Category: Free Essays

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

Discuss the difference between the way the law treats married and unmarried couples. Do you think there should be such differences legally? Does the law on cohabitation, marriage and divorce need reform?

There are several ways in which married couples are treated differently to unmarried couples. Most of the differences occur in respect of money issues and generally become apparent on the death of one of the parties or when the parties separate .

Issues that are handled differently with married couples include capital gains tax , wills , inheritance tax , pensions and issues where children are involved. This includes children from former relationships as well as from their present relationship .

When examining the law surrounding capital gains tax and inheritance tax the law will treat unmarried couples as two separate individuals when dealing with these matters. By treating them this way they are taxed individually. In situations were the couple are married capital gains tax and inheritance tax would be avoided altogether. An unmarried couple would have to pay both if one of the partners dies.

When assessing capital gains tax according to tax legislation all people have an allowance of ?8,000 before they have to pay tax. Married couples get allowed twice this amount per year and can avoid paying such tax by transferring assets to the partner who earns the lowest . Unmarried couples are governed by the allowance and cannot avoid tax in this manner.

Similarly the law on inheritance tax is set at ?285,000 for anyone who is not married. Inheritance tax includes the price of any property that is left to the beneficiary which makes it so that a lot of people will be subject to this tax given the recent huge increase in house prices. With married couples the whole of the estate can pass to the surviving spouse without being subjected to any inheritance tax regardless of the amount inherited .

For those who are not married a will is essential as it would be unlikely for the partner to be able to inherit anything from their deceased partner’s estate without a will . Such a will has to specifically name the partner as a personal representative of the deceased in order for the surviving partner to be able to administer the will. In cases where unmarried couples have failed to make a will the partner has occasionally not received any property or money from the estate of the deceased .

By contrast in cases where the couple are married and the parties have not made a will the estate and any other possessions of the deceased will automatically be awarded to the surviving spouse in cases where there are no children from the relationship . If they do have children then a proportion of the inheritance would be reserved for the children.

Problems have also arisen in respect of pensions . The government has attempted to address this issue just recently but as yet the new proposals have not been implemented so it is debatable as to whether unmarried couple would be entitled to the pension or not. In general most employers do not consider cohabiting couples in respect of payments for death in service . Those who are cohabiting can make it so that their partner does benefit by naming the intended beneficiary in the policy .

Couples who are not married can also face difficulties if one of the parties needs medical treatment. With a married couple the spouse is regarded as the next of kin and can give permission for surgery or treatment if the other party is unable to do so because of their condition. With an unmarried couple the other party is not classed as the next of kin and therefore the hospital have to assume the role of deciding what treatment is in the best interests of the patient. Similarly if one of the parties dies the unmarried partner is not allowed to deal with the funeral arrangements unless there is no surviving next of kin to handle the arrangements. Unmarried partners are not entitled to register the death of their partner unless they were the one that came upon the partner after they died. They would not be able to register the death as the partner of the deceased and would merely be classed as the person authorised to arrange the funeral.

Cohabiting couples can also face problems if the relationship comes to an end and they decide to separate. Some have made preparation for such eventualities by drawing up cohabitation agreements . Within a cohabitation agreement the couple can include how the property and items within the property should be distributed in the event of the couple deciding to split up.

One of the biggest areas of contention usually concerns the house on which the couple have been living. Both married and unmarried couples can reside in the property either as tenants in common or as joint tenants. Where the property is registered in the names of both parties they each will have equal shares regardless of whether they are married or not. Difficulties arise where the property has only been registered in one name. In some instances the courts will be asked to decide whether the property should belong to the name person only or whether the other party should be entitled to a share. The courts are free to infer joint ownership using the principle of implied or constructive trusts . A constructive trust could be inferred if the actions of the parties would appear to suggest that they expected to have an interest in the property. This assumption can be made from evidence showing direct contribution to the household bills or to repairs in the property . Evidence that money was paid towards the purchase price could lead to the presumption of a resulting trust which would entitle that party to a direct share of the property.

With a married couple the courts will often allow the spouse to remain in the family home regardless of whether the property has been registered in that person’s name or not . The Matrimonial Proceedings and Property Act 1979 s37 entitles married partners to remain in the home even if the property was only registered in one of the couple’s names.

It is not only mortgaged or owned properties that can cause these problems. Rented accommodation can be problematic especially with local authority housing as the council will often not allow the property to transfer to the partner not named on the agreement if the couple are not married. Married couples are more fortunate and it is more likely that the council would allow the transfer to a spouse . Difficulties with transferring rented properties to unmarried partners have occurred on a number of occasions and also affect same sex couples as well as heterosexuals .

