Per Incuriam Easter 2019 by Per Incuriam, Cambridge University Law Society

PER INCURIAM EASTER 2019

#STOPSKIRTINGTHEISSUE WITH GIBSON DUNN BAME AND THE CRIMINAL JUSTICE SYSTEM Ethnicity and Criminology

EASTER 2019

President’s Welcome

PRESIDENT’S WELCOME DEAR READERS, Welcome back to Cambridge!

Erica San | President

I would like to take this opportunity to introduce you to the incoming Cambridge University Law Society (CULS) Executive Committee for 2019-2020. Jake Jones will be our Vice President, Aditi Aggarwal our Secretary, and Soraya George is our new Treasurer! The outgoing Executive Committee (Gabriel, Rachel, Vishnu, and Will) have done a wonderful job, and we will be sad to see them go. Per Incuriam, CULS’ termly magazine, has been wonderfully successful this year, as a result of our incredibly hard working and dedicated team: our Editor-in-Chief, Tatiana Kurschner and our Deputy Editors, Roystan, Edgar, and Meg. They have carefully curated articles and essays with the hope that

there will be something of interest in each issue for everyone! I would like to thank them for their work over this year, and I am excited to see what their final issue brings. I hope you enjoy this issue of Per Incuriam, and that you continue to find each edition more helpful than the last. Don’t forget that there are additional supplementary materials online, and you can find older editions of Per Incuriam on our website. Thank you for your continued support for this publication and for CULS as a whole. We hope to see you at our events in the year ahead! Finally, best of luck with your exams - don’t forget to enjoy the sunshine! Best wishes, Erica San CULS President

Editor’s Message

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EDITOR’S MESSAGE DEAR READERS, Welcome to the Easter 2019 issue of Per Incuriam! On behalf of the Per Inc editorial team, I wish you all the best of your luck with your upcoming exams and a wonderful beginning to the summer.

Tatiana Kurschner | Editor-in-Chief

Roystan Ang | Deputy Editor

Edgar Lee | Deputy Editor

On that note, we are happy to include extra tripos essays in this issue to assist with your revision and prepare you for a wide range of subjects. As always, we have included a mix of essays covering the core modules for each year, as well as optional Part IB and II papers. Additional essays previously published in Per Incuriam are also available online. Each essay published in this edition received a high first, with a few starred firsts, so we are confident that they will place you on excellent footing entering Easter term. We are excited to announce that the theme for the Easter issue is Pro Bono! This issue includes an interview with a White & Case trainee solicitor about the role of pro bono work in a commercial training contract, a feature on Gibson Dunn’s successful campaign to make upskirting a criminal offence, and an introduction to some of the wonderful work done by the CULS Pro Bono department! Pro bono work can be extremely rewarding, and we encourage all students to get

involved with CULS Pro Bono in your time at Cambridge and to continue this effort in your future legal careers. We would also like to encourage you to visit our online platform (accessible via the CULS website) for a collection of critical commentaries on legal developments, published weekly and written by undergraduate students here at Cambridge. The platform is currently in its second year, and we look forward to its continued growth and success under the leadership of a new Per Inc editorial team as a platform for students to read – and write – about topical legal issues. Lastly, I would like to thank my wonderful team of Deputy Editors – Edgar, Meg, and Roystan – who have worked tirelessly over the course of the year to ensure Per Incuriam’s success. After two years on the Per Inc editorial team, this final issue has been bittersweet, but I look forward to welcoming the new Per Inc editorial team and I wish them all the best. We hope you enjoy this final issue! All the best, Tatiana Kurschner Editor-in-Chief

Meg Gibson | Deputy Editor

If you are interested in contributing to Per Inc, drop us a line at per-inc@culs.org.uk. We accept articles from all, whether you are an academic, professional, or current student, including people from all universities.

Keep in touch! ‘Like’ our Facebook page for the latest legal developments and updates on Per Inc. Facebook: fb.com/CULSperincuriam Contact: per-inc@culs.org.uk

We also welcome First Class Tripos essays. Please send them typed, and with their respective year, question number, and marks indicated, along with your name, College and alternate email address.

Getting praise from a partner in your first week. GRADUATE LAW CAREERS A simple thank you email sometimes makes all the difference – especially when you’re new to the team. But that’s what makes Baker McKenzie so special. We pride ourselves on being supportive and recognising people’s contributions. It doesn’t matter if you’ve been here for a week, a year or a decade; if you’ve done a great job, you’ll always be the first to know. Learn more at bakermckenzie.com/londongraduates

Law-struck Baker & McKenzie International is a Swiss Verein with member law firms around the world. In accordance with the terminology commonly used in professional service organizations, reference to a “partner” means a person who is a member, partner, or equivalent, in such a law firm. Similarly, reference to an “office” means an office of any such law firm.

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Contents

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CONTENTS ARTICLES

PRO BONO WITH CULS: MAKING A DIFFERENCE AS A LAW STUDENT Kinnar Patel

#STOPSKIRTINGTHEISSUE Gibson Dunn

GLOBAL CITIZENSHIP WITH WHITE & CASE White & Case

6 8 10

ESSAYS

ASPECTS OF OBLIGATIONS Maj Mohamed

CIVIL LAW I Niamh Davis

COMMERCIAL LAW Chris Taylor

CONTRACT LAW Elizabeth Huang

CRIMINAL PROCEDURE AND EVIDENCE Annie Mackley

CSPS Bryan Chong

EU LAW Yen Jean Wee

INTERNATIONAL LAW Ernest Goh

LEGAL HISTORY Elizabeth Huang

LAW OF TORT Aaron Gan

12 14 16 18 20 22 24 26 28 30 5

EASTER 2019

Articles

Pro Bono with CULS: Making a difference as a law student

PRO BONO WITH CULS: MAKING A DIFFERENCE AS A LAW STUDENT Kinnar Patel | CULS Pro Bono Officer 2018–2019

It would be fair to say that Pro Bono work is not given a central role within English legal studies the way it is in jurisdictions abroad. Many J.D. programmes in the US involve a mandatory Pro Bono element, whilst admission to a number of state bars is dependent on completion of a certain quantity of qualifying Pro Bono service. The English law student must satisfy no such requirement. Nevertheless, the importance of student Pro Bono work should not be overlooked. While it is true that there are many limitations restricting what a law student may legitimately do, this has not prevented many student-run initiatives from creating a positive impact on local communities. Our approach to designing Pro Bono projects at

Cambridge over the past year has been to find ways to utilise the vast knowledge and experience of the student body to try and help those who are often neglected by the justice system.

COMBATTING THE DEATH PENALTY We have been working closely with Amicus ALJ, a legal charity based in the UK which supports lawyers with clients on death row in the US. We have hosted presentations and panel discussions featuring speakers with extensive experience in US capital punishment cases, to spread awareness amongst our student body of how the death penalty works and the way it interacts with important issues such as race,

poverty, and mental illness. One particular highlight was a talk by Ian Woods, a Senior Correspondent for Sky News and author of ‘Surviving Execution’, on the true story of his friendship with the death row inmate Richard Glossip. We have also highlighted the many opportunities available to Cambridge students to get involved with Amicus ALJ’s work, by inviting former Amicus interns to talk about their experiences. If you would like to learn more about taking part, check out the charity’s website and the Amicus ALJ at Cambridge Facebook page. In particular, Amicus ALJ hosts bi-annual US Death Penalty Training, completion of which will qualify you to take part in their internships in both London and the US.

Pro Bono with CULS: Making a difference as a law student

RAISING MONEY FOR LEGAL AID CULS Pro Bono put together a team to compete in the Law School Challenge. This is a fundraising initiative designed to raise both money and awareness for legal aid charities LawWorks and Advocate (the Bar Pro Bono Unit). LawWorks is a charity working in England and Wales to connect volunteer lawyers with people in need of legal advice who are not eligible for legal aid and cannot afford to pay. It also helps connect small not-forprofit organisations with legal advice to support the continuation and expansion of their services to people in need. Advocate is the Bar’s national charity, which matches members of the public with barristers who are willing to donate their time and expertise. Neither of these charities receive any government funding, and in a time of extensive legal aid cuts, their work is

IN OUR LECTURES AND SUPERVISIONS. PRO BONO WORK ALLOWS US TO SEE THE REAL IMPACT OF THE LAW ON SOCIETY AND ITS CONSEQUENCES – BOTH POSITIVE AND NEGATIVE – FOR REAL PEOPLE. becoming ever more important for ensuring that legal advice is accessible to all. The Cambridge team, led by Tiyash Banerjee, came up with fun and imaginative ways to raise money by running activities such as street collections, sweepstakes, and even a Valentines Pidging Service. The team also organised several fundraising events including Christmas quizzes, drink & draw, and an Open Mic Night. Their hard work placed them within the top 10 fundraisers in the UK and made a valuable contribution to a great cause. Activities like this show that everyone can help to improve access to justice, whether or not they study law. The dedicated efforts of the team should be congratulated, and we look forward to seeing what the CULS team achieves in the coming year.

IMPROVING ACCESS TO CAMBRIDGE AND LEGAL STUDIES The idea of studying at Cambridge is something that school students from many backgrounds are not exposed to, and as a result they don’t know of the opportunities available for them. Compounding this

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problem, law is often perceived as remote and inaccessible with its strange Latin terms and odd-looking wigs.

initial training session, they shadowed experienced Appropriate Adults until they felt confident to act on their own.

The aim of this CULS project was to reduce the ‘self-selection’ element in who applies to study law by introducing a broader group of secondary school students to law and the Cambridge experience in a fun and accessible way. We first sent teams of undergraduate students to visit schools to deliver a ‘Beginner’s Introduction to Law’ presentation, and to speak about their own personal experiences of Cambridge and the law tripos. We also recruited volunteers to participate in the new access initiative Key-to-Cam, started by a recent Cambridge graduate and current City solicitor in providing volunteers for the new access initiative Key-To-Cam. The aim of this initiative is to link up current Cambridge students with state school students who are considering applying to Cambridge; by acting as advisors and mentors for those considering studying law here, our volunteers were able to have a real and meaningful impact on access.

Working shifts at Parkers Piece Police Station throughout the year, the volunteers carried out a wide range of tasks. These tasks included reviewing custody record information to ensure compliance with the Police and Criminal Evidence Act 1986 and subsequent Codes of Practice, ensuring that persons in custody received their rights and entitlements as laid down by statute, and directing young and vulnerable persons towards appropriate additional support services on their release from custody.

RESEARCHING DISABILITY RIGHTS CULS Pro Bono also took part in a research project run by the All-Party Parliamentary Group for Disability and Disability Rights UK, aimed at gauging participation in politics amongst the disabled community. The main tasks undertaken by students were securing funds, assisting disabled individuals in providing evidence to the inquiry, making contact with local disability charities and support groups around the country to expand the reach of the inquiry and final report, and helping to co-author the final report.

SUPPORTING VULNERABLE PEOPLE IN POLICE CUSTODY IN POLICE CUSTODY

APPLY NOW AND GET INVOLVED IN POLICE CUSTODY IN POLICE As well as being a worthy cause in itself, I believe that Pro Bono work is also incredibly useful in developing our skills as law students. Having been involved with CULS Pro Bono since my first year at Cambridge, I have been amazed by the narrow conception of the law put forward in our lectures and supervisions. Pro Bono work allows us to see the real impact of the law on society and its consequences – both positive and negative – for real people. Coordinating the Pro Bono division of CULS has been a challenging but deeply rewarding role. You are responsible for designing and running your own projects. I have had the opportunity to work alongside talented and dedicated people both within and outside the university. Best of all, I was given the chance to make a real contribution to improving access to justice. I have thoroughly enjoyed my time in this role, and I encourage all law students to get involved with one of the many Pro Bono projects that CULS takes part in. The valuable work that we do would not be possible without dedicated students eager to apply their legal education for the genuine benefit of vulnerable members of our community.

