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Legal Environment - Popeye v Spinach Tankers Ltd. The appellant claimed damages under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 due to the sinking of a vessel caused by the negligence of the defendants.

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Legal Environment Coursework

Part A

  1. The Material Facts

The appellant claimed damages under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 due to the sinking of a vessel caused by the negligence of the defendants. The appellant accused the design and construction of the vessel being defective, making it unseaworthy. The appellant claimed the defects were defects in ‘equipment’ provided by the defendants for the purpose of their business within the Employer’s Liability (Defective Equipment) Act 1969. The defendants claimed ‘Equipment’ did not include the vessel within the meaning of the Act.

  1. The Legal Issue(s)

The definition of the word ‘equipment’ within the meaning of the Employer’s Liability (Defective Equipment) Act 1969, S.1(3), to be given a restricted interpretation, so as to require the word only to be applied to vehicles and aircrafts, omitting reference to water transport, and merely constituting it being the employees ‘workplace’. Alternatively, does the definition of the word ‘equipment’ require to be given a wider meaning, as to include the ship as constituting equipment within the meaning of ‘plant and machinery’ under S.1(3) of the Act, as it is essential equipment for a ship-owner to carry out business and for business to take place on. Does vessel cease to be ‘equipment’ within S.1 of the Employer’s Liability (Defective Equipment) Act 1969.

  1. Techniques to Statutory Interpretation

Lord Oliver employed:

The Literal rule – [Line 82] “...word in its natural meaning denoted something ancillary to something else”

Also, [Line 100] “one would talk naturally of a fleet being ‘equipped’ with battleships, cruisers and destroyers or of the ‘equipment’ of an expedition as including supply ships...”

Also, [Line 176] “some ‘plant and machinery’ would be properly described as ‘equipment’ even in the most ordinary use of the term...”

The Golden rule – [Line 172] “...must have been inserted for clarification and the avoidance of doubt.”

The Purposive approach – [Line 169] “It must have been inserted in the statute either for the purpose of enlarging the word by including in its articles...”

Also, [Line 177] “...the purpose of the express inclusion of plant and machinery can, I think, only have been to make it clear that every type of plant and machinery is to be regarded as equipment within the meaning of the 1969 Act.”

Noscitur a Sociis employed – meaning of word gathered from statutory context, [Line 80] “in the context of this Act, a ship was part of the ‘equipment’ of the business of a shipowner.” Particular reference to S.1(1) and (3).

Also [Line 179] “plant and machinery is to be regarded as equipment within the meaning of the 1969 Act.”

  1. Aids to Interpretation

Intrinsic:

S.1(1)

S.1(1)(a)

S.1(3)

Extrinsic:

Capital Allowances Act 1968 - S.31

Hovercraft Act 1968 - S.4(1)

Merchant Shipping Act 1894 - S.458, S.503

Occupiers’ Liability Act 1957

Case Law – Davie v New Merton Board Mills Ltd [1959]

Yarmouth v France [1887]

                   Munby v Furlong (Inspector of Taxes) [1977]

Oxford English Dictionary – [Line 90] “Indeed there is nothing in the entry in the Oxford English Dictionary...”

  1. The Ratio Decidendi

In terms of the Act, particular types of chattel should not be excluded merely due to their size or the aspect on which they have been designed to operate, as there is no functional difference between vessels of different types which enables a line to be sensibly drawn. Under the Employer’s Liability (Defective Equipment) Act 1969, employers should be held responsible for providing employees with defective plant in the course of employment.

Part B        

The Crown Prosecution Service, created by way of the Prosecution of Offences Act 1985, have the duty of charging individuals with criminal offences. The CPS would be provided with ‘The Code for Crown Prosecutions’, under S.10 of the POA 1985, which contains guidance on general principles that should be applied when making decisions about whether the prosecution against Steven is appropriate or not. ‘The Full Code Test’ is applied, and split into two stages; the ‘evidential’ stage and the ‘public interest’ test.

When proceeding through the evidential stage, the CPS must make sure there is a ‘realistic prospect of conviction’, which involves deciding whether the available evidence would induce the trier of fact to be more likely than not to convict Steven of the alleged offence of sexual harassment contrary to S.3 of the Sexual Offences Act 2003. The prosecutor must consider two questions; can the evidence be used in court? And, is the evidence reliable? In Steven’s case, the evidence is useable and admissible in court, as Rachael gathered recordings of Steven’s inappropriate behaviour towards her from a camera and audio recording equipment, and also the evidence was gathered in a lawful manner. Reliability of the evidence would need to be considered, which would be done by the prosecutor taking account of five points that the Code lists. This is positively satisfied, as the points taken into account would be irrelevant, for example, Steven’s age or mental ability. So, the evidential test has been satisfied.

