EXAMINATION QUESTIONS
David and Victoria had been married for several years. Victoria has suffered many years of violence and abuse from David as a consequence suffered from extreme depression. One evening on his way out of the house, David insulted Victoria, calling her hideous (ugly, revolting, dreadful) and revealed that he was having an affair with her sister. Feeling extremely depressed, Victoria drank a half bottle of whisky. A few hours later, David returned, and with a sneer, told her that he had a wonderful evening. Victoria picked up a bottle of whisky and intending to cause David serious injury hit him on the head. David died from the injuries sustained.
Discuss Victoria’s liability for homicide of David.
Murder
Murder is committed where a person, intending to kill or intending to cause grievous bodily harm and in the absence of a defence, unlawfully kills another human being (Moloney 1985); (Vickers 1957). It is instructive not that it is clear from the facts of the question that Victoria killed David and did so with intention to cause serious injury. Therefore she will be convicted for murder unless she takes advantage of the defence of either provocation and or diminished responsibility, both of which reduced liability to manslaughter.
The actus reus of murder consist of causing the death of a human being. Based on the fact of the question, David died from the injury sustained when Victoria hit on the head.
The mens rea for murder requires proof of an intention to kill or cause grievous bodily harm (Vickers 1957) and GBH means serious bodily harn (Sounder 1985). Victoria intends to cause serious injury which is adequate intention for murder.
DEFENCE
Provocation
There are two elements to the defence. The first, subjective element, concerns the question of whether the defendant as a result of provocation, suffered a temporary loss of self control (Duffy [1949]). The jury when considering this issue, may take into account anything said or done or a combination of things said and done (s.3 of the Homicide Act of 1957; Acott (1997) The comments made by David immediately before Victoria killed him may be considered by the jury to be the last straw precipitating a loss of self-control and the spontaneously of her response is a good evidence that the loss of self-control was sudden and temporary (Ahluwalia, Thorton).
The second element of the test – the objective test – requires the jury to consider whether the provocation would have caused a reasonable man to do as the defendant did (s.3 of the Homicide Act 1957).
Following Holley and James; Karimi Victoria’s depressive condition may not be taken into account by the Jury, nor may her drunkenness. However, the jury should be directed to consider whether a woman with ordinary powers of self-control having experienced a history of abuse would have reacted as Victoria did.
Diminished Responsibility
Alternatively, Victoria may be able to take advantage of the defence of diminished responsibility, which, like provocation, reduces liability from murder to manslaughter 9s.2(3) of the Homicide Act 1957. The burden is on the defendant to prove, on the balance of probabilities (s.2(2); Dubar (1958), that she was suffering from an ‘abnormality of the mind’ resulting from a condition of arrested development of mind or any inherence causes or induced by diseases or injury, that substantially impaired his responsibility for the killing (s.2(i).
In Byrne (1960) it was held that 'abnormality of mind' means a state of mind so different from that of an ordinary people that the reasonable man would term it abnormal and may include conditions which affect the powers of self-control of the defendant. Victoria's depressive condition may amount to an abnormality of the mind provide the pleas is supported by psychiatric evidence (Dix [1981].
If the jury are of the opinion that both the mental abnormality and the drink played a part in impairing Victoria’s mental responsibility and caused her to kill David she is not precluded from relying on the defence but the effects of the alcohol may not be taken into account. If the jury are satisfied that, despite the drink, her depressive condition amounted to a mental abnormality substantially impairing her responsibility then the defence should be allowed (Dietschmann).
The question whether the abnormality impaired the defendant's mental responsibility is also one for the jury. In Llyod (1967). It was held that the impairment need not be 'total' bit there must be more than 'trivial' degree of impairment.
Tuesday, May 6, 2008
INCOHATE OFFENCES
INCITEMENT – CONSPIRACY – ATTEMPT
INCITEMENT
Incitement is a common law offence punishable with fine or imprisonment. Its existence dates back to Higgins (1801) and recent case of Goldman (2001).
Actus reus: D incites another person to do an act which if done, will involve commission of an offence. The actus reus requires more than a mere expression of desire that a consequence be brought about. There must be some element of persuasion or encouragement or some form of pressure (Race Relation Board v Applin [1973])
Mens rea: D intends or belief that the person incited if he acts as incited will do so with the mens rea required for the offence.
Mikosiyan (1966) Justice Holmes in the South African Case was approved in Goldman. CA in Marlow (1977) pointed out that the definition omits reference to the word ‘encourage’ Most (1881) that it is not necessary for the solicitation to be directed towards a particular individual, it may also be addressed to a number of person such as newspaper advertisement.
Clayton (2005): A incite boy 14 to commit burglary and was convicted of inciting, but because the boy was incapable of committing the offence at the time, the offence was quashed. Curr (1966) which was wrongly decided was overruled by Clayton (2005). Bodin (1979) – you cannot be charge with inciting some to be an accomplice.
CONSPIRACY
Conspiracy is an agreement with one or more person to commit an offence. There cannot be conspiracy unless there is a concluded agreement, at which time the offence is complete, whether the parties thereafter seek to put the agreement into effect is inconsequential. There must be agreement between two or more person and you cannot conspire with your wife, a child or the victim. Husband and wife could however conspire with a third part. Chrastny (1991) once D1 is aware of the existence of the third party there is liability. Hollinshead (1983) Court of Appeal decided that conspiracy must be for the commission of an offence and not to aid or abet the commission. In essence one of the parties to the conspiracy must be a principal to the commission of the offence.
Impossibility does not preclude liability for statutory conspiracy s.1(1) b of CLA sub-clause B was added by s.5 of Criminal Attempt Act 1981 to overrule the decision of the House of Lords in Nock (1978).
Mens rea: D must know the existence of the other party and the circumstances of the actus reus of the substantive offence. Anderson (1986) It is not important that a party to agreement and intended that the offence was committed.
Yop-Chiu Cheng (1994) – PC crime of conspiracy requires an agreement between two or more person with intention to carry it out. Lord Grifith state that it is the intention to carry out the crime that constitute the necessary mens rea for the offence of conspiracy. Lord Bridge and active participation. Lord O, Connor LJ in Siracusa explain that what Lord Bridge mean either active or passive participation. Conditional intention is a criminal conspiracy – I will carry out the crime if the condition is conducive.
ATTEMPT
Attempt: s.1(1) of Criminal Attempts Act 1981.
Actus reus: Doing an act which is more than preparatory to the commission of the substantive offence. s.4(3). It is a question for the jury, whether an occurrence is an attempt or not. Only if the Judge is satisfied that there is evidence upon which a jury could properly conclude that D perform an act which was more than merely preparatory to the commission of the offence allegedly attempted should he rule that there is a case to answer.
In complete attempt D has done everything but failed to achieve his object. However, there is a problem with incomplete attempt. Gullefer (1996) Jumped into a dog track to get £18, not attempt. Campbell (1991) Caught in from of post office with harmer, a number of act remain undone and conviction quashed.
Mens rea: D acted with intent to commit crime. Intention to do GBH will suffice for murder and only an intention kill will suffice for attempted murder. O’Toole – recklessness would suffice for the offence, prove that D intended to cause damage for attempted offence. For circumstantial offences if element of recklessness will suffice for full offence it will also suffice for attempt.
The question is if D has achieved what he intended, he would have been guilty of the full offence. If the answer is yes, he is guilty of an attempt to commit the offence.
An impossible attempt is nonetheless an attempt (Shivpuri [1997]). Taafe (1984): Importing cannabis, while thinking it was currency was not an offence since importing current was not an offence.
IMPOSSIBILITY AND INCOHATE OFFENCES
INCITEMENT AND IMPOSSIBILITY – This is governed by Common law and impossibility will provide a defence unless it results from the inadequacy of means.
IMPOSSIBILITY, CONSPIRACY AND ATTEMPT: The fact that the objective of the conspiracy or attempt is impossible of performance does not preclude liability for statutory conspiracy.
THE FRAMEWORK OF SECONDARY LIABILITY
S.8 of the Accessories and Abettors Act 1861 provides …… and Potter LJ in Bryce stated: Persons who come within the statutory genus are variously depicted as accomplices, accessories or secondary parties. It seem that in respect at least, the term ‘secondary parties’ is preferable because it emphasise that the secondary liability of an accomplice is derivative from the liability of the principal offender.
MODELS OF PARTICIPATION - AID, ABET, COUNSEL AND PROCURE
The act provides for aid, abet, counsel and procure Attorney General’s Reference (No. 1 of 1975) (1975). Lord Widgery said the words should be give their ordinary meaning. The former technical distinctions are now redundant (Howe [1987]) and there are in effect the following three modes of participation due to overlap of the terms:
Encouraging the principal to commit the offence
Assisting the principal to commit the offence
Procuring the commission of the offence
It is advisable to use the catch-all-phrase aid, abet, counsel and procure.
Actus reus consist of an act (or possibly omission ) which aids, abets, counsel or procure the commission by the perpetrator of the principal offence.
AID – type of assistance given prior to the commission of the offence. It is mo necessary that the principal must be aware. Bryne (2004) On the instruction a major drug dealer D2 assisted D1, a hit killer, to killer a rival dealer. D2 appealed on conviction that 12 hours difference between his involvement and commission of the crime was too remote. Court of Appeal rule that delay in the commission of crime does not negate liability.
of the of Criminal Law Act 1977 – conspiracy to defraud and conspiracy to corrupt public officials
ABET OR COUNSEL – Inciting and encouraging the commission of an offence. Calheem (1983) – D2 who hire D1 to kill V who was having an affair with D2’s solicitor. Court ruled that there was no requirement that the encouragement was sine qua non of the offence. Giannetto (1997): The fact that the principal had already decided to commit the offence would not relieve an alleged accomplice liability. Any encouragement suffice.
PROCURE
In Attorney General’s Reference (No. 1 of 1975) – to procure is to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that thing. D2 lace D1 drink with alcohol. When D1 drove home he committed a strict liability offence of driving with an excess alcohol in his blood. It was held that D had procured the offence. There is no requirement that the parties have communicated. It may also apply to crime requiring mens rea, where D1 had been acquitted for lack of mens rea, incapacity or availability of defence. Cogan and Leak (1975) Court of Appeal held that a man could be convicted as an accomplice for rape even though the perpetrator was acquitted for lack of mens rea.
MENS REA:
The act of assistance, encouragement or procuring was done intentionally. In Clarkson (1971) mere presence at the scene of crime – even deliberate presence – is not enough to give rise to secondary liability. Neither was non-interference to prevent a crime.
At the time of act of assistance or encouragement or procuring D2 contemplated or foresaw the commission of the offence by D1 (Johnson v Youden [1950]). It is not necessary that he intended the crime to be committed 9NCB V Gamble [1959])
Foresight as a basis for secondary liability – It is sufficient that at the time of acting D2 foresaw that D1 might commit an offence of the type he actually commit, without having the knowledge of the precise crime intended. Bainbridge (1960). Hyde and others (1991)
Powell: HL held it is sufficient to found a conviction for murder for a secondary party to have realised that in the course of joint enterprise the perpetrator might kill with intent to do so or with intent to cause GBH
The level of foresight required – The secondary liability is liable unless the risk was so remote that the jury was of the view that he genuinely dismissed it as altogether negligible – Powell and Daniels; English (1991)
Foresight of an act of the type committed by D1 – English – killed a policemen with a knife while the intention was to use a wood.
Whether the act is fundamentally different is a question of fact – this are more a less a question of fact for the jury – O’Flaherty
D2 is not a party to killing if the acts of D1 are different from those foreseen (Uddin (1998) If the jury conclude that the death of V was cause by the act of DI which are completely different from the type contemplated by the others. Anderson and Morris (1966)
Where D1 perform an act foreseen by D2 but with a more serious intent. – the Secondary party is liable for the consequence to the extent of his own mens rea. Gilmour (2000)]
Liability for unforeseen consequences – where D2 is liable for the acts done by D1 his liability extend to unusual or unforeseen consequences – Anderson; Morris (1966)
The secondary party may be liable for more serious offence than the perpetrator – where D1 suffers from the abnormality of the mind which can provide a defence D2 will suffer the full consequence – Howe (1987)
WITHDRAWAL
A person can escape liability by withdrawal before the offence is commited or has reach a stage of attempt – Grundy (1977). Effective withdrawal depends on the circumstances and a fact for the jury. Communication is necessary. O’Flaherty – it was not necessary that step is taken to prevent the crime
type of assistance given prior to the commission of the offence. It is mo necessary that the principal must be aware. Bryne (2004) On the instruction a major drug dealer D2 assisted D1, a hit killer, to killer a rival dealer. D2 appealed on conviction that 12 hours difference between his involvement and commission of the crime was too remote. Court of Appeal rule that delay in the commission of crime does not negate liability.
of the of Criminal Law Act 1977 – conspiracy to defraud and conspiracy to corrupt public officials
INCITEMENT
Incitement is a common law offence punishable with fine or imprisonment. Its existence dates back to Higgins (1801) and recent case of Goldman (2001).