Jointly owned properties can be transferred to either spouse or partner at the order of the courts, and particular regard is likely to be given to the issue of children within the relationship. In some instances the court will order that the property is to be settled, especially where there are children to consider. With a settled property the parent with control of the child would be entitled to remain in the property until that child attains the age of 18 .After this time the property would be ordered to be sold and the profit from the equity to be split.

A further issue that is different for married couples to unmarried couples is that with a married couple the wife is usually entitled to financial support for both her and her children . An unmarried person is less likely to be granted financial support. Most unmarried couples find it difficult to prove that they were a couple. When making awards to unmarried couples the courts will look for evidence that the couple were acting in a manner that could be regarded as a marriage . It is the responsibility of the couple to provide the necessary proof to demonstrate that they regarded themselves as though they were married. Failure to provide this proof can lead to the courts rejecting any application with regards to the family home or financial support of any kind .

Difficulties can also arise in respect of children from the relationship in situations where the parents are not married. With a married couple both parents will have automatic parental responsibility for any children born inside the marriage . Unmarried couples are treated differently with the father of the child only being granted parental responsibility if he attends with the natural mother to register the birth or if he applies to the courts for parental responsibility in cases where the mother refuses to allow him to have parental parental responsibility.

Registering the child’s birth is also different depending on whether the couple are married or not. Under s9 of the Registration of Births and Deaths Regulations 1987 the birth must be registered by a qualified informant. Married couples are both classed as qualified informants . In an unmarried couple situation only the mother is a qualified informant and the father can only appear on the child’s birth certificate if the natural mother agrees to him being included. An unmarried father would only be entitled to register either by a statutory declaration made by the natural mother or through a court order .

The government has attempted to address the unfairness in the present system for same sex cohabiting couples through the introduction of the Civil Partnership Act 2004. The introduction of this Act only affects those that have undergone a civil ceremony to have their relationship formally recognised. For those that have had a civil ceremony legislation protects their rights with regard to property and finances in much the same way as with married couples.

At present the government has still got to ratify the Relationships (Civil Registration) Bill. This commenced its journey through Parliament in 2002 but as yet has not been made law. Once the Act is passed cohabiting couples will have similar protection to married couples despite there having been no formal ceremony undertaken. There have been many objections to this Bill, the most important of these being the assertion that allowing the Bill to be passed would undermine the whole notion of marriage. Many believe that if the Bill becomes law there will no longer be a need for anyone to get married as they can acquire the same rights as married couples by relying on the Bill.

The Bill if introduced would entitle cohabiting couples to register their relationship in a similar way to marriage which would give them tights in respect of inheritance, housing problems, pensions, social security payments and immigration as well as other areas. Under the Bill if the couple decide to separate then the registered partnership could be dissolved twelve months after dissolution has been applied for.

The Solicitor’s Family Law Association has backed the proposal for new laws on cohabiting couples. They believe that the existing law is too ambiguous and does not adequately meet the needs of those who have chosen not to marry but to cohabit. Concern has been raised that the proposed Bill would effectively amend social security legislation and place registered partners in the same position financially as married couples.

The Law Commission in their paper in July 2007 entitled ‘Cohabitation: The Financial Consequences of Relationship Breakdown’ examined couples living together outside of marriage to decide whether any remedies could be suggested to make things more equal for couples when they separate or one of the parties dies. They felt that financial provision should be made under the Children Act 1989 where there are children from the relationship. They also felt that in circumstances where the cohabitant dies intestate the surviving partner should have automatic rights to inherit. At present cohabitants can only benefit from the estate under the Inheritance (Provision for Family and Dependants) Act 1975 which will grant them a discretionary award on the basis of the needs of the surviving partner.

Argument has surrounded providing further protection through legislation for cohabiting heterosexual couples on the basis that it would be unfair to give them the same rights as married couples and not have the same hurdles for them to overcome in the event of the relationship breaking down. At present married couples wishing to end their relationship have to go through the formal process of divorce which can be extremely costly. Cohabiting couples can just go their separate ways without the need to make the separation formal. Under the Civil Partnership Act 2004 same sex couples have to undergo the equivalent of a divorce in order to dissolve the relationship.

