R v Secretary of State for Transport ex parte Factortame Ltd (No.2) (1990)

English Constitutional Law

R v Secretary of State for Transport Ex parte Factortame Ltd
‘NERIED, Cannery Tender’ by Steve Mayo

Direct effect compatibility, and the obligation owed by Member States to transpose Directives and Treaties as binding upon national laws, was a ruling that would soon unearth conflicts of interest. On this occasion, the contention was brought about by aggressive amendment to statute in favour of the UK fishing industry.

Until 1988, those parties involved in domestic commercial fishing were required to register under the Merchant Shipping Act 1894; an Act that allowed overseas companies to operate outside British waters, but still have their fleets registered under UK incorporation. As a means of preventing ‘quota hopping’ (over-fishing), it was enacted by Parliament to include Part II of the Merchant Shipping Act 1988 and Merchant Shipping (Registration of Fishing Vessels) Regulations 1988, to the effect that all those trading were to re-register under new conditions.

These terms required that in order to qualify for registration, the company must have a minimum of seventy-five percent British ownership, and where ownership fell outside the United Kingdom, there needed to be a seventy-five percent share hold by British citizens. This translated that the appellants, who had been previously registered for over almost twenty years, were now unable to re-register, as the owners were Spanish and therefore exempt from the new legislation.

Having appreciated the United Kingdom’s position as a Member State, and subsequent membership to EU Community law, the firm sought proceedings under the principle that the choice taken to exclude other EU members from registration had displayed an overt refusal to comply with art.177 of the EEC Treaty. Furthermore, it was claimed that where Community rights were held to have ‘direct effect’, it was the onus of the national courts to suspend challenged legislation, with the granting of interim relief where proven necessary.

When heard in the Divisional Courts, the claim was supported and provisions made to allow the unfettered trading of the claimants, until such time that clarification was found in the challenge against the amended Act. However, when appealed by the Secretary of State, Court of Appeal Court set aside the previous finding, while granting leave of appeal to the House of Lords.

In this instance, the House agreed that should the claimants’ fail in their argument, the financial damage would be sufficient enough to cause irretrievable damage to the firm, but that without a preliminary ruling by the European Court of Justice (COJ), it was impossible to determine (i) if the courts were empowered to suspend legislative effect, and (ii) how best to determine what form the interim relief should take.

Upon deliberate consideration by the COJ, it was unanimously agreed that when the objectives of direct effect were designed, they were done so in a way that intended literal application with immediate purpose, and that unless under exceptional circumstances, it was the duty of the national courts to hold the powers of Community law above those of domestic interest, whereupon the House held that:

“[N]ational courts are required to afford complete and effective judicial protection to individuals on whom enforceable rights are conferred under a directly effective Community provision, on condition that the Community provision governs the matter in question from the moment of its entry into force…”

R v Kennedy (2007)

English Criminal Law

R v Kennedy
‘California Poppies’ by Lynda Reyes

The domestic criminal law principle of ‘free will’ within the confines of substance abuse, is a question that by extension, remains fraught with uncertainty (with particular regard to Class A substances). In this drug related death case, the issue before the court was fundamentally one of autonomy versus conjoined culpability.

When two drug users were engaging in social discourse, the now deceased party asked the appellant to prepare a syringe of heroin, so that he might be able to sleep that evening. After preparing the drug in the manner requested, the appellant left the room, before the deceased self-injected the measured dose. Minutes afterwards, the user was found breathless, and pronounced dead upon arrival at the nearest hospital.

When heard during the original trial, the appellant was convicted of supplying a class A drug under s.4(1) of the Misuse of Drugs Act 1971 and administering the drug under s.23 of the Offences Against the Person Act 1861. These two offences were then tantamount to a charge of manslaughter, and sentence was set at eight years, with five of those under imprisonment. When the defendant appealed, the judges unflinchingly upheld the conviction, and it so was that when the Criminal Cases Review Commission studied the finer details of the case, that it was bought again before the Court of Appeal, where despite strongly presented contentions, it was summarily dismissed and left to the defendant to seek final appeal in the House of Lords. 

With a need for investigation surrounding the notion that administration implied contributory action on the part of the supplier, it was eventually made clear that the pervious judges had become victim to self-misdirection, despite distinguishing case citations presented throughout the appeals. Ultimately the doctrine of novus actus interveniens  was sufficiently present enough for the injecting party to have acted under free will, and an appreciation of the inherent risks associated with heroin abuse; and that while the first offence (which itself carried a prison sentence) remained intact, the charge of manslaughter could not stand, when held against the perhaps better appreciated evidence now on display.

R v Miller (1983)

English Criminal Law

R v Miller
‘Carrying Mattresses’ by Stanley Spencer

Actus reus and mens rea, are two very widely used criminal law maxims that once were essential for the clarification of intention, but sadly over the passage of time, the former has become victim to legal abuses by lawyers seeking to bend a virtue that perhaps warrants review after hundreds of years of application.

In this matter, the accused was a homeless man, who after drinking a reasonable amount of alcohol, entered a vacant home, before taking up occupancy in an empty room. After lighting a cigarette, he then fell asleep on a mattress, at which point the cigarette began to ignite the mattress fibres, thereby causing it to slowly smoulder.

