Law Essays – International Law

Explain and evaluate the role of International Law in the development of the concept of human rights.

A. Introduction

The need of co-operation and mutual development has lead the countries of the international community to create a legislative net which would have as basic task the regulation of the relationships between them. At a next level, the bodies that were created to handle these provisions and to supervise their application faced the problem of the absence of a suitable legal environment that could guarantee and protect their operation. The only solution seemed to be the extension of the law provisions that regulated the relationships between the States to these international bodies. In this way, the international law was constructed and came into force for every issue that presented elements of international character.

We should notice that the international law is no longer restricted to the above described area, but it has been extended so that it can offer protection against criminal actions that are taken place against the humanity even if these actions are made by individuals. The judicial body that has the responsibility of this task is the International Criminal Court.

Although the protection of the human rights has always been a priority – as declared – both to the nationals and the international law, there are certain circumstances under which the application of the law is becoming difficult and sometimes it is finally avoided. This is often explicated as a result of a ‘precautionary politic’ that is necessary in order to protect the human rights of the majority of residents of a state. One of the recent measures that have been applied towards this purpose is the detention of a person for reasons of safety of the public and with no relevant decision or order of a court. According to R.K.M. Smith (2005, p.240), the deprivation of a person’s liberty can only be acceptable when there are serious reasons that impose the detention as the only suitable measure. In any case, the whole procedure has to be done in accordance with the relevant legal provisions.

There are also a series of human rights that are constantly threatened by the actions of states or individuals. Furthermore, there are a lot of cases that this threat has been developed into a violation due to the absence of specific authorities for such a task. The international bodies (authorized by the international law to manage its provisions and to guarantee the protection of the human rights for the international community) can only handle a small number of relevant reports based on the reports of the states on specific facts of violations (or threats) of human rights. The role of these bodies, although can be characterized as very important, is very limited and is being formulated under the pressures of the current economic and political powers. However, according to M. O’ Flaherty (2002, p.1-2) the reporting procedure to a non-governmental organization can help the State to clarify the problem (when constructing an analytical report for the case) and perhaps come to a solution without the interference of the NGO. In case that the State itself cannot resolve the problem, then it can report it to an international body and in this way it will have the support and the advice of a team of international experts.

Although it seems that the difficulties following the application of the international law tend to grow in strength and number, the efforts of the international community have helped the creation of a legal basis for the protection of the human rights and, in some cases, have succeeded a satisfactory restoration of the damage caused by the rights’ violations.

B. Legislation related with the protection of the human rights – national and international law

In UK the basic legislation concerning the Human Rights protection is the Human Rights Act of 1998 whilst a lot of other Acts have been signed in order to cover specific problems related to the recognition and the protection of the above rights. According to article 2 of the Human Rights Act of 1998 ‘Everyone’s right to life shall be protected by the law’ (article 2, par.1). This article presents the general borders of the legislation aims and creates an obligation for the authorities and the individuals to respect a person’s life and existence. The articles that follow this fundamental provision are being addressed towards particular rights and freedoms of a person, like the right to liberty and security (article 5), the right to a fair trial (article 6), the right to respect for private and family life (article 8), the freedom of thought, conscience and religion (article 9), the freedom of expression (article 10), the freedom of assembly and association (article 11), the right to an effective remedy (article 13) and so on (see 1580 [2004], R (on the application of Trailer and Marina (Levin) Ltd v Secretary of State for the Environment, Food and Rural Affairs and another, Court of Appeal, Civil Division, 19 [2005], R (on the application of Hoxha) v Secretary of State for the Home Department; R (on the application of B) v Secretary of State for the Home Department and 1658 [2004], R (on the application of Clays Lane Housing Co-Operative Limited) v The Housing Corporation, Court of Appeal, Civil Division, 1748 [2004], Malcolm v Benedict Mackenzie (A firm) and Another, Court of Appeal, Civil Division and 2866 [2004], W v Westminster City Council and Others, Queen’s Bench Division.

There are also articles that do not offer a right but they impose a behaviour that have to be in accordance with the terms included in them. In this way, it is stated that the torture, the slavery and the forced labour are absolutely prohibited (articles 3, 4) whilst no punishment should take place without lawful authority (prerequisite for a punishment that the action made was recognized as a criminal one at the time that the crime was made, article 7). It is also stated that any discrimination and any restriction on political activity of aliens should be avoided (articles 14, 16). The above general Act has been interpreted and completed through other Acts that have been signed in order to provide sufficient protection of the rights in cases that are characterized by complexity and ambiguity. As an example we could mention the Prevention of Terrorism Act 2005, which introduces alterations to the right of the liberty of a person as it is described by article 5 of the Convention for the Human Rights, by permitting the detention of a person in cases when the existing evidence is enough to create the suspicion of a behaviour that could be a threat for the lives of other people (for the public). The very important element, which is introduced with the above Act, is that the existence of a relevant Court decision is not necessary. Other amendments to the Human Rights Act of 1998 are contained in the following Acts: the Constitutional Reform Act 2005, the Appropriation Act 2005 and the Asylum and Immigration Act 2004 (see 19 [2005], R (on the application of Hoxha) v Secretary of State for the Home Department; R (on the application of B) v Secretary of State for the Home Department).

In the level of European Union, the basic legislation concerning the human rights is the European Convention for the Protection of Fundamental Rights and Freedoms of 1948. The above convention has been amended by a series of protocols (no. 4, 6, 7, 11 and 12) and it presents the basic rules on which the national legislations of the member states should be adapted. The article 2 of the above Convention recognizes the right to life for every person and the following articles are covering the rest of the human rights’ areas of application, such as: the liberty (article 5), the private and family life (article 8), the thought, the conscience and the religion (article 9), the expression (article 10) and so on. Like the Human Rights Act of 1998 (UK) the European Convention, also imposes certain obligations regarding the application of the human rights, like the prohibition of torture (article 3), the prohibition of slavery and forced labour (article 4), the prohibition of discrimination (article 14), the prohibition of restrictions on political activity of aliens (article 16) and so on. The protocol No. 4 to the above Convention referred to specific areas of human rights, like the freedom of movement (article 2) and the right to keep the personal liberty in cases that there is a debt (prohibition of imprisonment for debt, article 1). The basic provision of the protocol No. 6 to the Convention is the abolition of the death penalty (article 1 of the protocol) whilst the protocol No. 7 to the Convention contained provisions that were related with the rights of a person facing a criminal punishment (articles 2-4) and with the – private law character – rights of the spouses (article 5). A series of relevant decisions have been published accordingly like: C-17/98, Emesa Sugar (Free Zone) NV v. Aruba, C-112/98, Mannesmannrohren-Werke AG v. Commission of the European Communities, C-274/99, Bernard Connolly v. Commission of the European Communities and T-9/99, HFB Holding fur Fernwarmetechnik Beteiligungsgesellschaft mbH & Co KG and Others v. Commission of the European Communities.
             
In addition to the above provisions, the international community has actively participated in the protection of human rights by the creation of a legal environment that can guarantee the avoidance of extremely violations of the rights and an independent (to the measure that this is achievable) valuation of the problem in cases that are brought before the relevant Bodies through the states’ reports.

C. Problems related with the recognition and the protection of Human Rights by the international law

Human Rights are by their nature a sensitive and transparent element of a person’s life. Although there are a lot of legislative work made for their protection, the scope and the objectives of the relevant provisions have not been fulfilled. The victims of the violations of the human rights are by fact the persons that present a weakness, physical, mental, of gender, of colour, of nationality or of other kind. The first to be violated are usually the children who although suffering are by nature unable to stand for their right. The person who is responsible for their protection has not, in many cases, the strength or the means to achieve such a task and the violation can continue for a long time. Smith A. (2004) examines the types of the offences that occur against the children and refers to specific problem that of the recruitment of children as soldiers. In her paper, she examines the legal aspects of the specific crime and presents the reasoning used by the Court to establish its decision in a specific case (Hinga Norman, 14/2004, Special Court for Siera Leone). After careful consideration, the Court decided that the recruitment of children to work of such a kind could attract individual criminal responsibility for the persons that were involved to this activity. On the other hand there are many reasons that could explain the difficulties that occur to the application of the international law provisions that are referring to the children.  Bhabha J. (2002) sees as a possible reason the general disadvantage of the children as a vulnerable and she argues that separated children can be accepted as an asylum seeker to a developed country but there are little guarantees for their safety at a next level. In a previous paper, Bhabha (Bhabha J., Young, W., 1999) had examined the conditions under which the children as unaccompanied asylum seekers are granted asylum according to the relevant U.S. guidelines. One of the most important development included in the new provisions, was the possibility of appointment of an individual as a guardian of a child until the relevant process is being finished.

Furthermore, the violation of women’s rights (especially of their human rights) is constant and extended in multiple levels. Ankenbrand (2002) examined the position women seeking asylum under the German Law. He present the claims of women that are found in this position and he come to the conclusion that although the revision of the existing law has been admitted as necessary from the relevant legal bodies, there is not a positive activity to that direction.

The violation of the right of religion seems to have been extended and the main problem is that of the specific description of the conditions that constitute a ‘religious practice’. Musalo (2004) argues that the prosecution for reasons of religious beliefs cannot be clearly defined today which comes in contrast to the simplicity of the relevant terms that the 1951 Convention had adopted.

A very important matter related to the protection of the human rights is that of the extension of the relevant provisions of the international law. McGoldrick (2004) accepts that the International Covenant on Civil and Political Rights (ICCPR) should be characterized as the basic institutional body regarding the supervision on the application of the terms of the international treaties that have been signed for the human rights. As of the specific category of refugees, the protection of their rights in the interior of the States is guaranteed by the operation of special institutional bodies that are authorized to examine each case that is being reported to them and proceed to a solution in the legal frame that has been indicated from the law for the specific problems. As an example, Daley (K. Daley, N. Kelley, 2000) refers to the existing relevant bodies in Canada, which are the Immigration and Refugee Board (IRB), the Convention Refugee Determination Division (CRDD) and, of course, the higher courts of the state that have the jurisdiction to review the decisions of the CRDD.

The main problem related with the application of the international law in the area of human rights seems to be the extension of the phenomenon of violation of these rights. Due to the difficult and complex economic and political environment of many states around the world, the supervision of the application of the Human Rights’ provisions is usually impossible. The most common route for a problem to be put under examination and to be given a resolution is usually the report that a state submits regarding a specific fact of violation of rights. But the volume of work and the depth of the problem (which needs to be analyzed and examined in detail) prevent the permanent resolution of it and the solution that is been proposed to the state has usually a provisional character.

D. Conclusion

The recognition and the protection of the human rights have been the subject and the aim of a lot of legislative provisions both to the national and to the international area. The relevant laws have achieved to cover – at least from a scientific point of view – almost all the aspects of the problem. However, the weakness of the law – and mostly of the international one – seems to be the absence of stability regarding the procedures followed, the penalties that are imposed and the speed in providing a resolution at every case that is brought to the international institutional bodies. On the other hand, the existence of a series of authorities that are responsible for the application of the international law and their power to impose punishment when a violation occurs, create the image of a well-organized and powerful society, which can provide to its citizen the security and the protection they need to survey.

Explain and evaluate the role of International Law in the development of the concept of human rights.

A. Introduction

The need of co-operation and mutual development has lead the countries of the international community to create a legislative net which would have as basic task the regulation of the relationships between them. At a next level, the bodies that were created to handle these provisions and to supervise their application faced the problem of the absence of a suitable legal environment that could guarantee and protect their operation. The only solution seemed to be the extension of the law provisions that regulated the relationships between the States to these international bodies. In this way, the international law was constructed and came into force for every issue that presented elements of international character.

We should notice that the international law is no longer restricted to the above described area, but it has been extended so that it can offer protection against criminal actions that are taken place against the humanity even if these actions are made by individuals. The judicial body that has the responsibility of this task is the International Criminal Court.

Although the protection of the human rights has always been a priority – as declared – both to the nationals and the international law, there are certain circumstances under which the application of the law is becoming difficult and sometimes it is finally avoided. This is often explicated as a result of a ‘precautionary politic’ that is necessary in order to protect the human rights of the majority of residents of a state. One of the recent measures that have been applied towards this purpose is the detention of a person for reasons of safety of the public and with no relevant decision or order of a court. According to R.K.M. Smith (2005, p.240), the deprivation of a person’s liberty can only be acceptable when there are serious reasons that impose the detention as the only suitable measure. In any case, the whole procedure has to be done in accordance with the relevant legal provisions.

There are also a series of human rights that are constantly threatened by the actions of states or individuals. Furthermore, there are a lot of cases that this threat has been developed into a violation due to the absence of specific authorities for such a task. The international bodies (authorized by the international law to manage its provisions and to guarantee the protection of the human rights for the international community) can only handle a small number of relevant reports based on the reports of the states on specific facts of violations (or threats) of human rights. The role of these bodies, although can be characterized as very important, is very limited and is being formulated under the pressures of the current economic and political powers. However, according to M. O’ Flaherty (2002, p.1-2) the reporting procedure to a non-governmental organization can help the State to clarify the problem (when constructing an analytical report for the case) and perhaps come to a solution without the interference of the NGO. In case that the State itself cannot resolve the problem, then it can report it to an international body and in this way it will have the support and the advice of a team of international experts.

Although it seems that the difficulties following the application of the international law tend to grow in strength and number, the efforts of the international community have helped the creation of a legal basis for the protection of the human rights and, in some cases, have succeeded a satisfactory restoration of the damage caused by the rights’ violations.

B. Legislation related with the protection of the human rights – national and international law

In UK the basic legislation concerning the Human Rights protection is the Human Rights Act of 1998 whilst a lot of other Acts have been signed in order to cover specific problems related to the recognition and the protection of the above rights. According to article 2 of the Human Rights Act of 1998 ‘Everyone’s right to life shall be protected by the law’ (article 2, par.1). This article presents the general borders of the legislation aims and creates an obligation for the authorities and the individuals to respect a person’s life and existence. The articles that follow this fundamental provision are being addressed towards particular rights and freedoms of a person, like the right to liberty and security (article 5), the right to a fair trial (article 6), the right to respect for private and family life (article 8), the freedom of thought, conscience and religion (article 9), the freedom of expression (article 10), the freedom of assembly and association (article 11), the right to an effective remedy (article 13) and so on (see 1580 [2004], R (on the application of Trailer and Marina (Levin) Ltd v Secretary of State for the Environment, Food and Rural Affairs and another, Court of Appeal, Civil Division, 19 [2005], R (on the application of Hoxha) v Secretary of State for the Home Department; R (on the application of B) v Secretary of State for the Home Department and 1658 [2004], R (on the application of Clays Lane Housing Co-Operative Limited) v The Housing Corporation, Court of Appeal, Civil Division, 1748 [2004], Malcolm v Benedict Mackenzie (A firm) and Another, Court of Appeal, Civil Division and 2866 [2004], W v Westminster City Council and Others, Queen’s Bench Division.

There are also articles that do not offer a right but they impose a behaviour that have to be in accordance with the terms included in them. In this way, it is stated that the torture, the slavery and the forced labour are absolutely prohibited (articles 3, 4) whilst no punishment should take place without lawful authority (prerequisite for a punishment that the action made was recognized as a criminal one at the time that the crime was made, article 7). It is also stated that any discrimination and any restriction on political activity of aliens should be avoided (articles 14, 16). The above general Act has been interpreted and completed through other Acts that have been signed in order to provide sufficient protection of the rights in cases that are characterized by complexity and ambiguity. As an example we could mention the Prevention of Terrorism Act 2005, which introduces alterations to the right of the liberty of a person as it is described by article 5 of the Convention for the Human Rights, by permitting the detention of a person in cases when the existing evidence is enough to create the suspicion of a behaviour that could be a threat for the lives of other people (for the public). The very important element, which is introduced with the above Act, is that the existence of a relevant Court decision is not necessary. Other amendments to the Human Rights Act of 1998 are contained in the following Acts: the Constitutional Reform Act 2005, the Appropriation Act 2005 and the Asylum and Immigration Act 2004 (see 19 [2005], R (on the application of Hoxha) v Secretary of State for the Home Department; R (on the application of B) v Secretary of State for the Home Department).

In the level of European Union, the basic legislation concerning the human rights is the European Convention for the Protection of Fundamental Rights and Freedoms of 1948. The above convention has been amended by a series of protocols (no. 4, 6, 7, 11 and 12) and it presents the basic rules on which the national legislations of the member states should be adapted. The article 2 of the above Convention recognizes the right to life for every person and the following articles are covering the rest of the human rights’ areas of application, such as: the liberty (article 5), the private and family life (article 8), the thought, the conscience and the religion (article 9), the expression (article 10) and so on. Like the Human Rights Act of 1998 (UK) the European Convention, also imposes certain obligations regarding the application of the human rights, like the prohibition of torture (article 3), the prohibition of slavery and forced labour (article 4), the prohibition of discrimination (article 14), the prohibition of restrictions on political activity of aliens (article 16) and so on. The protocol No. 4 to the above Convention referred to specific areas of human rights, like the freedom of movement (article 2) and the right to keep the personal liberty in cases that there is a debt (prohibition of imprisonment for debt, article 1). The basic provision of the protocol No. 6 to the Convention is the abolition of the death penalty (article 1 of the protocol) whilst the protocol No. 7 to the Convention contained provisions that were related with the rights of a person facing a criminal punishment (articles 2-4) and with the – private law character – rights of the spouses (article 5). A series of relevant decisions have been published accordingly like: C-17/98, Emesa Sugar (Free Zone) NV v. Aruba, C-112/98, Mannesmannrohren-Werke AG v. Commission of the European Communities, C-274/99, Bernard Connolly v. Commission of the European Communities and T-9/99, HFB Holding fur Fernwarmetechnik Beteiligungsgesellschaft mbH & Co KG and Others v. Commission of the European Communities.
             
In addition to the above provisions, the international community has actively participated in the protection of human rights by the creation of a legal environment that can guarantee the avoidance of extremely violations of the rights and an independent (to the measure that this is achievable) valuation of the problem in cases that are brought before the relevant Bodies through the states’ reports.

C. Problems related with the recognition and the protection of Human Rights by the international law

Human Rights are by their nature a sensitive and transparent element of a person’s life. Although there are a lot of legislative work made for their protection, the scope and the objectives of the relevant provisions have not been fulfilled. The victims of the violations of the human rights are by fact the persons that present a weakness, physical, mental, of gender, of colour, of nationality or of other kind. The first to be violated are usually the children who although suffering are by nature unable to stand for their right. The person who is responsible for their protection has not, in many cases, the strength or the means to achieve such a task and the violation can continue for a long time. Smith A. (2004) examines the types of the offences that occur against the children and refers to specific problem that of the recruitment of children as soldiers. In her paper, she examines the legal aspects of the specific crime and presents the reasoning used by the Court to establish its decision in a specific case (Hinga Norman, 14/2004, Special Court for Siera Leone). After careful consideration, the Court decided that the recruitment of children to work of such a kind could attract individual criminal responsibility for the persons that were involved to this activity. On the other hand there are many reasons that could explain the difficulties that occur to the application of the international law provisions that are referring to the children.  Bhabha J. (2002) sees as a possible reason the general disadvantage of the children as a vulnerable and she argues that separated children can be accepted as an asylum seeker to a developed country but there are little guarantees for their safety at a next level. In a previous paper, Bhabha (Bhabha J., Young, W., 1999) had examined the conditions under which the children as unaccompanied asylum seekers are granted asylum according to the relevant U.S. guidelines. One of the most important development included in the new provisions, was the possibility of appointment of an individual as a guardian of a child until the relevant process is being finished.

Furthermore, the violation of women’s rights (especially of their human rights) is constant and extended in multiple levels. Ankenbrand (2002) examined the position women seeking asylum under the German Law. He present the claims of women that are found in this position and he come to the conclusion that although the revision of the existing law has been admitted as necessary from the relevant legal bodies, there is not a positive activity to that direction.

The violation of the right of religion seems to have been extended and the main problem is that of the specific description of the conditions that constitute a ‘religious practice’. Musalo (2004) argues that the prosecution for reasons of religious beliefs cannot be clearly defined today which comes in contrast to the simplicity of the relevant terms that the 1951 Convention had adopted.

A very important matter related to the protection of the human rights is that of the extension of the relevant provisions of the international law. McGoldrick (2004) accepts that the International Covenant on Civil and Political Rights (ICCPR) should be characterized as the basic institutional body regarding the supervision on the application of the terms of the international treaties that have been signed for the human rights. As of the specific category of refugees, the protection of their rights in the interior of the States is guaranteed by the operation of special institutional bodies that are authorized to examine each case that is being reported to them and proceed to a solution in the legal frame that has been indicated from the law for the specific problems. As an example, Daley (K. Daley, N. Kelley, 2000) refers to the existing relevant bodies in Canada, which are the Immigration and Refugee Board (IRB), the Convention Refugee Determination Division (CRDD) and, of course, the higher courts of the state that have the jurisdiction to review the decisions of the CRDD.

The main problem related with the application of the international law in the area of human rights seems to be the extension of the phenomenon of violation of these rights. Due to the difficult and complex economic and political environment of many states around the world, the supervision of the application of the Human Rights’ provisions is usually impossible. The most common route for a problem to be put under examination and to be given a resolution is usually the report that a state submits regarding a specific fact of violation of rights. But the volume of work and the depth of the problem (which needs to be analyzed and examined in detail) prevent the permanent resolution of it and the solution that is been proposed to the state has usually a provisional character.

D. Conclusion

The recognition and the protection of the human rights have been the subject and the aim of a lot of legislative provisions both to the national and to the international area. The relevant laws have achieved to cover – at least from a scientific point of view – almost all the aspects of the problem. However, the weakness of the law – and mostly of the international one – seems to be the absence of stability regarding the procedures followed, the penalties that are imposed and the speed in providing a resolution at every case that is brought to the international institutional bodies. On the other hand, the existence of a series of authorities that are responsible for the application of the international law and their power to impose punishment when a violation occurs, create the image of a well-organized and powerful society, which can provide to its citizen the security and the protection they need to survey.

Discuss Woolf Reforms Effect On Civil Justice Law Essay

This essay will seek to analyse the Woolf Reforms and in that context will evaluate the overall qualitative impact that they have had on the Civil Justice system. The essay will discuss the background in which Woolf Reforms were passed, the Woolf Reforms, Impact/intention of the reforms, Objective analysis based on criticism (positives and negatives) and finally the essay will conclude by analysing whether the Woolf Reform has actually succeeded in its definitive goal of reducing cost and delay.

Background

In 1995 there was a survey carried out by National Consumer Council [1] which found that 3 out of 4 people who are involved in serious legal disputes were dissatisfied with the civil justice system. It was found that of the 1,019 respondents, 77 percent believed that the system was too slow, 74 per cent stated that the system was too complicated and 73 per cent said that it was unwelcoming and outdated. [2] 

A cursory look at history reveals that Pre-Trial process has been the subject matter of numerous reports and inquiries. Since 1968 there has been the Winn Committee [3] , the Cantley Committee [4] , the massive Civil Justice review 1985-1988 [5] and the Heilbron-Hodge Working party jointly set up by the Bar and the Law Society [6] . These are outside the purview of this Essay as the new system of Civil procedure took effect on the basis of the recommendations made by Lord Woolf in his June 1995 Interim Report [7] and his July Final report, both of which are entitled ‘Access to Justice’ [8] .

Senior members of judiciary have always boldly defended the significance of civil justice and were concerned about the degradation and the problems inflicting the civil justice system [9] . Genn further stated that he was aware of the sorry state of the civil courts [10] . It was in this background of continuous criticism that the previous Conservative Government appointed Lord Woolf to carry out a far reaching review and overhaul the civil justice system. His inquiry is the 63rd such review in the past 100 years [11] . The 3 perennial problems of cost, delay and complexity have plagued the civil justice system for ages and it was these ills that the Woolf reforms sought to redress [12] . Indeed, the whole ethos of civil justice is bound to fail if litigation which in itself is a costly affair cannot provide timely, less expensive and simple justice.

Lord Woolf wanted to eliminate the defects in the civil justice system which were identified as being: too expensive, too slow, lacking equality between powerful and wealthy litigants and under-resourced litigants, too uncertain in terms of the length and cost of litigation, too fragmented and too adversarial [13] .

Therefore it was in this light that in March 1994, the Lord Chancellor set up the Woolf enquiry whereby ways of reducing delays and improving accessibility of civil proceedings, and of reducing their cost were to be found [14] . On 26th April 1999 New Civil Procedure Rules and the accompanying Practice Directions came into force. These rules constitute the most fundamental reform of the civil justice system in the 20th century, introducing the main recommendations of Lord Woolf’s final report. He described his proposals as providing ‘A new landscape for civil justice for the 21st century’ [15] .

Woolf Reforms- The need for reform

The whole ethos of the Woolf reforms is woven around avoiding litigation and promoting settlement between parties [16] . While it shall be analysed in detail whether the much needed reforms fulfilled their purpose or not, it can be stated in the affirmative that the Reforms were very well received by various quarters of the legal profession [17] . However, the reforms have not escaped criticism and one of their outspoken critics is Michael Zander.

The inquiry by Woolf published its final report in 1996 and thereafter the proposals resulted in the Civil Procedure Act 1997 and the Civil Procedure Rules 1998, which are the same [18] for the County court and High Court. It needs to be clarified here that the changes sought by Woolf Reforms bear effect primarily through the Civil Procedure Act 1997 and the CPR 1998, although these have been supplemented by new practice directions and pre-action protocols [19] .

Lord Woolf, when he began his examination of the Civil law process identified diverse problems [20] . His interim report of June 1995 sates that ‘the key problems facing civil justice today are cost, delay and complexity, these three are interrelated and stem from the uncontrolled nature of the litigation process. In particular there is no judicial responsibility for managing individual cases or for the overall assessment of the civil courts’ [21] . Heilbron Hodge, who called for a ‘radical appraisal of the approach to civil litigation form all its participants’, paved the way for Woolf report and accompanying reforms . It was forewarned [22] by Lord Woolf that without effective judicial control the adversarial process of the civil courts was ‘likely to degenerate into an environment in which the litigation process is too often seen as a battlefield where no rules apply’ immediate effect of which would be disproportionate expense and unpredictable delay [23] .

Being conscious of all these problems, Lord Woolf envisaged a New Landscape for Civil justice which included: Litigation will be avoided wherever possible, litigation will be less adversarial and more co operative, Litigation will be less complex, the timescale of litigation will be shorter and more certain, the cost of litigation will be more affordable, more predictable, and more proportionate to the value and complexity of individual cases, parties of limited financial means will be able to conduct litigation on a more equal footing, there will be clear lines of judicial and administrative responsibility for the civil justice system, Judges will be deployed effectively so that they can manage litigation in accordance with the new rules and protocols, the civil justice system will be responsive to the needs of litigants. [24] 

For paucity of space I shall be discussing the main reforms that have an immediate effect on cost and delay: Pre-Action protocol, Part 36, Judicial Case Management and ADR. These were the brainchild of Lord Woolf, in this context I will compare Judicial Statistics as regards the impact of these reforms and will also evaluate the criticisms meted out to these reforms from various quadrants. The proposed objective of all these reforms was to encourage settlement, avoid litigation, encourage parties to be less adversarial, more cooperative, reduce complexity of litigation, reduce delay, and reduce cost. [25] It is but utmost important to discuss the reforms to see whether these objectives have been met or not.

Pre-action Protocols

The idea was pioneered by Lord Woolf and can be considered as one of the most important innovations of the Woolf Reforms. Pre-action Protocols focus on the conduct of parties in the pre litigation stage which will be taken into account by the courts both during the case and also towards the end when the final decision regarding allocation of costs is taken. Pre-action protocols serves an effective means to this end as they are accompanied by the practice directions which describe their chief objective as encouraging exchange of early and full information about the prospective claim, avoiding litigation by promoting settlement and where litigation emerges as the last resort, to support its efficient management [26] . It was stated by Lord Woolf in the Final report on Access to Justice (1996) that Pre-action protocols are intended to ‘build on and increase the benefits of early but well informed settlements’ [27] .Clearly one can say that if parties know everything before hand, it does promote a healthy environment by way of co-operation and the civil litigation process can be avoided. There have been 9 pre-action protocols produced so far covering vast areas of practice such as personal injury, medical negligence and housing [28] . By 2003 they also existed for construction and engineering, defamation, professional negligence and judicial review.

The purpose of these protocols was to [29] set down pre-court procedures, encourage good communication and early settlement. Further these protocols cast a duty on the claimant to give the defendant details of the claim and on the other hand the defendant must respond to these claims within a stricter period of time. The protocols state that the key documents on which the party’s case wholly rests must be disclosed at an early stage. Both the defendant and the claimant must agree on the use of an expert witness where relevant. If the parties fail to comply with these pre-action protocols the immediate result is penalty whereby the party at fault must pay some or all costs of the proceedings. [30] Claims however, should not be issued until at least three months after the initial letter of claim wherein the claimant has written to the prospective defendant disclosing his claim [31] .

Evaluation/impact of the protocols will be carried out in the next section but it should be mentioned here that although pre action protocols may be expensive and can lead to front loading of costs in cases which would settle without them, they might be able to prevent the unnecessary costs of issuing proceedings and listing for hearing in the same cases. Another benefit that follows from the protocols could be that they might give the parties a healthy nudge towards Alternative Dispute Resolution [32] .

Part 36: An Innovative Approach

The Woolf Reforms instituted Part 36 which provides greater incentives for the parties to settle their differences mutually. Under Part 36 procedures exist for either party to make an offer to settle their disputes and these were significantly revised with effect from 6th April 2007. Now a part 36 offer can be made before the proceedings start as well as in the appeal proceedings. In this regard ‘Offeror’ refers to the party making the offer and the ‘Offeree’ is the one receiving it. Upon acceptance of an offer by the claimant a duty is cast on the defendant to pay the sum offered within 14 days, failure to do so would allow the claimant to enter judgement. Also, any pre- action offer to settle while making an order for costs will be taken into consideration by courts. A side refusing it will be treated less generously and this usually applies to offers which are open to the other side for at least 21 days after the date they were made. Lord Woolf suggested that for a settlement offer to qualify as an offer under Part 36 it must be made in writing with the intention to have the consequences of part 36. As regards Defendant making the offer, a period of not less than 21 days must be specified whereby the defendant’s liability for claimants will be established if the offer is accepted. Under the revised Part 36 however, any offer may be withdrawn after the expiry of the ‘relevant period’, as defined in Rule 36.3.1.c, without the court’s permission [33] .

