Law Weblog

No corporate killing reforms during this Parliament?

Baroness Scotland, the minister responsible for criminal law reform has admitted that any legislation on corporate killing can no longer be expected during this Parliament. This is despite reforms promised in Labour’s 1997 and 2001 manifestoes.
She ruled out a key demanded for reform; targeting individual directors. Furthermore, she indicated that any new law would not be extended to the public sector. Any such reforms would therefore be largely window dressing and would not address the concerns of the public that large corporations can ‘get away’ with killing ferry passengers and rail passengers as they have hitherto.
A ten-minute rule Bill was introduced by Frank Doran.

Law Reform: Reform of fraud offences gets nearer

The Government proposes to reform the law of fraud along the lines proposed by the Law Commission report (published in 2002).
The Commission concluded that introducing a general fraud offence would improve the criminal law in several respects. It would help to make the law simpler and more easily understandable for juries, defendants and the general public (no mention of law students).
The existence of a clear definition of fraud would also help to make the prosecution process more efficient and effective. Fraud in this context includes the “deception offences”, referred to in the Theft Act 1978, and the 1996 Act, and in your syllabus.
The Law Commission report says that even the Theft (Amendment) Act 1996, remains over-specific and vulnerable to technical assaults. The current law on fraud needs to keep pace with constantly emerging techniques for fraud, particularly with rapidly changing technology.
The proposals:
1. The main proposal is for a general offence of fraud which can be committed in 3 different ways: by false representation, by wrongfully failing to disclose information, or by abuse of office. In each case the behaviour must be dishonest, and must aim at securing a gain for the defendant or a loss for another. But the gain does not actually have to take place, as it does under the existing statutory offences, which would be repealed.
2. New offence of obtaining services dishonestly
3. New offence of possessing equipment to commit fraud 4. Fraudulent Trading

See here for the full consultation document

Adding up the judges….

A mathematically minded correspondent has pointed out to us that if you add up all the judges involved in the Naomi Campbell case, five judges ruled for the Daily Mirror (3 in the Court of Appeal and 2 in the Lords) and only three for Naomi Campbell. She also pointed out to us that the two Law Lords in the minority, Lords Hoffmann and Nicholls, are the two most senior Law Lords.
Still the Daily Mirror lost, tough.

Halsey v Milton Keynes General NHS Trust and Steel v Joy and Halliday [2004] CA

[ADR – courts will ‘encourage’ appropriate use of mediation by adverse costs orders]
Conjoined appeals.
1. Halsey was a medical negligence case. D, the hospital where C’s husband died, allegedly because of an incorrectly fitted nasal feeding tube. D refused invitations by C to mediate, and C lost at trial.
2. Steel, was a car accident case where D refused an offer of mediation.

Factors the courts will take into account:
–The nature of the dispute;
–The merits of the case;
–The extent to which other settlement methods had been attempted;
–Whether the costs of the alternative dispute resolution would have been disproportionately high;
–Whether any delay in setting up and attending the alternative dispute resolution would have been prejudicial;
–Whether the alternative dispute resolution had a reasonable prospect of success.

Hurst v Leeming [2002] approved.

Campbell v MGN Limited [2004] HL

[Judicial creativity – breach of confidence extended to include misuse of private information]
C, Naomi Campbell, was photographed coming out of a drug clinic. D published in the “Mirror” misleading information together with the photograph.

Held: In this country, unlike the United States of America, there is no cause of action for ‘invasion of privacy’. The common law or, more precisely, courts of equity have long afforded protection to the wrongful use of private information by means of the cause of action, which became known as breach of confidence. A breach of confidence is unconscionable conduct, akin to a breach of trust. The essence of the tort is better encapsulated now as misuse of private information.

Miss Campbell’s claim was on the basis of breach of confidence, that is, the wrongful publication by the ‘Mirror’ of private information. Detailed information about her treatment for drug addiction amounted to private information, which imported a duty of confidence. There was a balance to be struck between her right to private life Article 8 of the European Convention on Human Rights and Article 10 the right to freedom of information

Lord Hope; “Despite the weight that must be given to the right to freedom of expression that the press needs if it is to play its role effectively, I would hold that there was here an infringement of Miss Campbell’s right to privacy that cannot be justified.”
Lady Hale: “Wainwright v Home Office [2003] … indicates that our law cannot, even if it wanted to, develop a general tort of invasion of privacy. But where existing remedies are available, the court not only can but must balance the competing Convention rights of the parties.”

C won.
Whole case here

R (Clift) v SS Home Department, 29 April 2004.

