DOCSLIB.ORG

Reforming Bribery – a Consultation Paper

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Reforming Bribery – a Consultation Paper The Law Commission Consultation Paper No 185 REFORMING BRIBERY A Consultation Paper The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Etherton, Chairman Mr Stuart Bridge Mr David Hertzell Professor Jeremy Horder Kenneth Parker QC Professor Martin Partington CBE is Special Consultant to the Law Commission responsible for housing law reform. The Chief Executive of the Law Commission is Steve Humphreys and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. This consultation paper, completed on 31 October 2007, is circulated for comment and criticism only. It does not represent the final views of the Law Commission. The Law Commission would be grateful for comments on its proposals before 20 March 2008. Comments may be sent either – By post to: David Hughes Law Commission Conquest House 37-38 John Street Theobalds Road London WC1N 2BQ Tel: 020-7453-1212 Fax: 020-7453-1297 By email to: [email protected] It would be helpful if, where possible, comments sent by post could also be sent on disk, or by email to the above address, in any commonly used format. We will treat all responses as public documents in accordance with the Freedom of Information Act and we may attribute comments and include a list of all respondents' names in any final report we publish. Those who wish to submit a confidential response should contact the Commission before sending the response. We will disregard automatic confidentiality disclaimers generated by an IT system. This consultation paper is available free of charge on our website at: http://www.lawcom.gov.uk/bribery.htm THE LAW COMMISSION REFORMING BRIBERY – A CONSULTATION PAPER CONTENTS Paragraph Page PART 1: REFORMING BRIBERY 1.1 1 Introduction 1.1 1 Objective 1.2 1 Terms of reference 1.4 1 The problems with the current law 1.5 3 Specific problems 1.8 3 The distinction between public sector and private sector 1.8 3 bribery Should the law continue to draw a distinction 1.11 4 between bribery in the public sector and bribery in the private sector? Principal arguments for and against retaining a 1.13 4 distinction between the public and private sector Conclusion 1.15 5 Provisional proposal 1.17 5 Further problems caused by the co-existence of the 1889 1.19 6 Act and the 1906 Act Charging under the wrong statute 1.19 6 The scope of the respective statutes 1.20 6 No consistent terminology 1.21 6 The meaning of ‘agent’ 1.22 6 The meaning of ‘corruptly’ 1.23 6 Bribery committed outside England and Wales 1.24 7 General considerations 1.25 7 Summary of main proposals 1.33 9 Summary of the paper 1.34 11 PART 2: THE CURRENT LAW 2.1 13 The common law 2.2 13 The bribe: “any undue reward” 2.3 13 A “public officer” 2.4 14 The mental element 2.6 14 The 1889 Act 2.7 14 The bribe: “gift, loan, fee, reward or advantage” 2.8 15 A “public body” 2.10 15 iii Paragraph Page The 1906 Act 2.12 16 The bribe: “any gift or consideration” 2.13 16 An “agent” 2.14 16 Differences in scope between the 1889 and 1906 Acts 2.17 17 The meaning of “corruptly” 2.22 17 The 1916 Act 2.23 18 The presumption of corruption 2.24 18 Extraterritorial jurisdiction 2.26 18 Prosecution and conviction statistics 2.30 19 PART 3: PREVIOUS ATTEMPTS TO REFORM THE LAW OF 3.1 20 BRIBERY Introduction 3.1 20 Our previous project on corruption 3.2 20 The Government’s response to our previous report 3.4 21 Approval of our previous report 3.6 21 Proposals contrary to, or in extension of, our previous 3.7 22 report The Joint Committee on the draft Corruption Bill 3.8 22 The Government’s response to the Joint Committee 3.9 23 The most recent Government consultation 3.11 23 The Government’s response to consultation 3.13 24 Conclusion 3.24 25 PART 4: A MODEL FOR BRIBERY 4.1 26 The issues 4.1 26 The history 4.8 28 The principal and agent model 4.14 28 Cases where “principal” points to the wrong person 4.19 29 Cases where there is no principal 4.27 31 Why do we need a principal anyway? 