Michael Zander states that when the defendant pays a sum of money into the court account as an offer of settlement, the case would end upon acceptance of the money. However if the offer is refused by the claimant, the defendant can still increase his payment-in. Upon further refusal the case will go to trial and the outcome will be determined by the court. If the Claimant does not recover more than the amount paid in, the court will order him to pay the cost of both sides from the date of payment-in. It would be worth mentioning Calderbank letters here because technically the system applies only to cases which concerned damages or other money claims whereas under these letters if the defendant makes an offer of settlement ‘without prejudice save as to costs’ it would virtually be treated by the courts in the same way as if it was payment into court. Pre -CPR this rule 36 was applied inflexibly. Post 1999 the courts are able to mitigate the harshness of the traditional rule where the claimant was automatically ordered to pay the cost of both the sides upon failure to secure more than the amount paid in by the defendant. New rules now provide for the Claimant’s offer, which was considered to be a big change. For money claims Part 36 payments apply, however, where the claim is not monetary, the defendant can still make a part 36 offer (as opposed to part 36 payment) and thereafter the same basic rules shall apply. However the court’s discretion [34] applies. All in all allowing the claimant to make an offer of settlement under the CPR has proved to be a welcome step [35] . The analysis of Part 36 will be discussed in the next section.

Judicial Case Management: Striking a balance

This is the most significant innovation as it was perceived by Lord Woolf that case control by judiciary, rather then leaving the conduct of the case to the parties, will bring the cases to trial quickly and efficiently [36] . It can be seen that the litigants in this new system will have much less control over the pace of the case than in the past. As the case is now subject to a timetable, parties will not be able to draw out proceedings and cause delays. A positive duty is cast on the court which means [37] :

Civil Procedure Rules 1.4(1) encouraging parties to co-operate with each other in conduct of the proceedings, identifying the issues at an early stage, encouraging parties to use ADR, helping parties to settle whole or part of the case. Under the CPR Cases must be assigned to 1 of the 3 tracks: small claims, fast track or multi-track, each having its own separate regime depending primarily on the financial value of claim [38] .

Limit for small claims cases is £5,000 except for personal injury and housing cases where it is £1000. Proportionate procedure is followed where straight forward claims with a financial value of not more than £5,000 can be decided without needing substantial pre hearing preparation or formalities of substantial trial and also without incurring large legal costs [39] . These procedure under small claims are controlled by district judges on informal basis [40] . Cases involving amounts between £5,000-15,000 are dealt here unless they are deemed unsuitable. The fast track procedure incorporates a set timetable of no more than 30 weeks to trial, limited pre-trial procedures, trials restricted to no more than 3 hours (which was further extended to 5 hours), restrictions on oral evidence form experts and recovery of standard fixed costs [41] . Cases involving amounts exceeding the fast track limit or cases with lesser amounts which are considered complex or too important for small claims or fast track cases are dealt with here [42] .

Evaluation of the impact of judicial case management on reduction in cost, delay and complexity will follow in the next section.

ADR, though not part of the traditional Court system, has been brought in connection through the CPR. Lord Woolf in his Final Report urged that people should be told and encouraged to resort to a growing number of grievance procedures, or the ADR before taking up legal proceedings. These ADR feature prominently in the rules and CPR 1.4(1) [43] states that ‘the court must further the overriding objective by actively managing cases’. However, Lord Woolf commented that ADR cannot be imposed compulsorily on parties at dispute in civil litigation [44] . There are no complex court procedures to be adhered to while using ADR and also it saves a lot of time and avoids ever escalating litigation costs.

Experts evidence was another area with which Lord Woolf was concerned. It was contended by him that expert evidence was a major cause because of which excessive expense, delay (in some cases) and complexity increased. He wanted to do away with the system where both the parties could appoint their own experts, rather he envisaged a single expert who would owe his allegiance to the court rather than to the parties. Given the criticism of his proposal he admitted that though a significant shift towards single experts is not immediately possible, nevertheless it was possible to initiate a shift in that direction [45] .

Impact/Evaluation of the Reforms

Before evaluating the reforms it may be stated in the affirmative that the Overriding Objective of the new CPR was to enable the courts to deal justly with the cases. CPR rule 1.1(1) reads: “These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly” [46] .

The combined effect of the major reforms was to avoid parties going to litigation and to promote settlement. This merit analysis based on empirical data wherein the major focus is to evaluate reduction in cost and delay. Early evidence reveals success on the part of these radical changes as, there was 25 % reduction in the number of cases issued in the county courts in May – August 1999 which in comparison to the same period in the previous year was much less. This further fell to 23 % by the end of January 2000. Lord Phillip stated that the reforms have proved to be effective in changing the whole ethos of litigation but litigation itself is still expensive. It was commented by Gary slapper et al that overall reforms can be seen as a triumphant step in the right direction as larger proportion of society is able to achieve greater access to justice especially when the issues at dispute are relatively small and can be dealt with quickly and cheaply in the small claims track. However, the reforms do not fare that well where complex commercial disputes are concerned. [47] 

As a result of the reforms many positive changes have occurred, the culture has become less adversarial, there is better exchange of information between the parties before the start of litigation and settlement now focuses on the substantive issues in the case [48] . ‘Cards on table’ culture, as it can be called, is a major factor leading to settlement. Communication and exchange of information at an early stage always help [49] . Furthermore, claimant offers under Part 36 were praised as claimants could now obtain a response from the defendant and defendants also benefitted from them as they could set upper limits to the bargaining. Protocols, by focussing on formulating clear ground rules on the basis of which claims are formulated and responded to, encouraged parties to focus their minds on the key issues at an early stage [50] . File survey undertaken by Goreily et al revealed that median time in case of medical report to settlement had fallen from 170 days pre Woolf to 123 days post-Woolf, thereby reflecting that settlement has become quicker [51] .

In case of large claims which were subject to court timetables, solicitors thought the speed has become quicker. As regards cost it was acknowledged that costs increased because of ‘front-loading’ as now more work is required to be done during the initial stages [52] . Evidence regarding protocols suggested that it had some impact in reducing costs as earlier exchange of information could lead to speedier settlements because both sides become aware of the issues much sooner. Case management evaluation however, received a mixed response. Experience in relation to High Court Masters in London was perceived as positive and leading to a greater incentive to reach agreement before hearing. However, outside London the experiences were not that positive [53] .

Judicial statistics reveal that the number of claims have fallen to less than 1,90,000 in 2005 as compared to 2,20,000 in 1998. All this has happened since the coming into force of the Woolf reforms, though favourable economic climate may also account for this [54] . Cases have diverted from being litigated in the courts as a result of the use of pre-action protocols and claimant offers under part 36 which encourage pre-trial settlements, causative effect being that only 8% of cases which are listed for trial settle during the course of trial and 70% settle much earlier. This is suggestive of the fact that the reforms have been a positive step towards out-of-court settlements which have the advantage of providing a quick/speedy end to the dispute coupled with a reduction in costs [55] . First evaluation of the new Civil Procedure Rules by the Government [56] indicated the overall benefits of reforms whereby it was stated that cases are settling much earlier and not at the court’s doorstep. Litigation is regarded as the last resort by lawyers and clients who now make greater use of ADR. Pre-action protocols were believed to be a success. All these findings are further supported by the latest research [57] into the civil justice system [58] .

A major official study published by the institute of Civil Justice at the Rand Corporation in California (Kakalik et al, 1996) looked into the effect of American Civil Justice Reform Act 1990 based on a survey of 10,000 cases. And found that early use of Judicial case management can yield reductions of one and a half or 2 months to resolve cases that would otherwise last at least 9 months. Discovery timetables further reduce time to disposition and also the number of hours spent by a lawyer working on the case. However one drawback is that case management will ultimately lead to an approximately 20 hour increase in lawyers’ work overall [59] .

Only 2 proper research studies on the impact of Woolf reforms have been there so far. The first one was carried out for the Civil Justice council and the Law Society (Goreily et al.’) [60] on pre -action behaviour. The second for Department of constitutional affairs by Professors Peysner and Seneviratne [61] dealt with the case management [62] . It was contended on the basis of this second research that protocols generate co-operation, and help prepare cases in a organised way and also discussed widespread employment of single joint experts and that days of hired guns are over. [63] .

It is important here to mention the benefits accruing as a result of the Woolf Reforms which have been validated from a variety of sources [64] :

Culture seems to be less adversarial which reflects a better future, Pre action protocols have received laudable applause, Part 36 offers and payments seem to promote healthy settlement, single joint experts seem to work better in contrast to views of critics.

Judicial Statistics reveal that average waiting time in county courts from issue of claim to trial has reduced form 85 weeks in 1998 to 52 weeks in 2005 [65] . Analysing Statistics from Department of constitutional affairs, Reynolds Porter Chamberlin (RPC) a large city law firm found that in the first year of the reforms there was a 41.3 % drop in cases being litigated and in the following 5 years(in 2005) it further declined to a drop of 1.7% [66] . District Judge Terence John being sceptical however, stated that the reforms have changed the civil legal world for better and are here to stay. He further observed that 70 % of the claims are being dealt through the small claims track and 20 % through the fast track; all this makes recourse to justice realistic [67] . Also Judge Charles Harris QC commented, trials are held pretty briskly as a result of case management which restricts incompetent litigators to prolong the case. [68] 

Criticism

A major criticism of the Woolf reforms was mounted by Zander who opined that there is immense pressure [69] on parties to enter settlement once the case begins. Empirical evidence suggests that it is not necessary that pre-trial hearing will reduce cost and delay [70] . Further report by T. Goreily et al suggests that overall time before and after reforms have remained the same [71] . (However it may be stated, further empirical data on delay as a result of reforms a

This essay will seek to analyse the Woolf Reforms and in that context will evaluate the overall qualitative impact that they have had on the Civil Justice system. The essay will discuss the background in which Woolf Reforms were passed, the Woolf Reforms, Impact/intention of the reforms, Objective analysis based on criticism (positives and negatives) and finally the essay will conclude by analysing whether the Woolf Reform has actually succeeded in its definitive goal of reducing cost and delay.

Background

In 1995 there was a survey carried out by National Consumer Council [1] which found that 3 out of 4 people who are involved in serious legal disputes were dissatisfied with the civil justice system. It was found that of the 1,019 respondents, 77 percent believed that the system was too slow, 74 per cent stated that the system was too complicated and 73 per cent said that it was unwelcoming and outdated. [2] 

A cursory look at history reveals that Pre-Trial process has been the subject matter of numerous reports and inquiries. Since 1968 there has been the Winn Committee [3] , the Cantley Committee [4] , the massive Civil Justice review 1985-1988 [5] and the Heilbron-Hodge Working party jointly set up by the Bar and the Law Society [6] . These are outside the purview of this Essay as the new system of Civil procedure took effect on the basis of the recommendations made by Lord Woolf in his June 1995 Interim Report [7] and his July Final report, both of which are entitled ‘Access to Justice’ [8] .

Senior members of judiciary have always boldly defended the significance of civil justice and were concerned about the degradation and the problems inflicting the civil justice system [9] . Genn further stated that he was aware of the sorry state of the civil courts [10] . It was in this background of continuous criticism that the previous Conservative Government appointed Lord Woolf to carry out a far reaching review and overhaul the civil justice system. His inquiry is the 63rd such review in the past 100 years [11] . The 3 perennial problems of cost, delay and complexity have plagued the civil justice system for ages and it was these ills that the Woolf reforms sought to redress [12] . Indeed, the whole ethos of civil justice is bound to fail if litigation which in itself is a costly affair cannot provide timely, less expensive and simple justice.

Lord Woolf wanted to eliminate the defects in the civil justice system which were identified as being: too expensive, too slow, lacking equality between powerful and wealthy litigants and under-resourced litigants, too uncertain in terms of the length and cost of litigation, too fragmented and too adversarial [13] .

Therefore it was in this light that in March 1994, the Lord Chancellor set up the Woolf enquiry whereby ways of reducing delays and improving accessibility of civil proceedings, and of reducing their cost were to be found [14] . On 26th April 1999 New Civil Procedure Rules and the accompanying Practice Directions came into force. These rules constitute the most fundamental reform of the civil justice system in the 20th century, introducing the main recommendations of Lord Woolf’s final report. He described his proposals as providing ‘A new landscape for civil justice for the 21st century’ [15] .

Woolf Reforms- The need for reform

The whole ethos of the Woolf reforms is woven around avoiding litigation and promoting settlement between parties [16] . While it shall be analysed in detail whether the much needed reforms fulfilled their purpose or not, it can be stated in the affirmative that the Reforms were very well received by various quarters of the legal profession [17] . However, the reforms have not escaped criticism and one of their outspoken critics is Michael Zander.

The inquiry by Woolf published its final report in 1996 and thereafter the proposals resulted in the Civil Procedure Act 1997 and the Civil Procedure Rules 1998, which are the same [18] for the County court and High Court. It needs to be clarified here that the changes sought by Woolf Reforms bear effect primarily through the Civil Procedure Act 1997 and the CPR 1998, although these have been supplemented by new practice directions and pre-action protocols [19] .

Lord Woolf, when he began his examination of the Civil law process identified diverse problems [20] . His interim report of June 1995 sates that ‘the key problems facing civil justice today are cost, delay and complexity, these three are interrelated and stem from the uncontrolled nature of the litigation process. In particular there is no judicial responsibility for managing individual cases or for the overall assessment of the civil courts’ [21] . Heilbron Hodge, who called for a ‘radical appraisal of the approach to civil litigation form all its participants’, paved the way for Woolf report and accompanying reforms . It was forewarned [22] by Lord Woolf that without effective judicial control the adversarial process of the civil courts was ‘likely to degenerate into an environment in which the litigation process is too often seen as a battlefield where no rules apply’ immediate effect of which would be disproportionate expense and unpredictable delay [23] .

Being conscious of all these problems, Lord Woolf envisaged a New Landscape for Civil justice which included: Litigation will be avoided wherever possible, litigation will be less adversarial and more co operative, Litigation will be less complex, the timescale of litigation will be shorter and more certain, the cost of litigation will be more affordable, more predictable, and more proportionate to the value and complexity of individual cases, parties of limited financial means will be able to conduct litigation on a more equal footing, there will be clear lines of judicial and administrative responsibility for the civil justice system, Judges will be deployed effectively so that they can manage litigation in accordance with the new rules and protocols, the civil justice system will be responsive to the needs of litigants. [24] 

For paucity of space I shall be discussing the main reforms that have an immediate effect on cost and delay: Pre-Action protocol, Part 36, Judicial Case Management and ADR. These were the brainchild of Lord Woolf, in this context I will compare Judicial Statistics as regards the impact of these reforms and will also evaluate the criticisms meted out to these reforms from various quadrants. The proposed objective of all these reforms was to encourage settlement, avoid litigation, encourage parties to be less adversarial, more cooperative, reduce complexity of litigation, reduce delay, and reduce cost. [25] It is but utmost important to discuss the reforms to see whether these objectives have been met or not.

Pre-action Protocols

The idea was pioneered by Lord Woolf and can be considered as one of the most important innovations of the Woolf Reforms. Pre-action Protocols focus on the conduct of parties in the pre litigation stage which will be taken into account by the courts both during the case and also towards the end when the final decision regarding allocation of costs is taken. Pre-action protocols serves an effective means to this end as they are accompanied by the practice directions which describe their chief objective as encouraging exchange of early and full information about the prospective claim, avoiding litigation by promoting settlement and where litigation emerges as the last resort, to support its efficient management [26] . It was stated by Lord Woolf in the Final report on Access to Justice (1996) that Pre-action protocols are intended to ‘build on and increase the benefits of early but well informed settlements’ [27] .Clearly one can say that if parties know everything before hand, it does promote a healthy environment by way of co-operation and the civil litigation process can be avoided. There have been 9 pre-action protocols produced so far covering vast areas of practice such as personal injury, medical negligence and housing [28] . By 2003 they also existed for construction and engineering, defamation, professional negligence and judicial review.

The purpose of these protocols was to [29] set down pre-court procedures, encourage good communication and early settlement. Further these protocols cast a duty on the claimant to give the defendant details of the claim and on the other hand the defendant must respond to these claims within a stricter period of time. The protocols state that the key documents on which the party’s case wholly rests must be disclosed at an early stage. Both the defendant and the claimant must agree on the use of an expert witness where relevant. If the parties fail to comply with these pre-action protocols the immediate result is penalty whereby the party at fault must pay some or all costs of the proceedings. [30] Claims however, should not be issued until at least three months after the initial letter of claim wherein the claimant has written to the prospective defendant disclosing his claim [31] .

Evaluation/impact of the protocols will be carried out in the next section but it should be mentioned here that although pre action protocols may be expensive and can lead to front loading of costs in cases which would settle without them, they might be able to prevent the unnecessary costs of issuing proceedings and listing for hearing in the same cases. Another benefit that follows from the protocols could be that they might give the parties a healthy nudge towards Alternative Dispute Resolution [32] .

Part 36: An Innovative Approach

The Woolf Reforms instituted Part 36 which provides greater incentives for the parties to settle their differences mutually. Under Part 36 procedures exist for either party to make an offer to settle their disputes and these were significantly revised with effect from 6th April 2007. Now a part 36 offer can be made before the proceedings start as well as in the appeal proceedings. In this regard ‘Offeror’ refers to the party making the offer and the ‘Offeree’ is the one receiving it. Upon acceptance of an offer by the claimant a duty is cast on the defendant to pay the sum offered within 14 days, failure to do so would allow the claimant to enter judgement. Also, any pre- action offer to settle while making an order for costs will be taken into consideration by courts. A side refusing it will be treated less generously and this usually applies to offers which are open to the other side for at least 21 days after the date they were made. Lord Woolf suggested that for a settlement offer to qualify as an offer under Part 36 it must be made in writing with the intention to have the consequences of part 36. As regards Defendant making the offer, a period of not less than 21 days must be specified whereby the defendant’s liability for claimants will be established if the offer is accepted. Under the revised Part 36 however, any offer may be withdrawn after the expiry of the ‘relevant period’, as defined in Rule 36.3.1.c, without the court’s permission [33] .

Michael Zander states that when the defendant pays a sum of money into the court account as an offer of settlement, the case would end upon acceptance of the money. However if the offer is refused by the claimant, the defendant can still increase his payment-in. Upon further refusal the case will go to trial and the outcome will be determined by the court. If the Claimant does not recover more than the amount paid in, the court will order him to pay the cost of both sides from the date of payment-in. It would be worth mentioning Calderbank letters here because technically the system applies only to cases which concerned damages or other money claims whereas under these letters if the defendant makes an offer of settlement ‘without prejudice save as to costs’ it would virtually be treated by the courts in the same way as if it was payment into court. Pre -CPR this rule 36 was applied inflexibly. Post 1999 the courts are able to mitigate the harshness of the traditional rule where the claimant was automatically ordered to pay the cost of both the sides upon failure to secure more than the amount paid in by the defendant. New rules now provide for the Claimant’s offer, which was considered to be a big change. For money claims Part 36 payments apply, however, where the claim is not monetary, the defendant can still make a part 36 offer (as opposed to part 36 payment) and thereafter the same basic rules shall apply. However the court’s discretion [34] applies. All in all allowing the claimant to make an offer of settlement under the CPR has proved to be a welcome step [35] . The analysis of Part 36 will be discussed in the next section.

Judicial Case Management: Striking a balance

This is the most significant innovation as it was perceived by Lord Woolf that case control by judiciary, rather then leaving the conduct of the case to the parties, will bring the cases to trial quickly and efficiently [36] . It can be seen that the litigants in this new system will have much less control over the pace of the case than in the past. As the case is now subject to a timetable, parties will not be able to draw out proceedings and cause delays. A positive duty is cast on the court which means [37] :

Civil Procedure Rules 1.4(1) encouraging parties to co-operate with each other in conduct of the proceedings, identifying the issues at an early stage, encouraging parties to use ADR, helping parties to settle whole or part of the case. Under the CPR Cases must be assigned to 1 of the 3 tracks: small claims, fast track or multi-track, each having its own separate regime depending primarily on the financial value of claim [38] .

Limit for small claims cases is £5,000 except for personal injury and housing cases where it is £1000. Proportionate procedure is followed where straight forward claims with a financial value of not more than £5,000 can be decided without needing substantial pre hearing preparation or formalities of substantial trial and also without incurring large legal costs [39] . These procedure under small claims are controlled by district judges on informal basis [40] . Cases involving amounts between £5,000-15,000 are dealt here unless they are deemed unsuitable. The fast track procedure incorporates a set timetable of no more than 30 weeks to trial, limited pre-trial procedures, trials restricted to no more than 3 hours (which was further extended to 5 hours), restrictions on oral evidence form experts and recovery of standard fixed costs [41] . Cases involving amounts exceeding the fast track limit or cases with lesser amounts which are considered complex or too important for small claims or fast track cases are dealt with here [42] .

Evaluation of the impact of judicial case management on reduction in cost, delay and complexity will follow in the next section.

ADR, though not part of the traditional Court system, has been brought in connection through the CPR. Lord Woolf in his Final Report urged that people should be told and encouraged to resort to a growing number of grievance procedures, or the ADR before taking up legal proceedings. These ADR feature prominently in the rules and CPR 1.4(1) [43] states that ‘the court must further the overriding objective by actively managing cases’. However, Lord Woolf commented that ADR cannot be imposed compulsorily on parties at dispute in civil litigation [44] . There are no complex court procedures to be adhered to while using ADR and also it saves a lot of time and avoids ever escalating litigation costs.

Experts evidence was another area with which Lord Woolf was concerned. It was contended by him that expert evidence was a major cause because of which excessive expense, delay (in some cases) and complexity increased. He wanted to do away with the system where both the parties could appoint their own experts, rather he envisaged a single expert who would owe his allegiance to the court rather than to the parties. Given the criticism of his proposal he admitted that though a significant shift towards single experts is not immediately possible, nevertheless it was possible to initiate a shift in that direction [45] .

Impact/Evaluation of the Reforms

Before evaluating the reforms it may be stated in the affirmative that the Overriding Objective of the new CPR was to enable the courts to deal justly with the cases. CPR rule 1.1(1) reads: “These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly” [46] .

The combined effect of the major reforms was to avoid parties going to litigation and to promote settlement. This merit analysis based on empirical data wherein the major focus is to evaluate reduction in cost and delay. Early evidence reveals success on the part of these radical changes as, there was 25 % reduction in the number of cases issued in the county courts in May – August 1999 which in comparison to the same period in the previous year was much less. This further fell to 23 % by the end of January 2000. Lord Phillip stated that the reforms have proved to be effective in changing the whole ethos of litigation but litigation itself is still expensive. It was commented by Gary slapper et al that overall reforms can be seen as a triumphant step in the right direction as larger proportion of society is able to achieve greater access to justice especially when the issues at dispute are relatively small and can be dealt with quickly and cheaply in the small claims track. However, the reforms do not fare that well where complex commercial disputes are concerned. [47] 

As a result of the reforms many positive changes have occurred, the culture has become less adversarial, there is better exchange of information between the parties before the start of litigation and settlement now focuses on the substantive issues in the case [48] . ‘Cards on table’ culture, as it can be called, is a major factor leading to settlement. Communication and exchange of information at an early stage always help [49] . Furthermore, claimant offers under Part 36 were praised as claimants could now obtain a response from the defendant and defendants also benefitted from them as they could set upper limits to the bargaining. Protocols, by focussing on formulating clear ground rules on the basis of which claims are formulated and responded to, encouraged parties to focus their minds on the key issues at an early stage [50] . File survey undertaken by Goreily et al revealed that median time in case of medical report to settlement had fallen from 170 days pre Woolf to 123 days post-Woolf, thereby reflecting that settlement has become quicker [51] .

In case of large claims which were subject to court timetables, solicitors thought the speed has become quicker. As regards cost it was acknowledged that costs increased because of ‘front-loading’ as now more work is required to be done during the initial stages [52] . Evidence regarding protocols suggested that it had some impact in reducing costs as earlier exchange of information could lead to speedier settlements because both sides become aware of the issues much sooner. Case management evaluation however, received a mixed response. Experience in relation to High Court Masters in London was perceived as positive and leading to a greater incentive to reach agreement before hearing. However, outside London the experiences were not that positive [53] .

Judicial statistics reveal that the number of claims have fallen to less than 1,90,000 in 2005 as compared to 2,20,000 in 1998. All this has happened since the coming into force of the Woolf reforms, though favourable economic climate may also account for this [54] . Cases have diverted from being litigated in the courts as a result of the use of pre-action protocols and claimant offers under part 36 which encourage pre-trial settlements, causative effect being that only 8% of cases which are listed for trial settle during the course of trial and 70% settle much earlier. This is suggestive of the fact that the reforms have been a positive step towards out-of-court settlements which have the advantage of providing a quick/speedy end to the dispute coupled with a reduction in costs [55] . First evaluation of the new Civil Procedure Rules by the Government [56] indicated the overall benefits of reforms whereby it was stated that cases are settling much earlier and not at the court’s doorstep. Litigation is regarded as the last resort by lawyers and clients who now make greater use of ADR. Pre-action protocols were believed to be a success. All these findings are further supported by the latest research [57] into the civil justice system [58] .

A major official study published by the institute of Civil Justice at the Rand Corporation in California (Kakalik et al, 1996) looked into the effect of American Civil Justice Reform Act 1990 based on a survey of 10,000 cases. And found that early use of Judicial case management can yield reductions of one and a half or 2 months to resolve cases that would otherwise last at least 9 months. Discovery timetables further reduce time to disposition and also the number of hours spent by a lawyer working on the case. However one drawback is that case management will ultimately lead to an approximately 20 hour increase in lawyers’ work overall [59] .

Only 2 proper research studies on the impact of Woolf reforms have been there so far. The first one was carried out for the Civil Justice council and the Law Society (Goreily et al.’) [60] on pre -action behaviour. The second for Department of constitutional affairs by Professors Peysner and Seneviratne [61] dealt with the case management [62] . It was contended on the basis of this second research that protocols generate co-operation, and help prepare cases in a organised way and also discussed widespread employment of single joint experts and that days of hired guns are over. [63] .

It is important here to mention the benefits accruing as a result of the Woolf Reforms which have been validated from a variety of sources [64] :

Culture seems to be less adversarial which reflects a better future, Pre action protocols have received laudable applause, Part 36 offers and payments seem to promote healthy settlement, single joint experts seem to work better in contrast to views of critics.

Judicial Statistics reveal that average waiting time in county courts from issue of claim to trial has reduced form 85 weeks in 1998 to 52 weeks in 2005 [65] . Analysing Statistics from Department of constitutional affairs, Reynolds Porter Chamberlin (RPC) a large city law firm found that in the first year of the reforms there was a 41.3 % drop in cases being litigated and in the following 5 years(in 2005) it further declined to a drop of 1.7% [66] . District Judge Terence John being sceptical however, stated that the reforms have changed the civil legal world for better and are here to stay. He further observed that 70 % of the claims are being dealt through the small claims track and 20 % through the fast track; all this makes recourse to justice realistic [67] . Also Judge Charles Harris QC commented, trials are held pretty briskly as a result of case management which restricts incompetent litigators to prolong the case. [68] 

Criticism

A major criticism of the Woolf reforms was mounted by Zander who opined that there is immense pressure [69] on parties to enter settlement once the case begins. Empirical evidence suggests that it is not necessary that pre-trial hearing will reduce cost and delay [70] . Further report by T. Goreily et al suggests that overall time before and after reforms have remained the same [71] . (However it may be stated, further empirical data on delay as a result of reforms a

Nature Of Law Debate Between Hart And Fuller Law Essay

Is there a genuine disagreement between Hart and Fuller? If so, what exactly, is it about and how might it be resolved? For centuries, legal philosophers have sought to obtain a deeper understanding of the nature of law and in pursuit of this have led to many debates. The most famous of them was the debate between Professor H.L.A Hart and Professor Lon Fuller. The debate was sparked by an article in the Harvard Law Review by Hart in 1958 [1] and Fuller responded in an article in the same journal [2] ; which led to Hart writing “The Concept of Law [3] ” in 1961 and fuller in response writing the “The Morality of Law” [4] in 1963.

Both Hart and Fuller’s starting points and interest in jurisprudence were very different. Hart spent much of his time evaluating and understanding the concept of law, while Fuller on the other hand was concerned with the rule of law. However, despite their interest in Jurisprudence being very different, Hart and Fuller were engaged in heated discussions amongst each other for years. Part of this as Professor William Lucy [5] stated was Fuller’s apparent denial of the ‘separation thesis.’ This idea, the separation thesis, stimulates from the positivist [6] school of thought in which Hart associated himself with. The theory entails that while decisions of law and morality do occasionally overlap, a moral component is not necessary for determining whether something is law. However, Fuller a natural law theorist [7] stated that there is an essential and innate overlap between law and morality and without a unified morality that underlies most of the laws there is no coherence within a legal system.

Within this essay, I will discuss what seemed to be the specific points of differences between Hart and Fuller; that being the Foundation of a legal order, the Inner Morality of Law, the Nazi Law and the Interpretation of law. In discussing these differences, I will assess whether these disputes between Hart and Fuller were in fact genuine and if so how it may be resolved.

