Per Incuriam Easter 2016 by Per Incuriam, Cambridge University Law Society

PER INCURIAM CAMBRIDGE UNIVERSITY LAW SOCIETY

EASTER 2016

CRIMINAL LAW P. 14

Who prima facie is guilty of Waltâ&#x20AC;&#x2122;s death?

LAND LAW P. 20

The rules on the running of the benefit and burden of freehold covenants are in an unjustifiable mess.

EQUITY P. 26

The question, in essence, is whether the common law rules of causation and remoteness are appropriate to import into considerations for breach of trust.

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PER INCURIAM Contents

CONTENTS

THE EDITORS

ASPECT LAW

CIVIL LAW

LAND LAW

CONSTITUTIONAL LAW

ADMINISTRATIVE LAW

At the end of the internship Rachel told him that the company had decided not to create a new broadcasting position after all. Critically consider any claims might Jonny have against Goal TV. ‘The rules on the running of the benefit and burden of freehold covenants are in an unjustifiable mess.’

What was the role of writing in the Roman law of contracts?

In the absence of a written constitution, the Rule of Law provides a constitutional foundation rooted in basic ideas of individual freedom & human dignity.

What role does the notion of ‘jurisdiction’ play in administrative law doctrine? Is ‘jurisdiction’ a necessary or useful component of that body of doctrine?

CRIMINAL PROCEDURE & EVIDENCE

CONSTITUTIONAL LAW

‘For all that devolution and federalism are supposedly different, the United Kingdom’s constitution is assuming an increasingly federal character’.

Mason’s Trial

CRIMINAL LAW

EQUITY LAW

‘The various duties imposed on trustees and the associated remedies for their breach are now far more readily explained by analogy with common law doctrine than by any distinctive equitable doctrine.’

Dam quis etur, am faceaqu iandipienis atur, susam dolorio dignientis vid quas et facea que a sint laccull aborum que cum

CRIMINAL LAW

Who prima facie is guilty of Walt’s death?

Welcome to the Easter 2016 edition of Per Inc!

is prima facie guilty of Walt’s death. For second and third years, who obviously take a wider range of papers, you will find scripts on Land, Administrative, Equity, CPE, EU and Aspects. Even if you do not study these papers this year, hopefully this edition, now also published online, will remain with you and you will be able to refer to it if/when it becomes applicable to you. Copies of past editions can be found in the faculty, with the Easter issue each year usually always including some past scripts for your perusal.

As the academic year comes to a close, most of you will be sitting your exams so firstly, good luck to all! We hope that everyone gets the results that they hope for. This edition is entirely focused on exam scripts which have been marked 72 (1st class) and above. Although there certainly isn’t a perfect script, we hope that being able to see what some past candidates have done will prove helpful at this stressful time.

Thank you again to all our kind sponsors without whom this publication would not exist; please do check out their websites for more information.

For first years, we’ve included a range of scripts for most of your compulsory papers. Ally Lim analyses what the role of writing was in the Roman law of contracts, whilst Edward Rochford considers the question: ‘In the absence of a written constitution, the Rule of Law provides a constitutional foundation rooted in basic ideas of individual freedom and human dignity’. Jake Seal takes a look at devolution and federalism in the United Kingdom, whilst we have two scripts tackling criminal law, specifically defence and necessity in murder and a problem question trying to answer who

For all those of you who have first class scripts that you wish to submit, we are always looking for more so please contact per-inc@camlawsoc.com if you want to see your work in print! Lastly, good luck to the new editor, Alicia Loh, who will be taking over for the Michaelmas 2016 issue! Best wishes, Zaid and Aarya

PER INCURIAM Essays

PER INCURIAM Essays | CIVIL LAW

What was the role of writing in the Roman law of contracts? Ally Lim | Gonville & Caius

The role of writing in the Roman law of contracts changed in its use and enforceability during the development of the Roman Empire: it influenced the different categories of contract to different degrees and grew in its role as the Empire expanded from the small communities of the archaic period to the vast sprawling Empire and its many varied provinces. Although the use of contract litteris declined, this was met with an increase in the role of writing in perhaps the most important contract: stipulatio. Thus the role of writing rose in prominence as the contract progressed and enhanced the commercial efficiency of the Roman Empire as it did so.

not playing a substantial role in written contract as this period in the post-classical age, certainly not by its form itself. However, as alluded to earlier, this does not mean that writing had no role at all in Roman law – in fact, the use of stipulatio, and then a cautio as evidence of the question and answer aspect of the formal contract, was perhaps the main reason in the decline of the contracts litteris, and as time progressed, it became one of the fundamental features of the contract of stipulatio. This may seem peculiar given that, in its origin, stipulatio was an extremely formal oral contract. Still in the classical period, stipulatio was characterised by the exact congruence between the question and answer of the two points, the absence of any interval between them, the presence of both parties and use of spoken words such that even the deaf and dumb could not use this mode of contract, as Gaius tells us. How then, can it have been the most important one for the role of writing?

The most apparent area of contract to consider is the contract litteris – the formal contracts which were written down in their very form and whose enforceability derives from the very fact that they were written. This originated from the paterfamilias of the household writing into his ledger a debt that he had allegedly made to another, of money that he was owed by another person. The usefulness of this procedure allowed him to convert any obligations and debts he owed into a single stricti iuris money contract, as long as he had the permission of the other party, who did not actually have to be present at the time that the debt was written down. It also allowed debts to be transferred from one debtor to another without too much difficulty, merely altering the statements in the ledger, and its simplicity lay in its proof – it was difficult to dispute once it was clearly written in the ledger.

This largely depends on the view taken of how stipulatio degenerated over the course of time. If we accept Riccobono’s view, then Gaius’ description of the words that could be used instead of the ius civile “spondes ne? Spondeo” such as “fideipromittis? Promissi” were examples of words that could be used in G.3.92. Nicholas instead argues that “veluti” meant “as follows” instead of “for example” as Riccobono argues. Although at this period in Roman history, this did not have substantial effect on the role of writing – as both academics accept that the cautio, an evidentiary stipulatory document which was written proof of the contract, was merely a presumption that could easily be rebutted. It merely served as an evidentiary presumption. However, this had numerous repercussions as we approach Leo’s constitution of AD 472 in which any expression of intent is said to suffice. For Riccobono, this dismissed an important fundamental structure of this contract and demonstrates that there was no longer any need for a question and answer. This meant that stipulatio was relaxing significantly, and the cautio increasingly became almost conclusive or a statement of the contract. Indeed, if Ulpian tells us that the response of “quidri?” to a question can suffice to make a contract (D.45.1.1.2), then why cannot a cautio be exemplification of a contract and the presumption of the presence of the parties? However Nicholas takes the view that Leo’s constitution merely allowed different words to be used, but did not allow the question and answer requirement to be taken away. Indeed, his view would mean that the stipulatio had not degenerated to such an extent that although in theory it was still an oral contract, in practice it was mostly written as Riccobono would argue. Then as we reach post-classical Justininan who claims that any expression of intention made a stipulatio, while Nicholas accepts that the cautio rose in prominence, but still maintains that the contract remained oral in theory and only a stipulatory document of the cautio sufficed, Riccobono claims that contract shed its last remnants of verbality and became

Thus in very early law, the role of writing was immediately evident from its role in contract litteris. Yet we must guard against overstating the importance of this method of contracting. Although included in Gaius’ description of twofold categories of contracts, it had in fact began to die out and by the classical period was a mere historical reminiscence. This is largely due to the growth of banking in the arising commercial activity of the Roman society as social and economic circumstances shifted away from the agricultural society to a mass trading and commercial enterprise, as well as the increasing relevance of the stipulatio as a means of evidential presumption of a contract in a written form. The usefulness of stipulatio thereby eschews the need for the contract litteris by the early to late Republic and may consign its presence in Gaius’ classification to the mere Roman tendency to approach the classification in a symmetrical, allinclusive fashion. Indeed, the written contract as described in Justinian’s classification of contracts is very unlikely to be the same as Gaius’; by Justinian’s time it was merely the written evidence of some fictitious or semi-fictitious debt and used as an evidentiary presumption, as opposed to being the form of the contract itself which gave it the enforceability it needed. Although development, such as the shift in the burden of proof from the man who had written the contract to the man who supposedly owed the money or item, seem to suggest that there was still relevance in the written contract in this form, it was merely evidentiary and the role of writing was

