Category Archives: Justice

I examine criminal justice and I explain some aspects of the English and Welsh legal system. I sometimes argue for more leniency and sometimes for more firmness. It depends on the individual case.

Why the USA needs gun control.

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trolls.

threaten me

Get rid of democratic senators. Why no guns in white house or on air force one. Why not protect oneself from secret service.

trump spoke for gun rights from behing bullet proof screen.

why did revolution succeed? generals, bravery, foreign government

French, Spanish and Dutch help.

Have no insurrections failed?

USA would not succeed in revolution. they will not accept high death toll. 4 000 killed in Afghanistan and 4 000 in iraq

did gun rights save African-americans from tyranny?

did guns save native Americans?

Was in hotel in belize. no gnun raises the stakes.

Afghanistan guns. you favour USSR or mujahideen.

first principles. restrict dangerous items. choice versus safety.

creech said knife crime is a problem in the UK. true. We must do something about it.

gun control – happened in 1960s and 1993. jeremiads.

kinder egg.

burgers are dangerous. defend liberty with burgers.

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Criminal law (intro to common law)

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Criminal Law.
Criminal Law concerns breaches of the law that are regarded as so serious that the state is obliged to take action. This is different from civil law where individuals and organisations take action against each other. Criminal Law can end up with someone being sent to prison. Civil cases cannot end in a prison sentence.
Many courtroom dramas would make you think that most legal cases are criminal. That is not the case. These cases are more likely to be depicted on television because they are more dramatic.
Lawyers and judges who specialise in Criminal Law are called criminal lawyers and criminals judges. This does not imply that these lawyers and judges are criminals themselves!

Criminal law is an area of public law. It is public because here the state intervenes to protect the citizen or indeed to prosecute the citizen.
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STATUTES
Various statutes govern criminal Law. The Offences against the Person Act (1861) is one of these. The Homicide Act is another of these. There are many other such acts such as the Sexual Offences Act, the Piracy Act, the Theft Act and so forth.
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Theft
What is theft? It is depriving another of his possession with the intention of permanently depriving him of it. That means that if you borrow something without permission that is not theft so long as the item is returned within a reasonable time. What is a reasonable period of time? A court will decide. Theft is defined by the Theft Act.
Note that Taking a car without the owner’s consent is not theft. This offence is abbreviated to TOC (taking without consent). It is a crime but this is tantamount to borrowing a car without permission.

Burglary is different from theft in that it involves stealing something from a house or building. This is not set out in the Theft Act but defined by court rulings down the centuries. It is viewed more dimly than theft and it more heavily penalised.

Fraud is also defined by statute, ”obtaining a pecuniary advantage by deception.”

 
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Criminal Damage.
Criminal damage is willfully or recklessly injuring the property of another.
Hugo McDonald threw a chair through the window of McDonald’s during a riot in 1999. He was convicted of criminal damage and awarded 6 month’s imprisonment. He was under 18 at the time of the offence so he was sent to Feltham Young Offenders’ Institute.

Note the use of reckless here. It crops up a lot in criminal statues. If one does not intend to do something but it happens anyway it can still be reckless. The malfeasant was careless and dd something he knew could result in damage.
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Murder
Murder is deliberately killing another person without lawful excuse. A lawful excuse is justifiable homicide. If a man bursts into my house with a knife saying he is hellbent on killing me and I then hit him on the head with a bottle this would be justifiable homicide. I would be invoking a claim of self-defence.
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Manslaughter.
Manslaughter is accidentally killing a person where there is some culpability on the part of the person who killed the other. If I fire a gun into the air and the bullet comes down and kills someone that is manslaughter. I did not try to kill someone but I was very foolish in causing the risk that resulted in death.

Phillippa is driving her car safely within the speed limit. Quentin dashes out across the road without looking. Phillippa slams on the breaks but it is too late. Her car hits Quentin and kills him. Phillippa is not guilty of manslaughter and would probably not have charges laid against her. This is because she did not cause the death – Quentin caused his own death.
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Suicide.
Attempting suicide has not been a crime since the 60s. Encouraging or assisting suicide is a crime. Some people have sometimes helped their spouse commit suicide when the spouse is terminally ill and in grave pain. Sometimes these people have not been prosecuted. At least one person has been found guilty of murder for helping his wife kill herself when she was in agony.
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Rape.
This is penile penetration of any orifice without the consent of the person concerned. This includes rape of a man or a woman. A woman is not capable of raping a male. If someone is so drunk that he or she cannot meaningfully consent then intercourse with such a person is rape.
The definition of consent is exacting. Submission does not count as consent.
Someone engaged in intercourse is entitled to withdraw consent at any point. If a man continues to engage in intercourse after this point it is rape.

 

Submission is not consent.
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Burglary.
This is breaking into any building to steal items. Even if the items are not actually stolen it is still burglary. Suppose Raj is caught once he breaks into a building and has not laid hands on any item he is still guilty of burglary if a court can be persuaded that Raj planned to steal items.
What is a building? It can be a house, an office, a factory, a hotel etc… How about a boat? Yes, this counts as a building. A tent is not a building.
Stealing things that are outside a building is a crime but is not burglary. Burglary is more heavily punished than theft especially if the burglary is of a house rather than a non residential building.
Going armed for burglary is also a crime. If Simone is caught at the back of a jewellery shop at 3 o clock in the morning in an all over black outfit and balaclava with a crow bar and a bar it might be believed that she has gone there with the intent to burgle the place.
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Assault.
There are several categories of assault. Common assault is very minor. It can be spitting at someone or even swearing at them. Assaults this trivial are very seldom prosecuted.
There is actual bodily harm. This is more serious and usually involves kicking and punching.
Then there is grievous bodily harm. This amounts to gross personal violence. This often involves the use of a knife or bar. However, it could occur without using any weapon.
Attempted murder is when the suspect is believe to have tried to kill another person without lawful excuse.

Battery is another category of assault. This involves gross personal violence.
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MALICIOUS WOUNDING.
This is purposefully hurting someone’s body with a weapon. It can be a knife or a blunt instrument.
A man falsely claimed to be a doctor and gave injections. This was held to be malicious wounding.
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CO-ERCION.
Someone accused of a crime may claim that he has been forced to do it. This defence will only be effective if the person relying on it can persuade the court that he was in immediate danger of heavy violence. Courts expect people to show some courage and to stand up to threats rather than commit a crime.
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SEXUAL ASSAULT.
This is touching the genitals, buttocks or breast against the person’s will for a sexual purpose. Medical treatment, hygiene and childcare are all permissible reasons for such touching especially if permission is granted.
If someone bogusly claims to be a doctor and touches a person’s gentials under this pretence this is sexual assault.
Any contact with the erogenous zones of someone under 16 is automatically considered sexual abuse unless one of the lawful excuses applies such as medical care, childcare or hygiene. This is even so if the person under 16 agrees to the touching.
There is an lawful excuse of honest belief. If an adult has sexual contact with someone aged 13 to 16 and honesty believe this younger person to be over 16 at the time then the older person will be acquitted.
Someone aged 16 or 17 will usually not be prosecuted for sexual conduct with someone aged 13-16. This is a Romeo and Juliet law. If a boy aged 16 was sent to prison for kissing a girl aged 15 that would seem to be unduly harsh.
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Positions of trust.
An adult in position of trust is not allowed to have any sexual contact with someone in his charge who is under 18. A parent, stepfather, stepmother, teacher, doctor, nurse, dentist or police officer is not permitted to have any sexual contact with someone under 18 in their charge. This stepfather and stepmother situation does not just apply to married couples. A man or woman living in a relationship with the parent of a minor is considered to be a stepfather or stepmother. This is as set out in the Sexual Offences Act 2000.
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DRUGS.
Certain drugs are outlawed.
Some drugs are forbidden for anything other than medical use. This includes heroin and cocaine.
Possession of some of these drugs without a licence is a crime.
Supplying illegal drugs is also a crime. Even if the drugs are given for free that is still supply. If someone possesses more than a certain amount it is assumed that he or she had the drugs for the purpose of supply and not for personal usage.
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KIDNAPPING
This is taking someone against their will is kidnapping. This is whether a ransom is demanded or not.
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FALSE IMPRISONMENT
This is preventing someone having a reasonable way to leave a place. Locking someone in a room is false imprisonment.
If there is a way to leave the place where a person has been confined by this exit is dangerous then it is false imprisonment.

