Category: Free Essays

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Employment law race religion

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

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

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

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

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

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

Employment Law Essay

i) Ben’s Case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ECHR

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

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

ii) Catriona’s Case

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

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

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

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

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

iii) Amrit’s Case

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

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

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

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

iv) Jenna’s Case

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

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

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

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

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

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

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

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

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

WORD COUNT: 2047

Bibliography

Text Books:

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

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

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

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

UK Statutes:

Employment Rights Act 1996 (c.18), London

Sex Discrimination Act 1975 (c.65), London

Race Relations Act 1976 (c.74), London

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

Disability Discrimination Act 1995 (c.50), London

Secondary Legislation

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

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

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

EAT Cases:

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

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

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Introduction

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

Parliament as supreme law-maker

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

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

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

Deference to Acts of Parliament

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

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

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

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

The principle of binding successive parliaments

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

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

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

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

Conclusion

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

Bibliography

Case Law

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

Legislation

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

Secondary Sources

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

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

Date authored: 23 ^rd July, 2014.

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

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

and Herne Bay Steamboat Co v Hutton [2]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bibliography
References

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

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

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

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

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

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

Cases

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

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

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

Jarvis v Swans Tours Ltd [1972] EWCA Civ 8

Krell v Henry [1903] 2 KB 740

National Carriers v Panalpina [1981] AC 675

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

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

Taylor v Caldwell [1863] EWHC QB J1

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

Internet Resources

www.lexisnexis.co.uk

legalresearch.westlaw.co.uk

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

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

Date authored: 15 ^th August, 2014.

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

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

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

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

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

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

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

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

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

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

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

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

Bibliography

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

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

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

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

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

R v Bree [2007] EWCA Crim 804

R v C [2009] UHKL 42

R v Dougal [2005] Swansea Crown Court 435

R v Jheeta [2007] EWCA Crim 1699

R v Olugboja [1982] QB 320 CA

R v Williams [1923] 1 KB 340

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

R v. Sir Joseph Priestley

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

BIBLIOGRAPHY

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bibliography

Elliot & Quinn Criminal Law 7th Edition Pearson Education Limited

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

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

Blackstones Criminal Practice 2008 Oxford

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bibliography

Statutes and Rules considered

Canadian Charter of Rights and Freedoms 1982

Canada Evidence Act 1990

Criminal Justice Act 2003, ss. 98 -113

Criminal Procedure Rules, Part 35

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

Boardman v DPP [1975] AC 421

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

Campbell, R v [2007] 1 WLR 2798

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

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

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

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

Humphris, R v

[2005] EWCA Crim 2030

Maxwell v DPP [1935] AC 309

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

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

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

Authorities considered

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

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

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

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

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

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

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

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

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

S.99 (1) CJA

S.100

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

Ss.98 to 113, CJA

E.g. Escaping lawful custody or resisting arrest

Maxwell v DPP [1935] AC 309

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

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

Ss. 98, 112

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

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

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

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

ibid

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

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

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

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

R v A [2001] 3 All ER 1

ibid

Weir, para 73, 74

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

S.101 (1) (a)

S.101 (g)

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

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

[2005] EWCA Crim 1813, para 70, 71

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

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

See Campbell [2007] 1 WLR 2798

Ibid

Ibid, para 14

Ibid, para 45

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

Spencer, 4.20, 4.29

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

Modern perspective on contractual obligation

Empirical studies of contracting behaviour consistently demonstrate that commercial contracting parties care little for written contracts or the rules of contract law. Should the law of contract manifest any concern over this? If not, why not, and if so, how should the rules of contract law be amended to better reflect commercial practice?

Question: A

Introduction

The overwhelming majority of contracts are transacted in an informal setting. Such contracts are either made by word of mouth, or even by a party’s conduct. Whilst that may be the case, written contracts are the types of agreements which are favoured by parties in the commercial world, not least because of what is potentially at stake in the event of a breach of the agreement.
The extent of the terms of some commercial agreements and the seriousness of the implications of a breach of a party’s obligations, written contracts are resorted to to ensure both that the parties to the contract are aware of their rights and obligations and also as a reference tool in the event of a dispute.
The advent of the European Community witnessed a renewed impetus to harmonize the laws pertaining to, inter alia, commercial contracts. Various efforts have already been made to facilitate international transactions. For instance, the Uniform Law on International Sales and the Vienna Sales Convention, the Rome Convention on the Law Applicable to Contractual Obligations. These efforts have been producing w new codified lex mercatoria.
This work is seeks to highlight the rules applicable to parties to commercial contracts within the European Community and whether or not these rules are adequate to cope with parties who do not honour their contractual obligations. More specifically, are contracts which are made orally or by conduct enforceable in European Law?
The essay shall also highlight whether there is any concern if parties care little for written contracts, and if not why not? In the Conclusion, the work shall explain whether or not the rules ought to be modified to reflect current commercial practice.

Harmonising European Contract Law

Efforts already made to harmonize the EU contract law rules have manifested in various forms. The national laws applicable to contracts vary from Member State to Member State. This difference or divergence in the laws inevitably adversely influences the decision of businesses whether or not to carry out cross-border transactions. A difference in the laws can result in uncertainty and negatively affect whether or nota business decides to enter an agreement with a party based in a different Member State. The European institutions have therefore taken action to alleviate this problem by introducing laws which are applicable throughout Member States. These laws come in a variety of forms; Regulations; Directives and European Court of Justice judgments. Most notably, however, The Principles of European Contract Law 1998 has done a good job in encapsulating, codifying and harmonizing the rules of contract law from Member States.