4.29 31 Principal to principal bribery 4.33 32 Conclusion on principal/agent model 4.42 33 The market model 4.44 34 Improper payment model 4.48 35 The problem case 4.54 36 Option 1: Include all types of ‘breach of duty’ 4.55 36 Option 2: Create a separate offence for facilitation 4.60 37 payments Option 3: Exclude from the ambit of bribery those cases 4.62 37 where the only breach of duty is the acceptance of the conferred advantage Provisional proposal and question for consultees 4.63 38 iv Paragraph Page Improper influence model 4.65 38 Forms of the influence model 4.68 38 An example of the influence model 4.73 39 “Payment to do the right thing” 4.77 40 Further examples 4.84 41 Definition of impropriety 4.87 42 The first approach: requiring impropriety as an element 4.88 42 The second approach: relying on specific defences 4.92 43 Defence of principal’s consent 4.92 43 Abandoning the defence 4.95 44 Remuneration defence 4.99 45 Other criticisms of this approach 4.103 45 Conclusion 4.110 47 Provisional proposal 4.114 48 The improper conduct model 4.115 48 An example of the improper conduct model 4.118 48 Our previous proposal 4.121 49 Criticisms of our proposal 4.124 50 Under-inclusive: payment to do the right thing? 4.129 51 Over inclusive: what duties should be included? 4.134 52 Gifts after the event: whether to retain influence test 4.137 52 Provisional proposal 4.143 53 PART 5: THE CONDUCT ELEMENT OF THE NEW BRIBERY 5.1 54 OFFENCE Introduction 5.1 54 The structure of Parts 5 and 6 5.2 54 Core concepts 5.4 54 Improper conduct 5.6 55 Introduction 5.6 55 Using “improperly” without defining it 5.9 55 Purely moral duties 5.13 56 Provisional proposal 5.16 57 Legal and equitable duties 5.17 57 The duty of impartiality 5.18 57 Practical difficulties 5.22 58 Recipient’s belief in breach of duty 5.27 59 What kind of duty? 5.29 60 Crime 5.30 60 Tort 5.32 60 Contract 5.37 61 v Paragraph Page Public office 5.46 63 Conclusion 5.47 64 Provisional proposal 5.50 64 Question for consultees 5.52 65 Practicality and the bribery of foreign officials 5.55 65 Defining an ‘advantage’ 5.56 65 Provisional proposal 5.60 66 An ‘undue’ advantage 5.62 67 Provisional proposal 5.64 67 Applying the terms 5.65 67 The recipient’s conduct element 5.67 67 Soliciting an advantage by representing a willingness to 5.68 68 act improperly Provisional proposal 5.71 68 Trading in influence 5.73 69 Illustrating the problem 5.74 69 The problem case 5.78 71 Convention requirements 5.81 71 Current law and our previous 5.83 72 recommendations Options for reform 5.85 72 Provisional proposal 5.89 73 Receipt of the advantage 5.92 73 Does R, as opposed to some other person, have to 5.92 73 receive the advantage? Where the advantage is not conferred at all 5.93 74 Provisional proposal 5.95 74 Where the advantage is conferred on a third 5.96 74 party Provisional proposal 5.98 75 Does R have to hold a certain position when the 5.99 75 advantage is conferred? Provisional proposal 5.101 75 The payer’s conduct element 5.102 75 Soliciting or inducing an improper act by representing a 5.103 75 willingness to confer an advantage Provisional proposal 5.107 76 The circumstances surrounding the conferral of the 5.108 76 advantage Does R have to receive the advantage ‘personally’? 5.109 77 Where the advantage is conferred on a third 5.110 77 party in order to induce R to act improperly Where R is an intermediary 5.111 77 vi Paragraph Page Does P have to confer the advantage ‘personally’? 