Actus reus: D incites another person to do an act which if done, will involve commission of an offence. The actus reus requires more than a mere expression of desire that a consequence be brought about. There must be some element of persuasion or encouragement or some form of pressure (Race Relation Board v Applin [1973])
Mens rea: D intends or belief that the person incited if he acts as incited will do so with the mens rea required for the offence.
Mikosiyan (1966) Justice Holmes in the South African Case was approved in Goldman. CA in Marlow (1977) pointed out that the definition omits reference to the word ‘encourage’ Most (1881) that it is not necessary for the solicitation to be directed towards a particular individual, it may also be addressed to a number of person such as newspaper advertisement.
Clayton (2005): A incite boy 14 to commit burglary and was convicted of inciting, but because the boy was incapable of committing the offence at the time, the offence was quashed. Curr (1966) which was wrongly decided was overruled by Clayton (2005). Bodin (1979) – you cannot be charge with inciting some to be an accomplice.
CONSPIRACY
Conspiracy is an agreement with one or more person to commit an offence. There cannot be conspiracy unless there is a concluded agreement, at which time the offence is complete, whether the parties thereafter seek to put the agreement into effect is inconsequential. There must be agreement between two or more person and you cannot conspire with your wife, a child or the victim. Husband and wife could however conspire with a third part. Chrastny (1991) once D1 is aware of the existence of the third party there is liability. Hollinshead (1983) Court of Appeal decided that conspiracy must be for the commission of an offence and not to aid or abet the commission. In essence one of the parties to the conspiracy must be a principal to the commission of the offence.
Impossibility does not preclude liability for statutory conspiracy s.1(1) b of CLA sub-clause B was added by s.5 of Criminal Attempt Act 1981 to overrule the decision of the House of Lords in Nock (1978).
Mens rea: D must know the existence of the other party and the circumstances of the actus reus of the substantive offence. Anderson (1986) It is not important that a party to agreement and intended that the offence was committed.
Yop-Chiu Cheng (1994) – PC crime of conspiracy requires an agreement between two or more person with intention to carry it out. Lord Grifith state that it is the intention to carry out the crime that constitute the necessary mens rea for the offence of conspiracy. Lord Bridge and active participation. Lord O, Connor LJ in Siracusa explain that what Lord Bridge mean either active or passive participation. Conditional intention is a criminal conspiracy – I will carry out the crime if the condition is conducive.
ATTEMPT
Attempt: s.1(1) of Criminal Attempts Act 1981.
Actus reus: Doing an act which is more than preparatory to the commission of the substantive offence. s.4(3). It is a question for the jury, whether an occurrence is an attempt or not. Only if the Judge is satisfied that there is evidence upon which a jury could properly conclude that D perform an act which was more than merely preparatory to the commission of the offence allegedly attempted should he rule that there is a case to answer.
In complete attempt D has done everything but failed to achieve his object. However, there is a problem with incomplete attempt. Gullefer (1996) Jumped into a dog track to get £18, not attempt. Campbell (1991) Caught in from of post office with harmer, a number of act remain undone and conviction quashed.
Mens rea: D acted with intent to commit crime. Intention to do GBH will suffice for murder and only an intention kill will suffice for attempted murder. O’Toole – recklessness would suffice for the offence, prove that D intended to cause damage for attempted offence. For circumstantial offences if element of recklessness will suffice for full offence it will also suffice for attempt.
The question is if D has achieved what he intended, he would have been guilty of the full offence. If the answer is yes, he is guilty of an attempt to commit the offence.
An impossible attempt is nonetheless an attempt (Shivpuri [1997]). Taafe (1984): Importing cannabis, while thinking it was currency was not an offence since importing current was not an offence.
IMPOSSIBILITY AND INCOHATE OFFENCES
INCITEMENT AND IMPOSSIBILITY – This is governed by Common law and impossibility will provide a defence unless it results from the inadequacy of means.
IMPOSSIBILITY, CONSPIRACY AND ATTEMPT: The fact that the objective of the conspiracy or attempt is impossible of performance does not preclude liability for statutory conspiracy.
THE FRAMEWORK OF SECONDARY LIABILITY
S.8 of the Accessories and Abettors Act 1861 provides …… and Potter LJ in Bryce stated: Persons who come within the statutory genus are variously depicted as accomplices, accessories or secondary parties. It seem that in respect at least, the term ‘secondary parties’ is preferable because it emphasise that the secondary liability of an accomplice is derivative from the liability of the principal offender.
MODELS OF PARTICIPATION - AID, ABET, COUNSEL AND PROCURE
The act provides for aid, abet, counsel and procure Attorney General’s Reference (No. 1 of 1975) (1975). Lord Widgery said the words should be give their ordinary meaning. The former technical distinctions are now redundant (Howe [1987]) and there are in effect the following three modes of participation due to overlap of the terms:
Encouraging the principal to commit the offence
Assisting the principal to commit the offence
Procuring the commission of the offence
It is advisable to use the catch-all-phrase aid, abet, counsel and procure.
Actus reus consist of an act (or possibly omission ) which aids, abets, counsel or procure the commission by the perpetrator of the principal offence.
AID – type of assistance given prior to the commission of the offence. It is mo necessary that the principal must be aware. Bryne (2004) On the instruction a major drug dealer D2 assisted D1, a hit killer, to killer a rival dealer. D2 appealed on conviction that 12 hours difference between his involvement and commission of the crime was too remote. Court of Appeal rule that delay in the commission of crime does not negate liability.
of the of Criminal Law Act 1977 – conspiracy to defraud and conspiracy to corrupt public officials
ABET OR COUNSEL – Inciting and encouraging the commission of an offence. Calheem (1983) – D2 who hire D1 to kill V who was having an affair with D2’s solicitor. Court ruled that there was no requirement that the encouragement was sine qua non of the offence. Giannetto (1997): The fact that the principal had already decided to commit the offence would not relieve an alleged accomplice liability. Any encouragement suffice.
PROCURE
In Attorney General’s Reference (No. 1 of 1975) – to procure is to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that thing. D2 lace D1 drink with alcohol. When D1 drove home he committed a strict liability offence of driving with an excess alcohol in his blood. It was held that D had procured the offence. There is no requirement that the parties have communicated. It may also apply to crime requiring mens rea, where D1 had been acquitted for lack of mens rea, incapacity or availability of defence. Cogan and Leak (1975) Court of Appeal held that a man could be convicted as an accomplice for rape even though the perpetrator was acquitted for lack of mens rea.
MENS REA:
The act of assistance, encouragement or procuring was done intentionally. In Clarkson (1971) mere presence at the scene of crime – even deliberate presence – is not enough to give rise to secondary liability. Neither was non-interference to prevent a crime.
At the time of act of assistance or encouragement or procuring D2 contemplated or foresaw the commission of the offence by D1 (Johnson v Youden [1950]). It is not necessary that he intended the crime to be committed 9NCB V Gamble [1959])
Foresight as a basis for secondary liability – It is sufficient that at the time of acting D2 foresaw that D1 might commit an offence of the type he actually commit, without having the knowledge of the precise crime intended. Bainbridge (1960). Hyde and others (1991)
Powell: HL held it is sufficient to found a conviction for murder for a secondary party to have realised that in the course of joint enterprise the perpetrator might kill with intent to do so or with intent to cause GBH
The level of foresight required – The secondary liability is liable unless the risk was so remote that the jury was of the view that he genuinely dismissed it as altogether negligible – Powell and Daniels; English (1991)
Foresight of an act of the type committed by D1 – English – killed a policemen with a knife while the intention was to use a wood.
Whether the act is fundamentally different is a question of fact – this are more a less a question of fact for the jury – O’Flaherty
D2 is not a party to killing if the acts of D1 are different from those foreseen (Uddin (1998) If the jury conclude that the death of V was cause by the act of DI which are completely different from the type contemplated by the others. Anderson and Morris (1966)
Where D1 perform an act foreseen by D2 but with a more serious intent. – the Secondary party is liable for the consequence to the extent of his own mens rea. Gilmour (2000)]
Liability for unforeseen consequences – where D2 is liable for the acts done by D1 his liability extend to unusual or unforeseen consequences – Anderson; Morris (1966)
The secondary party may be liable for more serious offence than the perpetrator – where D1 suffers from the abnormality of the mind which can provide a defence D2 will suffer the full consequence – Howe (1987)
WITHDRAWAL
A person can escape liability by withdrawal before the offence is commited or has reach a stage of attempt – Grundy (1977). Effective withdrawal depends on the circumstances and a fact for the jury. Communication is necessary. O’Flaherty – it was not necessary that step is taken to prevent the crime
type of assistance given prior to the commission of the offence. It is mo necessary that the principal must be aware. Bryne (2004) On the instruction a major drug dealer D2 assisted D1, a hit killer, to killer a rival dealer. D2 appealed on conviction that 12 hours difference between his involvement and commission of the crime was too remote. Court of Appeal rule that delay in the commission of crime does not negate liability.
of the of Criminal Law Act 1977 – conspiracy to defraud and conspiracy to corrupt public officials
MENTAL DISORDER DEFENCES
MENTAL DISORDER DEFENCES
INSANITY
Disease of the mind which caused a defect of reasoning which makes D not to know the nature and quality of his act.
No purpose is served in deterring and blaming someone who clearly lacks mental responsibility for his actions. Denial of mens rea defences. A defendant who claimed to be insane must first be judge fit to plead or stand trial. A successful plea of sane automatism will lead to acquittal while that of insane automatism will lead to a) compulsory committal to psychiatric institution for indefinite detention; b) release under supervision and discharge from 1991. M'Nagthen rule. Every person is sane and answerable for his crime unless otherwise proven.
Disease of the mind is a legal question and not medical one and the leading case is Sullivan (1984) AC. Lord Diplock clarifies meaning of insanity as follows:
a) As stated in Bratty (1963) should be understood in ordinary meaning of mental facilities of reasoning, memory and understanding and impairment to these facility is insanity.
b) Causes of the disease and whether organic (epilepsy) or functional are not important
DEFECT OF REASONING
Disease of the mind must cause impairment of facility of reasoning, memory or understanding for the defence to stand [Clark (1972). The defence will fail where D use her sense of reasoning. It must be proved that D did not know the nature and quality of his act (physical nature); Did not know that what he was doing was wrong (legal nature) Windle (1952) who gave his mentally ill wife an overdose of aspirin.
The loss of control or consciousness must be complete Attorney General's Reference (Np. 2 of 1992) (1994). Lorry driver who killed two people. Medical evidence showed that he suffered from repetitive visual stimuli, trance like state but retain some control.
AUTOMATISM AND INTOXICATION
Voluntary consumption of non-prescription drugs or alcohol. Automatism is treated as a form of intoxication and have applied Majewski. For specific intent offence D may be acquited provided there is complete loss of consciousness. If it is a basic offence, success will depend on what cause intoxication. Voluntary consumption, where D knew the impact.
REFORM
The present definition of insanity does not accord with modern perception or mental illness.
EXAMINATION ADVISE
FRANK
Theft contrary to section 1 of the Theft Act of 1968.
Actus Reus: Dishonest appropriation (assumption of the rights of the owner [Morris (1983)]of property belonging to another person.
Mens rea: Intention to permanently deprive the other of it.
The fact of the questions shows that Frank assumed the right of the owner by using the money to pay his debt.
DEFENCE:
Frank could plead a duress of circumstances as the defence for his crime. The question for the jury is if Frank believes that there is a threat to his life. The fact of the question indicates that it was without foundation which renders it possible mistaken belief. Mistaken belief in relation to duress must be reasonable - Graham. Is the perceived threat (if reasonable) imminent?
Does Frank has an avenue of escape. He might be thought to have an avenue of escape if he belief that Grant is likely to kill him himself. As grant is not there he may be able to seek the protection of the Police and this case may resemble Heath and Hassan but might be different from Hudson.
If he believes Grant has sent his son to kill him, he may belief the threat is more imminent, but the jury had to consider whether the belief is reasonable (James is a young boy and speak in a squeaky voice.
If Frank can satisfy this part of the test, the jury must then judge his action by the standard of a person of reasonable firmness. The jury will take into accounts the fact that he was a former cocaine addict, his paranoia. Self-defence would not apply here because Frank committed theft and did not use force.
INSANITY
Disease of the mind which caused a defect of reasoning which makes D not to know the nature and quality of his act.
No purpose is served in deterring and blaming someone who clearly lacks mental responsibility for his actions. Denial of mens rea defences. A defendant who claimed to be insane must first be judge fit to plead or stand trial. A successful plea of sane automatism will lead to acquittal while that of insane automatism will lead to a) compulsory committal to psychiatric institution for indefinite detention; b) release under supervision and discharge from 1991. M'Nagthen rule. Every person is sane and answerable for his crime unless otherwise proven.
Disease of the mind is a legal question and not medical one and the leading case is Sullivan (1984) AC. Lord Diplock clarifies meaning of insanity as follows:
a) As stated in Bratty (1963) should be understood in ordinary meaning of mental facilities of reasoning, memory and understanding and impairment to these facility is insanity.
b) Causes of the disease and whether organic (epilepsy) or functional are not important
DEFECT OF REASONING
Disease of the mind must cause impairment of facility of reasoning, memory or understanding for the defence to stand [Clark (1972). The defence will fail where D use her sense of reasoning. It must be proved that D did not know the nature and quality of his act (physical nature); Did not know that what he was doing was wrong (legal nature) Windle (1952) who gave his mentally ill wife an overdose of aspirin.