In order for Steven to be prosecuted, it would be determined whether the prosecution of Steven’s offence would be in the public interest. Factors for and against prosecution must be considered, and to aid this decision, the Code lists factors that should be taken into account, dependent upon the individual facts of the case. The factors in this case would be that there are grounds for believing that the offence carried out by Steven is likely to be continued or repeated, as the actions were recurring, as Rachael gathered evidence of the offence being committed on numerous occasions. Steven, an associate partner, was in a position of authority in comparison to Rachael, junior staff. Prosecution would have significant positive impact on maintaining community confidence, as it would be displaying an act to reduce the number of sexual offenders and sexual assaults being committed within the community. Therefore the factors for prosecution would probably outweigh the factors against prosecution, and it would be highly likely that Steven would be prosecuted and an appropriate charge would be decided.

        Bail hearings are generally heard by the magistrates’ court (MC), although the Crown Court (CC) can hold and grant bail in cases where the defendant has been committed or sent for trial or sentence in the Crown. The MC can deal with any bail issues relating to all offence classifications at first instance.

        The Bail Act 1976 governs the granting of bail, S.4 sets out the defendant is given statutory presumption in favour of being granted bail under subs.(1). As Steven has committed an either-way offence contrary to S.3 of the SOA 2003, presumptions of bail would be statutorily removed, unless exceptional circumstances are present to justify granting bail. Steven would not automatically be granted bail; neither would it be denied outright, as this could breach his human right of being innocent until proven guilty.

        The court deals with these issues by following exceptions to the general presumptions of bail, set out in Sch.1, para.2 of the BA 1976. Steven could be refused bail if the court had reason to believe he would; fail to surrender to custody, commit offences while on bail (R. v Mansfield Justices Ex p. Sharkey [1985]), or interfere with witnesses or otherwise obstruct the course of justice. The court would have to take the seriousness of Steven’s offence into account, and also his character, any antecedents he may have, his previous bail records if possible, and his ties with the community. The court must have substantial grounds for believing that Steven would fall into one of these exceptions, a hunch based on little evidence would be insufficient to rebut the presumption to bail. Steven’s allegations are considered serious as the offence is either-way. The court has strong evidence of this factor being fulfilled, as Rachael provided numerous recordings of Steven’s inappropriate behaviour, which could be used for evidence for Steven’s bail being withheld. Using this evidence to refuse bail would ensure the courts are not in breach of the European Convention of Human Rights. Due to the seriousness of the offence committed, and the sufficiency and reliability of the evidence provided to prove this, it would be unlikely that Steven would be granted bail.

        If the court decided to refuse bail, Steven would be allowed to make a further application at a subsequent hearing, initially two attempts are allowed to secure bail. If Steven’s second application is refused, the court would not be obliged to hear any further applications submitted, unless there was a change in circumstances in relation to Steven or the case. After being refused by the magistrates’, Steven could make an application to the CC under S.81 of the Supreme Court Act 1981. A full bail hearing would be held within 48 hours of the rejection of the application by the magistrates’. The prosecution would be entitled to appeal against the granting of bail to Steven, as the offence he is charged with is potentially an imprisonable one.

Steven has committed an either-way offence, which is in between a summary offence and an indictable only offence. Summary offences are usually heard at the MC, whereas indictable only offences are heard at the CC, and an either-way offence must end up at one of these destinations, as explained below.

The first court hearing to take place is known as a ‘plea before hearing’, which is heard at the MC. This is a preliminary hearing, Steven’s plea would be formally taken, and no matters of substantive law would be heard. The procedure on a plea before venue hearing is contained in S.17A of the MCA 1980. At the hearing, the charges of sexual harassment would be put before Steven, and if pleaded guilty, would be dealt with summarily and the magistrates may pass sentence without hearing any evidence. If they felt their sentencing powers were insufficient, the case could be taken to the CC for sentence under S.3 of the Powers of Criminal Courts Act 2000. Steven would then have a sentence imposed upon himself as if he had been tried on indictment. If Steven pleaded not guilty, a ‘mode of trial’ hearing would be conducted in order to establish which court will hear the case. The procedure for this is set out in the MCA 1980, between SS.17A to 21. Statutory factors would be determined in order to decide whether the case should remain in the MC or be sent to the CC for trial. S.19(3) explains the court should consider factors such as the nature of the case, circumstances of the offence, whether the MC would have sufficient sentencing powers, and any other relevant circumstances. As Steven has committed sexual harassment, the nature of the case would be considered as being very serious, and due to the offence occurring various times, the circumstances are also quite serious. In order for the appropriate mode of trial to be chosen, the magistrates have access to the National Mode of Trial Guidelines 2004, found in the Consolidated Criminal Practice Direction [2002].