Lawful imprisonment is allowed.

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TERRORISM.

This crime is defined by the Terrorism Act. It states that terrorism is unlawful violence in any part of the world for the furtherance of any national, political, religious, political or other ideological cause. To engage in this is a crime. This includes acts of violence for the advancement of such a cause, furnishing financial support, providing arms, providing intelligence, providing logistics and inciting others to do any of the same.

Note that violent crime that has no ideological basis is illegal but is not terrorism.

Terrorists often set off bombs. If a bomb goes off an kills someone that is murder even if a warning was given. Moreover, there is a crime of conspiracy to cause an explosion with intent to endanger life. Terrorists often said they did not wish to kill anyone with their bombs which is why they informed the authorities that a bomb was in a certain location and due to explode at a particular time. However, such warning were often inadequate, garbled and deliberately misleading. Nevertheless the defence could argue that the terrorists did not try to kill anyone. Therefore the offence was changed to ”with intent to endanger life.” Note that is not an intent to kill. By setting off a bomb in a town and issuing a warning there was nonetheless an indisputable wish to put life at risk. Otherwise there would be no need for a warning.

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THE CRIMINAL PROCESS.
Terence is arrested on suspicion of theft. The police take him to a police station. He is fingerprinted and a DNA sample. A duty sergeant is responsible for his custody. Terence is checked to see he is healthy. The polie must make sure he does not die or come to serious harm in their custody. The police can hold Terence for up to 24 hours. After that they must either charge him with a crime or release him. Even if they do charge him with a crime they will probably release him within 24 hours because the crime is not very serious and he can await trial at home. His wallet and mobile phone are taken away.
The police want to question Terence. A solicitor is provided for him while the police question him. If it is late at night a solicitor might not be available. In that case the police can say to Terence they will hold him overnight and question him in the morning when a solicitor is available. Terence is told that he can be questioned right now and released after the interview if he agrees to be interviewed without a solicitor.
Terence is keen to get home. He waives his right to have a solicitor there while he is questioned. He signs a waiver form.
The police question him. The interview is sound recorded so that there can be no dispute what was said. The interview is not always filmed. The police do not shout or act menacingly. The police are not even allowed to stand up in case that is intimidating. The verify with him that he is fit and well to be interviewed. If at any point he feels sick he can end the interview until he feels able to continue.
Terence refuses to answer some questions. He simply says ”no comment”. He answers other questions. He is not obliged to say anything. However, his failure to answer some questions can undermine his defence later. He refuses to say where he was at the time of the alleged offence. The police tell him they have an eyewitness who say him commit the theft. This is a lie. The police are allowed to lie to suspects. The police tell Terence they know he did it and he should help himself by confessing..
Terence denies the crime. The police feel they have sufficent evidence despite his denials. The charge him with the crime of theft in relation to a television stolen from a van. After the interview he is released on police bail.
The police send a file of evidence to the Crown Prosecution Service (CPS).
The CPS look at the file. They could choose not to prosecute if they do not believe it is in the public interest to pursue the case. They also have to ask if there is a reasonable prospect of securing a conviction.
The CPS decide to prosecute Terence. He is contacted and told a trial date.
Terence is advised to contact a solicitor. Terence gets legal aid. He meets a criminal defence solicitor from a company specialising in this sort of work. Terence does not have to pay a penny for his defence. The solicitor is called Usha. Usha informs him that he must tell her the truth. If he tells Usha that he committed the crime then she will not lie for him. She will not defend him on the basis that he did not do it. That would be unethical and she could be kicked out of her profession for doing that. If he informs Usha that he did commit the theft then she will defend him on the basis that it was a mistake, he is very sorry for it, he was financially desperate, it was a first time offence, no real harm was done, he will return the item and he had a difficult childhood.
Terence maintains his innocence. Usha does not believe him but she is entitled to defend him by saying that he is innocent because he said he is. She is allowed to do this. It is up to the court not up to the solicitor to judge his guilt.
Terence is told not to go abroad before his trial. The police tell him this.
Terence shows up at court on the day appointed. It is a magistrate’s court. Three lay magistrates are hearing the case. These three people are respectable local citizens who are not solicitors or barristers themselves. They are educated people without a criminal record. The work as magistrates part time on top of their normal jobs and they do this without being paid at all. One of the magistrates is a teacher, another is a dentist and another is a pilot. In fact they could belong to any profession but these three professions would be typical of stipendiary magistrates. These magistrates put the letters JP (Justice of the Peace) behind their names.
Terence is asked to plead guilty or not guilty. He pleads not guilty.
There is a brief trial. The officer who arrested Terence testifies. This policeman swears on the Bible to tell the truth, the whole truth and nothing but the truth. There can be no casuistry. He is not allowed to tell a half truth. He must not keep quiet about anything that might be relevant to the case.
The prosecution question the police officer. The defence solicitor is then allowed to question the same officer. However, Usha does not manage to shake his testimony.
Then an eyewitness is questioned by both sides. Before this woman is cross examined she swears to tell the truth. She is a Muslim so she chooses to swear on the Koran.
The police show some CCTV footage. The prosecution solicitor reads out some of the interview testimony that Terence gave to the police. There is also some fingerprint evidence.
Terence chooses not to speak in his own defence.
The trial only takes a couple of hours. The magistrates briefly go into another room to discuss the case. After a few minutes they come back into the court room. They announce that they all agree that Terence is guilty. All three of them must agree that he is guilty if the verdict is to be guilt.
They then announce the sentence. Terence is sentenced to 12 weeks in prison. Court officers take him down immediately and handcuff him. He is soon taken to prison. If he had pleaded guilty then he would have been found guilty immediately. He would have had a one third reduction in his sentence if he had pleaded guilty – as in he would have been awarded an 8 week sentence and not a 12 week sentence.
He has the chance to appeal but decides not to. That would simply delay things.
He only serves 3 weeks of his 12 week sentence. This is typical in the case of very short sentences – people are usually released very early when the sentence is brief.
Terence has a criminal record. He works as a builder so this sentence is not an obstacle to finding work. Some jobs would ask for a basic disclosure of a criminal record. His sentence would show up. However, after a few years a basic disclosure would not show this conviction because it is minor and he conviction would be shown to be spent. The aim of this is to allow criminals to reform and put their past behind them. If Terence ever applies to work with children or in the financial sector he will have to provide an enhanced disclosure. In that case the conviction will always show up. It is never wiped. Terence will not be able to become a solicitor or barrister. He will find it almost impossible to get a job in the financial sector.
Terence can appeal at any point in his life. If a court finds the conviction was unsafe it will be overturned. In that case his criminal record will be wiped.
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A CASE STUDY. TERRORISM.
Violet and Will are arrested on suspicion of conspiracy to cause an explosion. The police go through the normal procedures in the police station. Violent and Will are immediately separated and not allowed to communicate. Their personal effects are confiscated.
Solicitors are brought. The two suspects are questioned separately.
The solicitors advise their clients not to admit anything unless they absolutely have to.
The police question the two for a few days. They are able to hold them for up to 28 days because the arrest was under the Terrorism Act.
The police tell Will that Violet has cracked under questioning and told them everything. They also tell him they found his fingerprints on some explosives In fact these statements are false. The solicitor advises Will not to answer further questions. Will goes against the solicitor’s advice.
Will then panics and confesses that he planned to set off a bomb.
Violet refuses to co operate.
The police charge both with the crime. Will then tells the solicitor that he committed the crime but has changed his mind and wants to withdraw his confession. The solicitor says that as Will has told her that he did the crime she will not defend him by claiming that Will is innocent. She willing to defend him by pleading mitigation – that he is remorseful and did it when he was furious and that he is otherwise a good person. But she refuses to lie for him. If he wants to commit perjury in court the solicitor will resign from the case. In that case Will shall be given a different solicitor whom he has not asked to lie for him. Will changes his mind again and decides to stick to his confession.
They are kept in. There is a bail hearing next day. The police oppose bail. This is because the crime the two are charged with is very heinous. There is a flight risk. Moreover, Will is previously known to police. He has a conviction for supplying drugs.
The two are remanded in custody. This means they await the trial in prison. As they are remand prisoners they are allowed to wear their own clothes.
The trial begins after a month. Violet pleads not guilty. Will pleads guilty. The trial takes a further month. There is a jury because this is in the Crown Court.

