As I move ever closer to the completion of this ‘epic’ case law collection, I am happy to say that I have now finished writing the property law section, and while it’s one of the shorter chapters, the cases studied have been nothing short of diverse, which made a refreshing change from the often narrow English property law cases I have become so accustomed to reading in the past, and during my time as an undergraduate.
All mumblings aside, below is the final list, and I can only hope that you enjoy reading them as much as I enjoyed studying them over the previous several weeks, while for me it’s now time to get started on the final ‘tort law’ discipline.
The right to manifest one’s religious beliefs, and the right to prove ‘novus actus interveniens’ within a criminal trial are equally valid, and yet when brought together, the finer points of law and natural justice must always prevail.
In spring of 1974, the victim and now deceased, was a young eighteen year-old Jehovah’s witness, who by all accounts, considered herself a devout worshipper, and one clearly unafraid of death. While resting at home, the appellant appeared before her and demanded sexual intercourse. After refusing to comply with his demands, the appellant stabbed her four times before fleeing the property. When found staggering in the street outside, the victim was rushed to hospital, before being diagnosed as having a punctured lung and suffering severe blood loss.
In order to perform the required surgery, the surgical registrar confirmed that she would need an immediate blood transfusion, at which point the deceased explained that due to her religious disciplines, she would be unable to receive foreign blood, and that despite knowing the potential, if not unavoidable outcome, she was unwilling to accept the help offered.
Before passing, the deceased also acknowledged such a position in writing, and so at trial the appellant had argued that the charge of murder be reduced to manslaughter on grounds of diminished responsibility when refusing to accept the transfusion.
Relying upon R v Smith to establish the possibility that her refusal of help had caused her own death, and that such an unreasonable act had broken the chain of causation, the judge directed the jury so as to ask themselves if, by virtue of her religious confines, the deceased had in fact been the primary contributor of her own death, or that despite her painful and somewhat illogical choices, the stab wound itself had caused her to die, and that anything afterwards was merely academic.
After returning a verdict in favour of the deceased, the appellant appealed, after which the Court of Appeal reminded them that a long established principle of common law, as was written in ‘Hale’s Pleas of the Crown’ (1800) was that:
“He who inflicted an injury which resulted in death could not excuse himself by pleading that his victim could have avoided death by taking greater care of himself…”
It was thus established and held, that that the primary cause of death was bleeding into the pleural cavity of the lung, and that any decision taken after the fact was secondary to the victim’s passing; and that regardless of the role in which religion played, the deceased was entitled to express that belief as she saw fit. It was for this fundamental reason that the appeal was dismissed and the murder charge upheld.
Discrimination on grounds of sexual orientation and the right to manifest one’s religious beliefs lock horns in a case built around progressive lifestyles and the security of dogma.
Having established herself as the owner operator of a bed and breakfast, the appellant consciously took bookings on principles espoused through Christian teachings, one of which precluded the use of double rooms by those outside wedlock. While considered a practical and measured restriction, the appellant was often found letting out such rooms to unmarried couples, largely due to the difficulty in establishing their marital status at the time of agreement.
However, the footing of this matter rested upon a homosexual couple, who having secured the room via email, and duly paying the required deposit, arrived at the property, before finding themselves denied use of the double room on grounds of their sexual relationship and unmarried status (an impossible task at the time of this hearing).
At the point of litigation, the claimants argued that the appellant had unlawfully discriminated against them under the terms of the Equality Act (Sexual Orientation) Regulations Act 2007 (SI 2007/1263), in particular regulations 3 and 4, which read:
“3.(1) For the purposes of these Regulations, a person (“A”) discriminates against another (“B”) if, on grounds of the sexual orientation of B or any other person except A, A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances).
4. (1) It is unlawful for a person (“A”) concerned with the provision to the public or a section of the public of goods, facilities or services to discriminate against a person (“B”) who seeks to obtain or to use those goods, facilities or services”
While the appellant countered that she had refused the claimants use of the room under regulation 6, which reads:
“6.-(1) Regulation 4 does not apply to anything done by a person as a participant in arrangements under which he (for reward or not) takes into his home, and treats as if they were members of his family, children, elderly persons, or persons requiring a special degree of care and attention.”
Further arguing that her business fell outside the scope of a boarding house, as expressed in regulation 4(2)(b) of the same statutory instrument.
During the first hearing, the court refused to uphold her claim and found her liable for sexual discrimination on grounds of sexual orientation, whereupon the defendant argued her case in the Court of Appeal.