Lastly, we have been working with YMCA Trinity Group to provide volunteers to act as ‘Appropriate Adults’ in Cambridgeshire. This role was created in 1984, and by law an Appropriate Adult must be called by police whenever they detain or interview a child (person under the age of 18) or vulnerable adult. Normally the Appropriate Adult will be the vulnerable person’s parent or guardian, but unfortunately in some cases such people are unwilling, inappropriate, or unable to attend. In such cases, the YMCA aims to provide an Appropriate Adult. CULS provided ten volunteers to help YMCA support these young people and vulnerable adults in custody. After an

EASTER 2019

Articles

#StopSkirtingTheIssue

#STOPSKIRTINGTHEISSUE

Upskirting is the invasive act of taking photographs up women’s skirts without their consent. Upskirters often strike in public places – on the underground, in a nightclub, or at other crowded venues. Until recently, the act of upskirting was not a specific criminal offence in England and Wales. It could only be prosecuted in certain circumstances, and only as a public order offence. The police and authorities were effectively unable to bring perpetrators to justice. That all changed this year, thanks to the tireless efforts of one brave and impressive young woman and her determined and creative lawyer, Gibson Dunn associate Ryan Whelan. In 2017, Ryan began representing activist Gina Martin, who was herself a victim of upskirting. Gina retained Gibson Dunn after meeting with a number of other law firms. She says the decision was simple: “Ryan just instantly got it. He outlined the strategy that he thought would be most viable and spoke about empowering me, helping amplify my voice. It was incredible. He intuitively understood that as a victim of sexual harassment it was important for me to be centrally involved and his ideas on strategy were on another level to everyone else I had met. Choosing Ryan Whelan to be my lawyer was the easiest – and best – decision I made in the whole campaign. He’s a genius and together we were such a formidable team.” The first step in the crusade to criminalize the practice was to craft a solid legal

opinion, corroborated by the country’s leading authorities on criminal law, detailing the inadequacy of the existing laws in England and Wales and why the practice of upskirting should be recognized as a specific criminal offence with serious penalties attached. With this legal opinion in hand, Whelan and Martin fought for access to the highest levels of Government and secured support for a bill criminalizing the act from

RYAN IS, I THINK, THE ULTIMATE EXAMPLE OF HOW TO DO HIGH IMPACT PRO BONO EFFECTIVELY. HE DOES IT FOR THE RIGHT REASONS, IS A BRILLIANT MALE ALLY AND TEACHES RATHER THAN MANSPLAINS. I’D RECOMMEND HIM TO ANYONE; HE’S A CREDIT TO GIBSON DUNN AND THE WIDER LEGAL PROFESSION. GINA MARTIN CLIENT AND ACTIVIST Members of Parliament in every single political party. The media campaign to tackle the issue, on which Whelan advised, included the hashtag #StopSkirtingTheIssue, which quickly started to trend on social

media. The campaign garnered widespread support, including celebrity endorsement, and a petition for the Government to take action was signed by over 100,000 people. As a result of these efforts, a bill recognizing the act of upskirting as a criminal offence passed the House of Commons and the House of Lords, receiving Royal Assent on February 12, 2019. The bill includes tough sentencing guidelines for committing the crime, including up to two years in jail and registration as a sex offender. Ryan’s impressive dedication to this pro bono matter has earned him recognition in the media and across the Houses of Parliament. In the House of Commons, Minister Lucy Frazer QC MP called the campaign “incredible”, while Baroness Chakrabarti in the House of Lords said: “I pay tribute to the campaigner Gina Martin, whose original indignity was converted into a powerful campaign to do something important that we can all agree on. I also pay tribute to her lawyer, Ryan Whelan, for that campaigning partnership and to parliamentarians on all sides of both Houses who made it possible-even at the expense of rivalries and through self-censoring-to allow a speedy and successful passage of this Bill.” In recognition of his incredible work on behalf of Gina Martin, Ryan received the Gibson Dunn Frank Wheat Award for 2019, and was named The Times “Lawyer of the Week” (2018) and the Law Society Gazette’s “Lawyer in the News” (2019).

#StopSkirtingTheIssue

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EASTER 2019

Articles

Global Citizenship with White & Case

GLOBAL CITIZENSHIP WITH WHITE & CASE

White & Case is an international law firm with 44 offices in 30 countries. It is one of the largest providers of pro bono legal services in the world, and devoted 120,000 hours to pro bono in 2018. In 2010, White & Case established its Global Pro Bono Practice, which is led by Brussels-based EU law litigator Jacquelyn MacLennan and emphasises three areas of focus: 1.

Providing access to justice and the protection of human rights

Promoting good sovereign governance and the rule of law, and Supporting organisations with a social or environmental mission

Dan Pront, 4th Seat Trainee Solicitor, tells us more about the pro bono work he has been involved in.

WHAT PRO BONO MATTERS HAVE YOU RECENTLY WORKED ON AT WHITE & CASE? There are many pro bono matters on offer here. For example, White & Case supports a Disability Benefits Appeals pro bono advocacy scheme with University House, one of the oldest legal advice agencies in London. I have represented a number of clients at the First Tier Tribunal who are appealing the stoppage of key disability benefits, the recipients of which are unable to work as a result of mental and physical disabilities, long term illness or mental health issues. Some of my clients had turned to food banks to support themselves before their benefits were reinstated, so I feel that my pro bono work here has a direct impact on those in need. In addition, I have drafted an exhibition rental agreement on behalf of an artist for

an environmental charity, so it has been a real mix!

AT WHITE & CASE, ARE YOU ENCOURAGED TO GET INVOLVED IN PRO BONO WORK? Very much so. Each White & Case fee earner has an annual target of 20 hours of pro bono, although people often exceed this. We have more than 130 partners across our global network who serve as informal â&#x20AC;&#x153;Pro Bono Leadersâ&#x20AC;? and encourage participation within their practices and offices. Pro bono participation is taken into account in relation to career progression within the firm. We have a dedicated Global Citizenship team who manage our pro bono programme and contributions are recognised at our annual pro bono awards.

Global Citizenship with White & Case

WHAT IS THE PROCESS FOR GETTING INVOLVED IN PRO BONO WORK? WHO ELSE HAVE YOU WORKED ALONGSIDE WHILST WORKING ON A PRO BONO MATTER? (I.E. PARTNERS, ASSOCIATES, OTHER TRAINEES, DIFFERENT PRACTICE AREAS). Our Global Citizenship team regularly circulates new pro bono opportunities for all fee earners, and we are of course welcome to bring our own ideas for interesting matters. Sometimes I work with my immediate team, other times I might work with lawyers in other offices on matters where multi-jurisdictional expertise is required. We have a partner assigned to each pro bono matter to supervise the work.

WHAT LEVEL OF RESPONSIBILITY HAVE YOU BEEN GIVEN WHILST WORKING ON PRO BONO CASES? You can be given a great deal of responsibility when working on pro bono matters. For example, with my disability benefits appeals cases, I have essentially run small-scale cases by myself. The work involved interviewing a client, drafting the pleadings and making oral submissions to the Tribunal at the hearing. I was responsible for making sure that the client was able to get to the hearing by checking

I THINK PRO BONO WORK IS A GOOD WAY TO KEEP YOURSELF GROUNDED. access requirements and arranging a translator if this was needed. It is an excellent opportunity to hone skills that

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you might not get a chance to practice on billable client matters, particularly advocacy.

WHY DO YOU PERSONALLY FEEL THAT IT IS IMPORTANT TO GET INVOLVED IN PRO BONO WORK? WHAT HAVE YOU ENJOYED? I think pro bono work is a good way to keep yourself grounded. It is always rewarding to be able to support initiatives that help people in vulnerable situations and particularly working on those appeals where you can tangibly see how your work has directly benefited somebodyâ&#x20AC;&#x2122;s situation. For a trainee, it also gives you the opportunity to develop core legal skills and take on additional responsibility. I have worked on a variety of cases, often with partners and associates from other practices and offices who I might not have had the chance to work with otherwise.

EASTER 2019

Essays

Aspects of Obligations

ASPECTS OF OBLIGATIONS ’The law’s caution in imposing affirmative duties to protect others reflects moral and political values embedded in the law and society. One consideration is that it is usually thought worse to do harm than to fail to help. In addition, the law’s general reluctance to impose affirmative duties reflects an aspect of individual liberty: the right (in general) to do as one chooses provided one does not harm other people.’ Discuss, with reference to this statement, the law’s reluctance to impose on public authorities affirmative duties to protect others within the tort of negligence. Maj Mohamed

Currently, the law is reluctant to impose on public authorities affirmative duties to protect others within the tort of negligence. This is indeed underpinned by moral and political values. With regards to the former, omissions are seen as less culpable than acts. With regards to the latter, the law places great value on individual liberty.

These considerations are undesirable and lead us to an unfortunate position that public authorities are not usually held liable for failure to protect citizens. Tofaris and Steel have attempted to move away from this, but ultimately their theory faces insurmountable obstacles. The current approach must be turned on its head: the

law must recognise that omissions are in themselves wrongful acts, thus that the starting point for all is liability for omissions. However, the law must also recognise the value of individual liberty for private parties (and crucially not for public authorities) to create a carve out, protecting private individuals from liability.

Aspects of Obligations

THE LAW AS IT STANDS Michael highlights that a duty of care is only imposed where the public authority (‘PA’) has made an assumption of responsibility (as well as other more minor situations, such as creation of a source of danger – Smith v Littlewoods – or prevention of an alternative means of rescue – Barratt v MoD). McBride has argued that this is based on the rule of law approach, which treats all subjects of the law the same, regardless of their rank. This was supported in Michael and by Lord Reed’s dicta in Robinson: in McBride’s words, it is ‘simply wrong to treat those who try to do good worse than those who do not’. Since the state has created a police force, it would be unacceptable to allow for liability when none would have existed. This demonstrates the view in law that it is usually thought to be worse to do harm than to fail to help. The rule of law approach also highlights that the reluctance to make PAs liable is partly a reflection of an aspect of individual liberty, as applies to private

PUBLIC AUTHORITIES SHOULD BE TREATED DIFFERENTLY FROM PRIVATE INDIVIDUALS parties. There are further political values and arguments which have been used by the courts – notably in Hill v West Yorkshire and Smith v Sussex that an imposition of liability would lead to an undesirable defensive exercise of public powers and a diversion of resources from the state budget. Thus, the given statement appears to be correct. However, this is an undesirable state for the law to be in.

THE PROBLEMS WITH THIS APPROACH The problems are highlighted by the cases relating to emergency services: Michael (with the police) and Capital and Counties (ambulance). In both cases, 999 calls were made and the PAs made some efforts (poorly) to handle these matters. In Michael, an assumption of responsibility was denied on the basis of the specific words used on the call. As Lord Kerr’s dissent and Goudkamp have made clear, this is extremely undesirable as it may lead to prescripted responses and even obfuscation which would not be in the best interests of the callers. Further, the specific policy arguments relied on are inadequate. Phelps v Hillingdon demonstrated that the support for these arguments is at best mixed. Halliday et al

argued that in relation to the defensive exercise of functions argument that only 18% of PAs would alter their practices and almost all viewed this as a beneficial or neutral change. Though it is perhaps unclear whether all PAs would openly admit to altering their practices, this study at the very least shows the issue is not black and white. Additionally, Calabresi has argued that imposing liability may even lead to a more efficient allocation of resources due to an increased focus on rigorous selection and training. Since the policy arguments are so unclear, this matter should be decided on principle. Problems also exist with the ‘rule of law’ theory that justifies the current position by treating PAs the same as private individuals. Firstly, this theory implies a controversial libertarian view of the state which – if correct – would be unable to justify the state’s welfare obligations. Crucially, this is also a misapplication of the rule of law: where there are normatively important differences, it is acceptable and desirable to treat parties differently. Indeed, the classic arguments to shield private individuals from liability (‘why pick me?’ and the autonomy argument) do not apply where the state has a monopoly over action, and where autonomy only has an instrumental value.