5.113 77 Does R have to have performed the improper act? 5.118 78 Provisional proposal 5.120 79 Does R have to hold a certain position when the 5.121 79 advantage is conferred? PART 6: THE FAULT ELEMENT OF THE NEW BRIBERY 6.1 80 OFFENCE Introduction 6.1 80 The recipient’s fault element 6.3 80 R does an improper act after P confers an advantage 6.5 81 (scenario 1) Introduction 6.5 81 Must the advantage have to influence R’s decision to do 6.7 81 the improper act? The current law and our previous recommendations 6.7 81 Departing from our previous recommendation 6.10 82 To what extent must the advantage influence R’s 6.16 83 decision to act improperly? Provisional proposals 6.19 83 If the primary reason for R doing the improper 6.21 84 act is the advantage, should it make any difference that R realises that P is not conferring the advantage in order to influence R to do the improper act? Question for consultees 6.27 85 Must R know or believe that the act is an ‘improper’ act? 6.28 85 Provisional proposal 6.30 85 The improper act done by R is different from that which 6.31 86 was intended or agreed Provisional proposal 6.36 87 R does an improper act before P confers an advantage 6.37 87 (scenario 2) Introduction 6.37 87 The current law and our previous proposals 6.38 88 Departing from our previous recommendations 6.42 89 Provisional proposals 6.46 90 Ancillary matters relating to the fault element required of 6.48 90 R R represents a willingness to do an improper act (scenario 3) 6.49 90 Our previous recommendations 6.50 91 Departing from our previous recommendations 6.52 91 Provisional proposal 6.58 92 Ancillary matters relating to R’s fault element 6.61 92 vii Paragraph Page The payer’s fault element 6.62 93 P confers an advantage on R before R does an improper act 6.65 93 (scenario 1) Introduction 6.65 93 Legitimate and illegitimate influence 6.68 94 Our previous provisional proposals 6.75 95 Our previous report 6.78 96 Going beyond our previous recommendations 6.81 97 Provisional
Load more

Recommended publications
  • Consents to Prosecution Consultation
    PART I INTRODUCTION 1.1 In this consultation paper we examine one of the procedural mechanisms used to control the prosecution process, namely the requirement in respect of certain offences of the consent of the Law Officers (the Attorney-General or the Solicitor- General) or the Director of Public Prosecutions (“the DPP”)1 as a condition precedent to the institution of criminal proceedings. In preparing this paper, we have borne in mind the constitutional gravity of consent provisions – not only do they fetter the right of private prosecution, but also, by their nature, they impose an administrative burden on senior officials and cause an additional administrative delay within the criminal justice system. THE NEED FOR REVIEW 1.2 Although the use of consent provisions is not a recent development, their proliferation is. As we shall see in Part IV,2 although the first example is thought to date back to the early nineteenth century, it was not until the Second World War that consent provisions became widely used. We believe that the consents regime is a pressing and important subject for review. We hold this belief for a number of reasons. 1.3 First, the Royal Commission on Criminal Procedure (“the Philips Commission”), under the chairmanship of Sir Cyril Philips, noted that the wide-ranging list of Acts which included a consent provision suggested that “some of the restrictions ha[d] been arbitrarily imposed”;3 and in formulating proposals which eventually led to the Prosecution of Offences Act 1985, the Commission took the view that the creation of the Crown Prosecution Service (“the CPS”) provided the apposite moment for reviewing the consents regime and, noting that the DPP had said in evidence to the Commission that “the time was ripe for some rationalisation of the restrictions”,4 recommended that rationalisation should not be delayed.5 1.4 Second, notable former Law Officers have criticised the consents system.