The loss of control or consciousness must be complete Attorney General's Reference (Np. 2 of 1992) (1994). Lorry driver who killed two people. Medical evidence showed that he suffered from repetitive visual stimuli, trance like state but retain some control.
AUTOMATISM AND INTOXICATION
Voluntary consumption of non-prescription drugs or alcohol. Automatism is treated as a form of intoxication and have applied Majewski. For specific intent offence D may be acquited provided there is complete loss of consciousness. If it is a basic offence, success will depend on what cause intoxication. Voluntary consumption, where D knew the impact.
REFORM
The present definition of insanity does not accord with modern perception or mental illness.
EXAMINATION ADVISE
FRANK
Theft contrary to section 1 of the Theft Act of 1968.
Actus Reus: Dishonest appropriation (assumption of the rights of the owner [Morris (1983)]of property belonging to another person.
Mens rea: Intention to permanently deprive the other of it.
The fact of the questions shows that Frank assumed the right of the owner by using the money to pay his debt.
DEFENCE:
Frank could plead a duress of circumstances as the defence for his crime. The question for the jury is if Frank believes that there is a threat to his life. The fact of the question indicates that it was without foundation which renders it possible mistaken belief. Mistaken belief in relation to duress must be reasonable - Graham. Is the perceived threat (if reasonable) imminent?
Does Frank has an avenue of escape. He might be thought to have an avenue of escape if he belief that Grant is likely to kill him himself. As grant is not there he may be able to seek the protection of the Police and this case may resemble Heath and Hassan but might be different from Hudson.
If he believes Grant has sent his son to kill him, he may belief the threat is more imminent, but the jury had to consider whether the belief is reasonable (James is a young boy and speak in a squeaky voice.
If Frank can satisfy this part of the test, the jury must then judge his action by the standard of a person of reasonable firmness. The jury will take into accounts the fact that he was a former cocaine addict, his paranoia. Self-defence would not apply here because Frank committed theft and did not use force.
JUSTIFICATORY DEFENCES
JUSTIFICATORY DEFENCES
Substantive defences are defences to fully constituted crimes. There is mens rea, actus reus but the circumstance render D either partially or wholly not to blame for his action. The are either excusatory (conduct which are wrong in law, but excused in certain circumstances) or justificatory (conduct which are justified is permissible and therefore not wrong in law).
SELF DEFENCE:
s.3 of Criminal Law Act 1967. For self defence, force must be necessary. Gladstone (Williams) 1984. Honest (subjective) belief that force is necessary is adequate. It is only if the mistaken belief is induced by intoxication that it must be reasonable (objective. Article 2 of Human Rights Act: life can only be taken where it is absolute necessary. Bird (1985) It was reasonable to use force rather than peaceful escape, pre-emptive strike in Beckford (1990), Browne (1972). Where D provoked victim he cannot rely on self-defence Balogun (1999).
Force may be used to defence property provided the force used is reasonable (Martin kill in defence of property). Standard to be used is ordinary standard of reasonable person Owino (1995. Proportionality is also import for example killing to prevent killing and not to present assault. The defence cannot be used to reduce a charge of murder to manslaughter. It is a total and full defence.
NECESSITY
This is a very narrow and difficult defence to use London Borough of Southwork v William (1971). House of Lords said, necessity would open a door which no man could shut e.g. hunger as a defence for stealing, homeless as a defence for tresspass. Duddly and Stevens (1884) Men marooned at sea wreck and 3 of them decided to kill and eat the cabin boy to survive hunger. Plea of necessity rejected by the courts. Re A (Conjoined Twins) 2001 and Re F (Mental Patient: Sterilisation (1990)sterilised mentally unbalanced person who cannot consent. The defence may be available in common law where:
It is in the best interest of the patient - Re F (1990)
D has statutory duty to act - Police officer (Johnson Philips (1978)
In exceptional cases such as Re A (2001) where it is necessary and proportionate to avoid an 'inevitable' evil. Narrowly applied defence.
EXAMINATION ADVISE
Never assume that D would be charged for an offence. Go through the actus reus and mens rea
EXCUSATORY AND MENTAL DISORDER DEFENCE
DURESS
Form of pressure put upon D which compelled him to act unlawfully. It may come from another person (duress by threat) from situation (duress of circumstance. It must involve serious threat of death or injury Howe (1987)and it is not a defence for murder [Golfs (1992)], but available for other crimes.
Threats i.e of death or serious injury. Threat to property will not suffice. Threat to D or another. Threat need not be directed to D [Pomwell 1995)]; Conway (1988) and Martin (1989). The threat must not come from D himself - Rodger and Rose (1998)
Threat must be operative at the time of the offence and must compel D to act. Valderrama-Vega (1985)
Defendant must not put himself in a position where he is likely to be threatened [Sharp (1987) who joined a gang of Armed Robbers; Shepherd (1988); Heath (2000)heroin addict
Mistake as to threats: Reasonable belief as to existence of threat would suffice [Graham (1982)]. Honest belief would not suffice. Inconsistence was criticised in Safi (2003) but Court of Appeal approved Graham.
Threat must be imminent harm: Threat that would be carried out immediately and there is no avenue for escape. If the threat is not immediate, it must be imminent enough to operate on the mind of D.
Read Hudson and Taylor (1970_ Heath (2000) Hassan (2005) - Drug addicts who acted under duress.
The jury will examine
whether D had the opportunity to escape
Whether a sober person of reasonable firmness sharing D's characteristics would have responded in the way D did [ Graham (1982)]. Objective decision like defence of provocation.
Whether the threat would have overcome the will of a person having the ability to resist threat which can reasonably be expected of a person with D's characteristics (Bowen (1996)].
Duress of circumstances [William (1986) should have been left to the Jury. Road trafic cases - Conway (1988); Havis (1994); Powell 91995) and it apply to all offences except murder and attempted murder. Being a branch of duress all requirements of duress must be satisfied.
Substantive defences are defences to fully constituted crimes. There is mens rea, actus reus but the circumstance render D either partially or wholly not to blame for his action. The are either excusatory (conduct which are wrong in law, but excused in certain circumstances) or justificatory (conduct which are justified is permissible and therefore not wrong in law).
SELF DEFENCE:
s.3 of Criminal Law Act 1967. For self defence, force must be necessary. Gladstone (Williams) 1984. Honest (subjective) belief that force is necessary is adequate. It is only if the mistaken belief is induced by intoxication that it must be reasonable (objective. Article 2 of Human Rights Act: life can only be taken where it is absolute necessary. Bird (1985) It was reasonable to use force rather than peaceful escape, pre-emptive strike in Beckford (1990), Browne (1972). Where D provoked victim he cannot rely on self-defence Balogun (1999).
Force may be used to defence property provided the force used is reasonable (Martin kill in defence of property). Standard to be used is ordinary standard of reasonable person Owino (1995. Proportionality is also import for example killing to prevent killing and not to present assault. The defence cannot be used to reduce a charge of murder to manslaughter. It is a total and full defence.
NECESSITY
This is a very narrow and difficult defence to use London Borough of Southwork v William (1971). House of Lords said, necessity would open a door which no man could shut e.g. hunger as a defence for stealing, homeless as a defence for tresspass. Duddly and Stevens (1884) Men marooned at sea wreck and 3 of them decided to kill and eat the cabin boy to survive hunger. Plea of necessity rejected by the courts. Re A (Conjoined Twins) 2001 and Re F (Mental Patient: Sterilisation (1990)sterilised mentally unbalanced person who cannot consent. The defence may be available in common law where:
It is in the best interest of the patient - Re F (1990)
D has statutory duty to act - Police officer (Johnson Philips (1978)
In exceptional cases such as Re A (2001) where it is necessary and proportionate to avoid an 'inevitable' evil. Narrowly applied defence.
EXAMINATION ADVISE
Never assume that D would be charged for an offence. Go through the actus reus and mens rea
EXCUSATORY AND MENTAL DISORDER DEFENCE
DURESS
Form of pressure put upon D which compelled him to act unlawfully. It may come from another person (duress by threat) from situation (duress of circumstance. It must involve serious threat of death or injury Howe (1987)and it is not a defence for murder [Golfs (1992)], but available for other crimes.
Threats i.e of death or serious injury. Threat to property will not suffice. Threat to D or another. Threat need not be directed to D [Pomwell 1995)]; Conway (1988) and Martin (1989). The threat must not come from D himself - Rodger and Rose (1998)
Threat must be operative at the time of the offence and must compel D to act. Valderrama-Vega (1985)
Defendant must not put himself in a position where he is likely to be threatened [Sharp (1987) who joined a gang of Armed Robbers; Shepherd (1988); Heath (2000)heroin addict
Mistake as to threats: Reasonable belief as to existence of threat would suffice [Graham (1982)]. Honest belief would not suffice. Inconsistence was criticised in Safi (2003) but Court of Appeal approved Graham.
Threat must be imminent harm: Threat that would be carried out immediately and there is no avenue for escape. If the threat is not immediate, it must be imminent enough to operate on the mind of D.
Read Hudson and Taylor (1970_ Heath (2000) Hassan (2005) - Drug addicts who acted under duress.
The jury will examine
whether D had the opportunity to escape
Whether a sober person of reasonable firmness sharing D's characteristics would have responded in the way D did [ Graham (1982)]. Objective decision like defence of provocation.
Whether the threat would have overcome the will of a person having the ability to resist threat which can reasonably be expected of a person with D's characteristics (Bowen (1996)].
Duress of circumstances [William (1986) should have been left to the Jury. Road trafic cases - Conway (1988); Havis (1994); Powell 91995) and it apply to all offences except murder and attempted murder. Being a branch of duress all requirements of duress must be satisfied.
FAILURE OF PROOF DEFENCES
FAILURE OF PROOF DEFENCES
MISTAKE
Where the defendant makes a mistake this may give rise to defence in a number of way. A mistake as to fact may negate actus reus.
Mistake to to law (fact)
Mistake about consequences and not recklessness
Mistake as to surrounding circumstances, duress, self defence.
Mistake as to law is no defence. Exception in s.2(1) of the Theft Act 1968. It is statutory defence in law to claim that D mistakenly thought that the property belong to him Smith (David) (1974)
Factual Mistake - Tolson (1889) D was charged with biggamy when her husband went missing for 5 years and thinking he was dead she remarried. Court requires that the mistake must be reasonable as well as honestly held.
In B v DPP (2002)L HL state that factual mistake which negative mens rea need only be honestly held by D.
Mistake as to surrounding circumstance; Williams (Gladstone ) 1984 mistaken belief in surrounding circumstances need only to be honestly held and does not have to be reasonable.
Drunken Mistake: Honest belief in circumstances doest not apply to where D is intoxicated and where the mistake was induced by voluntary intoxication - O'Gardy (1987)
Mistake relating to mens rea: a failure to appreciate the consequences which flowed from an act can be a 'defence' as it can render prosection unable to prove subjective mens reas under the subjective test of recklessness which now appears universally (after R v G (2003)) that honest but mistaken belief would negative mens rea. The same is also true of intent whether direct of oblique Woolin (1998) since those state of mind are also assessed subjectively. One exception is mens rea sfor rape and sexual offence which requires reasonable as well honest belief.
INTOXICATION
Majewski (1971) attempted to find legal solution to the problem of intoxication and lack of mens
Level of intoxication:
The more intoxicated you are (possibly involuntary) the more likely you are to have a defence of intoxication. However in Sheehan and More (1975 a drunken intent is nevertheless an intent.
Voluntary Intoxication:
Intoxication will only afford a defence it D has commited a crime of specif intent and would not be available for basic intent offence Majewski (1976) House of Lord adotped the rule outlined in DPP v Beard (1920). Basic intent offence can be committed recklessly, only intent will suffice as mens rea for specific intent offences. It was worth nothing that Majewski breached the rule of contemporaneity as actus reus and mens rea occur at different time. Continuing Act Thabo Neli (1954) or Fagan (1969. Cunnigham (1959) recklessness must involve actual foresight. Majewski remains the current law on voluntary intoxication.
Involuntary Intoxication
The defence is one of lack of mens rea but for strict liability offence involuntary intoxication would not apply. Read Kingston (1994) for involuntary intoxication.
Soporific Drugs:
Soporific drugs may afford defence under Majewski where D to drugs and become intoxicated. Hardie (1985) D took valium and uner the influence of intoxication set his girlfriends house on fire.
Generally, failure of proof defences are not defences at all but a failure to prove either mens rea or actus reus of offence for which D was charged.
MISTAKE
Where the defendant makes a mistake this may give rise to defence in a number of way. A mistake as to fact may negate actus reus.
Mistake to to law (fact)
Mistake about consequences and not recklessness
Mistake as to surrounding circumstances, duress, self defence.
Mistake as to law is no defence. Exception in s.2(1) of the Theft Act 1968. It is statutory defence in law to claim that D mistakenly thought that the property belong to him Smith (David) (1974)
Factual Mistake - Tolson (1889) D was charged with biggamy when her husband went missing for 5 years and thinking he was dead she remarried. Court requires that the mistake must be reasonable as well as honestly held.