TOFARIS AND STEEL: CLOSE, BUT NOT QUITE Tofaris and Steel take a different approach, recognising the weakness of the current model, and wishing for a greater imposition of liability on public authorities. They argue that there is a status-based proximity that arises from a relationship of dependency between the citizen and the state; since the state has limited your ability to protect yourself from harm, they should owe you a duty to take reasonable steps to save you from such harm. In a sense, this may be similar to notions of an assumption of responsibility, but is more generalised, applying to a general assumption, due to the state’s monopoly on the use of force. This theory has great strength as it recognises a valid reason to treat PAs differently from private individuals and imposes liability. However this theory encounters an insurmountable obstacle. While the state will owe a duty, the state has taken reasonable steps to protect you from harm: it has created a police force. Any failure is at a lower level, of the police, who are not responsible for having interfered with your ability to defend yourself. Even if it were possible to attribute actions of the police to the state,

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the state will have taken reasonable steps, and therefore liability cannot be justified here.

FLIPPING THE SCRIPT The law should recognise the weakness of the moral consideration that it is worse to do harm than to fail to held. Omissions are morally wrongful: a failure to pay sufficient regard to the interests of other human beings in a community should be regarded as wrongful. Honoré’s argument must therefore be countered, as he contends that this is not the case. Indeed, it would be widely recognised as equally morally wrongful for a mother to starve her daughter than to poison her. And even if this remains unconvincing, just because omissions may be less culpable than acts does not prevent them crossing the threshold to impose liability. This therefore lays the foundation for the default position that PAs should be held liable for a failure to act, by application of the default rule. However, an important exception must be made for private parties, recognising the important aspect of individual liberty that the given statement points to. It would be an undesirable subversion of the autonomy principle to hold private parties liable for a failure to act. This leads us to the desirable conclusion that PAs should face affirmative duties to protect others while private parties should not.

CONCLUSIONS Ultimately, the present state of the law, as accurately depicted by the given statement, cannot be defended. We must recognise that the rule of law argument, when properly applied, allows for a distinction between PAs and private individuals, which shields the latter from liability once the morally wrongful nature of omissions is recognised. This conclusion therefore avoids the problems of the Diceyan rule of law approach, and it also avoids the problem of Tofaris and Steel’s theory since this is based on an application of the default rule rather than any special status. This leads us to the justifiable conclusion – contrary to the law as it stands – that public authorities should be treated differently from private individuals and the law should impose on PAs an affirmative duty to protect others within the tort of negligence.

EASTER 2019

Essays

Civil Law

CIVIL LAW I â&#x20AC;&#x2DC;Describe the various juristic and praetorian extensions to liability under the Lex Aquilia, and discuss the extent to which they resulted in a general duty to compensate for wrongful damage to property.â&#x20AC;&#x2122; Niamh Davis

The jurists and the praetor worked in a symbiotic relationship to extend liability under the lex Aquilia. In contrast to other areas of the private law, both were severely constrained by the wording of the lex itself and therefore had to develop there expansion by analogy to the wording of the lex itself. While the liability in relation to property damage expanded greatly, and went a large way to creating a general duty to compensate for property damage, injuries to free people still remained beyond the scope of the lex and the lexâ&#x20AC;&#x2122;s main limitation was that it compensated economic loss, more so than property damage in and of itself, as seen in the castration text.

The jurists expanded liability under the lex Aquilia through interpretation. In Ch.3, the jurists interpreted the word rumpere to mean corrumpere. Instead of the lex merely covering burning, breaking or smashing, it now covered any spoiling of property or making property less fit for purpose. Similarly, they interpreted iniuria to mean both dolus, intentional wrongdoing and culpa, blameworthiness. In this way, liability under both chapters of the lex expanded to include both intentional wrongdoing and whoever was to blame. Greatly increasing the amount of compensation able to be recovered from more defendants.

In ch.1, the jurists used their interpretation to broaden the notion of pecus. Initially thought to be the same as res mancipi, the juristic interpretation of pecus to mean any four-footed grazing animal which went in herd greatly broadened the category. It allowed pecus to include elephants and camels, which were not considered res mancipi. The jurists interpreted plurimi in Ch.1 to mean highest, yet allowed that word to include consequential loss (damnum emergens) and lost profits (lucrum cessams) which is arguably the most important expansion of the jurists, in allowing liability under the Lex Aquilia to provide adequate compensation.

Civil Law

The jurists and the praetor worked in tandem in dealing with the scope of occidere in ch.1. Before juristic interpretation, occidere is thought to have covered any form of killing. However, Steyn notes that the Proculians emphasised a literal interpretation of the lex, thus narrowing the area covered by the lex to only direct, forceful violent killing. The only way the jurists were able to do this was because the Praetor offered a derectal actio utilis to cover the other forms of killing. In this case, the action on the lex, the actio legis Aquiliae was contracted to killings effected corpore corpori – by the body to the body, with a decretal action available for other variations. In essence, the scope of the lex did not expand, and

THE LEX HAS EXPANDED THE CIRCUMSTANCES IN WHICH ECONOMIC LOSS FLOWING FROM WRONGFUL DAMAGE TO PROPERTY WILL BE COMPENSATED. the jurists and the praetor were working in a line drawing exercise. The praetor’s contribution to the expansion of liability under the lex occurred primarily through his granting of these decretal actions, the actio in factum and actio utilis. He allowed the juristic interpretation to be actionable, despite the liability being beyond the exact wording of the lex itself. Furthermore, the praetor expended liability by allowing these actions to be used by usufructuaries and others with interests in property lesser than ownership. He

also allowed these actions to be used by paterfamilias’ when damage occurred to someone under their power. The jurists however relied on these praetorian actions to ensure that their interpretations were effective. These expansion, however, only went part of the way to developing a general duty to compensate for wrongful damage to property. The main limitation of the lex is that it was compensating economic loss more so than the property damage itself. This point is emphasised in the castration text. Although a slave has been castrated, his master has no action under the lex because no economic loss has been caused. In fact, the castration makes the slave more valuable as he will not get women pregnant and may now be able to be used as a beautiful singer with a highpitched voice. The compensation for damage to free people also illustrates this point. The actual injury, for example the broken leg of a free person, is not compensatable under the lex. What can be recovered, however, is the economic loss flowing from the broken leg, for example the medical bills and any lost wages or profits accruing due to the loss of the limb. Despite falling under the lex Aquilia, it is not the property damage itself which is being compensated. Therefore, whilst the expansion of rumpere’s interpretation and the actio utilis provided by the praetor may mean that a boar being caused to escape is not compensatable and it seems that a general duty to compensate for wrongful damage to property has been created

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this is not quite the case. In properly examining the implications of the juristic and praetorian extensions, it seems that the lex has expanded the circumstances in which economic loss flowing from wrongful damage to property will be compensated. This effect is most aptly demonstrated by the juristic interpretation of whatever the matter was worth in the nearest 30 days in ch.3. Although we cannot be sure of the precise interpretation, there were various ideas. Gaius inserted ‘plurimi’ to mirror ch.1 and read it backwards, so that it essentially compensating in the same way as ch.1 but with a shorter time frame. Daube’s interpretation of res as a matter and reading the 30 days after the incident, reinforced the importance of compensating the loss flowing from the damage itself. The praetor and the jurists worked in tandem to expand the scope of the lex Aquilia. More actions resulting in property damage i.e. not by the body to the body, such as economic loss in the coin text, proculus in the boar text and death by poisoning were now covered. The actions provided by the praetor meant that more people could claim and juristic interpretation went a long way to covering almost all types of property damage. Despite this, the main purpose of the lex is to compensate economic loss flowing from property damage, exemplified by the castration text and therefore only partially resulted in a general duty to compensate for wrongful damage to property and some instances such as injuries to free people became covered in criminal law by the lex Cornelia.

EASTER 2019

Essays

Commercial Law

COMMERCIAL LAW ‘Oscar is a professional artist. He has agreed to sell one of his paintings to Adam for £5,000. Adam, an art dealer, has bought the paintings as an investment and decides to leave the paining on display at Oscar’s gallery. Adam tells Oscar that he is hoping for an increase in interest in Oscar’s work in the longer term, but that if anyone happened to make an offer of more than £10,000 he might be prepared to sell. Trevor visits the gallery and falls in love with the painting. He offers £8,000 for it. Oscar, who has a number of urgent bills to pay, says that if Trevor can offer £8,500 and can pay cash there and then, he has a deal. Trevor agrees, payers £8,500 and takes away the painting. Oscar has now disappeared.’ Advise Adam and Trevor as to who owns the painting. Would your advice differ if Adam had previously taken delivery of the painting for one week in order to get it valued before returning it to Oscar’s gallery? Chris Taylor

THE CONTRACT The contract between Oscar and Adam was a straightforward contract for the sale of goods. Oscar agreed to pass property in the painting to Adam for a price (s2(1) SGA 1979). However, Oscar remained in possession of the painting and sold it again to Trevor. This raises issues as to agency, and the ability of Oscar to pass good title.

THE GENERAL RULE IN ENGLISH SALE OF GOODS LAW IS ‘NEMO DAT QUOD NON HABET’

NEMO DAT The SGA distinguishes between the passing of property (the seller’s title to the absolute legal interest in the goods) and the transfer

of title. Title determines essentially who is able to exclude others from the goods in question. The general rule in English sale of goods law is ‘nemo dat quod non habet’, which essentially means that a person cannot pass a better title than he himself had. It is found in s21 of the SGA 1979. Importantly, however, it is subject to several express exceptions. Following the contract of sale between Oscar and Adam, property will have passed to Adam. This is presumed in s18 rule 1 SGA, as there was an unconditional contract for the sale of specific goods in a deliverable state. In passing property to Adam, Oscar also conferred good title on him. This is important given Oscar’s later actions. Trevor will likely wish to argue that he had good title to the painting. To do so, he will have to rely on exceptions to the nemo dat rule.

THE RULE S21 SGA states that when goods are sold by a person who does not own them, and who does not sell them with authority or consent of the owner, the buyer will acquire no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell. Thus, inherent in this rule are exceptions based on agency and based on estoppel. Unfortunately for Trevor, neither will avail him.

AGENCY It is true that Adam had authorised Oscar to sell the painting if the right offer came in. Thus, Oscar had express actual authority to sell the painting on Adam’s behalf for a sum greater than £10k. However, this authority was limited (Hely-Hutchinson).

Commercial Law

Furthermore, there was no ostensible authority to sell the painting for less than £10k (or at all for that matter), given that Adam has made no representations to anyone about Oscar’s authority (Freeman v Lockyer). In light of this, Oscar could not pass a good title as an agent due to his exceeding his actual authority.

It is possible that Oscar is a mercantile agent. Under s1(1) FA, this means he has to have in the course of business such agent authority to sell goods on behalf of others. As he owns a gallery, it is possible that he sells on behalf of others as well as himself – see Weiner v Harris or Lowther v Harris. There was no mercantile agency in Budberg v Jerwood, as the lawyer had no business selling jewellery.

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have a stronger case for saying he took the better title to the painting. However, Trevor would have to establish that he bought in good faith and without notice (Heap). As concluded above, it is likely that he would not be able to establish this fact. In the event that he could though, Trevor would likely be able to claim a better title than Adam under s8 FA 1889.

ESTOPPEL Adam will not be precluded by his conduct from denying Oscar’s authority to sell the painting. Atiyah and Adams note that there may be estoppel in this context by words, conduct or negligent omission. Adam has not said anything to Trevor to suggest that Oscar can sell the painting (c.f Henderson v Williams). His conduct might be argued to have amounted to some kind of representation to Trevor, but this is highly unlikely. Conduct will only amount to a sufficient representation in rare cases. One example is Chatfields-Martin v Lombard, where the owners of a vehicle that was being hired prematurely removed their interest from the hire purchase register. Adam also did not act negligently. There is no general duty of care to stop others from believing your goods belong to another. It is very rare for any duty of care to arise in this context (a rare example is Shepard).

FACTORS ACTS EXCEPTIONS More significant for Trevor are the exceptions contained in the Factors Act 1889, expressly preserved in 21(2) SGA. Trevor could attempt to rely on the exception in s2 Factors Act. This is sale by a ‘mercantile agent’ in the ordinary course of business. Such a sale can be valid as if the agent was expressly authorised by the owner of the goods to sell. In order to work, Trevor would have to have taken the goods in good faith and without notice of Adam’s title.