It is difficult to reach a firm conclusion as to whether the law in this area required revising as the argument that a cohabiting couple should marry if they want to protect their rights seems to be a very valid proposition. Couples who choose to cohabit often do so because of the ease at which the relationship can be brought to an end in the event of things going wrong in the relationship. Simplifying the law on divorce and reducing the amount it costs to obtain a divorce might encourage more cohabiting couples to get married. The removal of tax benefits such as the MIRAS scheme has also meant that many couples that might previously have married to gaining such benefits no longer feel the need to.

The recent changed in the law in respect of parental responsibility have also done little to promote marriage as a positive element. Previously parental responsibility could only be obtained through an order of the court. Since December 2003 the father of the child gains automatic parental responsibility if they are named as the father on the birth certificate at the time that the baby is registered.

It could be argued that not protecting the rights of unmarried couples is tantamount to forcing them to enter into a marriage in order to receive the benefits attached to married couples. However, the counter argument from those opposed to cohabitation is that the ceremony is only a formality and that if the couple intend to stay together regardless then it should not matter if they are made to undergo a formal marriage ceremony.

The conclusion that can be drawn from the above is that there is a great deal of unfairness in the way that cohabiting couples are treated as opposed to married couples. By providing legislation to protect their rights in a similar manner to the rights of married couples would undermine the whole purpose of marriage and make it more tempting for couples to opt for cohabitation as opposed to marriage as it is easier and less costly to get out of a cohabiting relationship then a married one. Simplification in divorce proceedings and a less costly way of handling divorce might give cohabiting couples the necessary incentive to undergo a formal marriage ceremony.

Bibliography

Cretney, S.M& Masson, J M, Principles of Family Law, 6th Ed, 1997, sweet & Maxwell

Gravells, N P, Land Law Text and Materials, 2nd Ed, 1999, Sweet & Maxwell

Inns of Court School of Law, Family Law in Practice, 5th Ed, 2001, Oxford University Press

Oldham, M? Statutes on Family Law, 10th Ed, 2002, Blackstone’s
The Child Support Agency, Child Support Handbook 2001/2002 CSA Standards of Service

The Law Commission in their paper in July 2007 entitled ‘Cohabitation: The Financial Consequences of Relationship Breakdown’

Thomas, M, Statutes on Property Law, 8th Ed, 2001, Blackstone’s

http://www.oneplusone.org.uk

http://news.bbc.co.uk

http://www.hmrc.gov.uk

http://www.taxationweb.co.uk

http://www.crossmans.co.uk

Table of Cases

Crake v Supplementary Benefits Commission [1982] 1 All ER 498

Drake v Whipp [1996] 1 FLR 826

Fitzpatrick v Sterling Housing Association Ltd [2001] 1 A.C. 27 [1999] 3 W.L.R. 1113 [1999] 4 All E.R. 705 [1999] 2 F.L.R. 1027 [2000] 1 F.L.R. 271 [2000] 1 F.C.R. 21 [2000] U.K.H.R.R. 25 7 B.H.R.C. 200 (2000) 32 H.L.R. 178 [2000] L. & T.R. 44 [2000] Fam. Law 14 [1999] E.G.C.S. 125 (1999) 96(43) L.S.G. 3 [1999] N.P.C. 127 (2000) 79 P. & C.R. D4 Times, November 2, 1999 Independent, November 2, 1999

Gissing v Gissing [1971] AC 886

H v M ( Property: Beneficial Interest) [1992] 1 FLR

Leadbetter v Leadbetter [1985] FLR 789

Lloyds Bank Plc v Rosset [1991] 1 AC 107

Mesher v Mesher [198] 1 All ER 126

Ungurian v Lesnoff [1990] Ch 206

Table of Statutes

Administration of Estates Act 1925

Children Act 1989

Family Law Act 1996

Inheritance (Provision for Family and Dependants) Act 1975

Law of Property (Miscellaneous Provisions) Act 1994

Law of Property Act 1925

Matrimonial Proceedings and Property Act 1979

Pensions Act 2004

Registration of Births and Deaths Regulations 1987

Relationships (Civil Registration) Bill

Will Act 1837

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

Introduction

The question in this case refers to the creation of a trust, i.e. the formalities that are required. In the case of Serena, she has created a trust that holds the property in trust for Alice for life and then the remainder goes to Alice’s children. On the death of Serena, there is a valid will where Alice gets all of the property and there is no interest for Alice’s children. Therefore, the following advice is going to identify a trust is in place, which will ensure that the property transfers to the children.

