Effect of membership of the EU on English law and the benefits the the UK

EFFECT OF MEMBERSHIP OF THE EU ON ENGLISH LAW

 

·         EU Membership brings with it new SOURCES of law – treaties, regulations and directives.

·         EU law takes precedence over national law. (Van Gend en Loos (1963) & Costa v ENEL (1964) – “the member states have limited their soverign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves”

·         MS’s including Britain have transferred sovereign rights to a Community created by them. None of the MS’s can rely on their own law when it is in conflict with EU law.

·         Acts of Parliament will be declared Void by the courts if they conflict with EU law. R v Secretary of State for Transport ex parte Factortame – where the ECJ decided that Britain could not enforce the Merchant Shipping Act 1988 because it contravened the Treaty.

·         Change in the role of the courts – interpretation is purposive and they can seek guidance from the ECJ under Article 234

·         ECJ approach to those who fail to implement European obligations – Brasserie du Pecheur SA v Federation of Republic of Germany (1996) – Government liable for the financial loss suffered as a result of their breach of EU law. Compensation available where:

o   The rule of community law infringes must be intended to confer rights on individuals

o   The breach must be sufficiently serious

o   There must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties.

 

BENEFITS OF EU MEMBERSHIP TO ENGLISH LAW

·         Increase power in the judiciary – they now have greater freedom regarding the interpretation of statutes as they are adopting the purposive approach.

·         Certain groups are benefited – females, part time workers and employees for example

·         Lord Denning is of the view that the supremacy of Europe will only be accepted by the courts until Parliament passes an Act to repudiate the treaties – R v Secretary of state for transport ex parte Factortame.

·         Article 234 referrals make it possible for there to be clear guidance from the ECJ to all courts and tribunals.

·         The UK still doesn’t operate on an EU legal framework – the judge as an activist/inquisitor and a greater reliance on statute.

European law cases

VAN GEND EN LOOS(1963) and COSTA v ENEL (1964)  European law takes precedence over national law. The Van Gend case was a Dutch case that involved a conflict between Dutch and EEC law over custom duties.

COSTA v ENEL (1964)

In this case it was argued that the Italian courts were obliged to follow domestic law which conflicted with European Law. However, the ECJ held that “the member states have limited their sovereign rights…and have created a body of law which binds the nationals and themselves.”

FACTORTAME cases (1990-2000)

This case involved Spanish Fishermen operating in UK waters. The Thatcher Government introduced legislation to limit such fishing to UK companies. It was held in this case that a state is liable to compensate for breaches of Community Law ñ this involved Spanish Fishermen and the Merchant Shipping Act 1988.  This case emphasises that EU law is supreme over domestic laws. 

It was held here that the Merchant Shipping Act 1988 contravened Treaty provisions regarding discrimination on nationality. The ECJ said that joining the EU was voluntary and therefore the UK had chosen to limit their sovereign rights

 BULMER v BOLLINGER (1974)

The treaty is like an incoming tide. It flows up the estuaries and up the rivers. It cannot be held back.

Is the idea of charity really one that aids other?

http://www.birminghammail.co.uk/news/local-news/birmingham-city-centre-chugger-ban-5139075 


The link above is an article based on the 'ban of chuggers', recently councilors backed a new by-law. The chuggers could be barred, from approaching and following shoppers in the Birmingham City Centre.



To think about, and to discuss:

'Is the idea of charity really one that aids other?'

Chugger (charity muggers) banned in Birmingham with a new by law

‘Chuggers’ are set to be banned from Birmingham city centre after councillors backed a new by-law. Aggressive street fundraisers, colloquially known as charity muggers or ‘chuggers’ could be barred from approaching and following shoppers. The move follows an offer from representatives of Birmingham’s leading retail and business outlets to fund the cost of introducing the legislation.