In B v DPP (2002)L HL state that factual mistake which negative mens rea need only be honestly held by D.
Mistake as to surrounding circumstance; Williams (Gladstone ) 1984 mistaken belief in surrounding circumstances need only to be honestly held and does not have to be reasonable.
Drunken Mistake: Honest belief in circumstances doest not apply to where D is intoxicated and where the mistake was induced by voluntary intoxication - O'Gardy (1987)
Mistake relating to mens rea: a failure to appreciate the consequences which flowed from an act can be a 'defence' as it can render prosection unable to prove subjective mens reas under the subjective test of recklessness which now appears universally (after R v G (2003)) that honest but mistaken belief would negative mens rea. The same is also true of intent whether direct of oblique Woolin (1998) since those state of mind are also assessed subjectively. One exception is mens rea sfor rape and sexual offence which requires reasonable as well honest belief.
INTOXICATION
Majewski (1971) attempted to find legal solution to the problem of intoxication and lack of mens
Level of intoxication:
The more intoxicated you are (possibly involuntary) the more likely you are to have a defence of intoxication. However in Sheehan and More (1975 a drunken intent is nevertheless an intent.
Voluntary Intoxication:
Intoxication will only afford a defence it D has commited a crime of specif intent and would not be available for basic intent offence Majewski (1976) House of Lord adotped the rule outlined in DPP v Beard (1920). Basic intent offence can be committed recklessly, only intent will suffice as mens rea for specific intent offences. It was worth nothing that Majewski breached the rule of contemporaneity as actus reus and mens rea occur at different time. Continuing Act Thabo Neli (1954) or Fagan (1969. Cunnigham (1959) recklessness must involve actual foresight. Majewski remains the current law on voluntary intoxication.
Involuntary Intoxication
The defence is one of lack of mens rea but for strict liability offence involuntary intoxication would not apply. Read Kingston (1994) for involuntary intoxication.
Soporific Drugs:
Soporific drugs may afford defence under Majewski where D to drugs and become intoxicated. Hardie (1985) D took valium and uner the influence of intoxication set his girlfriends house on fire.
Generally, failure of proof defences are not defences at all but a failure to prove either mens rea or actus reus of offence for which D was charged.
Monday, May 5, 2008
Sexual Offences
SEXUAL OFFENCES ACT 2003
The sexual offence Act 2003 was the attempt to reform the existence law and common law provisions as it relates to sexual offences. The act provide life imprisonment as the maximum penalty for the offence.
RAPE
Rape is the penetration of mouth, anal and varginal and none of which is more serious R v Ismail (2005) R v R (1992) House of Lords ruled that rape within marriage could be a criminal offence. Penetration is a continuing act and the consent must be valid throughout the process s.79(2) andn Kaitamaki (1985)
MENS REA
Intentional penetration and lack of reasonable belief in consent. Morgan (1977) belief is to be both honestly beld and reasonable.
ASSAULT BY PENETRATION
A penetration of anus, vagina, mouth with penis, mouth, tongue, hand or any other thing.
Mens Rea: Intentional penetration and lack of reasonable belief in consent. Morgan (1977) belief is to be both honestly beld and reasonable.
SEXUAL ASSAULT - Section 3 of Sexual Offences Act 2003
This new offence replaces the old indecent assault offence.
Actus reus: Touching with any part of the body; touching with anything else; touching through anything and the touching must be sexual
Mens rea: Text of sexual activitity: If a reasonable person, for whatever purpose and circumstance it is because if its nature sexual.
Because of its nature, it may be sexual and because of the circumstances or the purpose of any person in relation to be sexual
CONSENT
In approaching a problem question use s.74, s.75 and s.76 reverse order. Obtaining consent by deceit renders the offence conclusive valid. S.75 talk about the evidential presumptions.
EXAM ADVISE
Mens rea: Intention to have sex
Sex without consent is rape
JAKE and Ana
Rape contratry to section 1 of SOA 2003
RAPE
Rape is the penetration of mouth, anal and varginal and none of which is more serious R v Ismail (2005) R v R (1992) House of Lords ruled that rape within marriage could be a criminal offence. Penetration is a continuing act and the consent must be valid throughout the process s.79(2) andn Kaitamaki (1985)
MENS REA
Intentional penetration and lack of reasonable belief in consent. Morgan (1977) belief is to be both honestly beld and reasonable.
DEFENCE:
The belief that No means yes. Ana is sleepy but not asleep. Chose to consent freely is Ana capable of consenting freely in her sleepy state. If the jury is convinced that.
If consent is not present, then we consider Jake's state of ming. He intentionally had sexual intercourse. Does he have reasonable belief. He may honestly belief because of what he has been thought by the cult that no means yes. Platonic may mean consent using the same analogy. However, under s.1 Jakes belief must be reasonable to excape liability. The jury in deciding this have to consider all the circumstance.
Did the victim agree in her sleepy state. S.1(2) Whether D take any reasonable steps into account in assessing the reasonableness of D's belief in consent, the jury may also consider circumstances, age, mental capacity, previous relation. Cite the test:
JAKE AND FLORA
Flora has been decewived and s.76 may apply and the case may be similar to Tabassum. Her belief in Jake's qualification is not relevant (Richardson. Jake intentionally deceived her, but she does not have to be induced to consent by the deceit. The woed induced is used in s.76 not not in s.76(2)(a). There may therefore be evidential presumption against consent. It is then for Jake to argue that despite the deceit, Flora freely consent. If consent is not proved, thenm Jake
JAKE AND DEBIE
There was no sexual intercourse. This cannot be sexual assault. It must therefore be s.4 offence, causing another to engage in Sexual Activity. Debbie is not deceived many not apply. Has debbie freely consented with full capacity. She appears relunctant but feel obliged to consent because of what her father told her. Is debbie capable of consenting becayse of her age. If consent is not .
Reasonable belief then mens rea may not be found. This create a potential objecive test which is a fundamental change as mens rea for rape under the common law is D's belief would have been honestly held (subjective) but not reasonable (objective. Assault by penetration is a new offence and sexual assault replaced indecent assault. Causing another to engage in sexual activity is a new offence. Clarify consent.
The origins of 2003 Act lies in the recommendation of a review carried out by the home office Setting the Boundaries (2000) White House received Royal assent on November 20, 2003. The government considered the existing law on sexual offences as archaic, incoherent and discriminatory and failure to reflect current realities.
The offence of rape was extended to include non-consentual anal intercourse with woman or man. S.1 further extend the definition of vagina to include vulva and references to part of the body throughout the Act including those surgically altered and applied to transensual. It includes oral penetration by amn of woman. Forced oral sex is penetration.
Intentional penetration
Absence of consent
Absence of reasonable belief in consent
The concept or recklessness has disappeared entirely from the offence of rape. previous law require either d D knew of was reckless to the fact. Sexual assualt is a triable either way offence and sentencing is 10 years. The court test and its application has been critised ad vague and unclear. It has been argued that it will be difficult to apply the test in s.78(c) considering the issues that will be brought into play. While s.78 might require some fine-tuning, it was non-inclusion in Canada and Australia that has led to to costly proliferation of ases.
Olugboga approach to consent was to leave the jury to consider difference between consent and mere submission.
In view of the concern about compatibility since the reverse onus provision of innocence in Article 6 of Human Right Convention interpreted by the House of Lords was abandoned for evidential burden. Those who were raped will have to take their chances without the benefit of evidential presumption.
RECENT DEVELOPMENTS
R v Heard (2007) ECWA Crime 125 - Voluntary Intoxication and Section 3 of SOA 2003 (Sexual Assault). The court held the touching in s.3 did not require specific of purposive intent but basic intent and therefore in applying Majewski voluntary intoxication could not be relied upon to negate that intention.
R v Bee (2007) - D and V had sex while V was intoxicated. D had the capacity to consent, but her ability to resist had been hampered by alcohol. Rape: Consent. Voluntary intoxication by the complaint. The Court of Appeal held that:
If through drink of any other reason the complainant had temporarilly lost her ability to consent and sexual intercourse took place, subject to the defendant state of mind, she was not consenting. However, where the defendant had voluntary consumed substantial amount of alcohol but had nevertheless remain capable of choosing whether to have intercourse or not (and in drink had agreed to do so) this would not constitute rape. The court was of the view that the Jury had not been given sufficient direction in the issue of voluntary intoxication and consent to allow their verdict to be regarded as safe.
The sexual offence Act 2003 was the attempt to reform the existence law and common law provisions as it relates to sexual offences. The act provide life imprisonment as the maximum penalty for the offence.
RAPE
Rape is the penetration of mouth, anal and varginal and none of which is more serious R v Ismail (2005) R v R (1992) House of Lords ruled that rape within marriage could be a criminal offence. Penetration is a continuing act and the consent must be valid throughout the process s.79(2) andn Kaitamaki (1985)
MENS REA
Intentional penetration and lack of reasonable belief in consent. Morgan (1977) belief is to be both honestly beld and reasonable.
ASSAULT BY PENETRATION
A penetration of anus, vagina, mouth with penis, mouth, tongue, hand or any other thing.
Mens Rea: Intentional penetration and lack of reasonable belief in consent. Morgan (1977) belief is to be both honestly beld and reasonable.
SEXUAL ASSAULT - Section 3 of Sexual Offences Act 2003
This new offence replaces the old indecent assault offence.
Actus reus: Touching with any part of the body; touching with anything else; touching through anything and the touching must be sexual
Mens rea: Text of sexual activitity: If a reasonable person, for whatever purpose and circumstance it is because if its nature sexual.
Because of its nature, it may be sexual and because of the circumstances or the purpose of any person in relation to be sexual
CONSENT
In approaching a problem question use s.74, s.75 and s.76 reverse order. Obtaining consent by deceit renders the offence conclusive valid. S.75 talk about the evidential presumptions.
EXAM ADVISE
Mens rea: Intention to have sex
Sex without consent is rape
JAKE and Ana
Rape contratry to section 1 of SOA 2003
RAPE
Rape is the penetration of mouth, anal and varginal and none of which is more serious R v Ismail (2005) R v R (1992) House of Lords ruled that rape within marriage could be a criminal offence. Penetration is a continuing act and the consent must be valid throughout the process s.79(2) andn Kaitamaki (1985)
MENS REA
Intentional penetration and lack of reasonable belief in consent. Morgan (1977) belief is to be both honestly beld and reasonable.
DEFENCE:
The belief that No means yes. Ana is sleepy but not asleep. Chose to consent freely is Ana capable of consenting freely in her sleepy state. If the jury is convinced that.
If consent is not present, then we consider Jake's state of ming. He intentionally had sexual intercourse. Does he have reasonable belief. He may honestly belief because of what he has been thought by the cult that no means yes. Platonic may mean consent using the same analogy. However, under s.1 Jakes belief must be reasonable to excape liability. The jury in deciding this have to consider all the circumstance.
Did the victim agree in her sleepy state. S.1(2) Whether D take any reasonable steps into account in assessing the reasonableness of D's belief in consent, the jury may also consider circumstances, age, mental capacity, previous relation. Cite the test:
JAKE AND FLORA
Flora has been decewived and s.76 may apply and the case may be similar to Tabassum. Her belief in Jake's qualification is not relevant (Richardson. Jake intentionally deceived her, but she does not have to be induced to consent by the deceit. The woed induced is used in s.76 not not in s.76(2)(a). There may therefore be evidential presumption against consent. It is then for Jake to argue that despite the deceit, Flora freely consent. If consent is not proved, thenm Jake
JAKE AND DEBIE
There was no sexual intercourse. This cannot be sexual assault. It must therefore be s.4 offence, causing another to engage in Sexual Activity. Debbie is not deceived many not apply. Has debbie freely consented with full capacity. She appears relunctant but feel obliged to consent because of what her father told her. Is debbie capable of consenting becayse of her age. If consent is not .
Reasonable belief then mens rea may not be found. This create a potential objecive test which is a fundamental change as mens rea for rape under the common law is D's belief would have been honestly held (subjective) but not reasonable (objective. Assault by penetration is a new offence and sexual assault replaced indecent assault. Causing another to engage in sexual activity is a new offence. Clarify consent.
The origins of 2003 Act lies in the recommendation of a review carried out by the home office Setting the Boundaries (2000) White House received Royal assent on November 20, 2003. The government considered the existing law on sexual offences as archaic, incoherent and discriminatory and failure to reflect current realities.
The offence of rape was extended to include non-consentual anal intercourse with woman or man. S.1 further extend the definition of vagina to include vulva and references to part of the body throughout the Act including those surgically altered and applied to transensual. It includes oral penetration by amn of woman. Forced oral sex is penetration.
Intentional penetration
Absence of consent
Absence of reasonable belief in consent
The concept or recklessness has disappeared entirely from the offence of rape. previous law require either d D knew of was reckless to the fact. Sexual assualt is a triable either way offence and sentencing is 10 years. The court test and its application has been critised ad vague and unclear. It has been argued that it will be difficult to apply the test in s.78(c) considering the issues that will be brought into play. While s.78 might require some fine-tuning, it was non-inclusion in Canada and Australia that has led to to costly proliferation of ases.