    [Show full text]
  • The Cabinet Manual
    The Cabinet Manual A guide to laws, conventions and rules on the operation of government 1st edition October 2011 The Cabinet Manual A guide to laws, conventions and rules on the operation of government 1st edition October 2011 Foreword by the Prime Minister On entering government I set out, Cabinet has endorsed the Cabinet Manual as an authoritative guide for ministers and officials, with the Deputy Prime Minister, our and I expect everyone working in government to shared desire for a political system be mindful of the guidance it contains. that is looked at with admiration This country has a rich constitution developed around the world and is more through history and practice, and the Cabinet transparent and accountable. Manual is invaluable in recording this and in ensuring that the workings of government are The Cabinet Manual sets out the internal rules far more open and accountable. and procedures under which the Government operates. For the first time the conventions determining how the Government operates are transparently set out in one place. Codifying and publishing these sheds welcome light on how the Government interacts with the other parts of our democratic system. We are currently in the first coalition Government David Cameron for over 60 years. The manual sets out the laws, Prime Minister conventions and rules that do not change from one administration to the next but also how the current coalition Government operates and recent changes to legislation such as the establishment of fixed-term Parliaments. The content of the Cabinet Manual is not party political – it is a record of fact, and I welcome the role that the previous government, select committees and constitutional experts have played in developing it in draft to final publication.
    [Show full text]
  • Reform of the Office of Attorney General
    HOUSE OF LORDS Select Committee on the Constitution 7th Report of Session 2007–08 Reform of the Office of Attorney General Report with Evidence Ordered to be printed 2 April 2008 and published 18 April 2008 Published by the Authority of the House of Lords London : The Stationery Office Limited £price HL Paper 93 Select Committee on the Constitution The Constitution Committee is appointed by the House of Lords in each session with the following terms of reference: To examine the constitutional implications of all public bills coming before the House; and to keep under review the operation of the constitution. Current Membership Viscount Bledisloe Lord Goodlad (Chairman) Lord Lyell of Markyate Lord Morris of Aberavon Lord Norton of Louth Baroness O’Cathain Lord Peston Baroness Quin Lord Rodgers of Quarry Bank Lord Rowlands Lord Smith of Clifton Lord Woolf Declaration of Interests A full list of Members’ interests can be found in the Register of Lords’ Interests: http://www.publications.parliament.uk/pa/ld/ldreg/reg01.htm Publications The reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee are available on the internet at: http://www.parliament.uk/hlconstitution Parliament Live Live coverage of debates and public sessions of the Committee’s meetings are available at www.parliamentlive.tv General Information General Information about the House of Lords and its Committees, including guidance to witnesses, details of current inquiries and forthcoming meetings is on the internet at: http://www.parliament.uk/parliamentary_committees/parliamentary_committees26.cfm Contact Details All correspondence should be addressed to the Clerk of the Select Committee on the Constitution, Committee Office, House of Lords, London, SW1A 0PW.
    [Show full text]
  • Preparing for Trial
    CHAPTER 10 PREPARING FOR TRIAL INTRODUCTION 1 A wide misconception of the general public is that all or most of the criminal justice process takes place in court. But proceedings in court require preparation – much and by many. The trouble is that the process, by its very nature – fragmented among various government departments and agencies and adversarial as between prosecution and defendant – does not encourage joint and efficient preparation. There are constitutional and administrative divides, sharpened by separate budgets, that get in the way. There are limits to what can be expected of co-operation between the parties, particularly when the issue is as to guilt as well as sentence. Guilty defendants seeking to avoid conviction have not the same urgency as the public about the need for an efficient criminal justice system. Some innocent defendants, advised by their lawyers to keep their cards close to their chests, are equally unenthusiastic. And, as is now increasingly recognised, there are other individuals involved in the process, such as victims, witnesses and jurors whose interests need attention. 2 In all of these respects the process of criminal justice is a more difficult ground for orderly preparation by the parties and management by the court than in the case of civil disputes where the issue usually concerns two parties only, where legal protections for the defendant are less rigorous and where preparation for trial does not normally require input from public bodies. Unfortunately, the already infertile ground for efficient preparation of criminal cases - vital to just and efficient court proceedings - is aggravated by a number of unnecessary defects in the system.