“

Although included in Gaius’ description of twofold categories of contracts, it had in fact began to die out and by the classical period was a mere historical reminiscence

a written contract such that any document sufficed to make the contract, not merely the cautio. The view of Riccobono is preferable as evidenced by the spread of the Empire to the provinces meant that as the constitutio Antoniniana of AD 212 adopted peregrines into the ius civile system, the peregrines in practice saw the written documents with a mere addendum of an alleged question and answers, and used this as the law. The law in practice follows Riccobono’s view and points to the significance of the written stipulatio as a contract, as demonstrated by Diodei’s description of Greek stipulatory documents which were nonetheless, clearly part of the Empire, and thus adopted into the ius civile.

In conclusion, although not evident in every area of contracts, such as the lack of appearance in the contracts re which were enforceable on delivery, or the consensual contracts which came into force on agreement, writing played an increasingly dominant role in Roman contracts. Although the initial use of writing in the contracts litteris died out, the increasingly significant adoption of writing, first in cautio as evidence, and at last to any written document expressing intent as conclusive presumption that the contract had been formed, shows the importance of writing in such a prevalent and useful contract such as stipulatio.

PER INCURIAM Essays | CONSTITUTIONAL LAW

‘In the absence of a written constitution, the Rule of Law provides a constitutional foundation rooted in basic ideas of individual freedom and human dignity.’

How far, if at all, do you agree? Which particular legal principles or doctrines could be regarded as illustrations of that conception of the Rule of Law? Edward Rochford | Selwyn College

All conceptions of the rule of law demonstrate respect for the individual. None can be treated as morally neutral. Even the very thin conception proposed by Dicey sought to protect the individual from vast powers wielded by the state. The first branch of his conception was that all government action must be authorised by law as opposed to being an arbitrary decision. This does not specify any types of action in particular. Thus it does not condemn abhorrent practices which anyone would agree do not respect human ‘dignity’. All conceptions of the rule of law specify a degree of predictability of the law which is needed if its subjects are to lead lives of liberty and ‘freedom’. But this would be, in a thinner conception, freedom from arbitrary power. Thus measures enacted by Parliament to detain unjustly could be totally compatible with the Diceyan view. But since Dicey, the rule of law has (in most circumstances in which it is referred to and applied) grown considerably to cover the substantive content of law as well as its form and manner of creation.

clear and accessible and could be understood. But this was still unacceptable. The courts (by this time empowered by the HRA) were responsible for protecting the freedom and dignity of those suspected foreign terrorists who were detained indefinitely. The power to do so was here given to the courts by the HRA. Some would argue that what they did had nothing to do with the rule of law. I disagree. A similar effect might have been achievable through the common law. Allan certainly puts his faith in the common law to provide a foundation of constitutional principles within which all constitutional actors must remain. According to Allan, in the absence of a written constitution, to limit the rule of law to purely formal conceptions is to restrict the development of public law. For him, public law is founded upon a fluid collection of principles rather than rigid rules. Allan’s unorthodox conception of the constitution does not see a sovereign Parliament – there are, Allan says, clear limits on what Parliament can do, provided by the rule of law within our common law.

Raz denies that the rule of law can restrict the substantive content of the law; if this were so, he says, it would be the rule of good law. In his view, even an oppressive regime causing terror and infringing individuals’ ‘freedom’ and ‘dignity’ could obey the rule of law. For him, the purpose of the principle is clarity: whatever the law is, it must be clearly formulated, accessible and relatively stable (amongst other things). Despite not affecting what the substantive content of the law may be, it is wrong to treat his conception as agnostic to freedom and dignity. His conception supports these principles through the law’s form. For him, whether the substantive content of the law equally respects these virtues is beyond the remit of the rule of law. But surely it strips the rule of law of its useful purpose to believe this. Even more, the courts are having to protect the individual from the oppression of the law (however well formulated). By expanding the rule of law from what Raz professes to restrict the substantive content is to give the courts a vital status within the unwritten constitution to see freedom and dignity respected in full.

I believe a substantive conception has at its heart a sovereign parliament, though, but the sovereignty exists out of trust by those whom it serves. For the most past, the rule of law should be a collection of principles which inform the decisions of Parliament. When freedom and dignity of individuals is threatened, the courts’ proper role is to use their margin of appreciation to let through only the clearest intentions of Parliament to subvert the rule of law. The principle of legality achieves a pleasing balance here, with Parliament ultimately being sovereign, but the courts striving to uphold a substantive rule of law. As in Pierson, ‘fundamental rights cannot be overridden’ by vague or imprecise words. This principle protects us from accidental or even insufficiently precise threats to our rights. Undoubtedly, the courts have gone even further than the principle of legality would typically allow. The ruthless interpretation in Anisminic is a good example. It is best to see the rule of law as complementary to – and not in direct opposition with – the Parliament with which we have trust. The rule of law informs political process and, in a result of derogation, the courts are willing to interpret, on the assumption that Parliament would not have wished to make such a derogation. The more substantive powers, like those conferred by the HRA, should be only given by Parliament. In a country with no written constitution but with, according to orthodoxy, a sovereign parliament at its apex, the courts should keep within their powers and let the political constitution do the rest of the work.

Bingham’s conception embraces human rights protection and is more reflective of the current application of the principle. The importance of human rights was emphasised further with the enactment of the Human Rights Act which played a vital part in protecting the individual in the events which followed 9/11. In the Belmarsh prison case (A v Home Secretary), Lord Hoffmann famously said that it’s not terrorists we should be scared of but legislation. The legislation in question was rushed through Parliament and thus could be argued to have broken the stability which Raz’s conception would recognise as necessary. But in all other respects, the legislation was

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I believe a substantive conception has at its heart a sovereign parliament, though, but the sovereignty exists out of trust by those whom it serves

PER INCURIAM Essays | CONSTITUTIONAL LAW

‘For all that devolution and federalism are supposedly different, the United Kingdom’s constitution is assuming an increasingly federal character’. Discuss. Jake Seal | Sidney Sussex

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One of the most striking differences between devolution and federalism is the asymmetry seen in the UK constitutional makeup, which seems to put it at odds with the typical federal structure

for independence has been strongest, as shown in the momentous independence referendum last year (September 2014), arguably the greatest amount of power can be seen, the Scottish Parliament possessing full legislative capacity to amend any Act of Westminster that affects Scottish issues. These powers reside from the Scotland Act 1998, but it seems that a federal character is further emerging in the wake of the recent Smith Commission Agreement.

becoming increasingly desirable. However, for all that it is undesirable, it might be said that this imbalance in powers seen in Wales, which originally only had administrative devolution until 2006, and in Northern Ireland (enjoying similar powers to Scotland), is actually leading our constitution down the federal track, in that the further the constitutional imbalance within the Union, the greater the political and electoral desire for further devolved powers, which will, in turn, lead to a more assuming federal character of our constitution. However, McCormick has argued that constitutional equilibrium is needed in a federal state, which apparently the UK does not possess. As Rawlings has stated, England is the ‘spectre at the feast’ which detracts from the argument that the UK has a federal constitution in that it seems that England is the ‘unfederated’ segment. Lord Irvine has argued that this is not an obstacle in the way of federalism as the population size of England has meant that its voice can be fairly heard in the Westminster Parliament, which in our constitutional makeup has also become the de facto English Parliament.

