191 227 3869 E-Mail: [email protected]

191 227 3869 E-Mail: Tony.Storey@Northumbria.Ac.Uk

ENGLISH LEGAL SYSTEM

Module Tutor: Tony Storey tel: +44 (0) 191 227 3869 e-mail: [email protected]

2016-2017 Northumbria Law School Induction to Law

CONTENTS

Introduction 1

Chapter 1 Introduction to Basic Legal Concepts and 3 Terminology

Chapter 2 Reading and Using Statutes 9

Chapter 3 Reading and Using Cases 23

Chapter 4 Finding Law: An Introduction To Legal Research 43

Pharmaceutical Society of Great Britain v Boots 47 Cash Chemists (Southern) Ltd (1952)

Fisher v Bell (1961) 50

Merritt v Merritt (1970) 53

Marshall v BBC (1979) 58

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ENGLISH LEGAL SYSTEM

Introduction The purpose of this Induction module is to introduce you to the following:

Basic study techniques and what is required in the study of law

Basic legal concepts

Legal terminology

How to read and use statutes

How to read and use law reports

How to find law, either online or in the law library

It is important to grasp the language, methods and basic concepts quite quickly as these will be used and reference will be made to them in the other modules of the GDL programme. Do not be too daunted as we do not expect you to have a full knowledge of everything in this module in the first months of the programme. Obviously you need to have a working knowledge of terms and concepts, but so long as you know where to look for the information in the early stages of the programme that will suffice.

You will find as the programme progresses you will become familiar with the language and techniques by virtue of your reading and tackling of the questions and exercises set. Indeed by following the Workbook as instructed you will be surprised how quickly what at first seems alien becomes commonplace.

The English Legal System module is based on this Workbook and the webcasts available online at https://law-webcasts.northumbria.ac.uk/. You will need to enter the following username and password to access these (at least until you have enrolled in September and have your own unique Northumbria student username and password):

 Username: gdl2013  Password: northumbria

The Webcasts are short (typically around 5 – 10 minutes long) lectures on specific topics. You will be able to tell when you are expected to watch a Webcast by the presence of the TV icon:

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 Watch…

In addition, whilst we do not expect you to buy the following books, you should consider purchasing one of them, at least:

 Legal Skills, Emily Finch and Stefan Fafinski, 6th Edition, Oxford (2017);  Learning Legal Rules, James Holland & Julian Webb, 9th Edition, Oxford University Press (2016);  Letters to a Law Student: A guide to studying law at university, Nicholas J McBride, 3rd Edition, Pearson (2013);  The Law Student’s Handbook, Steve Wilson & Philip Kenny, 2nd Edition, Oxford (2010).

How to Use this Workbook

This Workbook provides a foundation for the later work you will do in the other modules in this Programme. The Workbook consists of notes, self-test questions and exercises. Having completed your study of a particular area, test your knowledge and understanding by attempting the Self-Test questions. The self-test questions seek to explore further points raised in the Workbook. The answers to these questions will be made available on the Blackboard / e-Learning Portal (eLP) site for the English Legal System module, which will be accessible after enrolment in September.

You should aim to have worked fully through this Workbook by the end of August. This is because the four exercises (on pages 13, 22, 28 and 41) will form the basis of the two Workshops to be held during your Induction week (for Distance Learning students these will be on Tuesday 5th September and for Full-time students these will be on Thursday 7th September). Exercises 1 and 2 will be discussed in the Statutes Workshop and Exercises 3 and 4 will be discussed in the Case Law workshop.

Remember that your Workbook will continue to be a useful source of reference throughout your Programme of study.

Northumbria Law School Induction to Law

CHAPTER 1

INTRODUCTION TO BASIC LEGAL CONCEPTS AND TERMINOLOGY

The aim of this section is to introduce you to some legal concepts and terminology with which you will soon become very familiar.

Learning Outcomes: Upon completion of this chapter you should be able to:

(i) Understand the importance of territorial extent

(ii) distinguish between civil law and criminal law;

(iii) explain the procedural features and outcomes associated with crimes and civil wrongs;

(iv) understand the concept of the common law compared with the civil law tradition.

1. WHAT IS LAW?

Legal philosophers have spent much time analysing this question, but for our purposes we will adopt a simple definition from the Shorter Oxford English dictionary. In this law is defined as:

“The body of rules, whether formally enacted or customary, which a state or community recognises as binding on its members or subjects.”

The words highlighted need some explanation.

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“Body of Rules” The laws which you will be studying on this Programme come from a number of sources. They are:

1. Law made by Parliament 2. Law made by the courts (also known as the common law) 3. EU law 4. The law of the European Convention of Human Rights

“A state or community”: Territorial Extent An important point to note is that laws will apply, usually, only to a defined area (jurisdiction). Apart from the EU Law module, the law that you will be studying on this Programme is that which operates in England & Wales. Scotland has a separate legal system and a different legal tradition. The legal system in Northern Ireland is also separate to that in England & Wales although there are many similarities.

The highest form of English law is that made by Parliament – but that, of course, is the Parliament for the whole of the UK. Indeed, there is a presumption that an Act of Parliament is operative throughout the United Kingdom (meaning England, Wales, Scotland and Northern Ireland), unless the contrary is expressed in the Act. However, it is not unusual to find that Parliament, in passing an Act of Parliament, deals with the law relating to England & Wales in one part of the Act, with the law relating to Scotland in another part of the same Act and Northern Ireland in yet another part. See for example the Unfair Contract Terms Act 1977 which is broken into parts on the basis of geographical operation. For a more recent example, see s.84 of the Health Act 2006.

Moreover, since devolution at the end of the 20th century, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly have their own legislative powers (albeit within prescribed areas). This means that it is increasingly the case that the UK’s Parliament in Westminster has been able to concentrate on making or changing the law only in England (or England & Wales). Having said that, Acts of Parliament do sometimes still apply to the whole of the UK. The best recent example is the Human Rights Act 1998.

You must therefore be careful to check when looking at an Act of Parliament to see whether it applies to the whole of the UK, or just to England & Wales.

“Recognises as binding” There is a distinction drawn between “hard” law and “soft” law. Only “hard” law is recognised as being legally binding. In England & Wales, legislation (whether made in Westminster or by the EU) and the decisions of the courts are recognised as being “hard” law and therefore legally binding. “Soft” law comes in a variety of sources – typical examples include consultation papers issued by law reform bodies such as the Law Commission, the Highway Code, government department circulars, and so on. “Soft” law is usually not legally binding although it can be relied upon as s guide to the interpretation and application of “hard” law.

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2. TERMINOLOGY

2.1 CRIMINAL LAW AND CIVIL LAW

 Watch ‘Introduction to the English Legal System – Branches of the ELS’

English Law is divided into two main branches:

 criminal law (such as prosecutions for murder or theft); and  civil law (meaning anything other than criminal law, such as contractual disputes, employment disputes, property disputes, road traffic claims, medical negligence litigation, defamation cases, and so on).

Criminal law and civil law need to be clearly distinguished. The following differences may be noted:

i) Different terminology

In criminal proceedings, a prosecutor prosecutes the defendant and if successful the defendant is found guilty (by magistrates in a magistrates’ court or by a jury in a Crown Court) and convicted. The defendant will then be sentenced by a judge or magistrates.

In civil proceedings, a claimant sues (brings an action) against a defendant and if successful a defendant is said to be liable and judgment will be given for the claimant. In the vast majority of civil proceedings a single judge handles all aspects of the case. Then a claimant may be compensated for the loss suffered.

ii) Different procedures

Criminal and civil trials are very different in a number of respects. One important distinction to note concerns the burden and standard of proof.

In criminal trials the burden of proof is on the prosecutor, who must show that the defendant is guilty. This gives effect to the principle a person accused of a criminal offence is innocent until proven guilty.

The standard of proof in such a trial is that the defendant must be shown to be guilty beyond reasonable doubt. This is a high standard of proof much more so than the standard in civil trials.

In civil trials the burden of proof will usually be on the claimant, who must prove the facts that they allege.

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The standard of proof is that the facts alleged must be more likely to be true than not. This is known as the balance of probabilities. iii) Different courts

As a general rule, different courts deal with criminal and civil cases. The most important criminal courts are the magistrates’ courts and the Crown Court, where all trials take place, and the Court of Appeal (Criminal Division). In addition, the High Court occasionally hears appeals on points of law from the magistrates’ courts. Finally, the UK Supreme Court has jurisdiction over criminal law although criminal law cases rarely reach this level.

The most important civil courts are the county courts and the High Court, where trials take place, and the Court of Appeal (Civil Division). The UK Supreme Court is more significant here as most cases heard in this court are civil. There is also the Family Court, created in 2014.

There is an excellent diagram available online which shows how the various courts in England & Wales link together: https://www.judiciary.gov.uk/wp-content/uploads/2012/08/courts-structure-0715.pdf

2.2 COMMON LAW AND CIVIL LAW

 Watch ‘Introduction to the English Legal System – Nature of the ELS’

Two concepts with which you will come into contact in studying this Programme are those of:

 the Common Law;

 the Civil law.

The term “civil law” has already been referred to above, as meaning any area of law that is not criminal. However, the term “civil law” has a second meaning – it also means any system of law which is different to the “common law” system.

To complicate matters further, the term “common law” also has two meanings. Which meaning the term bears depends upon the context in which it is used.

Common law meaning 1: judge-made law. When a dispute (whether civil or criminal) is brought before a court and the judge(s) applies the law to the facts of the dispute, those cases are sometimes recorded and published in law reports

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and these then become a legal source – they form part of the “common law”. Judges may then use these reported cases in deciding later cases coming before a court and in certain circumstances must decide a case in accordance with earlier cases, if the facts of the later and earlier cases are the same or similar. The above process is known as the Doctrine of Judicial Precedent. See Chapter 3 of this Workbook for further details of this doctrine.

Common law meaning 2: the “common law” system The law in England & Wales is based on the “common law” system. Very briefly, the “common law” system is one in which the law derives from a variety of sources, typically a mixture of statute and case law.

It is here where the second meaning of the term “civil law” comes into play. In this context, “civil law” is used to describe a different form of legal system, which is the dominant one in continental Europe. Thus, we would say that France or Italy have a “civil law” system. Such a system has its roots in Roman Law and is characterised by laws in a codified form. Codification is a process whereby all the law on a subject area is authoritatively stated in statutes, referred to as Codes.

England & Wales is not the only “common law” jurisdiction. At the height of the British Empire, the English “common law” legal system was exported to countries such as Australia, Canada, India and South Africa. Today, many countries that now form part of the British Commonwealth still have “common law” systems as well – for example New Zealand. The provinces of Canada and most (but not all) of the Australian states are also “common law”.

Perhaps the most important point to note about the fact that England & Wales is a “common law” jurisdiction is that many important areas of English law are not contained in an Act of Parliament at all, let alone a comprehensive “Code”. This would be unheard of in a “civil law” jurisdiction. For example, the crimes of murder and involuntary manslaughter, the defence of “consent”, the law regulating the formation of contract and the law governing liability for negligence in tort are all entirely governed by decisions of the courts, the “common law”.

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SELF-TEST QUESTIONS

NB: Answers in the Answer book, available on the eLP (after enrolment)

(1) What are the three (or four) main sources of English Law?

(2) What is meant by the term “claimant”?

(3) What is meant by the term “defendant”?

(4) On whom is the burden of proof in a criminal trial?

(5) On whom is the burden of proof in a civil trial?

(6) What is the standard of proof applicable in a criminal trial?

(7) What is the standard of proof applicable in a civil trial?

(8) What is meant by the expression court of first instance?

(9) Has a magistrates’ court jurisdiction to hear both criminal and civil trials?

(10) What is an appellate court? Name two such courts.

Northumbria Law School Induction to Law

CHAPTER 2

READING AND USING STATUTES

 Watch ‘Introduction to the English Legal System – Primary sources of law’

The aim of this Chapter is to enable you to appreciate the importance of legislation as a source of law and to use statutory material effectively.

Learning Outcomes: Upon completion of this Chapter you should be able to

(i) Distinguish the various forms of statutory material

(ii) Cite statutory material accurately

(iii) Recognise the general layout of statutes and identify the main aspects of their organisation

(iv) Describe the various approaches to statutory interpretation adopted by the courts

INTRODUCTION

Legislation is the most important source of English law.

Some terminology:

STATUTE An Act of Parliament

BILL The name given to a prospective statute during its passage through Parliament. If / when it passes through all its parliamentary stages and is given the Royal Assent it becomes an Act of Parliament. NB There is no guarantee that this will happen. Although Bills which are backed by the government are usually passed, this may not happen if there is strong opposition in the House of Commons or the House of Lords.

