12. Theft

2020 ◽  
pp. 356-406
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Civil Law ◽  
The Supreme Court ◽  
The Law ◽  
Definition Of ◽  
Court Of Appeal

This chapter examines the law governing theft. It considers the extent to which the criminal law of theft conflicts with civil law concepts of property; whether it is possible to steal property that belongs to oneself; the types of property that may be stolen; and the extent to which it is possible to provide a definition of ‘dishonesty’. The test for dishonesty has been fundamentally altered by the Supreme Court and the Court of Appeal, developments which are analysed in this chapter.

PERSINGGUNGAN KEWENANGAN MENGADILI PENYALAHGUNAAN DISKRESI ANTARA PENGADILAN TUN DAN PENGADILAN TIPIKOR / INTERCEPTION OF JUSTICE AUTHORITY OF DISCRETION ABUSE BETWEEN ADMINISTRATION COURT AND CORRUPTION COURTS

2018 ◽  
Vol 7 (2) ◽  
pp. 213
Author(s):  
Budi Suhariyanto
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Administrative Law ◽  
The State ◽  
Government Officials ◽  
Criminal Process ◽  
The Supreme Court ◽  
State Finance ◽  
The Law ◽  
To Receive

Diskresi sebagai wewenang bebas, keberadaannya rentan akan disalahgunakan. Penyalahgunaan diskresi yang berimplikasi merugikan keuangan negara dapat dituntutkan pertanggungjawabannya secara hukum administrasi maupun hukum pidana. Mengingat selama ini peraturan perundang-undangan tentang pemberantasan tindak pidana korupsi tidak merumuskan secara rinci yang dimaksudkan unsur menyalahgunakan kewenangan maka para hakim menggunakan konsep penyalahgunaan wewenang dari hukum administrasi. Problema muncul saat diberlakukannya Undang-Undang Nomor 30 Tahun 2014 dimana telah memicu persinggungan dalam hal kewenangan mengadili penyalahgunaan wewenang (termasuk diskresi) antara Pengadilan Tata Usaha Negara dengan Pengadilan Tindak Pidana Korupsi. Pada perkembangannya, persinggungan kewenangan mengadili tersebut ditegaskan oleh Peraturan Mahkamah Agung Nomor 4 Tahun 2015 bahwa PTUN berwenang menerima, memeriksa, dan memutus permohonan penilaian ada atau tidak ada penyalahgunaan wewenang (termasuk diskresi) dalam Keputusan dan/atau Tindakan Pejabat Pemerintahan sebelum adanya proses pidana. Sehubungan tidak dijelaskan tentang definisi dan batasan proses pidana yang dimaksud, maka timbul penafsiran yang berbeda. Perlu diadakan kesepakatan bersama dan dituangkan dalam regulasi tentang tapal batas persinggungan yang jelas tanpa meniadakan kewenangan pengujian penyalahgunaan wewenang diskresi pada Pengadilan TUN.Discretion as free authority is vulnerable to being misused. The abuse of discretion implicating the state finance may be prosecuted by both administrative and criminal law. In view of the fact that the law on corruption eradication does not formulate in detail the intended element of authority abuse, the judges use the concept of authority abuse from administrative law. Problems arise when the enactment of Law No. 30 of 2014 triggered an interception in terms of justice/ adjudicate authority on authority abuse (including discretion) between the Administrative Court and Corruption Court. In its development, the interception of justice authority is affirmed by Regulation of the Supreme Court Number 4 of 2015 that the Administrative Court has the authority to receive, examine and decide upon the appeal there is or there is no misuse of authority in the Decision and / or Action of Government Officials prior to the criminal process. That is, shortly before the commencement of the criminal process then that's when the authority of PTUN decides to judge the misuse of authority over the case. In this context, Perma No. 4 of 2015 has imposed restrictions on the authority of the TUN Court in prosecuting the abuse of discretionary authority.