Violet is found not guilty and set free. Will is found guilty. In view of his early guilty plea he is sentenced to only 10 years in prison.
He then asks for leave to appeal. The leave (permission) is given. He appeals on the basis of the facts – he says that the information presented to the court was wrong. A new judge hears the case – as in she was not the judge at the original trial. She decides that the appeal is false and upholds the appeal.
A few years after Will appeals again. He says the judge at his original trial erred in law. Another judge hears this appeal. The appeal is ongoing when the Will comes up for parole. He decides to end his appeal. If he wants to get out on parole there must be no outstanding appeals. He then goes before a parole board. He convinces then he is truly sorry for his crime.
They give him day release. He is allowed out of prison for 12 hours for his sister’s wedding. Next month is grandmother dies. They let him out for 12 hours for the funeral.
Two months later they allow him to start working on a farm 6 hours a day outside the prison. This carries on for a year. Then they allow him out for a weekend. Next month he gets another weekend out. Next month he gets a week out of prison. He always returns on time. He is being prepared for freedom.
He is released on licence after 6 years. His leg is tagged. He has to report to a probation officer weekly. He lives in a half way house If the police suspect he is doing anything wrong they can return him to prison to serve the rest of his sentence.
After a year his probation is ended. He is free.

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SEXUAL ABUSE

 

Here is another fictitious case.

Paul T Connor was a teacher. Several of his pupils say that he sexually abused them when they were under the age of consent. His accomplice in these crimes was Simon Irvine-Fortescue.

Paul and Simon go on trial. They plead guilty to these heinous offences. Given the severity of these crimes and that they were committed against very young children and that these two paedophiles were prolific in their offending the judge sends them down for twenty years apiece. These men are held in a secure unit for their own protection away from the other gaol birds.
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MILITARY LAW.
The armed forces have their own system of justice. This is outside the scope of this course.
Serving members of the military are usually dealt with by the military’s own judicial system unless the offence is very heinous such as murder.
Soldiers who go away for the weekend and get drunk and into a fight will be arrested by the police. The police will usually hand these soldiers over to the Royal Military Police (RMP) who will take the suspect back to his or her unit. The military may prosecute these people according to their own procedures. The military has its own prison at Colchester.
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ABSOLUTE DISCHARGE.
Very rarely a court can grant someone an absolute discharge. This means that the charges are set aside.
If Xenophon finds someone old ammunition in the forest he might pick it up and decide to bring it to the police station to hand it in. Xenophon is stopped on the way and searched. He is arrested when the bullets are found. He is charged with unlawful possession of ammunition. He would then probably be given an absolute discharge by a court.

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THE CROWN PROSECUTION SERVICE (CPS).

The CPS handles prosecutions. The CPS has to examine whether there is a good chance of someone being found guilty. It would be a waste of time and money to proceed to court if there was little prospect of securing a conviction. The CPS asks – is it in the public interest to prosecute? The CPS can decided to issue a  nolle prosequi  order (do not prosecute).

Sometimes charges are ordered to lie on file. This means that the person is not prosecuted in relation to the charges but neither are they dropped. The CPS can revive these charges at a later date if new evidence comes to light and the CPS judges that there is a good chance of a conviction.

Nolle prosequi decisions have sometimes been politicised. In 2006 a prosecution was dropped into corrupt payments to the Saudi Government. This is because it would have been very detrimental to the UK’s relationship with Saudi Arabia.

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PRIVATE PROSECUTION.

If the CPS chooses not to prosecute then people can take out a private prosecution which they fund themselves. These are very unusual. The CPS can nevertheless intervene and stop the prosecution.

In the Stephen Lawrence case the murder suspects were first of all prosecuted by the Lawrence family when the CPS decided there was insufficient evidence to warrant a prosecution. The Lawrences were warned not to go ahead with the prosecution because it would likely end in a not guilty verdict as indeed it did.

 

 

 

The nuts and bolts of law. (Intro to Common Law)

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The nuts and bolts of law.
Courts are divided into two divisions: the criminal division and the civil division.

Courts go up in tiers (levels).
In the criminal division it is magistrate’s court then crown court, then court of appeal, then the supreme court. Cases can then go to the European Court of Human Rights.
In the civil division the county court is the lowest court. Then there is the high court, then the court of appeal and then the supreme court. Cases can also go to the European Court of Human Rights.
Notice that at court of appeal is the same for both divisions. The same goes for the supreme court and ECHR. The same judges at these tiers hear both criminal and civil cases.
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CASE NAMES.
A case will have a short name like
Massingbird v Simmonds [2002]. The first named party is the party that moved the action. In this case Massingbird moved the action.

A party is the person or organisation in a case. We say party because it can be one person, more than one person, an organisation or several organisations together.
The second named party (in this case Simmonds) defends the action.
The year of decision is sometimes given in square bracket afterwards. Note it is the year of decision which is not always the year a case started.
Take Fazwi v Zia [1990]. If the case began in 1989 but the case was decided in 1990 then the year of decision is given: 1990.
The ”v” is read as ”and” in Commonwealth countries. SO for Fawzi v Zia one says ”Fawzi and Zia.” It is NOT ”Fawzi vee Zia”
The” v” comes from the Latin ”versus” which means against. In the United States people say ”v” or ”versus”. Some people in Commonwealth countries have picked up this American practise and read te letter ‘v’ as ”vee’ when talking about the name of a case or else they say the word ”versus.” In Commonwealth countries this is considered to be a mistake. I know it seems illogical – if you see a ‘v’ you would assume that you should say ”vee” or the word it stands for ”versus”.
So, to recap – Thistlewood v Michaels is read as ”Thistlewood and Michaels”.

Sometimes more than one party moves an action. Moreover, more than one party can defend an action. It could be Vinson, Simons and Haq v Peters, Borough and Fairclough. In this case it would seem ridiculous to read it as ”Vinson, Simons and Haq and Peters, Borough and Fairclough.”
In this situation for the letter ‘v’ one reads ”against”. Yes, the English words against and not the Latin word ”versus.”
It would be ”Vinson, Simons and Haq against Peters, Borough and Fairclough.”
Even if there is only one party on either side one can still use the word ”against” between them. For instance, in the fictitious case of Clyde v Benson it could be read as ”Clyde against Benson” or ”Clyde and Benson” whichever you prefer.

Sometimes there are several parties to an action. You do not need to list them all. Take this fictive case:
Faron, House, Porterfield and ICI v BBC, Whitehouse, Grass and Terrington.
It is acceptable to say ”Farron and others against BBC and others.”
The name of a case is usually in italics. A case may be heard again and again in which case it is called number 1 , number 2, number 2 and so on.
Bow Street Court Stipendary Magistrate v Pincochet Ugarte [Number 2] is an example of this. That is because the Pinochet Ugarte case went through several stages.