The Smith Commission proposed that the Scottish Parliament and Executive ‘will be’ a ‘permanent institution’ which is problematic in no uncertain terms for those ascribing to a more traditional view of Westminster sovereignty. It could be argued that although the character of a federal constitution is emerging, this is impossible as a matter of legal constitutionalism unless Westminster relinquishes its sovereignty over the devolved legislatures. This can be seen reflected in the Draft Scotland Bill 2015 in which it is stated that the Scottish Parliament ‘will be recognised’ as a permanent institution. This is clearly markedly different from the Smith Commission’s proposals and points against an argument for federalism in that, legally Westminster Parliament (WP) is still able to unilaterally abolish devolution, lacking the constitutional security a federal state usually has.

How much does this present a problem for an increasingly federal character? If we compare England to federal states abroad, the largest imbalance can be found in the Canadian constitution, where Quebec possesses 35% of the population, whilst within the UK, England holds 85%, strongly suggesting that a federal character is implausible. This is the argument McCormick makes; constitutional equilibrium is achieved in the USA, as although there are some larger states, these are balanced off with other larger states, whilst the number of smaller ones ensures the bigger ones are not constitutionally superior in practical terms. Any arrangement that the UK constitution adhered to in federalism might result in a ‘severe democratic deficit’ if something impeded the ability of England to have greater powers than the other devolved nations. A Lord Bingham Centre Report (May 2015) found that the Smith Commission’s proposals were leading towards an increasingly federal character which was also reflected by some of the senior judiciary’s comments recently, Lady Hale commenting in her Bryce Lecture earlier this year that the UK Supreme Court had become a ‘true constitutional court’, its ability to strike down ultra vires legislation of the devolved nations only emphasising a more increasingly commonality with the USA Supreme Court, although of course, it will never possess the legal powers to strike down Westminster Parliament Acts, and thus holding true to a devolution structure.

However, as a matter of political constitutionalism, a federal character is looking increasingly entrenched. As Lord Denning remarked in Attorney General v Blackburn ‘Freedom once given, cannot be taken away’. Lord Denning’s comments are reflected in our constitution, not merely made up of law, but also of other sources, such as conventions which suggest a federal character is becoming more prominent. The Smith Commission proposed that the Sewel Convention be put on a statutory footing whilst the Draft Scotland Bill seemed to do a lot less, stating that ‘it is recognised that the UK Parliament will not normally legislate on matters concerning the devolved legislatures without their consent. Again, this paints the picture of Clause 1 and Clause 2 not actually giving the constitutional protection or legitimacy that a federal state secures.

Devolution and federalism are markedly different in many ways, devolution giving only partial satisfaction to those who desire more national independence. However, these two politicallegal constructs can also be seen as strikingly similar in the degree of independence conferred. As Sir David Williams once said ‘devolution is federalism without the conviction’. Within the UK our constitution does in fact, as a matter of practical politics, seem to be moving towards a federal character.

One of the most striking differences between devolution and federalism is the asymmetry seen in the UK constitutional makeup, which seems to put it at odds with the typical federal structure. Within the USA, a perfectly federated nation, the power is distributed evenly among the fifty states. However, within the UK, as a result of what Elliott calls the ‘piecemeal and pragmatic’ devolution structure, power has been devolved based on the degree that the Home Nations desired it (England excepted). In Scotland, where the desire

Indeed, the House of Commons Political and Constitutional Reform Committee (2015) remarked that the clauses would do nothing to protect the devolved nations legally, although politically they would have great impact. This is because the statutory recognition of these features of our constitution will make it nigh-on impossible for the Westminster Parliament to rescind on its promises. However, this still does not give us the legal protection afforded to federal states such as Canada and the USA. Thus, it seems that in character the UK’s character is increasingly federal, but in legal nature and name, it can never be for as long as the constitution conforms to Parliamentary orthodoxy. Saunders in a 2015 Cambridge lecture has argued that the asymmetry in our constitution needs to be corrected, the ‘piecemeal and pragmatic’ make-up of our constitution

Nevertheless, it seems as a matter of character, the UK’s constitution is undoubtedly assuming a more federal character; as a matter of political constitutionalism, the security of the devolved nations is utterly secure, and this will only grow (thus becoming more aligned to federalism), rather than diminish, as time goes by.

PER INCURIAM Essays | CRIMINAL LAW

From the 2014 Criminal Paper

Anonymous

The first point to note is that this essay will argue ‘necessity’ itself is not a defence. Rather, as Stark argues, it is the overriding principles behind all the defences. He categorises defences as first excusatory necessity; second, self-defence; third, best-interest necessity and fourth; justificatory necessity. This essay will use these types of defences.

may disincentivise him from looking to alternative options. The current law encourages and incentivises the defendant to attempt any action to try and prevent the harm from occurring, for instance attacking the duressor himself. Moreover, from a purely moral, rather than a protective standpoint, it is wrong that a defendant should be able to choose between one life and another and not be subject to the criminal law. It should not be up to the defendant to take the easy way out and simply commit the murder. Morally, the defendant is culpable and thus should be guilty.

Therefore, this question is much wider than first appears, since necessity includes self-defence. All the defences rely on necessity; they all argue that the actions of the defendant were necessary in the situation. This essay will argue self-defence, best-interest necessity and justificatory necessity should all be defences to murder, whilst excusatory necessity (duress) should not be.

However, that is not to say the defendant should not be allowed any defence of duress. This essay argues that duress should be allowed as a partial defence to murder. While the most satisfactory outcome would be that a murder conviction is given, but no mandatory life sentence, this is not a realistic option. Therefore, the defence should be allowed as a partial one to allow a conviction of manslaughter, merely to avoid the life sentence due to the reduced, but not lack of culpability. This is also a viable option since duress is not too dissimilar to loss of control and diminished responsibility in terms of culpability. Furthermore, duress as a defence would be similar to the one for “mercy” killings, which should be allowed as a defence for murder although it is not currently the case. These two are very similar; although there is in both cases not sufficient culpability for a murder conviction to be justified, the need for social protection and deterrence means that policy wins over principle.

Firstly, quickly to address self-defence. Self-defence, as par of necessity, should certainly be a defence to murder. This is because if someone attacks you and by using proportionate force you kill them, a conviction here would be unfair based on culpability and individual autonomy. The former principle would be offended since there is no culpability in defending yourself and killing another and thus you should not be deemed a criminal, while the latter would be infringed since people have the right to live how they like, making their own choices and thus preventing someone from choosing to defend themselves would be inherently unfair. Thus, self-defence should be a defence to murder. Contrary to popular opinion and also the Law Commission’s suggestions, this essay argues duress should not be a defence to murder. The argument for the alternative is simple – if you or your family are being threatened with death, GBH, or rape, unless you commit murder, there is no culpability in your actions since a sober person of reasonable firmness (Graham) would have done the same. However, this should be considered unsatisfactory. This is because allowing a defence of duress to murder would not only discourage heroism as Ashworth argues, but would also lead to situations where more deaths would arise. This is because the defendant would know that as long as he carries out his actions he will be protected from the law. This

This essay also agrees with Stark that “best-interest” necessity and justificatory necessity should be a defence to murder. However, it disagrees with Clarkson that the defences should be combined into a “necessary action” defence. Currently, “best-interest” necessity is not a defence to murder, but this essay suggests it should be. This defence runs, based on Re F, when someone acts in the interests of another. While this raises interesting questions morally about voluntary euthanasia, that is beyond the scope of this paper. Rather, this essay believes that if the situation were ever to come to light where a soldier is slowly burning to death and

