R v C (2009)

English Criminal Law

R v C
Image: ‘x_report#30’ by Kim Byungkwan

The right to choose to engage in sexual intercourse, or even a sexual act, relies upon the powers contained under the Sexual Offences Act 2003 as well as art.8 of the ECHR (Right to respect for private and family life). However, when disability fetters that discretion, the court is required to exercise greater consideration of exactly how such a vulnerability intervenes.

In summer of 2006, a 28 year-old woman suffering with schizo-affective disorder and an IQ of 75, found herself confronted by an aggressive man known to be suffering from metal health issues, and coerced into a situation whereby the defendant forced the victim to perform oral sex against her will.

Upon indictment, the defendant argued that while her illness caused fluctuating symptoms, she was at the time of the alleged offence, able to choose whether or not to engage in the act. When directing the jury, the judge remarked that in order to secure a conviction they must agree that the victim:

“[W]ould be unable to refuse if she lacked the capacity to choose whether to agree to the touching…for example, an irrational fear arising from her mental disorder or such confusion of mind arising from her mental disorder, that she felt that she was unable to refuse any request the defendants made for sex.

Alternatively, [she] would be unable to refuse if through her mental disorder she was unable to communicate such a choice to the defendants even though she was physically able to communicate with them.”

With the defendant duly convicted, he immediately appealed, during which the Court of Appeal both acknowledged and supported his original defence through Re MM, in which the court held that:

“Irrational fear that prevents the exercise of choice cannot be equated with lack of capacity to choose.”

However, when presented to the House of Lords under challenge by the Crown, close examination of s.2(1) of the Mental Capacity Act 2005 revealed that:

“[A] person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain.”

While s.30(1)(c)(d) of the Sexual Offences Act 2003 states how a person is guilty of an offence if the victim is unable to refuse:

“(c)…because of or for a reason related to a mental disorder, and

(d) A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.”

This is further supported by s.30(2) which states that a sexual offence is recognised when:

“(2) B is unable to refuse if –

(a) he lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason), or

(b) he is unable to communicate such a choice to A.”

On this occasion, the House held that when placed into such a traumatic and hopeless situation, the victim had been unable to neither decide nor refuse the advances of the defendant, therefore there could be no doubt as to the soundness of the original conviction. It was for these reasons that the appeal was upheld, while the House reminded that had the victim been held to have capacity but been unable to communicate her refusal, the defendant would have been otherwise liable for statutory rape under ss.1 and 75(2)(e) of the 2003 Act.

British Chiropractic Association v Singh (2011)

English Tort Law

Chiropractic Association v Singh
‘Leaning Right’ by Steve Mills

Damages for libel and the freedom of expression, rely upon distinct terms of meaning for their preservation or application. And so on this occasion, the subjective opinion of an industry insider becomes the target of a writ that while not uncommon, does little to protect the reputation of those evaluated.

Whilst writing a tabloid article, the appellant doctor wrote of the respondents:

“The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence.”

In retaliation, the respondents issued a writ for defamation on grounds that when publishing the article, the appellant had implied on the basis of fact, that the respondents lacked any credible evidence with which to support its claims. During the trial, the judge elected to apply a ‘fact’ based test, as opposed to one of subjective opinion, whereupon the jury found against the appellant and damages were set, along with injunctive remedy.

During the appeal, the Court reexamined the actions of the judge when choosing to adopt a factual premise upon which to rest the defence, while exploring the meaning of art.10 of the European Convention on Human Rights (Freedom of expression), with particular reference to De Haes and Gijsels v Belgium, in which the Court found that a journalist accused of libellous commentary was ultimately found to have merely expressed a ‘value judgment’ based upon collective facts relating to the field under discussion.

Here, the appellant had recently co-authored a book with an established authority on the history of chiropractic medicine, who had found through direct application of the methods common to chiropractic, that despite seventy experimental trials, there was no evidence to support the claims forwarded by the respondents, hence the commentary made within the article.

With these ‘facts’ in hand, the Court held that while honest in his intentions, the trial judge had erred in treating subjective opinion and reasoned commentary as statements of fact, and that by doing so had in essence contravened the rights contained under art.10, and reinforced the notion that challenges of those in authority were subject to punishment or forfeiture.

It was for this reason that the Court reversed the previous decision, while citing the words of Judge Easterbrook in Underwager v Salter, who had clarified how:

“[Plaintiffs] cannot, by simply filing suit and crying ‘character assassination!’, silence those who hold divergent views, no matter how adverse those views may be to plaintiffs’ interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation . . . more papers, more discussion, better data, and more satisfactory models – not larger awards of images – mark the path towards superior understanding of the world around us.”

While reminding the Court that language should not be used to distort, dilute or obscure the purpose of clarity when establishing liability for defamation or libel.