PUBLIC BILL A bill which relates to matters of public policy. In most cases they are introduced by a member of the Government although some, known as Private Members' Bills are introduced by back-bench MPs.

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PRIVATE BILLS Private Bills are for the particular interest or benefit of any locality or persons. They can be divided into local and personal bills.

HYBRID BILLS These are public bills but may, in certain respects, affect private rights. They follow a special procedure for their passage through Parliament.

CONSOLIDATION These are designed to bring together existing statutory ACTS provisions and consolidate them in one Act.

DELEGATED Legislation made by some person or body under authority of LEGISLATION an Act of Parliament. Delegated legislation may take a variety of forms including statutory instruments and by-laws.

1. CITATION OF STATUTES

Statutes can be referred to in the following ways:

(a) by name and year (for Acts of any date) e.g. Theft Act 1968, Human Rights Act 1998, Criminal Justice Act 2003, Health Act 2006. (b) by year and chapter number (for Acts passed after 1962) e.g. 1968, c 60. (c) by regnal year and chapter number (for Acts passed before 1963) e.g. 4 & 5 Eliz 2 c 52.

Method (a) is now the most usual. Please note that the year is always important, as there may be more than one Act with the same name. For example, there are two “Theft Acts” (1968 and 1978) and several “Criminal Justice Acts” so unless you refer to the year as well it will not be clear which one you actually mean.

2. THE FORM OF STATUTES

The main points to note about the constituent parts of a statute are as follows:

2.1 SHORT TITLE AND LONG TITLE

A modern Act will have a SHORT TITLE by which it will be referred e.g.

Theft Act 1968 Public Order Act 1986 Bribery Act 2010

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and a LONG TITLE which explains the scope of the Act. This is the LONG TITLE of the Public Order Act 1986:

“An Act to abolish the common law offences of riot, rout, unlawful assembly and affray and certain statutory offences relating to public order; to control public processions and assemblies; to control the stirring up of racial hatred; to provide for the exclusion of certain offenders from sporting events; to create a new offence relating to the contamination of or interference with goods; to confer power to direct certain trespassers to leave land; to amend section 7 of the Conspiracy and Protection of Property Act 1875, section 1 of the Prevention of Crime Act 1953, Part V of the Criminal Justice (Scotland) Act 1980 and the Sporting Events (Control of Alcohol etc) Act 1985; to repeal certain obsolete or unnecessary enactments; and for connected purposes.”

2.2 OTHER ELEMENTS

 Parts. An Act, depending on its size and complexity, may be divided into parts e.g. the Health Act 2006 is divided into seven parts. Part 1 deals with Smoking; Part 2 deals with the “Prevention and control of healthcare associated infections”, i.e. hospital superbugs; Part 3 deals with drugs, medicines and pharmacies, and so on. Shorter Acts may not be divided into Parts; see, for example, the relatively short Fraud Act 2006.

 Chapters. Again, depending on its size and complexity, Parts of an Act may be divided into Chapters. So, for example, Part 1 of the Health Act 2006 deals with smoke-free premises, places and vehicles (Chapter 1) and the age for sale of tobacco (Chapter 2).

 Sections. All Acts are divided into sections, e.g. section 1. The number of sections in an Act may vary enormously, from a couple of sections to well over a thousand. The Anti-Slavery Day Act 2010 has only 2 sections but the Companies Act 2006 has exactly 1,300 sections (and 47 Parts).

 Sub-sections. Longer sections are further divided into sub-sections, e.g. section 1 (1).

 Paragraphs. Longer sub sections may be further divided into paragraphs, e.g. section 1 (1) (a).

 Sub-paragraphs. Longer paragraphs may be further divided into sub-paragraphs, e.g. section 1 (1) (a) (ii).

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2.3 COMMENCEMENT

Statutes come into force either on the date specified in the Act or, in the absence of such a provision, on the date when it receives the Royal Assent.

NB (i) The date of the Royal Assent can be found in brackets immediately after the Long Title. (ii) Sometimes the Act allows the appropriate minister to bring the act into force bit by bit, by giving him the power to make commencement orders by way of delegated legislation.

For example, s.17(6) of the Defamation Act 2013 states that certain sections of that Act came into effect on the date the Act was passed, i.e. the date when it received the Royal Assent (25th April 2013). The other sections are to come into effect on dates to be specified by the Secretary of State (s.17(4)).

2.4 SECTIONS FOR PARTICULAR PURPOSES

Sections of the Act may indicate the following: i. Interpretation Section. These define words or phrases used in the legislation. See for example s.15 of the Defamation Act 2013 or s.20 of the Presumption of Death Act 2013. ii. Territorial Extent. This will indicate which part of the UK is affected by the Act. Some Acts apply only to England and Wales. See for example s.23 of the Presumption of Death Act 2013. Some Acts have separate provisions for Scotland. See, for example, s.17(2) and (3) of the Defamation Act 2013. iii. Delegation of Power. This will give the power to make delegated legislation, e.g. to the appropriate Secretary of State. The section may specify the form of delegated legislation to be used (e.g. a statutory instrument) and may prescribe certain checks on its use (e.g. it may prescribe that it is subject to an affirmative resolution passed by Parliament). See for example s.115 of the Protection of Freedoms Act 2012 or s.18 of the Presumption of Death Act 2013, v. Sections amending or repealing other legislation. Much of the legislation passed by Parliament is designed to update existing law on a particular subject. This often entails the amendment, or even complete removal, of any pre-existing statutes on the same subject. See for example s.19 of the Scrap Metal Dealers Act 2013.

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Now try Exercise 1:

Look at the Sexual Offences Act 2003. You can find this statute by going online at www.legislation.gov.uk. In the “Search All Legislation” area of the screen, enter “Sexual Offences Act” in the “Title” box and “2003” in the “Year” box, and hit “Search”. Then click on the link to the Sexual Offences Act 2003 when it appears. Now answer the questions below.

 What is the short title of the Act?

 What is the long title of the Act?

 What is the Chapter Number of the Act?

 What was the date of Royal Assent?

 How many parts are there in the Act?

 How many sections are there in Part 1?

 How many subsections are there in section 4?

 How many paragraphs are there in section 3(1)?

 How many subparagraphs are there in section 9(1)(c)?

 How many Schedules are there?

 Where is the Commencement section?

 Where is there an Interpretation Section?

 Where is the Territorial Extent section?

These questions, and the answers to them, will be discussed in one of the Statutes Workshops on Tuesday 5th September (for Distance Learning students) or on Thursday 7th September 2017 (for Full-time students) so it is important to prepare your answers in advance.

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3. READING AND INTERPRETING STATUTES

Ideally all statutes should be drafted in clear and simple language which the layman can understand but a quick glance at statutory material reveals that this is often not the case. The language used is often complex. The sentence construction is often over-elaborate. Add to that the fact that the English language is an imprecise tool of communication and ambiguities will inevitably arise. Lord Denning once said:

“It would save judges immeasurable time and trouble if Acts of Parliament were drafted with divine prescience and perfect clarity.”

More recently, in Quintavalle v Secretary of State for Health [2003] 2 AC 687, Lord Bingham said:

“Such is the skill of parliamentary draftsmen that most statutory enactments are expressed in language which is clear and unambiguous and gives rise to no serious controversy. But these are not the provisions which reach the courts, or at any rate the appellate courts. Where parties expend substantial resources arguing about the effect of a statutory provision it is usually because the provision is, or is said to be, capable of bearing two or more different meanings.”

Disputes do occasionally arise as to the meaning of the statutory provisions. The question is, how are these provisions to be interpreted?

3.1 THE APPROACHES TO STATUTORY INTERPRETATION

The judges have adopted various approaches to the task of statutory interpretation. These are:

 THE LITERAL RULE  THE GOLDEN RULE  THE MISCHIEF RULE

Please note

(i) Although referred to as “rules”, these are not actually legal rules to be followed slavishly. They are more accurately described as “approaches”. (ii) They are not mutually exclusive. Using two different rules can, and often does, lead to the same outcome. (iii) It is difficult to predict which approach a judge will adopt in carrying out the task of statutory interpretation. There is no thing to stop a judge deciding what he or she wants the outcome of the case to be, and to “reverse engineer” the case by adopting whichever “rule” will produce the

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desired outcome. In “Statute Interpretation in a Nutshell” (1938) 16 Can Bar Rev 1, Professor John Willis said:

"A court invokes whichever of the rules produces a result that satisfies its sense of justice in the case before it. Although the literal rule is the one most frequently referred to in express terms, the courts treat all three as valid and refer to them as occasion demands, but, naturally enough, do not assign any reasons for choosing one rather than another.”

3.1.1. THE LITERAL RULE

Here, the court gives words or phrases in legislation their ordinary, dictionary meaning. For centuries this was the default approach of courts in England & Wales.

3.1.2 THE GOLDEN RULE

This approach may be used where to adopt a literal approach would lead to an absurd result. In Grey v Pearson (1857) 6 HL Cas 61 Parke B. described it thus:

“In construing statutes, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified so as to avoid absurdity and inconsistency but not further.”

3.1.3 THE MISCHIEF RULE

This approach involves considering why an Act was passed in the first place and giving any ambiguous words or phrases in the Act an interpretation which is most consistent with that underlying purpose. A good example of the mischief rule is Smith v Hughes [1960] 1 WLR 830; [1960] 2 All ER 859, in which the High Court had to decide how to interpret the phrase ‘to loiter or solicit in a street or public place’, found in s.1(1) of the Street Offences Act 1959. Lord Parker used the mischief rule. He said:

“I approach the matter by considering what is the mischief aimed at by this Act. Everyone knows that this was an Act intended to clean up the streets to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed this way it can make little difference whether the prostitute is soliciting while in the street or standing in a doorway or on a balcony.”

3.1.4 THE PURPOSIVE APPROACH

Both the golden rule and the mischief rule have also been described by the judges as being the “purposive” approach. According to the Lord Bingham in the House of Lords case of Quintavalle v 15

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Secretary of State for Health [2003] 2 AC 687, the “purposive” approach is now the dominant approach. His Lordship stated:

“Every statute other than a pure consolidating statute is… enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment… The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas. In any event, nowadays the shift towards purposive interpretation is not in doubt.”

3.2 SECONDARY AIDS TO STATUTORY INTERPRETATION

3.2.1 THE LONG TITLE

As noted above, every Act has a short and long title. To what extent are either of these (and especially the long title) relevant as a guide to interpreting the words of the Act itself? The answer is that the short title has virtually no use at all (see R v Galvin [1987] QB 862), and the long title has only limited value (see Vacher v London Society of Compositors [1913] AC 107). The point to note about both of these cases is that it is the wording of the Acts themselves which is important.

3.2.2 RULES OF LANGUAGE

The following “rules of language” are an aid to statutory interpretation. i. Expressio Unius est Exclusio Alterius (The expression of one thing is the exclusion of others)

The listing of one or more things of a particular class, without indicating that other similar items are included, suggests that they are excluded. A famous example is R v The Inhabitants of Sedgley (1831) 109 ER 1068 where the Court of King’s Bench held that the explicit reference in the Poor Relief Act 1601 to ‘coal mines’ excluded all other mines (including, in this case, a limestone mine in Sedgley in the West Midlands). ii. Eiusdem Generis (Of the same genus or class)

This applies where a statute provides a list e.g. ‘cars, lorries and other vehicles’. In considering whether any particular item is a vehicle in terms of the Act, the court will look at the class listed. Thus, would a horse and cart fit in? 16

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The most famous example of the rule is the House of Lords case of Powell v Kempton Park Racecourse Co. Ltd. [1899] AC 143. Here, section 1 of the Betting Act 1853 made it an offence to keep a ‘house, office, room or other place’ for the purposes of betting. The House of Lords had to decide if this section applied to an enclosure at Kempton Park Racecourse in Surrey, where betting had taken place. The court applied the ejusdem generis rule and held that the other items mentioned in the list related to indoor places, whereas the enclosure was outside. Hence, the enclosure was not an ‘other place’ and hence no offence had been committed. iii. Noscitur a Sociis (a word or phrase is known by the company it keeps).

This applies where there is a list of words and/or phrases. The meaning of any one word or phrase is determined by reference to words or phrases associated with it. For example, in Malvern Hills DC v Secretary of State for the Environment (1983) 46 P. & C.R. 58, the Court of Appeal decided that the phrase ‘specified operation’ in s.43 of the Town and Country Planning Act 1971 did not include “preparatory” work such as the delivery of materials to a building site, because the rest of the section referred to “actual work” such as ‘the erection of a building’, ‘the digging of a trench’, ‘the laying of any underground main or pipe’, etc.