Olugboga approach to consent was to leave the jury to consider difference between consent and mere submission.
In view of the concern about compatibility since the reverse onus provision of innocence in Article 6 of Human Right Convention interpreted by the House of Lords was abandoned for evidential burden. Those who were raped will have to take their chances without the benefit of evidential presumption.
RECENT DEVELOPMENTS
R v Heard (2007) ECWA Crime 125 - Voluntary Intoxication and Section 3 of SOA 2003 (Sexual Assault). The court held the touching in s.3 did not require specific of purposive intent but basic intent and therefore in applying Majewski voluntary intoxication could not be relied upon to negate that intention.
R v Bee (2007) - D and V had sex while V was intoxicated. D had the capacity to consent, but her ability to resist had been hampered by alcohol. Rape: Consent. Voluntary intoxication by the complaint. The Court of Appeal held that:
If through drink of any other reason the complainant had temporarilly lost her ability to consent and sexual intercourse took place, subject to the defendant state of mind, she was not consenting. However, where the defendant had voluntary consumed substantial amount of alcohol but had nevertheless remain capable of choosing whether to have intercourse or not (and in drink had agreed to do so) this would not constitute rape. The court was of the view that the Jury had not been given sufficient direction in the issue of voluntary intoxication and consent to allow their verdict to be regarded as safe.
Criminal law
John was walking home having just beaten Roger in a fight. They had fought because Roger was angry at John having carved letter 'J' unto Amy's arm using a penknife. Any was Roger's 15-year old sister, who had begged John to do this. The wound was not neither very long nor very deep, although it did require one stitch. John and Roger had decided to settle their differences by having a fight. John had punched Roger, knocking him over and causing him to fracture his skull. John had run away when the police were called.
A beggar, Carly who was carrying a baby in her arms approached John and asked him for money to feed the baby. This incensed John who hated beggars and he sprayed lighter gas in Carty's face causing her to drop the baby, slightly bruising it.
The police then caught up with John, PC Bill tried to arrest him, John pushed PC bill out of the way in an attempt to get away, causing PC Bill to stagger. In an effort to save himself from falling, PC Bill put his arm out and pushed it through a shop window, sustaining severe cut to his arm.
Discuss John's criminal liability
John could be criminally liable for what transpired between him and the following individuals mention in the question
a) John and Amy
b) John and Roger
c) John and Carty
d) John and Carty's baby
JOHN & AMY
Malicious wounding contrary to section 20 of the Offence Against the Person Act 1861
A wound is a break in the continuity of the whole skin (Moriary v Brooks (1834). The fact of the question indicate that the actus reus is established by John carving J on Amy's arm.
Maliciously is the intention for carrying out the offence. It must be proved that John was aware that his conduct carried a risk of wounding or causing some arm albeit not serious harm (Mowatt (1967), Savage and Parmenter (1991). If John is aware that of such a risk (which could be implied from the fact of the case), then the mens rea is established.
The maximum penalty for this offence is .........
Assault occassiong actual bodily harm contrary to s. 47 of the Offence Against the Person Act 1861.
Assault
The actus reus of assault is committed when the defendant causes another to apprehend the application of immediate unlawful violence ( Fagan v MPC (1969), Savage v Parmentar (1991), Venna (1998) Irelend (1999). It makes no difference that Amy was not frightened.
Mens rea: The mens rean is intention or recklessness on the part of John as the causing Amy to apprehend the application of immediate unlawful violence.
Battery
The actus reus of Battery is the infliction of unlawful violence on the victim
Mens rea: The mens rea is intention or recklessness as to that infliction Rolfe (1936). The fact of the question indicate that this offence is established.
Actual Bodily Harm
This is harm which is more than transient or trifling and include any injury likely to interfere with the health or comfort of Army (Miller 1934) Her injury is likely to amount to actual bodily harm.
Occassioning: It must be proved that the common assault caused the actual bodily harm. No foresight is required on the part of the defendant (Roberts 1971)
DEFENCE OF CONSENT
There is need to consider whether Amy’s consent was real and not induced by fraud or duress. There are limits on the operation of defence of consent. Attorney General’s Reference (No. 6 of 1980) and Brown (1993) House of Lords said subject to public policy exception, consent will not operate where actual bodily harm is likely to interfere with the health of the victim. It is unlikely that public policy would have allowed the injury to Amy here. Although in Wilson (1996) consent to branding by a husband on his wife was a defence, Army is only 15 and even though it was not done for sexual pleasure, but presumably, for personal adornment, Tattooing and Minor Act 1967 provided that the apparent consent of a child to tattoo will never be valid.
JOHN & ROGGER
Causing Grievous Bodily Arm (GBH) with intent to do (GBH) contrary to section 18 of the Offences Against the Person Act (OAPA) 1861
The actus reus is causing GBH a really serious harm (Smith (1961); Sounder (1985); Janjua and Chouldhery (1999). A fractured skull is very much likely to amount to GBH
Mens rea: The mens rean is intention to cause GBH. The prosecution would have to prove that it was John’s purpose to cause to cause GBH or if that is not his purpose, the jury may find intent where it is proved he know GBH was a virtual certain consequence of his act (Bryson 1983). If the jury is not satisfied beyond reasonable doubt that John committed the actus reus of the offence with the requisite mens rea, then they may acquit
Malicious wounding contrary to section 20 of the Offence Against the Person Act 1861
A wound is a break in the continuity of the whole skin (Moriary v Brooks (1834). The fact of the question indicate that the actus reus is established by John causing a fracture on Roger’s skull. The House of Lords in Mandar (1995) held that a judge is entitled to leave to the jury a conviction under s.20 as alternative to s.18 because the term ‘causing’ is wide enough to include inflicting.
Mens rea: Maliciously is the intention for carrying out the offence. It must be proved that John was aware that his conduct carried a risk of wounding or causing some arm albeit not serious harm (Mowatt (1967), Savage and Parmenter (1991). If the jury is not satisfied beyond reasonable doubt that John committed the actus reus of the offence with the requisite mens rea, then they may acquit. In that case they might consider
Assault occassiong actual bodily harm contrary to s. 47 of the Offence Against the Person Act 1861.
Assault
The actus reus of assault is committed when the defendant causes another to apprehend the application of immediate unlawful violence ( Fagan v MPC (1969), Savage v Parmentar (1991), Venna (1998) Irelend (1999). It makes no difference that Amy was not frightened.
Mens rea: The mens rean is intention or recklessness on the part of John as the causing Amy to apprehend the application of immediate unlawful violence.
Battery
The actus reus of Battery is the infliction of unlawful violence on the victim
Mens rea: The mens rea is intention or recklessness as to that infliction Rolfe (1936). The fact of the question indicates that this offence is established.
DEFENCE OF CONSENT
There is need to consider whether Roger’s agreement to settle his difference with John was real was real and not induced by fraud or duress. There are limits on the operation of defence of consent. Attorney General’s Reference (No. 6 of 1980) and Brown (1993) House of Lords said subject to public policy exception, consent will not operate where actual bodily harm is likely to interfere with the health of the victim. It is unlikely that public policy would have allowed the injury to Roger.
ual pleasure, but presumably, for personal adornment, Tattooing and Minor Act 1967 provided that the apparent consent of a child to tattoo will never be valid.
JOHN AND CARLY
Malicious Administering of noxious thing with intent to injure, aggrieve or annoy contrary to s.24 of the Offences Against the Person Act (OAPA) 1861
Administer a noxious thing. Administering in Gillard 1998. It was held that sparing the victim with a noxious fluid would be administer. Noxious thing is a question of fact for the jury. In Marcus (1981) it was held that noxious thing include hurtful, unwholesome or objectionable substance. It is for the jury to decide if lighter gas is one of such things
Mens rea: Maliciously is the intention for carrying out the offence. Malicious interpreted in Cunningham (1998) to mean intention or subjective recklessness. The facts indicated that John’s action was intentional. It must be proved that John was aware that his conduct carried a risk of administering a noxious thing. If the jury is not satisfied beyond reasonable doubt that John committed the actus reus of the offence with the requisite mens rea, then they may acquit. In that case they might consider
Assault occassiong actual bodily harm contrary to s. 47 of the Offence Against the Person Act 1861.
Assault
The actus reus of assault is committed when the defendant causes another to apprehend the application of immediate unlawful violence ( Fagan v MPC (1969), Savage v Parmentar (1991), Venna (1998) Irelend (1999). It makes no difference that Amy was not frightened.
Mens rea: The mens rean is intention or recklessness on the part of John as the causing Amy to apprehend the application of immediate unlawful violence.
Battery
The actus reus of Battery is the infliction of unlawful violence on the victim
Mens rea: The mens rea is intention or recklessness as to that infliction Rolfe (1936). The fact of the question indicates that this offence is established.
DEFENCE OF PROVOCATION
There is need to consider whether John hatred for beggars and being approached by the Carly provoked him to react the way he did.
JOHN AND THE BABY
Battery
The actus reus of Battery is the infliction of unlawful violence on the victim
Mens rea: The mens rea is intention or recklessness as to that infliction Rolfe (1936). The fact of the question indicates that this offence is established. Haystead (2000) provided that the actus reus and mens rea could be proved, John could be guilty if battery in respect of the baby.
JOHN AND BILL
Causing Grievous Bodily Arm (GBH) with intent to do (GBH) contrary to section 18 of the Offences Against the Person Act (OAPA) 1861
The actus reus is causing GBH a really serious harm (Smith (1961); Sounder (1985); Janjua and Chouldhery (1999). A fractured skull is very much likely to amount to GBH
Mens rea: The mens rean is intention to cause GBH. The prosecution would have to prove that it was John’s purpose to cause to cause GBH or if that is not his purpose, the jury may find intent where it is proved he know GBH was a virtual certain consequence of his act (Bryson 1983). If the jury is not satisfied beyond reasonable doubt that John committed the actus reus of the offence with the requisite mens rea, then they may acquit
Malicious wounding or Causing Grievous Bodily Arm with intent to resist arrest contrary to s.18 of the Offences Against the Person Act (OAPA) 1861
A wound is a break in the continuity of the whole skin (Moriary v Brooks (1834). The fact of the question indicate that the injury is severe and it might amount to GBH.
Mens rea: Maliciously is the intention for the wounding with the ulterior intent to resist arrest. Morrison (1989), where it was held that malicious bears the subject reasoning and the jury should be directed to consider whether John foresaw a risk of some harm. If the jury is not satisfied beyond reasonable doubt that John foresaw a risk of some harm, then they may acquit. In that case they might consider
Assault occassiong actual bodily harm contrary to s. 47 of the Offence Against the Person Act 1861.
Assault
The actus reus of assault is committed when the defendant causes another to apprehend the application of immediate unlawful violence ( Fagan v MPC (1969), Savage v Parmentar (1991), Venna (1998) Irelend (1999). It makes no difference that Amy was not frightened.
Mens rea: The mens rean is intention or recklessness on the part of John as the causing Amy to apprehend the application of immediate unlawful violence.
Battery
The actus reus of Battery is the infliction of unlawful violence on the victim
Mens rea: The mens rea is intention or recklessness as to that infliction Rolfe (1936). The fact of the question indicates that this offence is established.
DEFENCE OF CONSENT
There is need to consider whether Roger’s agreement to settle his difference with John was real was real and not induced by fraud or duress. There are limits on the operation of defence of consent. Attorney General’s Reference (No. 6 of 1980) and Brown (1993) House of Lords said subject to public policy exception, consent will not operate where actual bodily harm is likely to interfere with the health of the victim. It is unlikely that public policy would have allowed the injury to Roger.
ual pleasure, but presumably, for personal adornment, Tattooing and Minor Act 1967 provided that the apparent consent of a child to tattoo will never be valid.
In all the scenario there are likelihood of the offece of battery and possibly assault, where s.47 was considered there would be no need to specifically point out this. Where you have explain an offence before it is appropriate to refer to your previous explanation.
A beggar, Carly who was carrying a baby in her arms approached John and asked him for money to feed the baby. This incensed John who hated beggars and he sprayed lighter gas in Carty's face causing her to drop the baby, slightly bruising it.
The police then caught up with John, PC Bill tried to arrest him, John pushed PC bill out of the way in an attempt to get away, causing PC Bill to stagger. In an effort to save himself from falling, PC Bill put his arm out and pushed it through a shop window, sustaining severe cut to his arm.
Discuss John's criminal liability
John could be criminally liable for what transpired between him and the following individuals mention in the question
a) John and Amy
b) John and Roger
c) John and Carty
d) John and Carty's baby
JOHN & AMY
Malicious wounding contrary to section 20 of the Offence Against the Person Act 1861
A wound is a break in the continuity of the whole skin (Moriary v Brooks (1834). The fact of the question indicate that the actus reus is established by John carving J on Amy's arm.
Maliciously is the intention for carrying out the offence. It must be proved that John was aware that his conduct carried a risk of wounding or causing some arm albeit not serious harm (Mowatt (1967), Savage and Parmenter (1991). If John is aware that of such a risk (which could be implied from the fact of the case), then the mens rea is established.
The maximum penalty for this offence is .........
Assault occassiong actual bodily harm contrary to s. 47 of the Offence Against the Person Act 1861.