Lawyers are now set to draft legislation before it goes before the full council and is then handed to Local Government Minister Eric Pickles for the final go-ahead. The proposed by-law will permit only passive collecting and ban collectors from approaching, following or obstructing pedestrians. Breaches could result in a fine of up to £500. But this could take several months before it is introduced.

The call for a by-law follows a survey of shoppers which revealed that 84 per cent said they were put off from walking around the city centre by the sheer number and persistence of chuggers. Nearly all of the 964 shoppers polled said they were against ‘chuggers’. Birmingham City Centre Partnership and Retail Birmingham, which represents city centre shops and business, had demanded that the collectors were banned or more closely regulated and offered to cover the £12,000 cost to bring in a by-law to ban high-pressure fund-raising.

Jonathan Cheetham, chair of Retail Birmingham, said: “This is a great step forward in the campaign to regulate face-to-face fundraisers in our city centre. For over a year we have worked closely with Birmingham City Council licensing to conduct a public consultation, which found that 93 per cent of respondents were in favour of stopping face-to-face fundraisers, as they negatively affected visitor experience. Committee chair Coun Barbara Dring (Lab, Oscott) stressed: “This is not to stop charities. It’s to stop nuisance and intimidation.”

James Teasdale - Gross negligence manslaughter case facts

Scarborough cellar death

·         Mr Teasdale had gone in to the bar with friends on 11^th July.

·         James Teasdale was discovered at the Zest bar in St Thomas Street, Scarborough.

·         He fell after mistaking the cellar door- which was not locked or signposted – for the toilets.
·         David Bell admitted gross negligence manslaughter.
·         Mr Teasdale’s body was not found until 14^th July, after his family had reported him missing.
·         Court heard that following his fall Mr Teasdale had remained conscious but concussed and crawled around the cellar for up to four hours before he died.

·         His body was not found for several days because the pub had closed for a training course. 

Semelia Campbell -Gross negligence manslaughter case facts

6 year old Semelia Campbell crushed to death by electric gates outside home

 

Kriston Kearns (the director of a company, which supplied the electrical gates in which a 6 year old girl died) has been charged with unlawfully killing Semelia by gross negligence.A six-year-old girl was crushed to death as she played hide and seek with her best friend close to her home in a gated development.Her mother, Judith Gilroy, and the emergency services tried to free her but she went into cardiac arrest. She was taken to hospital where she died a short time later.

Daniel Pelka murder: case facts

Daniel was murdered by his mother and stepfather in March 2012. For a period of at least six months prior to this, he had been starved, assaulted, neglected and abused. His older sibling was expected to explain away his injuries as accidental. His mother and stepfather acted together to inflict pain and suffering on him and were convicted of murder in August 2013, both sentenced to 30 years' imprisonment.

Daniel's mother had relationships with 3 different partners whilst living in the UK. All of these relationships involved high consumption of alcohol and domestic abuse. The Police were called to the address on many occasions and in total there were 27 reported incidents of domestic abuse.

Daniel's arm was broken at the beginning of 2011 and abuse was suspected but the medical evidence was inconclusive. A social worker carried out an assessment but no continuing need for intervention was identified.

In September 2011, Daniel commenced school. He spoke very little English and was generally seen as isolated though he was well behaved and joined in activities. As his time in school progressed, he began to present as always being hungry and took food at every opportunity, sometimes scavenging in bins. His mother was spoken to but told staff that he had health problems. As Daniel grew thinner his teachers became increasingly worried and along with the school nurse, help was sought from the GP and the community paediatrician.

Daniel also came to school with bruises and unexplained marks on him. Whilst these injuries were seen by different school staff members, these were not recorded nor were they linked to Daniel’s concerning behaviours regarding food. No onward referrals were made in respect of these injuries. At times, Daniel’s school attendance was poor and an education welfare officer was involved.