Upon waking, the appellant saw what was happening, but chose to simply get up from the mattress and walk into an adjacent room, before returning to sleep. It was not until the arrival of the local fire brigade, that he awoke again to discover that the room he had since left was now ablaze, and that significant fire damage had resulted from his failure to extinguish the burning mattress.

Upon summary, the appellant stood accused of recklessness causing criminal damage to another’s property, that in turn led to a conviction of arson under s.1(1)(3) of the Criminal Damage Act 1971. While under appeal, it was argued that both mens rea and actus reus are key elements to a criminal conviction, and that because the appellant had left the room, he could not be found liable through inaction, as opposed to action (actus reus), while further arguing that he was under no obligation to extinguish the burning mattress, and that his mens rea was ultimately irrelevant to the proceeding fire.

The crux of this defence misdirection is that while actus reus explores the actions of a defendant, the reality of life is that inaction by its own virtue, is an equally destructive process when the party in question can see very clearly that it was his previous actions that initiated the root offence, and that there were sufficient steps available to the defendant to prevent the damage from spreading (including seeking the assistance of third parties to that effect). Therefore, a defence based upon the interpretation of a word does nothing to circumvent the social responsibility of those faced with potentially (yet avoidable) damaging situations.

While the appeal was dismissed, it was again put before the House of Lords who listened intently to a bargaining application for the quashing of an arson charge, before succinctly explaining that with no quarter for doubt, it was evident that the appellant had elected to recklessly avoid his personal obligation to prevent the fire from growing, in favour of distancing himself from his original action, regardless of the foreseeable consequences that followed.

White v White (2000)

English Family Law

White v White
‘Land Girls Farming’ by Georgia Fowler

When a committed marriage runs its course, and the two parties responsible have amassed an estate of significant worth, should the ‘Duxbury paradox’ find just approval, or will the virtue of equality prevail?

After spending over three decades together as husband and wife, business partners and parents, the cross-appellants discussed not only invested exorbitant amounts of money into what was termed a ‘clean break’ divorce, but wound up fighting over percentages, whilst losing sight of the objective first presented to the courts.

Having contributed roughly equal amounts of time and capital into a successful farming business, it was felt by the wife that she needed to end the marriage, and strike out alone in a similar field. While on paper the division of assets appeared straightforward, there were anomalies in the form of individual benefit to inheritance by the husband through valuable farming estate and his decision to continue operating the business shared by the two parties, as opposed to liquidation in the wake of annulment.

During the original hearing, the judgment passed disproportionately in favour of the husband, leaving the wife with less than one-fifth of the estate value. This was calculated  through the application of the Duxbury fund principle, as first described in Duxbury v Duxbury. This antiquated approach to approximation of required financial assets is based upon the idea that in order to establish the requisite level of income for the wife in a divorce, the phrase ‘the longer the marriage and hence older the wife, the less the capital sum required for a Duxbury Fund’ will suffice.

Following an unsurprisingly swift challenge, the Court of Appeal sensibly reconsidered the previous judgment, and increased her award to two-fifths of the estate, upon grounds of equality and the principle that the increase in award had now provided sufficient funds (£1.5m) for the wife to not only start her new venture, but have enough to live on without the burden of stress or discomfort. Similarly, the remaining estate was healthy enough for the husband to continue working, albeit with short-term financial help from his extended family.

While taken on it’s weighting, the outcome would appear at risk of bias, however the ethos that divorcing parties should take steps to help each other start afresh, is clearly present where the dissolution of the joint enterprise would have placed the husband at risk of suffering, while the wife enjoyed the benefit of excessive capital for the purposes of need, despite making the choice to depart from a thriving and well-established business.

Fitzpatrick v Sterling Housing Association Ltd (1999)

English Family Law

Fitzpatrick v Sterling Housing Association Ltd
‘Time Clock Houses’ by Sunita Khedekar

In this appeal case the relationship between a private tenant and potential successor was that of two men, and so upon the death of the elder partner, it was found that despite their twenty-year history and the deeply caring bonds between them, the wording of the Housing Act 1988 prevented the surviving party from inheriting the assured tenancy, and thereby remaining in occupation of the home they had once shared.

Due to the widening of interpretation concerning the proximity required to uphold succession it  had become possible to appeal against the original judgment, while on this occasion the appellant relied upon paras. 2(1) and 3 of the 1988 Act, the first of which placed importance on the spousal aspect of relationships (a section which further relied upon the assumption that the two parties were of opposite genders) and the second, which extended the right to succeed where those in occupancy at the time of the other’s death could show such living arrangements over a minimum two-year period under the scope of ‘family’.

The issue presented to the House of Lords was not one of spousal qualification, but rather agreement that despite the non-traditional relationship between the two men, there did exist an intimacy that by all accounts, could be construed as familial, and so after deliberate examination of both the statute’s breadth and a widening cultural shift towards the definition of ‘family’, prevailing judicial opinion upheld the appeal and so allowed him to enjoy the home shared with his partner in the years before and leading up to his passing.

“[T]wo people of the same sex can be regarded as having established membership of a family, one of the most significant of human relationships which both gives benefits and imposes obligations.”