The Principles of European Contract law

Parts I and II – (Parts I and II completed and revised) states (at Article 1) that the Principles are intended to be applied throughout Member States as the general rules of contract law in the EC. Furthermore, the Principles shall apply when the parties agree to their application, or in the event that it has not been expressly stated that a specific system or rules of law shall govern the contract (see Section 1, Article 1.101(3)(b)). In addition, the Principles can also be used where other national laws or rules fail to provide a solution (see Section 1, Article 1.101(4)). Under the Principles however, the parties still maintain the right to freedom of contract. That is to say that parties are permitted to agree upon the terms they wish to agree upon. However, set out in the document are ‘General Obligations’ of ‘Good Faith’ and ‘Fair Dealing’ (Section 2, Article 1.201) and a ‘Duty to Cooperate’ (see Section 2, Article 1.202). These obligations cannot be derogated from and therefore provide a safeguard for parties to a contract. Albeit a contract, under the Principles, may still be made orally or by conduct, and does not have to be in writing. All that is required is that the parties intended to be ‘legally bound’ (see Section 1, Article 2.101), and that they reached a ‘sufficient agreement’ (see Section 2, Article 2.101). Furthermore, those terms which have not been individually negotiated can be invoked (under Article 2.104) against a party who claims to have been unaware of them, providing that the party wishing to invoke them takes reasonable steps to highlight their existence prior to, or at the time of, concluding the contract.

The European Contract Law Project

The Principles of European Contract Law document is over a decade old now. Since the introduction of the Principles of European Contract Law, there have been further efforts within the European Community to streamline and harmonise European Contract law. Most notably, the Common Frame of Reference has made great strides in this area.

Background to the Formation of the Common Frame Reference

In 1999, the European Council (Tampere) requested a study on the feasibility of approximation of civil law in order to facilitate the efficient functioning of the European market. The European Commission responded by announcing that a consultation shall take place in order to collate information on how to form a European Contract Law. Subsequent to this, an Action Plan followed in 2003 proposing measures, for instance, the Common Frame of Reference was one such measure.

Common Frame of Reference

In essence, the Common Frame of Reference (‘CFR’) outlines the model rules, principles and definitions to be applied to contract law within the EC. It is a long-term project with the objective of facilitating the preparation or revision of existing legislation in the field of contract law. It shall be of assistance to EC Legislators by providing solutions to contractual problems within the EC. These solutions have been extracted from existing contract law within the Member States. It is hoped that this will, inter alia, modify the existing body of rules applicable to contract law within the EC.

Work already done in this area has produced various pieces of legislation aimed at improving existing laws. For instance, EU consumer protection law is a good example of all the work that has resulted in EC laws.

R. Madelin, in his article, European Contract Law: Moving Forward Together, Director General for Health and Consumer Protection European Commission stated (at pg. 5) that it is hoped that the European Contract Law Project, and particularly the CFR, shall aide the pursuit of the following goals: achieving better regulation, boosting competitiveness and improving the functioning of the international market (see pg.5, R. Madelin, European Contract Law: Moving Forward Together, Director General for Health and Consumer Protection European Commission, Conference of the network of stakeholder experts on the Common Frame of Reference in the area of European Contract Law (CFR-net), Charlemagne Building, Meeting Room S2, 15 December 2004)

Reshaping the legal landscape to enhance competitiveness within the EC ought to provide an environment in which businesses are able to operate within the EC in a more efficient and profitable manner. This should address some of the complaints which have been forthcoming from small and medium size enterprises, who were concerned, inter alia, about inconsistent and diverse contract laws throughout the Member States (see pg. 5 article). It was felt that a more consistent and transparent system would facilitate competitiveness by allowing businesses to conduct cross-border transactions in a more efficient manner by supplying goods and services in a more competitive environment.

It follows that greater confidence in European Contractual Law would inject greater confidence in the EC business community and in turn increase cross-border transactions. Ultimately therefore, European institutions are responsible for introducing laws which will simplify, and be more coherent to facilitate transactions within the EC, which ought to eliminate, or at least reduce, legal obstacles to trade.

The European Commission has committed itself to utilizing the CFR in order to improve the quality and coherence of contract law. The success and development of the CFR is due to the fact that it has received support from all European Community institutions, Member States and stakeholders alike.

Following public consultation, the CPR was adopted. The objective of the CFR shall become a toolkit for the Commission’s lawmakers, including the European Council and EC Parliament. The CFR shall also be of benefit as a source of reference for law-makers, judges and lawyers.

The work carried out for consumer contract law has been particularly fruitful. For instance, in October 2008, the proposal for a Directive on Consumer Rights was adopted by the Commission. The ultimate objective of which was to make it easier and cheaper for Member States to conduct cross-border transactions.

The Unfair Contract Terms Directive (1993/13/EEC) is only of eight pieces of legislation which is being analysed in relation to the Review of the Consumer Acquis. Such initiatives are aimed at improving legislation by identifying and alleviating problems.

For instance, the Unfair Contract Terms Directive has introduced the concept of ‘good faith’ into consumer contracts, in an attempt to redress any imbalance that may be present in a contract between a seller and consumer. In addition, the Directive sets out a list of terms that are to be deemed unfair in such contracts, and are thereby rendered obsolete if they are included in such agreements. It is a further requirement that terms are to be ‘plain and intelligible’ and any ambiguity shall be interpreted in the consumer’s favour. Therefore is accordingly a duty on Member States to ensure that the provisions of the Directive are implemented.