Daniel was seen in February 2012 by a community paediatrician, but his behaviours regarding food and low weight were linked to a likely medical condition. The potential for emotional abuse or neglect as possible causes was not considered when the circumstances required it. The paediatrician was unaware of the physical injuries that the school had witnessed.

Three weeks after the paediatric assessment Daniel died following a head injury. He was thin and gaunt. Overall, there had been a rapid deterioration in his circumstances and physical state during the last 6 months of his life. 

Hamzah Khans death - case facts

A mother who starved her four-year-old son to death and left his body in her bedroom until it became mummified has been found guilty of his manslaughter.

Amanda Hutton, 43 who denies manslaughter, has gone on trial at Bradford Crown Court.

Tests on Hamzah's remains showed he had the bones of a 12 to 18-month-old baby and had no muscle and hardly any flesh when he died.

His mother, Amanda Hutton, 43, was convicted of manslaughter by gross negligence at Bradford Crown Court.

Hutton was jailed for 12 years for manslaughter and three years for child cruelty to run consecutively. She was also sentenced for two-and-a-half years for preventing the lawful burial of a child, to run concurrently.

The jury heard Hamzah had a "grossly inadequate" diet, suffered osteoporosis and was wearing a baby grow for a six to nine-month-old infant when he died.

Hutton admitted a charge of child cruelty in respect of each of these children, who were aged between five and 13 in 2011. Hutton has also admitted a charge of preventing the burial of a corpse, along with her eldest son, Tariq, 24, who will also be sentenced on Friday.

Hamzah's decomposed body was found in a travel cot in Hutton's bedroom.

David Sellu trial - Gross negligence manslaughter case facts

Facts

David Sellu convicted of gross negligence manslaughter and jailed for two and a half years for killing a patient, James Hughes. He “simply ignored” his condition and instead of operating on him carried on with his appointments. Court decided his actions were negligent not errors.

The actus reus of this case is when Sellu “simply ignored” the urgency of the condition. This is an omission as he failed to act with a duty to act.

The mens rea is oblique intent as Sellu did not intend for Hughes to die but knew it was a virtual certainty as not operating when there is a life threatening condition will most likely cause death.

Negligence

Negligence is when someone breaches their duty of care towards another person, for example a car driver has a duty of care towards the pedestrian.

David Sellu’s actions were negligent as he ignored Hughes perforated bowel, which is life threatening when untreated. His ignorance of the condition stops the death from being a mistake and makes the death a criminal offence. Sellu had a duty of care towards Mr Hughes as he was transferred over to Sellu’s care. He breached this duty as soon as he knew of the condition and did nothing about it.

Conclusion

David Sellu was jailed for two and a half years for the death. He denied gross negligence manslaughter. He was found not guilty of perjury after being accused of lying to the victim’s inquest under oath.

How do we celebrate similarities and not focus on differences between people from different backgrounds?

Control of Delegated Legislation by the Courts

Delegated legislation can be challenged in the High Court Queen’s Bench Division. This is known as Judicial Review. The delegated legislation can be declared ultra vires which is Latin for ‘beyond the power’ and the effect of this is to make the delegate legislation void or not effective. There are 3 types.

Procedural ultra vires. This means the minister or department has not followed the procedures set out in the Parent Act.	Aylesbury mushrooms case A training board was introduced for farmers.  The farmers themselves were then asked to pay for it.  This was all right as long as they had been consulted, but it was not all right for some mushroom growers who had not been consulted.  The court decided that they didn’t have to pay.
Substantive ultra vires. This means that the powers given to the person making the delegated legislation in the Parent Act have been exceeded.	Cure and Deeley Case (1962) Finance Act 1940 gave Customs and Excise power to make any law they wanted - charge tax when tax return was submitted late This was wrong as it gave a government department more power than Parliament Fulham Corportation The parent act gave the Council the power to build shared washing facilities for a group of houses. They actually built a launderette which the residents had to pay for. This went beyond the powers given in the parent act and this was Ultra Vires.
Unreasonableness. This means that the delegated legislation made is so unjust that no reasonable body could have made it.	Strictland v Hayes Borough Council It was unreasonable to ban people from using bad language in private when the Parent Act had given councils the power to punish people singing obscene songs generally.  The power should have been limited to public places.

