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Legal Common Sense

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There are times when we all slip up and make little mistakes and, in normal life, these are usually forgiven as it can generally be assumed what our true intentions were. When these mistakes are put into a legal context however, it becomes a much more difficult decision as to whether they should or shouldn’t be excused. Law, it could be argued, is a formal practise and therefore all legal documents should be scrutinised to ensure that they do not contain any of these human mishaps. However, the law is again practised by people who have a vast capacity to make mistakes so should allowances be made for understandable human error?

This debate came up in 1997 in the case of Mannai Investment Co. Ltd v. Eagle Star Assurance. A tenant had entered into a lease agreement with the landlord with a break clause being offered in the agreement in clause 7(13), which said:

“The Tenant may by serving not less than six months notice in writing on the Landlord or its Solicitors such notice to expire on the third anniversary of the term commencement date determine this Lease and upon expiry of such notice this Lease shall cease and determine and have no further effect. . . .”

The lease commencement date was 11th March 1992 but 3 years later rent prices were considerably better in the area so the tenant gave notices to the landlord to terminate the lease as was set out in the clause. 6th months from the 3rd anniversary should have been on 13th January 1995 however, the tenant gave notice on the 12th January 1995. The landlord brought the case to appeal in 1997 saying that the notices could not be upheld and the tenant would have to continue payment for the lease as the notices were given in on an incorrect date. However, it is fairly obvious that, as the notices were dated to day before the correct date, they were intended to be valid to terminate the lease. But can this type of human mistake be tolerated in the law.

Lord Goff acted on behalf of the landlord and made the argument that in a legal capacity, everything had to be checked and correct which would mean that regardless of what the tenant intended to do, however blindingly obvious, the notices were not valid.

Acting on behalf of the defendant however was Lord Hoffman. Hoffman argued that if the clause had set out a specific requirement for the notices such as “If the clause had said that the notice had to be on blue paper, it would have been no good serving a notice on pink paper, however clear it might have been that the tenant wanted to terminate the lease”.

However, the two dates of 12th January and 13th of January are conjoined at midnight and that conjunction could mean that there was area for misinterpretation unlike the coloured paper where they can be no mistaking what colour a piece of paper is. He then said that regardless of the conjunction of dates, the fact that they were consecutive gave a fairly obvious indication that the tenant’s intentions were to validly break the lease but the date was slightly wrong.

This reference to common sense in the law is controversial as it alludes to the idea that mistakes can be made if basic common sense can easily correct them. Hoffman talked of Mrs Malaprop from Richard Brinsley Sheridan’s The Rivals who says “she is as obstinate as an allegory on the banks of the Nile”. In this it is clear from the context and the similarities of the words that she meant alligator but mistakenly said allegory.

In this case the judge ruled that as it was clear that the tenant had intention of validly terminating the lease, the notices would be upheld. This judgement clearly set out that even though the law is formal and should usually be airtight in its conduction, legal practitioners and just normal everyday citizens should be allowed to make occasional understandable mistakes and ultimately like most things in life, the only thing that is needed is a bit of common sense.

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To Defame Or Not To Defame?

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Defamation laws have existed from as early as the Roman times, protecting reputations from unwarranted abuse. As these laws have remained throughout the years, social norms towards freedom of speech have greatly developed. This begs the question of whether defamation still has a place in the 21st century. The pertinent question of whether the infringement on freedom of speech is justified in defamation laws is vital to a democratic society, as it enables public debate, inclusive of political figures and their policies, producing an informed electorate. Criticism must not be stifled to produce checks and balances holding governments accountable, preventing abuse of power.

The common law definition of a defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower them in the esteem of right-thinking members of society. According to these laws, the claimant must prove three things: (1) that the statement was defamatory, (2) that it was directed at them, and (3) that it was published to third parties. In the common law, there are three main available defenses for the plaintiff: (1) justification (ie truth), (2) fair comment on matters of public interest, and (3) qualified privilege.

Even with these constitutional structures, there are instances where defamation laws appear to be unjust in a democracy, favouring large organisations and infringing on freedom of speech, disregarding public interest. There are also cases where in which defamation laws have outlined a standard for good journalism, and helped truth to triumph.

Mcdonald’s v. Steel & Morris

McDonald’s Corporation v Steel & Morris is first of the 2 cases that provide some insight into the issues involving defamation laws.

