fleshed out in the other case law, including Renda, where the Court ruled that a prosecution witness may be cross-examined about incidents of misconduct known to the defendant which had never themselves been the subject of a criminal charge.

It is contended that a greater breadth afforded judicial discretion to admit bad character does not improperly impair the defence so much as it ensures a greater range of relevant evidence may be considered by the court. This discretion is placed within a procedural construct that has proven useful in the relatively brief life of the CJA provisions. The prosecution is required to provide the defendant a minimum of 14 days notice of its intention to introduce bad character evidence at trial; the defendant has the opportunity to object prior to the tendering of the proposed evidence and a ruling will be obtained accordingly. The procedure applies to bad character evidence proposed by the prosecution and such evidence a defendant proposes to call with respect to a co-defendant.

These rules achieve two important results not necessarily guaranteed under the former regime where applications of this nature were regularly permitted to be made by trail judges within the trial proper. The defence will not be surprised or in any way caught unawares by the prosecution application to rely on bad character evidence. In a system of justice that historically exhibited reluctance to provide full disclosure of the entire case relied upon by the prosecution in advance of trial, this Rule is a very positive development that promotes the overarching principle of procedural fairness. The secondary benefit achieved through this procedure is a more focused trial. Jurors and witnesses ought to expect that they shall attend a proceeding that will not be diverted from the orderly calling of evidence by virtue of unexpected motions brought to resolve questions of admissibility that can be resolved efficiently at the pre-trial application stage.

Further, the notice provisions provided in the CJA and the Rules of Criminal Procedure permit all parties to make appropriate enquiries in advance of trial concerning the intended evidence. In this important sense, the relevance of the evidence can be buttressed or challenged in a thorough and effective way where appropriate.

The distinction in the treatment of bad character evidence that pertains to non-defendants and defendants is confirmed in s. 100 CJA. It is important to note that the often problematic evidentiary rules concerning the cross-examination of a sexual assault complainant are excluded from the operation of the CJA in this respect. It is contended that this exception is the one significant difficulty revealed by the revisions. The special provisions that were enacted to govern the admissibility of prior sexual history evidence have attracted significant attention. For example, there is a legitimate need to ensure that a defendant in a sexual offence prosecution is not permitted to equate the fact that a woman did not make complaint concerning his conduct at an earlier time with the conclusion that the present complaint must be false. Criminal trials should not be determined on the basis of ‘rape myths’ or stereotypical notions of how a rape victim ought to behave. However, it would be preferable that all criminal evidence be evaluated using the same criteria. The CJA framework is entirely suited to prevent the introduction of such evidence when the ‘gateway’ principles are applied; special consideration for specific offences undermines the cohesiveness of the law.

In all other respects, the language used in s. 100 section provides the clearest possible demarcation between the permitted approaches to the tendering of non-defendant bad character evidence. Only where the proposed evidence is important explanatory evidence, or where the evidence is directed to an issue in the proceedings and it is of substantial importance to the presentation of the case as a whole may it be admitted. The section provides amplification on the definition of the phrase ‘important explanatory evidence’ as evidence without which the jury would find the case difficult or impossible to understand (all emphasis added).

A semantic criticism may be made that the use of ‘difficult’ and ‘impossible’ in the same definitional expression is clumsy and may lead to inconsistency given the different each term provides as a condition precedent to admissibility. However, the underlying philosophy inherent in the section is sound. Bad character evidence that relates to non-defendant’s ought to be pre-screened by the trial judge to ensure its relevance and to give greater assurance that the trial process is not distracted from the consideration of important evidence. The subsequent case law has properly limited ‘misconduct’ evidence to exclude an arrest on a criminal charge; the section imposes a higher test with respect to the introduction of a non-defendant’s bad character than does the test for the introduction of a defendant’s bad character.

Prospective bad character evidence concerning a defendant is potentially admissible through one or more of the seven procedural ‘gateways’ established in s. 101 (1) CJA. Each provision has a valid trial fairness objective; for example, bad character admitted on consent, or such evidence led to rebut a defence attack on another person’s character are as rooted in common sense as they are fair adjudicative principles. The gateways that restate the importance of explanatory evidence to give a fact situation appropriate context, and the traditional relevance / probative value versus prejudicial test developed in the common law warrant further examination in this regard. These are the most important and the most litigated provisions in the gateway structure.