Transforming the Law on Psychiatric Lesions

2021 ◽  
Vol 2021 (2) ◽  
pp. 253-271
Author(s):  
Emile Zitzke
Keyword(s):  
Supreme Court ◽  
Expert Witnesses ◽  
The Supreme Court ◽  
Psychological Harm ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Delict ◽  
Court Of Appeal ◽  
Made In

In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.

scholarly journals The Law Regarding Pension Interest in South Africa has been settled! Or has it? With Reference to Ndaba v Ndaba (600/2015) [2016] ZASCA 162

2017 ◽  
Vol 20 ◽  
pp. 1
Author(s):  
Motseotsile Clement Marumoagae
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
High Court ◽  
The Supreme Court ◽  
Golden Opportunity ◽  
The Law ◽  
Court Of Appeal

This article reflects on the law relating to pension interest in South Africa. In particular, it assesses whether the Supreme Court of Appeal in Ndaba v Ndaba had adequately clarified how this area of law should be understood. In light of the inconsistent approaches from various divisions of the High Court, it has not always been clear how the courts should interpret the law relating to pension interest in South Africa. In this paper, aspects of this area of law which have been clarified by the Supreme Court of Appeal are highlighted. This paper further demonstrates aspects of this area of law which the Supreme Court of Appeal did not settle and would potentially be subject to future litigation. This paper is based on the premise that while Ndaba v Ndaba is welcomed, the Supreme Court of Appeal nonetheless, missed a golden opportunity to authoritatively provide a basis upon which the law relating to pension interest in South Africa should be understood. 

The Origins of the Re Hastings-Bass Rule

2015 ◽  
Author(s):  
Michael Ashdown
Keyword(s):  
Supreme Court ◽  
Present State ◽  
Practical Importance ◽  
Future Application ◽  
Precise Nature ◽  
The Supreme Court ◽  
The Future ◽  
The Law ◽  
The Many ◽  
Court Of Appeal

The present state of the law must now be treated as authoritatively set out by Lord Walker in Pitt v Holt, and to a lesser but still important extent by the earlier judgment of Lloyd LJ in the Court of Appeal in the same case. This chapter, however, is concerned with the earlier development of the Re Hastings-Bass doctrine. Its purpose is to establish the doctrinal legitimacy of the rule in Re Hastings-Bass as an aspect of the English law of trusts. Whilst this is primarily of academic and theoretical concern, in view of the Supreme Court’s reformulation of the law into its present shape, it is also of practical importance. In particular, the future application of the doctrine to novel situations will depend upon understanding the precise nature and scope of the rule propounded by the Supreme Court. That decision cannot simply be divorced from the many decided cases which preceded it, and from its place in the wider compass of the law of trusts.

The Nature of the Re Hastings-Bass Duty

2015 ◽  
Author(s):  
Michael Ashdown
Keyword(s):  
Supreme Court ◽  
Future Development ◽  
The Supreme Court ◽  
The Future ◽  
The Law ◽  
Matters Of Concern ◽  
Court Of Appeal ◽  
Relevant Consideration ◽  
Two Alternatives

Lord Walker’s analysis in Pitt v Holt in the Supreme Court accords in all essential respects with the reasons put forward in Chapter 3 to prefer a duty (‘weak’) rather than results-oriented (‘strong’) account of the Re Hastings-Bass rule, as does the approach adopted by Lloyd LJ in the Court of Appeal, which Lord Walker expressly endorses. Yet Lord Walker’s judgment does not yet provide a wholly comprehensive basis for the future development of the law. There remain a number of loose ends, arising predominantly from issues not specifically before the court in Pitt, but which have been matters of concern in earlier Re Hastings-Bass cases, including: how a ‘relevant consideration’ is defined; the significance of establishing that the trustees ‘would’ or ‘might’ have acted differently, in view of Lord Walker’s refusal to choose between these two alternatives; the specific problems arising from the use of professional advisers, and in cases concerning tax liability and pension trusts. These matters are addressed in detail in chapters 5 to 8. But in order to do this it is first necessary to clarify the juridical nature of the ‘duty of consideration’ upon which Lord Walker’s analysis depends.