Here, the facts were given greater consideration, including various articles of the European Convention on Human Rights (ECHR). With regard to exemption from regulation 4(b), the Court observed that in Otter v Norman the House of Lords had ruled that:
“[T]he provision of breakfast by itself, with the implicit inclusion of the ancillary services involved in preparing it and the provision of crockery and cutlery with which to eat it, amounted to “board” within the meaning of section 7(1) [of the Rent Act 1977].”
However, with careful observation of regulation 6(1), it was noted by the Court that the claimants were anything but members of her family, children, elderly persons of those requiring special degree of care and attention. The appellant also relied upon Preddy v Bull for her contention that her refusal of the respondents occupation was one based upon an objection to sexual behaviour, and not orientation; yet sadly the parties involved were in a civil partnership, which distinguished it from the immediate case.
Turning instead to proportionality for justification, the appellant relied upon arts.8 (Right to respect and private family life) and 9 (Freedom of thought, conscience and religion) of the ECHR for her right to exclusion, while the respondents relied upon arts.8 and 14 (Prohibition of discrimination) to uphold their right to occupation.
It was then noted that while art.9(1) provides for religious manifestation, art.9(2) also provides that restrictions apply when preserving the rights of others, which on this occasion worked against the appellant, as she was by all accounts, running a commercial enterprise, and which under a Government paper titled “Getting Equal: Proposals to outlaw sexual orientation discrimination in the provision of goods and services, Government Response to Consultation” it was outlined on page 13 that:
“The Government contends that where businesses are open to the public on a commercial basis, they have to accept the public as it is constituted.”
While it was also stressed in Eweida and others v United Kingdom that:
“Even where the belief in question attains the required level of cogency and importance, it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a ‘manifestation’ of the belief.”
And so despite any freedom to manifest one’s religious beliefs when operating a licensed business to paying customers, indirect discrimination through the application of a policy denying equal rights to those in homosexual relationships amounted to a uniform ruling of direct discrimination on grounds of sexual orientation, while the appeal court held that:
“[D]irect discrimination cannot be justified, whereas indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim.”
The idea of a ratified ‘global law’ is a concept that once seemed fantastical, and yet by all accounts, appears now like the primary ingredient to social, industrial and civil equilibrium.
But how does this happen, and what steps might be needed to preserve the needs of the many from the wants of the few? To date, the concept of a single law is more convincing than any suggestion that genuine efforts are being taken to construct a jurisdiction without physical bounds, however it fails to prevent visionaries from imagining such a world, or pondering what form that framework might take.
Giuliana Ziccardi Capaldo, Full Professor of International Law at the University of Salerno Italy, discussed her idea of global law in 2015, and chose to use a web-like hierarchy to describe how each individual player would forge alliance with the next, because in her opinion:
“Global law is elastic enough to integrate the heterogeneous elements of the various and different legal orders into a unitary framework. It is up to the community of international legal scholars/lawyers to manage the complexity in the unit of the web of the global law system; the unitary framework retains the flexibility to allow for respecting the diversity of the plurality of embodied legal orders.”
Yet regardless of how one might perceive an ideology, the sheer scale of expectation asked of legal mega-firms and governmental bodies still seems disproportionate to the discipline required to undertake it. Having investigated current online debate, the results are discouraging to say the least, and when the world’s highest grossing law firm Latham & Watkins LLP offers no visible research, or even discussion of a unitary law, it suggests that perhaps the practice industry think-tanks are predisposed to monitoring investment strategies, over any notion that we may well be walking headlong into dispensation of justice from a centralised platform.
On a smaller scale, the benefits of a singular jurisdiction were recently implemented in October 2016 within Northern Ireland, and while not exactly a transcontinental shift, the objectives become evident, even if only from an administrative level, as was explained in a document published by the Northern Ireland Courts and Tribunal Service (NICTS), which said:
“There will no longer be County Court Divisions or Petty Sessions Districts and all relevant court documents have been amended to reflect this. The words “County Court Division of….” And “Petty Sessions District of……”will no longer appear on any court order or other documentation as court templates have been adapted.”
Whereas in the United Kingdom, we have a groundswell of opposition to the presence of Sharia laws, and if there was ever a reason for the unification of law, this concept would surely warrant a compelling body of evidence against the secular nature of unregulated doctrine.
Formed as part of this resistance, the website onelawforall.org.uk, is built upon a collective determination to remove the propagation of inequality through religious laws, in hope of the reestablishment of democratic values. This growing objection has been defined through a powerful rhetoric, claiming simply that:
“Sharia law is discriminatory and unjust, particularly against women and children.