    [Show full text]
  • 1. Craig Prescott
    Title Page ENHANCING THE METHODOLOGY OF FORMAL CONSTITUTIONAL CHANGE IN THE UK A thesis submitted to The University of Manchester for the degree of Doctor of Philosophy in the Faculty of Humanities 2014 CRAIG PRESCOTT SCHOOL OF LAW Contents Title Page 1 Contents 2 Table of Abbreviations 5 Abstract 6 Declaration 7 Copyright Statement 8 Acknowledgements 9 Introduction 10 1. ‘Constitutional Unsettlement’ 11 2. Focus on Procedures 18 3. Outline of the Thesis 24 Chapter 1 - Definitions 26 1. ‘Constitutional’ 26 2. ‘Change’ 34 3. ‘Constitutional Change’ 36 4. Summary 43 Chapter 2 - The Limits of Formal Constitutional Change: Pulling Iraq Up By Its Bootstraps 44 1. What Are Constitutional Conventions? 45 Page "2 2. Commons Approval of Military Action 48 3. Conclusion 59 Chapter 3 - The Whitehall Machinery 61 1. Introduction 61 2. Before 1997 and New Labour 66 3. Department for Constitutional Affairs 73 4. The Coalition and the Cabinet Office 77 5. Where Next? 82 6. Conclusion 92 Chapter 4 - The Politics of Constitutional Change 93 1. Cross-Party Co-operation 93 2. Coalition Negotiations 95 3. Presentation of Policy by the Coalition 104 4. Lack of Consistent Process 109 Chapter 5 - Parliament 114 1. Legislative and Regulatory Reform Act 2006 119 2. Constitutional Reform Act 2005 133 3. Combining Expertise With Scrutiny 143 4. Conclusion 156 Chapter 6 - The Use of Referendums in the Page "3 UK 161 1. The Benefits of Referendums 163 2. Referendums and Constitutional Change 167 3. Referendums In Practice 174 4. Mandatory Referendums? 197 5. Conclusion 205 Chapter 7 - The Referendum Process 208 1.
    [Show full text]
  • Chapter I About the Judiciary
    William Michael Ramsden Student ID: UM2743HLS6759 Ascertaining the Boundary of Legitimate Judicial Intervention A Final Dissertation Presented to The Academic Department of School of Social and Human Studies In partial Fulfillment of the Requirements For the Degree of Ph.D Link to the University: hhp://www.aiu.edu A I U Ascertaining the Boundary of Legitimate Judicial Intervention ‘Sections 3 and 4 of the Human Rights Act: ascertaining the boundary of legitimate judicial intervention’ Index Chapter 1 Introduction and Overview 3-12 Chapter 2 Human Rights background and Context 13-54 Chapter 3 Freedom and liberty 55-67 Chapter 4 Public Authority uncertainty and Section 6(1) 68-150 Chapter 5 Enforcement under the Human Rights Act. 151-183 Chapter 6 Changing Constitutional Mores. 184-199 Chapter 7 Human Rights Uncertainty 200-239 Chapter 8 Anti-Terrorism Policies and the Open Society 238-353 Chapter 9 SIAT A Case Study 356-385 Chapter 10 The Dialogue Model 386-430 Chapter 11 Descriptive, analytical & normative arguments 431-433 Chapter 12 Conclusion 434-433 Bibliography 434-460 A Dissertation by William Michael Ramsden 1 ‘Sections 3 and 4 of the Human Rights Act: ascertaining the boundary of legitimate judicial intervention’ ------------------------------------------------------------------------------------- A special thanks to my son Michael Philip Ramsden LL.B (Hons), LL.M, who relentlessly read and re-read my thesis to which I am eternally grateful for his thoughts and comments. -and- Equally a special thanks to my younger son Matthew whose patience was beyond compare, as he allowed me time to complete my works at a cost of our extended time together.