Edwards provides a useful example of how a court will assess how important background evidence must be to the understanding of the entire case. In this decision, the Court of Appeal confirmed that for a jury to properly understand the nuance of a heroin trafficking transaction, evidence could be called by the prosecution to explain how such transactions proceeded if they were to understand why a witness said that they could identify the defendant.

Relevance to an important matter between the defence and the prosecution as described in s. 101 (1) (d) CJA is not restricted to the defendant’s alleged propensity to commit the subject crime or crime generally. The provision represents a barrier to the prosecution to call such evidence if it is not central to its chief purpose. For example, whilst the previous common law based limitations on the tendering of a defendant’s criminal record was often regarded as highly prejudicial to the prosecution, the revisions enacted in the CJA provisions do not countenance the wholesale introduction of such evidence, notwithstanding how attractive the evidence might be to the prosecution in the context of its desire to make the most of its position.

Campbell is a decision that underscores why the CJA provisions strike the appropriate balance between defendant interests and the jury’s ability to fairly decide the case. The trial judge in Campbell permitted the jury to hear evidence of the defendant’s two prior convictions without permitting them to hear any other background into those earlier events. It is not surprising that after the judge’s charge to the jury, this question was asked by the jury, “What was the significance of revealing the defendant’s two previous assault convictions? Anything else we should know?”The introduction of a criminal conviction alone absent information that provides context to the events that led to the previous entry may result in a skewed understanding of the defendant that prejudices the defence position; the approved course by virtue of Campbell is that the jury should be warned not to attach too much weight to bad character evidence, let alone conclude that the defendant is guilty simply because of his bad character.

The substantial probative value requirement for bad character evidence as confirmed in s. 101 (1) (e) reinforces the traditional bedrock proposition of criminal evidence admissibility – judges must ensure that the probative value exceeds its prejudicial effect. By placing this important principle within the seven avenue evidentiary gateway, the CJA achieves a comprehensive effect concerning the admissibility and appropriate evaluation of bad character evidence that the prior pastiche of common law principles and circumstance driven exceptions could never achieve.

When all of the provisions discussed above are taken together, a clear picture is drawn of the over all effect of the CJA with respect to the admissibility of bad character evidence. The law has been made more certain, but not at the expense of trial or procedural fairness. Relevance and probative value are given their due, and the ability of the defence to counter evidence that passes the CJA standards is unimpaired by its approach as contained in sections 98 to 113.

Bibliography

Statutes and Rules considered

Canadian Charter of Rights and Freedoms 1982

Canada Evidence Act 1990

Criminal Justice Act 2003, ss. 98 -113

Criminal Procedure Rules, Part 35

Cases and reports considered A, R v [2001] 3 All ER 1

Boardman v DPP [1975] AC 421

Bovell and Dowds, R v [2005] EWCA Crim 1091

Campbell, R v [2007] 1 WLR 2798

Corbett , R. v. (1988) 41 C.C.C. (3d) 385

Edwards, Fysh Duggan & Chohan, R v [2005] EWCA Crim 1813

Hanson, Gilmore and Pickstone, R v [2005] EWCA Crim 824

Highton, Van Nguyen and Carp, R v [2005] EWCA Crim 1985

Humphris, R v

[2005] EWCA Crim 2030

Maxwell v DPP [1935] AC 309

O’Brien v Chief Constable of South Wales Police [2005] 2 WLR 1038

Renda & Others, R v [2005] EWCA Crim 2826

Weir & Others, R v [2005] EWCA Crim 2866

Authorities considered

Allen, Christopher (2006) Evidence Q&A 2005-2006 6/e London: Cavendish Routledge

Crown Prosecution Service (2008). Bad Character Evidence [online] Retrieved March 15, 2010 at:< http://www.cps.gov.uk/legal/a_to_c/bad_character_evidence/>

Durston, Gregory (2004) ‘Bad character evidence and non-party witnesses under the Criminal Justice Act 2003? International Journal of Evidence and Proof 8, 4: 233-239

Law Commission Evidence of Bad Character in Criminal Proceedings (Report) [2001] EWLC 273(2)

Fowles, Tony (2006) ‘Counterblast: The Criminal Justice Act 2003 – The End of an Era?’ Howard Journal of Criminal Justice 45, 1: 71-73

O’Brian, William E. (2009) ‘The Right of Confrontation: US and European Perspectives’ Warwick School of Law Research (2005) 121 LQR 481-510

Spencer, J.R. (2006). Evidence of Bad Character. Oxford: Hart Publishing.