Sharia courts in Britain are a quick and cheap route to injustice and do nothing to promote minority rights and social cohesion.”
It is suggested that the oppressive effects of this ancient law have been felt through gender specificity, which is not an ideology that could ever hope to find its way into the annals of any ‘new world’ law; and yet because there is no such codification, legal splinter factions are left free to flourish within the confines of domestic legislature.
In India, the application of a single industry law appears to provide huge benefits to small-scale factory owners, desperately trying to navigate the legal loopholes that strangle economic growth and preserve monopolisation.
With the design of improving manufacturing processes, the labor ministry created new legislation in order to overcome the problems faced by the nations entrepreneurs and workers alike, as explained by Mahendra Singhi, in her article for the Times of India:
“At present, small units have to comply with 44 Central labour laws and over 100 state laws…which discourages them to hire workers from the organized sector, and thus denying them basic rights…the government hopes that a single unified law will ensure less cost to the owner and better minimum wages, bonus and maternity benefits to the workers.”
It would seem for now at least, that while unitary rule and governance is constitutionally, commercially and quasi-socially acceptable, the thought of, or preclusion to, entrustment of a law written to serve a race of people, is both a bridge too far and paradoxically swept from the agenda; which while sounding trite in its definition, ought not mislead readers into believing a world law of some kind is not too far beyond our horizon.
This then raises the question of were a unitary law to become a reality, then how would those changes begin to materialise? Will a spark of legal renaissance ignite from within the people, or will the centralisation of power emanate from the core of contributory states?
Contrastingly, does commerce now helm the wheel of judicial evolution, or is politics driving that bus? In the latter event, it seems that the lines frequently blur, so recipients of information inevitably become less concerned with socio-political commentary than the motives underlying it, although whichever sector pushes first for answers, the time for such legal reimagining is overly ripe for discourse.
While paving the way for a number of similar ‘religious obligations’ versus ‘convention rights’ cases, this protracted legal discourse reveals a number of indiscretions, that in many respects, served to influence legislative and educational policy in the United Kingdom, and illustrate how laws evolve through the integration of cultural norms and progressive state cohabitation.
After working as a supply teacher within the mainstream schools arena for a considerable number of years, the Islamic applicant took issue with the government, upon grounds that his need (or at least doctrinal requirement) to attend a mosque on Friday afternoons was being denied by statute; and that subsequent operational policy created the violation of a number of constitutional rights afforded to all citizens of the United Kingdom.
Citing art.9(1) of the ECHR (freedom of thought, conscience and religion) and art.14 (prohibition of discrimination), the applicant protested that s.30 of the Education Act 1994 stood in immediate conflict with his need to manifest his religious beliefs every Friday between the hours of 1.30pm to 2.15pm. Having been employed by a number of London Borough schools prior to his decision to resign rather than reduce his working hours, the applicant had been given verbal allowances by one school, and shown strict opposition by another, which bore an inconsistent position of unwillingness to accommodate a religious need, which until recently, had never been expressed nor discussed at the time of his original appointment.
When it was submitted that the repeated failure of a Muslim man to attend a mosque (subject to relative distances) would likely result in a beheading in a country such as Saudi Arabia, the applicant expected that the same principles would apply under domestic jurisdiction, and that those grounds, along with previous (albeit unofficial) allowances were sufficient enough to warrant time taken from his contractual duties, despite any inconvenience to teaching staff, pupils or the school as a whole.
After failing to find those arguments upheld in the domestic courts, the matter wound up before the European Commission for Human Rights, where it was unanimously decided that the terms of the Convention were constructed in such as fashion as to allow interpretation and consideration of all religions and beliefs, not just those of the applicant; and yet when willingly accepting a position of employment that brings with it a set of express and implied terms, the accepting individual takes ownership of how that agreement might impinge upon their religious requirements or obligations of faith, and must therefore act accordingly, thus the Commission dismissed the application, while holding that:
“[E]ven a person at liberty may, in the exercise of his freedom to manifest his religion, have to take into account his particular professional or contractual position.”
A crime can be defined both as any wrongful act causing harm to another person, or damage to another’s property, and any act that contravenes those proscribed by common law or statute. Similarly, criminal acts are actions requiring either rehabilitation of the offender and compensation for damages to property, or the victim’s psychological state, which can also include incarceration in more serious cases (this can also be observed from a moral perspective inasmuch as actions that violate the rights and duties owed to the community), while the perception of criminal behaviour is also subject to various political and social factors, therefore can vary across nations.