The longest trial in the history of common law to date, started with a leaflet titled, “What’s wrong with McDonald’s”, containing libellous information about the multinational’s food products, inhumane conditions for cattle, and treatment of its workers. This case is often said to highlight how defamation laws have a tendency to favour wealthy multinational organisations over individuals. This is mostly for two reasons.

Firstly, at the time, legal aid could not be provided in defamation cases. Hence, Steel and Morris became their own litigants in person, as they could not afford to pay for a private lawyer. When up against high-caliber lawyers representing McDonald’s, it was apparent that the relative lack of resources, in the form of legal knowledge, was a major disadvantage.

Secondly, the balance of probabilities places the burden of proof on the plaintiffs in defenses of justification and fair comment, giving the upper hand to large companies. Especially since the defamation laws assume damage to reputation without proof, as it is more difficult to prove quantifiable and immediate damage to a company’s reputation when compared to reputation of an individual. Large organisations are thus largely capable of suing any person who is supposed a risk to their reputation at no expense to themselves, all whilst subjecting plaintiffs to proving the truth of every defamatory statement made. This expensive and time-consuming burden has greater tangible effects on individuals than on wealthy organisations, which is not mitigated or considered in any way by these defamation laws.

These two factors lead to the ruling in the European Court of Human Rights that these laws violate Article 6 of the European Convention of Human Rights – the right to a fair trial.

Lèse Majesté Laws in Thailand

Although they differ slightly from the common law, Thailand’s lese majeste laws perfectly illustrate the potential harms defamation laws pose to freedom of speech and other liberties.

Article 112 of the Thai Criminal Code states that “anyone who defames, insults or threatens the King, the Queen, the hier-apparent, or the regent may be punishable by 3-5 year of imprisonment.” The values underpinning this law are further enshrined in recent constitutional developments, which state that, “the King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action.” This charge can be filed by anyone, against anyone, but must be investigated formally by the police.

Since the military coup in 2014, the number of arrests has more than doubled from the previous 12 years, gathering worldwide attention. The laws have been criticized for being used as a political weapon to silent dissenting views and political opposition. There are several reasons to believe that these accusations are true. One of them being that the laws have no clear definition as to what constitutes as insulting, allowing a broad interpretation and application of the law. This results in trivial cases where posting images on Facebook of the late King Bhumibol’s favourite dog, and liking it is deemed to be offensive, hence warranting years of imprisonment.

Another reason is that the laws sidestep the concept of equality before the law, and enable authorities to detain the accused for excessive pre-trial periods, denying the right to a fair trial. This unreasonable pretrial detention deters activists and public figures opposing the monarchy, as they will still be stripped of their liberties, even before being given the opportunity to prove their innocence. Moreover, the punishment is massively disproportionate, as the jail penalty without bail applies to each charge. The longest lese majeste penalty to date is 70 years without bail for 10 counts, reduced to 35 years upon confession. Even when taking into account the widespread respect for the King amongst members of the public, this law leads to penalties greatly disproportionate to the crime’s worth. In addition to this, the trials actively defy an order by the Prime Minister for lese majeste cases to be tried at civilian courts, instead trialling at military tribunals. Not only does this lead to far harsher sentences, but this also leads to poorer representation of the defendant, due to the relative strictness of the courts. More importantly, the act of the military-led government in openly going against an order is authoritarian, and suggests a disregard for constitutional values.

The laws do not allow truth to be a defense, but rather, sees it to be an exacerbating factor. This is highly questionable, especially upon realisation that the defamed in the context of these lese majeste laws is always a public figure. Even in a monarchy, public figures who claim to always act in the interest of the public will be subject to scrutiny, which acts as a form of deterrence of acts against the public interest. In fact, there are even fewer checks and balances in a monarchy, compared to a democracy, as there is no voting mechanism with respect to royalty. This means that with these lese majeste laws, there are little to no practical disincentives preventing abuse of power by royalty, and there is no means by which the public will be informed, as it would also be considered to be defamatory. If anything, public figures, including the royalty, should be expected to be able to defend themselves against the truth, and should be held responsible otherwise, especially when it is in the public’s interest to know.

From this, we can see the potential harms posed by authorities in defamation laws.

However, there have also been cases where defamation laws have proved to be beneficial in protecting the dissemination of truth.

Reynold’s v. Times Newspaper ltd.