Stewart v. Gustafson

Canadian Property Law

Stewart v Gustafson
Image: ‘Old Farm Truck’ by Rick Mock

Conversion of seemingly abandoned property is not without the law, however there are inherent differences as to how best to remove or despatch such property, while considering the enduring proprietary rights of the original owners. In a matter concerning a number of goods of varying value, the claimants sought damages for loss, when after giving ample notice for their removal, the recent freehold purchasers took steps to enforce their rights to enjoyment of the land now owned.

Under a conveyance dated May 2 1994, the respondents purchased land from the claimant’s mother, on condition that time be given for the removal of specific items owned by her son and daughter-in law. With an express threshold of July 31 1994 for all items outstanding, the claimants removed a portion of the items listed, after which no attempts were made to recover the remainder.

Noted within the conveyance was express mention that:

“Any items remaining after deadline shall be considered abandoned and can be disposed of in discretion by the purchaser who will exercise prudent discretion.”

And so upon expiration of the agreed threshold, the respondents proceeded to both remove and where possible, sell the items either privately for profit, or by way of scrap, with the remaining few items kept under secure storage.

At the point of litigation, the claimants argued that unless stated, the items both sold and left in situ, were still under ownership, and that no acquirement of title has succeeded, despite no attempts to remove them beyond the period stated. With reference to the principle of abandonment, the court observed the academic position adopted in ‘The Abandonment and Recaption of Chattels’ (1994) by Lee Aitkin, in which it reads:

“The act of abandonment, in Pollock’s terms, confers a revocable licence which is only terminated when a subsequent possessor manifests dominion over the chattel with the intention of possessing it to the exclusion of others, including the former possessor.”

However in ‘Is Divesting Abandonment Possible at Common Law’ (1984) by A.H. Hudson, it was argued that abandonment through intention was sufficient enough to warrant acquisition by those taking new ownership, (otherwise known as ‘divesting abandonment’) which in effect, created further confusion as to how best to ascertain when property has been lawfully abandoned.

In Canada (Attorney General) v. Brock, the Canadian Supreme Court had earlier turned to American jurisprudence when adhering that once relinquished of title, such property remains abandoned until appropriated by those intending to take ownership, while ‘Black’s Law Dictionary’ (1979) clarified how:

“Abandonment includes both the intention to abandon and the external act by which the intention is carried into effect.”

With particular regard to the case in hand, McCutcheon v. Lightfoot had enabled the Supreme Court of Canada to rule how:

“[A]bandonment of a chattel may be inferred in circumstances where an owner fails to remove his or her chattels within a reasonable time after receiving notice from the proprietor demanding their removal. In such circumstances, the destruction, consumption or sale of the chattels would not constitute a conversion thereof.”

While in Addison on Torts (7th Edn), it was equally argued that:

“A man cannot be made a bailee of goods against his will; and, therefore, if things are left at his house, or upon his land, without any consent or agreement on his part to take charge of them, he is not thereby made a bailee of them.”

Thus with close examination of the rights afforded both parties, the court held that the items retained and sold or disposed of, were subject to five distinct groups, within which three were estopped from right of claim, damages for conversion were awarded at $300 for the item sold privately and the final group remained abandoned unless agreed otherwise.

Barnett v Chelsea and Kensington Management Committee

English Tort Law

Barnett v Chelsea and Kensington Management Committee
Image: ‘Mom’s Poison Bottle’ by Leah Lopez

Professional negligence and the balance of probabilities were, at the time of this hearing, key ingredients to the maxim ‘novus actus interveniens’, which is used to determine whether the actions (or inactions) of a third party can be held liable for the cause of death, even when the primary act or event was of such magnitude that nothing could have reasonably prevented a fatality.

On New Year’s eve of 1965, three college watchmen were self-admitted to the casualty ward of St. Stephen’s Hospital, London, complaining of sickness and associated vomiting. Ironically, one of the men had been admitted only hours earlier, after suffering a blow to the skull by an unknown campus intruder.

Upon their arrival, the duty nurse listened to their complaints, before communicating them by telephone to the medical casualty officer, who was himself at home suffering with a sickness and associated vomiting. Having heard their symptoms, the advice given was that they should return home and wait until feeling better, aside from the victim of the violent attack, who was asked to remain in the ward until his x-ray, which was due later next morning.

Angry that no immediate solutions were offered, the three men left and returned to their place of work. Shortly after arrival at the college, the injured watchman was forced to lay down, where he remained until the college doctor arrived at 1pm on New Year’s day, at which point his condition had significantly deteriorated, and so when arriving at hospital at 2pm he was pronounced dead.

Upon examination, it was revealed that for reasons unknown, the flask of tea shared by the men at 5am that morning, was contaminated with arsenic, which while not enough to kill all three, was present enough to prove fatal to one. It was for this reason that his widow sought damages from the defendants, on grounds that the inability of the hospital staff to both diagnose and treat her late husband, was in fact the primary cause of his death, and that a liability for negligence was clear through an inherent duty of care.