Foundation of a Legal Order

Hart presented his approach to law as an alternative view to previous attempts by legal positivist at explaining the nature of law; but ultimately he remained committed to constructing a positivist theory that distinguished between law and morality. Prior to Harts account of law, legal positivist treated law as, ‘a body of commands laid down by a supreme legislative body.’ [8] However, Hart claimed that a legal system based on power, coercion and sanctions, painted a misguided picture of the law. As Hart famously put it, ‘law is surely not the gunman situation’ and “legal order is surely not to be identified with compulsion.” [9] Ultimately Hart conceded that law is based on “fundamental accepted rules specifying the essential lawmaking procedures.” [10] Following this further Hart claimed that legal order is the product of a combination of primary rules and secondary rules; primary rules of obligation, imposing duties and secondary rules conferring powers; in particular the rule of recognition, adjudication and change, however the most important of these is the rule of recognition, the rule that determines legal validity. [11] 

Harts rejection to the ‘command theory’ and commitment to the notion of ‘accepted rules,’ led Fuller to believe that there was some common ground between Harts account of the foundation of law and his own. From Fullers perspective, he believed that rules that make law possible must have some moral character because they ‘derive their efficacy from general acceptance, which in turn rests ultimately on a perception that they are right and necessary.’ [12] Ultimately Fuller argued that these rules created a challenge to the positivist claim that there is no connection between law and morality at the foundation of a legal order. In light of this, Fuller posed the question to Hart, to explain the nature of these rules that furnish the framework within which the making of law takes place. [13] 

In responds to Fuller, Hart stated what appeared to be a compromise between himself and Fuller, when he said there must be some minimum natural content to any legal system. [14] This content according to Hart is necessary to secure the aim of ‘survival in close proximity to our fellows. [15] Following this further, Hart stated that this very thin conception of the minimum moral content of a legal system is the right one because ‘the purposes men have for living in a society are too conflicting.’ [16] However, despite what seemed to be a concession between Hart and Fuller; Hart remained committed to the notion that there is no connection between law and morality in the foundation of a legal system. Furthermore, he supported this by explaining that such a system that consists of general rules, cannot guarantee the ‘substantive moral quality of the ends of the law.’ [17] In addition, Hart stated that such a minimum requirement cannot remove the possibility that the laws in such a system may be used for evil.

The Inner Morality of Law

In the ‘Morality of Law,’ Fuller saw a necessary connection between law and morality through what he regarded as a ‘reason’ in legal ordering. In light of this, Fuller argued that law making is a purposive activity and the basic idea underlying and justifying the creation of a legal system is the ‘purposive enterprise of subjecting human conduct to the governance of rules.’ [18] Law, as Fuller argued, is distinguished from ‘fiat of power or a repetitive pattern discernable in the behavior of state officials,’ [19] because it provides a guide to human conduct. According to Fuller, in order to produce something that can guide human conduct and properly be called law, law makers must adhere to these eight specific principles. [20] These principles he regarded as the ‘inner morality of law.’

To illustrate his point, Fuller told us in the ‘Morality of Law’ [21] a parable about a King by the name of Rex who wanted to make his name as a great law-giver. Unfortunately because he continuously ignored the eight principles of morality he never succeeded in making any law at all. [22] Ultimately Fuller stated that ‘a total failure in any one of these eight directions does not result in a bad system of law; it results in something that is not properly called a legal system at all.’ [23] 

Hart, when analyzing Fullers conception of the law, agreed with fuller that the principles are needed in the process of lawmaking, but quickly stated that they were not moral in content and in no sense establish a necessary connection between law and morals. Ultimately, Hart conceded that the principles were merely ‘principles of good craftsmanship’ [24] and stated that calling the principles as moral “created a confusion between two notions that is vital to hold apart; the notion of purposive activity and morality.” [25] 

In light of Hart’s response, Fuller stated that this line of argument was ‘bizarre and even perverse, as not to deserve an answer.’ [26] However, Fuller stated that calling the internal morality of law ‘a basic confusion of efficiency and morality’ [27] was obscured. Furthermore, Fuller argued that Hart’s idea of efficiency was misunderstood [28] since the principles, as Hart needed to understand, are not just used for lawmaking, but ultimately for ‘the creation and administration of a thing as complex as a whole legal system.’ [29] Fuller further stated that the reason for Hart’s refusal to regard the principles as moral was his commitment to the notion ‘that the existence or non-existence of law is, from a moral point of view, a matter of indifference.’ [30] In addition Fuller argued that Hart defending a concept of law as managerial control [31] and rejection to idea of reciprocity between the lawmaker and citizens within the society was also a reason for him rejecting the inner morality of law.

Nazi Law

The question of whether flagrantly unjust law deserves recognition as valid law was most famously addressed in the debate between Hart and Fuller that began in the 1958 Harvard Law Review and dealt explicitly with the example of Nazi law. [32] 

Hart recounted in his 1958 essay [33] a postwar Germany case concerning a woman who denounced her husband after he had made remarks on the Nazi Regime; as a result of his actions being against Nazi law he was imprisoned. This case led the court to question whether the Nazi law can be deemed valid, however, the courts found that the Nazi law was ‘contrary to the sound conscience and sense of justice of all human beings’ [34] and for this reason Nazi law was not valid and the women was found guilty for her actions. In light of this, Hart argued that the decisions of the courts were wrong as the Nazi Law’s were valid laws since it fulfilled the necessary requirements for the ‘rule of recognition.’ [35] Furthermore Hart believed a more suitable approach would have been to condemn the valid laws as being to evil to be obeyed [36] rather than presenting ‘the moral criticism of institutions as propositions of a disputable philosophy.’ [37] 

In response to Harts account of the Nazi Law, Fuller argued that Harts analysis of it disregarded the degree in which the Nazi’s law deviated from the inner morality of law which made it fail to qualify as law. Fuller argued that this neglect was reflected in Harts apparent assumption that “the only difference between Nazi law and, say, English law is that the

Nazis used their laws to achieve ends that are odious to an Englishman” [38] As a result of this, Fuller argued that Hart having overlooked the derogation from the internal morality of law in a society would lead to “the tacit restraints of legal decency” which occurred in light of the Nazi Regime. [39] Upon studying the Grudge informer case further, Fuller was led to conclusion that the relevant statutes and their applications that Hart claimed to be valid law must be questioned. [40] Fuller remained critical of Hart’s position because “surely moral confusion reaches its height when a court refuses to apply something that it admits to be law.” [41] 

Interpretation of Law

According to Hart, when judges are interpreting and applying a disputed rule there is a tendency for judges to refer to what law ‘ought to be,’ which therefore collapses the distinction between law and morality. [42] Hart developed that in light of all general rules; there will be a ‘core of certainty’ central to cases where the application is clear and a ‘penumbra of doubt’ where the application is uncertain. [43] He illustrated this by introducing the example of a legal rule which forbid taking a vehicle into a public park. [44] Hart suggested that in most cases such a rule would be interpreted by reference to a core settled meaning as to what constitutes a vehicle; however there will be ‘a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out.’ [45] In light of this, Hart stated that judges must sometimes use their discretion and exercise ‘creative choice’ [46] to create new law. However, Hart made it clear that any moral considerations within the exercise of discretion only occur in the penumbra where there is no law; thus not affecting his insistence on the necessary separation of law and morality. Ultimately, Hart conceded that what the law ‘ought’ to be, may arise, but this should not implicate morality in a judgment; [47] as the ‘ought’ may merely suggest a reflection of a standard of criticism that may or may not have any connection to moral standards. [48] 

Fuller, in response to Harts model of interpretation, remained committed to his purposive approach in light of interpreting rules. It was his belief that in the practice of interpretation there will always be regards to rules purposes. [49] Fuller argued that Hart’s example of a legal rule banning vehicles in a park may be easy to discern in some cases because the aim of the rule was generally quite clear. [50] To illustrate his point, Fuller discussed a hypothetical statue prohibiting individuals to sleep in any railway station. In light of this, Fuller posed two separate situations [51] in which he challenged Hart to distinguish which would be the ‘standard instance’ of the word sleep. [52] Fuller suggested that Hart’s account of interpretation was mistaken because “the purposive approach to interpretation is as indispensable to discerning meaning in core cases as it is in penumbral cases.” [53] Furthermore, Fuller explained that purposive interpretation is part of judge’s judicial responsibility; [54] as they should not only regard the purpose of rules, but more importantly have regard to their larger responsibility to maintain a workable legal order. Fuller stated that, Harts model of interpretation did not acknowledge these matters, whereas Fuller saw them as necessary for interpretation.

Is there a genuine disagreement?

In light of this discussion between Hart and Fuller it is quite evident that both approached the debate with different motivations. Hart was concern with the immorality that makes law impossible, while Fuller remained focused on the morality that makes law possible. Hart himself observed this and stated that their starting points and interests were so different that they may never understand each other. [55] 

In any case it is somewhat undisputable that there is a genuine disagreement between Hart and Fuller, in light of the separation thesis. Hart remains committed to the idea that law and morality are separate. While Fuller on the other hand opposes this and is certain that there is not distinction between law and morality.

Conclusion

In conclusion, the distinction between both Hart and Fuller across these topics as discussed are consistently apparent; neither one is prepared to concede much to the other’s standpoint and remains committed in defending their own positions in the face of constant attacks and accusations from the other. As a result of this, since the arguments of each professor depends ultimately on his definition of law and his view of the meaning of morality in relation to the nature of man and the world in which man lives, their philosophical differences seem irreconcilable. [56] 

Is there a genuine disagreement between Hart and Fuller? If so, what exactly, is it about and how might it be resolved? For centuries, legal philosophers have sought to obtain a deeper understanding of the nature of law and in pursuit of this have led to many debates. The most famous of them was the debate between Professor H.L.A Hart and Professor Lon Fuller. The debate was sparked by an article in the Harvard Law Review by Hart in 1958 [1] and Fuller responded in an article in the same journal [2] ; which led to Hart writing “The Concept of Law [3] ” in 1961 and fuller in response writing the “The Morality of Law” [4] in 1963.

Both Hart and Fuller’s starting points and interest in jurisprudence were very different. Hart spent much of his time evaluating and understanding the concept of law, while Fuller on the other hand was concerned with the rule of law. However, despite their interest in Jurisprudence being very different, Hart and Fuller were engaged in heated discussions amongst each other for years. Part of this as Professor William Lucy [5] stated was Fuller’s apparent denial of the ‘separation thesis.’ This idea, the separation thesis, stimulates from the positivist [6] school of thought in which Hart associated himself with. The theory entails that while decisions of law and morality do occasionally overlap, a moral component is not necessary for determining whether something is law. However, Fuller a natural law theorist [7] stated that there is an essential and innate overlap between law and morality and without a unified morality that underlies most of the laws there is no coherence within a legal system.

Within this essay, I will discuss what seemed to be the specific points of differences between Hart and Fuller; that being the Foundation of a legal order, the Inner Morality of Law, the Nazi Law and the Interpretation of law. In discussing these differences, I will assess whether these disputes between Hart and Fuller were in fact genuine and if so how it may be resolved.

Foundation of a Legal Order

Hart presented his approach to law as an alternative view to previous attempts by legal positivist at explaining the nature of law; but ultimately he remained committed to constructing a positivist theory that distinguished between law and morality. Prior to Harts account of law, legal positivist treated law as, ‘a body of commands laid down by a supreme legislative body.’ [8] However, Hart claimed that a legal system based on power, coercion and sanctions, painted a misguided picture of the law. As Hart famously put it, ‘law is surely not the gunman situation’ and “legal order is surely not to be identified with compulsion.” [9] Ultimately Hart conceded that law is based on “fundamental accepted rules specifying the essential lawmaking procedures.” [10] Following this further Hart claimed that legal order is the product of a combination of primary rules and secondary rules; primary rules of obligation, imposing duties and secondary rules conferring powers; in particular the rule of recognition, adjudication and change, however the most important of these is the rule of recognition, the rule that determines legal validity. [11] 

Harts rejection to the ‘command theory’ and commitment to the notion of ‘accepted rules,’ led Fuller to believe that there was some common ground between Harts account of the foundation of law and his own. From Fullers perspective, he believed that rules that make law possible must have some moral character because they ‘derive their efficacy from general acceptance, which in turn rests ultimately on a perception that they are right and necessary.’ [12] Ultimately Fuller argued that these rules created a challenge to the positivist claim that there is no connection between law and morality at the foundation of a legal order. In light of this, Fuller posed the question to Hart, to explain the nature of these rules that furnish the framework within which the making of law takes place. [13] 

In responds to Fuller, Hart stated what appeared to be a compromise between himself and Fuller, when he said there must be some minimum natural content to any legal system. [14] This content according to Hart is necessary to secure the aim of ‘survival in close proximity to our fellows. [15] Following this further, Hart stated that this very thin conception of the minimum moral content of a legal system is the right one because ‘the purposes men have for living in a society are too conflicting.’ [16] However, despite what seemed to be a concession between Hart and Fuller; Hart remained committed to the notion that there is no connection between law and morality in the foundation of a legal system. Furthermore, he supported this by explaining that such a system that consists of general rules, cannot guarantee the ‘substantive moral quality of the ends of the law.’ [17] In addition, Hart stated that such a minimum requirement cannot remove the possibility that the laws in such a system may be used for evil.

The Inner Morality of Law

In the ‘Morality of Law,’ Fuller saw a necessary connection between law and morality through what he regarded as a ‘reason’ in legal ordering. In light of this, Fuller argued that law making is a purposive activity and the basic idea underlying and justifying the creation of a legal system is the ‘purposive enterprise of subjecting human conduct to the governance of rules.’ [18] Law, as Fuller argued, is distinguished from ‘fiat of power or a repetitive pattern discernable in the behavior of state officials,’ [19] because it provides a guide to human conduct. According to Fuller, in order to produce something that can guide human conduct and properly be called law, law makers must adhere to these eight specific principles. [20] These principles he regarded as the ‘inner morality of law.’

To illustrate his point, Fuller told us in the ‘Morality of Law’ [21] a parable about a King by the name of Rex who wanted to make his name as a great law-giver. Unfortunately because he continuously ignored the eight principles of morality he never succeeded in making any law at all. [22] Ultimately Fuller stated that ‘a total failure in any one of these eight directions does not result in a bad system of law; it results in something that is not properly called a legal system at all.’ [23] 

Hart, when analyzing Fullers conception of the law, agreed with fuller that the principles are needed in the process of lawmaking, but quickly stated that they were not moral in content and in no sense establish a necessary connection between law and morals. Ultimately, Hart conceded that the principles were merely ‘principles of good craftsmanship’ [24] and stated that calling the principles as moral “created a confusion between two notions that is vital to hold apart; the notion of purposive activity and morality.” [25] 

In light of Hart’s response, Fuller stated that this line of argument was ‘bizarre and even perverse, as not to deserve an answer.’ [26] However, Fuller stated that calling the internal morality of law ‘a basic confusion of efficiency and morality’ [27] was obscured. Furthermore, Fuller argued that Hart’s idea of efficiency was misunderstood [28] since the principles, as Hart needed to understand, are not just used for lawmaking, but ultimately for ‘the creation and administration of a thing as complex as a whole legal system.’ [29] Fuller further stated that the reason for Hart’s refusal to regard the principles as moral was his commitment to the notion ‘that the existence or non-existence of law is, from a moral point of view, a matter of indifference.’ [30] In addition Fuller argued that Hart defending a concept of law as managerial control [31] and rejection to idea of reciprocity between the lawmaker and citizens within the society was also a reason for him rejecting the inner morality of law.

Nazi Law

The question of whether flagrantly unjust law deserves recognition as valid law was most famously addressed in the debate between Hart and Fuller that began in the 1958 Harvard Law Review and dealt explicitly with the example of Nazi law. [32] 

Hart recounted in his 1958 essay [33] a postwar Germany case concerning a woman who denounced her husband after he had made remarks on the Nazi Regime; as a result of his actions being against Nazi law he was imprisoned. This case led the court to question whether the Nazi law can be deemed valid, however, the courts found that the Nazi law was ‘contrary to the sound conscience and sense of justice of all human beings’ [34] and for this reason Nazi law was not valid and the women was found guilty for her actions. In light of this, Hart argued that the decisions of the courts were wrong as the Nazi Law’s were valid laws since it fulfilled the necessary requirements for the ‘rule of recognition.’ [35] Furthermore Hart believed a more suitable approach would have been to condemn the valid laws as being to evil to be obeyed [36] rather than presenting ‘the moral criticism of institutions as propositions of a disputable philosophy.’ [37] 

In response to Harts account of the Nazi Law, Fuller argued that Harts analysis of it disregarded the degree in which the Nazi’s law deviated from the inner morality of law which made it fail to qualify as law. Fuller argued that this neglect was reflected in Harts apparent assumption that “the only difference between Nazi law and, say, English law is that the

Nazis used their laws to achieve ends that are odious to an Englishman” [38] As a result of this, Fuller argued that Hart having overlooked the derogation from the internal morality of law in a society would lead to “the tacit restraints of legal decency” which occurred in light of the Nazi Regime. [39] Upon studying the Grudge informer case further, Fuller was led to conclusion that the relevant statutes and their applications that Hart claimed to be valid law must be questioned. [40] Fuller remained critical of Hart’s position because “surely moral confusion reaches its height when a court refuses to apply something that it admits to be law.” [41] 

Interpretation of Law

According to Hart, when judges are interpreting and applying a disputed rule there is a tendency for judges to refer to what law ‘ought to be,’ which therefore collapses the distinction between law and morality. [42] Hart developed that in light of all general rules; there will be a ‘core of certainty’ central to cases where the application is clear and a ‘penumbra of doubt’ where the application is uncertain. [43] He illustrated this by introducing the example of a legal rule which forbid taking a vehicle into a public park. [44] Hart suggested that in most cases such a rule would be interpreted by reference to a core settled meaning as to what constitutes a vehicle; however there will be ‘a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out.’ [45] In light of this, Hart stated that judges must sometimes use their discretion and exercise ‘creative choice’ [46] to create new law. However, Hart made it clear that any moral considerations within the exercise of discretion only occur in the penumbra where there is no law; thus not affecting his insistence on the necessary separation of law and morality. Ultimately, Hart conceded that what the law ‘ought’ to be, may arise, but this should not implicate morality in a judgment; [47] as the ‘ought’ may merely suggest a reflection of a standard of criticism that may or may not have any connection to moral standards. [48] 

Fuller, in response to Harts model of interpretation, remained committed to his purposive approach in light of interpreting rules. It was his belief that in the practice of interpretation there will always be regards to rules purposes. [49] Fuller argued that Hart’s example of a legal rule banning vehicles in a park may be easy to discern in some cases because the aim of the rule was generally quite clear. [50] To illustrate his point, Fuller discussed a hypothetical statue prohibiting individuals to sleep in any railway station. In light of this, Fuller posed two separate situations [51] in which he challenged Hart to distinguish which would be the ‘standard instance’ of the word sleep. [52] Fuller suggested that Hart’s account of interpretation was mistaken because “the purposive approach to interpretation is as indispensable to discerning meaning in core cases as it is in penumbral cases.” [53] Furthermore, Fuller explained that purposive interpretation is part of judge’s judicial responsibility; [54] as they should not only regard the purpose of rules, but more importantly have regard to their larger responsibility to maintain a workable legal order. Fuller stated that, Harts model of interpretation did not acknowledge these matters, whereas Fuller saw them as necessary for interpretation.

Is there a genuine disagreement?

In light of this discussion between Hart and Fuller it is quite evident that both approached the debate with different motivations. Hart was concern with the immorality that makes law impossible, while Fuller remained focused on the morality that makes law possible. Hart himself observed this and stated that their starting points and interests were so different that they may never understand each other. [55] 

In any case it is somewhat undisputable that there is a genuine disagreement between Hart and Fuller, in light of the separation thesis. Hart remains committed to the idea that law and morality are separate. While Fuller on the other hand opposes this and is certain that there is not distinction between law and morality.

Conclusion

In conclusion, the distinction between both Hart and Fuller across these topics as discussed are consistently apparent; neither one is prepared to concede much to the other’s standpoint and remains committed in defending their own positions in the face of constant attacks and accusations from the other. As a result of this, since the arguments of each professor depends ultimately on his definition of law and his view of the meaning of morality in relation to the nature of man and the world in which man lives, their philosophical differences seem irreconcilable. [56] 

Case Study Suing For Unlawful Arrest Law Essay

The Client’s Problem. Mr. Andrew Barnham was stopped, searched and finally arrested on November 8, 2009 outside Stagshead pub on Byker Road. His description fitted that of another offender who had committed a robbery in a jewellery shop on Walker Street with high value jewellery missing e.g. expensive watches. Mr. Barnham believes that the stop and search powers exercised by the two constables along with the arrest that occurred later on at the Police station were unlawful. Furthermore, he insists that excessive force was used on him and on his property (his nose was badly bruised when his face was smashed on a wall and his front door was completely destroyed). Finally, he was unlawfully kept on custody without review of the detention time limits. Mr. Barnham wants compensation for the alleged damages along with an apology from the two constables.

Did PC Officers Smith and Jones lawfully stop and search the client?

Was the client lawfully arrested and at which point did it happen?

Did the constables use reasonable force during the arrest?

Did PC Smith lawfully enter and search the house of the client?

Can the client bring a claim against the two constables for the damages and for false imprisonment?

Key Words/ Phrases

Power to stop and search

Power of arrest/ reasonable grounds to suspect

Assault/battery/ Possible defences

Trespass to property

False imprisonment

Human Rights Implications

Police powers of detention and time limits

Legal Advice

Stop and Search

S.1(2)(a)(i) of the Police Criminal Evidence Act 1984 (‘PACE 1984) permits a police officer to conduct a search on any person for stolen or prohibited articles, providing the search is conducted in a public place (see s. 1(1)(a) of PACE 1984). The search can, however, only be carried out if the officer in question has reasonable grounds for suspicion that s/he shall find stolen items (see s. 1(3) of PACE 1984).The powers of stop and search are conditional, however, in that an officer carrying out a search must inform the suspect before the search commences of his name and police station. A failure to do so renders the search unlawful: see Osman v. DPP [1] .

It is therefore my opinion that the stop and search of the claimant was unlawful for failure to comply with s.2(3) of PACE by informing the claimant of the police officers’ names and police station. It is noteworthy that it is irrelevant that the names of the PCs were already known to the claimant. This failure constitutes a breach of PACE.

The point at which the claimant was informed about the reasons for the stop and search was after all the above had occurred and only then PC Smith notified him that he wanted to ask some questions pertaining to a robbery which had occurred earlier that day. In my opinion therefore there is an arguable case that this failure renders the stop and searches a trespass to the person, because even if the search is later deemed reasonable, the claimant ought properly to have been informed: see Osman v. DPP1.

Lawfulness of Arrest

Any person may arrest anyone whom he has reasonable grounds for suspecting to be guilty of an arrestable offence (see s.24(5)(b) of PACE 1984). Further, an arrest amounts to the beginning of imprisonment: see Lord Simonds in Christie v. Leachinsky [2] .

Providing that an officer has reasonable suspicion of an offence having been committed, he is entitled to make an arrest to interrogate the suspect: see Holgate-Mohammed v. Duke [3] . The test for reasonable grounds for the arrest, however, is split into two parts, namely: (i) actual suspicion; and, (ii) reasonable grounds for that suspicion: see O’Hara v. Chief Constable RUC [4] . In relation to point (i), the officers stopped the claimant and one of the officers (PC Smith) was given a description fitting the claimant’s, following a radio communication, before returning to search and arrest the claimant. This illustrates that point (i) of the present case may have been established. Secondly, the fact that the claimant did not stop when asked to, arguably constitutes grounds for reasonable suspicion (the second part of the test). It is noteworthy that a radio message is sufficient to amount to reasonable suspicion: see King v. Gardner [5] ; DPP v. Wilson [6] .

On the basis of the above assessment, it would appear that the test has been satisfied to make the arrest lawful. However, there are two further requirements for an arrest to be deemed lawful. An arrest is not lawful until a person has been informed of the facts and grounds for an arrest: see Dawes v. DPP [7] . Moreover, we must consider whether the stop occurred before the radio, description was given to PC Smith. In this case then there was no reasonable grounds for suspicion; so the stop power that was exercised was certainly unlawful or even more was discriminatory for the suspect’s previous conviction.

The duty to inform ought to be done at the time of the arrest, but may be fulfilled before and after that moment: see Nicholas v. Parsonage [8] . From the information available, the claimant was informed that he is potentially a suspect for a robbery at the time of conducting the search. However, he was not informed about the arrest despite being handcuffed. Further, no caution was given to the claimant at this point, albeit he was informed that he was going to be asked questions about a robbery occurring earlier that day.

Again, therefore, in my opinion the arrest is also arguably unlawful. The claimant was only informed he was a suspect for a robbery that took place at a jewelry shop on Walker High street at around 9:00pm, some 40 minutes after being arrested.

Use of Force

In this matter, there was also an issue as to the legality of the use of force by the police officers. Whilst being arrested, the claimant was forced and handcuffed, sustaining a blooded nose and broken glasses as a result. PACE requires (at s.117) that all police powers are exercised with reasonable force, or that only such force is used as is reasonable in the circumstances (see s.3, Criminal Law Act 1967.) Only force which is deemed necessary to ‘secure and subdue’ a suspect is permitted: see Allen v. Metropolitan Police Commissioner [9] .

Further, handcuffs were used on the claimant. Handcuffs, however, may only be used on a suspect where they are ‘reasonably necessary to prevent an escape’: see Lockley [10] .

Given that the claimant was resisting being searched and became angry and irate and commenced shouting at the officers, it would appear that the use of force may be viewed as reasonable by a court of law. Albeit, given that the arrest is arguable unlawful, the use of force may be viewed as a trespass to the person/assault or battery.

In any event, the use of excessive force does not render an otherwise lawful arrest unlawful: see Simpson v. Chief Constable of South Yorkshire Police [11] .

Albeit the claimant was perfectly entitled to want to know the reasons for that he was being stopped and searched, he should not have displayed anger or irritation by the police carrying out their duty. In my opinion, however, given that the arrest is arguably unlawful for the above reasons, the use of force is also arguably unlawful and could constitute common assault / battery.

Entering the Premises

An officer may enter and search any premises where a person was immediately before the arrest (see s.32(2)(b)). This is intended to search for evidential material pertaining to the offence for which the arrest was enacted. It is a question of fact whether or not the police entered for this purpose: see Beckford [12] .

On the evidence available, it is therefore lawful for the police to enter the premises of the claimant. However, when they arrived at the claimant’s house, PC Smith smashed the door down. Albeit the claimant was reluctant to hand over his keys, he did not refuse to give them to him, though.

For the above reasons, PC Smith could accordingly be guilty of criminal damage for forcing entry to the property.

Period in Detention

The claimant spent approximately 13 hours in detention before being released. Whilst detention is permitted under the law to assist in interrogating the suspect: see Holgate-Mohammed v. Duke. Under Code C, para. 1.1, it is stated that the leading principle is that all persons in custody are dealt with expeditiously and that they must be released as soon as there is no more need for detention. In this case, given that the claimant was not interviewed until 9:00am, after spending a night in the cells, it is arguable that this case was not dealt with expeditiously.

It can not be said that the investigations were impeded due to the claimant having been arrested in the evening and therefore a difficulty in locating the relevant witnesses to corroborate his statement because the claimant was only interviewed in the morning after spending a night in the cells. It is my opinion therefore that his period in detention was not dealt with expeditiously.

In addition to the above, there are further issues regarding the claimant’s period in detention. For instance, the claimant was not given any information about his rights, no medical assistance for his blooded nose throughout his period in detention, and no code of PACE to read.

A custody officer was required to determine whether or not there was sufficient evidence to charge the claimant with robbery as soon as reasonably practicable after he was detained. Despite this, however, he may detain a suspect for as long as is necessary to discharge this duty (see PACE 1984, s.37(1)). In my opinion, however, the claimant in this case was not interviewed until 9:00am, which would appear excessive given that the arrest was over 12 hours earlier.

The custody officer is also responsible for informing the suspect of his rights to have someone informed of his arrest, consult with a solicitor privately, the availability of free legal advice, consult the codes of practices and, more importantly, to provide the arrested person with a written notice of his rights and a caution that he is not obliged to say anything but what he does say may be given in evidence.

The written notice must set out minimum entitlements whilst in custody (see Code C, par. 3.2.) and minimum conditions of comfort whilst in custody. Albeit the claimant was advised about his right to a solicitor at the time of being arrested and he refused, none of the other requirements outlined above have been recorded on the custody record, which would constitute a further breach of PACE.

Albeit it ought to be mentioned that the custody officer is entitled to assume that the arrest is lawful and not question its validity: see DPP v. L [13] .

Overall, a period of detention for a period of not more than six hours is deemed acceptable.

Further, a custody record is to be made in the presence of the arrested person (Code C, para. 2.1) and must be made as soon as reasonably practicable (s. 37(5)). The claimant ought to have then been informed of the grounds for detention before he is questioned (Code C, para. 3.4).

In addition, there was a need for a review of detention. There is no record on the custody record of a review of detention being carried out before 3:15am (although a note was made on the record of the need for one), which could render the detention unlawful (either a tort or false imprisonment): see Roberts v. Chief Constable of the Cheshire Constabularly [14] . A review ought to have been carried out by a review officer six hours after the detention. Unless there is a cogent excuse for this, this is also a breach of PACE.

Finally, a reminder that the claimant was entitled to legal advice before being interviewed ought to have been given (Code C, paras 6.5 and 11.2).

Complaints Procedure

Mr. Barnham can complaint to the Independent Police Complaints Authority, a body independent to the police. This complaint ought to set out full particulars of the night of the arrest and the period in detention.

The body shall then review the information and determine whether or not any breaches of the necessary laws and codes have occurred. Subject to its determination, the body shall take any necessary disciplinary action it deems necessary against any officer it finds to be in violation of the law/procedures. For instance, a trespass to the person is actionable if it goes beyond what is acceptable by the ordinary standards of everyday life: see Mepstead v. DPP [15] .

Further, PC Smith’s conduct in smashing down the claimant’s front door, thereby causing damage to it in the process is a further consideration that shall be entertained by the Complaint’s Authority.

The claimant is advised that a limitation period applies to any action to be commenced in the civil courts. The claimant is therefore advised to consult a solicitor as soon as possible with a view to initiating proceedings.