Reynolds v Times Newspaper Ltd. was a landmark case which lead to the development of the defense of public interest in the Defamation Act 2013. In this, Lord Nicholls outlined 10 criteria for the defense of qualified privilege, with regard to the publication of defamatory statements in the public’s interest. These 10 criteria are:

  1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
  2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
  3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
  4. The steps taken to verify the information.
  5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
  6. The urgency of the matter. News is often a perishable commodity.
  7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
  8. Whether the article contained the gist of the plaintiff’s side of the story.
  9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
  10. The circumstances of the publication, including the timing.

These criteria help defamation laws clarify the line between protection of reputation and freedom of speech. In particular, public figures such as politicians, who are constantly subjected to public scrutiny by virtue of their occupations, will not be wrongly protected by these laws.

Especially with regard to political figures, it is crucial that freedom of speech be maintained in order to act as checks and balances preventing abuse of authority. Being subjected to harsh criticism deters these figures from abusing the mandate provided to them upon being voted into the government by the public. Should the people know that authorities are not acting for the public interest, through the media, they are able to take measures against the figures in question, by simply not voting for them.

In addition to this, freedom of speech is integral in democratic systems. The diversity of ideas and spread of information through the media is an important means by which voters decide who to vote for. If journalists were blocked from publishing their work, despite it being in the public’s interest to do so, then the various ideas members of the public are exposed to are vastly limited, leading to a misinformed voter base. This undermines a democratic system, as the very voters may fail to vote for the politicians whom they believe will act in their best interests, meaning that representation of the people is inaccurate.

Irving v. Penguin Books

Irving v Penguin Books also highlights this fact. Deborah Lipstadt, in her book “Denying the Holocaust: the Growing Assault on Truth and Memory” stated that Irving is a “falsifier of evidence”. Upon the publication of this, it is apparent that the words damaged Irving’s reputation. In reducing the sales of his books, and his image in the media, the publication reduced his income significantly, as he was financially dependent on these sales. Consequently, Irving sued Lipstadt for libel, seeing it as an opportunity for financial compensation, as well as to re-enter the media sphere. After proving Irving’s endless falsification of facts, Lipstadt won her case with the defense of justification.

Whilst the laws have infringed on Irving’s freedom of expression, and dismissed his views, they enabled Lipstadt to prevent Irving from publishing content denying the Holocaust ever again. In doing this, other Holocaust deniers will be less widely accepted, and the spread of these falsehoods will cease. This defamation case provided a way for the real truth to be heard, reducing the effect of relativism and multiple truths in producing a post-truth world.

It is clear from the above cases that defamation laws can be contentious, with benefits and disadvantages. Especially as the views towards free speech change and develop with time, it is a valid question to consider as to whether protection of reputations of legal entities can really supersede the fundamental values of freedom of speech.

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Sado-Masochistic Homosexuality: A legal case study

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R v Brown (Anthony Joseph) [1994] 1 A.C. (HL)

 Facts of the case

The appellants, a group of sado-masochistic homosexuals who, stimulated by drugs and alcohol, willingly and enthusiastically participated in acts of violence for sexual pleasure. The appellants were all above the required age of 21, but there was limited contact with a 15 year-old male, “K”. The activity took place in private; no complaint was ever made to the police; there were no permanent injuries or infections; safe words were used, and no medical attention was ever sought or required. Whilst the activity was recorded, it was not intended to be seen outside of this group, nor sold for profit. The police discovered this activity coincidentally through the course of Operation Spanner. Yet, there is some dispute as to whether animals were involved or not, which if they were would amount to an offence under s12 of the Sexual Offences Act 1956. Most importantly, with the possible exception on one occasion, everyone consented to this activity.

Outcome of the case

The court upheld the convictions and dismissed the appeal by a majority of 3:2. Lords Templeman, Jauncey and Lowry dismissed the appeal since it was argued that it was not in the public interest that a person should wound or cause actual bodily harm to another for no good reason. Underlying this decision are two further claims: (1) where the victim has suffered harm which is actual bodily harm or worse, then the victim’s consent is no defence, and (2) the satisfying of sado-masochistic libido is no good reason. The majority also held that Articles 7 and 8 of the European Convention on Human Rights have no application here, to which the dissenting judges also agreed partially.