Assault
The actus reus of assault is committed when the defendant causes another to apprehend the application of immediate unlawful violence ( Fagan v MPC (1969), Savage v Parmentar (1991), Venna (1998) Irelend (1999). It makes no difference that Amy was not frightened.
Mens rea: The mens rean is intention or recklessness on the part of John as the causing Amy to apprehend the application of immediate unlawful violence.
Battery
The actus reus of Battery is the infliction of unlawful violence on the victim
Mens rea: The mens rea is intention or recklessness as to that infliction Rolfe (1936). The fact of the question indicate that this offence is established.
Actual Bodily Harm
This is harm which is more than transient or trifling and include any injury likely to interfere with the health or comfort of Army (Miller 1934) Her injury is likely to amount to actual bodily harm.
Occassioning: It must be proved that the common assault caused the actual bodily harm. No foresight is required on the part of the defendant (Roberts 1971)
DEFENCE OF CONSENT
There is need to consider whether Amy’s consent was real and not induced by fraud or duress. There are limits on the operation of defence of consent. Attorney General’s Reference (No. 6 of 1980) and Brown (1993) House of Lords said subject to public policy exception, consent will not operate where actual bodily harm is likely to interfere with the health of the victim. It is unlikely that public policy would have allowed the injury to Amy here. Although in Wilson (1996) consent to branding by a husband on his wife was a defence, Army is only 15 and even though it was not done for sexual pleasure, but presumably, for personal adornment, Tattooing and Minor Act 1967 provided that the apparent consent of a child to tattoo will never be valid.
JOHN & ROGGER
Causing Grievous Bodily Arm (GBH) with intent to do (GBH) contrary to section 18 of the Offences Against the Person Act (OAPA) 1861
The actus reus is causing GBH a really serious harm (Smith (1961); Sounder (1985); Janjua and Chouldhery (1999). A fractured skull is very much likely to amount to GBH
Mens rea: The mens rean is intention to cause GBH. The prosecution would have to prove that it was John’s purpose to cause to cause GBH or if that is not his purpose, the jury may find intent where it is proved he know GBH was a virtual certain consequence of his act (Bryson 1983). If the jury is not satisfied beyond reasonable doubt that John committed the actus reus of the offence with the requisite mens rea, then they may acquit
Malicious wounding contrary to section 20 of the Offence Against the Person Act 1861
A wound is a break in the continuity of the whole skin (Moriary v Brooks (1834). The fact of the question indicate that the actus reus is established by John causing a fracture on Roger’s skull. The House of Lords in Mandar (1995) held that a judge is entitled to leave to the jury a conviction under s.20 as alternative to s.18 because the term ‘causing’ is wide enough to include inflicting.
Mens rea: Maliciously is the intention for carrying out the offence. It must be proved that John was aware that his conduct carried a risk of wounding or causing some arm albeit not serious harm (Mowatt (1967), Savage and Parmenter (1991). If the jury is not satisfied beyond reasonable doubt that John committed the actus reus of the offence with the requisite mens rea, then they may acquit. In that case they might consider
Assault occassiong actual bodily harm contrary to s. 47 of the Offence Against the Person Act 1861.
Assault
The actus reus of assault is committed when the defendant causes another to apprehend the application of immediate unlawful violence ( Fagan v MPC (1969), Savage v Parmentar (1991), Venna (1998) Irelend (1999). It makes no difference that Amy was not frightened.
Mens rea: The mens rean is intention or recklessness on the part of John as the causing Amy to apprehend the application of immediate unlawful violence.
Battery
The actus reus of Battery is the infliction of unlawful violence on the victim
Mens rea: The mens rea is intention or recklessness as to that infliction Rolfe (1936). The fact of the question indicates that this offence is established.
DEFENCE OF CONSENT
There is need to consider whether Roger’s agreement to settle his difference with John was real was real and not induced by fraud or duress. There are limits on the operation of defence of consent. Attorney General’s Reference (No. 6 of 1980) and Brown (1993) House of Lords said subject to public policy exception, consent will not operate where actual bodily harm is likely to interfere with the health of the victim. It is unlikely that public policy would have allowed the injury to Roger.
ual pleasure, but presumably, for personal adornment, Tattooing and Minor Act 1967 provided that the apparent consent of a child to tattoo will never be valid.
JOHN AND CARLY
Malicious Administering of noxious thing with intent to injure, aggrieve or annoy contrary to s.24 of the Offences Against the Person Act (OAPA) 1861
Administer a noxious thing. Administering in Gillard 1998. It was held that sparing the victim with a noxious fluid would be administer. Noxious thing is a question of fact for the jury. In Marcus (1981) it was held that noxious thing include hurtful, unwholesome or objectionable substance. It is for the jury to decide if lighter gas is one of such things
Mens rea: Maliciously is the intention for carrying out the offence. Malicious interpreted in Cunningham (1998) to mean intention or subjective recklessness. The facts indicated that John’s action was intentional. It must be proved that John was aware that his conduct carried a risk of administering a noxious thing. If the jury is not satisfied beyond reasonable doubt that John committed the actus reus of the offence with the requisite mens rea, then they may acquit. In that case they might consider
Assault occassiong actual bodily harm contrary to s. 47 of the Offence Against the Person Act 1861.
Assault
The actus reus of assault is committed when the defendant causes another to apprehend the application of immediate unlawful violence ( Fagan v MPC (1969), Savage v Parmentar (1991), Venna (1998) Irelend (1999). It makes no difference that Amy was not frightened.
Mens rea: The mens rean is intention or recklessness on the part of John as the causing Amy to apprehend the application of immediate unlawful violence.
Battery
The actus reus of Battery is the infliction of unlawful violence on the victim
Mens rea: The mens rea is intention or recklessness as to that infliction Rolfe (1936). The fact of the question indicates that this offence is established.
DEFENCE OF PROVOCATION
There is need to consider whether John hatred for beggars and being approached by the Carly provoked him to react the way he did.
JOHN AND THE BABY
Battery
The actus reus of Battery is the infliction of unlawful violence on the victim
Mens rea: The mens rea is intention or recklessness as to that infliction Rolfe (1936). The fact of the question indicates that this offence is established. Haystead (2000) provided that the actus reus and mens rea could be proved, John could be guilty if battery in respect of the baby.
JOHN AND BILL
Causing Grievous Bodily Arm (GBH) with intent to do (GBH) contrary to section 18 of the Offences Against the Person Act (OAPA) 1861
The actus reus is causing GBH a really serious harm (Smith (1961); Sounder (1985); Janjua and Chouldhery (1999). A fractured skull is very much likely to amount to GBH
Mens rea: The mens rean is intention to cause GBH. The prosecution would have to prove that it was John’s purpose to cause to cause GBH or if that is not his purpose, the jury may find intent where it is proved he know GBH was a virtual certain consequence of his act (Bryson 1983). If the jury is not satisfied beyond reasonable doubt that John committed the actus reus of the offence with the requisite mens rea, then they may acquit
Malicious wounding or Causing Grievous Bodily Arm with intent to resist arrest contrary to s.18 of the Offences Against the Person Act (OAPA) 1861
A wound is a break in the continuity of the whole skin (Moriary v Brooks (1834). The fact of the question indicate that the injury is severe and it might amount to GBH.
Mens rea: Maliciously is the intention for the wounding with the ulterior intent to resist arrest. Morrison (1989), where it was held that malicious bears the subject reasoning and the jury should be directed to consider whether John foresaw a risk of some harm. If the jury is not satisfied beyond reasonable doubt that John foresaw a risk of some harm, then they may acquit. In that case they might consider
Assault occassiong actual bodily harm contrary to s. 47 of the Offence Against the Person Act 1861.
Assault
The actus reus of assault is committed when the defendant causes another to apprehend the application of immediate unlawful violence ( Fagan v MPC (1969), Savage v Parmentar (1991), Venna (1998) Irelend (1999). It makes no difference that Amy was not frightened.
Mens rea: The mens rean is intention or recklessness on the part of John as the causing Amy to apprehend the application of immediate unlawful violence.
Battery
The actus reus of Battery is the infliction of unlawful violence on the victim
Mens rea: The mens rea is intention or recklessness as to that infliction Rolfe (1936). The fact of the question indicates that this offence is established.
DEFENCE OF CONSENT
There is need to consider whether Roger’s agreement to settle his difference with John was real was real and not induced by fraud or duress. There are limits on the operation of defence of consent. Attorney General’s Reference (No. 6 of 1980) and Brown (1993) House of Lords said subject to public policy exception, consent will not operate where actual bodily harm is likely to interfere with the health of the victim. It is unlikely that public policy would have allowed the injury to Roger.
ual pleasure, but presumably, for personal adornment, Tattooing and Minor Act 1967 provided that the apparent consent of a child to tattoo will never be valid.
In all the scenario there are likelihood of the offece of battery and possibly assault, where s.47 was considered there would be no need to specifically point out this. Where you have explain an offence before it is appropriate to refer to your previous explanation.
Saturday, May 3, 2008
John was walking home having just beaten Roger in a fight. They had fought because Roger was angry at John having carved letter 'J' unto Amy's arm using a penknife. Any was Roger's 15-year old sister, who had begged John to do this. The wound was not neither very long nor very deep, although it did require one stitch. John and Roger had decided to settle their differences by having a fight. John had punched Roger, knocking him over and causing him to fracture his skull. John had run away when the police were called.
A begger, Carly who was carrying a baby in her arms approached John and asked him for money to feed the baby. This incensed John who hated beggers and he sprayed ligher gas in Carty's face causing her to drop the baby, slightly bruising it.
The police then caught up with John, PC Bill tried to arrest him, John pushed PC bill out of the way in an attempt to get away, casuing PC Bill to stagger. In an effort to save himself from falling, PC Bill put his arm out and pushed it through a shop window, sustaining severe cut to his arm.
Discuss John's criminal liability.
John could be criminally liable for what transpired between him and the following individuals mention in the question:
a) John and Amy
b) John and Roger
c) John and Carty
d) John and Carty's baby
e) John and Bill.
Each case will now be considered as follows;
JOHN AND AMY
Malicious wounding contratry to section 20 of the Offence Against the Person Act 1861.
Actus Reus: A wound is a break in the continuity of the whole skin (Moriary v Brooks (1834). The fact of the question indicate that the actus reus is established by John carving J on Amy's arm.
Mens rea: Maliciously is the intention for carrying out the offence. It must be proved that John was aware that his conduct carried a risk of wounding or causing some arm albeit not serious harm (Mowatt (1967), Savage and Parmenter (1991). If John is aware that of such a risk (which could be implied from the fact of the case), then the mens rea is established.
The maximum penalty for this offence is .........
b) John and Roger
c) John and Carty
d) John and Carty's baby
e) John and Bill.
b) John and Roger
c) John and Carty
d) John and Carty's baby
e) John and Bill.
to the individuals mentioned in the question.
A begger, Carly who was carrying a baby in her arms approached John and asked him for money to feed the baby. This incensed John who hated beggers and he sprayed ligher gas in Carty's face causing her to drop the baby, slightly bruising it.
The police then caught up with John, PC Bill tried to arrest him, John pushed PC bill out of the way in an attempt to get away, casuing PC Bill to stagger. In an effort to save himself from falling, PC Bill put his arm out and pushed it through a shop window, sustaining severe cut to his arm.
Discuss John's criminal liability.
John could be criminally liable for what transpired between him and the following individuals mention in the question:
a) John and Amy
b) John and Roger
c) John and Carty
d) John and Carty's baby
e) John and Bill.
Each case will now be considered as follows;
JOHN AND AMY
Malicious wounding contratry to section 20 of the Offence Against the Person Act 1861.
Actus Reus: A wound is a break in the continuity of the whole skin (Moriary v Brooks (1834). The fact of the question indicate that the actus reus is established by John carving J on Amy's arm.
Mens rea: Maliciously is the intention for carrying out the offence. It must be proved that John was aware that his conduct carried a risk of wounding or causing some arm albeit not serious harm (Mowatt (1967), Savage and Parmenter (1991). If John is aware that of such a risk (which could be implied from the fact of the case), then the mens rea is established.
The maximum penalty for this offence is .........
Assault occassiong actual bodily harm contrary to s. 47 of the Offence Against the Person Act 1861.
Actus Reus: The actus reus of assault is commited when the defendant causes another to apprehend the application of immediate unlawful violence ( Fagan v MPC (1969), Savage v Parmentar (1991), Venna (1998) Irelend (1999). It makes no difference that Amy was not frightened.
Mens rea: The mens rean is intention or recklessness on the part of John as the causing Amy to apprehend the application of immediate unlawful violence. It must be proved that John was aware that his conduct carried a risk of wounding or causing some arm albeit not serious harm (Mowatt (1967), Savage and Parmenter (1991). If John is aware that of such a risk (which could be implied from the fact of the case), then the mens rea is established.
b) John and Roger
c) John and Carty
d) John and Carty's baby
e) John and Bill.
b) John and Roger
c) John and Carty
d) John and Carty's baby
e) John and Bill.
to the individuals mentioned in the question.
