Law Weblog

There is no defence of medical necessity

Quayle and others and AG Ref (No 2 of 2004) [2005] CA
[Defences – medical necessity (duress of circumstances) – not available for medicinal use of cannabis – judicial law-making – principle not policy]
DD (six conjoined cases) smoked cannabis to relieve pain, another D imported cannabis for the benefit of others who used it for medicinal purposes or to ease the passage to death. There was no medical dispute as to its painkilling properties in some cases.

Held: There is no common law defence of “medical necessity”, nor do the various statutes provide for a defence. Doctors are not permitted to prescribe cannabis except for certain trials, it would not be appropriate therefore for individuals to make cannabis available for themselves or others.

For the purpose of the defence of necessity (duress of circumstances), there is a requirement of threat of serious injury, which would not include suicide by the defendant.

Lord Justice Mance delivering the judgment of the court stated that the judgment was based on established principles and not policy; he quoted from McLoughlin v O’Brien [1983] “…If principle leads to results which are thought to be socially unacceptable, Parliament can legislate to draw a line or map out a new path.”

Guilty

Comment: This case was apparently referred to the Court of Appeal by the highest level within the CPS.
Cannabis trials are only available for multiple sclerosis (MS) sufferers, which did not apply to any of the defendants.
It is possible that juries will still acquit in some cases even though no such defence exists; if raised the ‘defence’ should not be allowed to go to the jury.
The case is expected to go to the House of Lords.
Whole case here

“No temporal limit to the effect of rulings”. The House of Lords can postpone the coming into effect of a ruling on a point of law. This appears to be (within a few miles) what their Lordships have stated in an amazing judgment of seven Law Lords. In our opinion, this judgment ranks with the Practice Statement of 1966 in terms of importance.

National Westminster Bank v Spectrum Plus [2005] HL
[Precedent – prospective overruling is lawful]
National Westminster Bank was owed money by Spectrum Plus, a paint company. Other creditors such as the Inland Revenue, Customs & Excise and Spectrum employees were also owed money. Spectrum became insolvent (went bust). Nat West sued to recover their money ahead of the Revenue.

Held: By seven Law Lords:-
Banks that lent money to companies on certain terms have lost their right to a place at the front of the queue for repayment when the companies go bust. Nat West’s charge counted as a “floating”, rather than a “fixed” charge, meaning it had to wait in line behind a queue of government creditors.

The law lords declined to overrule prospectively Siebe Gorman (1979) that is they declined to make their decision effective only in the future.

Siebe Gorman v Barclays Bank (1979) overruled.

Nat West Bank lost.

Comment: This judgment hits 10 on the scale of important decisions in recent years. The whole basis of precedent has been altered. All sides in the debate about judicial creativity and the judiciary’s role in law making will now to be re-argue their case.

The effect of this case is that many insolvencies over the past 25 years may have been wrongly decided and could, in theory, be challenged. The main beneficiaries will Revenue & Customs, but a Crown statement three years ago indicated that they would not seek to unpick earlier decisions.

Over 500 other cases have been awaiting this judgment and can now be sorted out; the sums involved may costs banks hundreds of millions of pounds.

The House of Lords held that it had jurisdiction in certain exceptional circumstances to depart from the normal principles relating to the retrospective effect of court decisions, the present case was not within that exceptional category of case in which a declaration that the overruling was to have prospective effect only would be appropriate.

The bank argued that if the HoL was going to overrule Siebe Gorman, it should do so only for the future and Siebe Gorman should continue to apply to all transactions entered into before the instant case.

The essence of the argument against prospective overruling was that in this country prospective overruling was outside the constitutional limits of the judicial function and would amount to the judicial usurpation of the legislative function.

The ruling is clear, prospective overruling is lawful.

However, the present case was miles away from the exceptional category in which alone prospective overruling would be legitimate.

New Judicial Appointments and Conduct Ombudsman

A new ombudsman to investigate judicial appointment complaints and handling of judicial conduct complaints is to be appointed by the Department for Constitutional Affairs (DCA).

The creation of this new office follows the passing of the Constitutional Reform Act 2005 earlier this year. Only a person selected by a new Judicial Appointments Commission (JAC), independent of ministers, may be appointed to judicial office.

The ombudsman will investigate individual complaints relating to these appointments. The ombudsman will also be able to review the handling of complaints about judicial conduct by the new Office for Judicial Complaints. The Constitutional Reform Act establishes the Judicial Appointments Commission, which will be set up next year and will take responsibility for the selection of judges in England and Wales.

Details of the ombudsman role and person specification can be found here

High Court judge resigns – first time in a lifetime

Sir Hugh Laddie aged 59 is thought to be the first High Court judge to voluntarily resign for 35 years. Mr Justice Laddie is to join a solicitors’ firm.

Reported in The Telegraph, here

The law of provocation is in a mess. Didn’t their Lordships know the A level law exams are next week?

The Privy Council believes Parliament should sort out provocation (together with all the law of homicide) as soon as possible; the courts can do no more with it, it is now up to Parliament. Within less than 4 years, they have pronounced R v Smith (Morgan) [2001] HL to be wrong, in the case of R v Holley.  (Jersey v Holley [2005])

This means that women suffering from Battered Woman Syndrome may satisfy the first test in Section 2 Homicide Act 1957, but not the second objective test and so appear to be back in the position they were before Morgan Smith and have to rely on diminished responsibility. In fact, their Lordships urged courts to read together these two defences to obtain an overall, balanced view of the law in this field.