Lord Mustill and Lord Slynn dissented on the basis that consent is a valid defence, except in cases of grievous bodily harm or death. Lord Mustill, having assiduously examined previous cases, thought the court to be free to consider this case afresh, since the earlier cases were inconclusive. Lord Mustill used the doctrine of autonomy to posit that the law should not intrude on the private life of an individual. Lord Slynn disagreed with the majority in that such cases of private affairs, public interest should declare the defence of consent invalid.

Context of the decision

The relevant law surrounding consensual violence before the decision centres around one common law principle and three common law cases. I am discounting the Wolfenden Report because its somewhat dubious clauses only have influence amounting to the enactment of the Sexual Offences Act 1967.

Common law principle

That consent is a valid defence to common assault.

 Reg v. Coney (1882) 8 Q.B.D.

This decision held that a prizefight in public was unlawful – actual bodily harm or serious bodily harm is unlawful, notwithstanding the consent of those involved.

Cave J. argued that a blow not struck in sport and is likely or intended to do corporal hurt is an assault, unlawful and a breach of the peace, thus the consent of the person struck is immaterial. Cave J. said at p. 507

“If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it.”

Stephen J. added that consent is also not a defence when the activity is injurious to the public as well, and it is not in the public interest that the lives of the prize-fighters be endangered.

Rex v. Donovan [1934] 2 K.B.

This held that a private beating amounting to common assault for sexual gratification is unlawful. All of the judges disagreed with the reasoning in this case because of the common law principle stated above. Therefore, the decision in R v. Brown seems to overrule this case, thus changing the law. Yet this case may have importance in that it argues the offence is irrespective of consent.

Attorney-General’s Reference (No. 6 of 1980) [1981] Q.B. 715

This decision held that a fight between two consenting young men was unlawful because it was not in the public interest. Indeed, Lord Lane C.J. said at p.719

“It is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason…it is immaterial whether the act occurs in private or in public.”

The position of the law before the case was roughly straightforward. However, there was a lack of clarity in the decision of Rex v. Donovan, which contradicts the common law principle for no good reason. But Coney and the Attorney-General’s Reference are both consistent with each other and the common law principlewhich leads me to disagree with Lord Mustill’s historical summary of previous cases that he asserted were inconclusive. Coney posits that actual bodily harm or worse cannot be consented to, and also adds that consent is not a defence when the activity is injurious to the public; the Attorney General’s Reference concurs on the point of public interest too.

Thus the decision in Brown affirmed the common law principle that common assault can be consented to (this underlies the court’s rejection of Donovan). The court’s decision also confirmed Coney as it states that actual bodily harm can only be consented to with good reason; in special circumstances such as boxing, which is properly regulated (Queensbury Rules), and conducted (with a referee and medical practitioners close by). Furthermore, the Court also reasserted the public interest measure, thereby also confirming Coney and the Attorney-General’s Reference.

It follows that this decision changed the law in Donovan and added the special circumstances exception to the charge of actual bodily harm or worse: it can be consented to with “good reason”.

Critical commentary

I believe that the court did reach the right decision for the following reasons:

  1. The court’s decision is consistent with earlier cases

As explained above the court’s decision is consistent with the ratio in both Reg v. Coney (1882) 8 Q.B.D. and Attorney-General’s Reference (No. 6 of 1980) [1981] Q.B. 715.

The line of actual bodily harm was chosen because it is consistent with the Attorney General’s Reference, not because it was easier to differentiate between no injury and some injury; it differentiates between actual bodily harm and common assault, the latter being less serious. The dissenting view that the standard of harm should be grievous bodily harm is based on no authority.

Furthermore, the court rightly holds that these acts were malum in se, and the issue of consent is not relevant. Consent is a defence in acts where there is a good reason. Boxing is permitted since it is conducted with rules, doctors and referees. The unregulated, drug-incensed activity of the appellants is unsafe and thus not a good reason.

Lastly, whilst horseplay (which has no intent to harm) has been seen as a good reason (Reg v. Bruce (1847) 2 Cox C.C. 262, Aitken [1992] 1 WLR 1006, Jones (1986) 83 Cr App R 375), I would hold that this reasoning is flawed and that does not have any impact on the present case. It is for Parliament to decide on the exceptions, such as horseplay and, in time, sado-masochism.

  1. The court is right to accept the use of the Offences Against the Person Act 1961 – it is not inappropriate

Firstly, it should not be relied upon that consent was not mentioned in the statute, as it is usual for such acts to use absolute language and leave definitions to the court[1].