Conclusion

As noted above, the European institutions have been busy harmonising the laws applicable to contracts throughout the Member States. The work already completed with the CRF has ensured that parties to contracts have participated in the process of harmonising the laws applicable to contracts. This therefore ensures that the rights and obligations of the parties to a commercial contract are reflected in the laws introduced by the EC institutions. It accordingly follows that there is no need for any concern if parties prefer to enter contractual agreements by conduct or statement. Providing such agreements are clear (see Section 2, Article 2.101 of the Principles), and that both parties are aware of the terms, and express their wish to be legally bound by the agreement (see Section 1, Article 2.101 of the Principles), the right to freedom of contract has been preserved. Given the differences in the Common law system adopted in Ireland and the United Kingdom, and the variations of the civil law systems adopted by the remaining Member States, these efforts by the EC institution et al to harmonise the contract laws applicable to Member States ought to improve the position of parties to commercial contracts by keeping them informed of their rights and obligations, which in turn, one would think, ought to ultimately reduce breaches of contract within the EC.

Question B
EU business law
Critically assess the corporate structures within EU Member States.

Introduction

The corporate structures in Member States of the European Community (‘EC’) differ immensely in their form and the practices that they adopt. The EC institutions have accordingly endeavoured to facilitate the smooth functioning of the internal market by harmoninsing the systems and laws applying to corporate structures throughout Member States.

This assignment provides a critical assessment of the corporate structures applicable to Member States. More specifically, the work shall explore whether or not corporate structures within the EC are operating in an efficient manner. Given the limited word count of this work, however, and the complexity of the subject, the essay concentrates on one aspect of corporate structures within the EC; Golden Shares.

The work shall highlight the efforts made by the EC institutions, particularly the European Court of Justice (‘ECJ’), in attempting to bring about parity within Member States by eliminating obstacles to the free movement of capital, as required under Article 56 EC Treaty. Golden shares inhibit the free movement of capital by discouraging foreign investment, inter alia, due to the special rights that are often retained by the holders of golden shares.

EC law makers, particularly the ECJ, have endeavoured to bring a degree of semblance to the EC rules governing corporate structures in relation to ‘golden shares’. This has been done through a process of sifting out the ‘golden shares’ and ruling them to be inconsistent with EC law. The assignment shall commence by outlining information about ‘Golden Shares’ before setting out numerous prominent ECJ case law pertaining to ‘Golden Shares’. Finally, in the Conclusion, the work shall sum up the findings.

Golden Shares

A ‘golden share’ is a shareholding which derives from a former state-owned company, in which a government of a Member State may reserve, subsequent to its privatization. Such shares carry with them special rights which the government shareholder can enjoy. Albeit the government, despite being a minority shareholder, often wields rights which permit it to exercise undue influence over the company. This usually exceeds the percentage of the stake the government owns in the company. The special rights in question can come in the form of: power to veto certain actions by the company in question; limiting the size of other shareholdings; blocking foreign shareholdings; and a right to control the appointment of directors. Whilst being a relatively common practice in Member States, the EC feels that the practice is undesirable and has therefore sought to tackle such shareholdings. For instance, in 2003, the ECJ found that the UK government failed in its duty to fulfill its obligations in accordance with Article 56 of the EC Treaty, namely in respect of the principle of the free movement of capital.

In addition, Spain was also held to have upset the ECJ by holding golden shares in numerous companies, such as: Repsol, an energy company; Telfoncia, telecommunications company; Tabacalera, tobacco company; Argentaria, banking group; and Endesa, electricity company. Again the ECJ held that the shareholdings held by the Spanish government in this regard were inconsistent with EC principles as they restricted the free movement of capital throughout the EC. The result of the ECJ’s judgment was that the Spanish government was compelled to change its relationships with the companies in question.

The ECJ has illustrated, however, that its decision are thoroughly thought through before outlawing such shareholdings. For instance, the ECJ found that a Member State can derogate from the obligations under Article 56 EC Treaty of ensuring the free movement of capital, on the basis of retaining special rights as the holder of ‘golden shares’, on grounds of national security, and in applying the principle of proportionality, when it decided that Distrigaz, a Belgian energy firm, was permitted to retain its ‘golden share’ because it was a ‘legitimate measure designed to promote the general national interest in terms of the security of the national gas supplying times of emergency’.

However, the general consensus within the ECJ appears to be one of ruling such shareholdings to be inconsistent with EC principles. For instance, in 2006, the ECJ proved once again that it would not shy away from ruling that a Member State had infringed the principle of free movement of capital when the Netherland’s government was found to have breached the principle by retaining special rights (golden shares) following the privatization of the national postal, Koninklijke KPN NV (‘KPN’), and telecommunications companies TNT Post Groep NV (‘TNG’).

The shares themselves permitted the government to, inter alia, give prior approval of specific management decisions. The ECJ accordingly held such rights to be disproportionate to the rights enjoyed by ordinary shareholders. It was accordingly felt that such shares could potentially discourage investors from other Member States from investing in the company.

Conclusion

The ongoing campaign by EC institutions, particularly the ECJ in this regard, in seeking to eradicate any impediments to greater liberalisation of the EC Member States’ markets, is clearly not complete. It is therefore highly likely that the eradication of government owned ‘golden shares’ is likely to continue unabated. That is that there appears to be no room for ‘golden shares’ in the EC’s agenda. Whilst this may impact hard on the corporate structures of many Member States, the harmonization of the rules shall undoubtedly result in an increase in cross-border mergers, which includes former state owned companies in which the government hitherto held ‘golden shares’. This may call for a shake-up of the current corporate structures in this regard, but the closer cooperation of Member States can only enhance and improve the corporate structures.