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This defence should only run against murder when the decision to commit murder is derived from the desire of the ‘greater good’ and to protect members of the public at large

another soldier shoots him dead, best-interest necessity should be a defence since the defendant has acted wholly in the interests of the victim, with no relevant thought of himself, and thus is insufficiently culpable to be labelled a murder. Thus, best-interest necessity should be a defence based on culpability, a fundamental of the criminal law. Justificatory necessity should also be allowed as a defence to murder. For esample in the case of Re A. However, this defence should be limited to very narrow and specific cases such as the facts of Re A. Only where someone has acted because there is no other alternative to saving person (A) may person (B) be killed. This should, as Simester and Sullivan correctly argue, be limited to the situation where not only is B preventing someone’s survival, but that if the action were not taken, B would die anyway. Although this overlaps with self-defence, it is suitable to discuss it here. The actions in the Zeebrugge ferry disaster can be justified in this way since if the eventual victim had not been removed, everyone, including him, would

have died. However, this situation should not be allowed where B has a realistic prospect of surviving anyway. This defence should only run against murder when the decision to commit murder is derived from the desire of the ‘greater good’ and to protect members of the public at large. This is the only situation where the ultimate harm caused (harm principle) can be overridden by the lack of culpability to make it a defence. Thus, in conclusion, duress should be a partial defence to murder, reducing the conviction to manslaughter due to the need to avoid the mandatory life sentence, while both best-interest necessity and justificatory necessity, as well as self defence should be defences to murder, but only in narrow situations when acting in the interests of others with no alternative solution.

PER INCURIAM Essays | CRIMINAL LAW

Who prima facie is guilty of Walt’s death?

Anonymous

The first issue is ultimately who is responsible for Walt’s death (W). Prima facie Skyler appears guilty of murder. The actus reus is causing death, but there are a number of issues of causation here. S mixed the heroin with crystal meth, but W injected it. Based on Kennedy (no.2) this would break the chain of causation since W’s act is voluntary and free. However, is it informed? Arguably, since W does not know how strong the drugs are, he is not fully informed of the situation and thus his act does not break the chain of causation. Evans also seems to support this since it was suggested that someone can be held responsible for not only a dangerous situation they cause, but also one that they contribute to. However, this extension should be doubted.

would provide the dangerous (Church) unlawful act that is capable of resulting in constructive manslaughter. However, the former view expressed, that she intended (oblique or direct intent) to cause GBH or death is the more preferable. Thus S appears guilty of murder. However, she has a number of offences open to her. Firstly, she could potentially plead loss of control under s.54 of the Coroners and Justice Act 2009. This defence would depend on two factors. Firstly, it appears on Clinton that provided the fact W told her that the sexual infidelity was because of her failure to sexually satisfy him, this could be classed as taunting, then the defence would be available despite the no sexual infidelity clause s.6(c). However, S would have to prove she lost control because of the taunting and not because of the sexual infidelity. The defence is likely to fail on the basis that her actions were considered desire for revenge. Although the reaction does not have to be immediate, the fact that it played on her mind and the fact that she had been abused before suggests that it was a considered desire for revenge, although a definition is not given in the statute.

Moreover, even if this argument was not accepted, the fact that S has created the dangerous situation means that S owed a duty to act to W, but her omission to leave him outside the garden after she saw him may make her guilty of some form of homicide offence based on Miller. Then there is the issue of whether Hank’s acts broke the chain of causation. This is unlikely for two reasons. Firstly, for the act of a third party to break the chain of causation when that third party is trying to administer medical help, based on Smith, Cheshire and Jordan must be unforeseeable. This is not the case in this situation since H’s acts are not ‘so daft’ as to be unforeseeable since it is conceivable that he might try and help and in his panic in doing so might make the situation worse. Furthermore, the chain of causation is not broken since his unconscious state overnight left him weakened and that is why he died. Therefore, based on Malcherek and Dear, there does not have to be the cause, only a cause; S’s act was still an operating and substantial cause of death and thus the chain of causation is not broken.

HIGHS AND HELLOS BE A PART OF EVERYTHING

However, S may be able to plead insanity. This is because the lack of anti-depressants when she made the concoction resulted in an internal disease of the mind in her (Hennessy). Moreover, the fact she drank alcohol does not matter based on Burns as long as the lack of anti-depressants was having an effect still. However, she would have to prove she was automaton and thus did not truly comprehend what she was doing (Kemp – defect of reason) and also did not understand the nature and quality of her act. This would depend on how great an impact the lack of anti-depressants had on her, but it is likely that this defence would run and thus she would not be guilty of murder by reason of insanity. HANK’S ACT

Therefore, the actus reus for W’s death is met. Depending on the mens rea, S may be guilty of murder or manslaughter. The fact that S intended to “hurt him” leaves this unclear. It is likely, however, that S was aware that by W injecting the drugs this was virtually certain to result in GBH (serious harm). Therefore, since she would have intent to cause GBH, this suffices for her to be guilty of murder, dependent on defences. If she did not forsee that it was virtually certain to lead to GBH, then she could be convicted of constructive manslaughter because she has committed wounding and inflicting GBH contrary to s.20 of the OAPA because Roberts allowed ‘inflict’ to be read as a synonym for cause and thus since it is a constructive offence (Savage) and she intended at least minor harm, this

Hank is not guilty of gross negligence manslaughter. This is because although his actions were a contributing and operative cause of death, based on Aclomako his actions do not satisfy the final limb since his actions were not so gross as to warrant conviction. This is based on the fact he tried to help and thus on policy reasons he should not be convicted since this would defer rescuers trying to help in the future. Thus, W should not be guilty of gross negligent manslaughter.

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PER INCURIAM Essays | ASPECT LAW

(a) Jonny wanted to become a sports broadcaster, but could not get a job. He contacted Goal Ltd., which broadcasts the Goal TV Channel, and was offered an eight week unpaid internship to give him relevant experience. He was told by Rachel, the head of personnel, that he would be doing various office jobs but there would probably be opportunities to accompany a production team to premier league football matches, for which he would be paid travel expenses, and for him to interview football players. She also told him that the company planned to create a junior broadcaster position soon and, if he proved to be indispensable, he stood a very good chance of being appointed. Jonny worked very hard throughout the internship, typically for 14 hours a day. Most of the time he was expected to act as secretary to members of the production team. On one occasion, however, he accompanied the production team to a broadcast at a non-league football match, for which he received £10 travel expenses, leaving him out of pocket by £30. He interviewed no footballers during the internship. He discovered that if the company had employed a qualified temporary secretary to do what he did, it would have incurred costs of £15,000. At the end of the internship Rachel told him that the company had decided not to create a new broadcasting position after all.

Critically consider any claims might Jonny might have against Goal TV. Anonymous

A CONTRACTUAL CLAIM?

subjectively devalue it. If it were to do so, Jonny would seek to override that subjective devaluation. Two methods of doing so are potentially open to him.

It is first necessary to consider whether Jonny might have a contractual claim against Goal TV. This is unlikely since arguably Jonny provides no consideration and, in any event, it is hard to conclude that there exists an objective intention to create legal relations given that Jonny was to be a temporary and unpaid intern.

Firstly, Jonny could argue that Goal freely accepted the enrichment. Goal certainly had the opportunity to reject the benefit (Greater Manchester Police v Wigan Athletic FC Ltd), insofar as it could have told Jonny not to act as a secretary or it could have ceased his internship, and failed to do so. However, Jonny could not argue that Goal knew that the benefit was not provided gratuitously since, by virtue of the internship, the contrary is true. More successfully, Jonny could argue that Goal requested (Benedetti) the enrichment by offering him the position of intern. He might have difficulty in proving that Goal requested he act as a secretary specifically, however.

A CLAIM IN UNJUST ENRICHMENT? Since Jonny probably has no claim against Goal, the primary issue is whether he might have a claim in unjust enrichment. The logic of this claim would be that Jonny enriched Goal, by doing work for it in the expectation that he would receive various benefits, in particular, the potential permanent employment, but received nothing in return. As Lord Steyn made clear in Banque Financière de la Cité v Parc (Battersea) Ltd, there are four criteria that must be satisfied in order to establish a claim in unjust enrichment. Admittedly, in Menelaou v Bank of Cyprus, the Supreme Court said that these requirements should not be applied like statutory requirements; rather, they should be broad guidelines. However, it is best to determine whether a claim in unjust enrichment can be established by answering these questions chronologically so that the analysis is structured. Hence, this structure will be followed.