However, Oppenheimer holds that the sale must be in the ordinary course of business, which means in the usual hours, in the usual business way. Thus, in Lambert or Stadium Finance, sales by mercantile agents did not pass good title. Cars here were sold without registration documents, which was not in the ordinary course of business. Transactions promptly and in cash of a value of £8.5k are surely not in the ordinary course of business for any art gallery. Furthermore, Trevor also has to be in good faith and without notice of the lack of authority. While Heap establishes that constructive notice is not sufficient, it also holds that the onus is on Trevor to show that he did not have notice. The buyer in Heap failed to discharge this evidential burden, given that he admitted he was suspicious of the transaction. Thus, Trevor cannot rely on s2 FA. Trevor’s best bet is to rely on s8 of the Factors Act. This states that, where a person having sold goods continues or is in possession them or documents of title to them, the delivery or transfer by that person of the goods or docs of title under (inter alia) a sale, to any person receiving in good faith and without notice of the previous sale, shall have the same effect as if the person selling were expressly authorised by the owner to do so. Adam left Oscar in possession of the property, and Oscar then sold and delivered it to Trevor before disappearing. This suggests s8 may have application here. Oscar did continue in possession of the painting in question. There was factual control/possession in his gallery – see Pacific Motors, Worcester Works and Michael Gerson. On this basis, Trevor might

IF ADAM TOOK DELIVERY? The relevance of Adam taking delivery here would be that there was a break in continuous possession by Oscar. S8 FA/s24 SGA requires that the seller “continues or is in possession of the goods or a document of title to them”. On one reading, the requirement that Oscar “is” in possession suggests that what matters is factual possession, regardless of its legal basis. However, it was held in Mitchell v Jones that the possession must be continual. Therefore in Mitchell, the seller had no authority to sell under s8 FA – he had sold the horse and delivered it to B1 before regaining possession qua bailee under a lease-back agreement. The development in Pacific Motors is that, contrary to Staffs Motor Guarantee, constructive delivery is not sufficient to prevent a continuation of possession. Pacific Motors (despite its many flaws and critics) did not disapprove of Mitchell v Jones. Thus, the fact that Adam stepped in and prevented Oscar from “continuing in possession” would be significant, in that it would prevent Trevor from relying on s8 FA. This impairs Trevor’s chances of establishing a better title than Adam’s. Of course, Trevor could still try to argue that s2 FA availed him, but he would need to overcome the evidential burden of proving good faith. This is not insurmountable, but it is unlikely. Thus, Adam has the best title to the painting.

EASTER 2019

Essays

Contract Law

CONTRACT LAW ‘Ann and Boris were in negotiation for the purchase by Boris of Ann’s yacht, ‘The PrincessRoyal’. Boris intended to use the Princess Royal for the purpose of corporate entertainment. The sale was agreed on 1 March 2018, and the price was £5 million. In February 2018, Ann had orally told Boris that the Princess Royal had once been owned by the Ruritanian royal family. In early April 2018, Boris discovered that this was not true, and Boris further discovered that there is damage to the expensive wooden flooring in the Princess Royal’s main bedroom. When Boris had inspected the Princess Royal in February 2018, the damage had been concealed by Ann by use of a large rug. The written terms of agreement (which make no reference to the Ruritanian royal family) include clause 66, which states: ‘No pre-contractual oral assurance will have any effect, whether as a warranty or misrepresentation, and the purchaser, by entering this contract, assents to the understanding that the contract of sale will have effect only as set out in written form in this contract.’ Clause 67 adds: ‘The purchaser hereby affirms that he has entered this transaction acting solely on his own assessment and researches and has not relied on any statement made by the vendor with respect to this transaction.’ Since 1 March 2018, there has been a large fall in the value of luxury yachts. The value of Princess Royal is now £2 million. But if the Ruritanian royal family had once owned the Princess Royal, that yacht’s current value would be £10 million.’ Advise Boris.

Elizabeth Huang

LIABILITY FOR MISREPRESENTATIONS OR NON-DISCLOSURE The first question to consider is whether there is liability on Ann’s (A) part for misrepresentation or non-disclosure. Two issues must be dealt with: the claim about the royal family, and the damage to the wooden floor. The royal family The first question is whether the statement made by A was a term or a representation. The relevant factors include: the importance of the term to the promisee (Couchman v Hill), whether independent verification was urged (Ecav v Godfrey), the relevant expertise of the parties (where a party is an expert it is more likely that a statement will be a term: Dick Bentley Motors) and whether the term is later included in the written contract. The facts do not disclose that the yacht having been owned by the royal family is particularly important to Boris (B) - contrast a situation where the yacht was to have been used for ‘royalist fan cruises’ and fundamentally, the fact that the statement was not repeated in the written contract is a strong mitigating factor against the statement being a term

of the contract. Note also the operation of the parol evidence rule, which prevents oral evidence from later being used to vary the terms of a written agreement. Therefore, it is most likely that A’s statement is a representation. It is not the kind of boastful ‘salesfloor talk’ that would bring it under the category of a ‘mere puff with no legal effect: Dimmock v Hallett. The second question is whether the representation is a representation of fact or mere opinion. Arguably given that she is the owner of the yacht, it seems unlikely A will be able to avail herself of a Bisset v Wilkinson-tvpe argument that she was only giving her opinion on an issue upon which she has no particular knowledge or expertise. Nor is this the case of a statement of opinion being made that implies a statement of fact (Smith v Land and Property Housing Corp). Thus A has made a false representation i.e. a misrepresentation. It is not necessary that this misrepresentation is the sole cause of B entering into the contract: Zurich Insurance v Hayward and if it is the case that A knew that the representation was false and is therefore fraudulent, then reliance will be presumed anyway: Fitzroy Robinson v Mentmore Towers.

An interesting question arises, following the Peekay Intermark case as to whether the misrepresentation can be taken to have been ‘corrected’ by the terms of the written agreement, which makes no mention of it. It is submitted that this is unlikely as no mention of the issue is not the same as an express clarification that would perhaps have operated to cure the initial misrep. Therefore, A is prima facie liable for the misrepresentation about the royal family. The wooden floor A question arises here as to whether A may be liable for misrepresentation by conduct in using a rug to cover the damage on the floor: Spice Girls v Aprilia World Service. Arguably this is the case, as her conduct gave the impression that the floor is not damaged. A cannot successfully make an argument that B could have discovered the damage had he checked underneath the rug, in analogy to Redgrave v Hurd where it was no defence that C in that case could have discovered the truth had he investigated the matter himself - liability under misrepresentation strict. Another possibility is for liability under non-disclosure. Although there is no

Contract Law

general duty to disclose in English law: Smith v Hughes, where a party makes a misrepresentation by half- truth, or indeed a misrepresentation by conduct, liability may be engaged. A is also prima facie liable for misrepresentation as to the state of the wooden flooring.

EXCLUSION OF LIABILITY FOR MISREPRESENTATION The next set of issues to consider is whether the various clauses in the contract might operate to exclude A’s prima facie liability for misrepresentation. Clause 66 can be analysed as two clauses: 1) a ‘no representations made’ clause

point that was also acknowledged in the Cleaver case. If the clauses are operative, then A will be able to exclude her liability for both representations, provided they are not fraudulent, as liability for fraudulent misrepresentation cannot be excluded at common law: Six Continental Hotels (the case also establishes that where clauses are sufficiently broad to exclude fraudulent misrepresentation, that part is ‘severable’ and will leave intact the rest of the clause as operative).

REMEDIES FOR MISREPRESENTATION

THE STANDARD REMEDY FOR MISREPRESENTATION IS RESCISSION.

Following the previous analysis, if A is able to successfully exclude liability for misrepresentation, then B will have no remedies against her. However, for the purposes of completeness I will consider a) (and primarily) what B’s remedies would be if A’s misrepresentation is fraudulent - a possibility not excluded by the facts and b) the general outline of the other remedies available.

and 2) an entire agreements clause - see cases such as Inntrepreneur Pubs for an illustration. The distinction is important as while ‘no representation’ clauses engage the reasonableness test in s 3 of the Misrepresentation Act 1967, entire agreement clauses fall outside its scope. Clause 67 can be analysed as a ‘non-reliance clause’. Indicating a shift in the law under Watford Electronics, Springwell Navigation establishes that non-reliance clauses do engage s 3 of the 1967 Act as in effect they act to exclude (rather than ‘preclude’ as was the previous understanding) liability for misrepresentation.

The standard remedy for misrepresentation is rescission: Salt v Stratstone Specialists. However, rescission will be barred by a number of factors e.g. affirmation, lapse of time (Leafy International Galleries), impossibility (Hunt v Silk), third party rights. None of these points apply to this case - Salt v Stratstone Specialists further establishes that the courts take a relatively broad view of ‘impossibility’ - in that case it was held that the fact a car had been driven and was no longer ‘new’ did not prevent mutual restitution. Analogously the fact the boat may have been ‘used more’ will not bar recission for impossibility.

Arguably, this case is a B2B case as both parties are acting ‘in the course of a business’(s l(3)(a)) and so the relevant legislation is the Unfair Contract Terms Act 1977 (UCTA). Thus s 3 of the 1967 Act will engage the ‘reasonableness’ test in s 11(1) of UCTA 1977. A preliminary point is that as the parties are not contracting on either of their standard terms, the entire agreements clause cannot be scrutinised for reasonableness, but as this does not impinge on misrepresentation liability, it does not matter for the purposes of our current inquiry. Following the guidelines laid out in Sch 2 of UCTA 1977, it is arguable that the terms are not obviously unreasonable. The case law indicates that the courts do not consider exclusion clauses for misrepresentation inherently unreasonable - in Springwell Navigation, the court acknowledged that there may be valid commercial reasons for parties to exclude misrepresentation liability, a

If the misrepresentation is fraudulent, B will be able to rescind by notifying the world at large: Car & Universal Finance Co v Caldwell. Rescission operates to return the parties to their original positions i.e. B would return the yacht and A would return B’s £5m payment. In addition to rescission, there is also the possibility of damages for misrepresentation. If A’s mispresentation is fraudulent i.e. she knowingly and without honest belief made the false statement: Derry v Peek, B may, recover damages (if rescission does not take place) under the tort of deceit. In this case, A will be liable for all consequences of the misrepresentation, without regard to remoteness: Doyle v Olbv; Smith New Court. Thus, if A’s misrepresentation was indeed fraudulent, B will be able to recover his full expectation interest (Robinson v Harman) with regard to the

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current (low market) value of the yacht calculated based on the difference in value between the two figures i.e. £8m. Alternatively, if liability has not been excluded and A’s misrepresentation is merely negligent, then B may be entitled to damages under s 2(1) of the Misrepresentation Act 1967. Note that A will have a defence if she can show that she had reasonable grounds to believe her statement about the royal family up until the contract was made i.e. that the misrepresentation is innocent - but the burden is on her to prove this positively: Howard Marine Co v Ogden. Although often questions of volatile markets etc. raise tortuous questions about remoteness of damage and the exact scope of the Hadley v Baxendale rules (now glossed by Jackson v RBS and The Achilleas). in this case such difficulties are side-stepped by the so-called ‘fiction of fraud’ found in s 2(1) that the person making the misrepresentation shall be liable as if the representation was made fraudulently. Although this requirement is controversial, Rovscot v Rogerson establishes clearly that the courts must give effect to this ‘fiction of fraud’. Thus, if A cannot show her misrepresentation was made innocently, it will be presumed to be negligent and she will be liable for the same damages as if it was made fraudulently. Finally, if A can indeed show that her misrepresentation was wholly innocent, then B may still potentially be able to recover damages under s 2(2) of the 1967 Act if the court thinks it would be more ‘equitable’ to award damages in lieu of rescission. The classic example is illustrated by William Sindall v Cambridgeshire CC where the difference between the cost of cure damages to resolve the misrepresentation and the ‘cost’ to the misrepresenting party of rescission as a result in a fall in property prices was so great that the court awarded damages instead. On the facts of this case, it is arguable that such an argument would not apply - the difference in value originally caused by the misrepresentation was £5m - because of the fall in yacht prices, the difference is now £8m. An argument could also potentially be made by A that even so, the fall in yacht value may be a loss that is too remote or not within her ‘scope of duty’ as a seller. While this is a significant sum of money it is not so grossly disproportionate as was the case in William Sindall to justify damages in lieu of rescission.

