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.