E.g. Fowles, Tony (2006) ‘Counterblast: The Criminal Justice Act 2003 – The End of an Era?’ Howard Journal of Criminal Justice 45, 1: 71-73; O’Brian, William E. (2009) ‘The Right of Confrontation: US and European Perspectives’ Warwick School of Law Research (2005) 121 LQR 481-510

The Bibliography reveals a large number of decisions in this area that were rendered between 2005 and 2007, the time frame within which the first trial decisions that applied the new CJA procedures were considered by the Court of Appeal.

S.99 (1) CJA

S.100

S. 101(1); the ‘gateways’ are subsections (a) through (g)

Ss.98 to 113, CJA

E.g. Escaping lawful custody or resisting arrest

Maxwell v DPP [1935] AC 309

; Lord Hailsham described the contests between prosecution and defence over propensity evidence as having left a “pitted battlefield” ( DPP v Boardman [1975] AC 421, 445), a testament to the historical importance of this issue in English law that underscores the significance of the CJA provisions

Law Commission Evidence of Bad Character in Criminal Proceedings (Report) [2001] EWLC 273(2)

Ss. 98, 112

Similar fact evidence admissibility (so called) was subject to the common law rules confirmed in Boardman v DPP [1975] AC 421, where the fundamental evidentiary test of prejudicial effect versus probative value applicable to all types of evidence generally governed similar fact admissibility

Weir & Others, R v [2005] EWCA Crim 2866

Renda & Others, R v [2005] EWCA Crim 2826

By virtue of the combined operation of ss. 111(2), CJA and Part 35, Rules of Criminal Procedure

ibid

Ibid; see Hanson, [2005] EWCA Crim 824, para 117

Other Anglo-American jurisdictions such as Canada opted to enshrine full disclosure and prosecutorial notice in bad character evidence applications in their laws some years ago. See Canadian Charter of Rights and Freedoms, s.7, the Canada Evidence Act, s. 12 and the leading case of Corbett (1988), 41 C.C.C. (3d) 385 at 399-401

See Humphris [2005] EWCA Crim 2030; Edwards [2005] EWCA Crim 1813; Bovell and Dowds [2005] EWCA Crim 1091, all cases that reinforce the relationship between procedural fairness and the s.111(2) CJA provisions

S. 41 Youth Justice and Criminal Evidence Act; see also Durston, Gregory (2004) ‘Bad character evidence and non-party witnesses under the Criminal Justice Act 2003? International Journal of Evidence and Proof 8, 4: 233-239

R v A [2001] 3 All ER 1

ibid

Weir, para 73, 74

Ibid, 36; see also O’Brien v Chief Constable of South Wales Police [2005] 2 WLR 1038

S.101 (1) (a)

S.101 (g)

S. 101 (c); the traditional rules concerning res gestae statements will form a part of this consideration

Ss. 101 (d) and (e), respectively

[2005] EWCA Crim 1813, para 70, 71

Ibid; an important weakness in the prior law is discussed in Crown Prosecution Service (2008). Bad Character Evidence [online] Retrieved March 15, 2010 at:< http://www.cps.gov.uk/legal/a_to_c/bad_character_evidence/>, at part 2 (Principle); the prior law did not define what constituted background

See e.g. Highton, Van Nguyen and Carp [2005] EWCA Crim 1985; see also generally Spencer, J.R. (2006). Evidence of Bad Character, c.1, 2

See Campbell [2007] 1 WLR 2798

Ibid

Ibid, para 14

Ibid, para 45

Boardman , supra; see also Allen, Christopher (2006) Evidence Q&A 2005-2006 6/e

Spencer, 4.20, 4.29