3.2.3 OTHER STATUTES

To what extent can the meaning of a word in the context of one Statute be used as a guide to the meaning of the same word but in the context of another statute? The answer is, to some extent (see R v Wheatley [1979] 1 WLR 144). But it would be dangerous to assume that words have the same meaning in all statutes. For example, compare and contrast the definitions of the word ‘property’ in the Theft Act 1968 and the Criminal Damage Act 1971:

 Section 4, Theft Act 1968: ‘Property’ includes money and all other property, real or personal, including things in action and other intangible property.  Section 10, Criminal Damage Act 1971: In this Act ‘property’ means of a tangible nature, whether real or personal, including money…

Thus, whilst “intangible property” can be stolen, it cannot be damaged.

3.2.4 THE INTERPRETATION ACT 1978

The Interpretation Act 1978 defines a series of frequently occurring words in other statutes. However, it is not as helpful as you might at first think. The most famous provision is probably s.6(a), which states that the ‘words importing the masculine gender include the feminine’, i.e. the word ‘he’ is to be taken as including ‘she’. This avoids Parliament having to state ‘he or she’ or ’his or her’ in every piece of legislation.

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For example, s.2(1)) of the Sexual Offences Act 2003 states that ‘A person (A) commits an offence if– (a) he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else…’ Notwithstanding the use of the words ‘he’ and ‘his’, it is perfectly possible for a woman to commit this offence, thanks to s.6(a) of the 1978 Act.

3.2.5 MARGINAL NOTES AND SUBHEADINGS

Prior to 2001, marginal notes were extensively used in Statutes. In 2001, marginal notes were discontinued, replaced by subheadings. The most famous is probably that which accompanies s.2 of the Homicide Act 1957, which introduced a new defence into English law for those charged with murder. The subheading states ‘Persons suffering from diminished responsibility’ – and that is the name duly given to the defence introduced by s.2. However, s.2 itself does not use the words ‘diminished’ or ‘responsibility’; instead, it refers to those whose ‘abnormality of mental functioning’ has ‘substantially impaired’ their ability to understand the nature of their own conduct, form a rational judgment or exercise self-control.

The question, however, is, to what extent are marginal notes or subheadings relevant as a guide to interpreting the words of the statute? The answer is that they can be used. This was only decided relatively recently, by the House of Lords in R v Montilla [2004] UKHL 50; [2004] 1 WLR 3141. The case concerned the interpretation of s.93C(2) of the Criminal Justice Act 1988 and s.94(2) of the Drug Trafficking Act 1994 (both subsequently repealed). Lord Hope stated that:

“The headings and sidenotes are as much part of the contextual scene as [explanatory notes – see the next section], and there is no logical reason why they should be treated differently.”

3.2.6 EXPLANATORY NOTES

Explanatory notes are provided by the government to accompany all statutes passed since 1999. They can be found alongside the Acts when looking through the chronological lists of statutes on the Official UK Legislation website (www.legislation.gov.uk).

The question, again, is to what extent are explanatory notes relevant as a guide to interpreting the words of the statute? The answer is that they are relevant and can be used. The courts had originally shown a willingness to refer to explanatory notes when interpreting secondary legislation, and this was extended to the interpretation of primary legislation in Westminster City Council v National Asylum Support Service [2002] UKHL 38; [2002] 1 WLR 2956, a case involving the interpretation of the Immigration and Asylum Act 1999. Lord Steyn stated:

“If exceptionally there is found in Explanatory Notes a clear assurance by the executive to Parliament about the meaning of a clause, or the circumstances in which a power will or will not be used, that assurance may in principle be admitted against the executive in

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proceedings in which the executive places a contrary contention before a court… What is impermissible is to treat the wishes and desires of the Government about the scope of the statutory language as reflecting the will of Parliament. The aims of the Government in respect of the meaning of clauses as revealed in Explanatory Notes cannot be attributed to Parliament. The object is to see what is the intention expressed by the words enacted.”

In a similar vein, explanatory notes were invoked in Confederation of Passenger Transport UK v Humber Bridge Board [2003] EWCA Civ 842; [2004] QB 310 to resolve a problem which had arisen because key words had clearly been omitted from a statutory instrument by mistake.

3.2.7 DICTIONARIES

The Courts are sometimes prepared to use dictionaries to interpret ambiguous words in a statute. One was used by the House of Lords in Flack v Baldry [1988] 1 WLR 393 to define the word ‘discharge’ in s.5(1)(b) of the Firearms Act 1968. The Lords had to decide whether a “Lightning Strike” stun gun was a weapon designed to ‘discharge’ something – and they held that it did after consulting the Oxford English Dictionary definition of discharge, which read:

“(i) Discharge (non-electrical) — to disburden; send out; send forth; to emit. (ii) Discharge (electrical) — to rid of an electrical charge; the emission or transference of electricity which takes place between two bodies. “

3.2.8 LAW COMMISSION AND SIMILAR REPORTS

Many statutes are produced following the recommendations of committees set up for the purpose, and the work of law reform bodies like the Law Commission. To what extent are these relevant as a guide to interpreting the words of the Act? This question arose in Black-Clawson International Ltd. v Papierwerke Waldhof-Aschaffenburg [1975] AC 591, which concerned the interpretation of s.8 of the Foreign Judgments (Reciprocal Enforcement) Act 1933. A majority of the House decided that the report of the Foreign Judgments (Reciprocal Enforcement) Committee 1932, which was presented to Parliament before the passing of the Act, could be referred to in order to identify the “mischief” which the Act was intended to correct.

3.3 THE USE OF HANSARD

All Bills have to be debated before Parliament, and everything said in Parliament is recorded in a book called Hansard. Can the courts refer to Hansard when interpreting the Acts produced at the end of those debates? In Davis v Johnson [1979] AC 264, the House of Lords held not… but this was to change, with the landmark case of Pepper v Hart [1993] AC 593; [1992] 3 WLR 1032. A majority of the Lords held that, where the precise meaning of the legislation was uncertain or

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ambiguous, or where the literal meaning would lead to an absurdity, the courts could refer to Hansard. One restriction was that only statements made by the relevant government minister or some other sponsor of the Bill in question would be considered as authoritative in setting out the mischief.

3.4 INTERPRETATION AND THE EUROPEAN UNION

UK courts are often called upon to interpret UK legislation passed in an area of law which falls under the broad umbrella of the EU. The most obviously manifests itself when UK legislation has been specifically passed in order to comply with an EU directive. In the leading case on this subject, Case C-106/89 Marleasing v La Commercial Internacional (1990), the Court of Justice of the European Union (CJEU) gave clear instructions that Member States’ national courts are to adopt a purposive approach to statutory interpretation in this situation. The Court stated:

“In applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter.”

The courts in the UK have responded very positively to this instruction, with the House of Lords firmly rejecting the literal rule and adopting a very flexible purposive approach in cases where UK legislation had been passed in order to give effect to an EU directive. The best known case is Litster v Forth Dry Dock & Engineering Co. Ltd [1990] 1 AC 546; [1989] 2 WLR 634, in which the House of Lords gave a purposive interpretation to the Transfer of Undertakings (Protection of Employment) Regulations 1981, because they had been passed in order to give effect to Directive 77/187.

More recently, in Webb v EMO Air Cargo (UK) Ltd (No.2) [1995] 1 WLR 1454; [1995] 4 All ER 577, the House of Lords gave a purposive interpretation to s.1(1) of the Sex Discrimination Act 1975 (since repealed). Although the 1975 Act had not specifically been passed to comply with a directive, the House followed the instruction in Marleasing and interpreted the section in a purposive way in order to ensure that the Act complied with Directive 76/207 (since repealed).

Brexit impact? Whether this approach will continue to apply when the UK finally leaves the EU following the referendum decision on 23rd June 2016 is unknown at this time.

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1.5. INTERPRETATION AND THE HUMAN RIGHTS ACT 1998

The Human Rights Act 1998 imposes special requirements on the judiciary with regard to statutory interpretation. Section 2(1) provides that in determining any question relating to a right under the European Convention of Human Rights, every UK court must ‘take into account’ the case law and jurisprudence of the European Court of Human Rights. Section 3(1) adds that:

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect to in a way which is compatible with the Convention rights.

This has the effect of telling the courts in the UK to depart from what Parliament might have intended and reach an interpretation which is consistent with the Convention, ‘so far as it is possible to do so’. If the meaning of UK legislation cannot be stretched to achieve this, the court cannot declare the domestic legislation invalid. However, it may then make a “declaration of incompatibility”, under s.4(2). The ball is then in the Government’s court to introduce the necessary legislative changes.

Brexit impact? None. The European Convention of Human Rights has nothing to do with the EU so Brexit has no impact whatsoever.

Now try Exercise 2…

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EXERCISE 2

Materials for this exercise are available at the end of this Workbook.

1.  Read Fisher v Bell [1961] 1 QB 395 (at the end of this Workbook).

a) What was the problem of statutory interpretation which faced the court? b) How was the problem resolved? Indicate which approach to statutory interpretation you feel the court adopted.

2. In what circumstances have the courts advocated a departure from the literal approach and the use of the “purposive” or “golden rule”?

3.  Read James Marshall v BBC [1979] 3 All ER 80; [1979] 1 WLR 1071 (at the end of this Workbook). Now answer these questions:

a) What was the problem of statutory interpretation which faced the court? b) How was the problem resolved? Indicate which approach to statutory interpretation you feel the Court adopted.

4. To what extent are the following admissible aids to interpretation?

a) The long title b) Marginal notes c) Explanatory notes d) A Dictionary d) A Royal Commission report e) Hansard

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CHAPTER 3

READING AND USING CASES

The aim of this section is to explore the use of cases.

Learning Outcomes:

Upon completion of this chapter you should be able to:

(i) understand the system of citing cases;

(ii) identify the main features of a case and explain the significance of each;

(iii) explain the process of discovering the ratio decidendi and any obiter dicta of a case;

(iv) identify the status of each court in the hierarchy of courts;

(v) find out how a later case may impact upon an earlier case.

1. LAW REPORTING

The decisions of the appellate courts (the Supreme Court (and its predecessor, the House of Lords), the Privy Council, the Court of Appeal and the High Court) are frequently reported, in a series of law reports. These can be found in bound volumes in the Library or online in the various databases (see further Chapter 4 of this Workbook). The most important series of Law Reports are those published by the Incorporated Council of Law Reporting (ICLR) as their reports are authorised by the judges themselves. The ICLR reports include:

 The Appeal Cases (AC)  The Weekly Law Reports (WLR)  The King’s / Queen’s Bench Reports (KB / QB)  The Chancery Reports (Ch)  The Family Reports (Fam)

There are other series of Law Reports, such as the All England Law Reports (All ER, published by Butterworths) and specialised law reports as the Common Market Law Reports (CMLR), the 23

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Criminal Appeal Reports (Cr App R), the European Court Reports (ECR), the Industrial Case Reports (ICR), and so on. It is possible for the same case to be reported in several different reports, depending on its perceived importance. All the reports should be the same, but this is not guaranteed. Where there is a choice, one of the ICLR reports should be used.

1.2 CASE NAMES

1.2.1 Civil Cases

Most cases in contract, property, tort, etc., are cited with the name of the claimant(s) first, and the name of the defendant(s) second. The claimant’s name usually stays first in all appeals even if the defendant, having lost at trial, brings the appeal. Note: the party bringing the appeal is called the “appellant” and the other party is called the “respondent”. For example:

 Campbell v Mirror Group Newspapers Ltd [2002] EWHC 499 (QB); [2002] EMLR 30 – in this case, the supermodel Naomi Campbell (the claimant) brought an action against Mirror Group Newspapers (MGN) Ltd (the defendant) claiming damages for breach of confidentiality and of the Data Protection Act 1998 over articles with accompanying photographs published in the Mirror newspaper. The case was heard in the Queen’s Bench Division of the High Court. Judgment was given to Ms Campbell. MGN appealed.  Campbell v Mirror Group Newspapers Ltd [2002] EWCA Civ 1373; [2003] QB 633; [2003] 2 WLR 80 – in this case, MGN (the appellant) challenged the decision of the High Court giving judgment to Ms Campbell (the respondent). Note that, although MGN is the appellant, Ms Campbell’s name still appears first, because she was the original claimant. The case was heard in the Court of Appeal (Civil Division). Judgment was given to MGN, i.e. the appeal was allowed and the decision of the High Court reversed. Ms Campbell appealed.  Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22; [2004] 2 AC 457; [2004] 2 WLR 1232 – in this case, Ms Campbell (the appellant) challenged the decision of the Court of Appeal giving judgment to MGN (the respondent). Note that Ms Campbell and MGN have swapped sides – she is now the appellant and MGN is the respondent. The case was heard in the House of Lords. Judgment given to Ms Campbell, i.e. the appeal was allowed and the decision of the Court of Appeal reversed, albeit on a 3:2 majority split decision.