The Creation of a trust

The case of Milroy v Lord identifies a perfect trust, which includes; 1) a deed of the trust; and 2) transfer of the property following all formalities . Therefore, in the case of the trust created by Serena, both the property “Hillside” and the Jane Austin books have the capability of being part of a perfect trust. However, in the case of the land there are additional formalities, which will be discussed later. At this point there is a perfect trust that related to the books, because this is a case of a perfect trust, because there is both declaration and transfer of the books to the trustees . The share certificate and cheque are not in the deed documents, but have been transferred to the trustee with the declaration “to be added to the trust”. This is not a full deed, but applying the case of Milroy v Lord it is a declaration plus transfer of the property, which means that it has a capability of being a trust under Neville v Wilson and Vandervell v IRC . The argument still remains on whether the formalities have been fulfilled in the case of the land, shares and cheque which can be a contentious subject.

The need for formalities?

The case of Neville v Wilson held that the formalities of a trust need not be in writing if it can be shown that intention is present; however, problems have arisen in showing this intention, which is why the Statute of Fraud 1677 introduced the need formalities A similar argument that there is no need for formalities was expressed in the case of Walsh v Lonsdale in 1882; however as it can be seen in 1925 the formalities were required for all property under a trust. However, it seems to be that the argument for these formalities is that they clarify the intention of the settlor.

S. 53(1)(c) of the Law of Property Act 1925 (LPA 1925) is now the defining piece of legislation for where trust formalities can be identified. In the case of Timpson’s Executers v Yerbury it was held that the formalities of a trust can be identified in the written disposition of the trust and the transferring of the property to the trustees. The interest in respect to Uncle Joe’s Trust is an equitable interest; therefore should comply with s. 53(1)(c). As this trust is in the original deed then it complies with the formalities of 53(1)(c) an like the Jane Austen’s novels form a perfect trust, as the deed identifies both the intention and the transfer of the “equitable interest” to the new trust. The shares are another example of an equitable interest; however as will be discussed later may not form a perfect trust due to deficiencies in formalities.

In the case of Alice some of the property has been adequately transferred through deed and transfer to the trustees; however there remain questions if the whole trust can be properly administered. If one considers the case of Neville v Wilson the indication is that the requisite intention is enough. However, the problem is that Neville v Wilson is in direct contradiction with s. 53(1)(c) of the LPA 1925, which states that “a disposition of an equitable interest… subsisting at the time of the disposition, must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by his will”. This would mean, the prima facie facts of the case, are that all of the property would have to be in the initial trust deed in order for it to be transferred on trust to Alice; whereby anything outside of it would return to the estate. However, it is not as simple as this. The case of Neville v Wilson needs to be reconciled and there are additional formalities required in respect to shares and land.

The Transfer of the Land:

In the case of the land s. 53(1)(b) states that a “declaration of trust respecting any land or interest therein must be manifested and proved by writing signed by the person who is able to declare such trust or by his will.” Therefore, the land must be transferred by deed to the trustees, which has been done in the case of Hillside; therefore it would indicate that as soon as the deeds to the property were transferred to the trustees the land has been moved into a trust. The exact route of transfer has been identified in the Law of Property (Miscellaneous Provisions) Act 1989 s. 2, which identifies that the deed needs to be properly signed by each party in the transfer . This means that the trustees must have signed for the exchange and the deeds in this case. The implication of this is not clear as the deed document has been transferred to the trustees, but the question is whether this deed shows the trustees as the legal owners, if not then the formalities have not been fulfilled and the property has not passed, as per the case of Firstpost Homes v Johnson .

The Shares:

In the case of the shares, as an equitable interest, s, 53(1)(c) should be followed, which means that the shares should be deeded and in writing, as well as entered into the company books as registration of change . In the case of shares the formalities are important, because like land there are external legal formalities that must be complied with. Therefore, if the settlor had not begun the steps to transfer the shares, with the company, then regardless of whether there was an intention and the share certificates were placed in the hands of the trustees the constitution had not been fulfilled . This was the approach that has been taken in Grey v IRC and Oughtred v. IRC ; however Vandervell held that if the deeds and the shares had been transferred to the trustee then it will be implied that the trust is perfect. A similar approach was taken in Re Rose and Hunter v Moss where transferring the correct information to the company was enough, as it was in the hands of a third party. The problem in this case is that there is no formal deed, even though the shares have been transferred. This means that the trust is not properly constituted in respect to the shares and would go back to the estate.

The Cheque

As this is a chattel the case of Neville v Wilson will apply, because the requirements of Milroy v Lord have been fulfilled and a perfect trust will be implied.