If this particular case was suitable to be dealt with summarily, the procedure under S.20 of the MCA 1980 would proceed. Steven would have the right to ask for an indication of sentence before deciding upon whether to consent to a summary trial or elect for a CC trial.

‘Plea-bargaining’ may also take place, where Steven may be able to plead guilty in order to face a much lower sentence, R. v Turner [1970].

To determine the facts of the case, a Newton hearing would take place, following principles set out by Lord Lane C.J. in the case of Newton (1983). The issue of whether Steven only touched Rachael’s bottom and breasts over her clothing, and only on three occasions would have a different effect on his sentence than if the offence was more severe as prosecution have put forward. Therefore, it is important the issue is resolved by this hearing.

The Newton hearing involves the judge or magistrates listening to evidence called by both sides, and then reaching a conclusion based upon the facts given. This involves calling witnesses from either side, e.g. the managing partner that Rachael had complained to, or other colleagues working within the solicitors firm. Rachael would be required to prove her version of the events beyond reasonable doubt, and any element of doubt will be given to Steven, unless his version is completely unbelievable, R. v Hawkins (1985). This means that Rachael would need to provide the court with exact evidence of Steven assaulting her at least eight times, putting his hand inside her shirt and trousers, and simulating having sexual intercourse with her. If she is not able to do this, the court would reach the conclusion that Steven’s facts are correct, and they would sentence him based on those particular facts.

James & Co Ltd’s claim for defamation would commence in the High Court, as these matters must only be dealt with in this particular court. The High Court is split into three divisions, each specialising in different areas of civil law. The division this claim would be dealt within is the Queen’s Bench Division. Lord Woolf created three new civil court tracks in order to allocate cases to the most appropriate court. As James & Co Ltd are looking for a six-figure compensation sum, the claim would be considered to be in the multi-track track in the civil justice system, as the claim exceeds the sum of £15,000.

Rachael has a number of options available to her in order to help fund her defence case. From introduction of the Access to Justice Act 1999, under S.1(1) the Legal Services Commission was established, and are in charge of administering the legal aid system in England and Wales. One option for Rachael may have been acquiring funding from ‘Community Legal Service’, but as stated in Schedule 2, S.1(f) of the AJA 1999, “defamation or malicious falsehood” is an excluded service. As Rachael is not able to acquire funding in this way, she would need to consider the possibilities of raising private funds. If this is not available, Rachael’s next option would be to enter into a conditional fee agreement, and under S.58A(1) of the Courts and Legal Services Act 1990, she would be entitled to this.

Rachael would enter into a CFA with a solicitor so that the legal costs in the case implemented by James & Co would be covered. If Rachael does not win the case, she will not be liable to pay any of the solicitors’ costs, whereas if she did win the case, she would be liable to pay them, as well as a pre-agreed success fee, which is calculated as a percentage of the solicitors’ fee for the work. The percentage of the success to be set on the risks involved in the case is calculated by the solicitor, which would determine the fee payable. If Rachael was to lose her case, there could be huge cost implications for her to deal with. Rachael could take out ‘after-the-event insurance’, which would mean the insurance company are liable to pay all reasonable costs incurred by the winning party. The costs could also include James & Co’s solicitors’ fees, any success fee agreed as long as it is of a reasonable amount, and any premium paid out for after-the-event insurance obtained. Considering the potential cost implications for Rachael if the opposition were to succeed their claim, remembering to take out after-the-event insurance would be a vital step to take.

Word Count: 2000


Bibliography

Boylan-Kemp, J., 2008. EnglishLegal System: The Fundamentals. 1st ed. London: Thomson Sweet & Maxwell

Slapper, G. and Kelly, D., The English Legal System. 10th ed. London: Routledge Cavendish.

http://www.hse.gov.uk/enforce/enforcementguide/court/magistrates-hearing.htm

http://www.cps.gov.uk/

Legal Environment Module Book: Part One

Legal Environment Module Book: Part Two

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