    [Show full text]
  • English Legal System
    ELEVENTH EDITION English Legal System ‘The book has several strengths welcome to students and lecturers alike: up to date, well-written and comprehensive. It provides clear exposition of the central themes whilst the delightful layout makes the information readily accessible.’ Dr. Jackson Maogoto, Senior Lecturer, University of Manchester English Legal System is the best-selling undergraduate text on this subject, providing an authoritative and engaging account of the structure and mechanisms of the law in England and Wales. The authors skilfully present a thought- provoking analysis of the subject, making this the defi nitive introduction to the area and the fi rst choice for students year after year. Annually revised and fully updated, Elliott and Quinn’s English Legal System continues to keep you fully informed of progress and changes premium within this constantly evolving topic. Some key recent developments covered in this eleventh edition include: • The establishment of the Supreme Court • Planned reforms in the Constitutional Reform and Governance Bill Do you want to give yourself a head start come • Changes to the regulation of the legal profession, including the exam time? establishment of the Legal Services Board Visit www.mylawchamber.co.uk/ElliottELS • The opening of family courts to the media to access the accompanying Pearson eText, an • Police tactics following the G20 demonstrations electronic version of English Legal System. The eText is fully linked to interactive quizzes, This eleventh edition offers: sample exam questions with answer guidance, • Comprehensive exposition of the legal system of England and Wales and fl ashcards – all designed so that you can test yourself on topics covered in this book.
    [Show full text]
  • House of Lords Official Report
    Vol. 810 Monday No. 190 22 February 2021 PARLIAMENTARYDEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT ORDEROFBUSINESS Retirements of Members....................................................................................................603 Questions Education: Supply Teachers ...........................................................................................603 Questions for Written Answer ........................................................................................607 Political Parties: Expenditure Limits ..............................................................................610 Food-related Crime ........................................................................................................613 Covid-19: Surplus Vaccine Doses Private Notice Question ..................................................................................................617 Clerk of the Parliaments Announcement of Successor ............................................................................................621 Building Safety Statement........................................................................................................................622 Ministerial and other Maternity Allowances Bill Second Reading...............................................................................................................635 Procedure and Privileges Motion to Agree..............................................................................................................692 Hereditary Peers: By-elections
    [Show full text]
  • The Law Officers: a Constitutional and Functional Overview
    BRIEFING PAPER Number 08919, 28 May 2020 The Law Officers: a By Conor McCormick (Queen's University Belfast) and Graeme Constitutional and Cowie (HoC Library) Functional Overview Contents: 1. Overview 2. England and Wales 3. Scotland 4. Northern Ireland 5. Political independence 6. Law officers’ legal advice 7. Devolution issues Annex: Law Officers timeline www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | [email protected] | @commonslibrary 2 The Law Officers: a Constitutional and Functional Overview Contents Summary 3 1. Overview 4 1.1 What is a law officer? 4 1.2 How many law officers are there? 4 1.3 What do law officers do? 5 1.4 What relationship do law officers have with Government? 5 1.5 Are law officers Parliamentarians? 6 2. England and Wales 10 2.1 Attorney General for England and Wales 10 2.2 Solicitor General for England and Wales 21 2.3 Counsel General for Wales (from 2007) 22 3. Scotland 28 3.1 Lord Advocate 28 3.2 Solicitor General for Scotland 33 3.3 Advocate General for Scotland (from 1999) 34 4. Northern Ireland 39 4.1 Attorney General for Northern Ireland 39 4.2 Advocate General for Northern Ireland (from 2010) 46 5. Political independence 48 5.1 Relationship with Cabinet 48 5.2 Independence and prosecutorial functions 50 6. Law officers’ legal advice 51 6.1 Law officers’ convention 51 6.2 Notable examples of law officers’ advice/opinion 51 7. Devolution issues 56 7.1 What is a “devolution issue”? 56 7.2 Why do devolution issues matter for the law officers? 56 7.3 What powers do the law officers have? 57 Annex: Law Officers timeline 58 Contributing Authors: The Library would like to thank Dr.