The role of the Secretary of State for the Home Department in determining when offenders should be released from prison on licence has been progressively reduced.
This case decided that the Home Secretary’s power to determine the release on licence of prisoners who were serving determinate sentences of 15 years or more was reasonable and did not contravene art 5, when read with art 14, of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Whole case here

R v Dica

The Court of Appeal has ordered a retrial in the case of Dica, for the jury to consider the issue of “consent”, not in the sense of consenting to intercourse but not consenting to the nature and quality of the act. The court has resoundingly quashed R v Clarence, which is no longer consider to be good law. Public policy reasons would prohibit the deliberate spreading of disease, including sexual disease, in the same way that it prohibits infliction of bodily harm. However, sexual intercourse often includes some risk, including that of pregnancy, and interference of this kind with personal autonomy, and its level and extent, may only be made by Parliament. The effect of this judgment in relation to s.20 is to remove some of the outdated restrictions against the successful prosecution of those who, knowing that they are suffering HIV or some other serious sexual disease, recklessly transmit it through consensual sexual intercourse, and inflict grievous bodily harm on a person from whom the risk is concealed and who is not consenting to it.
Whole case here

Simmons v British Steel plc [2004] HL

[Tort – remoteness of damage – primary victim – foreseeable harm includes psychiatric reaction following initial injury]
D, the steel company that employed C. C fell and hit his head at work. He suffered depression and a pre-existing skin disease flared up, not because of the original injury “but from his anger at the happening of the accident” (lack of apology or support following the accident, and failing to prevent the accident when warned of the danger).

Held: C was entitled to compensation for the consequences of the accident and not just for the physical injuries.
C’s anger was neither de minims nor an intervening act.
C was “a primary victim” according to the classification in Page v Smith (1996).

A wrongdoer takes his victim as he finds him Smith v Leech Brain & Co Ltd [1962] CA.
There must now be added these further qualifications:
(1) that a defender is liable although the damage may be a good deal greater in extent than was foreseeable, as he can escape liability only if the damage can be regarded as differing in kind from what was foreseeable: Hughes v Lord Advocate (1963) HL; and
(2) where it is established that physical injury to the pursuer was foreseeable, it is unnecessary to ask whether it was foreseeable that he would also suffer psychiatric injury: Page v Smith [1996] HL.

The general rule is that it must be shown that the injury would not have occurred but for the act or omission of the defender. But if a number of factors contributed to the injury it is sufficient that the contribution which the factor attributable to the defender’s fault made to the injury was material: Wardlaw v Bonnington Castings Ltd [1956] HL.

C won
Whole case here

Attorney General Reference No. 1 [2004] CA

[Requiring a defendant to prove his innocence is – in some cases – in accordance with Woolmington and Article 6 of the Human Rights Act 1998]  
There are 219 statutory offences that require the defendant to disprove or prove something, in order to prove his innocence; this is called a reverse burden provision.  These include strict (or absolute) liability offences.  This appears to be contrary to the rule in criminal law that the prosecution has the burden of proving the defendant’s guilt (Woolmington and Article 6 of the HRA). 
There has been a steady increase in number of technical challenges and the Court of Appeal took the opportunity of laying down some guidance.  An unusual 5 judge court sat to hear the arguments. 

Reverse burden provisions come in two forms, the legal burden and the evidential burden.  
The Legal Burden
This is a higher standard than the evidential burden. The defendant may, for example, wish to raise a defence that he did not know some particular fact, or that he was not going to drive whilst drunk, or that he was insane.  D has the legal burden to prove the issue he raises.  Failure to convince the jury or the magistrates of a defence will mean the defendant will be found guilty.  It is usually a “do or die” situation, because D will have probably admitted all the other ingredients of the offence, and be relying solely on the defence he raises, this is why it is described as a high standard
The standard the defendant has to reach is on the balance of probabilities.  

The Evidential Burden
An evidential burden is a lower standard, and refers to the burden on a defendant to raise an issue, say provocation or self defence, having simply raised the question the burden then shifts back to the crown to disprove it. 
The standard the defendant has to reach is on the balance of probabilities.  

The problem is, some offences where the reverse burden applies carry high penalties.  So the court was asked whether reverse burdens are always permissible, and should some offences require only the evidential burden  

Held: The evidential burden is consistent with Woolmington and Article 6.  The legal burden will not be consistent if it is not proportional to the objective of the reverse burden, and should be reduced (read down) to the evidential burden for serious offences.  Factors that the judge should take into account include, for example, if the evidence is only within the knowledge of the defendant.  The ultimate question is: would the exception prevent a fair trial? If it would, it must either be read down if this is possible; otherwise, it should be declared incompatible.   This case and R v Johnstone [2003] HL are only authorities that should be cited.  Johnstone arose out of the charging of the defendant with trademark offences.  The defendant had a defence if he could show that he honestly and reasonably believed that there was no infringement of the registered trademark, which imposed on D the legal burden of proving the relevant facts on the balance of probability.  

Whole case here.

Mandamus, prohibition and certiorari abolished.

1st May 2004:  The terms “mandamus”, “prohibition” and “certiorari” are abolished in favour of “mandatory”, “prohibiting” and “quashing” orders. We thought this had already happened, following the Woolfe Reforms; shows how wrong we can be 🙂
Brought into effect by Civil Procedure (Modification of Supreme Court Act 1981) Order 2004. SI 2004/1033