Monday, April 21, 2008
Revision Series - Elements of Law of Contracts
OFFER AND ACCEPTANCE
Invitation to bid by an Auctioneer is an invitation to treat. The offer is accepted when the Auctioner strike the table with his hammer - British Car Auction Ltd v Wright (1972). Advertisement is generally an invitation to treat - Harris v Nickerson (1873). Leaflet is also an invitation to treat. In the case of advert for reward for doing certain thing and taking certain steps, accetance is by doing those things and taking those steps - Carlill v Carbolic Smoke Ball Co.
In Auction without reserve price, the offer is accepted by the highest bidder (orbiter) - Wars;pw v Harson. In Aution there is a collateral contract between the Auctioneer and the bidder. Once the reserve price is reached, the actioneer cannot withdraw the offer and the last bidder wins where there is no reserve bid.
Tender is generally regarded to as an invitation to treat. An exception to this is Harvella Investments Ltd v Royal Trust Co of Canada (1196), Blackpool and Fylde Aero Club Ltd v Blackpool Borough.
Contract law adopt an objective rather than a subjective approach to agreement R v Clarke (1927), Gibbons v Proctor (1891). Hyde v Wrench (1846) - Law of contract adopt mirrow image rule i.e. the offer and acceptance must be exactly the same thing, any difference is a counter offer which can be acceted by conduct Brigden v Metropolitan Railway Company. Request for information is neither rejection no acceptance - Stevenson, Jacques & Co. v Mclean (1880). In the battle of form the last shot will win Butler Machine Tools Co. Ltd v Excello Corporation (England) Ltd (1979) Lawton J.A (CA).
R v Clarke - Australian Case
Gibbons v Proctor (1891) - Police reward case
Williams v Carwardine (1853) - Old widow who give required information due to guilty conscience
Bridgen v Metropolitan Railway - Coal contract, name of arbitor as the final shot
Adams v Lindsell (1818)
Household Fire Insr4nace v Grant (1879) - Postal rule
Hoden Securities v Hughes (1974) - where postal rule is not intended
Rules for the Postal Rule"
It must be reasonable - Henthon v Frazer. The offeror can state when the leter reaches him.
It does not apply to instantaneous communication - Entoress v Miles Far East Corporation.
It does not apply where it would lead to manifest inconvenience and absurdity - Holwell Securities Ltd v Hughes (1974)
The better approach for postal rule is tha the acceptance take place when the acceptance is received by the offeror subject to the qualification that the offeror cannot revoke the offer once the acceptance has been posted.
METHOD OFACCEPTANCE
Elianson v Henshaw (1899), Manchester Diocesan Council for Education v Comercial and General Investments (1970): The offeror may stipulate that acceptance is to be made using specific method. Quennerduaine v Cole (1983) - Communicating acceptance may be inferrred.
General rule - if the offeree uses another methods it creates contract if the other method is less advantageous except a method is specified as the only method.
METHOD OF TERMINATING AN OFFER
Withdrawal could be at any time before acceptance, but notice must be given to the offereee either by the offeror or through another - Darly Dickson v Dodds (1876), but me brought to the attention of the office - Byrne v Van Tienhoven (1880).
Offer could also be terminated by:
the rejection of the offer - Hyde v Wrenth
Lapse of time when specific time is stated
When offer came to an end after certain event
Death of the offeror - immediately after death or knowledge of death
Isssues are every day transactions, boarding of bus, buying of goods in the supermarket, battle of forms.
Article 19 of Vienna Convention, addition, limitation or modification is a rejecion of offer and a counter offer.
Acceptance with additional or different term which do not materially alter the term of offer constitute an acceptance, unless the offeror without delay object orally or dispatchs notices.
Revocation - Henthon v Frazer (1892) CA. Postal rule does not appl to withdrawal but acceptance of offer. Byrne & Co v Van Tienhove & Co (1856); Stevenson, Jacques & Co. V McLean (1880) set the same principle
Dickson v Dodds (1876) - revocation must be communicated - sale of house withdrawn before acceptance unless the promise to keep an offer open for a stated period is supported by consideration, the offeror is free to revoke the offer at any time before acceptance - Routledge v Grant (1828)
Because there is no legal commitment until a contract has been formed either party mat change their mind and withdrew from negotiation oxford v Davies (1862)
Re McArdle (1951) - Past consideration is no consideration. Exception in Pao On v Lau Yiu Long(179) Lord Scarman gave the following exceptions:
a) Done at the promisors request - Lampleight v Braithwait (1965)
b) Understood that payment must be made one way (Re Casey Patents (1892)
Promise would be enforceable when made prior to the Act.
Agreement/contract under lease could not be varied by an agreement by parole (whether in writing or not but only b deed). Equity said if there has been a varioation by a deed or by simply contract evidence in writing, the court could give effect to it. Representation as to the future must be established by a contract or nothing. Equitable consideration would not apply in the absence of consideration
INTENTION TO CREATE LEGAL RELATIONS
In domestic and social agreemens it is presumed that there is not an intention to create legal relation. In the cawse of commercial agreement it is presmed that there us an intention to create legal relation. The fact of the case in both cases may displace the pressumption. Objective approach determines the intention, would reasoble parties posses the intentionb. Rebutable pressumption is a presumption made by the courts as to certain state of fact until contrary is proven.
In Balfour v Balfour (1919) Atkin Lj stated that as a matter of public policy domestic agreement are outside the jurisdiction of the court to avoid overwhelming the court with such cases.
Jones v Padvatton (1969): Mother and Adult child (Law Education)
Coward v MIB (1962) - Agreement to take friend to work in exchange for payment of fuel was considered domestic
Merrit v Merrit (1970) rebutted the presumption in Balfour and Balfourt
Darke v Strout (2003) Divorced couple - maintence agreement rebutted the presumption
Simkins v Rays (1955) Co-habittee enter competion rebuted that presumption
Parke v Clark (1920) - Sold house to move in with a friend and asked to move out later
CLASSIFICATION OF TERMS
A contractual term is a primary obligationa and every breach gives risse to a secondary obligation to pay damages and termination of the contract. For breach, the innocent party may terminnate and claim damages or affirm and claim damages.
Rescission for breach treat contract as discharge from future obligation but past obligation still stands. Rescision for misrepresentation discharge the contract totally. Breach need not cause any loss - Bowes v Shand (1979)
In Common law clearly express term is condition Behn v Burness (1868) Betin v Caye (1876). Innominate terms recognised in Hong Kong fir case (1962) for breach, the court will determine whether to rescind or note Cehave v Bremer (1976). Innominate term introduced anxiety inot contract law - Milato v Angelos (1970), Buyes v Traders (1981), Central Torward Klaneous v Armi, Marine Corp 1994), L Schale v Nickerman Machine Tools/Sales (1974)
Lambard North Central v Butterworh (1987) punctual payment as condition, Umen Eagle v Golden Achievement (1997) 2 ALL ER 215 - 10 minutes delay considered to much.
Constraint of Trade
Esso Petroleum v Harper Garage, Alec Lob v Total Oil
S.13 of Sales of Good Act 1979; s.14(2), s.142)
Fundamental term - Photoproduction v Securicor
s.3(1) of UCTA - Requirement of reasonableness
A purchase wll rely on seller's experience or expertise - Esso Petroleum v Merodon. Purchase is also protected by UCTA 1977 and UTCCR 1999
Innocent of fail - Dick Bently Pr0duction v Harnold Suil
INCORPORATION
LEstrange v Gacoub (1936) signature
Curtis v Chemical v Dajeng go (1951)
Olley v Malborough Court Hotel (1949)
Chapleton v
Insert flashdrive here
CAPACITY TO CONTRACT
Invitation to bid by an Auctioneer is an invitation to treat. The offer is accepted when the Auctioner strike the table with his hammer - British Car Auction Ltd v Wright (1972). Advertisement is generally an invitation to treat - Harris v Nickerson (1873). Leaflet is also an invitation to treat. In the case of advert for reward for doing certain thing and taking certain steps, accetance is by doing those things and taking those steps - Carlill v Carbolic Smoke Ball Co.
In Auction without reserve price, the offer is accepted by the highest bidder (orbiter) - Wars;pw v Harson. In Aution there is a collateral contract between the Auctioneer and the bidder. Once the reserve price is reached, the actioneer cannot withdraw the offer and the last bidder wins where there is no reserve bid.
Tender is generally regarded to as an invitation to treat. An exception to this is Harvella Investments Ltd v Royal Trust Co of Canada (1196), Blackpool and Fylde Aero Club Ltd v Blackpool Borough.
Contract law adopt an objective rather than a subjective approach to agreement R v Clarke (1927), Gibbons v Proctor (1891). Hyde v Wrench (1846) - Law of contract adopt mirrow image rule i.e. the offer and acceptance must be exactly the same thing, any difference is a counter offer which can be acceted by conduct Brigden v Metropolitan Railway Company. Request for information is neither rejection no acceptance - Stevenson, Jacques & Co. v Mclean (1880). In the battle of form the last shot will win Butler Machine Tools Co. Ltd v Excello Corporation (England) Ltd (1979) Lawton J.A (CA).
R v Clarke - Australian Case
Gibbons v Proctor (1891) - Police reward case
Williams v Carwardine (1853) - Old widow who give required information due to guilty conscience
Bridgen v Metropolitan Railway - Coal contract, name of arbitor as the final shot
Adams v Lindsell (1818)
Household Fire Insr4nace v Grant (1879) - Postal rule
Hoden Securities v Hughes (1974) - where postal rule is not intended
Rules for the Postal Rule"
It must be reasonable - Henthon v Frazer. The offeror can state when the leter reaches him.
It does not apply to instantaneous communication - Entoress v Miles Far East Corporation.
It does not apply where it would lead to manifest inconvenience and absurdity - Holwell Securities Ltd v Hughes (1974)
The better approach for postal rule is tha the acceptance take place when the acceptance is received by the offeror subject to the qualification that the offeror cannot revoke the offer once the acceptance has been posted.
METHOD OFACCEPTANCE
Elianson v Henshaw (1899), Manchester Diocesan Council for Education v Comercial and General Investments (1970): The offeror may stipulate that acceptance is to be made using specific method. Quennerduaine v Cole (1983) - Communicating acceptance may be inferrred.
General rule - if the offeree uses another methods it creates contract if the other method is less advantageous except a method is specified as the only method.
METHOD OF TERMINATING AN OFFER
Withdrawal could be at any time before acceptance, but notice must be given to the offereee either by the offeror or through another - Darly Dickson v Dodds (1876), but me brought to the attention of the office - Byrne v Van Tienhoven (1880).
Offer could also be terminated by:
the rejection of the offer - Hyde v Wrenth
Lapse of time when specific time is stated
When offer came to an end after certain event
Death of the offeror - immediately after death or knowledge of death
Isssues are every day transactions, boarding of bus, buying of goods in the supermarket, battle of forms.
Article 19 of Vienna Convention, addition, limitation or modification is a rejecion of offer and a counter offer.
Acceptance with additional or different term which do not materially alter the term of offer constitute an acceptance, unless the offeror without delay object orally or dispatchs notices.
Revocation - Henthon v Frazer (1892) CA. Postal rule does not appl to withdrawal but acceptance of offer. Byrne & Co v Van Tienhove & Co (1856); Stevenson, Jacques & Co. V McLean (1880) set the same principle
Dickson v Dodds (1876) - revocation must be communicated - sale of house withdrawn before acceptance unless the promise to keep an offer open for a stated period is supported by consideration, the offeror is free to revoke the offer at any time before acceptance - Routledge v Grant (1828)
Because there is no legal commitment until a contract has been formed either party mat change their mind and withdrew from negotiation oxford v Davies (1862)
Re McArdle (1951) - Past consideration is no consideration. Exception in Pao On v Lau Yiu Long(179) Lord Scarman gave the following exceptions:
a) Done at the promisors request - Lampleight v Braithwait (1965)
b) Understood that payment must be made one way (Re Casey Patents (1892)
Promise would be enforceable when made prior to the Act.
Agreement/contract under lease could not be varied by an agreement by parole (whether in writing or not but only b deed). Equity said if there has been a varioation by a deed or by simply contract evidence in writing, the court could give effect to it. Representation as to the future must be established by a contract or nothing. Equitable consideration would not apply in the absence of consideration
INTENTION TO CREATE LEGAL RELATIONS
In domestic and social agreemens it is presumed that there is not an intention to create legal relation. In the cawse of commercial agreement it is presmed that there us an intention to create legal relation. The fact of the case in both cases may displace the pressumption. Objective approach determines the intention, would reasoble parties posses the intentionb. Rebutable pressumption is a presumption made by the courts as to certain state of fact until contrary is proven.
In Balfour v Balfour (1919) Atkin Lj stated that as a matter of public policy domestic agreement are outside the jurisdiction of the court to avoid overwhelming the court with such cases.
Jones v Padvatton (1969): Mother and Adult child (Law Education)
Coward v MIB (1962) - Agreement to take friend to work in exchange for payment of fuel was considered domestic
Merrit v Merrit (1970) rebutted the presumption in Balfour and Balfourt
Darke v Strout (2003) Divorced couple - maintence agreement rebutted the presumption
Simkins v Rays (1955) Co-habittee enter competion rebuted that presumption
Parke v Clark (1920) - Sold house to move in with a friend and asked to move out later
CLASSIFICATION OF TERMS
A contractual term is a primary obligationa and every breach gives risse to a secondary obligation to pay damages and termination of the contract. For breach, the innocent party may terminnate and claim damages or affirm and claim damages.