It should be noted that the above valuation of the enrichment would take place only once Jonny is told there is no position for him to fill. Whilst BP v Hunt (No 2) decides that the enrichment is valued at the time of receipt, as Virgo explains, it is more precise to say that valuation takes place once the claim has been crystallised and, since there is a potential failure of basis insofar as Jonny did not receive what he expected, the elements of the claim are only established at that point. WAS THE ENRICHMENT RECEIVED AT JONNY’S EXPENSE?

DID GOAL RECEIVE AN ENRICHMENT?

The second question is whether the enrichment was received at the claimant’s expense. Quite straightforwardly, there is no issue because the enrichment was direct as between Goal and Jonny.

The first issue is whether the defendant received an enrichment. Jonny acted as a secretary to members of Goal’s production team, so he provided a service to Goal. The issue then is whether Goal was enriched by this service. Yeoman’s Row Management Ltd v Cobbe decides that, where a defendant is enriched by a service, it is the service that is the enrichment – not the end product of that service. It is true that, on the facts, there is no obvious end-product to Jonny’s service. However, this is irrelevant since, whether there is an end-product or not, the enrichment is the service itself. It should be noted that Beatson argues that a service without an end-product should not be considered an enrichment since it leaves no benefit behind. However, this argument should be dismissed. As is clear, Goal would have been willing to pay – or otherwise have to pay – for the service provided.

GROUND OF RESTITUTION: The third question is whether the enrichment was received in circumstances of injustice. This necessitates determining whether one of the recognised grounds of restitution can be established. The facts suggest that the possible ground of restitution is that of a failure of basis. Jonny provided a service to Goal, and thus conferred a benefit upon Goal, in the expectation that he might receive a number of benefits (in particular, permanent employment), none of which materialised. The requirements for establishing a failure of basis are threefold: (i) the contract to which the benefit is paid must be no longer operative (Pan Ocean Shipping Co Ltd); (ii) Goal must no longer be ready, willing and able to perform its part of the bargain (Chillingworth v Esche); and that (ii) the basis must have failed totally (Stocznia Gdanska SA v Latvian Shipping Co). However, only requirement (iii) is relevant on the facts because no contract underpins the transfer of the benefit and, as Virgo contends, requirement (ii) is only relevant where there is an unenforceable contract and, here, there is no contract. This total requirement means that Jonny must have received nothing in return for his enriching Goal. This conclusion cannot be reached on the facts; although Jonny did not get everything he was induced to expect (for example he only went to a non-league match), he did receive some benefits from Goal. However, it does not follow that Jonny must fail. As in Giedo van der Garde BV v Force India Formula One Team

Accordingly, Goal’s enrichment would be the very fact that Jonny acted as a secretary, which has an ordinary market value of approximately £15,000 given that this is what a qualified and temporary secretary would be paid if employed. However, as Benedetti v Sawiris makes clear, the ordinary market value might be modified by the objective value of the benefit. The fact that Jonny was not a qualified secretary might mean that his work should be given a value of less than £15,000, whilst the fact that he was not supposed to act solely as a secretary might increase that amount. It might even be possible to argue (by analogy with Lord Reid’s dress example) that Jonny’s service has an objective value of zero since Jonny was willing to work for free, and Goal did not intend to pay Jonny for his work as a secretary. If, nevertheless, it is accepted that the service does have some objective value, Goal might seek to

PER INCURIAM Essays | ASPECT LAW

(b) ‘There is no good reason in principle to confine failure of consideration to where the failure is total.’ (BURROWS) Discuss.

Ltd, the courts might construe the benefits that Jonny received as collateral benefits – that is, benefits that Jonny did not bargain for and, thus, which can be disregarded such that Jonny can be considered as having bargained for (superior) benefits, which he did not receive. Nonetheless, a court might distinguish these facts from Giedo. Arguably, since the claimant in Giedo paid money upfront, he had a stronger claim than Jonny; indeed, there was a contractual agreement between the two parties. Furthermore, Jonny got everything he was induced to expect, albeit an inferior version, whereas in Giedo the claimant was not given everything he was promised. Assuming a court were to construe the benefits as collateral, though, the ground of a total failure of basis would be made out.

enrichment (Virgo; MacDonald v Costello). The conclusion must be that there is neither a defence nor a legal basis. As regards a defence, estoppel cannot be made out because there is no representation from Jonny that the benefit was due to Goal, whilst the change of position defence cannot be made out because, whilst there is no clear evidence that Goal’s position changed after receiving the enrichment insofar. OVERALL: Overall, therefore, Jonny would have a successful claim in unjust enrichment against Goal. His remedy would be the quantum meruit by which he would recover the reasonable value of that service. Arguably, this conclusion is inappropriate since Jonny might be viewed as a risk-taker insofar as the benefits he was induced to expect were not guarantees, and Equity does not assist risk-takers. If the court agrees with this view, it might conclude that Jonny made a misprediction as to the future and, thus, cannot get any restitution.

IS THERE A DEFENCE OR LEGAL BASIS? The final question then is whether the defendant has any defence available to preclude liability. It must also be considered whether there was any legal basis for the defendant’s receipt of the

If a person seeks to bring a claim in unjust enrichment, he must establish a ground of restitution. It is that ground of restitution that renders the enrichment unjust. One such ground of restitution is that of a failure of basis (or consideration). In English law, one requirement for this establishing this ground is that the failure be total; the claimant must have received nothing in return for the enrichment he gave to the defendant: Stocznia Gdanska SA v Latvian Shipping Co. If the claimant has received any benefit from the defendant, or the defendant has begun to perform his side of the bargain, no restitution can be obtained. Many commentators, such as Burrows and Virgo, have argued that this totality requirement is inappropriate and unprincipled. It is submitted that Burrows and Virgo are correct. Where a total failure of basis is established, the courts in effect recognise that the claimant’s intention has been vitiated. The claimant intended to transfer a benefit to the defendant so that the defendant would transfer some benefit back to the claimant. Where this does not happen, the claimant’s intention to transfer is no longer operative. Crucially, where there is a partial failure of basis, the same is true. The claimant’s intent has been vitiated to the extent that it has not been fulfilled completely. It is, thus, absurd to deny restitution. Secondly, and perhaps most worryingly, the total failure requirement has resulted in the courts manipulating the law, consequently producing difficult law. This is because the courts have found two ways of evading the rigidity of the totality requirement. Firstly, they might characterise any benefits that the claimant has received as collateral benefits. For example, in Rowland v Divall, the court held that the claimant’s use of the car for four months was only a collateral benefit that did not preclude restitution. What the claimant had bargained for was lawful possession of the car and he did not get that, so he was entitled to restitution. Secondly, they might apportion the benefits, as the court did in Goss v Chilcott, where it held that the interest received was for the use of the money and did not relate to the capital that had been lent. Therefore, there was a total failure of basis because no part of the capital had been repaid. It is submitted that what the courts have been doing is to be commended since it results in the right outcomes being reached. However, there is no point in retaining a rule if the courts are actively seeking to find ways around it. Thirdly, some have argued that it would be wrong to allow partial failure of basis as a ground of restitution because the law traditionally only recognises total failures – not partial failures. However, relatively recent developments in contract law have meant that English law now recognises partial failures of basis; the Law Reform (Frustrated Contracts) Act 1943 provides that benefits can be recovered where a contract is