People often put the year of decision to help understand the historicity of the case. It also helps to distinguish between cases with similar names.
In criminal cases it is the Crown that moves the action.
Then Crown v Samuel would be an example. The Crown can be written as ”R”. This is because of the Latin word ”regina” meaning ”queen” or the Latin word ”rex” meaning ”king.”
R v Byng is read as ”R against Byng” or ”R and Byng.” It is also acceptable to say ”The Crown.”
It is not the Queen who personally moves the action. Her title is used as a constitutional abstraction to personify the state.
In other countries it is the name of the country that is used in criminal cases.
India v Mahsood.
Personal names are sometimes used because too many people have the same surname and it gets confusing.
There might be R v Smith case already so one would say R v Smith (Frederick) to distinguish it.
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LAW REPORTS.
Read the Western Law Reports. There are law reports that specialise in certain areas of law.
Court of Appeal reports only deal with reports at that level.
A report will summarise the salient facts and any developments. Millions of cases go on each year. They cannot all be reported. Most of them do not change the law so are not reported. Court reporters do not have time to read up on all cases. Many cases are open and shut. If a case is very straightforward or there is no innovation there is nothing to report.
A gigantic case can involve millions of words of oral submission and written documents. No one can process all of this or remember it. A report can only be a summary of the key points. What was decided and why? Why is that significant?
There are superb resources for looking up more cases. Lexis Nexus is perhaps the best. The name is Latin for ”network of the law.”

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OUT OF COURT
There is so much focus on courts that it is easy to overlook the fact that most legal work happens outside of court. Barristers prepare cases by reading their briefs. They have meetings with clients – these are called conferences.
Solicitors meet clients and prepare documents. They write official letters asking for this or that and replying to other letters.
Law firms advise their clients. They make out of court settlements. Solicitors handle property transactions, divorces, pre nuptial agreements and wills. They draw up contracts. None of this usually involves a day in court.
People litigate against each other. That means they try to sue each other. This usually involves solicitors not barristers. People often make an agreement without going to court. This reduces the risk for both sides. The side that pays out pays out less than it would if it lost in court. The party receiving the payment receives less than it would if the case went to court and won. On the other hand that party is guaranteed something. The claimant might lose in court. Moreover, legal costs are kept down.
People are increasingly litigious – eager to sue each other. To sue someone comes from ”pursue” – as in chase them through the courts. This only applies to civil actions.
People who start court actions can withdraw it at any time.

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JUDGES
They are addressed as ”Mr Justice Name” or ”Miss Justice Name”. They are not called ”Your Honour” in the Commonwealth.
At a certain level a judge is addressed as ”my lord” even if he does not have the title ‘Lord’ although some judges do have the title ”lord.”
Judges must be respectable and neutral. They approach matters objectively. Judges strive to be unemotional. They must uphold the law and seek to do justice. Sometimes these aims clash. Lord Hoffman said that sometimes he felt very sorry for a party in a case but he recognised that the law and or justice favoured the other party. Therefore Lord Hoffman was duty bound to rule for the party whose case was founded on law and /or rooted in justice.
There is no law against them being politically active but none are. If a judge brings the judiciary into disrepute he or she will be required to retire. This can be even if what the judge did was not illegal. They refrain from making comments on political matters. Politicians should not publicly criticise judges and very rarely do. Judges do not feel they can speak up in their own defence as they strive to avoid straying into the public sphere.
Judges are said to sit ”on the bench.” A recorder is a low ranking civil judge. A recorder can also practise as a barrister one some days as sit on the bench on others.
Above average barristers tend to be the ones appointed to the bench – i.e. made judges. This is because average and below average barristers are not considered good enough to be judges. The real high fliers earn so much that they would make less money if they became judges. Judges are highly paid to reflect their status and erudition. It also makes them difficult to bribe. Only one judge in the last 10 years has been convicted of bribery. No others have even been accused. Judges have a guaranteed income, good holidays, they work reasonable hours and they have a handsome pension. These are the attractions of being a judge. Judges are normally required to retire when they reach the age of 70.

Judges cannot be removed unless they do something disgraceful nor can they have their salaries docked. The purpose of this is to ensure their neutrality. If they could be penalised for returning judgments that were uncongenial to the government then the independence of the judiciary would be gravely impugned.
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THE SUPREME COURT.
A panel of judges hears cases in the Supreme Court. The panel hearing a case is called a ‘constitution’. They usually sit as a constitution of five judges. It must be an even number. This is so if they disagree there must be a majority. If an even number heard a case there could be deadlock.
The majority ruling is presented. One judge will give his opinion. He or she will express the view of the others. Once this judgement has been delivered other members of the majority might add something that the first judge did not say. Quite often other members of the majority say ”I have nothing further to add.” If there is a minority then the minority judges also state their opinion. The dissenting judgement is that of the minority.

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COURT CASES.
In court cases barristers normally wear a black gown, a white stirch with a starched collar, a white wig, the black waistcoat and black-grey trousers. Women have the choice of a skirt or trousers so long as the garment is of the right material and colour. When barristers wear this anachronistic garb they are said to be robed.
Judges wear robes and a wig. Barristers and judges wigs used to be made of horse hair. They are usually manufactured from synthetic material.
Judges seldom wear the full bottomed wig. These are only worn for one procession a year. This garners a lot of media coverage which is why there is the misconception that judges usually wear these elaborate wigs.
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CHILD WITNESSES.

When a case involves children as witnesses a court makes special allowances. Appearing in a courtroom is daunting for anyone especially a child. A judge may order barristers to appear unrobed in the courtroom. This means that they wear suits as a person would for any professional meeting. Wigs and gowns are not worn. This is intended to make the experience less bizarre and frightening for the children. Sometimes judges allow the children to give evidence from another place and the evidence is presented by video link.
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BARRISTERS.
A barrister is a type of lawyer. There are two legal professions – solicitors and barristers.
After a Law degree a person can do the Bar Professional Training Course – (BPTC.)
If someone does not have a law degree she can do the Common Professional Exam (CPE). This is a one year course. Having passed this then the person can do the BPTC. The results in BPTC are oustanding, highly competent, competent and fail.
The BPTC is a demanding course. After passing the exams a person is then called to the Bar. This means he or she has become a barrister. The ceremony is called ”the Call”. The barristers wear their robes and wigs for the first time. Those being called to the bar that day are the callees. A barrister will list her year of call as 1992 – for example. That means that was the year she became a barrister. Then a barrister will say how many years call she has – as in how many years she has been a barrister. Some jobs are available only for those of at least 10 years call. On a barrister’s CV it might say ”Call: 2004” as in she was called to the bar in that year.
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INNS OF COURT.
There are four Inns of Court. These are Grey’s Inn, Lincoln’s Inn, Middle Temple and Inner Temple. All are based in London. A barrister must belong to one of the four Inns even if he or she practises in another part of England or in Wales.

The Inns are all the same standard. They all do all types of law. It is not the case that one is better than another.

In the Middle Ages serjeants at law (barristers) set up these inns. Law students lived and dined in the inns. So did some serjeants at law and barristers. They would also arrange for accommodation for lawyers or judges travelling around the realm. The word ‘temple’ in the name of two of the inns alludes to when Knights Templar stayed in these inns on their way to the Crusades.   There was an Outer Temple centuries ago but it no longer exists.

Each inn has its owning dining room, bar, library chapel and even sports ground.

Each inn is divided into dozens of chambers. A chamber is like an office. There might be one barrister in a chamber – this is highly unusual. Usually there are thirty of forty barristers in a chambers. Every chamber is part of an inn of court. Even if a chambers is in Newcastle or Cardiff it is nominally part of one of the inns of court in London.

Barristers share the services of clerks (secrtaries). The clerks are usually male. Clerks deal with money and solicitors. There are normally several clerks in a chambers. The head clerk is well paid. The others start on minimum wage.
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PUPILLAGE
Barristers then try to get pupillage. This means being an assistant to a fully qualified barrister. The qualified barrister is called the ”pupil master.” A pupil will do a ”six” and then another ”six”. A ”six” is a period of six months as a pupil to a barrister. At the end of a six the pupil master is asked to sign a certificate of competence for the pupil. These are invariably signed. It is so extremely difficult to get a pupillage that people very rarely fail in them.

A potential pupil should apply to a chambers that specialises in her or her preferred area of law.
Pupillages are very oversubscribed. Many able candidates are rejected. There are very demanding interviews for pupillages.
After two ”sixes” a barrister applies for tenancy. A tenancy is a place in chambers.