Additional Information required/ if any

Further information is necessary. We need to know exactly what was said to PC Smith on the radio in order to see if the description truly fitted to the alleged suspect or whether he was being harassed for his previous conviction. Moreover, we need the exact wording used during the stop and search of the client by the two constables and vice versa i.e. how the alleged suspect react when he saw the two constables.

A timetable is also necessary as to what happened previous his detention is authorized at the police station i.e. during the time he was kept from the two constables. Finally, details and receipts from the items that have been destroyed.

Summary

For the reasons outlined above, the claim, in my opinion, has an arguable case for wrongful arrest, false imprisonment and trespass to the person (assault or battery).

A deprivation of liberty constitutes false imprisonment if it unlawful. In other words, if it has been carried out without the correct authority or following the correct procedure: see Brown [16] . In addition, any unlawful detention amounts to false imprisonment: see Spicer v. Holt [17] .

In addition to being an offence at common law, this also arguably constitutes a breach of s. Human Rights Act 1998 in that it would arguably violate Article 5 (right to freedom and liberty) of the European Convention of Human Rights .

The claimant is therefore advised to initiate proceedings in the county courts for wrongful arrest, false imprisonment and trespass to the person and property, advisedly through a solicitor. In the Particulars of Claim he should list compensation for his glasses, jacket and front door, and damages for injuries sustained to be assessed by the court.

In my opinion, given that the police powers were not complied with fully, the arrest is arguably unlawful for the above reasons and accordingly the use of force is also unlawful and arguably constitutes common assault / battery.

Primary Sources

Code of Practice A/C/G

Criminal Justice & Public Order Act 1994

Criminal Law Act 1967

Human Rights Act 1998

Police & Criminal Evidence Act 1984

Police Reform Act 2002

Allen v. Metropolitan Police Commissioner [1980] Crim LR 441

Beckford [1991] 94 Cr App R 43

Brown [1976] 64 Cr App R 231

Christie v. Leachinsky [1947] AC 573 at p. 600

Dawes v. DPP [1994] Crim LR 604

DPP v. L [1999] Crim LR 752

DPP v. Wilson [1991] RTR 284

Holgate-Mohammed v. Duke [1984] AC 437

King v. Gardner [1979] 71 Cr App R 13

Lockley [1864] 4 F & F 155

Mepstead v. DPP [1996] 160 JP 475

Nicholas v. Parsonage [1987] RTR 199

O’Hara v. Chief Constable RUC [1997] 2 WLR 1

Osman v. DPP [1999] 163 JP 725 The Times, 28 September 1999

Roberts v. Chief Constable of the Cheshire Constabularly [1999] 1 WLR 662

Simpson v. Chief Constable of South Yorkshire Police [1991] 135 5J 393 The Times, 7 March 1991

Spicer v. Holt [1970] AC 987

Secondary Sources

Constitutional & Administrative Law, Antony Wilfer Bradley, Keith D. Ewing

Constitutional & Administrative Law, Hilaire Barnett, 7th Edition, 2009, Routlege, Cavendish

Core Statutes On Public Law And Human Rights, Rhona Smith, 2009, Palgrave-Mcmillan

P. Murphy (Editor-in-Chief), Blackstone’s Criminal Practice, 2000, Blackstone Press

The English Legal System, Garry Slapper, David Kelly, 7th Edition, Cavendish Publishing

Q & A Public Law, Richard Clements, Philip Jones, 2009-2010, Oxford University Press

The Client’s Problem. Mr. Andrew Barnham was stopped, searched and finally arrested on November 8, 2009 outside Stagshead pub on Byker Road. His description fitted that of another offender who had committed a robbery in a jewellery shop on Walker Street with high value jewellery missing e.g. expensive watches. Mr. Barnham believes that the stop and search powers exercised by the two constables along with the arrest that occurred later on at the Police station were unlawful. Furthermore, he insists that excessive force was used on him and on his property (his nose was badly bruised when his face was smashed on a wall and his front door was completely destroyed). Finally, he was unlawfully kept on custody without review of the detention time limits. Mr. Barnham wants compensation for the alleged damages along with an apology from the two constables.

Did PC Officers Smith and Jones lawfully stop and search the client?

Was the client lawfully arrested and at which point did it happen?

Did the constables use reasonable force during the arrest?

Did PC Smith lawfully enter and search the house of the client?

Can the client bring a claim against the two constables for the damages and for false imprisonment?

Key Words/ Phrases

Power to stop and search

Power of arrest/ reasonable grounds to suspect

Assault/battery/ Possible defences

Trespass to property

False imprisonment

Human Rights Implications

Police powers of detention and time limits

Legal Advice

Stop and Search

S.1(2)(a)(i) of the Police Criminal Evidence Act 1984 (‘PACE 1984) permits a police officer to conduct a search on any person for stolen or prohibited articles, providing the search is conducted in a public place (see s. 1(1)(a) of PACE 1984). The search can, however, only be carried out if the officer in question has reasonable grounds for suspicion that s/he shall find stolen items (see s. 1(3) of PACE 1984).The powers of stop and search are conditional, however, in that an officer carrying out a search must inform the suspect before the search commences of his name and police station. A failure to do so renders the search unlawful: see Osman v. DPP [1] .

It is therefore my opinion that the stop and search of the claimant was unlawful for failure to comply with s.2(3) of PACE by informing the claimant of the police officers’ names and police station. It is noteworthy that it is irrelevant that the names of the PCs were already known to the claimant. This failure constitutes a breach of PACE.

The point at which the claimant was informed about the reasons for the stop and search was after all the above had occurred and only then PC Smith notified him that he wanted to ask some questions pertaining to a robbery which had occurred earlier that day. In my opinion therefore there is an arguable case that this failure renders the stop and searches a trespass to the person, because even if the search is later deemed reasonable, the claimant ought properly to have been informed: see Osman v. DPP1.

Lawfulness of Arrest

Any person may arrest anyone whom he has reasonable grounds for suspecting to be guilty of an arrestable offence (see s.24(5)(b) of PACE 1984). Further, an arrest amounts to the beginning of imprisonment: see Lord Simonds in Christie v. Leachinsky [2] .

Providing that an officer has reasonable suspicion of an offence having been committed, he is entitled to make an arrest to interrogate the suspect: see Holgate-Mohammed v. Duke [3] . The test for reasonable grounds for the arrest, however, is split into two parts, namely: (i) actual suspicion; and, (ii) reasonable grounds for that suspicion: see O’Hara v. Chief Constable RUC [4] . In relation to point (i), the officers stopped the claimant and one of the officers (PC Smith) was given a description fitting the claimant’s, following a radio communication, before returning to search and arrest the claimant. This illustrates that point (i) of the present case may have been established. Secondly, the fact that the claimant did not stop when asked to, arguably constitutes grounds for reasonable suspicion (the second part of the test). It is noteworthy that a radio message is sufficient to amount to reasonable suspicion: see King v. Gardner [5] ; DPP v. Wilson [6] .

On the basis of the above assessment, it would appear that the test has been satisfied to make the arrest lawful. However, there are two further requirements for an arrest to be deemed lawful. An arrest is not lawful until a person has been informed of the facts and grounds for an arrest: see Dawes v. DPP [7] . Moreover, we must consider whether the stop occurred before the radio, description was given to PC Smith. In this case then there was no reasonable grounds for suspicion; so the stop power that was exercised was certainly unlawful or even more was discriminatory for the suspect’s previous conviction.

The duty to inform ought to be done at the time of the arrest, but may be fulfilled before and after that moment: see Nicholas v. Parsonage [8] . From the information available, the claimant was informed that he is potentially a suspect for a robbery at the time of conducting the search. However, he was not informed about the arrest despite being handcuffed. Further, no caution was given to the claimant at this point, albeit he was informed that he was going to be asked questions about a robbery occurring earlier that day.

Again, therefore, in my opinion the arrest is also arguably unlawful. The claimant was only informed he was a suspect for a robbery that took place at a jewelry shop on Walker High street at around 9:00pm, some 40 minutes after being arrested.

Use of Force

In this matter, there was also an issue as to the legality of the use of force by the police officers. Whilst being arrested, the claimant was forced and handcuffed, sustaining a blooded nose and broken glasses as a result. PACE requires (at s.117) that all police powers are exercised with reasonable force, or that only such force is used as is reasonable in the circumstances (see s.3, Criminal Law Act 1967.) Only force which is deemed necessary to ‘secure and subdue’ a suspect is permitted: see Allen v. Metropolitan Police Commissioner [9] .

Further, handcuffs were used on the claimant. Handcuffs, however, may only be used on a suspect where they are ‘reasonably necessary to prevent an escape’: see Lockley [10] .

Given that the claimant was resisting being searched and became angry and irate and commenced shouting at the officers, it would appear that the use of force may be viewed as reasonable by a court of law. Albeit, given that the arrest is arguable unlawful, the use of force may be viewed as a trespass to the person/assault or battery.

In any event, the use of excessive force does not render an otherwise lawful arrest unlawful: see Simpson v. Chief Constable of South Yorkshire Police [11] .

Albeit the claimant was perfectly entitled to want to know the reasons for that he was being stopped and searched, he should not have displayed anger or irritation by the police carrying out their duty. In my opinion, however, given that the arrest is arguably unlawful for the above reasons, the use of force is also arguably unlawful and could constitute common assault / battery.

Entering the Premises

An officer may enter and search any premises where a person was immediately before the arrest (see s.32(2)(b)). This is intended to search for evidential material pertaining to the offence for which the arrest was enacted. It is a question of fact whether or not the police entered for this purpose: see Beckford [12] .

On the evidence available, it is therefore lawful for the police to enter the premises of the claimant. However, when they arrived at the claimant’s house, PC Smith smashed the door down. Albeit the claimant was reluctant to hand over his keys, he did not refuse to give them to him, though.

For the above reasons, PC Smith could accordingly be guilty of criminal damage for forcing entry to the property.

Period in Detention

The claimant spent approximately 13 hours in detention before being released. Whilst detention is permitted under the law to assist in interrogating the suspect: see Holgate-Mohammed v. Duke. Under Code C, para. 1.1, it is stated that the leading principle is that all persons in custody are dealt with expeditiously and that they must be released as soon as there is no more need for detention. In this case, given that the claimant was not interviewed until 9:00am, after spending a night in the cells, it is arguable that this case was not dealt with expeditiously.

It can not be said that the investigations were impeded due to the claimant having been arrested in the evening and therefore a difficulty in locating the relevant witnesses to corroborate his statement because the claimant was only interviewed in the morning after spending a night in the cells. It is my opinion therefore that his period in detention was not dealt with expeditiously.

In addition to the above, there are further issues regarding the claimant’s period in detention. For instance, the claimant was not given any information about his rights, no medical assistance for his blooded nose throughout his period in detention, and no code of PACE to read.

A custody officer was required to determine whether or not there was sufficient evidence to charge the claimant with robbery as soon as reasonably practicable after he was detained. Despite this, however, he may detain a suspect for as long as is necessary to discharge this duty (see PACE 1984, s.37(1)). In my opinion, however, the claimant in this case was not interviewed until 9:00am, which would appear excessive given that the arrest was over 12 hours earlier.

The custody officer is also responsible for informing the suspect of his rights to have someone informed of his arrest, consult with a solicitor privately, the availability of free legal advice, consult the codes of practices and, more importantly, to provide the arrested person with a written notice of his rights and a caution that he is not obliged to say anything but what he does say may be given in evidence.

The written notice must set out minimum entitlements whilst in custody (see Code C, par. 3.2.) and minimum conditions of comfort whilst in custody. Albeit the claimant was advised about his right to a solicitor at the time of being arrested and he refused, none of the other requirements outlined above have been recorded on the custody record, which would constitute a further breach of PACE.

Albeit it ought to be mentioned that the custody officer is entitled to assume that the arrest is lawful and not question its validity: see DPP v. L [13] .

Overall, a period of detention for a period of not more than six hours is deemed acceptable.

Further, a custody record is to be made in the presence of the arrested person (Code C, para. 2.1) and must be made as soon as reasonably practicable (s. 37(5)). The claimant ought to have then been informed of the grounds for detention before he is questioned (Code C, para. 3.4).

In addition, there was a need for a review of detention. There is no record on the custody record of a review of detention being carried out before 3:15am (although a note was made on the record of the need for one), which could render the detention unlawful (either a tort or false imprisonment): see Roberts v. Chief Constable of the Cheshire Constabularly [14] . A review ought to have been carried out by a review officer six hours after the detention. Unless there is a cogent excuse for this, this is also a breach of PACE.

Finally, a reminder that the claimant was entitled to legal advice before being interviewed ought to have been given (Code C, paras 6.5 and 11.2).

Complaints Procedure

Mr. Barnham can complaint to the Independent Police Complaints Authority, a body independent to the police. This complaint ought to set out full particulars of the night of the arrest and the period in detention.

The body shall then review the information and determine whether or not any breaches of the necessary laws and codes have occurred. Subject to its determination, the body shall take any necessary disciplinary action it deems necessary against any officer it finds to be in violation of the law/procedures. For instance, a trespass to the person is actionable if it goes beyond what is acceptable by the ordinary standards of everyday life: see Mepstead v. DPP [15] .

Further, PC Smith’s conduct in smashing down the claimant’s front door, thereby causing damage to it in the process is a further consideration that shall be entertained by the Complaint’s Authority.

The claimant is advised that a limitation period applies to any action to be commenced in the civil courts. The claimant is therefore advised to consult a solicitor as soon as possible with a view to initiating proceedings.

Additional Information required/ if any

Further information is necessary. We need to know exactly what was said to PC Smith on the radio in order to see if the description truly fitted to the alleged suspect or whether he was being harassed for his previous conviction. Moreover, we need the exact wording used during the stop and search of the client by the two constables and vice versa i.e. how the alleged suspect react when he saw the two constables.

A timetable is also necessary as to what happened previous his detention is authorized at the police station i.e. during the time he was kept from the two constables. Finally, details and receipts from the items that have been destroyed.

Summary

For the reasons outlined above, the claim, in my opinion, has an arguable case for wrongful arrest, false imprisonment and trespass to the person (assault or battery).

A deprivation of liberty constitutes false imprisonment if it unlawful. In other words, if it has been carried out without the correct authority or following the correct procedure: see Brown [16] . In addition, any unlawful detention amounts to false imprisonment: see Spicer v. Holt [17] .

In addition to being an offence at common law, this also arguably constitutes a breach of s. Human Rights Act 1998 in that it would arguably violate Article 5 (right to freedom and liberty) of the European Convention of Human Rights .

The claimant is therefore advised to initiate proceedings in the county courts for wrongful arrest, false imprisonment and trespass to the person and property, advisedly through a solicitor. In the Particulars of Claim he should list compensation for his glasses, jacket and front door, and damages for injuries sustained to be assessed by the court.

In my opinion, given that the police powers were not complied with fully, the arrest is arguably unlawful for the above reasons and accordingly the use of force is also unlawful and arguably constitutes common assault / battery.

Primary Sources

Code of Practice A/C/G

Criminal Justice & Public Order Act 1994

Criminal Law Act 1967

Human Rights Act 1998

Police & Criminal Evidence Act 1984

Police Reform Act 2002

Allen v. Metropolitan Police Commissioner [1980] Crim LR 441

Beckford [1991] 94 Cr App R 43

Brown [1976] 64 Cr App R 231

Christie v. Leachinsky [1947] AC 573 at p. 600

Dawes v. DPP [1994] Crim LR 604

DPP v. L [1999] Crim LR 752

DPP v. Wilson [1991] RTR 284

Holgate-Mohammed v. Duke [1984] AC 437

King v. Gardner [1979] 71 Cr App R 13

Lockley [1864] 4 F & F 155

Mepstead v. DPP [1996] 160 JP 475

Nicholas v. Parsonage [1987] RTR 199

O’Hara v. Chief Constable RUC [1997] 2 WLR 1

Osman v. DPP [1999] 163 JP 725 The Times, 28 September 1999

Roberts v. Chief Constable of the Cheshire Constabularly [1999] 1 WLR 662

Simpson v. Chief Constable of South Yorkshire Police [1991] 135 5J 393 The Times, 7 March 1991

Spicer v. Holt [1970] AC 987

Secondary Sources

Constitutional & Administrative Law, Antony Wilfer Bradley, Keith D. Ewing

Constitutional & Administrative Law, Hilaire Barnett, 7th Edition, 2009, Routlege, Cavendish

Core Statutes On Public Law And Human Rights, Rhona Smith, 2009, Palgrave-Mcmillan

P. Murphy (Editor-in-Chief), Blackstone’s Criminal Practice, 2000, Blackstone Press

The English Legal System, Garry Slapper, David Kelly, 7th Edition, Cavendish Publishing

Q & A Public Law, Richard Clements, Philip Jones, 2009-2010, Oxford University Press

The Relationship Between The English Legal System And International Law International Law Essay

The essay deals with the relationship between the English legal system and international law. Although there is some discrepancy among the two systems, they merge at some points. Looking at the theories around this issue, our domestic legal order seems to follow the dualist approach. Nonetheless, both the attitude of international law towards municipal rules and the approach as regards the law of the nations by the English legal system need to be examined. Even though the international legal machine does not permit a state to use its domestic law as a defence to violation of its international obligations, it does not entirely ignore municipal law rules. This means that there is an overlap between the two systems. Apart from that, by observing the reaction of the English legal system to treaty law it appears that conventions should be domesticated, through transformation, by an Act of Parliament. It should be noted that this is an expression of the dualist approach. In addition, mention is made to the attitude of our domestic legal system towards customary international law, which tends to be unsteady. Despite the fact that international custom was considered to be incorporated in English law for years, according to recent cases there seems to be a change towards the transformation doctrine. Moreover, though there are areas of international law where the English courts cannot intervene, the law of the nations is not utterly distant from our domestic legal system. As a matter of fact, albeit some differences between the two legal systems they have influence upon each other.  

Introduction

Nowadays, a close observation of international law will reveal an enormous development in its substance. As a matter of fact, this distinct system of law, which regulates the interrelationship of sovereign states, deals with exceptionally significant matters like human rights, war and international crimes. At this point, a question that might be asked by a person reading regularly the International News section in a British newspaper will be the following: ‘Given the importance of international law and its common interests in certain fields with the English legal system, what is their relationship? Is there an overlap or a gap between them? ‘ In order to provide a reliable answer, we should examine the position of municipal law within the international sphere and mainly how the English legal system responds to treaty and customary international law.

Theories on the relationship of international and internal law

Among other things, scholars attempted to explain the relationship between international and domestic law through various theories. Most persistent have been the theories of monism and of dualism. On the one hand, monists (like Lauterpacht) argue that there is a single legal order with international law at the peak and all national rules below it in the hierarchy. [1] In contrast, under the dualist theory supported, supported by Oppenheim and Triepel, international and municipal are two different legal systems existing side by side but operating in different arenas. [2] Indeed, jus gentium is a law between independent states whereas domestic law applies within a state regulating the relations of its citizens with each other and with the executive. Accordingly, international law rules to be considered have to be domesticated through adoption or transformation by the national legislature.

In general, it seems that various countries have adopted one or the other doctrine with many common law countries supporting the dualist view while civilian systems subscribe to the monist school of thought. Nevertheless, there are elements of both perspectives in the jurisprudence of many states. Therefore, the opposing schools of dualism and monism do not adequately reflect actual state practice. [3] Specifically, Fitzmaurice characterizes the monist-dualist controversy as ‘unreal and artificial’ since each system is supreme in its own field. [4] 

Even though the English legal system tends to employ the dualist approach [5] , before forming a whether or not it never meets the law of the nations, an assessment of their attitude towards each other ought to be conducted.

The position of English-municipal rules in international law

Undoubtedly, in the practice of international courts and tribunals there is a dividing line between international and domestic law. They have established principles regarding the application of municipal law within the international legal system. As a general rule, a state cannot justify the violation of its international obligations by relying upon its domestic legal situation. [6] This provision has been established by state practice and decided cases.

To start with, the Vienna Convention on the Law of Treaties 1969 (hereafter ‘VCLT’) states that a ‘party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’. [7] In addition, non-compliance with municipal law rules on the competence to make treaties may not generally be invoked by a state to invalidate its consent to a convention, except if the infringement of its domestic law in question is ‘manifest and concerned a rule of fundamental importance’. [8] 

Apart from that, case-law illustrates the above principle. For instance, in the Alabama Claims Arbitration [9] , albeit the absence of British legislation necessary to intervene with the private construction and sailing of the ship concerned, Great Britain violated its obligations as a neutral in the United States Civil War by allowing the departure to occur. Further, reference should be made to the decision of the International Court of Justice in the Applicability of the Obligation to Arbitrate under Article 21 of the UN Headquarters Agreement of 26 June 1947 [10] , where it was emphasized that ‘the fundamental principle of international law is that international law prevails over domestic law’. [11] This was re-affirmed in the La Grand [12] case, where the US procedural default rule could not affect the liability of the USA for the breach of the Vienna Convention on Consular Relations 1963.

Besides, it is obvious that there is a general duty for states to bring domestic law into conformity with international obligations. As shown in the Exchange of Greek and Turkish Populations [13] case, international law rules can be translated into internal law by any method that the domestic jurisdiction of states wishes to apply. Even a failure to bring municipal law into line with its international obligations is not in itself a direct contravention of international law and a violation occurs only when the state concerned could not fulfil its obligations on a specific occasion. [14] 

Additionally, it must be noted that international law cannot entirely ignore municipal law which plays a crucial role in the operation of the international legal machine. [15] We should not forget that domestic law may be used as evidence of international custom leading to the growth of this source. There have been occasions that were decided solely on the basis of the municipal law of a particular case. [16] What is more, in the case of Certain German Interests in Polish Upper Silesia [17] it was underlined that domestic court decisions and legislative measures may comprise evidence of conduct by the state concerned which can essentially create international responsibility. As a result, internal law rules have numerous functions on the international plane and they should not be utterly marginalized.

The attitude of English law to international law

Aside from the response of the international legal apparatus to municipal rules, it is more essential to take note of the approach of the English legal system to the law of nations in our attempt to find whether they have a hidden meeting place. It is inevitable that the escalating permeation of international legal rules within domestic systems influences the way English law reacts to jus gentium. The next two sections pertaining to the status of international treaties and customary law in our domestic system will help us discover if the two systems merge. National legal systems are free to select how they implement these two sources of international law and their choice of materials varies greatly. [18] It is worth mentioning that there is a dichotomy between the rule for treaties and that for customary law, surrounding the application of international law by English courts. [19] 

Treaty Law Approach

In England, the fact that the conclusion of treaties is within the prerogative of the Crown determines the way that treaty law is approached. There is no doubt that in the absence of a transformation doctrine, which leads to the conversion of international law into municipal law by an Act of Parliament, the executive would be able to legislate without the legislature. [20] This doctrine is an expression of the dualist position, separating the two systems of law and requiring the translation of treaties into domestic legislation. [21] 

One of the first cases establishing that a treaty cannot adversely impact private law rights unless it has been made a part of British law by Parliament is the Parlement Belge case. [22] This principle was reinforced in the International Tin Council Case [23] where Lord Oliver clarified that ‘a treaty is not part of English law unless and until it has been incorporated into the law by legislation’. [24] On the other hand, Jennings criticizes the doctrine in the above judgment because it underestimates the role of international law and creates a distance between the two systems. [25] Although only treaties in relation to the conduct of war and cession do not require transformation, Fox points out that the House of Lords in R v Bow Street Metropolitan Stipendiary Magistrate, ex. Parte Pinochet Ugarte (No. 3) [26] disregarded such a constitutional principle and implemented in English law unincorporated treaty obligations on the immunity of the Former Head of State. [27] 

Furthermore, the distinct reaction of the English legal system to the European Convention on Human Rights (hereafter ‘ECHR’) and to binding decisions of the United Nations should be examined. Since 1974, English courts have consistently taken ECHR into account while applying statutes, though it was unincorporated. [28] Andrew Cunningham maintains that such an approach is not well justified when other unincorporated conventions and instruments are sidestepped. [29] Nonetheless, an obscure point that should be elucidated is that the English legal system did not abandon dualism in human rights cases as it insists that an unincorporated treaty cannot prevail over a contradicting statute. [30] Even after the enactment of the Human Rights Act 1998 which incorporated the ECHR, the validity of any incompatible primary legislation might not be affected given the provision in section 3(1). As regards the resolutions of the Security Council, the UK has implemented the United Nations Act 1946. It is evident that even Security Council decisions are not self-executing and in the case of UN sanctions they can be only enforced as a consequence of this piece of domestic legislation with which the Crown can adopt Orders in Council.

It is noteworthy that in spite of the ‘Ponsonby rule’, where signed treaties subject to ratification, acceptance, approval or accession have to be laid before Parliament at least twenty-one days before any of these actions is taken, the UK practice suggests that a ratified treaty becomes effective only in international law. Apparently, the English legal system is hesitant to apply directly treaty law in its municipal law. Yet, it is at least accepted that the text of Conventions can be used as an aid to statutory interpretation. Admittedly, in the Salomon [31] case it was made clear that the Crown does not intend to break an international treaty and the convention might be utilised when domestic legislation is ambiguous. The above principle was strengthened when Lord Diplock in Fothergill v Monarch Airlines [32] encouraged the courts to use the rules for interpretation of unincorporated treaties in the VCLT. Despite this, Gardiner has observed that the judiciary in England is not eager to apply the Vienna rules systematically, indicating a reluctance to acknowledge the importance of international law in the domestic system. [33] 

Customary International Law Approach

Moreover, we need to analyse the status of customary international law in the English legal system to find out its relationship with the law of nations. The decided cases illuminate that the attitude of our domestic system towards customary international law is in a state of flux. Initially, the dominant British approach to international custom was the doctrine of incorporation where customary rules are regarded part of the land. According to Lord Talbot in Buvot v Barbuit [34] ‘the law of nations in its full extent was part of the law of England’. This principle was restated twenty-seven years later by Lord Mansfield in Triquet v Bath. [35] 

On the contrary, nineteenth century cases appear to displace the doctrine of incorporation by that of transformation. [36] In fact, the case of R v Keyn [37] demonstrates that a customary rule can become a rule of English law only if it is translated into the latter by statute or a judicial decision. Conversely, this judgment is considered to be equivocal since it dealt primarily with the existence of a rule of international law relating to jurisdiction in the territorial sea. [38] Mention should be also made to Lord Atkin’s speech in Chung Chi Cheung v The King [39] where he highlighted that international law is invalid unless adopted by the English law. [40] However, O’ Keefe claims that Lord Atkin’s statement did not mean that customary international law was not part of our municipal law. [41] Instead, his Lordship tried to pass the message that international custom does not take precedence over English law and it is admitted in our domestic legal system where it can play a vital role.

It is axiomatic that the approach of the English judiciary to customary international law is relatively unstable. Although, Lord Denning followed the dualistic-transformation doctrine in R v Secretary of State for the Home Department ex parte Thakrar [42] , he changed his mind in Trendtex Trading Corporation Ltd v Central Bank of Nigeria [43] where he adopted the incorporation approach. This was because he believed that jus gentium does not recognise stare decisis and the latter doctrine would help English law to react to the frequent changes that customary international law undergoes. White feels that transformation is inflexible and the decision in Trendtex is welcome as it helps English courts to be more responsive to international law. [44] Yet, it ought to be clarified that in a case of conflict between international custom and an Act of Parliament, the statute prevails. [45] 

On balance, by bearing in mind the seminal decision in Trendtex which was followed by Maclaine Watson v Department of Trade and Industry [46] , O’Keefe correctly deduces that dualism is the principal principle in English law which just permits customary international law a limited direct applicability. [47] Alternatively, in the light of recent cases he might have second thoughts for his conclusion. In particular, Lord Bingham in R v Jones [48] was unwilling to accept that international law is a part of our domestic legal system. As an alternative, he preferred that perspective expressed by Brierly that ‘international law is one of the sources of English law’. [49] Despite the fact that it was acknowledged that international custom ‘may be assimilated into domestic criminal law’, the incorporation approach was not applied to the international law crime of aggression. [50] Aside from this, in Al-Haq v Secretary of State for Foreign and Commonwealth Affairs [51] Cranston J recognised that customary international law applied in municipal law without transposition is inconsistent with our dualist system. [52] 

Consequently, it is clear that the question whether international custom ought to be incorporated into domestic law is tremendously complicated and according to Pill LJ is ‘not susceptible to a simple or general answer’. [53] Obviously, there are doubts even about the restricted direct applicability of customary international law in the English legal system. With regard to the role of the English judiciary, Capps supports that it acts as a ‘gatekeeper’ between the international and our domestic legal order. [54] 

Non-justiciability issue and the relation of executive and judiciary

A brief reference on the doctrine of non-justiciability will explain why the domestic legal system might be distant from the international legal order. It is inescapable that there might be questions of international law that English courts are not competent to answer. For example, in Buttes Gas and Oil Co v Hammer (No. 3) [55] , which concerned a dispute about the territorial waters of Sharjah in the Persia Gulf, an English court did not have the judicial standards to judge the issues of international law. Lord Wilberforce stressed the principle of judicial restraint in adjudicating upon the acts of foreign sovereign states. [56] Nevertheless, the non-justiciability rule is subject to exceptions. It is unavoidably inapplicable in instances relating to the transactions of foreign states which infringe international law. In illustration, the case of Kuwait Airways Corporation v Iraqi Airways Company [57] showed that an English court could not ignore a breach of international law committed by Iraq against Kuwait as far as the violation was ‘acknowledged’. [58] 

It should not be omitted that the special nature of international law is reflected in the practice of the British courts which will defer to the executive on certain factual issues. The courts need to seek the guidance of the Foreign Office which produces certificates on the determination of a number of topics such as the sovereign status of a foreign state, the recognition of governments, the commencement and termination of a state of war against another country and the incidence of diplomatic immunity. [59] Such certificates are conclusive when they are unambiguous as to facts based on the ‘one voice’ doctrine where the judiciary and the executive ought to follow the same line on matters relating to foreign affairs. [60] In the case of R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Trawnik [61] it was maintained that a certificate under the State Immunity Act 1978 is not subject to judicial review unless it constitutes a nullity. On the other hand, it is worth noting that the courts may sometimes go outside the information given in the Foreign Office certificate in their attempt to resolve the issue before them. This was proved in the case of Re Al-Fin Corporation’s Patent [62] where it was held that Foreign Office certificates are not considered as conclusive in the interpretation of statutes or the construction of documents.