Three exceptions to note In Public Law, you will encounter a number of judicial review cases. These have an unusual citation. For example

 R (on the application of Begum) v Denbigh High School Governors [2004] EWHC 1389 (Admin); [2004] ELR 374 – in this case, Shabina Begum, a Muslim schoolgirl, sought a judicial review of her school’s decision to refuse to allow her to attend classes wearing a jilbab. The case began in

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the Administrative Court (part of the Queen’s Bench Division of the High Court). Judgment was given to the school. Ms Begum appealed.  R (on the application of Begum) v Denbigh High School Governors [2005] EWCA Civ 199; [2005] 1 WLR 3372 – the Court of Appeal allowed Ms Begum’s appeal and reversed the decision of the High Court. The school appealed.  R (on the application of Begum) v Denbigh High School Governors [2006] UKHL 15; [2007] 1 AC 100; [2006] 2 WLR 719 – the House of Lords allowed the appeal and reversed the decision of the Court of Appeal.  Note how, throughout all of the litigation, the case name stayed exactly the same.

You should note that older “judicial review” cases appear rather differently. For example, R v Secretary of State for Transport, ex parte Factortame Ltd & Others [1991] 1 AC 603; [1990] 3 WLR 818 – in this case, the Factortame company is the applicant. This old citation style was changed at the end of the 20th century as part of a general purge of Latin expressions.

In Contract Law, you will encounter a number of shipping cases. It is common in such cases simply to refer to the name of the ship. For example, New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd [1975] AC 154; [1974] 2 WLR 865 is usually referred to simply as The Eurymedon.

In Property Law (and also Company Law and Family Law), you will encounter a number of cases dealing with the legal status, rights and/or obligations of a particular individual or company. These cases may have a name such as Re A (Children) [2001] 2 WLR 480; [2000] 4 All ER 961 or Re Leeds United AFC [2007] EWHC 1761 (Ch); [2007] Bus LR 1560. Here the “Re” stands for “regarding”.

1.2.1 Criminal Cases Most criminal law cases have names such as R v Smith, R v Wilson, etc. The “R” stands for the Crown – it is literally short for “Rex” or “Regina” (meaning “King” or “Queen” in Latin). R v Smith would therefore be pronounced as “the Crown against Smith”.

Some of the older cases have names like Faulkner v Talbot or Oxford v Moss. Cases with this type of name pre-date the formation of the Crown Prosecution Service in the mid 1980s, and individual police officers brought prosecutions. Be careful to note that this style was only used for cases commencing in the Magistrates’ Court. In Faulkner v Talbot (1982) 74 Cr App R 1, PC Talbot prosecuted Patricia Faulkner in Stafford Magistrates’ Court, and in Oxford v Moss (1979) 68 Cr App R 183, PC Oxford prosecuted Paul Moss in Liverpool Magistrates’ Court. From the mid- 1908s onwards, this style of naming cases was discontinued, replaced by names such as DPP v K [1990] 1 WLR 1067 or DPP v Smith [2006] 1 WLR 1571 (the DPP being the Director of Public Prosecutions, the head of the Crown Prosecution Service).

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You will also see cases like Attorney-General's Reference (No 6 of 1980) [1981] 2 All ER 1057 or Attorney-General's Reference (No 3 of 1994) [1998] AC 245. These are cases where there was an acquittal in the Crown Court, but the Attorney-General (the Government’s chief legal advisor) has then referred the case to the Court of Appeal to clarify an important point of criminal law. It is not an appeal.

NB in the case referred to above, DPP v K, “K” is a juvenile offender and hence his anonymity has been protected by the use of an initial rather than his full surname.

1.3 CASE CITATION

It is important to familiarise yourself with the system of case citation. In the preceding sections of this Workbook a number of cases have been cited, such as:

 Quintavalle v Secretary of State for Health [2003] 2 AC 687 – this means that the case is reported in volume 2 of the Appeal Cases for 2003, starting at page 687.  R v Wheatley [1979] 1 WLR 144 – this case is reported in volume 1 of the Weekly Law Reports for 1979, starting at page 144  R v Galvin [1987] QB 862 – this case is reported in the Queen’s Bench reports for 1987 starting at page 862

1.4 THE “NEUTRAL” CITATION

The above citations would help you locate a law report if you wanted to find and read a case. But they tell you nothing else. In particular, there is no indication in which court the case was decided. Nor is there any guarantee that the case was actually decided in the same year in which it was reported – for example, the Wheatley case was decided in the Court of Appeal on 30th October 1978 but was not reported until several months later.

In the early 21st century, therefore, a new “neutral” citation system was started, to run alongside the existing case citations. The “neutral” citation tells you both the court and the year in which the case was decided. For take some examples from cases cited in the previous chapter:

 Westminster City Council v National Asylum Support Service [2002] UKHL 38; [2002] 1 WLR 2956 – this case was decided in the House of Lords in 2002 (and was the 38th case to be decided by the House in that year). It is reported in volume 1 of the Weekly Law Reports for 2002 starting on page 2,956.  Confederation of Passenger Transport UK v Humber Bridge Board [2003] EWCA Civ 842; [2004] QB 310 – this case was decided in the Civil Division of the Court of Appeal for England & Wales in 2003 (and was the 842nd case to be decided in the Civil Division in that year). It is reported in the Queen’s Bench reports for 2004, starting at page 310. 26

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The key abbreviations to be aware of when dealing with “neutral” citations are:

 UKSC – United Kingdom Supreme Court  UKHL – House of Lords  UKPC – Privy Council  EWCA Civ – Court of Appeal, Civil Division  EWCA Crim – Court of Appeal, Criminal Division  EWHC – High Court for England & Wales – followed by the division in brackets, e.g. (Admin), (QBD), etc

2. READING A CASE

Some key Points to note

 Always note the court in which the case was decided, as this determines the precedent value of the judgment (see below)  Always note the year in which the case was decided. Unless you are dealing with a very recent case (decided in the last few months), there is a possibility that the case may have been appealed (unless it was already in the highest court), followed, reversed, overruled or distinguished (see below for explanation of these terms).  Be aware that in England & Wales the appellate courts sit with more than one judge (at least five in the Supreme Court and the Privy Council; at least three in the Court of Appeal; two in the High Court when acting as a Divisional Court). Furthermore: o Each judge is entitled to give his or her own judgment o The individual judges do not necessarily agree with each other. This can lead to divided courts. 3:2 or 4:1 majority judgments in the House of Lords and Supreme Court are not uncommon; likewise, 2:1 majority decisions of the Court of Appeal. o The decision of the majority forms the actual judgment of the court. The minority views are still reported; these are known as “dissenting” judgments. o Do not dismiss dissenting judgments out of hand. The views expressed therein may subsequently form the basis for overturning a decision on appeal or overruling or distinguishing the case in a later case. o Even where the court is unanimous, or where the majority judges have reached the same decision, on closer inspection it may be that the judges did not completely agree with each other! They may have reached the same decision, but for different reasons.

Now try Exercise 3…

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EXERCISE 3

Reading a Case

Read Merritt v Merritt [1970] 2 All ER 760; [1970] 1 WLR 1211 (at the end of this Workbook) and answer the following questions.

1. Read the summary of the facts of the case and state the material facts.

2. (a) From which court is this case reported? (b) From which court had the appeal come?

3. Can you explain the titles of the judges?

- Lord Denning MR - Widgery and Karminski LJJ

4. What was the outcome of the appeal?

5. Was the decision unanimous?

6. In the paragraph beginning “Held-” what do you think it means when it says that Balfour v Balfour, Gould v Gould and Jones v Padavatton were distinguished?

7. What arguments were put forward on behalf of Mr Merritt to support his appeal?

8. What presumption normally applies where agreements are made between husband and wife?

9. In what other relationships does Merritt indicate that the same presumption might apply?

10. As a result of the appeal being dismissed, what is the eventual outcome for Mrs Merritt?

These questions, and the answers to them, will be discussed in one of the Case Law Workshops on Tuesday 5th September (for Distance Learning students) or on Thursday 7th September 2017 (for Full-time students) so it is important to prepare your answers in advance.

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3. USING A CASE

3.1 JUDICIAL PRECEDENT

The English Courts work on a system known as the doctrine of JUDICIAL PRECEDENT. This system is one which has evolved through the common law over the centuries, there is no statute which prescribes its use.

Some terms need to be learnt at this stage which will serve you well for the rest of your degree course and any subsequent training or professional practice.

3.1.1 RATIO DECIDENDI

The ratio decidendi (or simply the ratio) of a case is the principle of law, based upon the material facts, upon which a case is decided. The ratio of a case must be differentiated from the decision in that case. (See below for discussion of how to find the ratio of a case.)

3.1.2 OBITER DICTUM (plural DICTA)

This is literally “something said by the way.” During the course of a judgment a judge may say what he would have decided had the facts of the instant case been slightly different. These types of comments are called obiter dicta. You may see this referred to in texts as “it was said obiter in Smith v Jones that...”. (See below for further discussion of obiter)

3.1.3 REVERSING

When a higher court overturns the decision of a lower court in the same case it is said to have reversed that decision.

3.1.4 OVERRULING

When a higher court overturns a principle which was enunciated by a lower court in an earlier case, it is said to have overruled that case.

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3.1.5 DISTINGUISHING

In some cases, the court will say that a certain precedent does not apply to the case it is deciding because of a difference in the facts of the two cases. The precedent remains valid and so has not been overruled, it has merely been distinguished in that particular case.

3.2 HOW PRECEDENT WORKS: STARE DECISIS

 Watch ‘Introduction to the English Legal System – The Courts’

The courts in England and Wales are arranged in a hierarchical structure. As a general rule, higher courts bind lower courts. The guiding principle is “STARE DECISIS”, meaning stand by decisions which have been made.

3.2.1 THE SUPREME COURT OF THE UNITED KINGDOM www.supremecourt.gov.uk/

The Supreme Court was established by s.23 of the Constitutional Reform Act 2005 in October 2009, replacing the Appellate Committee of the House of Lords. The Supreme Court is the highest domestic court in the United Kingdom for all civil matters, and it is the highest court in England, Wales and Northern Ireland for all criminal matters. Its decisions are binding on all other courts in the UK apart from courts in Scotland with respect to criminal matters.

The Supreme Court is not bound by its own decisions and in certain circumstances may depart from such a previous precedent. However, the Supreme Court does not use this power very often, as this would create great uncertainty in the law.

3.2.2 THE COURT OF APPEAL www.justice.gov.uk/courts/rcj-rolls-building/court-of-appeal

The Court of Appeal is split into two Divisions.

CIVIL DIVISION

The Civil Division of the Court of Appeal is bound by the Supreme Court (and its predecessor, the House of Lords), regardless of whether it actually agrees with the relevant Supreme Court / House of Lords decision. It in turn binds all courts below it.

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NB When Lord Denning was Master of the Rolls, he was apt, when sitting in the Court of Appeal, to disregard House of Lords decisions with which he disagreed, saying that they were made per incuriam. This tactic earned him a rebuke from the Lord Chancellor in the House of Lords in the case of Broome v Cassell [1972] AC 1027; [1972] 2 WLR 645.

The main problem is whether or not the decisions of the Court of Appeal are binding on itself. As a general rule the answer is that it IS bound. However, like many legal rules, there are some exceptions to this, this was set out in the case of Young v British Aeroplane Co Ltd. [1944] KB 718:

(i) If two previous Court of Appeal decisions conflict then the Court will follow one and overrule the other.

(ii) If the Court of Appeal decision in question conflicts with a later Supreme Court / House of Lords decision then the Supreme Court / House of Lords decision is to be followed.

(iii) If the decision was made “per incuriam”, e.g. as the result of a failure by a previous Court of Appeal to consider a binding case or relevant legislation, then it will not be followed.

CRIMINAL DIVISION

This Court deals with appeals against both conviction and sentence. The Court is expected to follow decisions of the Supreme Court (and its predecessor, the Appellate Committee of the House of Lords) and generally speaking does so; however, as explained below, in recent years the Court of Appeal has decided that, in certain circumstances at least, it has the option not to follow a decision of the House of Lords in preference to a more recent decision of the Privy Council.