scholarly journals Alberta's Court of Next-to-Last Resort: Appeals from the Alberta Court of Appeal to the Supreme Court of Canada, 1970-1990

1969 ◽  
pp. 861
Author(s):  
Peter McCormick
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Success Rates ◽  
The Supreme Court ◽  
The Law ◽  
Statistical Survey ◽  
Court Of Appeal

This paper reports the results of a statistical survey of the success rates of appeals to the Supreme Court of Canada. Appeals from all provinces were examined, but in his analysis Professor McCormick focuses on the Alberta Court of Appeal. The variables he discusses include the geographic and political composition of the Supreme Court, the mix of cases from different areas of the law, the length of experience of Court of Appeal judges, and the presence or absence of dissenting opinions.

scholarly journals Implikasi Putusan Hakim Dalam Penetapan Sanksi Di Bawah Minimum Terhadap Tindak Pidana Narkotika

2019 ◽  
Vol 3 (1) ◽  
pp. 129-146
Author(s):  
Endy Ronaldi ◽  
Dahlan Ali ◽  
Mujibussalim Mujibussalim
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Research Method ◽  
Court Decisions ◽  
The Supreme Court ◽  
The Law ◽  
The One ◽  
Principle Of Legality

Tindak pidana narkotika merupakan kejahatan luar biasa sehingga menjadi prioritas pemerintah untuk diperangi. Penanggulangan tindak pidana narkotika diatur dalam Undang-Undang No. 35 Tahun 2009 tentang Narkotika. Salah satu pengaturan dalam undang-undang tersebut adalah pemberian sanksi di bawah minimum melalui putusan hakim. Sebagaimana kasus yang terjadi dalam Putusan Nomor 64/PID/2012/PN Sigli, Putusan No. 1/pid.sus/2016/PN Cag. (narkotika) dan Putusan No. 14/pid.sus/2016/PN Cag. Adapun permasalahan yang dikaji yaitu faktor penyebab hakim memutuskan sanksi di bawah minimum kepada pelaku narkotika dan implikasinya. Metode penelitian yang digunakan adalah metode yuridis normatif dengan mengkaji aspek normatif atas permasalahan yang dikaji. Pendekatan yang dilakukan adalah pendekatan kasuistik dengan menelaah putusan pengadilan. Putusan pengadilan dengan penetapan sanksi di bawah minimum disatu sisi bertentangan dengan asas legalitas dalam hukum pidana. Sehingga hal ini diakomodir dalam Surat Edaran Mahkamah Agung No. 3 tahun 2015. Narcotics crimes are extraordinary crimes so that become government priorities to be minimized. Tackling narcotics crime is regulated in Law No. 35 of 2009 concerning Narcotics. One of the regulations in the law is to impose sanctions below the minimum through a judge's decision. As the case with is the Decision Number 64/PID/2012/PN Sigli. The problems studied are the factors that cause the judge to decide the minimum sanctions for narcotics and their implications. The research method used is a normative juridical method by examining the normative aspects of the problem under study. The approach taken is a casuistic approach by examining court decisions. Court decisions with the determination of sanctions below the minimum on the one hand are contrary to the principle of legality in criminal law. So that accommodated in the Supreme Court Circular No. 3 of 2015.

scholarly journals Be careful what you promise: Proprietary estoppel in Cowper-Smith v Morgan

2018 ◽  
Author(s):  
Jason Chin
Keyword(s):  
British Columbia ◽  
Property Rights ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Canadian Experience ◽  
The Supreme Court ◽  
The Law ◽  
Court Of Appeal

