Assess the impact of the introduction of the Human Rights Act 1998 on the rights of an individual in the UK.
Human Rights Act 1998 European Convention of Human Rights(ECHR) is drawn up by the Council of Europe after World War 2. The European Court of Human Rights is located at Strasbourg. The Convention sets out the rights and basic freedoms that people are entitled to expect. The Human Rights Act 1998(HRA) incorporates the rights enshrined by the European Convention of Human Rights into domestic law. Prior to the Human Rights Act 1998, a person can bring a case to court when the state has ratified the Convention. If a breach of rights is recognised by courts, UK will then amend their laws (that are in contrast with the ECHR), this may be expensive and slow. As the ratification of the Convention is not incorporation into domestic law, there is supremacy of the Parliament, hence judges have no jurisdictional basis on which they could employ the Convention. In the R v Inland Revenue Commissioner’s case it was held that will of parliament is upheld where the statute is clear and unambiguous. This position changed radically with the passing of Human Rights Act incorporating the Convention into domestic law. The Human Rights Act protects the rights such as the right to life (Article 2).There is no violation where a loss of life is due to reasonable self-defence and necessary for lawful arrest. However, the scope of Article 2 is broad and vague and it is unclear as to the duty that
Equity serves to fill in the gaps of Common Law. Discuss
Equity Zhiling. Equity serves to fill in the gaps of common law. The word equity itself means fairness. In the 12th century, litigants could bring a case to court based on the cause of action and the grounds of the claim. New writs were created to fit new circumstances. However in the 13th century, common law began to be rigid and litigants had to fit the circumstances into the existing writs. This is did not uphold morality as it meant that people were unable to bring an action to court (cannot seek justice) if it did not fit into any of the existing writs. Common law had to follow precedent and offered only damages which were inadequate. Dissatisfied parties petitioned the king who passed the cases to Lord Chancellor. Slowly the people started to petition the Lord Chancellor himself and he started to judge cases based on his own moral view (idea of fairness), thus created the Court of Chancery. The court allowed admittance of the oral evidence that promotes flexibility, justice and fairness. This is more flexible than common courts which only allowed the admittance of oral evidence in the 16th century. Equity soon began to develop case laws and precedent had to be followed which made equity no less rigid than common law. The Judicature Act of 1873-1875 established that both common law and equity could be administered in the same courts. Hence equity became rigid and may
Sentencing Notes
SENTENCING Judges have discretion as to what sentences they choose to impose on offenders. Under Criminal Justice Act 2003, they must consider the aims of the sentencing in relation to the particular offence and the particular offender: zling The aims of sentencing is set out below: . Protection of public 2. Punishment of offender 3. Compensation to the victim 4. Reduction of Crime(deterrence) 5. Reform and rehabilitation of the offender The punishment of offender is based on the principle of retribution which states that the offender deserves to receive a punishment that is in proportion to his crime. This applies the mentality of ‘an eye for an eye’ and ensures that the offender pays for his offence. This justifies the death penalty for cases such as manslaughter. It does not aim to reform or rehabilitate the offender and merely satisfies a sense of revenge for the victims. It contains the principle of denunciation which reflects societal disapproval at the offender’s act. Example of punishment may include imprisonment, community sentences or fines. Denunciation was previously an aim of the sentencing but this has changes over the years. Tariff Sentences are guidelines used to set what offences and the range of the sentence that is appropriate for certain crimes. Protection of public is an aim that aims to protect the public from the offender’s future
Weakness in the Jury System
WEAKNESSES IN JURY SYSTEMzl There are several weaknesses in the jury system. There are problems with the selection of jury. Firstly, electoral registers tend to be inaccurate. They underreport the number of ethnic minorities and young people. This excludes them from being selected. Also, random selection does not equate to equal representation. Although there are efforts made to ensure that it was as random as possible, all white, all male, all women juries are possible. This does not guarantee that jury come from all walks of society. z Judge may also discretionary excuse some of the jury if they have booked holidays, childcare problems, business meetings. However it is a civic duty and complete excusal is rare. Defence and Prosecution have the right to challenge anyone that they deem unsuitable. For example in the case of R v Smith, a blank defendant requested for a multiracial jury. This was rejected as jury have no right to interfere with the selection process. This is also the case In Rv Ford. On the other hand there are several weaknesses. There are problems in the selection process. Firstly, the electoral registors may be in accurate. It may under report the ethnic minorities and young people- hence excluding them to be selected. Next, random selection does not equal to equal representation. For example, all white, all men and all women juries are possible. This
Status of Terms in Warranties and Contracts
STATUS OF TERMS There are many different status of terms: warranties conditions and innominate term. The law seeks to classify legal terms according to their importance, with implication that a breah for the innocent party varying according to the type of term breached for these purposes. A condition is an essential term. It goes to the root of the contract, and is fundamental. A breach such term entitles the innocent party to repudiate the contract, so need not render any further performance, as well as claim for damages. In the case of Bunge Corp v Tradax Export, the seller contracted to sell to ship 5000 soya bean meal to the buyers. They were supposed to be given 15 consecutive days of notice, but was only given 13. The buyers obligations to give a notice was held to be a condition because it would be unfair to depricv the seller of the notice. There are certain types of terms that the law classify as conditions. For example the Sale of Good Act describe certain terms as conditions and it should never be breached. For example, goods must always match the description, always be of staidfactory quality, good bought in bulk must fit the sample. It should follow that in the event of a breach, a buyer should be able to rescind the contract. This protects the buyers from malicious sellers that have an unfair bargaining position over them In the case of Mihalis Angelos, the
Police Powers and the Rights of Arrested Persons Notes