3.2.3 THE HIGH COURT

The High Court exercises both first instance (where it acts as a trial court) and appellate jurisdiction. The rules of precedent vary according to them being performed by the court.

DIVISIONAL COURTS

When the High Court sits as a court of appeal (or exercises supervisory jurisdiction) it is referred to as a “Divisional Court”. Such courts are bound by the Court of Appeal and the Supreme Court / House of Lords in the usual way.

COURT OF FIRST INSTANCE

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Whilst bound by all courts above it in the hierarchy, when the High Court acts as a trial court it is not strictly bound by its own previous decisions. However, note the practice stated in Colchester Estates (Cardiff) v Carlton Industries plc [1984] 3 WLR 693.

3.2.4 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL www.jcpc.gov.uk/

This was formerly the final appellate court for the British Empire. Some Commonwealth countries are still under its jurisdiction, e.g. Jamaica, as are the Channel Islands, and its decisions still receive attention. The traditional view is that decisions of the Privy Council are only persuasive, but not binding, on other courts in the UK. For example, in R v LeBrun [1991] 3 WLR 653 in the Court of Appeal, Lord Lane CJ referred to the decision of the Privy Council in Thabo Meli v R [1954] 1 WLR 228 and said, “That decision of course is not binding upon us [but] it is of very persuasive authority”.

However, in one case, Attorney General of Jersey v Holley [2005] 2 AC 580, the Privy Council delivered a judgment (on the law of provocation as a defence to murder) that contradicted a 2004 judgment of the House of Lords (R v Smith [2000] UKHL 49; [2001] 1 AC 146).

Although most Commonwealth countries no longer make use of the Privy Council, such as Australia, Canada, New Zealand, and South Africa, you may still find older cases which were heard by the Privy Council on appeal from these countries. Some famous examples include Grant v Australian Knitting Mills Ltd [1936] AC 85 and Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound) [1967] 1 AC 617; [1966] 3 WLR 498 (both appeals from the High Court of Australia) and Maritime National Fish Ltd v Ocean Trawlers Ltd [1935] AC 524 (an appeal from the Supreme Court of Canada).

3.2.5 THE COURT OF JUSTICE OF THE EUROPEAN UNION (CJEU) IN LUXEMBOURG http://curia.europa.eu/jcms/jcms/j_6/

Supremacy of EU law This will be covered extensively in the EU Law and Public Law modules later in the Programme. As a general proposition, all “directly effective” EU legislation takes priority or precedence over any conflicting national legislation. This is a doctrine known as the Supremacy or Primacy of EU Law. According to the Court of Justice of the European Union (CJEU) in Case 6/64 Costa v ENEL (1964):

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“By creating a [Union] of unlimited duration, having its own institutions, its own personality, its own legal capacity… and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the [Union], the Member States have limited their sovereign rights and have thus created a body of law which binds both their nationals and themselves... The integration into the laws of each Member State of provisions which derive from the [Union]… make it impossible for the States… to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system. The executive force of [EU] law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardizing the attainment of the objectives of the Treaty…”

Although this case deals with EU legislation, the same principles apply to decisions of the CJEU. In other words, all decisions of the CJEU are binding on every domestic court throughout the EU (including, in this jurisdiction, the Supreme Court of the United Kingdom). However, the CJEU does not bind itself. Although it usually follows its own case law for the sake of consistency, it has discretion to depart from (i.e., overrule) its own previous rulings.

Brexit impact? The precedent value of decisions of the CJEU when the UK leaves the EU following the referendum on 23rd June 2016 remains to be seen. If the UK leaves the EU entirely (i.e. a “hard” Brexit) then presumably CJEU decisions will have little, if any, precedent value. However, if the EU and UK negotiate a situation whereby the UK remains in the Customs Union and/or the European Economic Area (along with Iceland, Norway and Liechtenstein) (i.e. a “soft” Brexit) then CJEU decisions will presumably continue to be highly important.

The Preliminary Rulings procedure This will be covered extensively in the EU Law module later in the Programme. Where a case in a domestic court involves a question of the interpretation of EU legislation, the court hearing the case may refer the matter to the CJEU in Luxembourg for a ruling. This is known as the “preliminary ruling” procedure. This ruling of the CJEU must then be obeyed by all the courts throughout the EU, not just the court which requested the ruling. The most famous “preliminary ruling” is probably the one given in Case C-415/93 Bosman v Royal Belgian Football Association & Union des Associations Europeennes de Football (UEFA). This was a ruling on the interpretation of several provisions of EU legislation dealing with the free movement of workers (more specifically, professional footballers). Although the ruling was requested by the Court of Appeal in Liège, Belgium, the Bosman ruling itself (that transfer fees for out-of-contract footballers are illegal and that nationality-based quotas in playing squads are also illegal) is binding throughout the EU.

Brexit impact?

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As above. Much will depend on whether the UK leaves the EU with a “hard” or “soft” Brexit. In the former scenario, it would seem extremely unlikely that UK courts will need to access the CJEU as EU Law will no longer be applicable in the UK. However, in the latter scenario, it is feasible that UK courts will need to access the CJEU to seek clarification of at least some provisions of EU Law.

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3.2.6 THE EUROPEAN COURT OF HUMAN RIGHTS (ECtHR) IN STRASBOURG www.echr.coe.int/echr/Homepage_EN

Under s.2(1)(a) of the Human Rights Act 1998, all UK courts are obliged, when ‘determining a question which has arisen in connection with a Convention right’, to ‘take into account’ any ‘judgment, decision, declaration or advisory opinion of the European Court of Human Rights’.

However, it is important to note that – unlike the law of the European Union – there is no doctrine of supremacy of Convention law. All UK courts are obliged to ‘take into account’ Convention law, including decisions of the European Court of Human Rights in Strasbourg, but they are not obliged to give precedence to that law or those decisions. Where an unavoidable conflict between UK law and Convention law arises, UK courts must continue to apply UK law, although s.4(2) of the Human Rights Act 1998 may then come into operation. This states that ‘If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility’.

Brexit impact? None. The European Convention of Human Rights and the European Court of Human Rights are not part of the EU and so Brexit has no effect whatsoever.

3.3 HOW PRECEDENT OPERATES: RATIO AND OBITER

Precedents are either binding or persuasive. A binding precedent is one which a court must follow e.g. the Court of Appeal is bound by the Supreme Court, subject to the above exceptions. The only way to avoid a binding precedent is to distinguish it.

A persuasive precedent may be followed but need not be. There are five main types of these.

1. Obiter Dicta. See Section 3.3.2 below for a detailed explanation of this.

2. Decisions made by a lower court. For example, in R v Whiteley [1991] 93 Cr App R 25, the Court of Appeal used the judgment of the High Court in Cox v Riley (1986) 83 Cr App R 54 on the meaning of ‘damage’ in the context of the Criminal Damage Act 1971 as a persuasive authority.

3. Statements of dissenting judges.

4. Decisions of the Privy Council (see Section 3.2.4 above).

5. Decisions of other Commonwealth Courts (e.g. the High Court of Australia or the Supreme Court of Canada). For example, in R v Burgess [1991] 2 QB 92, the Court of Appeal was analysing the

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defences of automatism and insanity. The specific issue was whether the disappointment of unrequited love could be regarded – like concussion – as an “external” cause, which is necessary for a defence of automatism. Lord Lane CJ said:

“The possible disappointment or frustration caused by unrequited love is not to be equated with something such as concussion. On this aspect of the case, we respectfully adopt what was said by Martin J. and approved by a majority in the Supreme Court of Canada in Rabey v R (1980).”

3.3.1 RATIO DECIDENDI

The ratio of a case is the principle of law, based upon the material facts, which allowed the court to decide the case. Unfortunately, judges do not say “… and for all you law students out there, here is the ratio of this case...”, so careful reading of the whole case is necessary. As a general rule of thumb, when starting to read a case, ask yourself exactly what question is being put before the court. The ratio of the case will be the principle of law the court uses to answer this question.

The main problem is often determining which were the “material” facts. Indeed, the ratio of a case may change over time as views change as to which were the “material” facts. It has to be accepted that the process of finding the ratio is inherently flexible and one is often presented with a choice of rules.

A PRACTICAL EXAMPLE

A well-known contract case decided by Lord Denning in the Court of Appeal is Entores v Miles Far East Corporation [1955] 2 QB 327; [1955] 3 WLR 48. It concerned an international contract. The problem facing the court was whether a writ could be served outside the jurisdiction of the United Kingdom. In order to do this it had to be shown that the contract had been made within the jurisdiction. In essence the question for the court was where the contract was made. The facts were outlined by Lord Denning MR.

“The plaintiffs are an English company. The defendants are an American corporation with agents including a Dutch company in Amsterdam. The plaintiffs say that the contract was made by Telex between the Dutch Company in Amsterdam and the English company in London...Each company has a teleprinter machine in its office and each has a Telex number. When one company wishes to send a message to the other, it gets the Post Office to connect up the machines. Then a clerk at one end taps a message on his machine just as if it were a typewriter and it is instantaneously passed to the machine at the other end which automatically types the message onto the paper at that end. There was a completed contract by which the defendants agreed to supply 100 tons of cathodes at a price of £239 a ton. The offer was sent by Telex from England offering to pay £239 a ton for 100 tons, and accepted by Telex from Holland. The question is where the contract is made”.

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Lord Denning MR concluded that the contract was made in London.

LORD DENNING MR’S REASONING

"When a contract is made by post it is clear law throughout the common law countries that the acceptance is complete as soon as the letter is put in the post box and that is the place where the contract is made. But there is no clear rule about contracts made by telephone or by telex. Communications are virtually instantaneous and stand on a different footing.

The problem can be solved by going in stages...take a case when two people make a contract by telephone. Suppose...that I make an offer to a man by telephone and in the middle of his reply the line goes "dead" so that I do not hear his words of acceptance. There is no contract at that moment. The other man may not know the precise moment at which the line failed. But he will know that the telephone conversation was abruptly broken off because people usually say some things to signify the end of the conversation. If he wishes to make a contract, he must therefore get through again so as to make sure that I heard...The contract is only complete when I have his answer accepting the offer.

Take the telex. Suppose a clerk in a London office taps out on the teleprinter an offer which is immediately recorded on a teleprinter in a Manchester office, and a clerk at that end taps out an acceptance. If the line goes dead in the middle of the sentence of acceptance, the teleprinter motor will stop. There is no contract. The clerk at Manchester must get through again and send his complete sentence. But it may happen that the line does not go dead, yet the message does not get through to London. Thus the clerk at Manchester may tap out his message of acceptance and it may not be recorded in London because the ink at the London end fails or something of this kind.

In that case the Manchester clerk will not know of the failure but the London clerk will know of it and will immediately send back a message "not receiving". Then, when the fault is rectified, the Manchester clerk will repeat his message. Only then is there a contract. If he does not repeat it, there is no contract, it is not until his message is received that the contract is complete. In all the instances I have taken so far, the man who sends the message of acceptance knows that it has not been received or he has reason to know it. So he must repeat it. But, suppose that he does not know that the message did not get home. He thinks it has. This may happen if the listener on the telephone does not catch the words of acceptance, but nevertheless does not trouble to ask for them to be repeated or the teleprinter fails at the receiving end, but the clerk does not ask the message to be repeated so that the man who sends as acceptance reasonably believes that his message has been received. The offeror in such circumstances is clearly bound because he will be stopped from saying that he did not receive the message of acceptance. It is his own fault that he did not get it. But if there should be a case where the offeror without any fault on his

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part does not receive the message of acceptance yet the sender of it reasonably believes it has got home when it has not -then I think there is no contract.”

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THE JUDGMENT ANALYSED

In order to decide how this case is to be used subsequently in the development of the law one must analyse Lord Denning MR’s judgment.

WHAT WERE THE MATERIAL FACTS OF THE CASE?

It could be argued that the material facts identified by Lord Denning MR were:

 goods are to be sold;  parties communicate by Telex;  there was an offer and an acceptance;  the acceptance was sent from abroad and received in England.

In assessing the material facts of a case it is essential always to remember the issue that the court is being asked to decide. The material facts are those facts which are derived from the particular circumstances of the case before the court and are necessary to allow the court to decide the issue raised when the relevant law is applied.

In considering the material facts it must be borne in mind that it is necessary to identify an appropriate level of generality. Thus it must be considered whether it matters that the defendant is an American company with agents in Holland. Surely it is sufficient to say that it operates outside the jurisdiction of this country. Does it matter that the goods are cathodes and the price is £239 per ton? It is sufficient to speak of goods.