Bibliography
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P. Craig and Grainne De Burca, EU Law: Texts, Cases and Materials, 2008, Oxford University Press
P. Richards, Law of Contract, 8th Edition, 2007, Pearson Longman
R. Goode, Commercial Law, New Edition, Penguin

Cases:

Commission v. Belgium C-503/99
European Commission IP/03/1753
Commission v. Kingdom of Spain Case C 463/00
Commission v. United Kingdom Case C-98/01

Journals:

Ivan Kuznetsov, The Legality of Golden Shares under EC Law, Vol. 1 No. 1 2005, Hanse Law Review

Omar Shah and Scott Campbell (Latham & Watkins), End of the Golden Age ? The European Courts Move to Promote Greater Free Movement of Capital Within the EU by attacking ‘Golden Shares’, World Trade Executive –

www.wtexecutive.com

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Additional Materials:

Consumer Sales Directive 99/44
The Principles of European Contract Law 1998, Parts I and II – (Parts I and II completed and revised)
Unfair Contract Terms Directive 93/13

Internet Sources:

http://www.cbs.dk/departments/law/staff/ol/commission_on_ecl/members.htm

http://ec.europa.eu/consumers/rights/gen_rights_en.htm#gar

http://europa.eu.int/rapid/pressReleaseAction.do?&language=EN&reference=IP/03/1753

(15.3.2005)
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http://webh01.ua.ac.be/storme/CECL.html

Under Article 2.102, a party’s intention to be bound by the contract shall be discerned from the statements or conduct of the parties.

The Directives in question are: the Doorstep Selling Directive 85/577; the Package Travel Directive 90/314; the Unfair Contract Terms Directive 93/13; the Timeshare Directive 94/47; the Distance Selling Directive 97/7; the Price Indication Directive 98/6; the Injunctions Directive 98/27 and the Consumer Sales Directive 99/44.

See pg. 69, Omar Shah and Scott Campbell (Latham & Watkins), End of the Golden Age ? The European Courts Move to Promote Greater Free Movement of Capital Within the EU by attacking ‘Golden Shares’, World Trade Executive –

www.wtexecutive.com

Commission v. United Kingdom Case C-98/01

Commission v. Kingdom of Spain Case C 463/00

Commission v. Belgium C-503/99

Ibid

See European Commission IP/03/1753. Available at:

http://europa.eu.int/rapid/pressReleaseAction.do?&language=EN&reference=IP/03/1753

(15.3.2005)

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

Every European country controls a distinct system of judicial enforcement and labour legislation. This is most often closely related to the process of collective bargaining and arrangements of social partner consultation. Traditionally, collective labour law adopts the body of rules which govern the relationships between the collectivity of the employees and the employer of a group of employers. One may think of following laws, in this context:

The right to trade freedom of union

The right to workers’ participation within the company in decisions affecting their interests

The right of employees and employers to establish an organization at their own choosing from the perspective of promotion of their professional concerns

The right to autonomous collective bargaining

The right to conclude collective agreements.

Furthermore, the rules relevant to economic welfare, including strikes and lockouts as well as several measures that aim at preventing the settlement of collective labour conflicts, come under the collective labour law. It can be clearly stated that these issues have stayed within the national jurisdiction. And the collective measures that are proposed for the United States and Canada are mostly so contradictory and controversial that the consensus among the Member Stated and among both sides of industry seems to be almost impossible.

The purpose of this research paper is to show the management a brief comparison of Canadian and US labour law, because people would assume that the labour laws in the US are similar to those in Canada.

When it comes to depicting Canadian law firms, terms like small, medium and big do not make much sense today. The fact being complex and rapidly evolving landscape, with firms structured around changing client demands. That means a few international outposts or a lot of lawyers having parallel training in applied sciences or business. Whatever be the size of the law firms, legal specialization still remains the common dominator all over these firms thereby permitting practitioners to nurture their selected crafts to an art form. By recognizing the rapidly growing size and sophistication of several of the country’s top-level boutiques, mainly in areas that need multiple areas of expertise like technology law and intellectual property, Canadian Lawyer magazine has extended its definition of the size constituting a ’boutique’. Furthermore, 52 law boutiques have been identified across nine practice areas widely seen as the “go-to” experts by their colleagues. Of course, litigation boutiques are a class of their own. Admiralty and transportation law has been a specialized niche in Canada, unlike the USA, that belongs to the boutique model. An area covering marine insurance law, shipping law, and related litigation, together with the marine component of Canadian offshore for oil and gas activities, this practice is rapidly expanding along with Atlantic Canada’s booming offshore oil industry. Most of these firms work as Canadian legal counsel for various international protection and indemnity clubs, cargo, hull and machinery. This also includes general insurers across the world. Canada’s bankruptcy and insolvency bar is minor, where same players turn up frequently in most of the significant cases. Moreover, several boutique founders have said that their business fills a niche produced by the need of servicing clients of larger firms during conflict cases, which is considered as a significant source of work referrals.

Several firms that were set up as business law boutiques initially specializing in securities law have morphed into full-service firms by creating newer practice areas as they grow. Of course, nowadays, the boundaries for any business law practice has grown hazy, with clients demanding the skill of a deal maker, consummate negotiator, litigator, contacts expert, competition law expert, etc. together with the well-established cross-border affiliations with law firms located within the United States and overseas.