Secondly, if it were construed otherwise the result would be that the infliction of serious physical injury should be exempted from the act, which is the very thing the act was enacted to protect against. The act is directed at protecting the person of individuals.

Lastly, it should be noted with care that legislation should be used to commit an act even if that legislation was not originally intended to prosecute the act. One needs only to remember the countless judgments of Lord Denning or the recent upskirting scandal involving Gina Martin, where the Metropolitan Police reopened the investigation of the basis of an old common law against ‘outraging public decency’.

  1. The court was not moved or influenced by personal morality

The court clearly acted in line with previous cases and the presence of disgust to these acts (which all judges shared) is the most humane and just reaction, and a judge must be humane and just. Furthermore, since all judges were repelled by these acts the argument that three were repelled so they dismissed the appeal and that two were repelled so they allowed the appeal is contradictory and made without proof. The oft-quoted statement of Lord Templeman that “pleasure derived from the infliction of pain is an evil thing” is in fact perfectly justifiable and sensible, and it is perfectly reasonable that a judge should pass moral judgement (provided it does not inform his judgment) in order to uphold societal values.

  1. The court was right to interfere with private affairs

This case clearly demonstrates the limits to the autonomy principle in favour of the welfare principle. Autonomy left unbound soon becomes no autonomy. As Cicero said, “we are slaves to the law so that we may be free”. Paternalistic laws, even those that are not utilitarian in nature, are often proclaimed as life-saving. One immediately recalls the law requiring each person to wear a seatbelt in a car.

Overall, I find the court’s decision to be satisfying and their view that Parliament should legislate on this matter as entirely appropriate and in line with parliamentary sovereignty.

[1] L.Q.R. 1993, 109(Oct), 540-544

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Recent Case of Charlie Gard – Who Knows Best?

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doctors vs judges

The recent Charlie Gard case that has flooded international news is characteristic of the intricate, global controversy: who has the right over life?

Infant Charlie Gard was born with an extremely rare genetic defect known as MDDS, which irreversibly deteriorated his condition to severe brain damage, immobility, deafness and ventilation by artificial means alone. Established under The Children Act 1989, institutional authorities (hospitals, governments) were assigned with giving the final decision on whether a young patient could live, designed to safeguard parents from protecting their own needs rather than what was best for their child.

Whilst Charlie’s parents wanted their precious child to live, all courts of appellate jurisdiction, along with the doctors at Great Ormond Street Hospital, at which Charlie was kept on the life support, thought it was in Charlie’s best interests to end his life rather than allow his quality of life to be irrevocably poor.

So, who should we trust to give the final say about a child’s well-being? Should families, who have given birth to the child, their possession, be given the legal responsibility to overrule the state in their decision? Of course, this brings moral implications, such that the parents would not want to say goodbye to their child and therefore not act in his/her’s best interests.

Let’s now bring in another scenario, whereby the patient is of adult age. Tony Bland sustained detrimental injuries from the Hillsborough Disaster in 1989, which left him in a permanent vegetative state (PVS) until his death in 1993. It was eventually ruled in the House of Lords that the Artificial Nutrition and Hydration (ANH), that was prolonging him living, should end to allow Bland to “die in dignity” (Court order). This case differs from the Charlie Gard case as both the parents and the doctors thought withdrawing ANH was in Tony’s best interests.

Despite differences, the Bland case elucidates the complexity involved in euthanasia cases in the UK. Was it morally right for the state to prevent Gard’s parents from allowing experimental treatment to be made in the hope of keeping their son alive, despite his physical and mental state? Was it morally right for the court to give consent to the withdrawal of ANH and allow Tony to die? How would the result differ if it was unsure how long he would be in a vegetative state for?

Let us assess one last scenario. Terminally ill man Noel Conway, aged 67, launched a legal challenge for his own right to die. He was diagnosed with motor neurone disease, which has meant his ability to move, dress, eat and even breathe has irrevocably diminished. Noel condemned Section 2(1) of the Suicide Act 1961, which prohibited assisted suicide (voluntary euthanasia) under UK law, outlining his deteriorating quality of life and the prospect of “unimaginable suffering”. As he strongly remarks, “Current law means that I will have no control of how my life ends”.

We are once again asking ourselves where ultimate authority lies in determining the end of one’s life. This global complexity should never be looked on lightly and all cases of similar note should be looked at distinctly and intricately.

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