frustrated even if there has been a partial benefit conferred. Furthermore, Stoljar contends that the doctrine of a total failure is a fairly modern development and that there is no clear justification or trigger for its invention. As such, since a partial failure is already recognised, it would not be going too far to allow a partial failure of basis to be a ground of restitution. If the above is correct, the question remains as to why the law still requires a total failure of basis. Virgo identifies the two arguments that are commonly raised in favour of the totality requirement. Firstly, some commentators take the view that, if the claimant has received some benefit, to work out how much the claimant should receive from the defendant, the court would have to value that benefit, and that this is often too difficult to value. However, as Virgo correctly points out, this argument today lacks any merit since, in unjust enrichment, the value of benefits is identified all the time. For example, when faced with an identifiable enrichment, the courts will consider the benefit’s ordinary market value as well as its objective value. They might also be asked to consider a devaluation of the benefit. Even if this were not the case, this argument should be dismissed since the courts should not shy away from difficulty in the face of injustice. The second, and strongest, argument in favour of the current law is that, where a claimant has entered into a bad bargain, but would prefer a restitutionary remedy, since it would result in him receiving more money, it is preferable for him to be confined to a contractual remedy. The law – in particular, Equity – should not assist those who have entered into a bad bargain. Indeed, recognising claims for a partial failure would result in claimants choosing to sue in Equity rather than on the contract. This fear is raised by commentators such as O’Sullivan. However, this argument would lack merit if the courts could simply use their discretion to prevent a claimant from obtaining a restitutionary remedy where it is clear that he is only doing so because he entered into a bad bargain. In conclusion, the current position of the law is at odds with sense and logic. Confining failure of basis to where the failure is total does not adequately protect or vindicate a claimant’s vitiated intent, and results in legal complexity and incoherence insofar as it causes the courts to apply artificial constructs so as to avoid the rigidity of the law and reach the correct result. Furthermore, the courts can use their discretion so as to alleviate any fears that allowing for a partial failure of basis would result in claimants choosing not to sue on the contract and being able to recover when they have voluntarily entered into bad bargains.

PER INCURIAM Essays | LAND LAW

‘The rules on the running of the benefit and burden of freehold covenants are in an unjustifiable mess. It would be a huge improvement if all seriously-intended agreements made between freehold owners were capable of running with the land, irrespective of whether they impose positive or restrictive burdens.’

Discuss.

Katie McCay | Christ’s College

Freehold covenants are contractual obligations to either refrain from doing something (restrictive) or positively carry out an obligation (positive) upon the burdened land. 79% of the titles are burdened by such obligations so they are of fundamental importance, meaning clear, workable rules are a necessity. The current law as it is indeed messy at best or chaotic at worst, and there have been suggestions from the Law Commission to change this. This essay will set out the current law, highlight some of the current problems and consider whether all serious agreements should bind purchasers. It will conclude that while a bight line rule may be undesirable and lead to strange results, it must be remembered that as a jointly contractual and land obligation certain things like the contractual doctrine of privity must be considered. However, the current workarounds demonstrate that the law in this area demands reform.

following Swift Investments, the covenant must ‘touch and concern’ the land, again meaning the burden is upon the land, not merely personal. Under statute, ss78 and 79 of the LPA 1925 it must be intended that the benefit (s78) and burden (s79) will run, but in absence of express words to the contrary, this is unproblematic, unlike the current law in this area. AN ‘UNJUSTIFIABLE MESS’ The difference in law and equity as created by Tulk v Moxhay has left the law considerably conceptually unsound if not uncertain. Although we must respect privity of contract, allowing people to be free to make their own bargains and not be bound by those of others, with a risk of overburdening land, reducing its saleable capacity, it must be borne in mind that the practical workings of the rule can lead to perverse results. In Rhone v Stevens for example, one house was split by two owners. With the roof overhanging one property owned by the owner of the other property. Although the original parties covenanted to repair this, on the change of ownership of the covenantor’s property there was no longer an obligation to repair. This is notwithstanding the fact that it was obvious to the new owner before purchase that this type of situation would have arisen. If positive obligations can bind in other, arguably less meritorious or necessary areas such as chancel repair under Aston Cantlow v Walbank, it appears unjustifiable that this is not the case in situations similar to Rhone, especially as, to borrow from the words of land registration, it was discoverable on a reasonable inspection of the land.

THE CURRENT LAW In order to see the current problems we must consider the current law. In law, a covenant is enforceable by the covenantee against the covenantor as they are the original parties to the binding contract (Gafford v Graham). This enables the covenantee to sue for damages upon breach (Wrotham Park). This is so even when the original covenantee sells their title to a third party, although the original covenantee can only receive nominal damages due to not suffering loss (Robinson v Harman). The burden of a covenant will never be able to run in law under any circumstances (Gafford v Graham). In equity, it is possible for the benefit to run, and the burden will only run in equity if it is a restrictive, not a positive covenant (Rhone v Stevens). In order for damages or a specific remedy to be available, the benefit and burden must either match in law and in equity (Gafford) and a number of additional criteria need to be fulfilled. Firstly, the burden must not be personal, it must be capable of binding another person by virtue of them being able to comply with the requirement. Additionally,

Not only are the rules convoluted and very fact specific, but also they lead to unfair results, damaging the reasonable expectations of covenanting parties. A SOLUTION? The solution offered in the question is similar to the land obligation mooted by the Law Commission, which would

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It is agreed that negative covenants should be able to run, even after removing the distinction between law and equity in our hypothetical reforms, as compliance does not compel either party to do anything

abolish the artificial and messy distinction between law and equity in this area, leading to much needed conceptual clarity. However, there are dangers with allowing both positive and restrictive to bind third parties. Firstly, we have the issue of privity of contract, where people should not be bound without consideration. Even the Contracts (Rights of Third Parties) Act 1999 does not extend to imposing such burdens. However, the current workarounds such as a chain of contracts are precarious- insolvency or death will break the chain, and equitable schemes of development as described by Ellison v Reacher point to a conclusion that something should be done. It is agreed that negative covenants should be able to run, even after removing the distinction between law and equity in our hypothetical reforms, as compliance does not compel either party to do anything. More caution is urged with positive covenants, which can have costly and onerous burdens. Perhaps a solution may be through the law of contract, requiring a new covenant to be fulfilled on selling the title? However, this does not solve the core problem. Perhaps an improvement can happen it if would be inequitable to

deny the right, analogous to Lord Denning in Binion v Evans in relating to how licences can bind third parties? However this requires resorting back to messy equitable doctrine. In conclusion, it would be an improvement for seriously intended agreements to have force in law, where the burden is negative. This would be unlikely to burden the land or reduce its value significantly. However, in relation to positive covenants there are serious dangers that onerous burdens in relation to the land may run contrary to the knowledge or intention of the new owner. Caution must be urged before we create many new and onerous burdens, as in the long term the value and transferability of the land will suffer, and this runs counter to the improvements in the LRA 2002. While a bright line rule is not ideal, it may indeed be better than an uncertain and potentially very broad rule undermining contractual privity which would not be an improvement in the long run, particularly as settled workarounds within the law can serve most purposes adequately.

PER INCURIAM Essays | ADMINISTRATIVE LAW

What role does the notion of ‘jurisdiction’ play in administrative law doctrine? Is ‘jurisdiction’ a necessary or useful component of that body of doctrine? Hin Ting Liu | Gonville and Caius

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This is a reflection of the perceived balance between judicial intervention and agency autonomy

The role of the notion of ‘jurisdiction’ lies in that it serves to provide the limitations and boundaries within which a public authority can act. To this extent therefore, jurisdiction is a necessary component of administrative law doctrine. However, it will be argued that this concept of ‘jurisdiction’ is for the most part a conclusory statement which provides little substantive guidance as to how the court should act in a particular case. ‘Jurisdiction’ needs to be informed by the normative concerns of balancing agency autonomy and judicial intervention before it becomes a useful concept for the courts. With this in mind, this essay will explore the areas in which the concept of ‘jurisdiction’ is employed.

consequences. The effect would be that decision-makers would have differing, yet valid, interpretations of a particular statute. EXCEPTIONS TO ANISMINIC The effect of the Anisminic decision is that courts would be able to engage in a substitutionary judgment as to the meaning of a statutory term. This is said to be an excessive intrusion into agency autonomy and so exceptions to the principle were introduced. It is notable that these exceptions were for the most part not introduced as a result of the concept of jurisdiction but rather that normative considerations demanded a modification of the doctrinal principle in Anisminic.