Canadian employment and labour law poses several potential conflicts for full-service law firms with most firms being reluctant to risk sacrificing a future corporate authorization for a one-off employment file. Furthermore, many of Canada’s most remarkable labour and employment boutiques are sub-sets of bigger firms. As far as the United States is concerned, it is equipped with the Employee Free Choice Act which is undoubtedly among the most significant and controversial bills confronting the new Congress. Opponents of EFCA have tried to portray the bill as an undemocratic, radical and dangerous piece of legislation that may deprive the voting rights of millions of American workers, thereby destroy an already fragile economy. Indeed, one of the country’s biggest management law firms has stated that it requires revolutionary changes to labour law, unlike the one in Canada, while other opponent has attempted to harm its radical approach towards first contract bargaining. However, in reality, it has by far been the modest piece of legislation that establishes rights for recognition and bargaining for US workers, weaker than those enjoyed by the Canadian workers.

Recent developments in some emerging economies describe how far US lags other democracies with respect to the protection of bargaining and recognition rights. Among developed economies, USA is the only nation that possesses a sophisticated industry worth thousands of millions of dollars annually dedicated entirely to assisting management resist collective bargaining. Nonetheless, many US union avoidance firms have sought international markets for their expertise. One such large firm operating in Canada, proving to clients that it enjoys an international reputation to eliminate union incursions, has carried out many high profile union avoidance campaigns with considerable effect.

On the other end of the scale, the Canadian system based on industrial relations is widely similar to that of the US. Moreover, the labour laws in many Canadian provinces have had similar kind of provinces as those of the EFCA. But the Canadian labour law is different than its US counterpart in two essential aspects:

Firstly, it id decentralized having only about 10 % of employees that is covered by federal labour law; most of the remaining 90% belong to 0 different provincial laws. By contrast, US law is highly centralized, with a rigid and broad federal pre-emption doctrine that restricts all but the most marginal policy experiment at the local and state levels throughout the past decades.

Secondly, the Canadian labour law is much more responsive to political alignments in comparison to its US counterpart. That is, whenever there is modification in provincial government, a significant reform is often seen in the province’s labour law. This does not hold true in the United States, wherein the need to obtain a super majority of about 60 votes in the Senate in order to overcome a filibuster presented a formidable hurdle in the path of reform proposals for labour law in recent decades.

Furthermore, Canadian labour law also offers an interesting comparison with the US since the policy debate is very different, even though the labour policy issues are very similar to the ones on the United States. labour law reform in Canada, for the most part, is not accompanied by litigious considerations regarding the need to secure the sanctity of the “secret ballot”, but only a recognition that, even with Canada with its rapid elections and strict adherence to deadlines, limitations on employer electioneering, and tougher punishments for unfair management practices, majority signing up makes organizing easier for workers, whereas contested representation elections make organizing much more difficult. Therefore, by employing the central government practice, the adoption majority sign up and several other reforms come at the forefront, but when the political arrow points towards the opposite direction, contested elections are reintroduced. Presently, five Canadian jurisdictions employ laws that have majority sign up processes. These jurisdictions are the federal jurisdiction, Quebec, Prince Edward Island, Manitoba, and New Brunswick.

Opponents of the EFCA within the United States have been repeatedly pointing towards Canada as a country wherein, as direct outcome of their experience with majority sign-up, policy makers and law makers identify the supremacy of mandatory elections. Nine in ten Canadian provinces have used majority signup in the 1980s, while only four in ten use it nowadays. Moreover, about two decades ago, majority sign up was employed by 90% of Canadian employees; today, however, these same provisions cover approximately 40% of Canadian employees. However, claims regarding majority sign being discredited in Canada and replaced by United States-style elections are totally misleading. Firstly, as aforementioned, union elections in Canada are totally different from management-dominated NLRB elections. Secondly, five Canadian jurisdictions having large and influential ones like Quebec and the federal jurisdictions, still use majority sign up. Lastly, the policy position is way beyond static and Canadian laws that are more malleable that their US counterparts. For instance, in May 2008, the Ontario Legislature took introduced a bill in order to reintroduce majority sign up. Hence, majority sign up may once again become a standard in Canada.

Toward that end, Canada’s experience with majority sign up is intimately related to the current US debate in a rather more direct way. Furthermore, the primary refrain of employer groups who opposed to majority sign up is that it would expose employees to intimidation and coercion by unprincipled union organizers. So what does the Canadian experience suggest? Till the time the Conservative Harris government had ceased using majority sign up in 1995, this system of union recognition had functioned in Ontario for almost half a century. Yet the leading scholar for the Canadian labour law, Professor Harry Arthurs, lately said that he was unknown of a single case in which the employer complained that union illegally coerced workers into forming a union. As a result of its protection for bargaining and recognition rights, bargaining coverage in Canada is more than double of the US level; nearly 31.5% overall, from over 39% in Quebec to below 25% in Alberta.

The passage of the North American Free Trade Agreement (NAFTA) has made it very common for US businesses to expand into Canada, either by entering into contractual collabouration with firms already settled in Canada or by establishing international subsidiaries. Some managers assume that NAFTA entails that common employment and labour laws apply in all two countries; however, that is not the case. Though NAFTA comprises of a side agreement known as the North American Agreement on labour Cooperation, NAALC that needs all two countries to promote the same eleven basic rules, any business running internationally must still abide by the labour laws in effect in the country of operation. Therefore, as US firms grow, it becomes essential for them to the aware of the Canadian law, particularly the laws governing employment and labour.

Specifically, the focus is given on the most significant differences between the labour laws in those two countries in seven areas, namely:

Union security.