At the trial, the criteria for negligence under a duty of care was first addressed through the words of Denning J in Cassidy v Ministry of Health, when he explained:

“In my opinion authorities who run a hospital, be they local authorities, government boards, or any other corporation, are in law under the self-same duty as the humblest doctor; whenever they accept a patient for treatment, they must use reasonable care and skill to cure him of his ailment…and if their staff are negligent in giving the treatment, they are just as liable for that negligence as is anyone else who employs others to do his duties for him.”

While through p.183 of ‘Winfield on Torts’ 7th ed (1963) the court was reminded that:

“Where anyone is engaged in a transaction in which he holds himself out as having professional skill, the law expects him to show the average amount of competence associated with the proper discharge of the duties of that profession, trade or calling, and if he falls short of that and injures someone in consequence, he is not behaving reasonably.”

A principle that was furthered by the witness testimony of Dr. Stanley Lockett, who enthused:

“In my view, the duty of a casualty officer is in general to see and examine all patients who come to the casualty department of the hospital.”

However, upon close analysis of the timeline between the deceased’s complaints and the event of his death, it was confirmed that despite hypothetically following all the procedural requirements when treating patients, the hospital would not have been able to administer the named antidote for arsenic poisoning (B.A.L), or apply an intravenous drip any earlier than around 12pm New Year’s Day, therefore despite the obvious anguish of the claimant and her anger over her husband’s untimely death, the defendants could not be held legally liable for negligence, despite failing under their requisite duty of care.

Abouzaid v Mothercare Ltd

English Tort Law

Abouzaid v Mothercare Ltd
Image: ‘Twinkling Eye’ by Pavel Guzenko

Manufacturer negligence and the powers of consumer statute are both central to a claim for damages, when a leading retailer is held liable for a loss of earnings through serious physical injury.

In 1990, the respondent’s eye was struck by an elasticated strap forming part of a foot warmer product known as ‘Cosytoes’, which was manufactured under the store’s own brand range. The extent of the damage was unknown at the time, however over the period that followed, the respondent was diagnosed with shallow temporal half-detachment of the retina, which in turn led to virtual blindness and total lack of central vision.

Some ten years later, the respondent sought damages under negligence, and through the powers afforded them under the Consumer Protection Act 1987. In defence, the appellants relied upon the investigative report of a highly qualified consultant engineer, whose notes confirmed:

“I conclude that in 1990 no manufacturer of child care products could reasonably have been expected to have recognised that elastic attachment straps for a cosytoes could pose a hazard to the eyes of children or adults, since the potential risk had not at that time been recognised even by experts in the safety of such childcare products.”

However, the engineer also stressed that:

“I found that for me it was quite easy to fasten the straps correctly from behind the seat unit. Attempting this from the front of the seat was more difficult, because it was not possible to see the fastening. It also required putting my head close to the seat in order for my arms to reach round behind it. I noticed that the elastic did have a tendency to pull the fastener through my fingers, and it could easily have slipped.”

Contrastingly, when transposing the requirements of the 1987 Act, Parliament was obliged to observe the terms of Directive 85/374/EEC in which the preamble outlined:

“Whereas, to protect the physical well-being and property of the consumer, the defectiveness of the product should be determined by reference not to its fitness for use but to the lack of the safety which the public at large is entitled to expect; whereas the safety is assessed by excluding any misuse of the product not reasonable under the circumstances…

[W]hereas a fair apportionment of risk between the injured person and the producer implies that the producer should be able to free himself from liability if he furnishes proof as to the existence of certain exonerating circumstances…”

In the first hearing, the judge found in favour of the respondent on grounds that embraced both manufacturer negligence and the presence of a defect, as described in s.2(1) of the Consumer Protection Act 1987, which reads:

“(1) Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes safety, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.”

Upon appeal, the Court reexamined the previous decision, and revisited the argument that what was evidentially unsafe in 2000 was not deemed harmful in 1990, in light of there being no recorded incidents of that nature upon which to rely at the time. With reference again to the consultant engineer’s notes, the Court emphasised how he had also stated:

“I conclude that I should have to advise anyone manufacturing such a cosytoes today that the product would have a safety defect unless the potential risk of injury (to the eyes of a child in the pushchair or the person fitting it) was either eliminated by design or that consumers were warned of the possible risks and how to avoid them. Such advice to consumers would need to include instructions for fitting the cosytoes that avoided the obvious difficulties that Mr Abouzaid and his mother were having prior to the accident.”

And that despite a lack of recorded industry data with which to determine the safety of the product, there was little to explain how consumer awareness had remained static over the preceding decade, with particular reference drawn again to s.5.1.2 of his report, which itself remarked:

“[T]he level of safety that consumers can reasonably expect is not necessarily a constant, but will rise over time in small steps, if the state of industry knowledge of hazards and their prevention improves.”