CASES UP TO ANISMINIC In Shaw it was settled law at the time that a decision-maker could make a ‘non-jurisdictional error of law’ whereby he could make a legal error but his act would remain lawful. However, in Anisminic, Lord Reid effectively rendered the category of non-jurisdictional error of law obsolete, as confirmed by Lord Browne-Wilkinson in Page. This expanded the scope of judicial review or lawful ‘jurisdiction’, and to this extent the concept of ‘jurisdiction’ is necessary in determining the scope of judicial review. But the concept itself begs the very question of why the scope of judicial review had expanded. Normative considerations need to be added to this concept to make sense of our legal doctrine. The reason why this expansion happened was because of legal certainty and the rule of law; it would flout the foundations of our constitution if decision-makers could make errors of law but escape with no

concept of jurisdiction (unlike in Page) because normative concerns need to be unearthed. In this case it would be relative institutional competence, in that inferior tribunals are less institutionally competent than inferior courts. This characterisation is surely too crude, however. Magistrates, being merely ‘lay judges’ would not necessarily have the same expertise as mates sitting in the Upper Tribunal, a ‘superior court of record’. Yet, this criticism of Racal is not attributable to the concept of jurisdiction, but rather institutional competence. Jurisdiction is merely the empirical reflection of the underlying normative concerns.

But there is one exception whereby the use of jurisdiction is of explanatory power. In Page, the university visitor’s decision was not amenable to judicial review because what governed his decision was not the common law but a special system of rules. This therefore precludes the ultra vires doctrine and any question of jurisdiction. To this extent therefore, viewing jurisdiction as the necessary obverse of the ultra vires doctrine can inform the decision in Page.

Therefore, in Cart, when Lady Hale, Lords Dyson and Phillips decided to restrict judicial review of the Upper Tribunal to where there is ‘some important point of principle or practice’, this is to reflect the institutional competence of the Upper Tribunal. As Laurie (2012, PL) notes, the Cart decision is justified as a compromise between the competing demands of judicial oversight and recognising the institutional competence of the Upper Tribunal. Again, jurisdiction, indicating when a court is able to review a decision, is merely expressive of a descriptive conclusion, but the real concern which gives shape to this notion of jurisdiction is the idea of relative institutional competence.

Nevertheless, in all other cases, the concept of jurisdiction serves merely as a conclusory concept. In Racal, Lord Diplock (obiter) held that there was a presumption that inferior tribunals were to be subject to judicial review, but inferior courts were not to be unless there is an express contrary provision. We cannot get to this conclusion through the

A third exception to the Anisminic principle is where the courts are faced with a vague statutory provision as in South Yorkshire. Lord Mustill held that in cases where ‘opinions’ may ‘legitimately differ’ the usual standard of correctness applies but where there is vagueness the court should only police matters on a rationality basis. This is a reflection of

the perceived balance between judicial intervention and agency autonomy. If a statutory provision requires evaluation before any concrete meaning can be put on it, thrusting on it a spurious degree of precision would imply that the intention of Parliament in enacting a vague provision is to accord latitude to a decision-maker. Once again the ‘nonjurisdictionality’ of such provisions is merely a reflection of what is perceived to be the balance between the executive, legislative and judiciary. Thus, debates between Daly, Williams and the like do not refer extensively to the notion of jurisdiction but instead explicitly analyse the reasons behind deference or intervention – the concept of jurisdiction is merely a symptom of analysing where the balance should lie. ERROR OF FACT The same goes for error of fact. The criterion in E that factual evidence is to be ‘uncontentious and objectively verifiable’ before it is jurisdictional is an expression of how the judges should not intervene in the fact-finding exercise without good reason, for fact-finding is usually to be left to the decision-maker, being a question of merits. Jurisdiction is merely a conclusory statement. CONCLUSION In conclusion, ‘jurisdiction’ plays the role of determining the limits of lawful administrative action and is necessary. But its explanatory power is limited, as it is for the most part a conclusory concept. Normative considerations are required to make sense of the body of law on jurisdiction.

PER INCURIAM Essays | CRIMINAL PROCEDURE & EVIDENCE

CRIMINAL PROCEDURE & EVIDENCE Mason and Tom were both well-known members of the Camford underworld, when Tom’s body was found in a river. The post mortem showed that Tom died of drowning, that he had consumed a considerable amount of alcohol shortly before his death, and that there were severe bruise marks on his arms and shoulders. Samantha, who had been arrested on suspicion of drug dealing, told the police that she knew that Mason killed Tom and that if they dropped their investigation into offences that she might have committed, she would tell them much more. This the police agreed to do, and she gave a statement that Mason had told her himself that he had had a big row with Tom and had pushed him into the river. Tyre marks were found near the riverbank which a police officer, PC Skid, said matched those of Mason’s three wheeler car. Bill, a journalist who had been investigating the Camford underworld at the time of Tom’s death, writes a newspaper article about his time undercover, pretending to be a homeless person. In his article he features Mason, described as a man with a terrible reputation for acts of violence. Mason was arrested on suspicion of murdering Tom. He asked to see his solicitor before answering any police questions, but his request was denied on the grounds that it would probably lead to ‘serious interference’ with one or more of the witnesses. He was questioned at length by two police officers and eventually admitted that he had seen Tom on the day of his death and that he had threatened him as Tom owed him money; but he denied that he had anything to do with his death. At Mason’s trial for murder: (i) The trial judge rules that the publication of the newspaper article does not mean that Mason’s trial would be unfair. Is she right? (ii) Is Mason’s statement to the police in the interview admissible in evidence?

(iii) Should PC Skid be allowed to give evidence that the tyre marks match Mason’s vehicle?

(iv) Samantha says in evidence that the police have invented her statement about Mason, and then refuses to answer any more questions. Should the judge allow the statement to be presented to the jury? (v) How should the judge direct the jury if Mason refuses to give evidence at trial?

Katie McCay | Christ’s College

PER INCURIAM Essays | CRIMINAL PROCEDURE & EVIDENCE

(i) It is possible for excessive pre-trial publicity to make a trial unfair and therefore an abuse of process (Abu-Hamza). However, for pre-trial publicity to make a difference it must be excessive, not just the one article which B has written. Cheryl Thomas notes that many jurors have seen or read material relating to the trial and yet still concludes that juries are fair and convictions safe. Additionally, it was noted in West that if we were to have a rule which meant that pretrial publicity of horrific crimes rendered the subsequent trial unfair, justice would never be done, particularly in relation to the most horrific crimes. The trial will therefore not be unfair on the basis of the newspaper article. If anything, the judge should just remind the jury to use only the evidence before them to reach their conclusion (Watson). If they fail to do so, only then will a jury be dismissed (Pryce).