Certification processes

First contract arbitration

Latest technologies

Successorship

Strike replacements, and

Employee participation programs

These seven areas are essential because with every area, there is empirical work that addresses the issue and their effects. Therefore, management must be aware of how the laws involved these areas can have an impact in their businesses. These seven topics are discussed in the order in which they might take place within a business, that is, a union must be certified before the management can bargain. The Canadian experience is typically instructive. Canada has more or less the same type of economy, similar employers and has undergone the similar changes that have been previously described with respect to the United States. In fact, there are major differences between the National labour Relations Act and the labour laws in Canada. There is a procedural dissimilarity between the labour laws of Canada and the US which should be mentioned concerning the jurisdiction of the federal labour statutes in the two countries. In the US, the NLRA includes the wide majority of the nation’s private sector employees. However, in Canada, the Canada labour Code covers below 10 % of the nation’s employees. Next, in Canada, labour legislation is mainly a provincial matter and the discussion concerning the Canadian labour law will actually be about the provincial laws across Canada.

Certification procedures

It is common knowledge that the private sector unionization rate within the USA is gradually degrading since a number of decades. According to the latest figures available, nearly 10.4 per cent of the US labour force or 9.5 million private sector workers in the US belonged to unions in 1994. Comparatively, the unionization rate in Canada has been constant at 33 % or greater since 1976. Furthermore, the membership trends within the two countries, comparing the decrease in the percent managed in the US with the increase in Canada during the past 20 years.

Most of the decline in the percent managed by the US is assigned to the incapability of unions to win the right to indicate newer units of employees during representation elections. Additionally, many researchers blamed the dismal union success rate during representation elections on the NLRA and reported that Canadian labour law is more favourable for unions that attempt to organize new units of employees. Indeed, the traditional organizing campaign throughout the US is renowned:

The union tries to get signatures on authorization cards from the employees within a bargaining unit;

Once the signatures are received from at least 30 % of the eligible employees, a petition if filed for election with the National labour Relations Board (NLRB). Then, the board conducts a hearing in order to resolve procedural questions with respect to the election

Then, a long and contentious pre-election campaign is organized

Finally, the election is held.

Each of these steps occurs in that order in almost every union organizing campaign in the US.

Furthermore, there are chances for employers to make it even more difficult for unions to persist in representation elections at every one of these steps. The certification/ organizing process is very different across Canada. Even though the particular certification procedures vary from one province to another, the laws governing union certification in Canada usually make it easier for unions to be selected for representing a unit of employees in ways more than one.

Bibliography

Abraham, S 1997, ‘Relevance of Canadian labour law to US firms operating in Canada’, International Journal of Manpower, Available at .

Aaron, B 1993, International Labour Law Reports, Kluwer Academic Publishers, USA.

Canadian Lawyer Magazine 2010, Survey: Canada’s leading law firm boutiques, viewed 12 May, 2010, .

Hore, E 2000, ‘A Comparison of United States and Canadian Laws as they Affect Generic Pharmaceutical Market Entry’, Food and Drug Law Journal, vol. 55, pp. 373-380.

Logan, J 2009, Union Recognition and Collective Bargaining: How Does the United States Compare With Other Democracies?, LERA, viewed 12 May, 2010, .
Harris, L 2001, An Excerpt from Canadian Copyright Law, third edition – comparison of Canadian and American copyright law, Information Outlook, viewed 11 May, 2010, .

Canadian Lawyer Magazine 2010, Survey: Canada’s leading law firm boutiques, viewed 12 May, 2010, .

Ibid.

Aaron, B 1993, International Labour Law Reports, Kluwer Academic Publishers, USA.

Ibid.

Logan, J 2009, Union Recognition and Collective Bargaining: How Does the United States Compare With Other Democracies?, LERA, .

Harris, L 2001, An Excerpt from Canadian Copyright Law, third edition – comparison of Canadian and American copyright law, Information Outlook, .

Ibid.

Hore, E 2000, ‘A Comparison of United States and Canadian Laws as they Affect Generic Pharmaceutical Market Entry’, Food and Drug Law Journal, vol. 55, pp. 373-380.

Abraham, S 1997, ‘Relevance of Canadian labour law to US firms operating in Canada’, International Journal of Manpower, Available at .

Ibid.

Hore, E 2000, op.cit

Canadian Lawyer Magazine 2010, Survey: Canada’s leading law firm boutiques, .

Ibid.

Logan, J 2009, Union Recognition and Collective Bargaining: How Does the United States Compare With Other Democracies?, LERA, .

Ibid.

Abraham, S 1997, op.cit.

Abraham, S 1997 op.cit..

Harris, L 2001, An Excerpt from Canadian Copyright Law, third edition – comparison of Canadian and American copyright law, Information Outlook,

Ibid.

Logan, J 2009, Union Recognition and Collective Bargaining: How Does the United States Compare With Other Democracies?, LERA, .

Logan, J 2009, op.cit.

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

The CJEU’s reasoning – although not the result – in Keck is unsatisfactory for two reasons. First, it is inappropriate to make rigid distinctions between different categories of rules, and to apply different tests depending on the category to which particular rules belong. Secondly, the exclusion from the scope of Article [34 TFEU] of measures which “affect in the same manner, in law and in fact, the marketing of domestic products and those from other Member States” amounts to introducing, in relation to restrictions on selling arrangements, a test of discrimination. That test, however, seems inappropriate.” Discuss this statement.

Date authored: 03 ^rd September, 2014.