EASTER 2019

Essays

Criminal Procedure and Evidence

CRIMINAL PROCEDURE AND EVIDENCE ‘Section 80 of the Police and Criminal Evidence Act 1984, regarding the compellability of spouses and civil partners, is a worthless provision. The courts have found ways to neuter or get around the provision, and its underlying rationale is unclear and unconvincing in contemporary society. It should be abolished without replacement. All witnesses, other than the defendant, shouldbe compellable by the prosecution.’ Discuss. Annie Mackley

This statement is undoubtedly true – the rules on spousal compellability are unprincipled, little respected in practice and so worthless that they ought to be abolished without replacement. This essay will argue that 1) the rule lacks a convincing modern rationale, 2) the courts do frequently get around it, and 3) it is not worth adopting Brabyn’s proposals for reform.

1. RATIONALE The rule in s 80 of PACE 1984 originates from outdated notions of the nature of marriage and its importance to society. This can be seen by its changing justifications over the centuries. For example, in the early 1800s, Phillips v Barnet justified it on the grounds that the husband and wife were the same person;

in the late 1800s, O’Connor v Marjoribanks suggested that it was based on preventing marital breakdown, and in the 1950s, Hoskyn v MPC suggested that the rule was justified because a husband and wife have the same interests. However none of these confusing rationales apply in modern times. Marriage is of decreasing importance in society; the number of divorces is on the rise (as acknowledged in s 80(5)), and it is normal to cohabit with someone for life without ever getting married. Thus s 80 makes arbitrary and unprincipled assumptions about what kinds of relationship are valuable to society. Brabyn has argued that, on the contrary, marriage is an important social basis for future generations and an important economic tool. However, the small numbers of spouses who can already be

compelled under s 80A, and who would be compellable, are unlikely to disrupt this in any significant way. It’s also notable that in many communities where crime is common, the stability of marriage is not likely to be confined to compellability but is rather affected by a very wide range of factors. The only potentially convincing rationale might be that making all spouses compellable is simply setting them up to be hostile witnesses (for which there are consequences under s 3 of the Criminal Procedure Act 1865). However, hostile witnesses are not an enormous problem given those provisions, and the harsh stance towards them in Yusuf. Therefore the statement is correct that the rule’s underlying rationale is both unclear and unconvincing.

Criminal Procedure and Evidence

2. NEUTERING THE PROVISION The courts clearly seem to see that these rules are capable of producing arbitrary results (i.e. in the categories of offences regarding age limits for which a spouse will be compellable under s 80A (A(B)), and lack principle. Thus although they cannot prevent Brighton Rockesque marriages in order to benefit from these provisions (CPS v Registrar of Births Deaths and Marriages), they have found two main ways to evade the provision.

THE S 80 RULE IS WORTHLESS AND SHOULD BE ABOLISHED. Firstly, it is possible to admit a noncompellable spouse’s out-of-court statement as hearsay under the interests of justice test in s 114(1)(d) and 114(2) of the CJA 2003, as occurred in R(L). Ormerod has noted that this entirely undermines the s 80 provision, but also notes that this may be unproblematic given the confused nature of the rule. Secondly, the courts take a relaxed approach to when a spouse testifies without being aware that she is non-compellable. In Pitt, it was established that once a spouse has taken the oath, she becomes compellable, and if she refuses to answer questions will be treated as a hostile witness. The conviction was unsafe in that case because the wide has expressed an unwillingness to testify; however a more relaxed approach was taken in Nelson, where the conviction wasn’t unsafe since the

wife had not explicitly expressed doubts. In Birmingham Magistrates Court ex p Shields, it was held that, although the wife ought to be informed that she was non-compellable and that this would strengthen the reliability of any evidence she did eventually give, a conviction obtained without this would not automatically be unsafe. Thus the courts do not appear to be applying the spirit of the rule – they are keen to admit a spouse’s evidence, possibly given the heightened values of any knowledge they possessed through being in such close proximity to the defendant. This is evidently a triumph of practice over principle which ought to be encouraged.

3. A REPLACEMENT? It’s thus clear that the s 80 rule is worthless and should be abolished. However, Brabyn has proposed as replacement scheme, whereby the rule would be extended to relations such as grandparents and stepchildren (a suggestion rejected at common law by Pearce, although many countries adopt categories of non-compellability even extending to the doctor-patient relationship) who would have to apply for exemptions from compellability based on relationship breakdown. The prosecution could then apply again for them to be made compellable. However, this proposal is deeply unconvincing for four reasons. Firstly, it relies on the view that noncompellability is essential to the stability of society, which, as this essay has shown, is far from uncontroversial.

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Secondly, extending the classes of noncompellable witnesses would drastically reduce the amount of relevant evidence that can be adduced in a trial. This poses risks to the public interest in securing convictions for guilty people (expressed to be an important element of the fair trial in Cook and Marsh (Paul), as it risks vital evidence failing to come to light based on technicalities. Thirdly, the proper working of such a replacement would require a sea change in the attitudes of the court as they exist at present. At the moment, the courts would likely be very unwilling to grant exceptions to witnesses, and favour the prosecution’s counter-application. It would therefore be a very unbalanced system. Fourthly, the system of exceptions and counter-exceptions would be capable of causing bitter family arguments (e.g. if the defence wanted to apply for an exemption but the family member was insistent on testifying). This totally undermines Brabyn’s goal of safeguarding the stability of family relations, thus rendering a replacement system unnecessary. To conclude, s 80 is worthless; its justifications are unclear historically and unconvincing in modern society. The courts show clear disrespect for the spirit of s 80, and any reform proposals are unworkable. As such, it would be a principled, simple and efficient step just to abolish the rule altogether.

EASTER 2019

Essays

Criminology, Sentencing and the Penal System

CSPS ‘Discuss current concerns about the treatment of BAME suspects and offenders in the criminal justice system.’ Bryan Chong

The Lammy Review 2017 pointed out many continuing concerns about the treatment of BAME suspects and offenders in the criminal justice system (CJS) which can be grouped into 3 categories that the Review identified: 1) Implicit bias, 2) Demystifying the perception of bias against BAMEs in the CJS and 3) Problems with BAME youth offenders. This essay will discuss the 3 in turn.

1. IMPLICIT BIAS Firstly, the Review mentioned the possibility of implicit bias such as the use of words like “gang” that can trigger inherent misconceptions or prejudices among those who administer the CJS, like the police. It raised the concern that this may result in police exercising their powers unfairly. As the Review rightly points out, it is difficult to really change such biases, so what a better approach is would be to ensure that decision-making is subjected to better scrutiny, and it suggests that algorithms can be used to ensure e.g. police do not exercise this bias in arresting people. However, the caveat must be that the algorithms themselves must not be biased, and the use of such tools like in the USA can be studied carefully.

2. DEMYSTIFYING THE PERCEPTION OF BIAS The Review pointed out that there continues to be a perception among BAME offenders that the CJS is prejudiced against them in 3 areas: At stop & search/ arrest stage, sentencing stage and then in custody.

Stop and search It is found that about 76% of all stops and searches happen in London, which is where the proportion of BAMEs are highest in the country. Blacks are 7x more likely to be stopped than whites, with Asians at 2x more. Even if we attribute this to the fact that there just happens to be more police in those parts, that the use of stop and search has increased by 650% from 2006 to 2011 is reason enough to suspect some bias. Dodd 2003 warns that the discretionary nature of stop and search opens up to police applying their bias and cultural perceptions, which is illegitimate. MOJ 2015 warned that if more stops and searches are used but crime does not go down, then its ineffectiveness coupled with the perception that it is arbitrarily used will lead to greater illegitimacy. Therefore, it does look on the surface that stops and searches are biased. Sentencing The same picture can be described of sentencing. Hood 1992’s study of black and white offenders as confirmed by the Lammy Review found that, taking into account all legal variables, blacks were 5% more likely to be sentenced to a longer term than whites. Lammy concurs with this and says this is particularly problematic for drug offences. Harsher community penalties tend to be given to BAME offenders too (Hood and Felitzer 2004). What makes this worse is that the magistracy are seen as “too white” by BAME offenders (Gibbs 2015). Custody In custody, it does not help the perception that BAME only make up 14% of the population but 25% of the prison population. Moreover, the number of Black

youth in custody have been rising from 25% to 41% (2006-2016) (Lammy Review). In prison, BAMEs are 30% less likely to obtain privileges under the Incentives & Earned Privileges scheme, thus the perception of bias is justifiable. Mere “perception”? Shouhami 2002 points out that other typical criminogenic factors such as education (Jacob Rowntree Foundation) and employment (ONS 2016) (where blacks are 2x less likely to get employed than whites with similar education) actually influence the overrepresentation of BAMEs in prison. Parmar 2015 also warns that statistics can be misleading, such as for stop and search which does not show that Asians are actually less likely to get arrested than whites despite being stopped and searched more. The Equality and Human Rights Commission did establish in 2014 that ending arbitrary stop and search did not have anything or much to do with the falling crime rate at that time. Thus, might the CJS not actually be biased against BAMEs and is it just a mere perception, with other social factors at play? Perception is still dangerous However, as Lammy Review 2017 points out, a perception is itself still dangerous. This is crucial for legitimacy. As Bottoms 2003 points out, if BAMEs simply perceive that the CJS is unfair to them, then normative compliance is difficult to achieve and this simply perpetuates the cycle of more BAMEs committing crime. This is echoed by Phillips 1998’s findings that 41% versus 30% of blacks and whites respectively do not plead guilty at trials, leading to more blacks being convicted for longer sentences as a result. What makes this worse is the fact that most jurors, in addition to magistrates, are white (Dorling 2012). Also, if BAMEs have

Criminology, Sentencing and the Penal System

this perception that the CJS is against them, they are less likely to report crime (Baker 2013) and thus not receive its protection, worsening perceptions.

THE PROBLEMS OF IMPLICIT BIAS, A PERCEPTION OF BIAS AND THE PLIGHT OF BAME YOUTH ARE THE 3 KEY AREAS OF CONTINUING CONCERN FOR THE CJS. Solutions: Demystify the perception As a result, Lammy 2017 suggests that the perception can be demystified, in several ways: Firstly, make the police and magistracy more representative. The BME Progression Programme 2018 can assist in this, with the aid of the Equality Act 2010. While the government has rejected calls by Lammy for more “representative judiciary” targets by 2025, this should not be ignored as the perceptions of court bias run high. The magistrates have to be at least 14% BAME to represent their composition in the population. As for police, the Runnymede Trust 2012’s recruitment targets must be revived.

Secondly, follow the Northamptonshire Police’s example in introducing evaluations of the use of stop and search powers, where a panel including ordinary citizens can check on police to see if they are biased, and mete out corrective measures like suspension accordingly. This will reduce the perception of bias among stop and search as it will be made more just and accountable. Thirdly, partner with the Law Society, Bar Association and other stakeholders to offer free legal advice to BAME offenders so that they know properly whether or not to plead guilty. Transitory measures such as not relying on guilty pleas to prevent custody can be implemented since legitimacy takes time to build up (Lammy). This may prevent the perpetuation of the “us and them” mentality which has only contributed to more overrepresentation of BAMEs in prison. Lastly, there should be use of more SMART monitoring technology to stamp out instances of bias. This has been useful before where Race Equality Officers were deployed to ensure Muslim offenders are allowed Friday prayers. Similarly, the same tool can be used for BAMErelated concerns such as stop and search (Holdaway & Murji 2012).