Duty of the Trustee and Remedies:
Introduction:

The case of Alan relates to the duty of a trustee, a breach of trust and the equitable remedies that are available. Alan is a director of a company that holds a trust for the holidays that it sells on behalf of Go Ltd, which is separated from Buyit Now’s accounts. The question that is raised is whether the actions of Alan, by; 1) failing to put the money into BuyIt now are accounts; and 2) taking money out of Go Ltd’s account to purchase a gift for his girlfriend, are a breach of trust. Then it will consider if it is a breach of trust what remedies are available to reclaim the lost money. The first part of this question will identify the duty of the trustee and the implications for the other directors of Buyit Now. Then it will consider what remedies are available to Go Ltd to retrieve the lost money.

Duty of the Trustees:

The administration of a trust is set out by the Trustees Act 2000 (TA 2000). Section 1 of the act defines the duty of case requirements that the trustee must adhere to, which is to “exercise such skill and care as reasonable in all circumstances”. The implication of this is that there is a minimum test for the private trustees as a reasonable trustee . However, s. 1 TA 2000 put the decision of Speight v Gaunt into statutes, highlighting that this is a higher duty of case for any trustee with “special knowledge or experience” should take “all those precautions which an ordinary prudent man of business would take in managing similar affairs of his own” . This means that in the case of Alan and the directors of the company they owe a standard of care of a company director . It is also important as this trust has been set up in the course of the company’s business that s. 1(b) of the TA 2000 will apply, which means that the level of the duty of care will be that which is “reasonable to expect of a person acting in the course of that kind of business” . It is important to note that the Nestle Case identified that a trustee cannot be held in breach of trust for a mere error of judgement. It must also be identified that as this is a company/industry arrangement there may be an exclusion clause in place that limits liability. This is a perfectly valid approach and upheld in the case of Armitage v Nurse , which states “[n]o trustees shall be liable for any loss of damage which may happen to a trust fund… at any time from any cause whatsoever unless such loss shall be caused by his own fraud”. However, in the case of Alan there is more than a mere error of judgement and it is highly likely that his acts would be classed as:

1) Wilful deceit, in regards to the monies that were never transferred; and 2) Recklessness in regards to the monies that were taken from Go Ltd to pay for a yacht for his girlfriend This was confirmed in the case of Re City Equitable Fire Insurance Co as “either a consciousness of negligence or breach of duty, or a recklessness in the performance of a duty” . Therefore, the acts of Alan could not be limited by an exclusion clause.

Remedies:

There is a problem with this case, which is that the company is the trustee and each of its directors are to act personally . To follow on from this each of the trustees, as BuyIt will be a corporation trust for Go Ltd, as it is an industry association it must be assumed that BuyIT has capability in its Articles of Association. This means that one trustee (Director) cannot be liable for the actions of another unless they facilitated, by act or omission, the breach . This means that the company cannot be held in breach, only Alan unless it can be shown that the other trustees were put on notice . However, the indication is that this is not the case. This raises a problem in regards to receiving the monies from the administrators of BuyIt, because as BuyIt as a whole was not in breach there is no claim against the company. As the company acts as a trustee the dishonesty of Alan cannot be imputed to the other director’s in the company. This means that there is only a personal breach of Alan in the trust.

Rather, it must be against Alan personally for breach of trust. Alan is personally wealth then it may be the case that if all of the losses can be reclaimed in an action for personal breach of trust . However, as his wealth has depleted it may be that not all the monies can be recovered this way. Therefore, the remedy of tracing is available, as per Re Diplock . The case of Foskett v McKeown identified that tracing is not a remedy, but a process to identify the lost property. In the case of Go’s lost money the money transferred to buy the yacht is easy to trace , but as the yacht is destroyed then it is of no worth. This means that it may be the case that personal action against Alan is the only available option. However, according to Re Diplock it will be able to trace the money from Alan’s girlfriend as she benefited from the act, as well as she may have known of the act. If Fiona does know then she is as liable as Alan . It is possible that she did not know of the act; however as she received the gift and it can be traced back to Fiona. It is possible that an innocent third party can be approached to claim the lost funds, but it may only be limited to estates . Even so the case of Butler v Broadland and Re J Leslie Engineers Co Ltd have indicated this act may be extended to other fiduciary relationships, which there are indications that in the case of insolvency there would be strong case. This is because the money to claim from the trustee that has breached the trust, just like in the case of a deceased settlor, is no longer available. In this case it would be fair to pursue the innocent third party.