Introduction

The decision of Keck[1] concerns the interpretation of Article 34 of the Treaty on the Functioning of the European Union (TFEU) [2] which is in turn concerned with removing any obstacles to inter-state trade within the EU. In aiming to foster the free movement of goods, this provision shares with numerous others the objective of creating a single, pan-European common market: a foundation of the Community-establishing Treat of Rome 1957 [3]. Keck’s interpretation of Article 34 and its contribution to this wider objective has been the subject of much debate. Here, after a brief summary of the key jurisprudence of the Court of Justice of the European Union (CJEU) leading up to Keck, the specific criticisms made in the given statement – regarding the “rigid distinctions” and “test of discrimination…in relation to restrictions on selling arrangements” to which Keck gave rise – will be discussed. It shall be seen that while both criticisms hold water, they can and have also been countered on various levels, with the conclusion that Keck in fact had an overall positive influence on the law within the area.

Summary of Article 34 jurisprudence leading to Keck

As mentioned above, Article 34’s direct purpose is to foster the free movement of goods by removing any obstacles to inter-state trade, reading: “Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States”. Although the concept of quantitative restrictions is not defined, here it simply means a limitation on the number of goods that can be imported by member states. As regards “measures having an equivalent effect” to quantitative restrictions on imports, again there is no formal definition, however in Dassonville the CJEU propounded a formula widely used since, that all rules within the EU “ capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to a quantitative restriction” .[4] Ultimately, Dassonville paved the way for the landmark case of Cassis de Dijon [5] which confirmed that as well as discriminatory measures, Article 34 also captures non-discriminatory measures. The rationale given by the court for expanding Article 34’s scope was that of “disparities between the national laws” of member states. [6] They reasoned that where imported products had to comply with regulations in both their home state and the state to which they exported this represented a disadvantage amounting to an obstruction to inter-state trade. Practically speaking, this distinction meant that regulations which required goods to be altered at the production or designing stage would normally be considered ‘dual burden rules’ whereas regulations concerning how the goods are sold would generally be ‘equal burden rules’, and Cassis suggested that only the latter would be excluded from the scope of Article 34.

Following Cassis, a number of issues came to the court, and while the CJEU generally adhered to the Cassis analysis as understood above [7], in several cases it did not.[8] One important example of the latter is the case of Torfaen Borough Council, [9] where the CJEU held that rules restricting shops from opening on Sunday could potentially be prohibited under Article 34, even though such a measure would clearly be an equal burden rule. Due to this such cases, and ultimately the divergence between these decisions and those found on the basis of the dual/equal burden distinction[10], many became concerned that the breadth of the Cassis test was too wide, that it was being abused, and effectively being utilised simply to protect the commercial freedom of traders rather than preclude obstacles to intra-community trade as such. [11] Keck attempted to rectify[12] this by explicitly propounding a further distinction between so called ‘product rules’ “such as those relating to designation, form, size, weight, composition, presentation, labelling, packaging” which it deemed to be prohibited by Article 34 and “selling arrangements” which it deemed prima facie would not. [13]

The distinction between ‘product rules’ and ‘selling arrangements’

The appropriateness of the distinction between ‘product rules’ and ‘selling arrangements’ is what the given statement calls into question., and this can only be assessed on the basis of its practical efficacy. In many cases the Keck distinction has been a success, dealing with complaints cogently. In Dinamic Medien[14], where the court held a rule in Germany placing restrictions on the sale of image storage media to young persons via mail order unless they had been reviewed as suitable and obtained a sticker to certified this was a ‘product rule’. They thus held it was prohibited by Article 34, reasoning that because it was a packaging requirement and also due to the fact imported goods of this nature would have to undergo a similar examination process in their home state such goods would be the subject of a dual burden. Similarly successful was Keck’s use in Familiapress [15], where an Austrian rule which precluded the sale of magazines containing prize competitions was argued to fall within Article 34. Despite the argument that the prize was simply a selling arrangement, the CJEU contended that it would require changes to made to the product itself and therefore impose a dual burden on imports, notwithstanding the fact the rule was not directly discriminatory.

However the problems with Keck can be seen where a rule does not seem to fit comfortable into either ‘rigid’ category. The case of Morellato [16] concerned a rule imposing a requirement that ‘bake-off bread’ (partially-baked bread, which needed a final cooking period before sale) be packaged and labelled before sale. As this requirement was binding prior to the sale, it was evidently not a selling arrangement. Nevertheless, the court found that the rule was not prohibited by Article 34 on the basis that it simply was not a product rule, due to the product itself not needing to be altered before the sale. Similarly, but resulting in a different conclusion, was the case of Alfa Vita. [17] Also involving bake-off bread, the rule under discussion here required the product to be prepared only in traditional bread making environments (including facilities redundant to the specific process such as a flour store and kneading equipment). Despite the fact that the restriction of the sale of a product to a specific environment is an archetypal selling arrangement, [18] the court found this to fall outside of Article 34 on the basis of it clearly not being a product rule, requiring the product to be altered in substance.

This shows that the assertion in the above statement is at least to some extent accurate. While the outcome of both Morellato and Alfa Vita is intuitively correct in terms of not preventing obstacles to inter-state trade, the court’s judgements and reasoning were effectively shoehorned into the Keck distinctions in a way not envisaged in the initial articulation. Many have criticised Keck [19] in these terms and ultimately claimed the distinction between the rules to be overly formalistic, too little attention paid to the effect of rules and too much to their form. This argument certainly has some traction, although it perhaps neglects to appreciate the fact that the distinctions, while formal, are premised on conclusions concerning the effect of rules.

The ‘Keck proviso’

The second part of the given statement refers to a section of the Keck formulation exclusively concerning selling arrangements, often referred to as the ‘Keck proviso’. This condition qualifies the presumption that selling arrangements should fall outside of Article 34’s scope by stating that this should be the case only providing that “ those provisions…affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States”

.