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3. BAME YOUTH Lammy pointed out that in 2016, police in England, Wales and Northern Ireland caught BAME youth smuggling drugs in 71% of their cases. This is worrying, as in addition to their overrepresentation in the CJS stages (the 25% to 41% increase), it shows that perhaps BAME youth are not being dealt with by the CJS appropriately. Therefore, suggestions such as the use of the Modern Slavery Act to combat drug kingpins who make use of BAME youth are welcome. However, the Black Training and Enterprise Group 2017 did comment that more can be done in this area, even though no strictly within the Lammy Review’s remit. For instance, there can be more expansive use of a maturity assessment tool currently trialled for BAME youths aged 14-25 to filter out those with mental illnesses so that they do not suffer under the criminogenic nature of prisons (Wikstrom) or the CJS in general. More should be explored by other stakeholders to build upon Mr Lammy’s work and do right by the BAME youth who are increasingly caught by the CJS. In conclusion, the problems of implicit bias, a perception of bias and the plight of BAME youth are the 3 key areas of continuing concern for the CJS as Lammy has rightly pointed out. Perception is important for legitimacy and in turn for compliance, so that should be the focus of the solutions to achieve lasting results.

EASTER 2019

Essays

EU Law

EU LAW ‘Judicial review is a remarkably ineffective mechanism for the control of EU-level rule-making.Yet, when compared to any alternative, it is probably the only viable means of ensuring that the EU’spolitical institutions act within constitutional limits.’ Critically evaluate these assertions. Yen Jean Wee

The control of EU-level rule-making is of profound constitutional significance, regulating as it does the competences of the EU in a legal order where the EU lacks inherent power to act and acts based on strictly conferred competences to respect the autonomy of Member States (as Weatherill, Craig, Van Den Brink (2017 CYEL) and many others have observed). Yet, the Court of Justice is frequently criticised for failing to police real limits on EU-level rule-making. This essay will first address the ineffectiveness of judicial review by the CJEU (‘JR’) on three grounds – its treatment of legal basis disputes, subsidiarity, and proportionality, the 3 “conservatory principles” in the EU legal order (Dashwood). While the controls of legal basis and subsidiarity issues is indeed ineffective, this can be explained to some extent by the Treaty wording itself and the political nature of the issues at stake. Moreover, the ‘ineffectiveness’ of proportionality review must be qualified by the increasingly procedural review of proportionality to raise the intensity of JR. I will then evaluate the comparative effectiveness of the alternative control mechanism – ex ante political control – which is indeed quite limited. I will conclude by asking what else can be done to ensure effective control – it would be defeatist to view the issue as a Hobson’s choice between two ineffective alternatives.

‘REMARKABLY INEFFECTIVE’ – LEGAL BASIS DISPUTES The first respect in which JR can be said to be an ineffective control is in its treatment of legal basis disputes. It is well known that Tobacco Advertising I was a very rare instance of a Directive being annulled based on its inadequate legal basis – the Court said that Article 114 TFEU did not confer a general power to regulate the market on the EU institutions, and in doing so impliedly rebuked the legislature for attempting to smuggle in a public health measure under the guise of the internal market (Weatherill). Significantly, the Court did not rely on the political institutions’ own judgments (e.g. in the explanatory memorandum of Recitals) but instead formed its own objective evaluation of the purposes of the Directive. However, in subsequent cases, JR of legal basis has been much less effective due to the tendency to use the Court’s own language as a “drafting guide” (Weatherill) to enable subsequent measures to pass judicial scrutiny. Notable examples are Tobacco Advertising II, British American Tobacco, and Alliance for Natural Health – where, dutifully employing the Court’s vague language like “appreciable distortion of competition”, “likely” to obstruct internal market objectives, and “genuinely” intended to improve the conditions of the internal market, and (in the case of Tobacco Advertising II) confining the measure to the acceptable level of specificity. It is significant that, thus cleverly drafted, these subsequent directives were held to be correctly founded on the internal market

legal basis. In the recent case of Poland v. Parliament & Council (Tobacco Products), Poland’s challenge to the Directive likewise failed, with the Court allowing the legislature considerable discretion. This is a significant problem for the control of EU-level rule-making as it allows for competence creep, which intrudes into national autonomy and undermines EU legitimacy. However, much of the blame lies not with judicial review itself but with the wording of Treaty provisions like Article 114 and Article 352 (flexibility clause). As Schütze, Davies, and Craig have all observed, these provisions are functionally defined rather than sectorally delimited, making a teleological judicial interpretation that expands competence all too easy (Schütze). As Weatherill notes, it is the vagueness of these Treaty provisions rather than Court’s judicial abdication that is the root cause of the ineffectiveness of JR here.

‘REMARKABLY INEFFECTIVE’ – SUBSIDIARITY The Court has also been criticised for its ineffective policing of subsidiarity. Although the Treaty demands “constant respect” for subsidiarity the Court often engages in a “tautology” (Schütze), whereby harmonisation is by definition better achieved at EU level and cannot be adequately achieved by states. For example, in Working Time Directive, the Court said

EU Law

that harmonisation “necessarily presupposes EU-level action”, and similar statements were made in Vodafone and Alliance for Natural Health. Indeed, the Court has never found an EU act in breach of the principle of subsidiarity (Davies). Moreover, often, the Court aligns itself “uncritically” with the judgments of the political institutions, as in Alliance for Natural Health where it accepted the subsidiarity point without addressing the objections based on plausibility, and British American Tobacco where it simply accepted the institutions’ explanatory memo. However, once again, this may not be attributable so much to an inherent failing of JR as to the difficult and political character of the subsidiarity principle itself. As Öberg (2017) points out, subsidiarity is a broad and legally incomplete principle, and it is loosely defined at the conceptual level (Craig), a far cry from the normal clear legal constraints on action that are easily policed. Deciding that an objective is better achieved at EU level requires an inherently political judgment about the appropriate division of competences between the EU and Member States and it is not surprising that the Court displays reticence.

‘REMARKABLY INEFFECTIVE’ – PROPORTIONALITY Finally, the Court’s proportionality review has also been criticised as “perfunctory” (Weatherill), for example based on Alliance for Natural Health, where it said that the legislature could ‘reasonably’ arrive at the conclusion it did, or Poland v. Parliament & Council which reaffirmed the broad legislative discretion afforded to the political institutions, especially in cases involving the Common Agricultural Policy like FEDESA – a “manifest” error is needed.

engaged in light-touch proportionality review looking at the procedural aspects of the measure before finding that it was lawful. This has allowed a greater control over the rationality of the EU institutions’ decision-making (Craig, Davies) even when their substance is too political for heavyhanded judicial control.

‘ONLY VIABLE MEANS’? It is true that the alternative control mechanism – ex ante political control – is limited in effectiveness. Apart from the (procedural) requirement that the EU institutions state in the measure they are adopting whether they believe it complies with subsidiarity and proportionality (as required by Protocol No. 2), the main ex

WE SEE IN ALL SYSTEMS AN EMPHASIS ON PROTECTING RELIANCE AS A WAY OF BALANCING FREEDOM OF CONTRACT WITH DUTIES OF GOOD FAITH AND FAIR DEALING ante political control is the Early Warning Mechanism, limited to national parliaments’ review of subsidiarity of legislative acts only. This is often seen as toothless since the EU legislature can always maintain the measure despite a Yellow Card being raised; indeed the voting threshold is higher in the Yellow Card procedure than under the OLP. Thus Chalmers (2015) and Davies comment that

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the EWM is only a limited political control of subsidiarity. Indeed, of the 3 ‘yellow card’ measures, only the Monti II Regulation was withdrawn, and then only because of the lack of political support – the Commission proceeded with the EPPO and the Posted Workers Directive. Although Cooper has noted the extensive and dynamic interparliamentary cooperation before the Monti II yellow card, the EWM is still structurally limited by the absence of a ‘Red Card’ – and for good constitutional reason regarding the balance of power and the Commission’s independence (Dashwood, Schütze, Weatherill).

CONCLUSION: WHAT CAN BE DONE? The preceding discussion has shown that JR by the CJEU is limited in its effectiveness in controlling EU-level rule-making, and that the political controls are also limited. The substance of the statement’s assertion thus seems to be made out. However, the pessimism of the statement should be qualified. The effectiveness of JR is arguably increasing with process review, which Craig argues should be amped up in CJEU JR generally. This further indicates that the limitations on JR are not due to a laissezfaire attitude by the CJEU but the nature of EU JR itself. Ultimately, therefore, the remaining limitations on the effectiveness of JR also have their roots in the CJEU’s respect for its own constitutional limits, as an unelected Court, vis-à-vis the EU’s political institutions. Political and judicial controls are also not ‘alternatives’ – both are needed (Weatherill).

However, it is not all doom and gloom. Particularly in recent times, the Court has engaged in heightened procedural review of proportionality, and this has alleviated the previously marginal standard of judicial scrutiny (Brenncke, Lenaerts). For example, in Vodafone, the Court emphasised the fact that the EU legislature had considered other alternatives in implementing its Roaming Directive and looked at its impact assessments, and similarly in Luxembourg v. Parliament & Council emphasis was placed on the legislature having taken the relevant factors into account. Notably, this applies to allow the CJEU to exercise meaningful control even over political issues, such as the recent Gauweiler case concerning the OMT – as Hinarejos (2010) notes, the Court

EASTER 2019

Essays

International Law

INTERNATIONAL LAW ‘A civil war is raging in the State of Mesopotamia between a repressive government led by Colonel Recip and armed opposition forces who seek the overthrow of the government so that they can take control of the rich resources of Mesopotamia. Goko Baram, a terrorist group, takes advantage of the chaos during the conflict, and seizes large areas of territory. It proclaims a Caliphate over large areas of Mesopotamia and the neighbouring State, Akad. Members of Goko Baram fire rockets into Akad. They also threaten to carry out small-scale terrorist attacks in the powerful State of Tianzhu because it has supported Colonel Recip for many years. The UN Security Council authorizes the use of ‘all necessary means’ to protect the civilians of Mesopotamia from threat of attack. Tianzhu relies on this authorization to attack government forces and to overthrow the regime. Tianzhu continues to carry out large-scale air strikes against the Goko Baram terrorist group in Mesopotamia, saying that it is acting in collective self-defence of Akad. However, Akad has good relations with Colonel Recip and it calls on Tianzhu to cease its actions. Tianzhu then carries out drone attacks on the leaders of Goko Baram in Mesopotamia, saying that it is acting in self-defence against imminent attacks against its nationals in its own territory.’ Advise Tianzhu whether its use of force is lawful.

Ernest Goh

TIANZHU (T) ATTACKS MESOPOTAMIA (M) GOVERNMENT FORCES AND OVERTHROWS REGIME Whilst the starting point is that the unilateral use of force is banned, per Art 2(4) of the UN Charter which Nicaragua

informs is customary international law, T may argue that by virtue of the UN Security Council (SC)’s authorisation the position is otherwise. Whilst there was once doubt as to the constitutional basis for the SC’s authorisation for the use of force – for instance in Korea in the Cold War – there is now no doubt that it is competent to

do so. The first question is if in fact it has. It is thought so: the phrase “all necessary means” is reasonably taken, and has in fact been taken, to encompass the use of force – as against Iraq in UNSC Resolution 678 and Libya in Resolution 1973. So T is authorised to use force. The second question however is if T has exceeded

International Law

the UNSC’s remit, which confines the “all necessary means” to the protection of civilisans of M from threat of attack. It is submitted that here M’s claim wills tumble because it is not clear that the overthrowing of the regime was necessary. An analogy may be drawn with the events in Libya, which Bannelier-Christakis notes is suspected to have been ultra vires Resolution 1973 because the authorisation was to protect civilians from “threat of attack” but instead the US and UK aided the rebels and overthrew Gaddafi. Whilst here T has not directly aided or collaborated with the opposition forces, the broader point stands that it is not allowed to go beyond what is necessary to protect M’s civilian forces from the threat of attack; regime change certainly seems unnecessary.