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TENANCY

This is the real stumbling block. There are three times more candidates for tenancy than there are tenancies. Anyone without a first class degree and an outstanding result in the Bar course can more or less forget it.

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Tort. Intro to common law.

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Tort.

Tort is an area of civil law. Tort is derived from the French word ‘tort’ meaning ‘wrong’. Tort therefore deals with civil wrongs. If someone has broken the law against you but such a breach does not amount to a crime then the person has committed a tort against you. Civil wrong an a tort mean the same thing. This can also be called tortious malfeasance.
If someone has committed trespass this is probably a tort. It is only a crime if it is organised by a large number of people especially with the intent to damage property.
If someone pollutes your property this can be a tort. Breaches of contract can be tortious. Stealing intellectual property can be torts.

The pronunciation of tort is almost the same as the word ‘taught’.

Tort overlaps with criminal law. Certain acts can be both crimes and torts. Usually this wrongdoing can followed up only one way. If the police mistreat a suspect the suspect may seek to sue the police in tort or to use the criminal law against the police. The person who feels he has been wronged by the police cannot use both avenues against the police. It must be one or other.

People often go for the tortious route and not the criminal route. This is because tort is an area of civil law and therefore the standard of proof is on the balance of probabilities. In criminal law it is beyond all reasonable doubt. Therefore it is much easier to prove something in tort because the burden of proof is much lower. Anything over a 50% chance is proven in tort as it is a civil area of law.
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Ryland v Fletcher is a leading case in tort.

If you have a thing out of control then you are liable for the harm it does. This applies to animals. Animals de ferae naturae (of a wild nature) are presumed to require greater restraint. The same goes for animals not usually domesticated in the British Islands. Tame animals do not need such care.

A thing out of control could be a car. Tort applies to driving.

Whomsoever commits tort is a tortfeasor.

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Those who commit torts are tortrious malfeasors.
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Defamation
People have the right to express their beliefs and to report news. People also have the right not to have their reputations besmirched. Plainly these two rights sometimes collide. So which prevails?
Anyone who says something false to
lower you in the esteem of right thinking people,
to cause you to be shunned or avoided,
to make people believe you are incompetent in your job,
to say that you have committed an imprisonable offence (even if you were not caught for it)
or that you have an communicable disease

has committed defamation against you.Defamation when spoken is slander. Clearly accusing someone of the foregoing would give someone a bad name. However, it is entirely permissible to accuse someone of any of those things provided that you can prove the allegation is true. That last part is vital. If you can PROVE that the accusations are true then you are allowed to make these accusations. As is often the case in law what matters is not the truth it is what you can PROVE.
There is another act of defamation that applies only to women. Accusing a woman of unchastity is defamatory unless of course you can prove it is true. On the other hand if a man is false accused of fornication or infidelity it is NOT defamation. Even if it is a bogus accusation, even if the person making the accusation can provide no proof, even if the man accused of infidelity can show that he definitely IS faithful then this allegation is still not defamation. Remember spoken statements are usually slander not libel.
If Albert says that Bilal is a useless accountant to Charlie and Albert cannot prove that this accusation is true then Albert has defamed Bilal. However, if Albert can show audits that Bilal messed up then Albert can successfully defend himself against a defamation action launched by Bilal.
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LIBEL.
Any defamatory statement that is published to a third party becomes libel. Libel is more serious than defamation.
Delia says that Edward has hepatitis (which is contagious). Delia writes a statement to this effect and shows it to Felicity. Delia has libelled Edward unless of course she can prove that what she wrote is true. She accused Edward of having a disease that he could pass to others. Delia wrote this statement and by showing it to Felicity she published it. Felicity is a third party as in she is neither Delia (the person making the statement) or Edward (the person about whom the statement is made).
Publication includes printing something in a newspaper or magazine. Publication can mean putting something on the internet. It includes putting up a poster or writing grafitti. It includes saying it on the radio, on television or on the stage in the theatre. Saying it to someone on the street is defamation and not libel. Broadcasting it on the radio, TV or internet is considered publication even though the words are spoken not written. This is because these things are recorded and therefore permanent.
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EXCEPTIONS.
The media are allowed to report the proceedings of any legislature anywhere in the world. The media has privileged to report statements that would otherwise be libellous so long as the reportage of parliamentary debates is fair. The same goes for court proceedings.
If in Parliament Mr Goodrich says that Miss Horace is a thief then newspapers are allowed to report this so long as they say that Goodrich was saying this in Parliament. They must use his exact words and not exaggerate.
If Mr Goodrich goes outside Parliament and says the same thing that he said inside Parliament then this is defamation; slanderous remarks – unless he can prove what he said is true. If he repeats the statement he made in Parliament outside on television it is libel – unless of course he prove what he said is true. Even if he simply confirms what he said inside Parliament this is still libellous. This happened in a case in New Zealand.

If in court a barrister Miss Indrojit says to the defendant Mr Jarndyce, ”You burgled the house, didn’t you?” the barrister has not committed slander. Miss Indorjit does not need to prove that the accusation is true. If the court finds Jarndyce not guilty then Miss Indrojit is still in the clear. In a courtroom example there is privilege for lawyers, judges and witnesses to say things that would otherwise defamatory. This does not mean that people are permitted to lie in court. Lying under oath in court is a crime called perjury but that is a separate issue to defamation.

There is absolute privilege for speeches in any legislature or court. There is qualified privilege for the reporting of such statements. Privilege comes from the Latin ”privi leges” meaning ”private laws”. As in there is an instance where the law is unusual – a special law allows an exemption from the normal law whereby such statements would be libellous.
Supposing Mr Kams in the Jamaican Parliament says ”Miss Lambert is a total failure as a dentist” can a British newspaper report that? The answer is yes. So long as the British newspaper reports the statement in good faith then the newspaper can report statements in any legislature anywhere in the world. The reportage must be accurate.
Statements of opinion are protected from defamation – up to a point. Fair comment is allowed so long as media outlets make it clear that they are reporting opinion and not fact. This is why newspapers have sections called ‘comment’ and ‘opinion.’
Libel does not apply to any huge and ill-defined groups of people. ”All politicians are shysters” is not libel because the group is too broad. ”All British people are racist” is not libel. It might be a racist statement in itself but the group is so large that it would be daft to allow all the members of it to sue the person who made the statement.

 

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HELPING THE POLICE.

Suppose that there is a murder. The police suspect that Omer did it. They can issue a description and photo of him and say he is suspected of such a crime. They will appeal for help in apprehending him. This is NOT libellous.  It is no libel to say someone is SUSPECTED of a crime. It is libel to say that someone COMMITTED  a crime unless you can prove it.

The police often say they ”would like to speak to” so and so. The media assist the police by publishing such notices. The Attorney General Mr Havers in the early 80s assured Parliament that the media could do so safe in the knowledge no libel action will result from this.

If you say someone commit a crime with your own eyes it would still be libellous to say it. Your testimony is NOT enough to prove the crime.

The media are very careful to say ”it is alleged that Nora robbed the bank”. They do not say she robbed the bank. Alleged.

Even if you say someone is suspected of committing a crime or probably committed a crime this is still defamation. You do not need to say that the person actually committed it.

In reporting trials the media say if the person pleads not guilty. They must also say if the trial is ongoing otherwise it might hint that the person is guilty.
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Beware only those who breathe.
The dead cannot initiate a legal action. Nor can this person’s estate do so. Imagine that Mr Mook is dead. Once he is dead a newspaper claimed that he was a rubbish bus driver and he kidnapped people. His children are very hurt by these false statements. Can they take out a libel action against a newspaper for publishing these foul statements? No they cannot. Only a living person can sue. You are not able to sue on behalf of your deceased relatives.
As soon as someone dies newspapers often publish accusations about the person that they did not dare publish while the person was alive.

If a woman or man starts a libel action and then dies whilst the action is ongoing then the case dies with her or him.
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WHAT COUNTS AS LIBEL?
It does not have to be an outright accusation. An implication can be enough.
An image rather than words can be libellous.

