Act of State as a Defence Against a British Subject

1968 ◽  
Vol 26 (1) ◽  
pp. 102-130 ◽  
Author(s):  
J. G. Collier
Keyword(s):  
Constitutional Law ◽  
Attorney General ◽  
Recent Case ◽  
Correct Interpretation ◽  
House Of Lords ◽  
Difference Of Opinion ◽  
The Law ◽  
Court Of Appeal

The law surrounding the doctrine of act of state is perhaps one of the most confusing parts of constitutional law, for both its meaning and application are susceptible of several different interpretations. In particular the rule that act of state can be no defence against an action by a British subject, or, to put it more precisely, that there can be no act of state between the Crown and a British subject is one whose limits are not entirely clear. The recent case of Naim Nissan v. Attorney-General has brought the matter to the fore in what is thought to be a novel situation, wherein the question arose whether act of state can be a defence to an action by a British subject if the act has been executed by the Crown outside the Crown's dominions. The case gave rise to a difference of opinion between the judge at first instance and the Court of Appeal, and now that leave to appeal has been granted to the House of Lords, there arises an opportunity to examine act of state in several of its aspects.In this discussion it will be argued that the law as it appears now to stand is not necessarily a correct interpretation of the precedents, and that if it is, occasion now presents itself for a fresh formulation of the rules upon a more logical and up-to-date basis.It is first proposed to explain what is meant by the term “act of state” in this context, to try to establish its relationship with the prerogative, and to examine two aspects of it, that is (i) where a claimant is attempting to use an act of state as the foundation of his action, and (ii) where the Crown is attempting to defeat an action by an individual by the plea of act of state.

Res Ipsa Loquitur: The Australasian Experience

1954 ◽  
Vol 12 (1) ◽  
pp. 118-132
Author(s):  
D. P. O'Connell
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Burden Of Proof ◽  
House Of Lords ◽  
Difference Of Opinion ◽  
The Subject ◽  
The Law ◽  
Court Of Appeal ◽  
Res Ipsa Loquitur

Dr. T. Ellis Lewis in this Journal in 1951 discussed the operation of the maxim res ipsa loquitur in relation to the burden of proof and proposed certain conclusions. So thorough was his analysis of the question that one would hesitate to intrude upon the field but for the fact that the problems posed by his article and specifically left open by the House of Lords in Barkway's case have recently been considered by the New Zealand Supreme Court and Court of Appeal. A frank difference of opinion on the nature of res ipsa loquitur manifested itself in each court, and hence no excuse is offered for advancing this discussion, which can only be complementary to that of Dr. Ellis Lewis. Advantage will be taken of the opportunity to consider the Australian contributions to the subject. There is perhaps too little awareness in England that many of the academic battles of the law are regularly being fought out in the Australian and New Zealand courts.

scholarly journals Culpability, Kingston and the Law Commission

2010 ◽  
Vol 74 (5) ◽  
pp. 434-471 ◽  
Author(s):  
Cath Crosby
Keyword(s):  
Justice System ◽  
Criminal Liability ◽  
Character Theory ◽  
Criminal Offence ◽  
Pragmatic Approach ◽  
House Of Lords ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission ◽  
Do So

This article considers the basis upon which a person should be held to be criminally liable, and to do so, it is necessary to examine the leading theories of character and choice that underpin the State holding a person to be culpable of a criminal offence, i.e. the link between culpability and fault. The case of R v Kingston1 is used to examine the application of these leading theories and it is observed that choice theorists would not excuse such a defendant from criminal liability even though his capacity to make a choice to refrain from law breaking was made extremely difficult by external factors beyond his control. Only character theory could possibly offer exculpation in such circumstances on the basis that the defendant acted ‘out of character’ and his deed did not deserve the full censure and punishment of the criminal law. The Court of Appeal in R v Kingston would have been prepared to excuse, but the House of Lords, and most recently the Law Commission have adopted a pragmatic approach to the involuntarily intoxicated offender. This case serves as a reminder that while justice is the aim of the criminal justice system, it is not an absolute standard.

afterwards, the company's chairman agreed to the company being taken over by another company. The merchant bankers informed the appellant of the proposed take-over and told him that a public announcement would be made shortly but that until then the information was sensitive and highly confidential. The appellant promptly purchased 6,000 shares in the company and, following the announcement of the take over, made a substantial profit. He was charged with two offences of dealing in the securities of a company as a prohibited person, contrary to s1(3) and (4)(a) of the Company Securities (Insider Dealing) Act 1985 (subsequently replaced by Criminal Justice Act 1993, Pt V). The trial judge directed the jury to acquit the appellant on the ground that there was no evidence that he had 'obtained' the information, for the purposes of s1(3), since it had been given to him unsolicited. The Attorney General then referred to the Court of Appeal for its opinion the question of the meaning of 'obtained' in s1(3) of the 1985 Act. The Court of Appeal held that a person obtained information for the purposes of s1(3) and (4)(a) of the 1985 Act, even if he came by it without any positive action on his part. On the appellant's application the Court of Appeal referred the point to the House of Lords. where-(a)