THE RATIO IN ENTORES

The ratio which can be derived from Entores could be formulated thus:

“Where a contract is made by telex (and other forms of instantaneous communication?) the acceptance, and therefore the contract, is only complete on receipt of the acceptance”

THE DEVELOPMENT OF THE RATIO IN ENTORES

The statement of the ratio in Entores was extracted from Lord Denning MR’s judgment. Our understanding of the ratio may, however, be refined by examining subsequent cases. As Professor Michael Zander says, “The ratio is not fixed but a formula that is capable of adjustment according to the force of later developments.”

In Brinkibon v Stahag Stahl Und Stahlwarenhandelsgeselschaft GmbH [1983] 2 AC 34, involving a contractual dispute between a British and an Austrian company, the question for the House of Lords was, as in Entores; where was the contract made? Was it within the jurisdiction? The court

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affirmed the ratio of Entores as applying to communications of acceptance by Telex. It also made it clear however, that it did not necessarily apply to all such communications. Lord Wilberforce indicated that while the basic principle was not to be doubted as a general rule, the progress of communications necessitated that a flexible approach be adopted.

“No universal rule can cover all [such] cases they must be resolved by reference to the interests of the parties, by sound business practice and, in some cases, where the risks should lie...”

Thus the ratio stated above has subsequently been modified.

3.3.2 OBITER DICTA

Obiter dicta refers to statements that are not necessary to decide the issue before the court. In many instances such statements arise as the judge speaks of hypothetical situations which do not arise on the facts of the case in question. Such obiter statements do not form part of the ratio decidendi and will not be strictly binding in subsequent cases, but are of persuasive authority. For example, in Entores, Lord Denning discusses the following hypothetical situations:

“Let me first consider a case where two people make a contract by word of mouth in the presence of one another. Suppose, for instance, that I shout an offer to a man across a river or a courtyard but I do not hear his reply because it is drowned by an aircraft flying overhead. There is no contract at that moment. If he wishes to make a contract, he must wait till the aircraft is gone and then shout back his acceptance so that I can hear what he says. Not until I have his answer am I bound.”

Later, Lord Denning says this:

“Take a case where two people make a contract by telephone. Suppose, for instance, that I make an offer to a man by telephone and, in the middle of his reply, the line goes "dead" so that I do not hear his words of acceptance. There is no contract at that moment. The other man may not know the precise moment when the line failed. But he will know that the telephone conversation was abruptly broken off: because people usually say something to signify the end of the conversation. If he wishes to make a contract, he must therefore get through again so as to make sure that I heard. Suppose next, that the line does not go dead, but it is nevertheless so indistinct that I do not catch what he says and I ask him to repeat it. He then repeats it and I hear his acceptance. The contract is made, not on the first time when I do not hear, but only the second time when I do hear. If he does not repeat it, there is no contract. The contract is only complete when I have his answer accepting the offer.”

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As the Entores case did not involve people shouting across rivers, or dead telephone lines, these statements of law are purely obiter.

3.3.3 DISTINGUISHING

Where a precedent has been established, it is only binding on subsequent cases which have the same material facts. The ratio of any case can therefore be avoided by identifying at least one difference in the material facts between that case and the subsequent case. Where that happens, the first case is said to have been “distinguished”. As a consequence, the ratio of the earlier case is narrowed.

For example, in R v Wilson [1997] QB 47, [1996] 3 WLR 125, the Court of Appeal distinguished what would otherwise have been binding precedents established by the Court of Criminal Appeal in R v Donovan [1934] 2 KB 498 and R v Brown & Others [1994] 1 AC 212; [1993] 2 WLR 556 by distinguishing them. The Donovan / Brown cases established the precedent that the common law defence of consent to the infliction of actual bodily harm is not available in the context of injuries which were incurred in the context of sado-masochism, the derivation of pleasure from sexual violence. The Wilson case involved the infliction of actual bodily harm but the context was different: Mr Wilson had branded his initials onto his wife’s buttocks (at her request) for the purposes of “personal adornment”, which was analogous to the perfectly lawful activities of tattooing or piercing. Hence, the Court of Appeal allowed Mr Wilson the defence of consent and his conviction was quashed. Russell LJ stated:

“We are abundantly satisfied that there is no factual comparison to be made between the instant case and the facts of either R v Donovan [1934] 2 KB 498 or R v Brown [1994] 1 AC 212: Mrs. Wilson not only consented to that which the appellant did, she instigated it. There was no aggressive intent on the part of the appellant. On the contrary, far from wishing to cause injury to his wife, the appellant's desire was to assist her in what she regarded as the acquisition of a desirable piece of personal adornment, perhaps in this day and age no less understandable than the piercing of nostrils or even tongues for the purposes of inserting decorative jewellery.”

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3.3.4 FINDING THE RATIO IN A DIVIDED COURT

Entores was decided by the Court of Appeal, and three judges heard the case. They were all in agreement but this is not always the case. The ratio of a case will be found by analysing the judgments of those judges supporting the majority decision.

Of course a group of judges may reach the same decision but may come to it by a variety of routes. They may base their decision on widely different grounds. In R v Inland Revenue Commission. ex parte National Federation of Self Employed and Small Businesses [1982] AC 617, the House of Lords had to decide who had ‘sufficient interest’ to challenge alleged illegal behaviour by the Inland Revenue. A majority of the House found that the applicants lacked the necessary interest to be heard by the court. However, they all based that decision on different propositions of law. One is then faced with a choice of ratio.

Now try Exercise 4…

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EXERCISE 4

USING A CASE

 Read Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1952] 2 QB 795; [1952] 2 All ER 456 (at the end of this Workbook) and consider the following questions:

1. Identify the LEGAL problem faced by the court.

2. What are the MATERIAL FACTS of the case (i.e. the facts the court considers relevant to the decision)?

3. What did the court DECIDE?

4. For what REASONS did the court arrive at the decision it did?

5. In light of your answers to the above what do you think is the ratio decidendi of the case?

6. In which court was the judgment given?

(Once you have discovered the ratio of a case it is necessary to assess its importance. Always note the court giving the decision. If the ratio is that of the Supreme Court (or its predecessor, the Appellate Committee of the House of Lords) then all courts beneath it will be bound by the ratio; if the decision is that of the High Court only the County Courts and Magistrates’ Courts will be bound by applicable precedents. Note a decision of a High Court judge does not bind later High Court Judges).

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SELF-TEST QUESTIONS

NB: Answers on the eLP (after enrolment)

1. A (fictional) case is reported as follows:

Edwards v Thomas [1994] 2 All ER 45

(a) Who is the claimant? (b) Who is the defendant? (c) In what year was the case heard? (d) In which set of reports would you find the case?

2. What is the effect of a case being distinguished?

3. What is the difference between a case being overruled and a case being reversed?

4. If a case is heard by the Court of Appeal, by which precedents is the Court bound in making a decision?

5. What restrictions are placed on the Supreme Court when deciding cases?

6. What is the distinction between binding and persuasive precedents?

7. What are the advantages and disadvantages of the system of judicial precedent?

8. Give four examples of “persuasive” precedents.

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CHAPTER 4

FINDING LAW: AN INTRODUCTION TO LEGAL RESEARCH

1. ACTS OF PARLIAMENT

1.1 Statutes online

The easiest place to find statutory material is online. All Public General Acts are published in full text form on the Official Legislation website at: www.legislation.gov.uk

This is a completely open access public website and you don’t need a password to access it. Statutes are arranged in chronological order, but there is also a Search Engine.

Various databases are available to all Northumbria University students, providing access to the full amended texts of all Public Acts of Parliament in force. These include:

 Lexis Library (www.lexisnexis.com/uk/legal/)

 Westlaw (www.westlaw.co.uk)

The full text of Bills currently before Parliament can be accessed at: www.parliament.uk/

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1.2 Statutes in the Library

In the library you will find the following series of Acts:

Series Contents Spines of Volumes

1. Public General Acts Statutes 1849 - Calendar year/chapter nos and Measures

2. Statutes in Force All Statutes in force Names of major subject HMSO 1972 - in the UK arranged areas (e.g. Elections) (Loose leaf) alphabetically by subject Incorporates some amendments

3. Current Law Statutes Statutes 1948 - Regnal year/calendar year Annotated

4. Halsbury’s Statutes of All Statutes in force Names of major subject England 4th ed arranged alphabetically areas (e.g. Housing) Annotated by subject Regularly updated with amendments

2. DELEGATED LEGISLATION

Statutory instruments are the most common form of delegated legislation and the only form of delegated legislation that you are likely to need on this Programme. They are referred to by the abbreviation SI followed by the year and instrument number e.g. SI 1992/666 is Statutory Instrument number 666 of 1992. All SI’s have names as well – this SI is the Town & Country Planning (Control of Advertisements) Regulations 1992.

All statutory instruments from 1987 – present, along with some of the more important older instruments – can be found at www.legislation.gov.uk/uksi. Lexis Library and Westlaw also provide access to the full amended text of all statutory instruments of general application in force in England and Wales.

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3. EU LEGISLATION

Finding and using European Union legislation is dealt with when studying the EU Law module. However, essentially, EU Legislation follows the same system as legislation in the UK in that it is divided into primary and secondary legislation.

Primary legislation There are three pieces of primary EU Legislation:

1. The Treaty on European Union 1992 (as amended) 2. The Treaty on the Functioning of the European Union 2009 3. The Charter of Fundamental Rights of the EU

All can be found here: http://eur-lex.europa.eu/collection/eu-law/treaties.html

Secondary Legislation EU secondary legislation comes in various forms, but the most important are Regulations and Directives. They can be found here: http://eur-lex.europa.eu/collection/eu-law/legislation/recent.html

4. CASE LAW

4.1 Case law on-line

The easiest way to find case law is online. There are various sources.

BAILII Decisions of English and many overseas courts may be found online at www.bailii.org (the website of the British and Irish Legal Information Institute). This is a completely open access public website and you don’t need a password to access it. Other databases are available to Northumbria students:

Westlaw The Westlaw database is accessible via www.westlaw.co.uk

Lexis Library Lexis Library is accessible via www.lexisnexis.com/uk/legal/

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4.2 Case law in the Library

The Law Library contains several series of law reports, in hardbound volumes, including:

 The Appeal Cases  The Weekly Law Reports  The King’s / Queen’s Bench Reports  The Chancery Reports  The All England Law Reports

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PHARMACEUTICAL SOCIETY OF GREAT BRITAIN v BOOTS CASH CHEMISTS (SOUTHERN) LTD (1952)

Poisons - Sale of poisons - Self-service system - Selection of articles by customer from shelves - Payment in presence of qualified pharmacist - Pharmacy and Poisons Act, 1933 (23 & 24 Geo 5, c 25), section 18 (1) (a) (iii) Contract - Offer and acceptance - Sale of goods - Self service - Time of sale

SPECIAL CASE stated by the parties under R S C Ord 34 r 1.

The defendants carried on a business comprising the retail sale of drugs at their premises at Edgware, which were entered in the register of premises kept pursuant to s.12 of the Pharmacy and Poisons Act, 1933, from which they regularly sold drugs by retail. The premises comprised a single room so adapted that customers might serve themselves and the business there was described by a printed notice at the entrance as “Boot’s Self-Service.” On entry each customer passed a barrier where a wire basket was obtained. Beyond the barrier the principal part of the room which contained accommodation for 60 customers, contained shelves around the wall and on an island fixture in the centre, on which articles were displayed. One part of the room was described by a printed notice as the “Toilet Dept.,” and another part as the “Chemists’ Dept.” On the shelves in the chemists’ department drugs, including proprietary medicines, were severally displayed in individual packages or containers with a conspicuous indication of the retail price of each. The drugs and proprietary medicines covered a wide range and one section of the shelves in the chemists’ department was devoted exclusively to drugs which were included in or which contained substances included in Part I of the Poisons List referred to in s.17(1) of the Pharmacy and Poisons Act, 1933; no such drugs were displayed on any shelves outside the section to which a shutter was fitted so that at any time all the articles in that section could be securely enclosed and excluded from display. None of the drugs in that section came within the First Schedule to the Poisons Rules, 1949 (SI 1949, No 539).

The staff employed by the defendants at the premises comprised a manager, a registered pharmacist, three assistants and two cashiers, and during the time that the premises were open for the sale of drugs the manager, the registered pharmacist, and one of more of the assistants were present in the room. Each customer selected from the shelves the article that he wished to buy and placed it in the wire basket; in order to leave the premises the customer had to pass by one of two exits at each of which was a cash desk where a cashier was stationed who scrutinised the articles selected by the customer, assessed the value and accepted payment. The chemists’ department was under the personal control of the registered pharmacist, who carried out all his duties at the premises subject to the directions of a superintendent appointed by the defendants in accordance with the provisions of s.9 of the Act. The pharmacist was stationed near the poisons section, where his certificate of registration was conspicuously displayed and was in view of the cash desks. In every case involving the sale of a drug the pharmacist supervised that part of the transaction which took place at the cash desk and was authorised by the defendants to prevent at that stage of the transaction, if he thought fit, any customer

Northumbria Law School Induction to Law from removing any drug from the premises. No steps were taken by the defendants to inform customers before they selected any article which they wished to purchase of the pharmacist's authorisation.