THERE IS NO RIGHT TO USE FORCE UNILATERALLY FOR HUMANITARIAN PURPOSES Second, T may rely upon lawful request, but this is simply implausible. Although there is a civil war it does not seem that the government led by Colonel Recip has lost its recognition as the legitimate government; moreover, there is no indication of any request by the opposition group even if – implausibly – they are to be regarded as the government. Third, T may argue that it is permitted to use force to engage in humanitarian intervention: either this is compatible with Art 2(4) because not directed against territorial integrity or political independence, or a customary right has emerged pursuant to which T acts lawfully. The common denominator in both guises of argument is the need for a requisite minimum level of state support – either as subsequent state practice for the purpose of treaty interpretation (Art 31(1)(3)(b), Vienna Convention of the Law of Treaties) or for the general state practice which, coupled with opinio juris, can modify customary law. There is simply no evidence of state support for an autonomous doctrine of humanitarian intervention: the UK’s and Belgium’s arguments in defence of their conduct in Kosovo was roundly condemned by Russia, China, and the Non-Aligned Movement; the same is true of recent uses of force in Syria, for instance in April 2017 or in Douma in 2018. So there is no right to use force unilaterally

for humanitarian purposes – as many, such as Akande, conclude. Indeed the ICJ in Nicaragua seemed skeptical of the suitability of force for the accomplishment of humanitarian goals.

T USES FORCE AGAINST GOKO BARAM (G) IN M OUT OF COLLECTIVE SELF-DEFENCE OF A This argument is so implausible that it is not even necessary to consider if A has the right to use force against G in M – it is sufficient to see if, even assuming that it does, T is thereby acting lawfully. There are some fundamental problems with T’s use of force in M on the pretext of A’s collective self-defence. First, A has not declared itself victim of an armed attack within the meaning of Art 51 of the UN Charter; nor has it invited T to use force for the purpose of its self-defence (Nicaragua). In fact, we are told that A tells T not to use force in M because T has good relations with Colonel Recip. Second, even if this were not the case, T would only be authorised to use force in A’s territory, not to engage in drone strikes in M. The analogy is with Iraq and the USA: Iraq has lawfully requested the US to use force for its collective selfdefence against ISIS in its own territory, but this cannot translate into a right by the US to use force against ISIS in Syria. Just as the Iraqi government cannot consent on Syria’s behalf so too A cannot consent on M’s behalf. Third, with the air-strikes operating on a “large scale”, there are question marks as to compliance with the necessity and proportionality criterion (Nuclear Weapons). Fourth, it is not said that T informed the UNSC (Art 51); this may lead us to infer that its use of force is not in legitimate self-defence. There is no real doubt that air strikes constitute the use of force under Art 2(4); as T is not covered by the exception in Art 51, its conduct is unlawful.

T USES FORCE ON PRETEXT OF OWN SELF-DEFENCE

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pre-emptive or anticipatory self-defence, as it has. As to the more restrictive version of “anticipatory” self-defence, there is a good case for saying that it is now permitted, following the events in 9/11 and the widespread supported given to Operation Enduring Freedom although it was pre-emptive in nature. But it seems that, as T is not certain when or even whether the attacks will occur, it cannot rely on anticipatory self-defence but will either have to stretch the meaning of “imminence” to be defend other than in a temporal sense, as US Legal Advisor Brian Egan did, or rely explicitly on pre-emptive self-defence. Both are, it is submitted, untenable. They do not enjoy widespread state support; only the US has argued in favour. The UN High-Level Panel of Experts rejected the doctrine. The US’ use of force against ISIS on the basis of individual selfdefence has been condemned. So, there is no doctrine of pre-emptive self-defence and so T cannot use force to G prior to an armed attack by it or at least a certain an imminent threat. Second, the threat is only to engage in “small-scale attacks” such as not to meet the “scales and effects” requirement of an armed attack (Nicaragua). Third, it is still not clear that a non-state actor not “sent by or on behalf of a state” (Nicaragua) can carry out an armed attack. Arguably UNSC Resolutions 1368 and 1373 recognise that they can, but the Court in Wall and DRC v Uganda thought otherwise. Although Judge Higgins in Wall dissented, he accepted that this was the legal position. Fourth, even if T can lawfully use force in self-defence against G, it does not follow that it can do so on the territory of a noncomplicit third state, here M. Whilst the ICJ in DRC v Uganda avoided the question the better view is that no such right exists. Brian Egan’s “unwilling and unable” doctrine, adopted as regards Syria and ISIS, has been roundly rejected by for instance Russia and China.

Now, T seeks to justify its use of force against G in M on the basis of individual self-defence. There are several problems with this claim. First, it is clear that T has not been subject to an armed attack within the meaning of Art 51 such as to trigger the right of self-defence. G has only threatened – but not yet actually carried out – attacks in T. At this point T would raise the doctrine of

EASTER 2019

Essays

Legal History

LEGAL HISTORY ‘The dispute between Coke and Ellesmere was not about the need for equity insuitable cases, but about the finality of judgments at common law and the enlargement of Chancery jurisdiction at the expense of the law courts.’ (BAKER) Discuss.

Elizabeth Huang

INTRODUCTION The emergence of the ‘English-side’ jurisdiction from the Chancery in the 1300s, consolidated by a Proclamation of Edward III in 1349 was to set in train the typically English, rather idiosyncratic development, of an ‘equity’ jurisdiction within the English law. While the Judicature Acts in 1873 led to the procedural fusion of equity and the common law, abolishing at long-last the Court of Chancery (which had become a headache for litigants and practitioners alike - see Bleak House), this point was not reached without much debate and dispute between the judges, kings and chancellors over its long history. This essay argues that while there was clearly a dispute between Coke and Ellesmere (representing the common law judges and Chancery respectively), it was not founded on a theoretical or doctrinal basis i.e. any ‘need for equity’ but was ostensibly a dispute about the role of the Chancery within the court structure and the encroachment of Chancery jurisdiction. However, if we dig deeper into the political and historical context, even this apparently institutional dispute reveals itself to have been driven by a political power struggle between Crown and courts.

CHANCERY CAT AMONG THE PIGEONS: TRACING THE DISPUTE BETWEEN THE CHANCERY AND THE COMMON LAW COURTS? It is helpful to begin by tracing the history of the dispute between Chancery and the common-law courts. Although parliamentary petitions were being brought as early as the 1400s, complaining that the Chancellor was exceeding his jurisdiction, the most substantial evidence of a dispute between the jurisdictions can be located around the

time of Thomas More’s ascendancy to the Chancellorship in 1530. The primary centre of the dispute was over the Chancery’s issuing of common injunctions after judgment had been given at common law. This caused tension with the common law courts as the Chancery was in effect offering a sort of ‘appeal’ mechanism to litigants, allowing them to ignore the result of a judgment given at common law. Further, the Chancery’s capacity to imprison those who did not obey the terms of the injunction meant that this was a powerful tool and one not easily ignored. It is reported that at the time of his appointment, More met with the common law judges to indicate that he would stop issuing common injunctions if the common law judges themselves would modify and mollify the rigours of the common law - famously, they refused, and this set the stage for the escalation of the conflict that was to culminate in the Earl of Oxford’s Case in 1615. But we are getting ahead of ourselves. The conflict continued and in Finch v Throgmorton (1597), the common law judges held that the Chancery’s issuing of common injunctions was unlawful. Despite this Sir Thomas Egerton (later to become Lord Ellesmere) continued to issue them. The common law judges reacted by using habeas corpus and praemunire to release those imprisoned by the Chancery, even where litigants were clearly unscrupulous characters - see the notorious case of Glanville v Courtenay (1604). This clearly indicated an escalation of the dispute, as it began to look like the great courts of the realm were directly interfering with and undoing each other’s judgments. Matters came to a head in the Earl of Oxford’s Case, litigated several times over a question of land ownership. In the end, it was the Chancery which had the final word - Lord Ellesmere’s judgment, drafted in

conciliatory tones, asserted the Chancery’s right to issue common injunctions. This was bolstered by a declaration by James I that praemunire be forbidden to be used against the Chancery, and a later decree in 1616 asserting the ‘precedency’ of the Chancery. Maitland has described this as the ‘complete victory’ of the Chancery over the common law courts. Thus, we have a brief outline of the dispute between the Chancery and the common law courts. The next section of the essay examines what the causes of the dispute were.

POLITICAL MACHINATIONS AND PERSONAL DISPUTES: EXPLAINING THE CORE OF THE CONFLICT? Here I propose to proceed by consideration of four possibilities: (i) a dispute about the proper application of equity; (ii) a dispute about the finality of judgments; (iii) a dispute about the scope of the Chancery jurisdiction; (iv) a dispute about something else? The proper application of equity It seems fairly clear that the dispute between the courts was not primarily a theoretical or doctrinal one about the concept of equity or its appropriate application. Ibbetson, in examining Lord Ellesmere’s judgment in the Earl of Oxford’s Case points to its lack of theoretical sophistiction and weak attempt to provide any reasoned justification for the Chancery’s application of equity. His judgment offers a fairly co-operative vision of equity and the common law, describing it as to ‘correct men’s consciences’ and ‘mollify the rigour of the common law’. Presented like this, equity is envisioned as a complement, rather than contrast to the common law.

Legal History

Indeed, this trend can be seen from the earliest emergence of the notion of equity in Christopher St-German’s Doctor and Student in 1529 - there equity was proposed as something inherent in interpretation of the general law as applied to specific human circumstances, linked to Aristotelian philosophical theory. Later in 1579, in his note on Evnston v Studd, Edward Plowden was to link this with the common law notion of the ‘equity of a statute’ i.e. the idea that judges should interpret the statute with regard to its spirit and not just to the letter. Thus we see that from its earliest emergence, equity was a concept seen as a complement to the common law. The dispute in this case between Chancery and the common law did not seem to challenge the notion of equity itself or the appropriateness of its use in suitable cases. The work of the Chancery, as Maitland has suggested, most likely originated exactly in the provision of justice where the common law was inadequate. Further, Lord Ellesmere’s judgment in the Earl of Oxford’s Case also suggests that equity was still seen (despite references to the ‘common course’ of the Chancery in Bertie v Herenden (1560] and ‘precedent’ in cases like Cooke v Wootton (1565)] as acting in particular cases, rather than providing an alternative scheme to the common law. Macnair has pointed out that if we understand equity as relating to the ‘conscience’ i.e. private knowledge of the judge and defendant, this also sheds light on the scope of the equity jurisdiction as operating in particular cases. Finally, and most fundamentally, as Ibbetson and Fortier have pointed out, it is not clear that judges or practitioners were in fact working with any coherent conception of equity to begin with - the concept lacked a settled core and its meaning remained contested remarkably late into its history. Given that the scope of equity was itself unclear (the matter having been further muddled by Plowden’s conflation of two slightly different notions in 1579], it seems unlikely that the judges were engaged in any highly sophisticated theoretical dispute. The finality of judgments The centrality of the issue of the finality of judgments is one emphasised by Maitland, who argued that it was necessary that the Chancery establish itself as capable of having the ‘last word’, if it were to be capable of developing into a fully-fledged equity jurisdiction. In some senses, this is clearly correct - for equity to operate to mollify the rigours of the common law, it would make little sense unless the Chancery’s judgments could not be overturned by the common law courts themselves. The issuing of common

injunctions can be seen as an illustration of the Chancery attempting to assert this ‘primacy’ over the common law courts. Macnair has noted interestingly that in other jurisdictions, ‘Chancery-type’ courts in fact often became the appellate courts, which indicates the nature of the relation between equitable ideas and the possibility of a developing hierarchy within a nascent judicial framework. What might explain the resistance of the common law courts to the Chancery having the final say? This could be to do with the reluctance of common law judges to give up power and control over cases - but this seems like a rather thin explanation. Given, as we have noted, that the dispute was not one of principle, we must look somewhere else to explain the spirited resistance to this conclusion put up by the common law judges. The scope of the Chancery jurisdiction Could the issue have been one of encroaching Chancery jurisdiction? To consider this issue, the broader court landscape in the 1500s and 1600s must be considered. Following a spate of both procedural and substantive reforms in the King’s Bench in the 1500s (e.g. the extensive use of fictional Bills of Middlesex to extend jurisdiction to common pleas, and the development of substantive actions such as

THE DISPUTE BETWEEN THE CHANCERY AND THE COMMON LAW COURTS ILLUSTRATES NICELY THE COMPLEXITY OF LEGAL HISTORY assumpsit f.or non-feasance), the Court of Common Pleas was clearly anxious about its declining share of the ‘judicial pie’ and may well have been concerned about further business being snatched by the Chancery. However, when we look at the issue of common injunctions such reasoning does not make sense. The issue was not that the Chancery were taking cases away from the Common Pleas, but rather than the Chancery was ’overruling’ decisions by the Common Pleas - thus the dispute is not so much about what we might think of as horizontal jurisdiction, but rather one that had a more vertical dimension. Thus it seems unlikely that the dispute was primarily motivated by jurisdictional concerns. Something else What then might explain the roots of the dispute? One point to make is that there was clearly personal antagonism between

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Coke and Ellesmere. When Francis Bacon was later appointed Chancellor, he noted that the issue had been one between the two men, and now that they had passed, the dispute had passed away with them. Though it may seem incredulous to our modern eyes that a personal antagonism might be played out on the level of national institutions, it must be understood that during the early modern period, the community of practitioners was much smaller and state organs were often being directed by people who had significant interaction and familiarity with each other. But why would the king himself intervene so actively in a personal dispute of this kind? A richer and more interesting explanation is proposed by Baker, who points to the political context of the time. We know that Coke and James I had previously come into conflict about the use of the royal prerogative, particularly in matters of justice. It may be the case that James I wished to weaken Coke’s influence and so, by siding with the Chancery, he could apply his sovereign authority to bolster the influence of the court more sympathetic to the Crown while undermining the authority of those who criticised his extensive vision of royal power. This would explain a number of aspects of the dispute: the lack of theoretical depth, the strong resistance by the common law judges (who may have seen the issue as not just one of jurisdiction or law, but as raising critical questions of royal interference in matters of justice) and the assertive intervention by the king in 1616. The true basis of the dispute between Coke and Ellesmere may thus have been one grounded in different views about the appropriate extent of royal power, and the implications this might have for the way in which justice should be delivered to the common people.