Conclusion

In conclusion, it is plain that there are numerous difficulties raised in this complex area of the interaction of international and municipal law. Nevertheless, the person reading the International News section in a British newspaper will realise that in spite of the preference shown to the dualist approach by the English legal system and its various differences with the international legal apparatus, the two systems trust each other and have some meeting places. As we have seen, the international legal machine takes heed of municipal rules and at the same time in the United Kingdom judicial notice is taken of the rules of public international law. Even though treaty and customary international law need to be exchanged to ‘domestic currency’, the English legal order and the law of nations are not completely distinct legal systems and indisputably influence each other. A happy relationship exists between international and domestic law but it will always experience changes.

The essay deals with the relationship between the English legal system and international law. Although there is some discrepancy among the two systems, they merge at some points. Looking at the theories around this issue, our domestic legal order seems to follow the dualist approach. Nonetheless, both the attitude of international law towards municipal rules and the approach as regards the law of the nations by the English legal system need to be examined. Even though the international legal machine does not permit a state to use its domestic law as a defence to violation of its international obligations, it does not entirely ignore municipal law rules. This means that there is an overlap between the two systems. Apart from that, by observing the reaction of the English legal system to treaty law it appears that conventions should be domesticated, through transformation, by an Act of Parliament. It should be noted that this is an expression of the dualist approach. In addition, mention is made to the attitude of our domestic legal system towards customary international law, which tends to be unsteady. Despite the fact that international custom was considered to be incorporated in English law for years, according to recent cases there seems to be a change towards the transformation doctrine. Moreover, though there are areas of international law where the English courts cannot intervene, the law of the nations is not utterly distant from our domestic legal system. As a matter of fact, albeit some differences between the two legal systems they have influence upon each other.  

Introduction

Nowadays, a close observation of international law will reveal an enormous development in its substance. As a matter of fact, this distinct system of law, which regulates the interrelationship of sovereign states, deals with exceptionally significant matters like human rights, war and international crimes. At this point, a question that might be asked by a person reading regularly the International News section in a British newspaper will be the following: ‘Given the importance of international law and its common interests in certain fields with the English legal system, what is their relationship? Is there an overlap or a gap between them? ‘ In order to provide a reliable answer, we should examine the position of municipal law within the international sphere and mainly how the English legal system responds to treaty and customary international law.

Theories on the relationship of international and internal law

Among other things, scholars attempted to explain the relationship between international and domestic law through various theories. Most persistent have been the theories of monism and of dualism. On the one hand, monists (like Lauterpacht) argue that there is a single legal order with international law at the peak and all national rules below it in the hierarchy. [1] In contrast, under the dualist theory supported, supported by Oppenheim and Triepel, international and municipal are two different legal systems existing side by side but operating in different arenas. [2] Indeed, jus gentium is a law between independent states whereas domestic law applies within a state regulating the relations of its citizens with each other and with the executive. Accordingly, international law rules to be considered have to be domesticated through adoption or transformation by the national legislature.

In general, it seems that various countries have adopted one or the other doctrine with many common law countries supporting the dualist view while civilian systems subscribe to the monist school of thought. Nevertheless, there are elements of both perspectives in the jurisprudence of many states. Therefore, the opposing schools of dualism and monism do not adequately reflect actual state practice. [3] Specifically, Fitzmaurice characterizes the monist-dualist controversy as ‘unreal and artificial’ since each system is supreme in its own field. [4] 

Even though the English legal system tends to employ the dualist approach [5] , before forming a whether or not it never meets the law of the nations, an assessment of their attitude towards each other ought to be conducted.

The position of English-municipal rules in international law

Undoubtedly, in the practice of international courts and tribunals there is a dividing line between international and domestic law. They have established principles regarding the application of municipal law within the international legal system. As a general rule, a state cannot justify the violation of its international obligations by relying upon its domestic legal situation. [6] This provision has been established by state practice and decided cases.

To start with, the Vienna Convention on the Law of Treaties 1969 (hereafter ‘VCLT’) states that a ‘party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’. [7] In addition, non-compliance with municipal law rules on the competence to make treaties may not generally be invoked by a state to invalidate its consent to a convention, except if the infringement of its domestic law in question is ‘manifest and concerned a rule of fundamental importance’. [8] 

Apart from that, case-law illustrates the above principle. For instance, in the Alabama Claims Arbitration [9] , albeit the absence of British legislation necessary to intervene with the private construction and sailing of the ship concerned, Great Britain violated its obligations as a neutral in the United States Civil War by allowing the departure to occur. Further, reference should be made to the decision of the International Court of Justice in the Applicability of the Obligation to Arbitrate under Article 21 of the UN Headquarters Agreement of 26 June 1947 [10] , where it was emphasized that ‘the fundamental principle of international law is that international law prevails over domestic law’. [11] This was re-affirmed in the La Grand [12] case, where the US procedural default rule could not affect the liability of the USA for the breach of the Vienna Convention on Consular Relations 1963.

Besides, it is obvious that there is a general duty for states to bring domestic law into conformity with international obligations. As shown in the Exchange of Greek and Turkish Populations [13] case, international law rules can be translated into internal law by any method that the domestic jurisdiction of states wishes to apply. Even a failure to bring municipal law into line with its international obligations is not in itself a direct contravention of international law and a violation occurs only when the state concerned could not fulfil its obligations on a specific occasion. [14] 

Additionally, it must be noted that international law cannot entirely ignore municipal law which plays a crucial role in the operation of the international legal machine. [15] We should not forget that domestic law may be used as evidence of international custom leading to the growth of this source. There have been occasions that were decided solely on the basis of the municipal law of a particular case. [16] What is more, in the case of Certain German Interests in Polish Upper Silesia [17] it was underlined that domestic court decisions and legislative measures may comprise evidence of conduct by the state concerned which can essentially create international responsibility. As a result, internal law rules have numerous functions on the international plane and they should not be utterly marginalized.

The attitude of English law to international law

Aside from the response of the international legal apparatus to municipal rules, it is more essential to take note of the approach of the English legal system to the law of nations in our attempt to find whether they have a hidden meeting place. It is inevitable that the escalating permeation of international legal rules within domestic systems influences the way English law reacts to jus gentium. The next two sections pertaining to the status of international treaties and customary law in our domestic system will help us discover if the two systems merge. National legal systems are free to select how they implement these two sources of international law and their choice of materials varies greatly. [18] It is worth mentioning that there is a dichotomy between the rule for treaties and that for customary law, surrounding the application of international law by English courts. [19] 

Treaty Law Approach

In England, the fact that the conclusion of treaties is within the prerogative of the Crown determines the way that treaty law is approached. There is no doubt that in the absence of a transformation doctrine, which leads to the conversion of international law into municipal law by an Act of Parliament, the executive would be able to legislate without the legislature. [20] This doctrine is an expression of the dualist position, separating the two systems of law and requiring the translation of treaties into domestic legislation. [21] 

One of the first cases establishing that a treaty cannot adversely impact private law rights unless it has been made a part of British law by Parliament is the Parlement Belge case. [22] This principle was reinforced in the International Tin Council Case [23] where Lord Oliver clarified that ‘a treaty is not part of English law unless and until it has been incorporated into the law by legislation’. [24] On the other hand, Jennings criticizes the doctrine in the above judgment because it underestimates the role of international law and creates a distance between the two systems. [25] Although only treaties in relation to the conduct of war and cession do not require transformation, Fox points out that the House of Lords in R v Bow Street Metropolitan Stipendiary Magistrate, ex. Parte Pinochet Ugarte (No. 3) [26] disregarded such a constitutional principle and implemented in English law unincorporated treaty obligations on the immunity of the Former Head of State. [27] 

Furthermore, the distinct reaction of the English legal system to the European Convention on Human Rights (hereafter ‘ECHR’) and to binding decisions of the United Nations should be examined. Since 1974, English courts have consistently taken ECHR into account while applying statutes, though it was unincorporated. [28] Andrew Cunningham maintains that such an approach is not well justified when other unincorporated conventions and instruments are sidestepped. [29] Nonetheless, an obscure point that should be elucidated is that the English legal system did not abandon dualism in human rights cases as it insists that an unincorporated treaty cannot prevail over a contradicting statute. [30] Even after the enactment of the Human Rights Act 1998 which incorporated the ECHR, the validity of any incompatible primary legislation might not be affected given the provision in section 3(1). As regards the resolutions of the Security Council, the UK has implemented the United Nations Act 1946. It is evident that even Security Council decisions are not self-executing and in the case of UN sanctions they can be only enforced as a consequence of this piece of domestic legislation with which the Crown can adopt Orders in Council.

It is noteworthy that in spite of the ‘Ponsonby rule’, where signed treaties subject to ratification, acceptance, approval or accession have to be laid before Parliament at least twenty-one days before any of these actions is taken, the UK practice suggests that a ratified treaty becomes effective only in international law. Apparently, the English legal system is hesitant to apply directly treaty law in its municipal law. Yet, it is at least accepted that the text of Conventions can be used as an aid to statutory interpretation. Admittedly, in the Salomon [31] case it was made clear that the Crown does not intend to break an international treaty and the convention might be utilised when domestic legislation is ambiguous. The above principle was strengthened when Lord Diplock in Fothergill v Monarch Airlines [32] encouraged the courts to use the rules for interpretation of unincorporated treaties in the VCLT. Despite this, Gardiner has observed that the judiciary in England is not eager to apply the Vienna rules systematically, indicating a reluctance to acknowledge the importance of international law in the domestic system. [33] 

Customary International Law Approach

Moreover, we need to analyse the status of customary international law in the English legal system to find out its relationship with the law of nations. The decided cases illuminate that the attitude of our domestic system towards customary international law is in a state of flux. Initially, the dominant British approach to international custom was the doctrine of incorporation where customary rules are regarded part of the land. According to Lord Talbot in Buvot v Barbuit [34] ‘the law of nations in its full extent was part of the law of England’. This principle was restated twenty-seven years later by Lord Mansfield in Triquet v Bath. [35] 

On the contrary, nineteenth century cases appear to displace the doctrine of incorporation by that of transformation. [36] In fact, the case of R v Keyn [37] demonstrates that a customary rule can become a rule of English law only if it is translated into the latter by statute or a judicial decision. Conversely, this judgment is considered to be equivocal since it dealt primarily with the existence of a rule of international law relating to jurisdiction in the territorial sea. [38] Mention should be also made to Lord Atkin’s speech in Chung Chi Cheung v The King [39] where he highlighted that international law is invalid unless adopted by the English law. [40] However, O’ Keefe claims that Lord Atkin’s statement did not mean that customary international law was not part of our municipal law. [41] Instead, his Lordship tried to pass the message that international custom does not take precedence over English law and it is admitted in our domestic legal system where it can play a vital role.

It is axiomatic that the approach of the English judiciary to customary international law is relatively unstable. Although, Lord Denning followed the dualistic-transformation doctrine in R v Secretary of State for the Home Department ex parte Thakrar [42] , he changed his mind in Trendtex Trading Corporation Ltd v Central Bank of Nigeria [43] where he adopted the incorporation approach. This was because he believed that jus gentium does not recognise stare decisis and the latter doctrine would help English law to react to the frequent changes that customary international law undergoes. White feels that transformation is inflexible and the decision in Trendtex is welcome as it helps English courts to be more responsive to international law. [44] Yet, it ought to be clarified that in a case of conflict between international custom and an Act of Parliament, the statute prevails. [45] 

On balance, by bearing in mind the seminal decision in Trendtex which was followed by Maclaine Watson v Department of Trade and Industry [46] , O’Keefe correctly deduces that dualism is the principal principle in English law which just permits customary international law a limited direct applicability. [47] Alternatively, in the light of recent cases he might have second thoughts for his conclusion. In particular, Lord Bingham in R v Jones [48] was unwilling to accept that international law is a part of our domestic legal system. As an alternative, he preferred that perspective expressed by Brierly that ‘international law is one of the sources of English law’. [49] Despite the fact that it was acknowledged that international custom ‘may be assimilated into domestic criminal law’, the incorporation approach was not applied to the international law crime of aggression. [50] Aside from this, in Al-Haq v Secretary of State for Foreign and Commonwealth Affairs [51] Cranston J recognised that customary international law applied in municipal law without transposition is inconsistent with our dualist system. [52] 

Consequently, it is clear that the question whether international custom ought to be incorporated into domestic law is tremendously complicated and according to Pill LJ is ‘not susceptible to a simple or general answer’. [53] Obviously, there are doubts even about the restricted direct applicability of customary international law in the English legal system. With regard to the role of the English judiciary, Capps supports that it acts as a ‘gatekeeper’ between the international and our domestic legal order. [54] 

Non-justiciability issue and the relation of executive and judiciary

A brief reference on the doctrine of non-justiciability will explain why the domestic legal system might be distant from the international legal order. It is inescapable that there might be questions of international law that English courts are not competent to answer. For example, in Buttes Gas and Oil Co v Hammer (No. 3) [55] , which concerned a dispute about the territorial waters of Sharjah in the Persia Gulf, an English court did not have the judicial standards to judge the issues of international law. Lord Wilberforce stressed the principle of judicial restraint in adjudicating upon the acts of foreign sovereign states. [56] Nevertheless, the non-justiciability rule is subject to exceptions. It is unavoidably inapplicable in instances relating to the transactions of foreign states which infringe international law. In illustration, the case of Kuwait Airways Corporation v Iraqi Airways Company [57] showed that an English court could not ignore a breach of international law committed by Iraq against Kuwait as far as the violation was ‘acknowledged’. [58] 

It should not be omitted that the special nature of international law is reflected in the practice of the British courts which will defer to the executive on certain factual issues. The courts need to seek the guidance of the Foreign Office which produces certificates on the determination of a number of topics such as the sovereign status of a foreign state, the recognition of governments, the commencement and termination of a state of war against another country and the incidence of diplomatic immunity. [59] Such certificates are conclusive when they are unambiguous as to facts based on the ‘one voice’ doctrine where the judiciary and the executive ought to follow the same line on matters relating to foreign affairs. [60] In the case of R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Trawnik [61] it was maintained that a certificate under the State Immunity Act 1978 is not subject to judicial review unless it constitutes a nullity. On the other hand, it is worth noting that the courts may sometimes go outside the information given in the Foreign Office certificate in their attempt to resolve the issue before them. This was proved in the case of Re Al-Fin Corporation’s Patent [62] where it was held that Foreign Office certificates are not considered as conclusive in the interpretation of statutes or the construction of documents.

Conclusion

In conclusion, it is plain that there are numerous difficulties raised in this complex area of the interaction of international and municipal law. Nevertheless, the person reading the International News section in a British newspaper will realise that in spite of the preference shown to the dualist approach by the English legal system and its various differences with the international legal apparatus, the two systems trust each other and have some meeting places. As we have seen, the international legal machine takes heed of municipal rules and at the same time in the United Kingdom judicial notice is taken of the rules of public international law. Even though treaty and customary international law need to be exchanged to ‘domestic currency’, the English legal order and the law of nations are not completely distinct legal systems and indisputably influence each other. A happy relationship exists between international and domestic law but it will always experience changes.

Certain Omissions Regarded As Criminal Conduct In Scotland Law Essay

There are certain restricted circumstances in Scots Law that an omission is regarded as criminal conduct. The key question to look at is do we have a positive duty to act? In Scots Common law there is no legal obligation if one individual finds another in peril to intervene and assist. However in some circumstances a situation will arise were failure to intervene will result in criminal liability [3] . So it is not what the accused did it is what they did not do. The situations were such intervention is legally required fall into three categories that have to be examined closely with particular reference to specific crucial cases. In addition looking at the significance of the actus reus and the mens rea in relation to appropriate cases. The actus reus has no official definition but it is the physical element of a crime, which includes conduct, omission or situation. The mens rea accompanied by the actus reus would result in criminal liability. [4] To illustrate both in terms of omission I have highlighted specific cases that explain the significance of both

The first circumstances that a failure to act can give rise to criminal liability is “where a dangerous situation has been created by the accused or where the prior actions of the accused has created danger” [5] This type of omission generally follows a positive act, this may be criminal or not. In HM Advocate v McPhee (1935) the accused was charged with murder. McPhee had carried out a violent serious assault on a woman, beating her, repeatedly kicking her, knocking her down and left her unconscious in an open field. [6] Lord Mackay upheld the murder conviction on the grounds that it could be asserted that the accused “wickedly and feloniously exposed the woman regardless of consequences to the inclemency of the weather, and if she died in consequence… both of the beating and exposure” [7] This case found the accused guilty of culpable homicide. In cases similar to McPhee’s an omission will not arise if it can be proven that the accused initial criminal actions caused the victims death. However because McPhee’s assault on the woman had weakened her he had a responsibility to remove her from that situation or aid her in the particular situation which the he had all ready created [8] 

An important case to highlight under this section is MacPhail v Clark (1983). This situation is a little more complicated as the actions of the accused are not criminal but instead his actions were negligent and reckless. However the actions that caused this situation may be regarded as criminal if they cause harm and in this case endanger lives. [9] The farmer in this case had set a fire to burn straw in a field that was upwind from a dual carriage way. The fire had spread causing the smoke to carry onto the road causing bad visibility. This resulted in two vehicles colliding causing injury. [10] The farmer was convicted of recklessly endangering the lieges. [11] It was highlighted that the farmer did nothing wrong in setting the fire in the field, it was the failure to ensure that the fire was safe and would not spread. Reports found that the burning of the straw continued for at least twenty minutes and the farmer continued to plough right up until the arrival of the emergency services. [12] The Farmer had done nothing to stop the fire spreading and continued to allow it to spread onto the road without taking any action to stop the dangerous situation that he had created.

The second circumstances that can give rise to criminal liability are where the accused status or contractual obligation results in a duty to act. [13] This status or contractual obligation is when a person in a public office or position or responsibility has a duty to prevent the occurrence of harm, fails to do so. [14] This means that an onlooker is under a position and duties were they have a responsibility to prevent the offence. If the onlooker fails to do this it may result in criminal liability. [15] Bonar and Hogg v McLeod (1983) highlights a failure to prevent an offence. Mr Bonar was an older and more experienced senior officer who by being present at the scene of the crime and failure to intervene led to art and part guilt. [16] Hogg the officer who assaulted the prisoner, grabbed him by the throat and pushed his arm up his back, then ‘quick marched’ him down the corridor. The excessiveness of the force was unnecessary as the prisoner was neither resisting nor struggling with the officer. [17] During this offence Bonar did not only stand back and allow this to happen but was an active participant in the ‘quick march’ down the corridor. [18] Bonar was regarded as art in part liable for the assault upon the prisoner. [19] 

The third and final situation that intervention is legally required is “where a prior relationship between the accused and the victim which is such that there is a legal obligation to act.” [20] An example of a special relationship would be a mother and child. In Bone v HM Advocate the mother was charged with culpable homicide of her daughter by witnessing and countenancing criminal conduct. [21] The allegations made against Bone were that she wilfully failed to protect her child and also to ensure that her wellbeing was intact or seek medical attention for her injuries. However Bones appealed the conviction and the appeal went in her favour and was quashed [22] . This was on the basis that the “trial judge misdirected the jury by failing to give significant directions of the question of the assessment of whether the appellant had failed to take the reasonable steps to protect her child and ensure her wellbeing”. [23] Due to this it was found that there was a miscarriage of justice and allowed the appeal against the conviction.

Another case of relevance is to look at the relationship between a doctor and a patient. In this particular English case Adamako in 1993 was an anaesthetists in an eye operation were the tube from the ventilator had been detached. Adamako did not notice this for roughly six minutes when the patient went into cardiac arrest. [24] During the trial Adamako was charged with manslaughter by gross negligence, where the accused breached a duty of care towards the patient that resulted in death. [25] Adamako appealed to the House of Lords were the conviction was upheld. Lord Mackay stated that “gross negligence… depends on the seriousness of the breach of the duty committed by defendant in all circumstances in which he was placed when it occurs and whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all circumstances as to amount in the jury’s judgement to a criminal act or omission”. [26] For an involuntary manslaughter by breach of duty to be proved firstly there has to be proof of the existence duty which was apparent in this case – anaesthetists and patient. Secondly, a breach of duty resulting in death. This again occurred when the accused failed to see the detachment of the ventilator which led to cardiac arrest. Finally the jury must consider the gross negligence as justified for a criminal conviction. [27] 

In HM Advocate v McPhee a case mentioned earlier it is important to consider the significance of actus reus and mens rea. McPhee omits to the assault on the woman so therefore this can constitute to the actus reas of the crime. McPhee had severely beaten the woman and therefore weakening her putting her in a dangerous situation which lead to her death. [28] Paterson v Lees is a case of relevance that highlights the significance of the mens rea applied in a case of omission. Paterson was charged with inter alia, conducting himself in a shamelessly indecent manner. Paterson was babysitting his neighbour’s children a 9 year old little girl and an 11 year old boy. The original statement made was that the appellant ‘did conduct [himself] is a shamelessly indecent manner towards [the female complainer aged 9 and the male complainer aged 11] and did show them a film of an obscene and indecent nature which depicted acts of human sexual intercourse’. [29] What was illustrated in the case was that the appellant had allowed the children to continue watching the video – he omitted to stop the children viewing the video. The Appeal Court was unanimous in the decision that the charge of shameless indecency could not be committed in this way. The issue here was that it was not a crime to permit children to view indecent material. [30] In common law shamelessly indecent conduct is an offence therefore it involves the element of mens rea. Therefore it must be proved that Paterson has the appropriate mens rea in this case it would be an intention to commit the offence – this would involve switching on the material either intending to corrupt or deprave or knowledge that the material is liable to corrupt or deprave. [31] Due to this element of mens rea Paterson’s appeal was allowed.

To conclude, the failure to act in some circumstances can under Scots law lead to criminal liability. When looking at omissions it is important to establish the requirements that lead to an omission and the elements of actus reus and mens rea. They all play vital roles in illustrating the complexity of being liable in certain circumstances and the wide variety of cases that involve omissions.

There are certain restricted circumstances in Scots Law that an omission is regarded as criminal conduct. The key question to look at is do we have a positive duty to act? In Scots Common law there is no legal obligation if one individual finds another in peril to intervene and assist. However in some circumstances a situation will arise were failure to intervene will result in criminal liability [3] . So it is not what the accused did it is what they did not do. The situations were such intervention is legally required fall into three categories that have to be examined closely with particular reference to specific crucial cases. In addition looking at the significance of the actus reus and the mens rea in relation to appropriate cases. The actus reus has no official definition but it is the physical element of a crime, which includes conduct, omission or situation. The mens rea accompanied by the actus reus would result in criminal liability. [4] To illustrate both in terms of omission I have highlighted specific cases that explain the significance of both

The first circumstances that a failure to act can give rise to criminal liability is “where a dangerous situation has been created by the accused or where the prior actions of the accused has created danger” [5] This type of omission generally follows a positive act, this may be criminal or not. In HM Advocate v McPhee (1935) the accused was charged with murder. McPhee had carried out a violent serious assault on a woman, beating her, repeatedly kicking her, knocking her down and left her unconscious in an open field. [6] Lord Mackay upheld the murder conviction on the grounds that it could be asserted that the accused “wickedly and feloniously exposed the woman regardless of consequences to the inclemency of the weather, and if she died in consequence… both of the beating and exposure” [7] This case found the accused guilty of culpable homicide. In cases similar to McPhee’s an omission will not arise if it can be proven that the accused initial criminal actions caused the victims death. However because McPhee’s assault on the woman had weakened her he had a responsibility to remove her from that situation or aid her in the particular situation which the he had all ready created [8] 

An important case to highlight under this section is MacPhail v Clark (1983). This situation is a little more complicated as the actions of the accused are not criminal but instead his actions were negligent and reckless. However the actions that caused this situation may be regarded as criminal if they cause harm and in this case endanger lives. [9] The farmer in this case had set a fire to burn straw in a field that was upwind from a dual carriage way. The fire had spread causing the smoke to carry onto the road causing bad visibility. This resulted in two vehicles colliding causing injury. [10] The farmer was convicted of recklessly endangering the lieges. [11] It was highlighted that the farmer did nothing wrong in setting the fire in the field, it was the failure to ensure that the fire was safe and would not spread. Reports found that the burning of the straw continued for at least twenty minutes and the farmer continued to plough right up until the arrival of the emergency services. [12] The Farmer had done nothing to stop the fire spreading and continued to allow it to spread onto the road without taking any action to stop the dangerous situation that he had created.

The second circumstances that can give rise to criminal liability are where the accused status or contractual obligation results in a duty to act. [13] This status or contractual obligation is when a person in a public office or position or responsibility has a duty to prevent the occurrence of harm, fails to do so. [14] This means that an onlooker is under a position and duties were they have a responsibility to prevent the offence. If the onlooker fails to do this it may result in criminal liability. [15] Bonar and Hogg v McLeod (1983) highlights a failure to prevent an offence. Mr Bonar was an older and more experienced senior officer who by being present at the scene of the crime and failure to intervene led to art and part guilt. [16] Hogg the officer who assaulted the prisoner, grabbed him by the throat and pushed his arm up his back, then ‘quick marched’ him down the corridor. The excessiveness of the force was unnecessary as the prisoner was neither resisting nor struggling with the officer. [17] During this offence Bonar did not only stand back and allow this to happen but was an active participant in the ‘quick march’ down the corridor. [18] Bonar was regarded as art in part liable for the assault upon the prisoner. [19] 

The third and final situation that intervention is legally required is “where a prior relationship between the accused and the victim which is such that there is a legal obligation to act.” [20] An example of a special relationship would be a mother and child. In Bone v HM Advocate the mother was charged with culpable homicide of her daughter by witnessing and countenancing criminal conduct. [21] The allegations made against Bone were that she wilfully failed to protect her child and also to ensure that her wellbeing was intact or seek medical attention for her injuries. However Bones appealed the conviction and the appeal went in her favour and was quashed [22] . This was on the basis that the “trial judge misdirected the jury by failing to give significant directions of the question of the assessment of whether the appellant had failed to take the reasonable steps to protect her child and ensure her wellbeing”. [23] Due to this it was found that there was a miscarriage of justice and allowed the appeal against the conviction.

Another case of relevance is to look at the relationship between a doctor and a patient. In this particular English case Adamako in 1993 was an anaesthetists in an eye operation were the tube from the ventilator had been detached. Adamako did not notice this for roughly six minutes when the patient went into cardiac arrest. [24] During the trial Adamako was charged with manslaughter by gross negligence, where the accused breached a duty of care towards the patient that resulted in death. [25] Adamako appealed to the House of Lords were the conviction was upheld. Lord Mackay stated that “gross negligence… depends on the seriousness of the breach of the duty committed by defendant in all circumstances in which he was placed when it occurs and whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all circumstances as to amount in the jury’s judgement to a criminal act or omission”. [26] For an involuntary manslaughter by breach of duty to be proved firstly there has to be proof of the existence duty which was apparent in this case – anaesthetists and patient. Secondly, a breach of duty resulting in death. This again occurred when the accused failed to see the detachment of the ventilator which led to cardiac arrest. Finally the jury must consider the gross negligence as justified for a criminal conviction. [27] 

In HM Advocate v McPhee a case mentioned earlier it is important to consider the significance of actus reus and mens rea. McPhee omits to the assault on the woman so therefore this can constitute to the actus reas of the crime. McPhee had severely beaten the woman and therefore weakening her putting her in a dangerous situation which lead to her death. [28] Paterson v Lees is a case of relevance that highlights the significance of the mens rea applied in a case of omission. Paterson was charged with inter alia, conducting himself in a shamelessly indecent manner. Paterson was babysitting his neighbour’s children a 9 year old little girl and an 11 year old boy. The original statement made was that the appellant ‘did conduct [himself] is a shamelessly indecent manner towards [the female complainer aged 9 and the male complainer aged 11] and did show them a film of an obscene and indecent nature which depicted acts of human sexual intercourse’. [29] What was illustrated in the case was that the appellant had allowed the children to continue watching the video – he omitted to stop the children viewing the video. The Appeal Court was unanimous in the decision that the charge of shameless indecency could not be committed in this way. The issue here was that it was not a crime to permit children to view indecent material. [30] In common law shamelessly indecent conduct is an offence therefore it involves the element of mens rea. Therefore it must be proved that Paterson has the appropriate mens rea in this case it would be an intention to commit the offence – this would involve switching on the material either intending to corrupt or deprave or knowledge that the material is liable to corrupt or deprave. [31] Due to this element of mens rea Paterson’s appeal was allowed.

To conclude, the failure to act in some circumstances can under Scots law lead to criminal liability. When looking at omissions it is important to establish the requirements that lead to an omission and the elements of actus reus and mens rea. They all play vital roles in illustrating the complexity of being liable in certain circumstances and the wide variety of cases that involve omissions.

advantages of presidential systems

One of the advantages of a presidential system is that the head of state is usually elected through a direct mandate. In terms of democracy, this makes the president’s authority more legitimate as he is elected directly by the people as oppose to being appointed indirectly. Another advantage of a presidential system is the stability it brings as presidents are usually elected to fixed terms while a prime minister’s government can fall at anytime. An example of this is in Canada; where in a minority government the leader of the opposition, Michael Ignatieff, could bring down Stephen Harper’s government and has threatened to do so several times. This is in contrast to President Obama’s tenure which is secure till the elections of 2012. Additionally, presidential system allow for the separation of powers as the legislature is a completely different structure and institution. This allows a system of checks and balances to be created, allowing one to monitor the other. Speed and decisiveness can be seen as a positive characteristic of a presidential system, as presidents usually have stronger constitutional powers allowing them to spearhead reform and enact change swiftly.