On April 13, 1951, at the defendant's premises, two customers, following the procedure outlined above, respectively purchased a bottle containing a medicine known as compound syrup of hypophosphites, containing 0.01% w/V strychnine, and a bottle containing medicine known as famel syrup, containing 0.023% W/V codeine, both of which substances are poisons included in Part I of the Poisons List, but, owing to the small percentages of strychnine and codeine respectively, hypophosphites and famel syrup do not come within the First Schedule to the Poisons Rules, 1949.

The question for the opinion of the court was whether the sales instanced on April 13, 1951, were effected by or under the supervision of a registered pharmacist in accordance with the provisions of s.18(1)(a)(iii) of the Pharmacy and Poisons Act, 1933.

LORD GODDARD CJ. This is a special case stated under Ord 34, r 1, by agreement between the parties concerning the application of s.18 of the Pharmacy and Poisons Act, 1933.

[His Lordship stated the facts substantially as set out above and continued:] The question which I have to decide is whether the sale is completed before or after the intending purchaser has passed the scrutiny of the pharmacist and paid his money, or, to put it in another way, whether the offer which initiates the negotiations is an offer by the shopkeeper or an offer by the buyer.

In the well-known case of Carlill v Carbolic Smoke Ball Co the company offered compensation to anybody who, having used a carbolic smoke ball for a certain length of time in a prescribed manner, contracted influenza. One of the inducements held out to people to buy the carbolic smoke ball was the representation that it was a specific against influenza. The plaintiff, who used it according to the prescription which was given, nevertheless, as might have been expected, contracted influenza. She then sued the Carbolic Smoke Ball Co for, and recovered the compensation. In the Court of Appeal Bowen LJ said: "There can be no doubt that where a person in an offer made by him to another person, expressly or impliedly intimates a particular mode of acceptance as sufficient to make the bargain binding, it is only necessary for the other person to whom such offer is made to follow the indicated method of acceptance; and if the person making the offer, expressly or impliedly intimates in his offer that it will be sufficient to act on the proposal without communicating acceptance of it to himself, performance of the condition is a sufficient acceptance without notification."

Mr Lloyd-Jones has said that in this case the defendants invite the public to come into their shop and say: “Help yourself to any of these articles, all of which are priced,” and that that is an offer by the defendants to sell to any person who comes into the shop any of the articles so priced, which is accepted by any person who helps himself to any one of those articles. Mr Glyn-Jones, on the other hand, contends that there is nothing revolutionary in this kind of trading, and that it amounts to no more than the exposure of goods which a shopkeeper sometimes makes either outside or inside his premises, while at the same time he leaves some goods behind the counter. I think that it is a well-established principle that the mere exposure of goods for sale by a shopkeeper indicates to the public that he is 50

Northumbria Law School Induction to Law willing to treat but does not amount to an offer to sell. I do not think I ought to hold that that principle is completely reversed merely because there is a self-service scheme, such as this, in operation. In my opinion it comes to no more than that the customer is informed that he may himself pick up an article and bring it to the shopkeeper with a view to buying it, and if, but only if, the shopkeeper then expresses his willingness to sell, the contract for sale is completed. In fact, the offer is an offer to buy, and there is no offer to sell; the customer brings the goods to the shopkeeper to see whether he will sell or not. In 99 cases out of a 100 he will sell and, if so, he accepts the customer’s offer, but he need not do so. The very fact that the supervising pharmacist is at the place where the money has to be paid is an indication to the purchaser that the shopkeeper may not be willing to complete a contract with anybody who may bring the goods to him.

Ordinary principles of common sense and of commerce must be applied in this matter, and to hold that in the case of self-service shops the exposure of an article is an offer to sell, and that a person can accept the offer by picking up the article, would be contrary to those principles and might entail serious results. On the customer picking up the article the property would forthwith pass to him and he would be able to insist upon the shopkeeper allowing him to take it away, though in some particular cases the shopkeeper might think that very undesirable. On the other hand, if a customer had picked up an article, he would never be able to change his mind and to put it back; the shopkeeper could say, “Oh no, the property has passed and you must pay the price,”

It seems to me, therefore, that the transaction is in no way different from the normal transaction in a shop in which there is no self-service scheme. I am quite satisfied it would be wrong to say that the shopkeeper is making an offer to sell every article in the shop to any person who might come in and that that person can insist on buying any article by saying “I accept your offer.” I agree with the illustration put forward during the case of a person who might go into a shop where books are displayed. In most book- shops customers are invited to go in and pick up books and look at them even if they do not actually buy them. There is no contract by the shopkeeper to sell until the customer has taken the book to the shopkeeper or his assistant and said “I want to buy this book” and the shopkeeper says, “Yes.” That would not prevent the shopkeeper, seeing the book picked up, saying: “I am sorry I cannot let you have that book; it is the only copy I have got and I have already promised it to another customer.” Therefore, in my opinion, the mere fact that a customer picks up a bottle of medicine from the shelves in this case does not amount to an acceptance of an offer to sell. It is an offer by the customer to buy and there is no sale effected until the buyer's offer to buy is accepted by the acceptance of the price. The offer, the acceptance of the price, and therefore the sale, take place under the supervision of the pharmacist. That is sufficient to satisfy the requirements of the section, for by using the words “the sale is effected by, or under the supervision of, a registered pharmacist.” I think, too, that the sale is effected under his supervision if he is in a position to say “You must not have that; that contains poison,” so that in any case, even if I were wrong in the view that I have taken on the question as to when the sale was completed, and it was completed when the customer took the article from the shelf, it would still be effected under the supervision of the pharmacist within the meaning of s.18.

There must therefore be judgment for the defendants.

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FISHER v BELL (1961)

A shopkeeper displayed in his shop window a knife of the type commonly known as a “flick knife” with a ticket behind it bearing the words “Ejector knife - 4s”. An information was preferred against him by the police alleging that he had offered the knife for sale contrary to section 1 (1) of the Restriction of Offensive Weapons Act, 1959, but the justices concluded that no offence had been committed under the section and dismissed the information. On appeal by the prosecutor: -

Held, that in the absence of any definition in the Act extending the meaning of “offer for sale,” that term must be given the meaning attributed to it in the ordinary law of contract, and as thereunder the display of goods in a shop window with a price ticket attached was merely an invitation to treat and not an offer for sale, the acceptance of which constituted a contract, the justices had correctly concluded that no offence had been committed.

Keating v Horwood (1926) 28 Cox CC 198, DC and Wiles v Maddison [1943] WN 40; [1943] 1 All ER 315, DC distinguished.

Per Lord Parker CJ. At first sight it seems absurd that knives of this sort cannot be manufactured, sold, hired, lent or given, but can apparently be displayed in shop windows; but even if this is a casus omissus it is not for the court to supply the omission.

LORD PARKER C J read section 1 (1) of the Restriction of Offensive Weapons Act 1959, stated the facts and continued:

The sole question is whether the exhibition of that knife in the window with the ticket constituted an offer for sale within the statute. I confess that I think most lay people and, indeed, I myself when I first read the papers, would be inclined to the view that to say that if a knife was displayed in a window like that with a price attached to it was not offering it for sale was just nonsense. In ordinary language it is there inviting people to buy it, and it is for sale; but any statute must of course be looked at in the light of the general law of the country. Parliament in its wisdom in passing an Act must be taken to know the general law. It is perfectly clear that according to the ordinary law of contract the display of an article with a price on it in a shop window is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract. That is clearly the general law of the country. Not only is that so, but it is to be observed that in many statutes and orders which prohibit selling and offering for sale of goods it is very common when it is so desired to insert the words “offering” or “exposing for sale,” “exposing for sale” being clearly words which would cover the display of goods in a shop window. Not only that, but it appears that under several statutes - we have been referred in particular to the Prices of Goods Act, 1939 and the Goods and Services (Price Control) Act, 1941 - Parliament, when it desires to enlarge the ordinary meaning of those words, includes a definition section enlarging the ordinary meaning of “offer for sale” to cover other matters including, be it observed, exposure of goods for sale with the price attached.

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In those circumstances I am driven to the conclusion, thought I confess reluctantly, that no offence was here committed. At first sight it sounds absurd that knives of this sort cannot be manufactured, sold, hired, lent, or given, but apparently they can be displayed in shop windows; but even if this - and I am by no means saying it is - is a casus omissus it is not for this court to supply the omission. I am mindful of the strong words of Lord Simonds in Magor and St Mellons Rural District Council v Newport Corporation. In that case one of the Lords Justices in the Court of Appeal had, in effect, said that the court having discovered the supposed intention of Parliament must proceed to fill in the gaps - what the Legislature has not written the court must write - and in answer to that contention Lord Simonds in his speech said: “it appears to me to be a naked usurpation of the legislative function under the thin disguise of “interpretation”.

Approaching this matter apart from authority, I find it quite impossible to say that an exhibition of goods in a shop window is itself an offer for sale. We were, however, referred to several cases, one of which is Keating v Horwood, a decision of this court. There, a baker’s van was being driven on its rounds. There was bread in it that had been ordered and bread in it that was for sale, and it was found that that bread was under weight contrary to the Sale of Food Order 1921. That order was an order of the sort to which I have referred already which prohibited the offering or exposing for sale. In giving his judgment, Lord Hewart C J said this: “The question is whether on the facts there were, (1) an offering, and (2) an exposure, for sale. In my opinion, there were both.”

Avory J said: “I agree and have nothing to add.” Shearman J, however, said: “I am of the same opinion. I am quite clear that this bread was exposed for sale, but have had some doubt whether it can be said to have been offered for sale until a particular loaf was tendered to a particular customer.” There are three matters to observe on that case. The first is that the order plainly contained the words “expose for sale,” and on any view there was an exposing for sale. Therefore the question whether there was an offer for sale was unnecessary for decision. Secondly, the principles of general contract law were never referred to, and thirdly, albeit all part of the second ground, the respondent was not represented and there was in fact no argument. I cannot take that as an authority for the proposition that the display here in a shop window was an offer for sale.

The other case to which I should refer is Wiles v Maddison. I find it unnecessary to go through the facts of that case, which was a very different case and where all that was proved was an intention to commit an offence the next day, but in the course of his judgment Viscount Caldecote C J said: “A person might, for instance, be convicted of making an offer of an article of food at too high a price by putting it in his shop window to be sold at an excessive price, although there would be no evidence of anybody having passed the shop window or having seen the offer or the exposure of the article for sale at that price.” Again, be it observed, that was a case where under the Meat (Maximum Retail Prices) Order, 1940 the words were “No person shall sell or offer or expose for sale or buy or offer to buy.” Although the Lord Chief Justice does refer to the making of an offer by putting it in the shop window, before the sentence is closed he has in fact turned the phrase to one of exposing the article. I cannot get any assistance in favour of the prosecutor from that passage. Accordingly, I have come to the conclusion in this case that the justices were right, and this appeal must be dismissed. 53

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ASHWORTH J I agree.

ELWES J I also agree.

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MERRITT v MERRITT (1970)

COURT OF APPEAL, CIVIL DIVISION LORD DENNING MR, WIDGERY AND KARMINSKI LJJ 27th APRIL 1970

Contract - Intention to create legal relations - Presumption against intention -Presumption inapplicable - Husband and wife not living in amity - Evidence disclosing intention to create legal relationship - Agreement after separation - Husband providing for wife - Wife paying off mortgage on matrimonial home - Husband to transfer home to wife after mortgage redeemed.

The husband and wife were married in 1941 and had three children. In 1966, the husband became attached to another woman and left the matrimonial home to live with her. At that time, the matrimonial home, a freehold house, was in the joint names of the husband and wife, and was subject to an outstanding mortgage of some £180. The wife pressed the husband to make arrangements for the future, and on 25th May 1966, they met and talked the matter over in the husband's car. The husband said that he would pay the wife £40 a month out of which she must make the outstanding mortgage payments on the house and he gave her the building society mortgage book. Before leaving the car the wife insisted that the husband should put down in writing a further agreement, and on a piece of paper he wrote: ‘In consideration of the fact that you will pay all charges in connection with the house... until such time as the mortgage repayment has been completed, when the mortgage has been completed I will agree to transfer the property in to your sole ownership.’ The husband signed and dated that agreement, and the wife took the piece of paper away with her. In the following months she paid off the mortgage, partly out of the husband's monthly payment to her and partly out of her own earnings. When the mortgage was paid off the husband refused to transfer the house to the wife.