CONCLUSION The dispute between the Chancery and the common law courts illustrates nicely the complexity of legal history. While lawyers’ legal historians may tend to focus on the doctrinal and conceptual issues underlying various disputes, it is clear that we must also take events in their social and political context. In this case, it is the historians’ legal historian who may well prevail. It also demonstrates the way in which political and extra-legal forces may influence the development of the law and its institutions. In the end though, although Maitland thought that the Chancery had come out on top - it is perhaps the common lawyers who had the last laugh. The procedural problems which came to plague the Chancery eventually led to its abolition and assimilation into the common law.

EASTER 2019

Essays

Law of Tort

LAW OF TORT ‘Ada was a wealthy computer enthusiast, who ran a computer repair business from her large home. She also collected old computers and had set aside the ground floor of her house as a computer museum; her repair workshop and living accommodation were on the first floor. Entry to the museum was free, as (for tax reasons) Ada funded its upkeep from the profits from her repair business. Ada allowed a group of 12-year-old school children and their teacher Bilbo to visit the museum for a school trip. She put up a notice in the entrance hall which said, ‘Be careful! Do not touch exhibits! Ada does not accept responsibility for death or personal injury to anyone visiting the museum, however caused.’ On the coach journey to the museum, Bilbo had told the children they were not allowed to go upstairs in Ada’s house, but Ada forgot to repeat this when they arrived. Inside the museum, 12-year-old Chip suffered burns to his hand and his school blazer from an electric shock when he touched a cabinet containing a working antique computer. Ada had employed Dotard, an electrician, to check it, but Dotard was unfamiliar with the old wiring system and so did not realise it was dangerous. Another child from the school group, Elsie, who had suffered burns as a toddler, saw the accident happen, was traumatised and now suffers from nightmares. In the commotion, Bilbo was distracted and did not notice 12-year-old Felicia (who had not been listening to the announcement on the coach), wander out of the museum and upstairs looking for the lavatory. Out of curiosity, Felicia entered the room labelled ‘Repair Workshop’; unfortunately, all the electric lighting was temporarily off in the house in the aftermath of Chip’s accident, as a result of a fuse blowing. In the darkness, Felicia bumped into the sharp corner of a workbench and badly bruised her hip. Felicia was so irritated that, having found a lavatory and noticed that the tap in the basin was leaking slightly, she deliberately blocked the basin with tissues. The following morning, Ada discovered that the blocked basin had caused a flood in the museum below, ruining many of her old computer exhibits. Ada is now suffering from depression as a result.’ Advise the parties as to their rights and liabilities in tort.

Aaron Gan

C V A: OCCUPIERS’ LIABILITY ACT 1957 LEGAL BASIS DISPUTES C may bring a claim under the 1957 Act for personal injury (burns) and property damage (blazer). A is straightforwardly the occupier of the home, satisfying the test of sufficient control under Wheat v E Lacon. The home, including the museum, is a fixed structure under the terms of s1(3)(a). C is a visitor with express permission to be there (s2(1), stated in Harvey v Plymouth). The question is whether A breached the common duty of care. Per s2(2), the test is whether, as a matter of objective fact, visitors are reasonably safe (as restated in West Sussex CC v Pierce). It may be argued that the wiring of the antique was a danger due to the state of the premises. If so, then prima facie, A has failed to take any positive steps to see to it that C was reasonably safe, because A had failed to erect any barriers to the danger, or otherwise prevent C from exposure to

the dangerous antique. However, A may argue by analogy to Tacagani v Cornwall that s2(2) requires that the visitor (C) also take reasonable care for his own safety, i.e. the occupier (A) is entitled to expect this. Even so, A is aware that they are children and so may need to take into account their particular vulnerabilities, which she has not (AB v Pro-Nation Alliance). Furthermore, per s2(3)(a), A should have been prepared for C to be less careful than adults. Here, by analogy to Glasgow Corp v Taylor and Phipps v Rochester respectively, the antique could have allured C by the doctrine of allurement, and although C was accompanied by B, it may not have been obvious even to an adult that a mere antique computer would be dangerous (contra Tomlinson v Congleton BC). Thus, A has not made the premises safe for even a child accompanied by an adult (Bourne Leisure v Marsden). Prima facie, A has breached the s2(2) duty.

The next question is whether A has discharged the common duty of care by (i) employing an independent contractor (D) and (ii) giving a warning by the notice. In respect of (i), Nolan reads Haseldine v Daw and Woodward v Mayor of Hastings to mean that the more specialised or

THE MORE SERIOUS THE DANGER, THE MORE SPECIFIC MUST BE THE WARNING complicated the delegated task (to D here), the more likely A would have discharged the common duty of care merely by selecting a competent contractor. It is not stated in the facts but, as D is a professional electrician, it is assumed that A has indeed satisfied herself of D’s reputation, possibly prima facie discharging the s2(2) duty (Fisher v Harrods – duty to satisfy oneself of D’s reputation). Since the task was a specialised

Law of Tort

one, it would not have been reasonable under s2(2) and s2(4)(b) to expect A to check D’s work (Haseldine v Daw). Thus, A is not to be treated without more as answerable for the danger posed by the computer (s2(4)(b)). In respect of (ii), A’s notice, which includes a warning, must enable C to be reasonably safe, per s2(4)(a). Prima facie, the warning was indeed specific enough to enable C to be reasonably safe (Westwood v Post Office), since it made specific and particular reference to the danger – the exhibits. Contra Westwood, A’s sign was not just a generic ‘keep out’. However, the more serious the danger, the more specific must be the warning (Rae v Mars). Here, A did not explain the danger relating to the exhibits, why it was dangerous or what level the danger was at. It is arguable under Rae v Mars that the warning was insufficient in light of the danger. Assuming A has not discharged the s2(2) duty, the next issue is whether the exclusion of liability is effective at law. At common law, A must take reasonable steps to bring the exclusion to the attention of C (Ashdown v Samuel Williams & Sons Ltd). By putting up the notice at the entrance hall, A has likely done so. At common law, then, the exclusion of liability is prima facie effective because by analogy to the notice in White v Blackmore (no liability ‘howsoever caused’), A’s exclusion clause for liability ‘however caused’ is likely prima facie effective. However, the exclusion clause is further regulated by the Consumer Rights Act 2015. This is because C is a consumer under s2(3) as C is acting outside the course of his trade – it will be presumed that studying is not a professional trade; and A is a trader under s2(2) because her running of the museum is considered acting for the purposes of her trade. The fact that entry was free is not relevant to the statutory definition of ‘consumer’. Per s65(1), then, A may not exclude liability for death or personal injury, thus that part of the notice is ineffective. In respect of property damage, the exclusion does not fall to be considered because A had not excluded it. Further, it is submitted that s66(4) does not disapply s65(1) because C is visiting A for educational rather than recreational purposes, which is outside the ambit of s66(4). Thus, C can recover for the medical and other costs related to his hand, as well as the damage to his blazer which A forgot to exclude.

C V D: NEGLIGENCE Briefly, electricians owe a duty in the exercise of their calling not to cause foreseeable personal injury or property damage by their work (by analogy to Stennet v Hancock; Haseldine v Daw). This may be analogous to Clay v AJ Crump & Sons Ltd, and is certainly covered under the rule in Donoghue v Stevenson. The standard of care for professionals is high (Glasgow Corp v Muir), and the reasonably competent professional would have taken further steps to check if he was unsure. But-for causation of the injury to C is straightforwardly established (Barnett v Chelsea Hospital), and D’s negligence was at least an effective cause of C’s injury (Howmet v Economy Devices).

E V D: NEGLIGENCE Similarly, D owes a duty to E not to cause personal injury, which includes psychiatric harm (Page v Smith). Assuming that E was in the zone of physical danger (White v Chief Constable of South Yorkshire Police), she is considered a primary victim. If so, the questions of breach and causation would be analysed analogously with C v D (above). The regular suffering of nightmares is likely to constitute a recognised psychiatric condition (Alcock v Chief Constable of South Yorkshire Police). However, D would argue that since physical harm was not foreseeable to E, a duty in respect of psychiatric harm will not be owed (Bourhill v Young).

F V A: OCCUPIERS’ LIABILITY ACT 1984 By exceeding the spatial limits of implied permission set by A, F becomes a trespasser under the 1984 Act (Harvey v Plymouth; Tomlinson v Congleton BC). Although A had not explicitly communicated this, nor was F aware of the spatial restriction, it is submitted that since this was A’s house, there was an implied restriction from going upstairs to the ‘house’ part of the premises, by analogy to the famous dictum that when we invite someone, ‘we do not invite them to slide down the banisters’ or wander elsewhere in this case.

PER INCURIAM

actual knowledge available to A (Swain v Puri), viz. that a group of children would be downstairs, this is very possible. Per s1(3) (c), it will be assumed that since the sharp corner is dangerous, A should prima facie be expected to offer some protection. Under s1(4), A had not taken any reasonable steps at all to see to F’s safety. However, it may be that the sharp corner is simply not a danger that A is expected to offer protection against. In Rochester Cathedral v Debell, it was held that the occupier need not rectify a protruding brick on the floor, and the sharp corner of the workbench is analogous to Rochester. If A has breached the s1(4) duty, the next question is whether liability can be excluded under the 1984 Act. North argues that Parliament would not have intended the trespasser to be in a better position than the lawful visitor; and Winfield & Jolowicz argue that on grounds of consistency, exclusion of liability should be governed by both UCTA and CRA. Even if so, the above analysis applies and A may not exclude liability for personal injury, which F might then recover for.

A V F: NEGLIGENCE F owes a duty at common law to A to take reasonable care not to cause property damage (Spartan Steel v Martin). By intentionally clogging the basin, F has gone beyond negligence and certainly breaches this duty (Blake v Galloway, stating that intentional wrongdoing or recklessness amounts to a breach). But-for causation is made out (Barnett v Chelsea Hospital). On remoteness, since some property damage was foreseeable under The Wagon Mound (No. 1) test, the manner of infliction by flooding and the extent of harm need not be (Hughes v Lord Advocate). A can recover for damage to the computers. If the property damage caused her psychiatric illness, Attia v British Gas is authority for the proposition that psychiatric harm consequent on property damage is recoverable, so long as it was foreseeably caused under Corr v IBC Vehicles.

The first issue under the 1984 Act is whether any duty arises under s1(3)(a). Per s1(3)(a), A was likely aware of the sharp corner of the workbench. Per s1(3)(b), A may have had reasonable grounds to believe that a child might wander upstairs. Based on the

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