(Buckley), so an expert may be necessary. If PC Skid has some experience or knowledge he will be allowed to give evidence, even if he has no qualifications (Silverlock). However, PC Skid does not appear to have expertise in a recognised field (Luttrell; Dallagher) so notwithstanding mitigation for bias (Clarke) and the ability of the jury to reject opinion (Fitzpatrick) he will not be able to give evidence as an expert. It may however be important identification evidence on the basis of an attribute (Green) and may be admitted this way, but it is likely to be excluded on the basis of it being more prejudicial than probative (s78 PACE). (iv) S may be declared a hostile witness (Jobe) as she is denying her previous statement. Under s119 of the CJA 2003 and the Criminal Procedure Act 1865, the previous statement may be admitted as S insists that the previous statement is not true. Under s4 of the 1865 Act, S must be asked whether they made the statement and if they deny or refuse to answer, this statement can be admitted. Under s119 CJA, as the criterion in s4 of the 1865 Act is proven, the statement is admissible under s119(1) so long as it would be admissible if given as oral evidence. This means the statement must pass the hearsay provisions in s114 as M telling her he pushed Tom into a river is a statement (s115(2)) of a matter stated causing someone to believe the matter (s115(3) CJA). The statement may be admitted via s118 CJA, rule 5, confessions, as it is a wholly or partially adverse admission under s76 PACE, made to another who need not be an authority (Henton) and the facts do not appear to demonstrate oppression under s76(8) or Fulling. Therefore, the statement is admissible.

(ii) Under s58 of PACE, M prima facie has a right to access free and independent legal advice (Samuel). However this is qualified by s58(4) and s58(8), and specifically with M, s58(8)(a) as there is a probability that there will be “serious interference” with a witness. However, for this to be justified, the outcome under s58(8) must “very probably happen” (Samuel). If M’s statement is therefore obtained without legal advice and he is “questioned at length” by the police, there is a chance that the evidence obtained will be far more prejudicial than probative and will be excluded from evidence (under s78, s82(3) PACE; Sang). M’s statement is not a confession, as prima facie it is not “wholly or partially adverse” (s76 PACE) and cannot become adverse through subsequent actions (Hasan). Therefore the question is whether the statement can be excluded on the grounds of oppression (s76(8); Fulling) by what may be excessive questioning. Therefore, the statement is admissible should the PACE Codes be followed, but is likely to be excluded should it be more prejudicial than probative (s78, s82(3) PACE, Sang and specifically on this point Ibrahim).

(v) If Mason refuses to give evidence, adverse inferences may be drawn under s35 of the Criminal Justice and Public Order Act. Under Cowan the judge must direct the jury that the burden of proof remains on the prosecution. They must prove guilt beyond reasonable doubt. They must remind the jury that M has the right to remain silent and they cannot assume guilt from silence. There must be a case for M to answer (in the Galbraith sense) before an inference is drawn and they can only draw inferences where the only credible reason for silence is that M did not have an answer which would stand up to scrutiny. Mention should also be made of the lack of a solicitor in proceedings (Beckles), although unrelated to the decision not to give evidence at trial.

(iii) PC Skid’s point is one of expert evidence. To be admissible, expert evidence must be necessary, in that it tells the jury more than what their collective common sense would have told them (Robinson). Although it may be possible to say that this could be obvious if the jury were to receive the physical evidence or a photograph (Blenkipsop), we could say that tyre marks are a little like ridge characteristics on fingerprints

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Under Cowan the judge must direct the jury that the burden of proof remains on the prosecution.

PER INCURIAM Essays | EQUITY LAW

Duties and remedies must be distinguished in the context of the office of trustee, because different principles underpin both. Indeed, duties and remedies also differ in the context of the type of trustee. The debate concerning common law analogies is particularly pertinent in light of the Supreme Court’s ruling in AIB; particularly Lord Toulson’s endorsement of Target Holdings. But equity lawyers should treat common law principles with caution; the office of trustee is a much different creature to the common law tortfeasor.

provide equitable compensation, it is simply a matter of historical fact that the duties on trustees are deeprooted in equitable doctrines, especially loyalty and good-faith (which are all but unknown to common law). ASSOCIATED REMEDIES The law relating to the remedies for breach of trust is a contentious modern topic. In both academic journals and case law there is an increasing tendency to draw analogies between equitable compensation and damages. Millett LJ wrote extra-judicially that “woe betide the Chancery Junior” who referred to equitable compensation; but the recent trend in academic opinion and journal literature is to draw parallels between the two.

DUTIES OF TRUSTEES The duties imposed on an express trustee derive from three main areas: the terms of the settlement; statute (especially the Trustee Act 2000) and case law. It is immediately obvious that the duties of trustees are more pertinently described with equitable doctrine; the focus of the debate is, arguably, on whether the doctrines underpinning remedies are analogous with the common law, perhaps to an extent that requires substantive fusion. But the duties of a trustee must first be dispatched. Express trustees are, by s 1 of the Trustee Act 2000, under a specific duty of care (to the extent that this is not excluded by s 7 of schedule 1). This is the same as the common law test which, according to Speight v Gaunt, is to conduct oneself as one would in the management of their own business affairs. The trust is a special creation, with its roots deep-set in the equitable jurisdiction of the court. The trustee’s duties are therefore not best explained by common law analogy. Indeed, the medieval use was created to circumvent the common law. As Millet LJ pointed out in Armitage v Nurse, the overarching concern of the trustee is to act in good faith and honestly. Express trustees are also fiduciaries, so will owe separate fiduciary obligations (per Millett LJ in Mothew) as well as their non-fiduciary duties. As Worthington and Smith have pointed out, the central focus of fiduciary obligations is loyalty. All of these concerns stand in marked contract so common law duties.

(i) THE CASE AGAINST ANALOGY Lord Millett is perhaps the most resistant academic to the common law analogy. Indeed, he has stated extra-judicially that any work done by equitable compensation can be done through the taking of account: specifically, through ‘falsification’ and ‘surcharge.’ Millett has the partial support of Nolan, who has illustrated that, for example, falsification could have been used to reach the same result as Target Holdings if the account were to be taken at the time of judgment, as this would take into account any restoration that the solicitor might have made by realising the undervalued security. Millett’s thesis is neat when considered next to his ‘good man’ theory; because trustees owe fiduciary duties, they are treated as spending their own money when making an unauthorised disbursement in breach of trust. But this simply justifies the falsification of the account and does not allude to any equitable principles that underpin the taking of the account. Millett also criticises Lord Browne-Wilkinson in Target for simply introducing a ‘but for’ test of causation into equitable compensation; either remoteness and causation should be discarded or we should adopt the common law rules “in toto.” Again, this criticism does not illustrate why equitable doctrine is a better explanation for the remedies of breach of trust.

Although Diplock LJ drew a distinction between primary and secondary obligations in contract, a distinction mirrored in the obligation of a trustee to account or

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The question, in essence, is whether the common law rules of causation and remoteness are appropriate to import into considerations for breach of trust.

(ii) THE CASE FOR COMMON LAW ANALOGY

for asset acquisition. To accord strict fiduciary-like-obligations in such a case might seem to be overkill. Indeed, there is an inherent sense of justice in the AIB/Target approach, in that the trustee will only be liable to restore any losses that would not have occurred but for their breach. Such an approach might be said to override technical arguments on the distinction between primary and secondary obligations.

The approach of Lord Toulson in AIB certainly has merit. Lord Browne-Wilkinson’s approach was endorsed; Target has had its exegesis. Ho has welcomed the decision, stating that it helpfully dispenses with archaic notions of account when determining personal remedies. The question, in essence, is whether the common law rules of causation and remoteness are appropriate to import into considerations for breach of trust. One the one hand, Millett and Arden have pointed out (in the context of disgorgement) that, quoting Voltaire, stricter remedies serve “pour encourager les autres”; in other words, a move to a common law remoteness-based approach will prevent trustees from being disincentivised from breaching the trust. But this seems to be a concern purely for fiduciaries, especially in light of Lord Browne-Wilkinson’s recognition in Target that many bare commercial trusts are really just vehicles

In sum, whilst equity should be cautious when examining analogies with the common law, this is arguably an area where common law principles might aid in achieving substantial justice in individual cases. Perhaps, adopting Elliott’s view, “we should call a spade a spade” and recognise that a beneficiary is in effect seeking a form of damages for loss caused by a trustee’s breach.

Smriti, a lawyer in our Dispute Resolution group

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