Held - The written agreement of 25th May 1966 was intended to create legal relations between the parties because the presumption of fact against such an intention where arrangements were made by a husband and wife living in amity did not apply to arrangements made when they were not living in amity but were separated or about to separate, when (per Lord Denning MR) it might safely be presumed that they intended to create legal relations; the surrounding circumstances in the present case showed that the parties did so intend; accordingly, the wife was entitled to sue on the agreement, and it being sufficiently certain and there being good consideration by the wife paying off the mortgage, she was entitled to a declaration that she was the sole owner of the house and to an order that the husband join in transferring it to her.

Balfour v Balfour [1918-19] All ER Rep 860, Jones v Padavatton [1969] 2 All ER 616, and Gould v Gould [1969] 3 All ER 728 distinguished.

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Appeal

This was an appeal by the husband, John Bertram Merritt, against the judgment of Stamp J, given on 14th May 1969, whereby he held that the wife, Millicent Joan Merritt, was entitled to a declaration that she was now the sole beneficial owner of the matrimonial home, a freehold property known as 133 Clayton Road, Hook, Surrey, and ordered the husband to join with the wife in transferring the property to her. Stamp J also dismissed the husband’s counterclaim that the property was owned by the parties in equal shares. The facts are set out in the judgment of Lord Denning MR.

A A R Thompson for the husband. M G Johnston for the wife.

LORD DENNING MR. The husband and the wife were married as long ago as 1941. After the war, in 1949 they got a building plot and built a house. It was a freehold house, 133 Clayton Road, Hook, Chessington. It was in the husband's name, with a considerable sum on mortgage with a building society. There they lived and brought up their three children, two daughters, now aged 20 and 17, and a boy now 14. The wife went out to work and contributed to the household expenses. Early in 1966 they came to an agreement whereby the house was to be put in joint names. That was done. It reflected the legal position when a house is acquired by a husband and wife by financial contributions of each. But, unfortunately, about that time the husband formed an attachment for another woman. He left the house and went to live with her. The wife then pressed the husband for some arrangement to be made for the future. On 25th May, they talked it over in the husband’s car. The husband said that he would make the wife a monthly payment of £40 and told her that out of it she would have to make the outstanding payments to the building society. There was only £180 outstanding. He handed over the building society’s mortgage book to the wife. She was herself going out to work, earning net £7 10s a week. Before she left the car she insisted that he put down in writing a further agreement. It forms the subject of the present action. He wrote these words on a piece of paper:

‘In consideration of the fact that you will pay all charges in connection with the house at 133 Clayton Road, Chessington, Surrey, until such time as the mortgage repayment has been completed, when the mortgage has been completed I will agree to transfer the property in to your sole ownership. Signed. John B Merritt 25.5.66.’

The wife took that paper away with her. She did, in fact, over the ensuing months pay off the balance of the mortgage, partly, maybe, out of the money the husband gave her, £40 a month, and partly out of her own earnings. When the mortgage had been paid off, he reduced the £40 a month to £25 a month.

The wife asked the husband to transfer the house into her sole ownership. He refused to do so. She brought an action in the Chancery Division for a declaration that the house should belong to her and for an order that he should make the conveyance. The judge, Stamp J, made the order; but the husband now appeals to this court. 56

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The first point taken on his behalf by counsel for the husband was that the agreement was not intended to create legal relations. It was, he says, a family arrangement such as was considered by the court in Balfour v Balfour and in Jones v Padavatton. So the wife could not sue on it. I do not think that those cases have any application here. The parties there were living together in amity. In such cases their domestic arrangements are ordinarily not intended to create legal relations. It is altogether different when the parties are not living in amity but are separated, or about to separate. They then bargain keenly. They do not rely on honourable understandings. They want everything cut and dried. It may safely be presumed that they intend to create legal relations.

Counsel for the husband then relied on the recent case of Gould v Gould, when the parties had separated, and the husband agreed to pay the wife £12 a week ‘so long as he could mange it’. The majority of the court thought that those words introduced such an element of uncertainty that the agreement was not intended to create legal relations. But for that element of uncertainty, I am sure that the majority would have held the agreement to be binding. They did not differ from the general proposition which I stated:

‘When ... husband and wife, at arm’s length, decide to separate and the husband promises to pay a sum as maintenance to the wife during the separation, the court does, as a rule, impute to them an intention to create legal relations.’

In all these cases the court does not try to discover the intention by looking into the minds of the parties. It looks at the situation in which they were placed and asks itself: would reasonable people regard the agreement as intended to be binding?

Counsel for the husband sought to say that this agreement was uncertain because of the arrangement for £40 a month maintenance. That is obviously untenable. Next he said that there was no consideration for the agreement. That point is no good. The wife paid the outstanding amount to the building society. That was ample consideration. It is true that the husband paid her £40 a month, which she may have used to pay the building society. But still her act in paying was good consideration. Counsel for the husband took a small point about rates. There was nothing in it. The rates were adjusted fairly between the parties afterwards. Finally, counsel for the husband said that, under s 17 of the Married Women’s Property Act 1882, this house would be owned by the husband and the wife jointly; and that, even if this house were transferred to the wife, she should hold it on trust for them both jointly. There is nothing in this point either. The paper, which the husband signed, dealt with the beneficial ownership of the house. It was intended to belong entirely to the wife.

I find myself in entire agreement with the judgment of Stamp J. This appeal should be dismissed.

WIDGERY LJ. I agree with Lord Denning MR’s judgment, feeling, as he does, that no criticism can be levelled at the finding of the learned judge below.

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When a husband and wife are living together in amity it is natural enough to presume that their discussions about money matters are not intended to create legally binding contracts. As Atkin LJ said in Balfour v Balfour.

‘The common law does not regulate the form of agreements between spouses. Their promises are not sealed with seals and sealing wax. The consideration that really obtains for them is that natural love and affection which counts for so little in these cold Courts.’

But, of course, once that natural love and affection has gone, as it normally has when the marriage has broken up, there is no room at all for the application of such a presumption. Salmon LJ made this clear in Jones v Padavatton, to which reference has already been made, where he said:

‘... as a rule when arrangements are made between close relations, for example, between husband and wife, parent and child or uncle and nephew in relation to an allowance, there is a presumption against an intention of creating any legal relationship. This is not a presumption of law, but of fact. It derives from experience of life and human nature which shows that in such circumstances men and women usually do not intend to create legal rights and obligations, but intend to rely solely on family ties of mutual trust and affection.’

The experience of life and human nature which raises this presumption in the case of a husband and wife living together in amity does not support it when the affection which produces that relationship of confidence has gone.

I find it unnecessary to go so far as to say that there is a presumption in favour of the creation of legal relationships when the marriage is breaking up, but certainly there is no presumption against the creation of such legal relations as there is when the parties are living happily together.

I would dismiss this appeal.

KARMINSKI LJ. I agree, and only desire to add this. It is in my view of great importance, in considering whether or not an agreement of the kind which we have to consider here would create legal relations, to look at the surrounding facts. In the present case on 20th May 1966, the husband informed the wife that he was in love with another woman with whom he was living, and he added these words: ‘when the house is paid for I will consider signing over the other half to you.’ That was followed five days later by the meeting in the motor car which resulted, after full discussion, in the signing of the agreement to which reference has already been made by Lord Denning MR. I do not propose to read it again.

In deciding therefore whether or not an agreement is intended to establish legal relations, it seems to me essential to look at the surrounding circumstances. In Balfour v Balfour the relevant facts were that the husband, who was employed in government service in Ceylon, had to return there in 1916. The wife could not join him there at any rate for the time being because of her own ill-health and the husband agreed to pay her £30 a month for her support. At that time therefore the agreement was a perfectly

Northumbria Law School Induction to Law friendly one occasioned by a separation which was not at any rate at that time, the desire of either of them.

In the present case it is manifest that the husband had left the wife by his own, choice, because he preferred the company of another woman. He was therefore not only presumably committing adultery with her, but was also in desertion. The wife therefore had several grounds for which she could have commenced divorce proceedings, or taken such proceedings as she might have been advised for maintenance, either in a magistrates' court or in the High Court, on the ground of desertion or wilful neglect to maintain. In fact no proceedings became necessary, because the husband arranged to pay £40 a month, and undertook that when she had discharged a small amount outstanding on the mortgage he would transfer the property to her sole ownership.

I have no doubt, therefore, that on the facts of this case Stamp J was perfectly correct in coming to the conclusion which he formed, and I agree that this appeal must be dismissed.

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MARSHALL v BBC (1979)

LORD DENNING MR This case raises a short point on the interpretation of the Representation of the People Act 1969. Mr James Marshall is the Labour candidate in the constituency of Leicester South. There are three other candidates - Conservative, Liberal and National Front.

On Monday 23rd April 1979 the British Broadcasting Corporation (the BBC) decided to send out a camera unit to film all the candidates during the course of the election campaign. They told Mr Marshall that they were going to film all the candidates for the purpose of a programme which they were going to broadcast. Mr Marshall said that he would not willingly take part in any such programme.

On Wednesday 25th April Mr Marshall was campaigning outside the East Midlands Gas Board in Leicester. He suddenly became aware that he was being filmed by a BBC camera crew. He protested. He said that he had not consented to take part in a programme and that the camera crew were infringing his rights as a candidate. The BBC crew did not accept his protest. They continued to film him.

Thereupon Mr Marshall issued a writ against the BBC. He asked the court for an injunction to restrain them from broadcasting without his consent any item in which he took part in which the National Front candidate also took part. He would not mind the BBC broadcasting a programme which contained himself and the Conservative and Liberal candidates: but he would not consent if it contained the National Front candidate as well. The judge granted an injunction to that effect.

The BBC now appeal to this court. They say that Mr Marshall has not a veto of this kind. It all depends on a few words in section 9 of the Representation of the People Act 1969. Subsection (1) of that section provides:

“Pending a parliamentary or local government election it shall not be lawful for any item about the constituency or electoral area to be broadcast from a television or other wireless transmitting station in the United Kingdom if any of the persons who are for the time being candidates at the election takes part in the item and the broadcast is not made with his consent.”

It is said on behalf of Mr Marshall that the words 'takes part in' means if he is shown on the item. He is shown on this film. So he takes part in it. The BBC say the contrary. They say the words ‘takes part in’ mean ‘actively participating’ in the item. It is only if he actively participates in the item that he has a power of veto. That is the contest.

Looking at the mischief at which the statue is aimed, it seems to me that it is designed to protect a person who actively participates in a programme - as in the case of a candidate who is sitting on a panel, or is being questioned by an interviewer. A candidate who is being interviewed on television may be

Northumbria Law School Induction to Law cross-examined by the interviewer and forced into a position in which he gives answers which he afterwards regrets. It is only right that he should be protected. The programme should not be transmitted except with his consent. Furthermore all these programmes are edited. The result of the editing may be that an impression is given which is quite unfair to the person who was taking part in that way. That is the mischief at which the subsection is aimed. It is to protect a candidate who is actively participating in a programme if he thinks that it shows him a bad light.

But it seems to me that that does not apply to a candidate who has not actively participated in a programme. A candidate who merely acquiesces in a film being taken or in a speech being taped does not actively participate. Nor does a candidate who co-operates by being filmed walking around the constituency. Such candidates cannot object to the broadcast being made.

It is important to observe that the BBC has accepted a duty to be impartial in their programmes. This is especially important during an election campaign. They are not to favour one candidate or party more than another candidate or party. Take this very case. If Mr Marshall is right, he can say: ‘Film of the National Front candidate is not to be shown in this review of the constituency at all.’ If he says that about the National Front, he can say it about any other opposing party. He could say to the BBC “Either them or me, but you have to choose between us”. If they have to choose between two parties, they are ceasing to be impartial.

If Mr Marshall’s claim were correct, it would mean that the BBC would no longer be impartial. They would be forced by this veto to become partial.

The words ‘takes part in’ do not mean ‘is shown in’. They do not even go so far as to mean ‘co-operates in’. They apply only when the candidate actively participates in the item. If he actively participates in the item, then he has a veto: and the item is not to be shown except with his consent. The BBC should be free to present an impartial account of film of an election campaign - impartially as between the various candidates, whatever colour they might be.

I would allow the appeal and hold that Mr Marshall has not a veto here.