Conversely, one advantage of a parliamentary system is that it’s faster and easier to pass legislation. This is because the executive branch is part of the legislative branch and is dependent upon the direct or indirect support of it as it usually comprised of members of the legislature. This can be seen in the Canadian system of government where the prime minister and his cabinet is also Member of Parliament. This segues into the advantage that parliamentary systems usually have a higher propensity for having unified governments, as minority governments are the minority. This adds to the government’s ability to pass legislation more quickly, as it is rare for a majority government to have their own legislation defeated, as parliamentary system usually have greater party discipline. Moreover, the lack of a head of state’s veto power also allows legislation to pass more swiftly. Another advantage of a parliamentary system is that power is more evenly diverged. Constitutionally, the prime minister rarely has such high importance of a president. An example of this is how parliamentary systems allow MPs to directly question the prime minister and his government. Also, lower individual importance on the prime minster position can be seen through elections tendencies as there is a higher focus on political party ideas than on the actual person. Lastly, the advantage of the government technically being able to dissolve at any time allows the government to be more accountable and viable. This allows parliament to replace a government or a prime minister if he or she has been lackluster or detrimental to the country. This allows for practicable governments to continue governing while ineffective ones can be disposed of.

Disadvantages to a presidential system include tendencies towards authoritarianism. Because of the overarching power given to one person, presidential systems could quickly transform into authoritarian regimes if circumstances permit. Also the centralization of authority could lead to the president becoming a more influential figure in society and the media. This high priority on the president could lower and undermine civic participation as people might feel they cannot play an active role in lawmaking or place a lower significance on the legislative branches of government relative to the executive. Furthermore, separation of powers is also seen as a disadvantage of the presidential system as it might create gridlock and stalemates within the government. One example of this could be if the President continues to veto bills that the legislature ratifies, impeding government from passing laws. This can be seen in 1995 when Democrat Bill Clinton was president with a Republican controlled Congress. The government could not get consensus on anything, not even on a budget. Lastly, impediments to leadership change can be seen as another disadvantage as it can be more difficult to remove an unsuitable president from office before her term is concluded, creating a potential situation where an idol or unhelpful president could not be removed and be replaced a better alternative.

On the other hand, disadvantages to a parliamentary system include that the head of government is usually not directly elected. This is because the prime minister is typically elected by the legislature or the party in power, which normally means the party leadership. In addition, another disadvantage in the parliamentary system is that there is no independent body to oppose and veto legislation approved by parliament, and thus a lack of a cohesive checks and balance system. Also, because of the shortage in the separation of powers, parliamentary systems could instill too much power in the executive. This is because MPs usually have to adhere to parliamentary discipline, and cannot vote based on their own judgments or constituencies. Furthermore, as elections in parliamentary systems usually result in a majority government, this could lead to the “tyranny of the majority” resulting in the minority parties to be marginalized as they would have little to no input in government legislation. Moreover, parliamentary systems can be seen as inherently unstable, if minority governments are elected and coalition governments are formed as the government can be brought down at any time. Opponents of the parliamentary system point to Japan’s recent instabilities and constant replacing of prime ministers as well as Weimar Germany as examples where unstable coalitions, belligerent minority parties, and constant threats of the government being voted down by opposition parties. Lastly, the parliamentary system lack of a definite election calendar can be mistreated to allow parties to gain political advantages. The governing party can schedule elections with relative freedom, and avoid elections when it is unpopular. Indeed, in a Canadian context, Prime Minister Stephen Harper defeated his own government because polls showed that he had the ability to win a majority at the time. This gives an unfair advantage to ruling parties who can stave off defeat or increase their mandate at the expense of the opposition parties.

The influence of a presidential system on politics can be seen through the stronger role of the president i as well as the gridlock that can be experienced when passing legislation. This is opposed to the parliamentary system and how a prime minister usually has a smaller role in politics while parliament is typically quick in passing legislation and avoiding gridlock. First, the president usually becomes a national figure, which represents the government regardless of the effectiveness of legislation. As policies are harder to pinpoint compared to parliamentary systems, a president usually receives all criticism and blame on legislation passed, regardless if the party passed it or not. However in parliamentary systems, the governing party usually receives praise and criticism for legislation passed with not everything being placed upon the prime minister. This segues into the president is the head of state, and performing ceremonial roles as well as being the commander in chief of the armed forces. He also plays an active role in the government by setting out a government’s agenda especially if her party is also in control of the legislature. This differs from parliamentary system as there is a more visible separation of head of state and head of government. An example of this is the Queen in the UK who almost exclusively performs ceremonial roles. The Queen by convention does not veto any legislation passed by the government, as she does not have that legitimacy given through the electorate. This differs from the prime minister who is directly involved in the lawmaking organs of parliament. The president in a presidential system is almost like the center part of a venn-diagram as she possesses the ceremonial part of the head of state while playing active role in the government process like a prime minister. Another influence that a president has on parliament is his role in the checks in balance system. The United States government is must more used to gridlock and stalemates between the levels of government and even between to the two houses as that is how the system is set up to me. This is in contrast where legislation is Canada can be passed rather rapidly especially if the party has a majority government. This presidential system influences the way representatives behave as they

One of the advantages of a presidential system is that the head of state is usually elected through a direct mandate. In terms of democracy, this makes the president’s authority more legitimate as he is elected directly by the people as oppose to being appointed indirectly. Another advantage of a presidential system is the stability it brings as presidents are usually elected to fixed terms while a prime minister’s government can fall at anytime. An example of this is in Canada; where in a minority government the leader of the opposition, Michael Ignatieff, could bring down Stephen Harper’s government and has threatened to do so several times. This is in contrast to President Obama’s tenure which is secure till the elections of 2012. Additionally, presidential system allow for the separation of powers as the legislature is a completely different structure and institution. This allows a system of checks and balances to be created, allowing one to monitor the other. Speed and decisiveness can be seen as a positive characteristic of a presidential system, as presidents usually have stronger constitutional powers allowing them to spearhead reform and enact change swiftly.

Conversely, one advantage of a parliamentary system is that it’s faster and easier to pass legislation. This is because the executive branch is part of the legislative branch and is dependent upon the direct or indirect support of it as it usually comprised of members of the legislature. This can be seen in the Canadian system of government where the prime minister and his cabinet is also Member of Parliament. This segues into the advantage that parliamentary systems usually have a higher propensity for having unified governments, as minority governments are the minority. This adds to the government’s ability to pass legislation more quickly, as it is rare for a majority government to have their own legislation defeated, as parliamentary system usually have greater party discipline. Moreover, the lack of a head of state’s veto power also allows legislation to pass more swiftly. Another advantage of a parliamentary system is that power is more evenly diverged. Constitutionally, the prime minister rarely has such high importance of a president. An example of this is how parliamentary systems allow MPs to directly question the prime minister and his government. Also, lower individual importance on the prime minster position can be seen through elections tendencies as there is a higher focus on political party ideas than on the actual person. Lastly, the advantage of the government technically being able to dissolve at any time allows the government to be more accountable and viable. This allows parliament to replace a government or a prime minister if he or she has been lackluster or detrimental to the country. This allows for practicable governments to continue governing while ineffective ones can be disposed of.

Disadvantages to a presidential system include tendencies towards authoritarianism. Because of the overarching power given to one person, presidential systems could quickly transform into authoritarian regimes if circumstances permit. Also the centralization of authority could lead to the president becoming a more influential figure in society and the media. This high priority on the president could lower and undermine civic participation as people might feel they cannot play an active role in lawmaking or place a lower significance on the legislative branches of government relative to the executive. Furthermore, separation of powers is also seen as a disadvantage of the presidential system as it might create gridlock and stalemates within the government. One example of this could be if the President continues to veto bills that the legislature ratifies, impeding government from passing laws. This can be seen in 1995 when Democrat Bill Clinton was president with a Republican controlled Congress. The government could not get consensus on anything, not even on a budget. Lastly, impediments to leadership change can be seen as another disadvantage as it can be more difficult to remove an unsuitable president from office before her term is concluded, creating a potential situation where an idol or unhelpful president could not be removed and be replaced a better alternative.

On the other hand, disadvantages to a parliamentary system include that the head of government is usually not directly elected. This is because the prime minister is typically elected by the legislature or the party in power, which normally means the party leadership. In addition, another disadvantage in the parliamentary system is that there is no independent body to oppose and veto legislation approved by parliament, and thus a lack of a cohesive checks and balance system. Also, because of the shortage in the separation of powers, parliamentary systems could instill too much power in the executive. This is because MPs usually have to adhere to parliamentary discipline, and cannot vote based on their own judgments or constituencies. Furthermore, as elections in parliamentary systems usually result in a majority government, this could lead to the “tyranny of the majority” resulting in the minority parties to be marginalized as they would have little to no input in government legislation. Moreover, parliamentary systems can be seen as inherently unstable, if minority governments are elected and coalition governments are formed as the government can be brought down at any time. Opponents of the parliamentary system point to Japan’s recent instabilities and constant replacing of prime ministers as well as Weimar Germany as examples where unstable coalitions, belligerent minority parties, and constant threats of the government being voted down by opposition parties. Lastly, the parliamentary system lack of a definite election calendar can be mistreated to allow parties to gain political advantages. The governing party can schedule elections with relative freedom, and avoid elections when it is unpopular. Indeed, in a Canadian context, Prime Minister Stephen Harper defeated his own government because polls showed that he had the ability to win a majority at the time. This gives an unfair advantage to ruling parties who can stave off defeat or increase their mandate at the expense of the opposition parties.

The influence of a presidential system on politics can be seen through the stronger role of the president i as well as the gridlock that can be experienced when passing legislation. This is opposed to the parliamentary system and how a prime minister usually has a smaller role in politics while parliament is typically quick in passing legislation and avoiding gridlock. First, the president usually becomes a national figure, which represents the government regardless of the effectiveness of legislation. As policies are harder to pinpoint compared to parliamentary systems, a president usually receives all criticism and blame on legislation passed, regardless if the party passed it or not. However in parliamentary systems, the governing party usually receives praise and criticism for legislation passed with not everything being placed upon the prime minister. This segues into the president is the head of state, and performing ceremonial roles as well as being the commander in chief of the armed forces. He also plays an active role in the government by setting out a government’s agenda especially if her party is also in control of the legislature. This differs from parliamentary system as there is a more visible separation of head of state and head of government. An example of this is the Queen in the UK who almost exclusively performs ceremonial roles. The Queen by convention does not veto any legislation passed by the government, as she does not have that legitimacy given through the electorate. This differs from the prime minister who is directly involved in the lawmaking organs of parliament. The president in a presidential system is almost like the center part of a venn-diagram as she possesses the ceremonial part of the head of state while playing active role in the government process like a prime minister. Another influence that a president has on parliament is his role in the checks in balance system. The United States government is must more used to gridlock and stalemates between the levels of government and even between to the two houses as that is how the system is set up to me. This is in contrast where legislation is Canada can be passed rather rapidly especially if the party has a majority government. This presidential system influences the way representatives behave as they

The Law Of Evidence

Smooth muscle is one of three muscle fiber types found in animals. Unlike skeletal and cardiac muscle cells, smooth muscle cells are not striated, and have single nuclei. Smooth muscles are typically under control of the autonomic nervous system, and do not contract voluntarily. Smooth muscle contracts slowly, and does not exhibit the characteristic twitch seen in skeletal muscle. In addition, smooth muscle is not prone to muscle fatigue, making it an ideal component of sphincter muscles. Smooth muscle is found in the gastrointestinal tract of many animals, and is responsible for peristaltic movements.

Smooth muscle contractions are affected by calcium and potassium ions. Calcium ion influx into the smooth muscle cell initiates a contraction. Potassium ion concentration in the extra cellular medium affects the resting membrane potential of the cell, bringing it closer to or farther away from its threshold voltage. Neurotransmitters affect different types of smooth muscle differently, depending on the association of the smooth muscle with excitable cells. In general, acetylcholine increases the muscle cell’s permeability to calcium, while epinephrine decreases the cell’s permeability to calcium.

Introduction and aim of the experiment

The following report was to test a smooth muscle which was collected from the intestine of a rabbit. The main of this experiment was to see how the surrounding environment of the muscle could affect how muscle contracted. The experiment consisted of different environments and the muscle was monitored and results were recorded of the amplitude and the frequency of the wavelengths. The levels of muscle contractions and relaxations were measured using a transducer, a D.C amplifier, and a laboratory computer.

Overview of experiment

The smooth muscle was a small part of the intestine which was prepared correctly by trimming off the attached mesentery and fat. This experiment only required one piece of this smooth muscle and this was then placed into a beaker which was aerated and fed Ringer-Locke solution this is an aqueous solution containing the chlorides of sodium and potassium and calcium that is isotonic to animal tissues. The experiment only required one piece of small intestine, which had the length of 2-3 cm long. The intestine was held in place with a tissue holder, and was attached to the transducer via a piece of string. The transducer detected contractions and relaxation of the muscle, and via the D.C amplifier showed on the computer the frequency and strength of the contractions and relaxations. The solution that the muscle was placed in was kept at the temperature of 37 Celsius apart from when the environment condition changed was the temperature. This type of setup is known as ‘in vivo’ preparation. This preparation of the smooth intestine allows a precise control of the environmental conditions.

Brief description of test carried out

The test which was carried out had six parts to it. The first part of the experiment was to gain initial control of the muscle this was done by having optimum conditions for the smooth muscle so it could achieve a steady rate of contraction and relaxation. This was achieved by adding Ringer-Locke solution and keeping it aerated. By having this set up it allowed the muscle environment to be very closely met to the ideal body environment where the muscle would have a good contraction and relaxation rate. The muscle was left in this preparation until the readings on the computer were constant (about 4 minutes) the initial control was labelled using the comment bar.

The next environment was non-aerated this meant to turn the air supply off which was coming to the bath where the muscle was held. Then the Ringer-Locke solution was removed from the bath and fresh Ringer-Locke solution was then placed into the bath. The reason for removing the old solution was to prevent any inaccurate readings as the solution could still have contained oxygen which would have affected the results. This part of the test was recorded after every 5, 10, 15 minutes and the results where inserted into a table. The main purpose of using this environment was to see what the muscle contractions and relaxations are when there is a lack of oxygen. This part of the experiment was again labelled on the comment bar.

The next part of the experiment was to remove the Ringer-Locke solution and replace it with 50ml of glucose free solution and again results were recorded after every 5 ,10, 15 minutes and recorded into a table.

The fourth different environment was change in temperature. The Ringer-Locke solution of 37 Celsius was replaced with a Ringer-Locke solution that was cooled to 4 Celsius. The purpose of this environment was to test the muscle activity in a cold environment and to analyse the effects.

The fifth environment involved the use of calcium free solution this replaced the Ringer-Locke solution. This was analysed for 5 minutes to see how the muscle activity was affected.

The final environment was to do with changes in the pH. The pH was changed from pH7 which is neutral to a different pH. The solution with different pH was prepared before hand and the purpose of this environment was to see what effect a pH change would have on the muscle activity.

After each part of the experiment initial control was established before moving on to the next part the reason for this being to keep the muscle running properly before each part of the experiment and to cause less damage to the smooth muscle. Also each part of the experiment was labelled on the comment bar this was done to show each different part clearly so it was not confused. (Clear methods are shown in the printouts)

Results table for my experiment

Firstly the results achieved ere done by looking at the different graphs and to work out the amplitude for the graph the following was done:

Example (Graph not related to report)

To work out the amplitude of the graph recording two figures were recorded one being the peak of the wave and the other being the lowest part of the wave

To work out the frequency for each part of the experiment the amount of waves were recorded in a minute time period. The frequency in this case was how many times the muscles contracted and relaxed in a minutes. The amplitude was the strength of each contraction and relaxing of the muscle. The maximum and minimum amplitudes were collected for each environment and recorded; the amplitude chosen was picked at random as well as the minute where the frequency of waves was calculated. These are results are shown in the table below:

Environments

Frequency per Minute (min-1)

Amplitude 1

Amplitude 2

Maximum

Minimum

Maximum

Minimum

Initial control

15

2.10

0.78

1.96

0.65

Non aerated 5 Mins

13

1.94

0.47

1.89

0.38

Non aerated 10 Mins

17

1.53

0.36

1.51

0.38

Non aerated 15 Mins

16

1.58

0.38

1.54

0.36

Lack of glucose 5 mins

17

1.34

0.47

1.49

0.41

Lack of glucose 10 mins

17

1.51

0.43

1.52

0.45

Lack of glucose 15 mins

17

1.37

0.45

1.43

0.46

Cold ringer solution

5 Mins

14

1.76

0.44

1.73

0.51

Calcium Lack 5 Mins

12

1.15

0.63

.95

0.47

Change of pH

Flat – No waves

Discussion of results

Firstly a diagram of the intestine is needed to show how it works and what different types of cells it contains. This is needed as it will help to understand why the muscle behaved differently when tested with six different environments. A diagram of the small intestine is shown below;

The small intestine contains the 4 basic layers which are serosa, muscularis, submucosa, and mucosa.

Small intestine wall is composed of the same four layers that make up most of the gastrointestinal tract: serosa, muscularis, submucosa, and mucosa. The mucosa is composed of a layer of epithelium, lamina propria, and muscularis mucosae. The epithelial layer of the small intestinal musoca consists of simple columnar epithelium that contains many types of cells. Some of these are the following:

Enetrocytes – these help with the transport of substances from lumen of the intestine to the circulatory system, synthesis of the glycoprotein enzymes needed for terminal digestion and absorption.

Goblet cells – these are unicellular mucin also known as secreting glands.

Paneth cells – these are located at the bottom of the intestinal glands. Their main function is their secretion of granules which contain lysozyme this enzyme helps breakdown bacteria also known as phagocytosis. Paneth cells may have a role in regulating the microbial population in the small intestine.

Enteroendocrine cells – these are mostly found again in the lower parts of the intestinal gland known as the crypt. The main function of these cells is to release several hormones. The main one beings cholecystokinin, secretin and gastric inhibitory peptide these help increase pancreatic and gallbladder activity.

Intermediate cells – these are young enterocytes and goblet cell which are able to withstand cell division.

Apart from the smooth muscle many other cells and vessels make up the intestine. The small intestine also contains submucosal artery and vein, lymphatic vessel, submucosal plexus, circular layer of smooth muscle, and myenteric plexus. All these tissues, cells, and vessel combine to make the small intestine wall.

The smooth muscle in the control environment was able to obtain a steady frequency through out its 4 minute period with 15 waves per minute. The waves which were seen were the smooth muscle contracting and relaxing. The amplitude levels of the waves were both quite high showing strong contractions rate the reason for this was that the environment set was to ideal conditions where the muscle could perform its best. It had a max amplitude of 2.10 and min amplitude of 0.78 which shows that having ideal conditions the muscle is able to behave normally without any problems.

The effect of oxygen lack of the smooth muscle cause the small intestine to increase the frequency, at 5 minutes no aerated the frequency had first dropped to 13 and after 15 minutes the frequency of contraction and relaxations had increased to 17 the reason or this being without oxygen the smooth muscles started to have spasms as it was unable to contract properly without the oxygen supply needed. Also the amplitude levels decreased quite quickly from 1.94 (max) and 0.47(min) at 5 minutes to 1.58(max) and 0.38 (min) at 15 minutes. The reason for this was that without oxygen the muscle was unable to make the energy needed for strong contractions as the peak is lowered as can be seen on the traces. This was detected by the pull on the string that was attached to the transducer; the pull was not as strong so this was recorded on the traces. So without oxygen the muscle cells are still able to make ATP but a small amount. Only about 2 ATP are produced per molecule of glucose in glycolysis. If there is no oxygen present, the Pyruvate produced in glycolysis undergoes fermentation to regenerate the NAD+ used in glycolysis. This is known as anaerobic respiration, anaerobic respiration generates only two ATPs, and lactic acid is produced. Most lactic acid diffuses out of the cell and into the bloodstream and is subsequently absorbed by the liver. Some of the lactic acid remains in the muscle fibers, where it contributes to muscle fatigue. Because both the liver and muscle fibers must convert the lactic acid back to pyruvic acid when oxygen becomes available, anaerobic respiration is said to produce oxygen debt

The next part of the experiment was to test how the muscle activity differed when placed in glucose free solution. From this part of the test the frequency of muscle activity stayed consistent throughout the 15 minutes. The traces show consistent movement and also the amplitudes levels differed as at 5 minutes (1.34) the maximum amplitude was low then at 10 minutes (1.51) it wet higher and at 15 minutes (1.37) it decreased again to a similar figure which was at 5 minutes. By looking at this result the results are not as accurate as they should have been, meaning they may have been some kind of inaccuracy when following the method as without glucose, ATP can not be made and the amplitude of the waves should have been lower.

ATP can be made from glucose which is stored in the carbohydrate glycogen. Through the metabolic process of glycogenolysis, glycogen is broken down to release glucose. ATP is then generated from glucose by cellular respiration. Also ATP can be produced from glucose and fatty acids obtained from the bloodstream. When energy requirements are high, glucose from glycogen stored in the liver and fatty acids from fat stored in adipose cells and the liver are released into the bloodstream. Glucose and fatty acids are then absorbed from the bloodstream by muscle cells. ATP is then generated from these energy-rich molecules by cellular respiration. Without glucose the frequecny should hve increased but the amplitudes levels should have decreased as there was not a sufficient energy source which could supply the muscle so it could contract and relax.

The next part of the experiment consisted of placing the smooth muscle into a cooled solution of 4 Celsius from a change of 37 Celsius. There was not much change to the frequency but it did drop a little bit due to the muscle not being used to these environmental conditions. The amplitude differed from the control readings as they had decreased but were still quite high as they had the nutrients in the solutions which helped them to contract. If this experiment was left to carry on then there would be further change as the solution would gradually heat up to room temperature and this would mean that the smooth muscle activity would increase.

Calcium plays a big part in all muscle contraction as well as smooth muscle contraction which is different as it does not contain troponin. In smooth muscles calcium ions enter from outside the cell. They then bind to an enzyme complex on myosin; this then breaks up ATP into ADP and then transfers the Pi directly into myosin. By doing this it allows the myosin to activate and from cross ridges with actin. When the calcium is pumped out of the cell, the Pi gets removed from myosin by an enzyme this allows the myosin to become inactive and the smooth muscle is able to relax. This process is also known as myosin regulated contraction.

In the experiment where calcium free solution was added it affected the smooth muscle immensely as the frequency of contracting and relaxing dropped to 12. Also the amplitude levels came down as the contractions and relaxations levels were not strong the max being 0.95 and the minimum being 0.47 if this was left for a longer period of time the frequency levels may have dropped more. Without calcium entering the cell the smooth muscle is unable to do the process which is described above. While making the Ringer-Locke solution it is not only the calcium ions which are important to the smooth muscles. Some others are potassium chloride and sodium chloride, the reason these ions are needed because it helps to portray an environment such as the body with ideal conditions. If only distilled water was used it would mean the cells in the muscles would up take the water and blow up. So these ions are used so they are able to keep a concentration gradient and allow everything to work correctly as it would in the smooth muscles natural environment.

The final environment was the change in pH levels. The results showed that the muscle had stopped functioning and there was no reading on the traces. This meant that there was no muscle contraction or relaxing. The reason for this was the muscle had broken down the reason for this muscle fatigue was that the low pH had affected the smooth muscle as it was unable to perform in this type of environment. Also as the low pH solution was there for a certain period of time the muscle was unable to remove it and therefore caused the muscle to breakdown. The low pH may have affected the sarcoplasmic reticulum which may lead to the interfere of the intercellular calcium concentrations, this can lead to long term physical muscle damage as muscle fibers are affected.

While preparing the isolated smooth muscle many precautions are taken so the muscle can avoid excessive pH changes. One of these precautions which are taken is to make sure that before inserting the small intestine into the bath. The solution will need to be tested with pH indicator test strips which will give a fairly accurate reading of the solution which the smooth muscle will be placed. This is very important as if the pH is incorrect it will mean that the smooth muscle will not perform to its full potential meaning the results achieved will be inaccurate. To gain accurate results all solutions which are used will need to be checked to see if they are the correct pH by using the ph indicating strips. After this test the smooth muscle was unable to reach the control again as the muscle had broken down.

If this experiment was done again at room temperature the results would differ as the performance of the muscle would decrease. This is because the optimum temperature inside the body is around 37 Celsius and this temperature allows the muscle to work at an optimum rate. The lower temperature will mean that muscle contraction will be slower as there will be an effect on enzyme reactions as the more heat there is the more kinetic energy there is this will mean that the muscle activity will be good.

If acetylcholine was added to the solution bath of the smooth muscle the membrane potential would decrease and the frequency of waves would increase. The muscle will become more active, with an increase in tonic tension and the number of rhythmic contractions. The effect is mediated by enzymes which increases the intracellular Calcium concentration. Another substance which could have been added was adrenaline. Adrenaline allows blood to flow more easily to your muscles. This means that more oxygen is carried to your muscles by the extra blood, which allows your muscles to function at elevated levels. Adrenaline also facilitates the conversion of the body’s fuel source (glycogen) into its fuel (glucose). This carbohydrate gives energy to muscles, and a sudden burst of glucose also allows muscles to strengthen further.

Skeletal and smooth muscle muscles differences in structure and function

There are many differences between the two types of muscles the differences are stated below:

Snmooth muscles

Skeletal muscle

A smooth muscle fiber has no T tubules, and the sarcoplasmic reticulum forms a loose network throughout the sarcoplasm.

Are long cyrindrical cells that contain many nuclei

Smooth muscle tissue has no myofibrils or sarcomeres

They are striated this shows their precise alignments of their myofilaments.

This tissue also has no striations and is called nonstriated muscle.

Thick filaments consist of myosin as thin filaments consist mostly of actin.

Thick filaments are scattered throughout the sarcoplasm of a smooth muscle cell

Each independent cell is stimulated by a motor neurone.

Adjacent smooth muscle cells are bound together at dense bodies, transmitting the contractile forces from cell to cell throughout the tissue.

Connective endomysium seprates cell

Function Differences

Smooth muscles cells are an involuntary action and can work slower so they do not have muscle fatigue.

Skeletal Muscle contains both Fast &Slow Twitch muscle fibers, that allow for a faster reaction where needed, and the opposite is true for the Slow as well

Smooth muscle lines your arteries and airways and serves to contract or relax to help control blood pressure.

skeletal muscles function almost continuously to maintain your posture making one tiny adjustment after another to keep your body upright

They are also present in the iris of the eye to control the size of the pupil in response to light. By the use of the radial and circular muscle.

Skeletal muscle is also important for holding your bones in the correct position and prevents your joints from dislocating. Some skeletal muscles in your face are directly attached to your skin

They line the GI tract to move “food”through the intestines. This is done by peristalsis.

Skeletal muscle generates heat as a by-product of muscle activity. This heat is vital for maintaining your normal body temperature.

Smooth muscle is one of three muscle fiber types found in animals. Unlike skeletal and cardiac muscle cells, smooth muscle cells are not striated, and have single nuclei. Smooth muscles are typically under control of the autonomic nervous system, and do not contract voluntarily. Smooth muscle contracts slowly, and does not exhibit the characteristic twitch seen in skeletal muscle. In addition, smooth muscle is not prone to muscle fatigue, making it an ideal component of sphincter muscles. Smooth muscle is found in the gastrointestinal tract of many animals, and is responsible for peristaltic movements.

Smooth muscle contractions are affected by calcium and potassium ions. Calcium ion influx into the smooth muscle cell initiates a contraction. Potassium ion concentration in the extra cellular medium affects the resting membrane potential of the cell, bringing it closer to or farther away from its threshold voltage. Neurotransmitters affect different types of smooth muscle differently, depending on the association of the smooth muscle with excitable cells. In general, acetylcholine increases the muscle cell’s permeability to calcium, while epinephrine decreases the cell’s permeability to calcium.

Introduction and aim of the experiment

The following report was to test a smooth muscle which was collected from the intestine of a rabbit. The main of this experiment was to see how the surrounding environment of the muscle could affect how muscle contracted. The experiment consisted of different environments and the muscle was monitored and results were recorded of the amplitude and the frequency of the wavelengths. The levels of muscle contractions and relaxations were measured using a transducer, a D.C amplifier, and a laboratory computer.

Overview of experiment

The smooth muscle was a small part of the intestine which was prepared correctly by trimming off the attached mesentery and fat. This experiment only required one piece of this smooth muscle and this was then placed into a beaker which was aerated and fed Ringer-Locke solution this is an aqueous solution containing the chlorides of sodium and potassium and calcium that is isotonic to animal tissues. The experiment only required one piece of small intestine, which had the length of 2-3 cm long. The intestine was held in place with a tissue holder, and was attached to the transducer via a piece of string. The transducer detected contractions and relaxation of the muscle, and via the D.C amplifier showed on the computer the frequency and strength of the contractions and relaxations. The solution that the muscle was placed in was kept at the temperature of 37 Celsius apart from when the environment condition changed was the temperature. This type of setup is known as ‘in vivo’ preparation. This preparation of the smooth intestine allows a precise control of the environmental conditions.

Brief description of test carried out

The test which was carried out had six parts to it. The first part of the experiment was to gain initial control of the muscle this was done by having optimum conditions for the smooth muscle so it could achieve a steady rate of contraction and relaxation. This was achieved by adding Ringer-Locke solution and keeping it aerated. By having this set up it allowed the muscle environment to be very closely met to the ideal body environment where the muscle would have a good contraction and relaxation rate. The muscle was left in this preparation until the readings on the computer were constant (about 4 minutes) the initial control was labelled using the comment bar.

The next environment was non-aerated this meant to turn the air supply off which was coming to the bath where the muscle was held. Then the Ringer-Locke solution was removed from the bath and fresh Ringer-Locke solution was then placed into the bath. The reason for removing the old solution was to prevent any inaccurate readings as the solution could still have contained oxygen which would have affected the results. This part of the test was recorded after every 5, 10, 15 minutes and the results where inserted into a table. The main purpose of using this environment was to see what the muscle contractions and relaxations are when there is a lack of oxygen. This part of the experiment was again labelled on the comment bar.

The next part of the experiment was to remove the Ringer-Locke solution and replace it with 50ml of glucose free solution and again results were recorded after every 5 ,10, 15 minutes and recorded into a table.