In the case of the monies it is mixed with that Buy It’s, which means that it may not be possible to trace as a mixed, as opposed to an unmixed account . However, it is identified that if mixed or not it must continue to exist unless it has been used to pay a debt or completely depleted . Therefore, as the company is bankrupt it is more than likely that the funds are now untraceable from BuyIt, which means that personal action is only available.

References:

1) Clemants and Abbass (2008) Complete Equity and Trusts: Texts Cases and Materials, OUP 2) Edwards & N. Stockwell (2002) Trusts and Equity, Longman 3) Edwards & N. Stockwell (2010) Equity and Trusts 9th Edition, Longman 4) Hayton & Mitchell (2005) Commentary and Cases on the Law of Trusts and Equitable Remedies 12th Edition, Sweet & Maxwell 5) Hudson, A (2009) Equity and Trusts 4th Ed, Routledge Cavendish 6) Burn and Virgo (2002) Maudsley & Burns Trust and Trustee, Case & Materials, 7th Ed, OUP 7) Law commission (1999) 7th Programme of reform No 259 8) Law Commission in Trustees’ Powers and Duties (Law Com, 1999, Report No. 260) 9) Moffat, G, Bean, Dewar (2005) Trusts Law: Texts and Materials 4th Ed. CUP 10) Pearce, Stevens & Barr (2010) The Law of Trusts and Equitable Obligations5th edition, OUP 11) Watt, G (2010) Equity and Trusts Directions 2nd Ed, OUP 12) Watt, G (2010) Equity and Trusts 4th Ed, OUP

Cases:

1) Milroy v Lord (1862) 4 De GF & J 264 2) Neville v Wilson [1997] Ch 144; 14-15; 3) Vandervell v IRC [1967] 2 AC 291 4) Walsh v Lonsdale [1882] 21 Ch D 14 5) Timpson’s Executers v Yerbury [1936] 1 KB 645 6) Firstpost Homes v Johnson [1995] 4 All ER 355 7) Grey v IRC [1960] AC 1 8) Grey v Oughtred [1960] AC 206 9) Re Rose [1952] 1 All ER 1217 10) Hunter v Moss [1994] 3 All ER 215 11) Speight v Gaunt (1883) 9 App Cas 1 12) Walker v Stones [2001] 2 WLR 623 13) Nestle v National Westminster Bank [2000] WTLR 795; cf 14) Armitage v Nurse (1998) Ch 241 15) Re City Equitable Fire Insurance Co [1925] Ch 40 16) Royal Brunei Airlines v Tan (1995 2 AC 378) 17) Brinks Ltd v Abu-Saleh (1995) WLR 1478 18) Styles v Guy (1849) 19 LT Ch 185 19) Target Holdings v Redfern [1995] UKHL 10; Jackson v Dickinson (1903) 1 Ch. 952 20) Re Diplock [1948] Ch. 465 21) Foskett v McKeown [2000] 3 All ER 97 22) Taylor v Plumer (1815) 3 M & S 562 23) Ministry of Health v Simpson [1951] AC 251 24) Banque Belge pour l’Etranger v Hambrouk [1921] 1 KB 321 25) Agip(Africa) v Jackson [1992] 4 All ER 385 26) Lipkin Gorman v Karpnale [1992] 4 All ER 512

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

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.

Bibliography

Achampong, F. (1987) ‘Uberrimae fides in English and American insurance law: a comparative analysis.’ I.C.L.Q., 36(2), 329-347.

Bennett, H.N. (1993) ‘The duty to disclose in insurance law.’ L.Q.R., 109(Oct), 513-518.

Butcher, C. (2008) ‘Good faith in insurance law: a redundant concept?’ J.B.L., 5, 375-384.

Hird, N. (1998) ‘How to make a drama out of a crisis.’ J.B.L., May, 279-287.

Soyer, B. (2008) ‘Reforming the assured’s pre-contractual duty of utmost good faith in insurance contracts for consumers: are the Law Commissions on the right track?’ J.B.L., 5, 385-414.

Soyer, B. (2009) ‘Reforming pre-contractual information duties in business insurance contracts – one reform too many?’ J.B.L., 1, 15-43.

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

Tarr, Julie-Anne and Tarr, A.A. (2001) ‘The insured’s non-disclosure in the formation of insurance contracts: a comparative perspective.’ I.C.L.Q., 50(3), 577-612.

The Financial Ombudsman Service (2010a) [Online] Available from: 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).

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

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.

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

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.

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

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

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

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

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

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

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

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.