A fictional character can be libellous if the fictional character can be readily identified with a real person. If I write about Donny Strump and this person clearly alludes to Donald Trump then what I say might be libellous if I say things which assail Trump’s character and cannot be proven to be true.

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INTERNET

Search engines, social networking sites and the like cannot be sued. They cannot winnow out all potentially libellous statements. They do not create their own material.

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CRIMINAL LIBEL.
Criminal libel is for false accusations that are so lurid and insulting that they might incite violence. This is not the same as incitement of violence as such.
Incitement of violence is saying ”Mr Norris is a disgusting pervert so next time you see him punch him. Do it! I urge you – hit him.”
Criminal libel would be making really vicious accusations that might result in crime without actually encouraging people to commit acts of violence.
Criminal libel has probably fallen into abeyance. The word here is probably since the law has not been repealed. The last time a criminal libel action was started was in the 1970s. Because there has been no attempted prosecution for 40 years a court may well find that the relevant law is antique and ought not be enforced. The billionaire businessman Sir James Goldsmith started a criminal libel action against the satirical weekly called Private Eye. He was persuaded to accept a payment and a grovelling apology from Private Eye.
In the 19th century criminal libel was more common. The Irish writer Oscar Wilde found a not pinned up about him in his private members’ club calling him a ”sondomite” – it was a misspelling of sodomite. The Marquess of Queensberry had accused Oscar Wilde of being gay – which was a crime to be at the time. (The law against homosexual acts was only repealed in 1967 in England and Wales). Wilde ill advisedly took out a criminal libel action against Lord Queensberry. Lord Queensberry’s barrister was another Irishman named Edward Carson. E H Carson was one of the ablest barristers of his generation. Carson had been at Trinity College, Dublin with Wilde where they had been close. The men fell out over the trial. As the saying went the feud carried on ”with all the added bitterness of an old friend.”

At first the very witty Wilde rang rings around Carson whose prosecution seemed to be plodding.
Carson: ”Did you kiss the boy?”
Wilde: ‘‘Oh no I did not, he was very ugly.”
Carson: ”That means if he had not been ugly you would have kissed him.”

The trouble was that the accusation was true and Lord Queensberry could prove it. Many witnesses testified that Wilde was actively gay. Wilde’s action collapsed. He was later prosecuted for homosexual acts and sent to Reading Gaol to serve his sentence with hard labour.

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ISSUING A WRIT.

If someone feels libelled he or she can issue a writ.  He or she has two years in which to do this from the time the alleged libel was published.

If the alleged libel was published on 1 January 2000 then 1 January 2002 was the last date to issue a writ. If however the libel was re published on 2 January 2002 that extends the period for publication to 2 January 2004.

A claimant does not have to taken action against the original publisher. If the Times publishes a libel and then the BBC repeats it the claimant could choose to take action against the BBC and not against the Times.

The party that has committed the alleged libel can offer accord and satisfaction. This can be to apologise in a public manner and withdraw the statement. The party would probably offer to pay a sum in damages. The claimant (person claiming to have been libelled) can accept this and end the matter.

The claimant is also free to reject the offer of accord and satisfaction. The case proceeds to court.

The court might find that the statement was libellous but the accord and satisfaction offered was sufficient. The court would therefore rule in favour of the defendant. On the other hand the court might say there was a libel and the accord and satifaction was not enough so the court rules in favour of the claimant.

 

If the court decides there was no libel then the defendant wins. If the defendant has already offered accord and satisfaction this is unlikely. This is because the defendant has already admitted saying something harmful to the claimant’s reputation that is unproveable. If the statement was true and could be proven to be true the defendant would not have offered accord and satisfaction.

 

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GOING UP TO THE LINE

The media do not like to be overly circumspect. Then they would miss out on many juicy stories. They sometimes stray over the line of what is safe to print. They do so because they take calculated risks. They assume that such and such a person will not take out a libel action against them.

There is no legal aid for libel. Libel is very costly. It is the only civil wrong where there is a jury in England and Wales. Libel can be decided by a judge.

In a libel case the judge sees if the parties agree to a jury trial or a trial with a judge sitting alone. If the parties cannot agree then the judge will decide to sit alone or have a jury.

If libel is proven the person or party that committed libel must retract the statement and apologise. Damages can be awarded. These can be derisory like one pound or they can be millions. It is as the court deems fit.

The costs incurred can be in the millions. If the claimant wins and is awarded costs this can bankrupt the defendant. The same can work the other way around if the defendant wins.

It is not worth suing people of straw – as in those with little money. This is because even if you win that person cannot pay you damages and costs.
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LIABILITY
Tort is all about what one is liable for.
You might owe someone a legal duty. If this legal duty is breached and harm results from it then you are liable in tort for the damage caused.
At the fictive Widdlewhop School has to keep its pupils safe. However, it does not have fire alarms and never does fire practices. A fire breaks out and the school is not evacuated in time. One child dies as a result.

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VICARIOUS LIABILITY.

If someone commits a tort he is usually primarily liable. I say usually because some people cannot be held responsible for these actions: this is often the case with children or those who are not compos mentis such as the mentally ill.

Vicarious liability is being answerable for the torts of another for whom one is responsible. Parents are sometimes vicariously liable for their children. A vicar is a priest who does work on behalf of another. That is why vicarious means in place of another.

Home Office v Dorset Yacht. Some juvenile delinquents were held at a borstal. They were out for the day under the supervision of guards. The boys ran amock and smashed up a yacht. The owners wanted to sue the guards for being primarily liable for the damage inflicted. The Home Office was vicariously liable for the damage since the Home Office was ultimately in charge of the guards. The young criminals did not have tortious liability.

 

 

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MEDICAL NEGLIGENCE
Doctors, nurses, dentists, paramedics and other medical staff are required to be very careful. They must exercise due diligence in all they do. They must verify that a patient understand the medical procedure and consents to it. In emergency situations this does not apply. There is no time to explain the intended course of treatment. The casualty is often unconscious or in no fit state to contemplate the treatment.

Adults of sound mind are entitled to refuse treatment. Doctors sometimes treat the mentally ill or people of very low intelligence against their will. Children can sometimes be treated against the wishes of their parents if it is a matter of life and death.
However, extreme caution is also harmful. Every operation is a risk. Operating is usually less dangerous than not operating.
If a car crash victim is operated and a surgeon thinks he needs to operate in order to save a patient’s life should the surgeon operate? If the surgeon does not operate the patient might die. However, even if she operates the patient might still die.
Many operations are elective. That means these are not needed to prevent death. Some babies are born with an extra toe. These are usually surgically removed. Such operations are very safe indeed but they are also unnecessary. Doctors must explain to parents the risks associated with the procedure. If the parents, having been told of the attendant risks, decide to go ahead then this is allowed. A nose job is not medically needed. People can have these operations but of course there is some risk.
There is more than one way to skin a cat. There is often more than one way to deal with a medical issue. Doctors can be legally protected whichever option they go for so long as what the doctor did is supported by a reasonable body of professional opinion.
Doctors must not be negligent. Doctors and other medical staff who neglect their duties can be tortiously liable. They will have to pay compensation and be disbarred from the profession. It will be the hospital or medical trust that will have to pay and not the individual physician.
The trouble is doctors then practise defensive medicine. This means doing things for legal and not medical reasons. This problem is very acute in the United States. In the USA doctors are sued for malpractice all the time. Instead of being cautious physicians in the United States tend to be very, very, very cautious. The most minor complaint will be examined in extreme detail. Some of the tests run have risks linked to them. It also makes the cost of medical care prohibitive. This is so doctors can document that they did everything they possibly could to reduce risk and check the patient for the very remote possibility of diseases.
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A History of Common Law. (Intro to common law).

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A HISTORY OF COMMON LAW.