This condition effectively “amounts to introducing, in relation to restrictions on selling arrangements, a test of discrimination” as per the essay statement under analysis. In itself, this would not be a big development considering discriminatory measures are a priori captured in any case; however by stating “in fact” Keck propounds a wider test of indirect discrimination as regards selling arrangements.

The necessary investigations into fact resulting from the Keck proviso mean that often, the CJEU will defer to the national court after making an initial determination of whether or not a provision may fall within Article 34 should evidence be found. [20] Where the court considers itself to have a sufficient amount of market knowledge, it has decided on questions of fact, finding selling arrangements to fall within Article 34 by virtue of the Keck proviso. [21] In many cases however, a selling arrangement will be intrinsically discriminatory and will require little investigation by the court; such as cases where there is a restriction imposed on sales based on proximity, as other Member States will automatically be at a disadvantage. [22]

Whether the Keck proviso is ‘inappropriate’ as contended in the essay statement is unclear. Clearly, there are situations where selling arrangements rightfully fall within Article 34 and it makes good sense for this to be provisioned for. On the other hand, Advocate-General Jacobs, in his Opinion in case Leclerc-Siplec [23], opines that the element of discrimination, as reintroduced by Keck, is irrelevant because if a rule “hinders inter-state trade” it does so regardless of its effect on domestic trade. The issue with this is that hindrance to inter-state trade, as Jacobs refers to it, is difficult to define, this being the reason for some of the difficulties giving rise to Keck: that is, individuals using Article 34 to protect their commercial freedom as traders. Jacobs furthermore claims that irrespective of discrimination, selling arrangements will often have an effect on intra-community trade and that the difference between them and product rules was one of degree, not substance, dismissing the efficacy of the ‘rigid distinction’ approach. He thus proposes a test of“substantial hindrance to market access” [24]. This concept started to gain a following in the academic world, [25] and over time began emerging as a term in a number of cases in the area, culminating in the Motorcycle Trailers Case. [26] Rather than replacing the tests of Keck, Cassis and Frankovic, through the Motorcycles case the CJEU appeared to merely supplement them with the following: “any other measure which hinders access of products originating in other Member States to the market of a Member State is also covered by that concept” .[27] The notion of market access, while approved of by many has been unequivocally and comprehensively rejected as an improvement by others, Snell arguing that it adds nothing to the existing framework, collapsing to encapsulate either economic freedom or anti-discrimination. [28] The fact Bernard, in supporting the notion of market access, even goes so far as to concede measures such as “extreme limits on opening hours may well substantially hinder access to the market and so should breach [Article 34)”, illustrates the danger that the concept effectively takes the law back to pre-Keck days where Article 34 is effectively used to protect commercial freedom. [29]

Conclusion

Through the above analysis, it can be seen that while the given statement makes general criticisms of Keck that can be substantiated from one perspective, upon deeper evaluation, it is by no means a certainty that Keck’s tests are inappropriate. While its distinctions and proviso leave something to be desired and thus room for development, they represented a significant step forward in making the CJEU’s analysis and reasoning more cogent, if not drastically changing the likely outcomes of specific cases.

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Bernard C, Fitting the Remaining Piece into the goods and persons jigsaw (2001) 26 ELRev. 35

Chalmers D, European Union Law, Text and Materials (Cambridge University Press 2006)

Chambers D, ‘Repackaging the Internal Market-The Ramifications of the Keck Judgment’ (1994) 19 ELRev. 385

Craig P, EU Law Text Cases and Materials (4^th edn OUP 2008)

Gormley L, “Reasoning Renounced? The Remarkable Judgement in Keck and Mithouard’ (1994)

EBLRev. 63

Snell J, The Notion of Market Access: A Concept or a Slogan?‘ (2010) 47 Common Market Law Review 437

Weatherill S, After Keck: Some thoughts on how to clarify the clarification‘, (1996) 33 Common Market Law Review 885

White E, In Search of the Limits to Article 30 of the EEC Treaty‘, (1989) 26 Common Market Law Review 235

Cases

Joined Case C-267, 268-91, Keck and Mithouard [1993] ECR I-6097

Case 8/74, Dassonville [1974] ECR 837

Case 120/78, Rewe-Zentrale AG v. Bundesmonopolverwaltung fur Branntwein [1979] ECR 649 (‘Cassis de Dijon’)

Case 75/81, Blesgen [1982] ECR 1211

Case C-23/89, Quietlynn [1990] ECR I-3059

Joined cases 60 and 61/84, Cinetheque [1985] ECR 2605

C-145/88, Torfaen Borough Council v B&Q plc [1989] ECR 3851

Opinion of Advocate-General Tesauro in case C-292/92 Hunermund [1993] ECR I-6787 Paragraphs 25-28

Case C-244/06, Dynamic Medien [2008] ECR I-505

Case C-368/95, Familiapress [1997] I-3689

Case C-368/95, Familiapress [1997] I-3689

Joined cases C-158 and 159/04 Alfa Vita [2006] ECR I-8135

C-391/92, Commission v Greece (“Infant milkaˆY) [1995] ECR I-1621

Joined cases C-34,35 & 36/95 De Agostini [1997] ECR I-3843

Case C-405/98, Gourmet International Products [2001] ECR I-1795

Commission v. Germany (Hospital Medical Supplies) [2008] ECR I-6935

Case C-322/01 DocMorris [2003] ECR I-14887

C-412/93 Leclerc-Siplec ([1995] ECR I-179

Opinion of AG Kokott in case C-142/05 Mickelsson and Roos [2009] ECR I-4273