It was for these reasons that the Court agreed with the essence of the earlier judge’s findings, and that the level of damages awarded were an accurate representation of the loss suffered through such a simple error in quality control and user protection.

Strong v Bird

English Equity & Trusts

Strong v Bird
Image: ‘Debtor Night’ by Seminary Road

While English common law requires the perfecting of a gift through written documentation, the circumstances of that prerequisite can be somewhat altered when the moment calls. On this occasion, a testatrix was ultimately able to complete an oral debt release through the appointment of her debtor as an executor.

In 1866, the deceased was cohabiting with her son in-law when due to her sizeable wealth, she entered into an agreement whereby a significant amount of rent was paid on a quarterly basis, after which the defendant borrowed £1100, on the proviso that she deducted £100 per quarter until the balance owed was clear.

After only two payments, the deceased relinquished the debt, and explained that no further deductions were necessary. This evidence was supported both by his wife and from handwritten notes left on the cheque counterfoils used before her demise.

Upon her passing, the beneficiary to her will contested that the £900 unpaid, was now owed under law, as the cessation of the loan had not been committed to any form of written notice aside from the cheque stubs, which were deemed insubstantial as proof.

Relying upon the essence of equity, the court examined the context in which her wishes had been executed, and knowing the oral and notary testimony were insufficient to stand as perfect, her appointment of the defendant as executor to her will, was evidence enough, and that while:

“The law requires nothing more than this, that in a case where the thing which is the subject of donation is transferable or releasable at law, the legal transfer or release shall take place. The gift is not perfect until what has been generally called a change of the property at law has taken place.”

Thus the court held that the deceased, having made no express acknowledgement of a debt within her will, was proof enough that the gift was perfect, and that its absence created in the defendant, an absolute right to title of the £900, therefore no challenge could be made, equitably or otherwise. The court further noted that her further payments of full rent for a period of four years after the money had been loaned, showed again that she considered the sum paid in full, and so sought no recovery in death, as she might in life.

R v Roberts

English Criminal Law

R v Roberts
Image: ‘Escape’ by Anna Dart

In a case involving assault occasioning actual bodily harm, the defendant appealed on grounds that an irrational act on the part of the alleged victim was sufficient enough to constitute ‘novus actus interveniens’, thereby breaking the chain of causation and defeating the charges held against them.

In spring of 1971, the victim was an engaged twenty-something who having spent some time together at a party, had decided to join the appellant in car journey in the early hours of the morning. It was during the journey that the appellant had misled the victim as to where they were headed, after which he attempted to have sex with her, despite her immediate protestations.

Having then asked to be taken home, the appellant threatened to force her to walk back if she failed to comply with his demands, but not before he had physically assaulted her. It was at this point that he attempted to remove her coat whilst driving at speed, thereby forcing her to open the passenger door and jump out, thus suffering from mild concussion and numerous contusions as a result of her escape.

Having wandered to the nearest house, she was taken in and then safely escorted to hospital for treatment and a three-day stay with lengthy cross-examination. At trial, the judge explained to the jury that in order to find the appellant guilty, they needed to be certain that it was his actions alone that had led to the victim’s injuries, and that his efforts to disrobe her against her will were tantamount to an assault.

Using the exact words:

“[I]f you accept the evidence of the girl in preference to that of the man, that means that there was an assault occasioning actual bodily harm, that means that she did jump out as a direct result of what he was threatening her with, and what he was doing to her, holding her coat, telling her he had beaten up girls who had refused his advances, and that means that through his acts he was in law and in fact responsible for the injuries which were caused to her by her decision, if it can be called that, to get away from his violence, his threats, by jumping out of the car.”

The jury were directed as to ensure they were satisfied that the two acts were inextricably linked, and that unless they could, beyond any reasonable doubt, identify and connect them, the appellant was to escape the charge held under s.47 of the Offences Against the Person Act 1861. It was then found by the jury that despite reservations as to the weight of both parties arguments, the actions of the appellant were directly contributive to the illogical action of the victim and so the charge was upheld.

Upon appeal, the argument presented was that the judge had failed to factor the foreseeability by the appellant of the victim’s actions at the time the offence took place, and that when testing for assault, this aspect of the jury direction was absent. In response, the Court held that as was explained in R v Beech, the judge had rightly asked:

“Will you say whether the conduct of the prisoner amounted to a threat of causing injury to this young woman, was the act of jumping the natural consequence of the conduct of the prisoner, and was the grievous bodily harm the result of the conduct of the prisoner?”

And that at no point in English law had a prerequisite for the defendant’s mindset existed, as to allow such an obligation would immediately nullify any conviction held against them. It was then for this salient reason that the Court dismissed the appeal and secured the original conviction.