Common law can be traced to the 9th century AD. There are very few written sources for England prior to that date. The Anglo-Saxons who lived in England are regarded as having founded common law. In fact their nostra were not entirely original. The Angles and the Saxons had come from what we now call Germany and the Netherlands. They drew on legal customs from their ancestral homelands. The had some classical learning. The notion of jury trials existed in Ancient Rome and Ancient Greece. Trial by jury remains an important component of common law although is has largely been removed from Roman law.
In Anglo Saxon England is a person was caught red handed then he or she was punished on the spot. This could include whipping but it was sometimes summary execution if the offence was grave.

When there was some doubt if someone committed a crime then he or she was put on trial. A jury consisted of 12 men who knew the defendant. This is a major difference from the current situation where the jurors must not be personally known to the defendant. The Anglo Saxons believed that the jurors must know the defendant because then they would have an idea if this person was trustworthy or not. The flaw with the jury knowing the defendant is tnat they would have an opinion of the defendant. They might be friends or enemies of his or hers.
The jury would hear the evidence and then vote guilty or not guilty. All 12 jurors must vote guilty for the defendant to be found guilty.
There were trials by ordeal. This meant a defendant might be forced to pick a stone out of boiling water. The wound would then be bandaged. If the wound was healed after three days the man was innocent because God had cured him. If the injury was not healed after three days this was indicative of guilt.

The Anglo Saxon kings of England said that the people had certain rights. The kings had duties and were obliged to rule fairly and within the law. The king had to protect the independent status of the Catholic Church which was the only form of Christianity in the country at the time. The king was not allowed to tax people without the agreement of the Witenagamot (a precursor of Parliament). Despite this notion that people had rights some people were still thralls (slaves). Society was unequal. Noblemen – called thanes – had more rights than everyone else. The notion of inegalitarianism was upheld by the clerical authorities.

In 1066 England was conquered by William the Duke of Normandy. He later conquered some of Wales. He was crowned King of England on Christmas Day 1066. He took some Roman law traditions with him from the continent. At his coronation he swore to uphold England’s legal traditions. In fact he did very little to honour this vow. The Witenagamot stopped meeting.

Most people were serfs. Serf is derived from the Latin ‘servus’ meaning slave. Serfs were not exactly slaves but they were not free either. They had to do unpaid work for their landlord. They also had to work on land they rented from the landlord to produce food for themselves. They paid rent for this land. The were obliged to do corvee – unpaid road work. If they wished to grind corn they were only permitted to use the landlord’s mill and pay over the odds for it. They had to obtain permission to wed or become a priest, monk or nun.
In the 12th century English and Welsh people settled in Ireland. The east coast of Ireland was under the control of the crown. Common law started to prevail there. The rest of Ireland followed Brehon Law. Over the centuries common law spread throughout Ireland.

In the Middle Ages there were separate ecclesiastical courts for clergy. Clergy meant not just monks or priests but anyone who worked for the church in any capacity. At one stage anyone who could read could claim benefit of clergy i.e. to be tried before an ecclesiastical court. For ordinary offences such as theft or battery the sentences handed down by the ecclesiastical courts tended to be risibly mild such as saying prayers. The king’s courts were far harsher. As many defendants as possible opted to be tried before ecclesiastical courts. This was an era when the death penalty as employed liberally. pickpockets had fingers cut off. Poaching one of the king’s deer was punishable by blinding or castration.

Ecclesiastical courts only came down like a tonne of bricks on offences that were specifically religious. These included blasphemy and apostasy. To take the Lord’s name in vain was a grave crime. To profess one’s disbelief in Christianity was to make one liable to suffer death. Sacrilege was also severely penalised. This meant profaning the mass.

Universities were ecclesiastical institutions. They were therefore semi-independent of the state despite having royal charters. The two English universities – Oxford and Cambridge – had their own courts and even police forces. Undergraduates or lecturers who transgressed were arrested by the university’s police, tried by its courts and detained in its prisons. The university even executed people very occasionally. Universities did not have jurisdiction only over its own members but anyone who committed an offence on its property. The universities owned most of the cities of Oxford and Cambridge at the time. This system was abolished piecemeal and largely ceased to exit in the 19th century. Only in 2000 was the Oxford University Police Force abolished.

Henry II tried and failed to rationalise the system and take the laity out of the purview of church courts. Only under Henry VIII were the ecclesiastical courts reined in. The church courts after him dealt with simony among the reverend clergy and suchlike matters. The church courts still exist but deal only with clergy and are more like disciplinary panels. They cannot issue punishments like imprisonment. They can only unfrock a cleric.
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NORMAN RULE and MAGNA CARTA

Kings of England after William the Conqueror also swore to uphold people’s rights. A major rebellion against King John compelled him to sign Magna Carta in 1215. King John was fighting a very unsuccessul war against France and was resorting to unjust means to get money. The revolt was led by barons and not the common people. The barons were irate about excessive taxation especially one in lieu if military service – a tax called scutage. They detested King John not letting them inherit property or charging them a huge relief tax in order to be allowed to inherit property. John had been taking their wives and children hostage. If a man was facing trial he was held in prison indefinitely until he paid for the trial to begin. John was using any excuse to extort money from people.

Magna Carta (the Great Charter) re-stated some rights that were already held to exist. It also created some new ones. Magna Carta is very over blown. It only applied to free men and most men were not free.

Magna Carta set a limit to the amount and frequency of the tax called scutage (shield money). It said the king was not allowed to prevent people inheriting property. He was forbidden to take hostages. He was not to delay or deny justice to anyone. Note that one says ”Magna Carta” and never ”the Magna Carta”. In Latin the definite article is already contained in the words ”Magna Carta.”

King John repudiated Magna Carta as soon as he could. He said that he had only agreed to it because he was compelled to do so by a rebellion. A promise extracted under threat has no value. The Pope ( religious leader of the Christians in western Europe) backed King John up on this.

Magna Carta was not a world trail blazer. Other countries had more advanced charters. Hungary had the Golden Bull long before Magna Carta and the rights granted were more extensive in the Golden Bull. Note that the word ‘bull’ here is not an animal. It is derived from the Latin word ‘bulla’ meaning led because the document was sealed with led. Nor indeed was this charter in Hungary ‘bull’ in the other sense!

King John’s son, Henry III, then became king. Henry III later re-issued Magna Carta. English monarchs all paid lip service to Magna Carta even if they did not always honour it.

Magna Carta says nothing about Parliament! There is no mention of voting rights or of freedom of the press. There were no printing presses in Europe then. Even if there had been only about 10 per cent of the population could read. The Catholic Church was the mass media at the time. The Church was guaranteed its independence from royal control. The Church was to be governed by the Pope and not the crown.
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PARLIAMENT
A parliament met in 1265. Henry III was obliged to summon parliament because it was demanded by barons in a later baronial rebellion led by Simon de Montfort. Parliament was elected major property holders only. There was a House of Commons with an elected element. Two knights from each shire (county) and two burgesses (wealthy men) from each town were sent to Parliament. Parliament was very unrepresentative because only the affluent were allowed to vote. There was also a House of Lords; those with noble titles sat of right. Bishops were ex officio members of the House of Lords. Parliament sat very irregularly. It only assembled when the king summoned it to meet. The king might summon Parliament – an election would be held. Parliament would gather in London or wherever the king told them to meet him. Parliamentary business would be transacted for a few months and then the king would dissolve Parliament. Parliament would not meet again until the king chose to call it. That might not be for several years.
Parliament made law.

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COURTS OF EQUITY.

English Law was very rigid in the Middle Ages. Sometimes there was no statute to cover a particular situation.

Judges developed equitable maxims to deal with unforeseen situations.
Statute law was harsh and inflexible. Equity was intended to resolve this.
The Lord Chancellor was the head of the king’s writing department. All records of court decisions, tax payments and correspondence came to the Chancellory of which the Lord Chancellor was head. The Lord Chancellor was always a priest. The Lord Chancellor was also the father confessor to the king. He was the keeper of the king’s conscience. The Lord Chancellor would try to induce the king to be merciful.