    [Show full text]
  • Constitutional and Administrative Law Palgrave Law Masters
    Palgrave Law Masters Constitutional and Administrative Law Palgrave Law Masters Company Law Janet Dine and Marios Koutsias Constitutional and Administrative Law John Alder and Keith Syrett Contract Law Ewan McKendrick Criminal Law Jonathan Herring Employment Law Deborah J Lockton Evidence Raymond Emson Family Law Paula Davies and Paven Basuita Intellectual Property Law Tina Hart, Linda Fazzani and Simon Clark Land Law Mark Davys Landlord and Tenant Law Margaret Wilkie, Peter Luxton, Jill Morgan and Godfrey Cole Legal Method Ian McLeod Legal Theory Ian McLeod Medical Law Jo Samanta and Ash Samanta Sports Law Mark James Torts Alastair Mullis, Ken Oliphant and Sandy Steel Trusts Law Charlie Webb and Tim Akkouh If you would like to comment on this book, or on the series generally, please write to [email protected]. Palgrave Law Masters Constitutional and Administrative Law John Alder Emeritus Professor of Law, Newcastle University Keith Syrett Professor of Public Health Law, Cardiff University Eleventh edition © John Alder 1989, 1994, 1999, 2002, 2005, 2007, 2009, 2011, 2013 and 2015 © John Alder and Keith Syrett 2017 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. Crown Copyright material is licensed under the Open Government Licence v3.0. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6–10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages.
    [Show full text]
  • Charitable Intention in the Cy-Pres Doctrine and Related Trusts Principles
    CHARITABLE INTENTION IN THE CY-PRES DOCTRINE AND RELATED TRUSTS PRINCIPLES Thesis submitted in accordance with the requirements of the University of Liverpool for the degree of Doctor in Philosophy by John Picton September 2013 ABSTRACT This thesis provides the first extended taxonomy of charitable intention in the law of schemes. It does so in order to identify the legal functions of intention and suggest critical doctrinal (‘black letter’) reforms so that those functions can be better carried out. Where appropriate, it draws on Australasian statutory and common law innovation. It contrasts developments in those related jurisdictions as a reference point for English reform. Two functions of intention are identified. In the context of established trust reform, intention is one element of a broader process of ‘balanced variation’. The original intention of the donor is balanced against broadly defined effectiveness standards. By contrast, in the context of testamentary construction, intention has a different role. It is constructed simply to make a failed will possible to effect. Efficacious reform is possible with regards to both those functions, and so this thesis proposes a series of common law and legislative changes. i ACKNOWLEDGEMENTS With thanks to Warren Barr, Helen Stalford, John Fanning and Gokcen Yilmaz. This thesis is dedicated to my parents. ii TABLE OF CONTENTS CHAPTER ONE: INTRODUCTION Page 1 CHAPTER TWO: THE DEFINITION AND FUNCTION OF INTENTION IN THE LAW OF SCHEMES Page 25 CHAPTER THREE: ‘BALANCED VARIATION’ AND THE CY-PRES
    [Show full text]
  • Intervention of the Civil Justice Council Advocates' Fees Conditional Fees – Rights of Defendant/Claimant
    EL_C03.qxd 3/26/07 10:39 AM Page 103 OTHER COURTS AND TRIBUNALS, JUDICIAL REVIEW, HUMAN RIGHTS AND LEGAL SERVICES 103 was recoverable because ‘it did not seem unreasonable in terms of the service it offered’. However, as regards the success fee in a straightforward case such as this settled out of court, a 20 per cent success fee was all the court would allow. Personal injury lawyers were not too pleased with this ruling but were less pleased with the ruling of the Court of Appeal in Halloran v Delaney (2002) 146 Sol Jo 815 where the court 3 ruled that in a straightforward road traffic case involving personal injury and settled out of court a success fee of only 5 per cent was appropriate. The judgment in Halloran was delivered by Brooke LJ who sat in the Callery case. Sarwar v Alam [2001] 4 All ER 541 is also instructive. It decided that a claimant could recover an ATE premium even though he had a BTE insurance as part of his motor insurance, because the ATE insurance gave additional service. Nevertheless, the Court of Appeal advised solicitors involved in this type of litigation to see whether the client had BTE insurance and as to its adequacy. Failure to do this said the court could lead to ATE insurance taken out in addition being disallowed as a head of costs. Intervention of the Civil Justice Council The ruling in Halloran, in particular, had affected the willingness of lawyers to take on the large number of road traffic injuries cases where settlement without trial is common.
    [Show full text]