A criminal definition is necessary in order to help distinguish a moral wrong from a civil wrong, and so criminal activity tends to be associated with some element of punishment when bought to trial, whereas a civil wrong is not considered an act of deviance, but a conflict of perspectives or contractual obligations.
The purpose of criminal law is to distinguish between the two previously mentioned wrongs, in order to help protect the public and the State from acts of aggression, or violent rebuttal; while the objectives of criminal sentencing are to allow an individual the opportunity to reflect upon any criminal act undertaken, and to help the public observe justice being done when miscarriages occur. In addition, the larger aim of sentencing is to maintain public order and minimise anxiety that could adversely affect productivity, and to help reduce crime through deviant punishment and protection of the public. Shown below are some common phrases used within criminal law:
Thin Skull Rule
This phrase means that despite any unforeseen vulnerabilities in a victim being bought to light during trial (or at case preparation stage), the amount of punishment or (tortious) compensation would remain as full as it would be should, or had, the victims been ‘normal’. An excellent case for this is R v Hayward, where the victim to a brutal domestic beating died of natural causes, yet the offender was held criminally liable.
Act of God (or Naturally Occurring Interventions)
These would constitute naturally occurring disasters such as floods, storms, bolts of lightening etc. that prevent criminal liability being placed upon a person.
Typically a lawsuit procedure, where the court allows a third person not originally part of the case, to become involved through joining either the plaintiff or defendant.
A phrase used to describe a medical procedure serving as an intervening act, which could break the chain of causality when establishing the cause of a victim’s death or serious injury. A case reference for this would be R v Smith, which involved the dropping of an injured solider on the way to hospital, an act alleged to have contributed to his death.
Breaking the Chain of Causation
A process whereby the manifestation of a victim’s actions or moral beliefs, exacerbate the wounding (and in some cases instigation of a death). A useful case for this is R v Blaue, where a Jehova’s witness refused a blood transfusion after being stabbed, thereby legally dying as a result of blood loss, instead of knife inflicted wounds.
Defendants Conduct Culpable
A term used where a defendant engages in set of behaviours or actions, that in and of themselves, bring harm to them, without the actions or inactions of another. In this scenario, a person or defendant cannot readily portray themselves as a victim, rather lacking mental capacity or sound mind and judgment. A case example would be R v Williams, where the victim was killed by stepping in front of a moving vehicle driven by an uninsured and unqualified driver, resulting in their criminal liability.
The part of a crime that is concerned with identifying the conduct that criminal law deems harmful. It also describes what the defendant must be proven to have done (or failed to do) in circumstances that produce consequences attributable to moral guilt. The case of R v Miller provides that when waking up drunk to find his lit cigarette had started a fire in the home in which he was staying, the defendant simply moved rooms, rather than attempting to extinguish the fire; translating that his actions resulted in an act of arson.
A term used to describe the element in a criminal offence relating to the defendant’s mental state. Examples of mens rea include intention, recklessness, negligence, dishonesty or knowledge. Thislegalprinciple plays a crucial role in ensuring that only blameworthy defendants are punished for their crimes, however, mens rea is not equivalent to moral guilt. A useful case example is Collins v Wilcock, where it was found that when attempting to question a member of the public, a police officer grabbed their arm with the aim of physically restraining and harming them, as opposed to getting their attention.
How a defendant determines a consequence of his actions when he acts with the aim, or purpose, of producing that consequence. The case of R v Haigh showed that while the appeal jury had clear evidence a mother had intended to smother her child, a lack of mens rea reduced the verdict from murder to manslaughter.
When a defendant was aware of a risk attached to their conduct, and that the risk was an unreasonable one to take. A useful case for this is R v G, where the judges held that a minor was not capable of possessing the reasoning ability of an adult.
When a defendant has behaved in way a reasonable person would not (see also recklessness). A perhaps extreme example of this is R v Adomako, where an anaesthetist failed to observe an oxygen supply disconnection that resulted in his patient’s death.
Novus Actus Interveniens
A term used to describe a break in the chain of causation bought about by a new action, that alters the effect of injury (or death) of a person in such a way that alters the identity of the person culpable; or a free and voluntary act of a third party, that renders the original act a substantial and operating cause of injury or death. An example of this would be R v Jordan, where a stabbing victim had a fatal allergic reaction to a hospital administered drug, therefore altering the cause of injury and subsequent death; and in R v Kennedy, where the supply of heroin did not constitute liability for a users death.