2012 ◽  
pp. 185-188
Keyword(s):  
Criminal Justice ◽  
Attorney General ◽  
Trial Judge ◽  
Public Announcement ◽  
House Of Lords ◽  
Positive Action ◽  
Insider Dealing ◽  
A Company ◽  
Court Of Appeal

Surprisingly, there are no official authoritative series of law reports in England to equate with the Queen’s Printers copy of an Act of Parliament. The Stationery Office is responsible for publishing revenue, immigration and social security law cases. However, traditionally, law reports remain in the hands of private publishers. Today, there are numerous, often competitive, private publishers. Although there are no official series of law reports, the courts do respect some reports more than others. A long established, conventional rule is that a law report, if it is to be accepted by the relevant court as an authority, must be prepared by and published under the name of a fully qualified barrister. The greater accuracy of modern reporting, and the vetting by judges, necessitates longer delays before the cases are published. Also, the Law Reports only cover 7% of the cases in the higher courts in any given year. Interesting issues are: (a) who selects which cases to report? (b) how are they selected? Editors select the cases for inclusion in the series of law reports. These are highly trained lawyers, well acquainted with precedent and the likely importance of cases. During the past 150 years publishers of law reports have been generalists or specialists. Some law reports are annotated, particularly for the use of practitioners, others left without annotations, introductions, etc. In addition to reported cases, the Supreme Court Library contains thousands of files of unreported cases. In 1940, the Lord Chancellor’s Department prepared a report: The Report of the Law Reporting Committee. The Committee considered that, after editors had made their choices, ‘What remains is less likely to be a treasure house than a rubbish heap in which a jewel will rarely, if ever, be discovered’ (p 20). (Note the poetic language that forcefully carries the point.) Of course, today, there is a vast range of electronic retrieval systems for accessing details of thousands of unreported cases. This has caused its own problems and there was a legitimate concern that courts would be inundated with cases that did not really contain any new law, but which had been retrieved from electronic sources. In the case of Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC 192, the House of Lords took the step of forbidding the citation of unreported cases of the civil division of the Court of Appeal without special leave. The rule remains, however, that to be an accepted version that can be quoted in court the report must have been prepared and published by a barrister. When law students read law reports they must ask: (a) is this report the most authoritative version available? (b) are there fuller versions? (c) if unreported, does this case add to the law? Figure 4.2, below, sets out the types of reports available for the law student to consult.

2012 ◽  
pp. 78-79
Keyword(s):  
Law Students ◽  
Retrieval Systems ◽  
House Of Lords ◽  
The Supreme Court ◽  
Legitimate Concern ◽  
The Law ◽  
Law Student ◽  
Law Reports ◽  
Court Of Appeal ◽  
Vast Range

scholarly journals The good character ‘backstop’: directions, defeasibility and frameworks of fairness

Legal Studies ◽  
2020 ◽  
Vol 40 (4) ◽  
pp. 675-693
Author(s):  
Richard Glover
Keyword(s):  
Criminal Trials ◽  
European Court ◽  
Jury Verdicts ◽  
House Of Lords ◽  
Character Evidence ◽  
The Law ◽  
Grand Chamber ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

AbstractThis paper examines the law on good character evidence in criminal trials through a discussion of the important but under-analysed case of Hunter, in which a five-judge Court of Appeal sought to clarify the law on good character directions to the jury. However, it is argued here that the judgment conflicts with the leading House of Lords decision in Aziz. The paper considers how the court misinterpreted the law and, in particular, the defeasible nature of the rule in Aziz and the impact of the Criminal Justice Act 2003. As a result, the circumstances in which a good character direction will be provided have diminished significantly. It is argued that this has important implications for the right to a fair trial, as good character directions act as a ‘backstop’ against miscarriages of justice. They also form a vital part of the ‘framework of fairness’ considered necessary, in lieu of reasoned jury verdicts, by the Grand Chamber of the European Court of Human Rights in Taxquet v Belgium. Accordingly, it is contended that Aziz rather than Hunter should be followed so that, where there is evidence of good character, a direction is normally provided as a matter of law.

IMPLIED TERMS: THE JOURNEY OF THE MAN ON THE CLAPHAM OMNIBUS

2011 ◽  
Vol 70 (3) ◽  
pp. 607-622 ◽  
Author(s):  
John McCaughran
Keyword(s):  
Attorney General ◽  
Privy Council ◽  
The Law ◽  
Court Of Appeal

This article is about the implication of terms into contracts based upon the presumed intention of the parties. It is particularly concerned with the decision of the Judicial Committee of the Privy Council in Attorney General of Belize v. Belize Telecom Limited,1 a number of recent Court of Appeal decisions thereafter, and whether there has been any change in the law. Before getting to Belize, it is necessary to consider, as briefly as possible, what went before.