Control of delegated legislation by Parliament

What can Parliament do?	Notes
Parliament passes the original Parent Act and can limit the powers given in the act at that stage.  Enabling Act	Framework for the new law. Authority for a specified person (Government minister) or body (local authority) to make further more detailed law. Specify area within the law can be made and procedures
A Statutory Instrument may be subject to the Affirmative Resolution Procedure – it will not come into force unless Parliament specifically approves it. The need for this resolution will be included in the Parent Act.	Must be approved by one or both houses. Usually 28 or 40 days. Time consuming. Can’t be changed only approved, annulled or withdrawn. Government usually gets its way because it has a majority in Parliament. Affirmative resolution is not used very often Must be debated in parliament
Most Statutory Instruments are subject to the Negative Resolution Procedure – the instrument will become law unless rejected by Parliament within 40 days.	Goes before both houses Can have a motion called a ‘prayer’ calling for annulment – there is then a debate and a vote on the annulment. If annulment is passed then doesn’t become law More often than it is passed
Joint Select Committee on Statutory Instruments (the Scrutiny Committee) reviews all Statutory Instruments and will refer them to Parliament if the go beyond the powers of the enabling Act, show an unusual or unexpected use of powers,  have been badly drafted or impose a tax.	Made up of MP’s and peers. Difficult to scrutinise everything as 3000 SI’s each year. Limited power, can’t actually amend SI’s, only report back on them – reports often ignored.
Ministers can questioned in the House of Commons by any MP at any time about their work and proposed statutory instruments.	At question time or in debate, gives publicity, to DL due to presence of media in Parliament. Minister has to justify legal provision Only works if politician answers the question and doesn’t avoid it

Types of Delegated Legislation

Statutory Instruments

Statutory instruments are laws created by individual government ministers. They will usually be amendments to current laws that need updating or changing. One example of this type of Statutory Instrument is Section 17 of the Road Traffic Act 1988 which made motorbike helmets compulsory by law for motorbike riders. However, Statutory Instruments can be used to create new laws altogether. The minister of the topic involved will draw up the legislation. For example the Secretary of State for Education created the Educational Reform Act 1988. Because he was minister for education it was up to him to use his department to research and draft this law.

Bylaws

When parliament lacks local or technical knowledge they give the power to make laws to public bodies and local authorities like local councils or universities. For example the London Underground used parliamentary powers to ban smoking on its property.

Orders in Council

Following the 1920 Emergency powers act the monarch and the Privy Council powers to make laws in emergencies. The privy council is made up of the queen, 300 past and present ministers, the speaker of the House of Commons, the leaders of all the major political parties and the PM or representative for him. An example of an Order in Council was when on September 11 2001 they grounded all UK flights in case of a terrorist attack.

An overview of Diminished Responsibility and Intoxication

An overview of the law of Loss of Control

An overview of the law of Diminished Responsibility

Is it in the interests of justice and safety that we should be able to see each others faces?

Consider the case of the 21 year old from Hackney, London who refused to remove her niqab and reveal her face in front of any man. 


Look at this Private Members Bill for further information:
Face Coverings (Regulation) Bill 2010-12

Murder

Lord Coke defined murder as: 


"The unlawful killing of a human being under the Queen's Peace with Malice aforethought."
CausationDefendant can only be liable for victims death were their acts are both the factual and legal cause of death;• Nedrick was death or serious injury a virtual certainty as a result of defendants actions? Did the defendant foresee this as in Woolin? If yes, the jury can infer intent.Read the following articles and consider, was there sufficient mens rea for murder? Why was the defendant charged with murder?