The fourth different environment was change in temperature. The Ringer-Locke solution of 37 Celsius was replaced with a Ringer-Locke solution that was cooled to 4 Celsius. The purpose of this environment was to test the muscle activity in a cold environment and to analyse the effects.

The fifth environment involved the use of calcium free solution this replaced the Ringer-Locke solution. This was analysed for 5 minutes to see how the muscle activity was affected.

The final environment was to do with changes in the pH. The pH was changed from pH7 which is neutral to a different pH. The solution with different pH was prepared before hand and the purpose of this environment was to see what effect a pH change would have on the muscle activity.

After each part of the experiment initial control was established before moving on to the next part the reason for this being to keep the muscle running properly before each part of the experiment and to cause less damage to the smooth muscle. Also each part of the experiment was labelled on the comment bar this was done to show each different part clearly so it was not confused. (Clear methods are shown in the printouts)

Results table for my experiment

Firstly the results achieved ere done by looking at the different graphs and to work out the amplitude for the graph the following was done:

Example (Graph not related to report)

To work out the amplitude of the graph recording two figures were recorded one being the peak of the wave and the other being the lowest part of the wave

To work out the frequency for each part of the experiment the amount of waves were recorded in a minute time period. The frequency in this case was how many times the muscles contracted and relaxed in a minutes. The amplitude was the strength of each contraction and relaxing of the muscle. The maximum and minimum amplitudes were collected for each environment and recorded; the amplitude chosen was picked at random as well as the minute where the frequency of waves was calculated. These are results are shown in the table below:

Environments

Frequency per Minute (min-1)

Amplitude 1

Amplitude 2

Maximum

Minimum

Maximum

Minimum

Initial control

15

2.10

0.78

1.96

0.65

Non aerated 5 Mins

13

1.94

0.47

1.89

0.38

Non aerated 10 Mins

17

1.53

0.36

1.51

0.38

Non aerated 15 Mins

16

1.58

0.38

1.54

0.36

Lack of glucose 5 mins

17

1.34

0.47

1.49

0.41

Lack of glucose 10 mins

17

1.51

0.43

1.52

0.45

Lack of glucose 15 mins

17

1.37

0.45

1.43

0.46

Cold ringer solution

5 Mins

14

1.76

0.44

1.73

0.51

Calcium Lack 5 Mins

12

1.15

0.63

.95

0.47

Change of pH

Flat – No waves

Discussion of results

Firstly a diagram of the intestine is needed to show how it works and what different types of cells it contains. This is needed as it will help to understand why the muscle behaved differently when tested with six different environments. A diagram of the small intestine is shown below;

The small intestine contains the 4 basic layers which are serosa, muscularis, submucosa, and mucosa.

Small intestine wall is composed of the same four layers that make up most of the gastrointestinal tract: serosa, muscularis, submucosa, and mucosa. The mucosa is composed of a layer of epithelium, lamina propria, and muscularis mucosae. The epithelial layer of the small intestinal musoca consists of simple columnar epithelium that contains many types of cells. Some of these are the following:

Enetrocytes – these help with the transport of substances from lumen of the intestine to the circulatory system, synthesis of the glycoprotein enzymes needed for terminal digestion and absorption.

Goblet cells – these are unicellular mucin also known as secreting glands.

Paneth cells – these are located at the bottom of the intestinal glands. Their main function is their secretion of granules which contain lysozyme this enzyme helps breakdown bacteria also known as phagocytosis. Paneth cells may have a role in regulating the microbial population in the small intestine.

Enteroendocrine cells – these are mostly found again in the lower parts of the intestinal gland known as the crypt. The main function of these cells is to release several hormones. The main one beings cholecystokinin, secretin and gastric inhibitory peptide these help increase pancreatic and gallbladder activity.

Intermediate cells – these are young enterocytes and goblet cell which are able to withstand cell division.

Apart from the smooth muscle many other cells and vessels make up the intestine. The small intestine also contains submucosal artery and vein, lymphatic vessel, submucosal plexus, circular layer of smooth muscle, and myenteric plexus. All these tissues, cells, and vessel combine to make the small intestine wall.

The smooth muscle in the control environment was able to obtain a steady frequency through out its 4 minute period with 15 waves per minute. The waves which were seen were the smooth muscle contracting and relaxing. The amplitude levels of the waves were both quite high showing strong contractions rate the reason for this was that the environment set was to ideal conditions where the muscle could perform its best. It had a max amplitude of 2.10 and min amplitude of 0.78 which shows that having ideal conditions the muscle is able to behave normally without any problems.

The effect of oxygen lack of the smooth muscle cause the small intestine to increase the frequency, at 5 minutes no aerated the frequency had first dropped to 13 and after 15 minutes the frequency of contraction and relaxations had increased to 17 the reason or this being without oxygen the smooth muscles started to have spasms as it was unable to contract properly without the oxygen supply needed. Also the amplitude levels decreased quite quickly from 1.94 (max) and 0.47(min) at 5 minutes to 1.58(max) and 0.38 (min) at 15 minutes. The reason for this was that without oxygen the muscle was unable to make the energy needed for strong contractions as the peak is lowered as can be seen on the traces. This was detected by the pull on the string that was attached to the transducer; the pull was not as strong so this was recorded on the traces. So without oxygen the muscle cells are still able to make ATP but a small amount. Only about 2 ATP are produced per molecule of glucose in glycolysis. If there is no oxygen present, the Pyruvate produced in glycolysis undergoes fermentation to regenerate the NAD+ used in glycolysis. This is known as anaerobic respiration, anaerobic respiration generates only two ATPs, and lactic acid is produced. Most lactic acid diffuses out of the cell and into the bloodstream and is subsequently absorbed by the liver. Some of the lactic acid remains in the muscle fibers, where it contributes to muscle fatigue. Because both the liver and muscle fibers must convert the lactic acid back to pyruvic acid when oxygen becomes available, anaerobic respiration is said to produce oxygen debt

The next part of the experiment was to test how the muscle activity differed when placed in glucose free solution. From this part of the test the frequency of muscle activity stayed consistent throughout the 15 minutes. The traces show consistent movement and also the amplitudes levels differed as at 5 minutes (1.34) the maximum amplitude was low then at 10 minutes (1.51) it wet higher and at 15 minutes (1.37) it decreased again to a similar figure which was at 5 minutes. By looking at this result the results are not as accurate as they should have been, meaning they may have been some kind of inaccuracy when following the method as without glucose, ATP can not be made and the amplitude of the waves should have been lower.

ATP can be made from glucose which is stored in the carbohydrate glycogen. Through the metabolic process of glycogenolysis, glycogen is broken down to release glucose. ATP is then generated from glucose by cellular respiration. Also ATP can be produced from glucose and fatty acids obtained from the bloodstream. When energy requirements are high, glucose from glycogen stored in the liver and fatty acids from fat stored in adipose cells and the liver are released into the bloodstream. Glucose and fatty acids are then absorbed from the bloodstream by muscle cells. ATP is then generated from these energy-rich molecules by cellular respiration. Without glucose the frequecny should hve increased but the amplitudes levels should have decreased as there was not a sufficient energy source which could supply the muscle so it could contract and relax.

The next part of the experiment consisted of placing the smooth muscle into a cooled solution of 4 Celsius from a change of 37 Celsius. There was not much change to the frequency but it did drop a little bit due to the muscle not being used to these environmental conditions. The amplitude differed from the control readings as they had decreased but were still quite high as they had the nutrients in the solutions which helped them to contract. If this experiment was left to carry on then there would be further change as the solution would gradually heat up to room temperature and this would mean that the smooth muscle activity would increase.

Calcium plays a big part in all muscle contraction as well as smooth muscle contraction which is different as it does not contain troponin. In smooth muscles calcium ions enter from outside the cell. They then bind to an enzyme complex on myosin; this then breaks up ATP into ADP and then transfers the Pi directly into myosin. By doing this it allows the myosin to activate and from cross ridges with actin. When the calcium is pumped out of the cell, the Pi gets removed from myosin by an enzyme this allows the myosin to become inactive and the smooth muscle is able to relax. This process is also known as myosin regulated contraction.

In the experiment where calcium free solution was added it affected the smooth muscle immensely as the frequency of contracting and relaxing dropped to 12. Also the amplitude levels came down as the contractions and relaxations levels were not strong the max being 0.95 and the minimum being 0.47 if this was left for a longer period of time the frequency levels may have dropped more. Without calcium entering the cell the smooth muscle is unable to do the process which is described above. While making the Ringer-Locke solution it is not only the calcium ions which are important to the smooth muscles. Some others are potassium chloride and sodium chloride, the reason these ions are needed because it helps to portray an environment such as the body with ideal conditions. If only distilled water was used it would mean the cells in the muscles would up take the water and blow up. So these ions are used so they are able to keep a concentration gradient and allow everything to work correctly as it would in the smooth muscles natural environment.

The final environment was the change in pH levels. The results showed that the muscle had stopped functioning and there was no reading on the traces. This meant that there was no muscle contraction or relaxing. The reason for this was the muscle had broken down the reason for this muscle fatigue was that the low pH had affected the smooth muscle as it was unable to perform in this type of environment. Also as the low pH solution was there for a certain period of time the muscle was unable to remove it and therefore caused the muscle to breakdown. The low pH may have affected the sarcoplasmic reticulum which may lead to the interfere of the intercellular calcium concentrations, this can lead to long term physical muscle damage as muscle fibers are affected.

While preparing the isolated smooth muscle many precautions are taken so the muscle can avoid excessive pH changes. One of these precautions which are taken is to make sure that before inserting the small intestine into the bath. The solution will need to be tested with pH indicator test strips which will give a fairly accurate reading of the solution which the smooth muscle will be placed. This is very important as if the pH is incorrect it will mean that the smooth muscle will not perform to its full potential meaning the results achieved will be inaccurate. To gain accurate results all solutions which are used will need to be checked to see if they are the correct pH by using the ph indicating strips. After this test the smooth muscle was unable to reach the control again as the muscle had broken down.

If this experiment was done again at room temperature the results would differ as the performance of the muscle would decrease. This is because the optimum temperature inside the body is around 37 Celsius and this temperature allows the muscle to work at an optimum rate. The lower temperature will mean that muscle contraction will be slower as there will be an effect on enzyme reactions as the more heat there is the more kinetic energy there is this will mean that the muscle activity will be good.

If acetylcholine was added to the solution bath of the smooth muscle the membrane potential would decrease and the frequency of waves would increase. The muscle will become more active, with an increase in tonic tension and the number of rhythmic contractions. The effect is mediated by enzymes which increases the intracellular Calcium concentration. Another substance which could have been added was adrenaline. Adrenaline allows blood to flow more easily to your muscles. This means that more oxygen is carried to your muscles by the extra blood, which allows your muscles to function at elevated levels. Adrenaline also facilitates the conversion of the body’s fuel source (glycogen) into its fuel (glucose). This carbohydrate gives energy to muscles, and a sudden burst of glucose also allows muscles to strengthen further.

Skeletal and smooth muscle muscles differences in structure and function

There are many differences between the two types of muscles the differences are stated below:

Snmooth muscles

Skeletal muscle

A smooth muscle fiber has no T tubules, and the sarcoplasmic reticulum forms a loose network throughout the sarcoplasm.

Are long cyrindrical cells that contain many nuclei

Smooth muscle tissue has no myofibrils or sarcomeres

They are striated this shows their precise alignments of their myofilaments.

This tissue also has no striations and is called nonstriated muscle.

Thick filaments consist of myosin as thin filaments consist mostly of actin.

Thick filaments are scattered throughout the sarcoplasm of a smooth muscle cell

Each independent cell is stimulated by a motor neurone.

Adjacent smooth muscle cells are bound together at dense bodies, transmitting the contractile forces from cell to cell throughout the tissue.

Connective endomysium seprates cell

Function Differences

Smooth muscles cells are an involuntary action and can work slower so they do not have muscle fatigue.

Skeletal Muscle contains both Fast &Slow Twitch muscle fibers, that allow for a faster reaction where needed, and the opposite is true for the Slow as well

Smooth muscle lines your arteries and airways and serves to contract or relax to help control blood pressure.

skeletal muscles function almost continuously to maintain your posture making one tiny adjustment after another to keep your body upright

They are also present in the iris of the eye to control the size of the pupil in response to light. By the use of the radial and circular muscle.

Skeletal muscle is also important for holding your bones in the correct position and prevents your joints from dislocating. Some skeletal muscles in your face are directly attached to your skin

They line the GI tract to move “food”through the intestines. This is done by peristalsis.

Skeletal muscle generates heat as a by-product of muscle activity. This heat is vital for maintaining your normal body temperature.

There Are Four Main Sources Of Irish Law

There are four main sources of Irish Law. Pick one of these sources and examine it in detail as it affects the Early Childhood Care and Education area.

Law does not come from one source and can change with time. Previously Brehan Law was Ireland’s native law, up until it was replaced by Common Law when Ireland was taken over by Great Britain. Now post British rule Irish law is taken from The Irish Constitution, 1937, Legislation passed by our government (primary and secondary), Case law and European Union law, these are the main sources but some other sources are Public International law, Cannon law, custom, media and Scholarly writing. In order to examine Case Law in Ireland it is important first to explore the definitions of law, it s place in Irish society. It is necessary to be aware of the process of law making in Ireland, who it affects and how it is practiced and it is enforced.

The name given to the science of law is Jurisprudence. The laws of nature have always existed but Legal laws are put there by humans. Moral and ethics can drive humans to regulate behaviour, e.g. to use manners and to wait in turn, to respect each other’s land and not to steal. Rules of moral value are sometimes governed by the good conscience and fear of other people’s opinions, in Irish societal history this is evident in the times of Roman Catholic influence and is greatly linked to religious beliefs, but most moral laws are also tied in and related with legal rules especially if they are seen to cause a harm to society. E.g. murder, rape, pollution.

The collection of people forming the Irish society has a set of rules in which they must abide by. Laws are set for the common good of the society and by the society to ensure that a certain standard of behaviour is maintained by that society. Legal law in Ireland does not just cover harm to the society; it also regulates private human acts such as suicide, abortion and animal cruelty. These legal rules are enforced on society through the court system. If there were to be no law system in Ireland it would be faced with anarchy.

Law can be defined as “The written and unwritten body of rules, derived from custom, formal enactment or judicial decision, which are recognised as binding on persons who constitute a community or state, so that they will be imposed upon and enforced among those persons by appropriate sanctions”.

(Cited by Murdoch.) H, 1998)

The Irish Constitution, 1937 as the main source of law in Ireland is a written document containing the rules that are applied to the state. It contains the fundamental rights of the Irish people and also the regulations for its Government, the regulations for administration of justice. It also holds regulations on the division between the judicial branches of the state and the executive legislative branches of the state.

The constitution has enumerated rights to equality, to personal liberty, to life of the unborn and equally to the mother, to freedom of speech, freedom to associate, freedom of assembly, family rights and protection, Inviolability of the dwelling, the right to education(with parental primacy, freedom to private property, to religious freedom and to directive principles through social policy.

Some rights that are also implied by the Constitution are the rights of the child, the right to know the identity of one’s birth mother, the right to earn a living, the right to strike, the right to dissociate, the right to travel, the right to protect one’s health, the right to bodily integrity, the right to marry and form a family, the right to communicate, the right to silence, the right to privacy, the right to life of the individual, the right to legal representation, the rights to fair procedures in decision making, the right to access to legal advice and the rights to fair procedure in decision making.

The Constitution lays out all the important rights that the society needs in order to live positively and in harmony and it is up to the state to protect the rights of society by enacting legislation. Any legislation that does not protect the rights according to the constitution is not legally binding.

Outside of European Law, the Oireactas is the name of the only place in Ireland that can make laws for the state. It consists of the President and Dail Eireann and Seanad Eireann (the two houses of Oireactas.) A new law starts as a bill which is a proposition for a new legislation which is usually initiated by the government who will have already consulted it with other bodies that it may affect. In some cases the government will set up a green paper containing its ideas and ask for views and feedback on those ideas from individuals and groups of people.

This bill must pass through both the houses of Oireactas though it usually starts off in the Dail Eireann. The Dail will then examine and debate its contents and suggest changes or additions to the bill. The members will then vote on whether to pass the bill or not to pass it. The bill will then be travelled to the Seanad Eireann and they will go through the same process again. They can then decide to pass the bill without any changes needed, the can decide not to pass it at all or they may decide to send it back to the Dail Eireann with more changes to be discussed.

If the Seanad don’t agree with the bill or asks for the Dail to make more changes it will lapse 180 days later, but the Dail can still pass the bill within the deadline once it has passed through the both houses the Seanad only has the power of suggestion and of slowing the process down.

The Taoiseach then passes the bill to the President of Ireland to be signed. The President has the ultimate power then to pass the bill, if the president thinks that the bill may be unconstitutional he/she is entitled to further consultation with the council of state. It is sent to the Supreme Court to be discussed further. If the president does sign the bill it becomes an Act which means it is a Legal/statute law. This law must stay consistent to the constitution or else it is not valid.

Legislation can also be delegated to and implemented through use of statutory instruments; this is known as secondary legislation or subordinate legislation. This means some power is passed down to an executive authority to administer and implement the requirements that are needed to fulfil a primary legislation given by the legislature.

The Childcare Act that was passed in 1991 is an example of a Primary Legislation.

Examples of secondary legislation can be seen within The Childcare Act. In one part The 1991 Childcare Act stated that; “The Health Service Executive has a duty to promote the welfare of children who are not receiving adequate care and protection”. (Cited in Citizens Advice, 2008) This lead to The Childcare (Placement of Children in Foster Care) Regulations, 1995. The Childcare (Placement of Children in Residential Care) regulations, 1995, and The Childcare (Placement of Children with Relatives) regulations, 1995.

Also under The Childcare Act; the HSE is given the responsibility of “ensuring the health, safety and welfare of children attending pre-schools” (Cited in Citizens Advice, 2010) from this the Pre-school Service Regulations 2006 and Garda clearance for employee’s in childcare were created.

When a law is seen to be broken or infringed in Ireland it must be taken to court. The courts will look at the behaviour in question and the definition of the law in question and see if the facts add up to an offence.

There are two different classifications of law in Irish society. They can be described as Private Law / Public Law or Civil/Criminal Law. Private law deals with the relationships of individual people within Ireland, whereas Public Law deals with the relationships between Ireland as a state and the individual.

The purpose of private law/ or civil law is to protect the interests of the individual persons in Ireland and give them rights to defend their interests with. If an individual person is rightfully wronged by another they can defend their interests civilly and orderly, and resolve the dispute in court. Some examples of private law cases are ones that deal with Landlord and tenant issues, Custody issues, personal injury and breach of contract issues. In usual circumstances there is a money pay out, compensation or an injunction…

Public Law/ or criminal law is concerned with the relationships of the individual and Ireland as a state and is of collective interest to the Irish society. It deals with actions by a person that are forbidden by the Irish as a state and these actions are punishable through imprisonment, community service or fines. Acts such as murder, sale of drugs and sexual assaults are dealt with before the public courts. This is done in a public court scene in most cases as it is a crime against the public, whereas it may endanger or distress the victim exceptions are made and their identities are kept hidden.

Procedural/or substantive law is the set of legal rules that are exercised by the court. This outlines the procedure by which the law is to be enforced through the courts and the rules of evidence and forms the courts structure. Some examples of the substantial law used in a civil court would be Property law, Contract law or Tort law. Constitutional law, Administrative law, criminal Law and Public International Law are seen in Public law cases.

In interpreting the legislations in the court, the court must be certain of the intentions of the legislature at the time that it was passed. The court has three rules to put into place if they are unsure of the legislation, if it is unclear to them or if it is appearing to show more than one meaning. The literal rule which means that the judge keeps to the ordinary meanings of the words according to the legislation, The golden rule which means that if by following the literal rule this leads to an absurd result then the literal rule must be changed and finally the mischief rule which means that the judge may investigate as to why the legislation was proposed to be certain of what particular mischief it was set up to fix or prevent or what or who it was meant to protect. In the unlikely case the Dail reports may be necessary to interpret the unclear legislation.

Ireland like, England, America, Australia and New Zealand is part of a common law jurisdiction. This means in common with the other countries the Irish state uses previous court decisions to help them to make decisions in other cases. The previous cases are kept within law reports.

Law that is more so shaped from judicial decision and precedents rather than statute is known as Case law and they govern the impact that court decisions will have on future cases. It comes more from jurisprudence than it is does legislation, though it serves to determine the legality of existing laws and can check or put more of a balance to the law that is put in place by the legislators.

Case law is the overall decisions that are reported by courts which are known as the courts of first impression. They make new interpretations of the law. They can be then be cited as precedents. The process in action is known as stare decisis. New Interpretations are then distinguished from statutory law.

When the Irish Parliament passes a legislation, although a great deal of research goes into the anticipation of how well it will work, nobody knows if it works until it is tested in court. When it is applied or interpreted in a particular way, especially when a new direction or diffentiation appears, the case will often be reported so that other courts will follow this new interpretation in the interests of keeping consistency. The higher the court, the more significant this will be. If a case is appealed and reaches the High Court or the Supreme Court, then the lower courts will have to apply the law in the same way as in that upper court unless the case before them has some significant difference. That is why case law is important. It acts as a guide for judges, magistrates and lawyers.

One simple example of case law in action might be when actors in the television series “Law and Order” cite court decisions to the prosecutor to convince her that they have a case against a certain person. Something like “States vs. Jackson” supports the idea that the defendant was guilty of felony murder.

Case Law is an area which was previously contained within the confines of one’s own country has assumed international proportions and that therefore one is not concerned simply with domestic case law.

References;

There are four main sources of Irish Law. Pick one of these sources and examine it in detail as it affects the Early Childhood Care and Education area.

Law does not come from one source and can change with time. Previously Brehan Law was Ireland’s native law, up until it was replaced by Common Law when Ireland was taken over by Great Britain. Now post British rule Irish law is taken from The Irish Constitution, 1937, Legislation passed by our government (primary and secondary), Case law and European Union law, these are the main sources but some other sources are Public International law, Cannon law, custom, media and Scholarly writing. In order to examine Case Law in Ireland it is important first to explore the definitions of law, it s place in Irish society. It is necessary to be aware of the process of law making in Ireland, who it affects and how it is practiced and it is enforced.

The name given to the science of law is Jurisprudence. The laws of nature have always existed but Legal laws are put there by humans. Moral and ethics can drive humans to regulate behaviour, e.g. to use manners and to wait in turn, to respect each other’s land and not to steal. Rules of moral value are sometimes governed by the good conscience and fear of other people’s opinions, in Irish societal history this is evident in the times of Roman Catholic influence and is greatly linked to religious beliefs, but most moral laws are also tied in and related with legal rules especially if they are seen to cause a harm to society. E.g. murder, rape, pollution.

The collection of people forming the Irish society has a set of rules in which they must abide by. Laws are set for the common good of the society and by the society to ensure that a certain standard of behaviour is maintained by that society. Legal law in Ireland does not just cover harm to the society; it also regulates private human acts such as suicide, abortion and animal cruelty. These legal rules are enforced on society through the court system. If there were to be no law system in Ireland it would be faced with anarchy.

Law can be defined as “The written and unwritten body of rules, derived from custom, formal enactment or judicial decision, which are recognised as binding on persons who constitute a community or state, so that they will be imposed upon and enforced among those persons by appropriate sanctions”.

(Cited by Murdoch.) H, 1998)

The Irish Constitution, 1937 as the main source of law in Ireland is a written document containing the rules that are applied to the state. It contains the fundamental rights of the Irish people and also the regulations for its Government, the regulations for administration of justice. It also holds regulations on the division between the judicial branches of the state and the executive legislative branches of the state.

The constitution has enumerated rights to equality, to personal liberty, to life of the unborn and equally to the mother, to freedom of speech, freedom to associate, freedom of assembly, family rights and protection, Inviolability of the dwelling, the right to education(with parental primacy, freedom to private property, to religious freedom and to directive principles through social policy.

Some rights that are also implied by the Constitution are the rights of the child, the right to know the identity of one’s birth mother, the right to earn a living, the right to strike, the right to dissociate, the right to travel, the right to protect one’s health, the right to bodily integrity, the right to marry and form a family, the right to communicate, the right to silence, the right to privacy, the right to life of the individual, the right to legal representation, the rights to fair procedures in decision making, the right to access to legal advice and the rights to fair procedure in decision making.

The Constitution lays out all the important rights that the society needs in order to live positively and in harmony and it is up to the state to protect the rights of society by enacting legislation. Any legislation that does not protect the rights according to the constitution is not legally binding.

Outside of European Law, the Oireactas is the name of the only place in Ireland that can make laws for the state. It consists of the President and Dail Eireann and Seanad Eireann (the two houses of Oireactas.) A new law starts as a bill which is a proposition for a new legislation which is usually initiated by the government who will have already consulted it with other bodies that it may affect. In some cases the government will set up a green paper containing its ideas and ask for views and feedback on those ideas from individuals and groups of people.

This bill must pass through both the houses of Oireactas though it usually starts off in the Dail Eireann. The Dail will then examine and debate its contents and suggest changes or additions to the bill. The members will then vote on whether to pass the bill or not to pass it. The bill will then be travelled to the Seanad Eireann and they will go through the same process again. They can then decide to pass the bill without any changes needed, the can decide not to pass it at all or they may decide to send it back to the Dail Eireann with more changes to be discussed.

If the Seanad don’t agree with the bill or asks for the Dail to make more changes it will lapse 180 days later, but the Dail can still pass the bill within the deadline once it has passed through the both houses the Seanad only has the power of suggestion and of slowing the process down.

The Taoiseach then passes the bill to the President of Ireland to be signed. The President has the ultimate power then to pass the bill, if the president thinks that the bill may be unconstitutional he/she is entitled to further consultation with the council of state. It is sent to the Supreme Court to be discussed further. If the president does sign the bill it becomes an Act which means it is a Legal/statute law. This law must stay consistent to the constitution or else it is not valid.

Legislation can also be delegated to and implemented through use of statutory instruments; this is known as secondary legislation or subordinate legislation. This means some power is passed down to an executive authority to administer and implement the requirements that are needed to fulfil a primary legislation given by the legislature.

The Childcare Act that was passed in 1991 is an example of a Primary Legislation.

Examples of secondary legislation can be seen within The Childcare Act. In one part The 1991 Childcare Act stated that; “The Health Service Executive has a duty to promote the welfare of children who are not receiving adequate care and protection”. (Cited in Citizens Advice, 2008) This lead to The Childcare (Placement of Children in Foster Care) Regulations, 1995. The Childcare (Placement of Children in Residential Care) regulations, 1995, and The Childcare (Placement of Children with Relatives) regulations, 1995.

Also under The Childcare Act; the HSE is given the responsibility of “ensuring the health, safety and welfare of children attending pre-schools” (Cited in Citizens Advice, 2010) from this the Pre-school Service Regulations 2006 and Garda clearance for employee’s in childcare were created.

When a law is seen to be broken or infringed in Ireland it must be taken to court. The courts will look at the behaviour in question and the definition of the law in question and see if the facts add up to an offence.

There are two different classifications of law in Irish society. They can be described as Private Law / Public Law or Civil/Criminal Law. Private law deals with the relationships of individual people within Ireland, whereas Public Law deals with the relationships between Ireland as a state and the individual.

The purpose of private law/ or civil law is to protect the interests of the individual persons in Ireland and give them rights to defend their interests with. If an individual person is rightfully wronged by another they can defend their interests civilly and orderly, and resolve the dispute in court. Some examples of private law cases are ones that deal with Landlord and tenant issues, Custody issues, personal injury and breach of contract issues. In usual circumstances there is a money pay out, compensation or an injunction…

Public Law/ or criminal law is concerned with the relationships of the individual and Ireland as a state and is of collective interest to the Irish society. It deals with actions by a person that are forbidden by the Irish as a state and these actions are punishable through imprisonment, community service or fines. Acts such as murder, sale of drugs and sexual assaults are dealt with before the public courts. This is done in a public court scene in most cases as it is a crime against the public, whereas it may endanger or distress the victim exceptions are made and their identities are kept hidden.

Procedural/or substantive law is the set of legal rules that are exercised by the court. This outlines the procedure by which the law is to be enforced through the courts and the rules of evidence and forms the courts structure. Some examples of the substantial law used in a civil court would be Property law, Contract law or Tort law. Constitutional law, Administrative law, criminal Law and Public International Law are seen in Public law cases.

In interpreting the legislations in the court, the court must be certain of the intentions of the legislature at the time that it was passed. The court has three rules to put into place if they are unsure of the legislation, if it is unclear to them or if it is appearing to show more than one meaning. The literal rule which means that the judge keeps to the ordinary meanings of the words according to the legislation, The golden rule which means that if by following the literal rule this leads to an absurd result then the literal rule must be changed and finally the mischief rule which means that the judge may investigate as to why the legislation was proposed to be certain of what particular mischief it was set up to fix or prevent or what or who it was meant to protect. In the unlikely case the Dail reports may be necessary to interpret the unclear legislation.

Ireland like, England, America, Australia and New Zealand is part of a common law jurisdiction. This means in common with the other countries the Irish state uses previous court decisions to help them to make decisions in other cases. The previous cases are kept within law reports.

Law that is more so shaped from judicial decision and precedents rather than statute is known as Case law and they govern the impact that court decisions will have on future cases. It comes more from jurisprudence than it is does legislation, though it serves to determine the legality of existing laws and can check or put more of a balance to the law that is put in place by the legislators.

Case law is the overall decisions that are reported by courts which are known as the courts of first impression. They make new interpretations of the law. They can be then be cited as precedents. The process in action is known as stare decisis. New Interpretations are then distinguished from statutory law.

When the Irish Parliament passes a legislation, although a great deal of research goes into the anticipation of how well it will work, nobody knows if it works until it is tested in court. When it is applied or interpreted in a particular way, especially when a new direction or diffentiation appears, the case will often be reported so that other courts will follow this new interpretation in the interests of keeping consistency. The higher the court, the more significant this will be. If a case is appealed and reaches the High Court or the Supreme Court, then the lower courts will have to apply the law in the same way as in that upper court unless the case before them has some significant difference. That is why case law is important. It acts as a guide for judges, magistrates and lawyers.