In applying the second ‘objective test’ we are advised to no longer use the term ‘characteristics’ of a defendant, but to rigorously apply a uniform objective standard of the degree of self-control to be expected of an ordinary person, to be judged by one standard, not a standard which varies from defendant to defendant.

The reasonable man described in Luc Thiet Thuan, Camplin and Morhall are to be applied to all defendants. The jury are required to judge the defendant’s loss of self-control by reference to the standard of the degree of self-control to be expected of an ordinary person of the defendant’s age and sex, and not a defendant with the ‘abnormalities’ of the accused.

The Board stated that in adopting the formulation of Sec 3 Homicide Act 1957 Parliament recognised the potential hardship to defendants suffering mental abnormality and had enacted the defence of diminished responsibility in s 2.

Luc Thiet Thuan v The Queen [1997] . R v Camplin [1978] and R v Morhall [1996] are to be considered the correct test for the “objective test”

Jersey v Holley [2005] PC
[Provocation – objective test limited to reasonable man test including age and sex of D. Statutory interpretation – literal approach adopted]
D killed his girlfriend with an axe. He was an alcoholic (as was she). She told him she had just had sex with another man. He picked up the axe, intending to leave the flat and chop wood, when the deceased said, “You haven’t got the guts” he hit her with the axe seven or 8 times. He pleaded provocation.

Held: D’s alcoholism should not have been taken into account.
Subjective element:
The jury are required to assess the gravity of the provocation by reference to the defendant’s individual characteristics in deciding if he lost self-control.
Objective element:
The jury are required to apply a uniform, objective standard of the degree of self-control to be expected of an ordinary person of the defendant’s sex and age when judging whether his loss of self-control was sufficient to satisfy the defence.

Not guilty of murder for other reasons

Comment: Morgan Smith cannot now be considered correct on this point. Whilst the advice of the Privy Council is said to be only persuasive this was a judgment of nine Law Lords sitting as the Privy Council. It is extremely rare that so many judges sit unless the case if of massive importance. This ruling can be seen as binding.

Top judges change jobs

When Lord Woolf retires as Lord Chief Justice for England and Wales on 30 September Lord Phillips will replace him.

Lord Justice Clarke will be the new Master of the Rolls.

Lord Justice Judge will become President of The Queen’s Bench Division, which is a new position; previously the Lord Chief Justice presided over the QBD.

These are appointments approved by The Queen.

How much do barristers earn?

Many barristers earn less than plumbers and teachers.  Rates of pay for barristers doing legal aid work are £0 – £33.50 per hour before deductions.
It has been revealed that the hourly rate for junior barristers is £33.50 gross.
Out of this they have to deduct their costs, such as tax, insurance, chambers rent and books. Travel time to court is £15 an hour. Some work, such as advising defendants that they have no grounds for appeal, is not paid at all.

In a survey by the Criminal Bar Association in May 2005, one barrister calculated his pay in a three-day drugs case, including 60 hours’ preparation, at £26 an hour. Rates of pay include payment of £1,000 for a one-week rape trial.

It is estimated that it costs £40,000 in professional studies to become a barrister.

The Department for Constitutional Affairs says that the average yearly payment to criminal barristers was £62,000. Simple mathematics shows that those at the bottom end of the scale are therefore poorly paid. The Criminal Bar Association has 2,500 members and the top 9 per cent of barristers earn more than £100,000 leaving very little for those at the bottom.
The “average pay” of barristers is hardly relevant to a newly qualified advocate who is not paid enough to make a living.

Law and justice

The pathologist who performed the post-mortem examinations on the two children of Sally Clark, who was wrongly convicted of their murder, bungled the examinations and has been found guilty of incompetence.

Full story in The Times, here

Loss of Time Order

About twice a year the Court of appeal makes a Loss of Time Order; this effectively adds to the time in prison for a defendant who wastes their time with an unmeritorious appeal. Such an order was made last month in R v Kuimba [2005] CA

R v Z [2005] HL

[Statutory interpretation – prevailing approach, purposive or mischief approach preferred]
D (Z) was convicted of being a member of a proscribed (banned) organisation. He appealed on the ground that the legislation proscribed the IRA but no the Real IRA.

Held: The reference to “the Irish Republican Army” (“the IRA”) in the list of proscribed organisations in the Terrorism Act 2000 had been intended to include breakaway groups and thus included the “Real Irish Republican Army”, even though the Real IRA was not, as such, listed.
Statutes enacted with the object of suppressing terrorism proscribed the IRA included all emanations, manifestations and representations of the IRA even thought they had never been listed by Parliament.

But the interpretation of a statute is a far from academic exercise. It is directed to a particular statute, enacted at a particular time, to address (almost invariably) a particular problem or mischief.

Lord Bingham believed that the historical context was of fundamental, and in the end conclusive, importance. He cited R (Quintavalle) v Secretary of State for Health [2003] HL: “The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.”