• A foetus in utero (a baby who has not been born and is does not exist separately from its mother) and a person who is brain dead (Malcherek) is not a reasonable creature in being and therefore cannot be murdered. 

• Attorney General's Reference (No 3 of 1994)(1997): "Violence towards a foetus which results in harm suffered after the baby has been born alive can give rise to criminal responsibility"

• Under the Queen’s Peace means not during active war.

Actus reus 
This can be either an act or an omission. In most cases an omission doesn't amount to criminal liability, but there are exceptions to this, namely whether the law recognises a duty to act, including:

• A duty arising through relationship (Gibbins and Proctor)

• A contractual duty (Pittwood)

• A duty which has been taken on voluntarily (Stone and Dobinson)

• A duty arising from creating a dangerous situation (Miller) 

Factual

• ‘But for’ test as in the case of Pagett. (human shield)
• For legal causation, there must be more than a slight or trifling link between D’s act/omission and the consequences for the victim and it doesn't need to be the sole cause (Kimsey)

• Cato – must be more than a minimal cause

Legal
• Defendants actions must be the operative and significant cause of death as in the case of Smith. 
It is unlikely negligent medical treatment would break the chain of causation as in Cheshire.
• An intervening act that is reasonably foreseeable will not break the chain of causation such as Blaue (Jehovah’s witness, thin skull test). There are circumstances where an intervening act will break the chain of causation such as in Williams  where the victims action was unpredictable and stupid (Daftness test - victim thought the defendant was trying to steal his wallet so he jumped out of moving car and was injured)

Mens rea of murderDefendant must demonstrate the required malice aforethought – the intention to kill or cause really serious harm. Intention has two types;

Direct intent

• Must have intended to kill or cause grievous bodily harm. 
Indirect/Oblique intent

• Did not desire the outcome but in acting as they did, realised it might occur as in Maloney (intention and nothing less.)

http://news.bbc.co.uk/1/hi/uk/8466140.stm
http://obiterj.blogspot.co.uk/2010/11/r-v-frances-inglis-considerations-far.html

Mens rea

Mens rea is a Latin term referring to the mental element of criminal liability and broadly there are 2 types of mens rea; intention and recklessness.

• It can be either an actual intention to do the particular kind of harm, or
• recklessness whether such harm should occur or not.

Intention is also known as specific intent and can be split into two types:

Direct Intent - the defendant's aim and purpose is to bring about the consequence. He set off on a course of action trying to bring about a certain consequence and that is what occurs.

R v Mohan (1976)
A police officer signialed the defendant to stop his car. The defendant accelarated towards the police officer who jumped out of the way and the defendant drove off without stopping.


Oblique intent
1.The consequences of the defendant’s actions were virtually certain and
2.the defendant foresaw this.

R v Woollin [1998]
The defendant lost his temper with his three month old son and threw him towards his cot. He missed and the baby hit the wall behind. The baby was badly injured and died as a result.
Serious harm was virtually certain

Recklessness - The defendant realised there was a risk of the result occurring but went ahead
with his actions anyway. (Conscious risk taking or taking an unjustified risk)

R v Cunningham [1957]
The defendant broke into a gas metre to steal the money inside. The gas leaked into the property next door and made the resident ill. D was charged, with having unlawfully and maliciously caused V to take a certain noxious thing, coal gas, so as thereby to endanger her life.

Held: The correct test is whether D foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it.

Not guilty (on misdirection)

Actus reus

There are three basic elements which must be provided in order to establish criminal liability: 

1. guilty conduct (actus reus)

2. a guilty mind (mens rea)

3. absence of any defence. 

Actus reus is a Latin phrase meaning the conduct or state of affairs which a particular offence prohibits. i.e.

the guilty act.

The actus reus is usually, although not always, committed through a voluntary act, taking into account of the surrounding circumstances, e.g. causing death by dangerous driving. This is a result crime.