The Tort of Conspiracy and Civil Secondary Liability

1990 ◽  
Vol 49 (3) ◽  
pp. 491-514 ◽  
Author(s):  
Philip Sales
Keyword(s):  
House Of Lords ◽  
Narrow View ◽  
The Law ◽  
Secondary Liability ◽  
Court Of Appeal

The litigation in Metall und Rohstoff A.G. v. Donaldson Lufkin & Jenrette Inc. appeared to herald a much-needed review by the House of Lords of the torts of conspiracy to injure by lawful and unlawful means. Since that will not now take place, the law will for the present remain as the Court of Appeal in Metall und Rohstoff has interpreted the decision of the House of Lords in Lonrho Ltd v. Shell Petroleum Co. Ltd. (No. 2). The purpose of this article is to argue that there is an important division in principle between the tort of conspiracy to injure another by lawful means and the tort of conspiracy to injure by unlawful means, and that the rules governing liability for the former tort should be different from, and more limited than, the rules governing liability for the latter tort. Thus recent authority is questioned on the basis that the law in this area was properly set out in the older cases, but for reasons which lie buried and are not always expressly articulated in them. It will be the thrust of this article that the narrow view of the scope of conspiracy to injure by unlawful means which appears in the speech of Lord Diplock in Lonrho v. Shell (No. 2), as interpreted after full argument in the Court of Appeal in Metall und Rohstoff, is mistaken, and that the House of Lords (when eventually it has the opportunity to review these two decisions) should revive the distinction which existed between conspiracy to injure by lawful means and conspiracy to injure by unlawful means prior to 1982.

Bourhill v. Young

1944 ◽  
Vol 8 (3) ◽  
pp. 265-273 ◽  
Author(s):  
A. L. Goodhart
Keyword(s):  
Recent Case ◽  
Complete Agreement ◽  
Text Book ◽  
Difference Of Opinion ◽  
Nervous Shock ◽  
The Law

In an article in the Canadian Bar Review on the recent case of Bourhill v. Young Dr. Cecil Wright says that this is ‘one of the most important decisions in the law of tort which has appeared since Donoghue v. Stevenson.’ But, as he points out thereafter, it is difficult to determine from the speeches of the law lords exactly what principles it has established concerning the ‘ambit of risk’ or the extent of liability for nervous shock. That this doubt is fully justified is shown by the fact that Professor Winfield in his Text-book of the Law of Tort deals with the case in the section entitled ‘Remoteness of consequence (or damage)’ while Dr. Stallybrass suggests that it is primarily authority on the problem of negligence. Perhaps this difference of opinion reflects a certain degree of uncertainty in the judgments themselves, for their Lordships, although reaching the same conclusion, do not seem to have been in complete agreement concerning the grounds on which they did so.

Alternative Elements and Included Offences

1984 ◽  
Vol 43 (2) ◽  
pp. 290-305
Author(s):  
Glanville Williams
Keyword(s):  
House Of Lords ◽  
The Law ◽  
Court Of Appeal

The Decision of the House of Lords in Clarence Wilson alters the law of included offences, but the extent of its impact is unclear. The decision is of unhappy importance not only as a disconcerting specimen of the functioning of our final court of appeal but also because of its possibly serious effect on the. theory of indictments. It has been subjected to devastating criticism by Professor Smith, and awkward questions upon it have been raised by Mr. Emmins. This article will seek both to underline the criticisms by a closer examination of the opinion and to suggest a more limited interpretation of it than has previously been considered.

The Right to Indemnity between Master and Servant

1956 ◽  
Vol 14 (1) ◽  
pp. 101-111 ◽  
Author(s):  
J. A. Jolowicz
Keyword(s):  
Cold Storage ◽  
Common Law ◽  
Married Women ◽  
Law Reform ◽  
Recent Case ◽  
Legal Principle ◽  
The Common ◽  
The Law ◽  
The Right ◽  
Court Of Appeal

The proposition that a master, who has become liable for an injury caused by a servant acting in the course of his employment, can recover an indemnity from the servant is one which has been stated on a number of occasions, but until the recent case of Romford Ice & Cold Storage Co. v. Lister no clear authority could be cited in support. It is true that the master's rights against his servant have been canvassed in at least three modern cases, but in all of them the common law position has been obscured by the application of the Law Reform (Married Women and Tortfeasors) Act, 1935. In Romford Ice & Cold Storage Co. v. Lister, however, by what those interested in legal principle can only regard as a happy chance, it was necessary for the Court of Appeal to deal with the matter independently of the Act.

Sign in / Sign up

Export Citation Format

Share Document