Proprietary estoppel provides one of equity’s most powerful remedies. Estoppel is an equitable doctrine which arises when one party acts on the reliance of the promise of another. The promise and corresponding reliance creates a quasi-contract with reliance acting as an alternative to the consideration usually required in contracts. Proprietary estoppel is distinct from other equitable estoppels in that a proprietary estoppel can act as a ‘sword’ and form the basis of a cause of action. If all of the parts of proprietary estoppel are made out, a court can modify or create property rights to satisfy the equity.With regard to the Canadian experience, the Court of Appeal for Ontario recently noted that proprietary estoppel has received “somewhat uneven treatment in Canada.” It is within this context that the Court of Appeal for British Columbia split on the proper scope for the Supreme Court of Canada. In Cowper-Smith v Morgan, the Supreme Court of Canada has both clarified the test for — and arguably expanded the scope of — proprietary estoppel in the context of promises exchanged between children over their mother’s care during her lifetime. The fact that a party lacks an interest in the disputed property at the time of the promise does not negate the obligation of fulfilling the promise. Instead, when the party responsible for the expectation has or acquires sufficient interest in the property, proprietary estoppel will attach to that interest and protect the equity. This article will discuss the law of proprietary estoppel in other jurisdictions and how the Supreme Court of Canada has infused this remedy with greater flexibility to satisfy the equity.

scholarly journals Binding Nature of the Supreme Court of the Russian Federation Explanations in Criminal Law

Lex Russica ◽  
2021 ◽  
pp. 95-107
Author(s):  
I. A. Klepitskiy
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Law ◽  
General Rule ◽  
Criminal Cases ◽  
Judicial Practice ◽  
The Supreme Court ◽  
Nulla Poena Sine Lege ◽  
The Russian Federation ◽  
The Law

The question of the legal nature and the binding nature of explanations of the Supreme Court of the Russian Federation remains debatable in the literature. When considering criminal cases, the courts do not always follow the decisions of the Plenum of the Supreme Court. It seems that the explanations of the Supreme Court, while not being a source of criminal law, are nevertheless binding on courts and officials applying the norms of criminal law. This is a general rule, to which there are exceptions. First, there are erroneous explanations of the Supreme Court, which are not based on the established judicial practice and are not supported by it. Second, there are outdated explanations of the Supreme Court that do not meet modern legal realities. Third, there are explanations of the Supreme Court, which, in relation to a particular situation, require an expansive or restrictive interpretation. In these three situations, the Supreme Court’s explanations do not bind the law enforcement officer. The binding nature of the Supreme Court’s explanations is determined by the value of the law as such. Questions of law require a uniform resolution. An alternative to a uniform interpretation of the law is arbitrary administration. Arbitrary administration is not within the competence of the judge. There is no case law in Russia. The works of legal scholars in modern Russia also cannot satisfy the need for a uniform interpretation of the law. The significance of the explanations of the Supreme Court determines the high requirements for their quality. The Supreme Court’s explanations should not directly contradict the law. The Supreme Court’s explanations should not change unless there is an urgent need to do so. The rule nullum crimen, nulla poena sine lege, being an achievement of legal culture, binds the Supreme Court. By clarifying the practice of applying the law, the Supreme Court forms and preserves judicial doctrine, thereby providing legal certainty.

The Present Law

2015 ◽  
Author(s):  
Michael Ashdown
Keyword(s):  
Supreme Court ◽  
Present State ◽  
Active Role ◽  
Starting Point ◽  
The Supreme Court ◽  
The Law ◽  
The Relationship ◽  
Court Of Appeal

The starting point for any consideration of the Re Hastings-Bass rule must now be the Pitt v Holt and Futter v Futter litigation, which culminated in the 2013 decision of the Supreme Court in both cases. The judgment of Lord Walker is the leading exposition of the rule, and is likely to remain so for some time. However, it is not helpful to read Lord Walker’s judgment in isolation. At first instance both Pitt v Holt and Futter v Futter were decided on the basis of law which seemed then to be well settled and entirely orthodox. However, unlike in any of the Re Hastings-Bass rule cases which preceded them, Her Majesty’s Revenue and Customs played an active role in the proceedings, and after the taxpayer succeeded at first instance in each case, obtained permission to appeal to the Court of Appeal. The present state of the law owes its shape largely to the judgment in that court of Lloyd LJ, in the first appellate decision on the Re Hastings-Bass rule, which reformulated the rule so as to accord with important principles of English equity and trusts concerning the relationship between trustees and beneficiaries, and the supervision of the court.

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