The role of the Lord Chancellor in recent centuries has become separated from that of a clergyman. However, in the coronation of Elizabeth II the last vestige of this confessorial role was seen. When the Archbishop of Canterbury administered the oath to Her Gracious Majesty he admonished her, ”Be thou not so strict that thou forgettest mercy and be thou not so merciful that thou art remiss.”

Various equitable maxims were developed which helped courts handle difficult situations. The maxims are originally in Latin and often quoted in Latin to this day. However, here we shall render them in English translation
”He who comes to equity must come with clean hands.” That means if someone seeks the assistance of equity he must not be a malfeasant or have done something inequitable himself. This does not necessarily mean something illegal. If the claimant has been a sharpster then he is likely to be given short shrift.

”Equity will not assist those who sleep on their rights.” If you want to make a claim in equity you should do it as soon as you find out about the breach of your rights.

This is how equity developed in parallel to law. There were separate courts of equity at the time. Courts of law and courts of equity were finally amalgamated by the Judicature Acts in the 1870s.

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REFORMATION
There were church courts in the Middle Ages. These dealt with clergy. Clergy did not mean just priests, monks and nuns. ANyone who worked for the church could claim to be clergy. Those who could read could even claim to be clergy. Henry II tried to resolve this situation because ecclesiastical courts were very mild. Henry II failed to do so.
In the 16th century Henry VIII abolished the Catholic Church. He founded the Church of England. Ecclesiastical courts lost almost all of their remit.
Trials in the king’s courts were not fair as we would see them now. Defendants had no lawyers. The prosecution would be led by lawyers. Defendants were not always permitted to speak in their own defence. Sometimes they were not even present at the trial! The court only heard testimony and saw evidence displayed by the prosecution.
In the early 17th century Scotland and England got the same monarch. However, the separate legal systems remained. The Scots system is more Romanised than the English one. Nevertheless, Scots law is common law up to a point. England and Scotland learnt from each other as did Ireland.
Common law is often called English Law. It would be more accurate to say English and Welsh Law.

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SIR EDWARD COKE
He was a famous 17th century jurist. Coke advanced the notion of rights. The monarch at the time was James I. James I was wedded to the notion of the divine right of kings. James I believed that the monarch had untramelled power and that any rights a king chose to grant were just that: a choice. The king did not have to allow his subject any rights at all. Sir Edward Coke claimed that the law clearly showed that subjects had rights and that monarchical power was strictly limited. The tension in this debate eventually led to the English Civil War in the 1640s.

Arbitrary power was circumscribed through the 17th century. Judges gradually became more independent.
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BLACKSTONE.

Sir William Blackstone was a famous 18th century barrister and jurist. He wrote a multivolume jurisprudential digest entitled ‘Commentaries on the laws of England.’ This was the first systematic attempt to summarise the laws of the country since the Middle Ages. His magnum opus is known simply as Blackstone.

There is a barristers’ chambers named in honour of Blackstone. Nota Bene his named is pronounce ”BLACK stun” not ”black STONE.”
Blackstone said the judges were ”living oracles of the law.”

Criminal was very severe at the time. Some saw to reduce its severity. People could be executed for dozens of offences. This included grand larceny – stealing something worth more than 5 shillings. Someone’s wallet could easily contain this amount of money.

Crimes against property attracted condign punishment. Crimes of violence were mildly penalised unless it ended in the death of the victim. Sir William Blackstone reflected lugubriously that there were over 160 offences which attracted the death penalty. Islamic law was compassionate by comparison.

Law was still somewhat amateurish. Judges were known to hear cases whilst in a crapulous state. Judges were not always neutral. They often questioned defendants. They were supposed to act for defendants but were sometimes prejudiced against those accused of crime.

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19th century
The right to fair trials were enhanced. Judges became more neutral.
Judges would only turn up to trials sober. Defences lawyers were permitted. Someone who was too poor to afford one would be provided with a lawyer for free in the case of a capital trial.

Legal education became formalised. Universities started to award law degrees. Likewise people were required to pass bar exams in order to be called to the bar. Prior to that men had hung around an inn of court and attended lectures, watched trials, lived at an inn and eaten a certain number of dinners in their inn of court and acted as pupils. They had been called to the bar after a very informal process.

The Offences against the Person Act (1861) defined crimes of violence. It also prohibited procuring a medical abortion except to save the life of the mother.
Lord M’Naghten, a criminal judge, found someone to be guilty but insane. This was the first time someone who was proven to have committed a criminal action was declared to be not guilty by reason of insanity. Although the man had committed the actus reus (guilty act) there was no mens rea (guilty mind). This is called the M’Naghten judgment.

Towards the end of the nineteenth century a most distinguished barrister named Edward Marshall-Hall began to make advances in criminal defence.

Judicial neutrality was not as firmly entrenched in the 19th century as it is today. The Conservative Prime Minister Lord Salisbury boasted that he only appointed Conservative supporting judges. This was another bone of contention. Judicial appointments were murky. Informal soundings were taken among existing judges. ”We are considering appointing Ambrose Snodgrass to the bench. Is he a good egg?” This created a self-perpetuating judicial class.

In the United States judges are elected except for Supreme Court justices who are appointed by the president but are still subject to Congressional approval. In the United Kingdom it is held that electing judges politicises the judiciary. In the other hand the American system is above board.

The trouble with electing judges s they are less likely to make just ruling when this would be electorally disadvantageous. A judge should be indifferent to public opinion – neither seeking to placate it mot to aggravate it. It harks back to the legal maxim ”fiat Justitia ruat caelum” meaning ”Let justice be done though the sky should fall.” This expresses the belief that a judge should return a just ruling no matter what the consequences.

In the late 19th century a celebrated jurist enhanced understanding of the law of contract. He was one Algernon Venn Dicey. Dicey was the Vinerian Professor of Public Law in the University of Oxford. Professor Dicey held the same chair (professorship) as Blackstone had held. Dicey was also virulently racist. This does not diminish the value of his teaching on contract.

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20th century.
The notion that children deserved softer treatment was enshrined in law. Children were sent to special juvenile courts and borstals in the case of crime.
The Children’s Act prohibited people from supplying those under 16 with tobacco and alcohol. Children were required to attend school for longer and longer.
Women were allowed to become barristers from the 1920s.

Legal aid was introduced after the Second World War. This provided reduced price or even free legal advice for people on low incomes. The cost of this to the taxpayer increased and increased.

human rights became an express concept in law. Some judges were sceptical about the need to introduce such concepts believing that they instinctively knew what rights existed.

The laws on divorce were relaxed as divorce became more common.
Judges became bolder at creating law. Some felt this was judicial activism.
The death penalty was last used in England in 1964. It was suspended in 1965 after a lengthy campaign and formally abolished in 1998.

The use of expert witnesses was pioneered in the United States by Melvin Belli. This was the copied in the United Kingdom.

Pupils came to be paid at the bar in the 1990s.

In the second Millennium the judicial appointments system was rationalised. Politicians lost all their powers of patronage over the judiciary.

Kaja v Secretary of State for the Home Department 1995

Standard

This is an asylum case

This man fled Zaire. His claim for asylum was thrice rejected. He complained that the adjudicator had been unfair.

”A reasonable degree of likelihood of  persecution if returned”’ was the standard needed to grant asylum as laid down in prior cases.

 Stare decisis

The adjudicator had not referred to a standard of proof. A hearing was needed de novo

There was a misdirection of law

 One must look not just at history but at the possibility of future persecution

Kaja was granted a fresh hearing

Decision makers must take into account evidence of various categories

1. evidence that is certain

2. evidence that is probable

3. evidence that if possible

4. evidence that is false.

R v Secretary of state for the home department ex parte karanakaran

Standard

A person from Sri Lanka claimed asylum in the United Kingdom

He came to the UK because he feared torture if he remained in Sri Lanka. He was suspected of being concerned in the LTTE.  This was not a Convention reason.

He needed to show his fear of torture was justified by more than a civil standard of proof.

The House of Lords held that in such cases facts are particularly important and trump law.