One simple example of case law in action might be when actors in the television series “Law and Order” cite court decisions to the prosecutor to convince her that they have a case against a certain person. Something like “States vs. Jackson” supports the idea that the defendant was guilty of felony murder.

Case Law is an area which was previously contained within the confines of one’s own country has assumed international proportions and that therefore one is not concerned simply with domestic case law.

References;

Law Of Evidence Analysis Of Similar Fact Evidence Law Essay

The law of evidence is a system under which facts are used to determine the rights and liabilities of the parties. Evidence proves the existence of “facts in issue” or infers them from related facts.

One of the fundamental considerations of criminal evidence law is the balance of justice to the accused against wrongful convictions, ensuring a fair trial and fairness to the victim. Since stakes in criminal trials are generally high, prosecution would have to prove the accused’s guilt beyond a reasonable doubt.

Since similar fact evidence – as evinced in s 11(b), 14 and 15 of the Evidence Act(“EA”) – can be highly prejudicial to the accused, and yet play an important role in proving culpability, it should be reformed to clarify its scope of application under the EA and reflect the common law’s prejudicial – propensity balancing test.

2. Similar Fact Evidence

A. Background

Similar fact evidence is not directly connected to the case but is admitted to prove the existence of facts in issue due to its general similitude.The worry that the trier of facts would convict the accused based solely on evidence of prior conduct has generally led to the inadmissibility of such evidence in the trial as this is severely prejudicial. This concern is amplified in bench trials. Studies have suggested that judges were as influenced as laypersons when exposed to inadmissible evidence, such as prior convictions, even when they held that these evidences were inadmissible. [6] This is despite strong confidence in the judges’ ability to remain neutral to the inadmissible facts. [7] 

Hence, the accused’s past similar offence or behaviour is inadmissible as similar fact evidence based on pure propensity reasoning would “colour the court’s ability to assess the evidence [objectively]”. [8] 

Nonetheless, the mere prejudicial effect of such evidence does not render it inadmissible. It may be highly relevant, especially when such evidence is used to determine whether the acts in question were deliberate or to rebut a defence that could have been available. [9] 

B. EA

Under s 5 of the EA, a fact is only relevant if it falls within one of the relevancy provisions [10] stated in s 6 to s 10 of the EA. These provisions govern specifically the facts in issue, i.e. determinant facts that would decide whether the accused is guilty according to the substantive law governing that offence.In addition, s 11(b) was enacted to be the “residuary category” for the relevancy provisions.

In contrast, similar fact evidence is primarily administrated by s 14 and s 15 as it is concerned with conduct that is “merely similar in nature to those facts in issue” [13] .

s 14 is applicable only when the state of mind of the accused is in issue. Similar fact evidence is admissible to prove mens rea or to rebut the defence of good faith. [14] 

s 15 deals with similar fact evidence that forms a “series of similar occurrences” to prove the mens rea of the accused, [15] and enables the prosecution to produce evidence to rebut a potential defence otherwise open to the accused. [16] 

Admission of similar fact evidence under the EA is based on a “categorization” approach [17] , where such evidence is admissible pursuant to the exceptions stated in the EA [18] . Hence, similar fact evidence should only be admissible to prove the mens rea of the accused under s 14 and 15. [19] 

Significantly, Singapore, India, Malaysia and Sri Lanka have identical s 11, 14 and 15 provisions in their respective Evidence enactments. With the exception of the Indian Evidence Act [20] , the three sections have not been amended since the 19th century. [21] 

C. Case Law Interpretation of Similar Fact Evidence in EA

Singapore courts have not strictly adhered to the draftman’s intention in recent cases. [22] The court has incorporated common law’s “balancing test” [23] where the judge would balance between the probative and prejudicial effect of the similar fact evidence. [24] 

In Lee Kwang Peng v PP [25] , scope of similar fact evidence was extended to prove actus reus. Pursuant to s 11(b), the court was of the view that the section “embodied” [26] the “balancing test”. Hence, similar fact evidence is admissible to prove both mens reas and actus reus. [27] Although readily admitting that this would be contrary to the draftsman’s intention, then Chief Justice Yong held that the EA should be a “facilitative statute” rather than a “mere codification of Stephen’s statement of the law of evidence” [28] .

The courts, until Law Society of Singapore v Tan Guat Neo Phyllis [29] (“Phyllis Tan”), were generally of the opinion that they had the discretion to exclude evidence substantially unfair to the accused. [30] 

D. Under the Criminal Procedure Code Act (2010) [31] (“CPC”)

s 266 of CPC, dealing specifically with stolen goods, allows previous convictions of the accused to be admitted to rebut his defence of “good faith” and/or prove mens rea. However, notice would have to be given to the accused before adducing such evidence [32] .

E. In Comparison to Common Law

Unlike the EA, admissibility of criminal evidence at common law is “exclusionary”. As long as the evidence is logically probative, it is admissible unless it contravenes clear public policy or other laws. [33] 

In Makin v A-G for NSW [34] , Lord Herschell formulated the “two-limbed” rule governing the admissibility of similar fact evidence. Under the first limb, the prosecution is not allowed to adduce similar fact evidence for pure propensity reasoning. However, under the second limb, evidence of the accused’s past conduct is admissible if relevant to the facts in issue via the categorization approach. [35] 

Boardman v PP [36] reformulated these rules by incorporating the “balancing test”. Under this test, the probative force of the similar fact evidence must outweigh the prejudicial effect. Furthermore, such evidence should be “strikingly similar”, such that it would offend common sense if the evidence is excluded. [37] 

However, the requirement of “striking similarity” was deemed to be too narrow in DPP v PP [38] . Instead, sufficient probative force could be gleaned from other circumstances [39] .

Nonetheless, similar fact evidence used to prove identity must be “sufficiently special” to portray a “signature or other special feature” that would “reasonably” point to the accused as the perpetuator of the crime. [40] Hence, similar fact evidence is admissible to establish actus reus [41] .

F. Defects of EA

Singapore courts have incorporated common law principles and extended the applicability of similar fact evidence to prove actus reus. This has resulted in inconsistencies between the draftsman’s intention and the court’s approach.

Further, there are some ambiguities that require clarification.

First, there are difficulties superimposing the Boardman’s balancing test into s 11, 14 and 15 [42] as the EA was drafted to suit the categorization approach. The court would have to admit evidence falling under either section even if it may not be very probative or is highly prejudicial. Hence, s 14 and s 15 address only the “probative” part of the balancing test and leave no room for prejudicial effect considerations. [43] As a result, judicial discretion to exclude very detrimental evidence was developed. [44] 

Second, although allowing similar fact evidence to prove actus reus would require the judge to evoke an additional step of inference [45] , limiting the use of this evidence to prove mens rea would allow extremely probative evidence to be excluded [46] .

Third, admissibility rules under the EA do not distinguish situations where the accused adduced similar fact evidence unintentionally. An injurious consequence would result if the prosecution is entitled to use such evidence. [47] 

Fourth, under s 15, a single act, no matter how probative, is inadmissible. [48] However, this does not take into account the consideration that an act may be capable of supporting the argument “based on the rarity of circumstances” [49] .

Fifth, the courts have admitted similar fact evidence pursuant to s 11 (b) although it may not be pertinent to the facts in issue. Hence, EA should be amended to provide safeguards against such usage of s 11(b).

Lastly, in light of Phyllis Tan [50] , more protection against admissibility of similar fact evidence should be incorporated into the EA.

3. Possible Options

A. Survey of the other Jurisdiction

(1) Australia – Uniform Evidence Acts [51] (“UEA”)

Under UEA, “propensity evidence” and “similar fact evidence” are governed by the “tendency rule” in s 97 and the “coincidence rule” in s 98.

(a) Tendency Rule

Evidence pertaining to the “character”, “reputation”, “conduct” or “a tendency” that the accused possessed is inadmissible unless (a) notice is given to the accused and (b) the evidence has “significant probative value”. Although UEA does not state how “probative” the evidence has to be, “probative value of the evidence” is defined “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. [52] Operation of s 97 would be invoked when the evidence is adduced for the “purpose” of proving the accused’s inherent tendency to act in a particular way. [53] 

(b) Coincidence Rule

As a general rule, evidence of “related events” – which must be “substantially and relevantly similar” [54] – would be inadmissible unless notice is given and the court is convinced that it possesses “significant probative value” [55] .

(c) Criminal Proceedings

A safeguard was inserted in relation to criminal proceedings under s 101 where the probative value of either the tendency or coincidence evidence would have to “substantially outweigh any prejudicial effect”. However, the degree of “probativeness” need not [56] be of such a degree that only one conclusion, i.e. culpability of the accused, could be drawn [57] . (“No rationale explanation test”)

(d) Analysis

UEA clearly adopts the “balancing test” approach, where the probative effect of the evidence must “substantially” outweigh the prejudicial effect on the accused. Furthermore, the introduction of the notice system would reduce the “prejudicial effect” as the accused not be unduly “surprised”.

However, as pointed out by the Australian Law Reform Commission, there is much ambiguity in what constitutes “significantly probative” and when the probative effect will “substantially outweigh” the prejudicial effect. Significantly, in Australia, the trier of fact and law are different.

Heavy reliance on the judge’s discretions, added with the ambiguity and wide application of the balancing test, would increase the risk of prejudice in bench trials.

(2) India – Statutory Amendments

Some amendments to s 11, 14 and 15 of The Indian Evidence Act [58] , upon which the EA was modeled on [59] , had been made pursuant to a review in 2003. [60] However, the changes made were very minor. [61] 

(a) Section 11

An explanation, inserted after s 11(2) [62] , qualified the type of evidence rendered relevant under s 11 such that the degree of relevancy is dependent on “the opinion of the Court” [63] .

(b) Section 14

Clarifications to illustration (h) of s 14 were made such that the similar fact evidence has to show that “A” either had constructive or actual knowledge of the public notice of the loss of the property. [64] 

(c) Section 15

The changes merely show that the acts made, pursuant to s 15, must be done by the “same person”. [65] 

(d) Analysis

It would appear that the amendments to the Indian Evidence Act do not have any substantial impact on the law. However, the amendment of s 11 explicitly mentions that the degree of relevancy of facts is subjected to the “opinions of the court”, which suggests an approach more in line with the balancing test.

(3) England and Wales – Criminal Justice Act 2003 [66] (“CJA”)

The admissibility of criminal evidence is presently governed entirely [67] by the CJA. Part II of CJA addresses the admissibility of “bad character” [68] evidence, which is defined as a person’s “disposition” for a particular misconduct.

Evidence of the defendant’s bad character can be adduced if it falls under one of the seven “gateways” under s 101(1) [69] . Significantly, under s 101 (1) (d), “bad character” evidence is admissible if it is “relevant to an important issue between the defendant and the prosecution” [70] . This includes the propensity to commit a particular type of offence which the accused is charged with or the propensity to lie [71] . Moreover, past convictions may be admissible to prove the defendant’s propensity to commit the crime he was charged with. [72] 

Regardless, s 101 (3) allows the court to exclude evidence, falling under s 101 (1)(d), upon the application of the defendant if the court views that admission of such evidence would infringe on the fairness of the proceedings. [73] 

The scope for the admissibility of “bad character” evidence has widened under the CJA. [74] In fact, evidence of bad character has changed from one of “prima facie inadmissibility” to that of “prima facie admissibility” [75] .

Although, under s 103, “bad character” evidence would be inadmissible if it does not heighten the culpability of the accused, suggesting that the evidence must have some probative force, it appears that the CJA has abandoned the “balancing test”.

Hence, “similar fact evidence” in the form of “bad character” evidence would be inadmissible if it lacks probative value in the establishment of the defendant’s culpability. However, s 101 (1), with the exception of s 101(1)(e), merely requires the evidence to be probative, without the need to outweigh prejudicial effect.

4. Proposal

The EA would require more than a mere amendment. Hence, the type of reform advocated under the Indian Evidence Act should not be adopted. However, a radical change from the “categorization approach” to the “balancing approach”, following UEA, would give the court too much discretion. This is worrying as judges may not be entirely indifferent to inadmissible facts when deciding the case.

On the other hand, the approach under the CJA would be contrary to Phyllis Tan [76] and potentially allows highly prejudicial similar fact evidence to be admissible as long as the prosecution can show some probative value which points towards the guilt of the accused.

Hence, a hybridised model should be adopted where the “categorisation approach” under s 14 and s 15 is kept, but admissibility of such evidence must be subjected to the balancing test.

A. Amendments

(1) Changes to the Headings

s 5 to s 16, under the general heading of “Relevancy of facts”, could be further sub-divided. First, s 5 to s 11 should be placed under a sub-heading of “Governing Facts in issues” [77] . Second, s 12 to s 16 could be placed under “Relevancy of other facts” sub-heading.

This sub-division of the relevancy provisions would clarify the functions of each section and discourage courts from admitting similar fact evidence which does not have a specific connection with the facts in issue via s 11(b).

(2) Incorporating “balancing test”

Most importantly, EA should be amended to include the “balancing test” with guidance drawn from the UEA, such that the probative value of the similar fact evidence should “substantially outweigh” the prejudicial effect. However, the definition of “substantially outweigh” should be left undefined and allowed to develop under the common law. The courts could draw assistance from the Australian case law.

(3) Proving Identity

A provision could be inserted to the EA allowing similar fact evidence to prove that the accused was responsible for the offence. In addition to the “balancing test”, the provision should also reflect the proposition that that such similar fact evidence must satisfy the threshold test of being “strikingly similar” to the offence, almost akin to a “signature” or “special feature” of the accused.

However, it is submitted that the extension of similar fact evidence to prove actus reus should be limited to the situation where the identity of the perpetuator is in doubt.

B. Clarifications

(1) Similar fact evidence produced by the accused mistakenly

It is proposed that such evidence should subjected to a higher standard of “balancing test” where the probative value “substantially outweighs” prejudicial effect.

(2) Only prior convictions are allowed

Prior acquittals should not be admissible as similar fact evidence as this would be unduly prejudicial to the accused. Furthermore, this could result in the undesirable situation whereby the accused is subjected to a “second round” of trials with regards to the prior charges.

In relation to the type of prior convictions that should be allowed, the EA should incorporate the definitions found in s 103(2) [78] and s 103(4) [79] of the CJA.

(3) Clarification of s. 15

s 15 should be extended to include single act or conduct of the accused to rebut the defendant’s defence of “accident”. However, in light of a potential danger of placing too much importance on a single episode, a qualification, such as the “no rationale reason” [80] test, should be implemented along with the extension of s 15.

5. Additional Safeguards

A system of notice, as seen in UEA, should be included into the EA. This reduces the prejudicial effect as the evidence would not be a “surprise”. Furthermore, this approach would be in line with the CPC, which has already adopted such a procedural reform.

6. Conclusion

Regarded as one of the most difficult area of the law of evidence, similar fact evidence can serve as a double-edged sword. It has the potential to convict the accused although the facts do not relate to the facts in issue and is highly prejudicial to the defendant.

In light of the rapid development of the rules governing the admissibility of similar fact evidence under the common law and the recent trend of common law countries codifying the test of admissibility into statutes, the EA should be reformed to reflect these developments, instead of relying on case law which can lead to inconsistency and uncertainty.

Further, as information of a person’s past is easily obtained with present technological advancements, safeguards against similar fact evidence should be incorporated so as to ensure a fair trial.

The law of evidence is a system under which facts are used to determine the rights and liabilities of the parties. Evidence proves the existence of “facts in issue” or infers them from related facts.

One of the fundamental considerations of criminal evidence law is the balance of justice to the accused against wrongful convictions, ensuring a fair trial and fairness to the victim. Since stakes in criminal trials are generally high, prosecution would have to prove the accused’s guilt beyond a reasonable doubt.

Since similar fact evidence – as evinced in s 11(b), 14 and 15 of the Evidence Act(“EA”) – can be highly prejudicial to the accused, and yet play an important role in proving culpability, it should be reformed to clarify its scope of application under the EA and reflect the common law’s prejudicial – propensity balancing test.

2. Similar Fact Evidence

A. Background

Similar fact evidence is not directly connected to the case but is admitted to prove the existence of facts in issue due to its general similitude.The worry that the trier of facts would convict the accused based solely on evidence of prior conduct has generally led to the inadmissibility of such evidence in the trial as this is severely prejudicial. This concern is amplified in bench trials. Studies have suggested that judges were as influenced as laypersons when exposed to inadmissible evidence, such as prior convictions, even when they held that these evidences were inadmissible. [6] This is despite strong confidence in the judges’ ability to remain neutral to the inadmissible facts. [7] 

Hence, the accused’s past similar offence or behaviour is inadmissible as similar fact evidence based on pure propensity reasoning would “colour the court’s ability to assess the evidence [objectively]”. [8] 

Nonetheless, the mere prejudicial effect of such evidence does not render it inadmissible. It may be highly relevant, especially when such evidence is used to determine whether the acts in question were deliberate or to rebut a defence that could have been available. [9] 

B. EA

Under s 5 of the EA, a fact is only relevant if it falls within one of the relevancy provisions [10] stated in s 6 to s 10 of the EA. These provisions govern specifically the facts in issue, i.e. determinant facts that would decide whether the accused is guilty according to the substantive law governing that offence.In addition, s 11(b) was enacted to be the “residuary category” for the relevancy provisions.

In contrast, similar fact evidence is primarily administrated by s 14 and s 15 as it is concerned with conduct that is “merely similar in nature to those facts in issue” [13] .

s 14 is applicable only when the state of mind of the accused is in issue. Similar fact evidence is admissible to prove mens rea or to rebut the defence of good faith. [14] 

s 15 deals with similar fact evidence that forms a “series of similar occurrences” to prove the mens rea of the accused, [15] and enables the prosecution to produce evidence to rebut a potential defence otherwise open to the accused. [16] 

Admission of similar fact evidence under the EA is based on a “categorization” approach [17] , where such evidence is admissible pursuant to the exceptions stated in the EA [18] . Hence, similar fact evidence should only be admissible to prove the mens rea of the accused under s 14 and 15. [19] 

Significantly, Singapore, India, Malaysia and Sri Lanka have identical s 11, 14 and 15 provisions in their respective Evidence enactments. With the exception of the Indian Evidence Act [20] , the three sections have not been amended since the 19th century. [21] 

C. Case Law Interpretation of Similar Fact Evidence in EA

Singapore courts have not strictly adhered to the draftman’s intention in recent cases. [22] The court has incorporated common law’s “balancing test” [23] where the judge would balance between the probative and prejudicial effect of the similar fact evidence. [24] 

In Lee Kwang Peng v PP [25] , scope of similar fact evidence was extended to prove actus reus. Pursuant to s 11(b), the court was of the view that the section “embodied” [26] the “balancing test”. Hence, similar fact evidence is admissible to prove both mens reas and actus reus. [27] Although readily admitting that this would be contrary to the draftsman’s intention, then Chief Justice Yong held that the EA should be a “facilitative statute” rather than a “mere codification of Stephen’s statement of the law of evidence” [28] .

The courts, until Law Society of Singapore v Tan Guat Neo Phyllis [29] (“Phyllis Tan”), were generally of the opinion that they had the discretion to exclude evidence substantially unfair to the accused. [30] 

D. Under the Criminal Procedure Code Act (2010) [31] (“CPC”)

s 266 of CPC, dealing specifically with stolen goods, allows previous convictions of the accused to be admitted to rebut his defence of “good faith” and/or prove mens rea. However, notice would have to be given to the accused before adducing such evidence [32] .

E. In Comparison to Common Law

Unlike the EA, admissibility of criminal evidence at common law is “exclusionary”. As long as the evidence is logically probative, it is admissible unless it contravenes clear public policy or other laws. [33] 

In Makin v A-G for NSW [34] , Lord Herschell formulated the “two-limbed” rule governing the admissibility of similar fact evidence. Under the first limb, the prosecution is not allowed to adduce similar fact evidence for pure propensity reasoning. However, under the second limb, evidence of the accused’s past conduct is admissible if relevant to the facts in issue via the categorization approach. [35] 

Boardman v PP [36] reformulated these rules by incorporating the “balancing test”. Under this test, the probative force of the similar fact evidence must outweigh the prejudicial effect. Furthermore, such evidence should be “strikingly similar”, such that it would offend common sense if the evidence is excluded. [37] 

However, the requirement of “striking similarity” was deemed to be too narrow in DPP v PP [38] . Instead, sufficient probative force could be gleaned from other circumstances [39] .

Nonetheless, similar fact evidence used to prove identity must be “sufficiently special” to portray a “signature or other special feature” that would “reasonably” point to the accused as the perpetuator of the crime. [40] Hence, similar fact evidence is admissible to establish actus reus [41] .

F. Defects of EA

Singapore courts have incorporated common law principles and extended the applicability of similar fact evidence to prove actus reus. This has resulted in inconsistencies between the draftsman’s intention and the court’s approach.

Further, there are some ambiguities that require clarification.

First, there are difficulties superimposing the Boardman’s balancing test into s 11, 14 and 15 [42] as the EA was drafted to suit the categorization approach. The court would have to admit evidence falling under either section even if it may not be very probative or is highly prejudicial. Hence, s 14 and s 15 address only the “probative” part of the balancing test and leave no room for prejudicial effect considerations. [43] As a result, judicial discretion to exclude very detrimental evidence was developed. [44] 

Second, although allowing similar fact evidence to prove actus reus would require the judge to evoke an additional step of inference [45] , limiting the use of this evidence to prove mens rea would allow extremely probative evidence to be excluded [46] .

Third, admissibility rules under the EA do not distinguish situations where the accused adduced similar fact evidence unintentionally. An injurious consequence would result if the prosecution is entitled to use such evidence. [47] 

Fourth, under s 15, a single act, no matter how probative, is inadmissible. [48] However, this does not take into account the consideration that an act may be capable of supporting the argument “based on the rarity of circumstances” [49] .

Fifth, the courts have admitted similar fact evidence pursuant to s 11 (b) although it may not be pertinent to the facts in issue. Hence, EA should be amended to provide safeguards against such usage of s 11(b).

Lastly, in light of Phyllis Tan [50] , more protection against admissibility of similar fact evidence should be incorporated into the EA.

3. Possible Options

A. Survey of the other Jurisdiction

(1) Australia – Uniform Evidence Acts [51] (“UEA”)

Under UEA, “propensity evidence” and “similar fact evidence” are governed by the “tendency rule” in s 97 and the “coincidence rule” in s 98.

(a) Tendency Rule

Evidence pertaining to the “character”, “reputation”, “conduct” or “a tendency” that the accused possessed is inadmissible unless (a) notice is given to the accused and (b) the evidence has “significant probative value”. Although UEA does not state how “probative” the evidence has to be, “probative value of the evidence” is defined “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. [52] Operation of s 97 would be invoked when the evidence is adduced for the “purpose” of proving the accused’s inherent tendency to act in a particular way. [53] 

(b) Coincidence Rule

As a general rule, evidence of “related events” – which must be “substantially and relevantly similar” [54] – would be inadmissible unless notice is given and the court is convinced that it possesses “significant probative value” [55] .

(c) Criminal Proceedings

A safeguard was inserted in relation to criminal proceedings under s 101 where the probative value of either the tendency or coincidence evidence would have to “substantially outweigh any prejudicial effect”. However, the degree of “probativeness” need not [56] be of such a degree that only one conclusion, i.e. culpability of the accused, could be drawn [57] . (“No rationale explanation test”)

(d) Analysis

UEA clearly adopts the “balancing test” approach, where the probative effect of the evidence must “substantially” outweigh the prejudicial effect on the accused. Furthermore, the introduction of the notice system would reduce the “prejudicial effect” as the accused not be unduly “surprised”.

However, as pointed out by the Australian Law Reform Commission, there is much ambiguity in what constitutes “significantly probative” and when the probative effect will “substantially outweigh” the prejudicial effect. Significantly, in Australia, the trier of fact and law are different.

Heavy reliance on the judge’s discretions, added with the ambiguity and wide application of the balancing test, would increase the risk of prejudice in bench trials.

(2) India – Statutory Amendments

Some amendments to s 11, 14 and 15 of The Indian Evidence Act [58] , upon which the EA was modeled on [59] , had been made pursuant to a review in 2003. [60] However, the changes made were very minor. [61] 

(a) Section 11

An explanation, inserted after s 11(2) [62] , qualified the type of evidence rendered relevant under s 11 such that the degree of relevancy is dependent on “the opinion of the Court” [63] .

(b) Section 14

Clarifications to illustration (h) of s 14 were made such that the similar fact evidence has to show that “A” either had constructive or actual knowledge of the public notice of the loss of the property. [64] 

(c) Section 15

The changes merely show that the acts made, pursuant to s 15, must be done by the “same person”. [65] 

(d) Analysis

It would appear that the amendments to the Indian Evidence Act do not have any substantial impact on the law. However, the amendment of s 11 explicitly mentions that the degree of relevancy of facts is subjected to the “opinions of the court”, which suggests an approach more in line with the balancing test.

(3) England and Wales – Criminal Justice Act 2003 [66] (“CJA”)

The admissibility of criminal evidence is presently governed entirely [67] by the CJA. Part II of CJA addresses the admissibility of “bad character” [68] evidence, which is defined as a person’s “disposition” for a particular misconduct.

Evidence of the defendant’s bad character can be adduced if it falls under one of the seven “gateways” under s 101(1) [69] . Significantly, under s 101 (1) (d), “bad character” evidence is admissible if it is “relevant to an important issue between the defendant and the prosecution” [70] . This includes the propensity to commit a particular type of offence which the accused is charged with or the propensity to lie [71] . Moreover, past convictions may be admissible to prove the defendant’s propensity to commit the crime he was charged with. [72] 

Regardless, s 101 (3) allows the court to exclude evidence, falling under s 101 (1)(d), upon the application of the defendant if the court views that admission of such evidence would infringe on the fairness of the proceedings. [73] 

The scope for the admissibility of “bad character” evidence has widened under the CJA. [74] In fact, evidence of bad character has changed from one of “prima facie inadmissibility” to that of “prima facie admissibility” [75] .

Although, under s 103, “bad character” evidence would be inadmissible if it does not heighten the culpability of the accused, suggesting that the evidence must have some probative force, it appears that the CJA has abandoned the “balancing test”.

Hence, “similar fact evidence” in the form of “bad character” evidence would be inadmissible if it lacks probative value in the establishment of the defendant’s culpability. However, s 101 (1), with the exception of s 101(1)(e), merely requires the evidence to be probative, without the need to outweigh prejudicial effect.

4. Proposal

The EA would require more than a mere amendment. Hence, the type of reform advocated under the Indian Evidence Act should not be adopted. However, a radical change from the “categorization approach” to the “balancing approach”, following UEA, would give the court too much discretion. This is worrying as judges may not be entirely indifferent to inadmissible facts when deciding the case.

On the other hand, the approach under the CJA would be contrary to Phyllis Tan [76] and potentially allows highly prejudicial similar fact evidence to be admissible as long as the prosecution can show some probative value which points towards the guilt of the accused.

Hence, a hybridised model should be adopted where the “categorisation approach” under s 14 and s 15 is kept, but admissibility of such evidence must be subjected to the balancing test.

A. Amendments

(1) Changes to the Headings

s 5 to s 16, under the general heading of “Relevancy of facts”, could be further sub-divided. First, s 5 to s 11 should be placed under a sub-heading of “Governing Facts in issues” [77] . Second, s 12 to s 16 could be placed under “Relevancy of other facts” sub-heading.

This sub-division of the relevancy provisions would clarify the functions of each section and discourage courts from admitting similar fact evidence which does not have a specific connection with the facts in issue via s 11(b).

(2) Incorporating “balancing test”

Most importantly, EA should be amended to include the “balancing test” with guidance drawn from the UEA, such that the probative value of the similar fact evidence should “substantially outweigh” the prejudicial effect. However, the definition of “substantially outweigh” should be left undefined and allowed to develop under the common law. The courts could draw assistance from the Australian case law.

(3) Proving Identity

A provision could be inserted to the EA allowing similar fact evidence to prove that the accused was responsible for the offence. In addition to the “balancing test”, the provision should also reflect the proposition that that such similar fact evidence must satisfy the threshold test of being “strikingly similar” to the offence, almost akin to a “signature” or “special feature” of the accused.

However, it is submitted that the extension of similar fact evidence to prove actus reus should be limited to the situation where the identity of the perpetuator is in doubt.

B. Clarifications

(1) Similar fact evidence produced by the accused mistakenly

It is proposed that such evidence should subjected to a higher standard of “balancing test” where the probative value “substantially outweighs” prejudicial effect.

(2) Only prior convictions are allowed

Prior acquittals should not be admissible as similar fact evidence as this would be unduly prejudicial to the accused. Furthermore, this could result in the undesirable situation whereby the accused is subjected to a “second round” of trials with regards to the prior charges.

In relation to the type of prior convictions that should be allowed, the EA should incorporate the definitions found in s 103(2) [78] and s 103(4) [79] of the CJA.

(3) Clarification of s. 15

s 15 should be extended to include single act or conduct of the accused to rebut the defendant’s defence of “accident”. However, in light of a potential danger of placing too much importance on a single episode, a qualification, such as the “no rationale reason” [80] test, should be implemented along with the extension of s 15.

5. Additional Safeguards

A system of notice, as seen in UEA, should be included into the EA. This reduces the prejudicial effect as the evidence would not be a “surprise”. Furthermore, this approach would be in line with the CPC, which has already adopted such a procedural reform.

6. Conclusion

Regarded as one of the most difficult area of the law of evidence, similar fact evidence can serve as a double-edged sword. It has the potential to convict the accused although the facts do not relate to the facts in issue and is highly prejudicial to the defendant.

In light of the rapid development of the rules governing the admissibility of similar fact evidence under the common law and the recent trend of common law countries codifying the test of admissibility into statutes, the EA should be reformed to reflect these developments, instead of relying on case law which can lead to inconsistency and uncertainty.

Further, as information of a person’s past is easily obtained with present technological advancements, safeguards against similar fact evidence should be incorporated so as to ensure a fair trial.