The police would need to question suspect before they can retrieve any concrete evidence. The person has to be in custody before potential crime takes place to question the person further and obtain more information. It is important that ordinary people are not unnecessarily harassed by the police and that suspects are protected from overzealous police methods. Hence, several rights are given to individuals. In s.28 PACE and Caution Code C, arrested person must be informed that he is under arrest and grounds for arrest. The Caution for arrest must be given. This is to ensure that detainees know why they are arrested to prevent the abuse of police powers. This is illustrated in the case of Christie v Leachinsky’s case. The defendant charged without warrant was not given a reason for arrest. Hence, the arrest was unjustified and the person could claim damages for false imprisonment. This upheld the rights of individuals. Under s.34 Criminal Justice and Public Order Act, detainees are given the right to remain silent. However, if the detainee has consulted a lawyer, inferences could be drawn. This was upheld in the Rice v Connolly case. The appellant was convicted for obstruction a police in execution of his duty. However, his conviction was quashed as nobody is obliged in common law to answer police questions. Hence, protection is given to individuals as they have
Police Powers Notes
Evaluate the protection given to persons taken into custody for questioning by the police. Do you think it is adequate?zl The police are given various powers to investigate crime. However, it may be at the expense of individual’s rights. The laws are mainly contained in the Police and Criminal Evidence Act (PACE)1984 and the Codes of Practice. Before PACE, police powers was spread across 70 Acts of Parliaments which caused much confusion of what they could and couldn’t do, and may have led to police abusing powers. Police have powers to stop and search people and vehicles in a public place under s1-7 of PACE. This includes car parks, and private gardens,( if the police officer has grounds to believe that the suspect does not live at that address). To use this power under PACE, the officer must have reasonable grounds for suspecting that the person is in possession of stolen articles. However, what amounts to ‘reasonable suspicion’ is very subjective and depends on the individual officer. As it is difficult for citizens to question police’s decisions, police are given a lot of powers under this act. However, in Osman v DPP, the officers failed to provide their name and station. Hence, it was held that the search of Mr Osman was unlawful. The requirement of providing the officer’s name and station protects the individual rights of citizens as it may deter police
That wrongdoers should be liable for their own actions is a fundamental principle on which the law of tort is based. Critically analyze how to concept of vicarious liability might seem to contradict this principle and explain why.
That wrongdoers should be liable for their own actions is a fundamental principle on which the law of tort is based. Critically analyze how to concept of vicarious liability might seem to contradict this principle and explain why. The law of tort is based on the principle that tortfeasor should be held liable for their own acts that caused harm to another. However, Vicarious Liability contradicts this principle, they hold another person liable for the acts that the tortfeasor has done, even though he may not even know that act has been done. This seems to be very unfair but in reality there are a few reasons why this is necessary. For someone to be vicariously liable for the acts of another there must be a relationship between both parties- this justifies giving the latter responsibility for the acts of the former. In order to decide whether vicarious liability applies in a particular situation, the cout would have to address two questions: was the person who committed the tort an employee of the defendant and was the tort committed in the course of that person’s employment? If this two conditions are satisfied only can another person be held jointly liable for the acts of another. In the case of Ready Mixer Concrete v Minister of Pensions, the claimants were lorry drivers who did work for the defendants manufacturing company. They use lorries which had the company’s
The impact of exclusion clauses on the consumer of goods and services in England and Wales is no longer of any significance. Critically analyse the statutory controls that exist over the use of exclusion clauses and assess the truth of this statement.
The impact of exclusion clauses on the consumer of goods and services in England and Wales is no longer of any significance. Critically analyse the statutory controls that exist over the use of exclusion clauses and assess the truth of this statement. Exclusion clauses are a clause that is included in a contract which seeks to limit the liability that one party owes to another. The courts recognize that there is a need for businesses to impose a financial ceiling on a contract, in order to limit the risk when entering into a contract. This is generally recognized by the freedom of contract however business, with their unfair bargaining position may take advantage of consumers, hence there exist statutory controls to govern the use of exclusion clauses. The Unfair Contract Terms Act 1977 has a significant effect on exclusion clauses. It imposes statutory limits on the avoidance of civil liability through exclusion clauses in business contracts. It only works when one of the parties were dealing as a consumer and another is not. It is interpreted widely, including businesses which are dealing as consumers. l However, the control may not extend to exclusion clauses that are not incorporated into the contract. In the case of R & B Custom Brokers case, the defendants was a shipping company who had purchased zlsome cars, which was merely incidental to their business and not
Entry to anothers land without permission is never justifiable and is always actionable per se. Discuss the above view of the tort of trespass to land.
Trespass to land occurs where a person directly enters upon another's land without permission, or remains upon the land, or places or projects any object upon the land. This tort is usually actionable per se as claimants do not need to prove damage. By contrast, nuisance is an indirect interference with another's use and enjoyment of land, and normally requires proof of damage to be actionable. With regards to trespass on highways, in Hickman v Maisey, it was traditionally thought that anyone who uses the highway for any other purpose (abuse) becomes a trespasser. This means use other than for passing and repassing and other incidental use which does not interfere with, or obstruct, the highway. In DPP v Jones, the defendants had staged a demonstration at the side of the road. None were behaving in a destructive or violent way, and nobody else using the highway was obstructed by their presence. It was held that the public highway is a public place which the public may enjoy for any reasonable purpose, provided that the activity in question does not amount to public or private nuisance and does not obstruct the highway by unreasonably impending the primary right of the public to pass and repass; within these qualifications there is a public right of peaceful assembly on the highway. Therefore, the entry of such land without explicit permission is justifiable and not always