The voluntary nature of the action was discussed in the case of Hill v Baxter (1958) where the court gave examples of where a driver could not to be said to be doing the act of driving voluntarily, these included the driver losing control of the car because they had been attacked by a swarm of bees, being hit on the head by a stone or having a heart attack at the wheel. 

There are some rare instances where the defendant has been convicted not because of a voluntary act they  have committed, but because of the situation they have found themselves in. This is known as 'state of affairs' cases. An example is the case of Larsonneur (1933) in which the defendant who was a French citizen was deported from Ireland to England. When she arrived in England she was immediately charged with being an illegal entrant and her conviction was upheld on appeal even though she had come to England against her will. She was convicted not because of a positive action on her behalf, but simply because of the situation she found herself in. 

In some situation an omission, meaning a failure to act, can constitute the actus reus although this is only in particular circumstances which include the following:

1. Assuming responsibility  meaning that reasonable steps need to be taken to care for the individual

R v Stone & Dobinson

The defendant's voluntarily took on care of an anorexic sister. They did nothing to care for her and didn't call a doctor when it was clear she she was very ill and she died

They were found guilty of manslaughter because they had volunteered to care for her and then failed to do so. 

 2. Creating a dangerous situation meaning a legal obligation to take reasonable steps to reduce the danger that you have created.

R v Miller

While the defendant was squatting in a house he accidentally set fire to a mattress with a cigarette 

He did nothing to put the fire out and just moved into another room. 

He was found guilty of arson because he failed to do anything about the dangerous situation he had created.

      3.  Contractual -  Legal obligation to fulfill duty set out in a contract.

       R v Pittwood

The defendant was employed (and therefore had a contract of employment) to open and close a gate to vehicles crossing a railway track. 

He failed to do this and a cart went on to the track when a train was coming and people were killed 

He was found guilty of manslaughter because he failed to carry out task given to him.

 4. Relationship -  Legal obligation to look after children/partner.

R v Gibbons & Proctor

The father of a child was found guilty of murder because he had failed to provide reasonable care.

 5. Where an act of Parliament expressively states that one will be required to act

 Road Traffic Act 1988

 E.g. not wearing a seatbelt.

 E.g. failing to give a specimen test.

The legislative process

Green	Green paper	Contains the general proposal
Winged	White paper	More detailed proposal are set out after the initial consultations
Dragons	Draft	The proposals are drafted into a bill by government lawyers and then published
Fly	First reading	The bill is usually introduced to the House of Commons. This merely notifies the House of the bill and its subject matter. There is no debate.
Slowly	Second reading	This is the main debate on the principles of the bill, followed by a vote.
Clockwise	Committee stage	A committee between 16 and 50 MPs examines the details of the bill clause by clause and suggests amendments.
Round	Report stage	The committee reports back these amendments to the House.
The	Third Reading	This usually coincides with the report stage and marks the final debate on the bill in its amended form in the House of Commons.
Old	Other house	The bill passes to the ‘other house’ (House of Lords) for similar procedures, although in the committee stage in the lords the whole House acts as a committee.
Ruin	Royal assent	The Monarch gives approval to the bill. This is a formality and is not undertaken by the Queen personally.

Making laws: Where do they come from?

Resources to help you to research the Equality Act 2010 and the Marriage (same sex couples) bill

Equality Act 2010 
The text of the Equality Act 2010



You may be surprised as to what is included in the Equality Act.


The Citizens Advice Bureau publishes guidance as to your rights under the Equality Act, it's worth reading to ensure you know your rights and you know what to do if you think that your rights have been breached. 

 
Marriage (same sex couples) bill 

Information from Parliament about the journey from a bill to an act 

BBC Q&A on gay marriage including the arguments for and against 
Lord Tebbit argues that Gay marriage bill may lead to "lesbian queen and artificially inseminated heir"
Gay couple to sue the Church of England over their refusal to conduct same sex marriages.