Rescission for breach treat contract as discharge from future obligation but past obligation still stands. Rescision for misrepresentation discharge the contract totally. Breach need not cause any loss - Bowes v Shand (1979)
In Common law clearly express term is condition Behn v Burness (1868) Betin v Caye (1876). Innominate terms recognised in Hong Kong fir case (1962) for breach, the court will determine whether to rescind or note Cehave v Bremer (1976). Innominate term introduced anxiety inot contract law - Milato v Angelos (1970), Buyes v Traders (1981), Central Torward Klaneous v Armi, Marine Corp 1994), L Schale v Nickerman Machine Tools/Sales (1974)
Lambard North Central v Butterworh (1987) punctual payment as condition, Umen Eagle v Golden Achievement (1997) 2 ALL ER 215 - 10 minutes delay considered to much.
Constraint of Trade
Esso Petroleum v Harper Garage, Alec Lob v Total Oil
S.13 of Sales of Good Act 1979; s.14(2), s.142)
Fundamental term - Photoproduction v Securicor
s.3(1) of UCTA - Requirement of reasonableness
A purchase wll rely on seller's experience or expertise - Esso Petroleum v Merodon. Purchase is also protected by UCTA 1977 and UTCCR 1999
Innocent of fail - Dick Bently Pr0duction v Harnold Suil
INCORPORATION
LEstrange v Gacoub (1936) signature
Curtis v Chemical v Dajeng go (1951)
Olley v Malborough Court Hotel (1949)
Chapleton v
Insert flashdrive here
CAPACITY TO CONTRACT
Minors do not have capacity to contract, subjec to the following exceptions:
a) Contract for necessary - Nash v Inman (1908) - sufficient clothing, Delers v Flemming (1840) condition in life; Robert v Gray (1913)
b) Beneficial contract of services, apprenticeship, trainign of employment, professional engagement - Doyle v White City Stadium (1935); Chaplin v Lesley Freewish Publisher 1966- Contrasting view De Francesio v Barnum (1880) - Voidable contract.
Important cases:
a) Roberts v Gray (1913) contract of employment where she will benefit
b) s.3 of the Sale of Goods Act
c) Steinber v Scala (Leed) (1923).
Incapacity of minor will act as a defence to a claim by the other party who seek to enforce the contract rather than as the basis for the minor for the restitution of the benefits he has conferred upon the other party.
VITIATING ELEMENT
Mistake, either unilateral or bilateral, is a vitiating element to a contract. These include Common or mutual mistake. Operating mistake renders contract void in common law and in equity it render contract voidable.
Bilateral mistake tantamounts to absence of genuine agreement - Raffles v Wichelhabour
Common mistake Savin v Hunding (1913); Bell v Lever Brothers (1931)
Non-existence of the subject mater - Contuner v Hastle (1959); McRae v Commonwealth Disposal Commission. Future consideration - Galloway v Gallowat (1914)
Mistake as to ownership res sua. You cannot buy what you owe - Cooper v Phibbs (1867); Bligh v Matur (1966).
Mistake as to the possibility of Performance - Physical - Sheik Brother Ltd v Ochsman (1957)
Legal impossibility - Cooper v Phibbs (1867)
Commercial impossibility - Grifill v Brymer (1903)
Where a person assume responsibility, such a person will be in breach for impossibility.
The rule for necessary is governed by s.3 of the Sales of Goods Act 1979
UNILATERAL MISTAKECourt will only find a contract void for unilateral mistake only if
a) If the non mistaken party is aware of the mistake but proceed to take advantate
b) Non-mistaking party created the mistake - Smith v Hughes (1871); Shogun Finance v Hudson (2003).
In most mistaken identity mistake the policy arguments will favour the protection of the innocent party.
MISTAKE IN EQUITY
Some of the key issues are:
1) Whether or not the contract has allocated the particular risk in question
2) If it has not, is there operative mistake at common law, if there is no provision for equitable relief
3) If the contract stand, operative mistake does equity provide relief.
4) Is there in substantial doctrine of mistake in equity.
Remedies
Rectification - correct the mistake
Specific performance
Rescision - Soller v Butcher (1950); Great Peace (2002)
Mistake Question:
The wrong painting has been exhibited and there is no contract based on Rafflest Wichellys (parties at cross purposes). Snapping at mistaken offer would void the contract - Harvey v Collen and Shield (1939)
The contract cannot be voided because of common mistake - Bell v Lever
MISREPRESENTATION
Statement of fact as to the subject matter is misrepresentation, while statement of opinion is not. Misrepresentation is in the following categories:
a) Fraudulent
b) Negligent at common law - Hedley Byrne v Heller (1964)
c) Negligent at statute - Misrepresentation Act 1967
You can rescind throug third parties Some of the relevant cases are:
a) Universal Finance Co v Caldwwll (1965)
b) Leef v Internation Galleries (1950) - Lapse of time
c) Long v Lloyd (1958) - aware but continues
d) Clark Dickson (1857) use of consumer index
Affect right of third party
Howard Marine & Dredging Co. v Orgen & sone (1978)
Royson Trust Ltd v Roggerson (1991)
EXCLUSION OF LIABILITY
Misrepresentation Act 1967 s.3 exclusion or limitation for liability subject to requiremetn of reasonableness set out in UCTA 1977.
For misrepresentation, you need to show a that the respondent has made a false statement of fact which induced him to contract and indentify the statement. Confirm if the statement of true both when made and when the contract signed - O'Flanagan. Keeping quiet when aware of a contract fact is misrepresentation - Dimmock v Halletl; Spice Girls v Aprilla. The Company is sound - expression of opinion (Bisset v Wilkinson) or statement of fact - Smith v Land House Corporation. Reliance on News Margazine is that a solid based for forming opinion for investment adviser and a reasonable ground for making recommendation (H0ward Marine v Ogden)
Opinion will only give remedy in misrepresentation if Ian did not genuinely hold the opinion. Edmington v Fitzmaurice. Negligent mistatement - Hedley Byrne v Heller.
Expression of opinion is no liability, but there could be if additional fact is known - Edmington v Fitzmaurice. Advertisement, flier is mere puff. Statement made by one contracting parties to another - O'Flanagen - change of circumstance. For Fraudulent misrepresentation, the decision in Daye v Olley meant that all direct losses are recoveravle, without any consideration for remoteness.
Misrepresentation Act of 1967 - Royscot v Regers. In Contraact the loss of the claimant is more predominant, whereas in tort culpability of the claimant is the issue .
DURESS
Illegitimate pressure render a contrac voidable - Paon on v Lau Yiu Long (1980). Duress could be to person, goods, economic, etc.
Alec Lobb Ltd v Total Oil (1985) - acceptable duress
North Ocean Shipping v Hyandai Construction (1979)
Universal Tank Ship v ITF (1982)
Bands Contract v Green (1984)
Lord Scarman in Pau On v Lao Yiu Long gave the following conditions:
a) Was he co-ersed?
b) Is there alternative course open to him
c) Did he receive independent advise
d) Did he take step to avoid the contract when the duress was lifted?
Decision of the court in B&S Contracts & Design Ltd v Victor Green Publication indicates a shift away from overborne theory. Statute protect most people from economic duress, but commercial firms are still exposed to duress from large corporation (take it or leave it contract).
UNDUE INFLUENCE
Royal Bank of Scotland v Etridge (No. 2) (2001); CIBC Mortages v Puff (1998) - leading cases. You need to prove presumed undue influence. Lord Brown Wilkenson in RBoS said spouse you be accorded tender treatment - Backlays Bankk v O'Briend (1993); Trust Llyods Banks v Bindly - reposed confidence, underbid and snapped at the offer. Unilateral mistake, Williams v Roffrey Brother. Economic duress was recognised in Universal Tankship Inc of Monrovia v International Transpot Workers Federation. Critical is the scope of the duress and the normal commercial pressure could be accommodated. The absence of advantage stress the presumption that the contract was enter into due to pressure. Economic duress is a legal doctrine.
PRIVITY OF CONTRACT
Only party to contract are bound by it and only party to contract can derive benefit from the contract - Tweddle v Atkinson (1861); Dunlop Pneumatic Tyre v Selfridge Co. (1915) These decisions were based large on the absence of consideration, which is the bedrock of English law of contract. Consideration must move from the promisor to the promissee. For example in Scrultton v Midland Silicone (1962) Steedoeers - a stranger cannot benefit from a contract.
Beswick v Beswick (1965)
Contract (Right of Third Party) Act 1999 allows the parties to a contract to provide the third party with enforceable contract. The purpose of the Act is to:
a) Give effect to the intention of the parties
b) Allow positive benefits, but no negative burden
c) protection of an exclusive of limitation clause - Nishing Shipping Company Ltd v Cleaves & Co. Ltd (2003) s.1(1); s(5) appropriate damages; s.2(1) contract can be ammended.
Enforcement by promisee
a) Jackson v Horizon Holidays (1975) Multiple bookings
b) Alberzero (1977) Sellers contract with buyers goods for delivery
c) Linden Garden Trust v Lenester Slidge (1993) - Contract where the subject matter will be acquired by the third party
d) Panatown v Alfred McAlpine Construction Ltd (2002) - Limited application
AGENCY
Agency - The Euromedon, New Zealand Shipping v Scatterwaite (1975). The Mahkaai (1996) - Lord Goff made excellent summary on the development of law in this area. Consumer Credit Act (1974) s.56. .57, Law of Property Act 1925, s.56.
Agency might be successful if:
a) The contract made it clear that the stevedorees were intended to receive the benefit
b) The contract made it clear that the carrier in addition to contracting on his own behalf was also contracting on behalf of the stevedorees
c) The carrier had authortiy from the stevedore to enter into the contract on his behalf (or possibly a later ratification of the contract by the stevedores would suffice and any difficulties about how the stevedores would provide consideration for this contract were overcome. The agency argument was not successful
Argument in favour of Privity
1) Clearly define the ambit and enforceability of contract
2) Ensure court do not create a contractual obligation
3) Operate in tandem with the requirement that consideration must move from the promisee
4) It would not be desirable for the promisor to face actions for breach of contract from both the promisee and the third party
5) If the third party could enforce the contract, this would affect the ability of the parties to vary or rescind contract.
Argument Against Privity
1) It leads to commercial inconvenience
2) It can opereate to create great injustice
3) Defeats the intention of parties
4) Put English contract law in an anomolous position in that contract law of other countries does recognise the right of third party.
5) It creates uncertainty in law given the number of decisions which exist to circumvent teh application of the doctrine.
ILLEGALITY
Illegality will affect contract to commit murder; promote immorality; perform illegality; not formed in accordance with procedure prescribed by statute. The court will not enforce illegal contract to act as deterence, purnish wrongdoers and preserve the dignity of the court and in line with public policy. The types of illegality are
a) Common law illegality
b) Statutory illegality either illegality as formed or illegality as performed.
Mahmoud v Ispahabu (1921) - unenforceavke
Mohammed v Alaga & Co (a firm) 2000 - illegal as formed, but court allowed benefit on quantum merit
St John Shipping Corporation v Joseph Rank Ltd (1957) - illegal as performed. Overloaded ship
COMMON LAW ILLEGALITY
Commission of legal wrong - Alexander v Rayson (1936); Baresford v Royal Exchange Assurance (1938); Peace v Brooks (1866); France v Boston (1797)
Lowe v Peers (1768) - prejudicial to family life; Hermann v Charlesworth (1905)
R v Andrew (1979) - Restraint administration of justice Ellinot v Richardson (1870)
EFFECT OF ILLEGALITY
Strongman (1945) Ltd v Sinecock (1955) - Remedy for innocent party
Holman v Johnson (1775) No partial recovery of benefit; exception in recovery of money Kirini Cotton Co. Ltd v Dewani (1960)
Taylor v Bowens (1876); Tribe v Tribe (1976) Bowmaker Ltd v Barnet Instrument Ltd (1945) - withdrawal before commission of illegality allows for recovery
Tinslay v Milligan (1994) Equitable proprietary.
REFORM
Court to consider whether to enforce or not contract; to recognise whether property right has been transferred or not and to allow benefit conferred to be recovered or not.
Exam Advise.
Determine the extent to which court will enforce contract tainted by illegality which considertion to the purpose of the act - St John Shipping v Rank. Is the statute intended to penalise conduct or prohibit contract. Pari delicito where both are aware of the illegality. Peace v Brooks (high moral standard); Tinslay v Milligan (relaxed moral standard)
RESTRAINT OF TRADE
Employment contract and Sale of business to another. Restraint is to protect legitimate interest. Court will only enforce a restraint of trade to the extent of its reasonabless between party and public policy. Statutory control upon anti-competition.
Scope of reasonableness
a) Clause must protect legitimate interest and must not be used to prevent competition with employer
b) Employer must be free to excise the general skills and knowledge he possesws - Herbert Morris Limited v Saxelby (1916)
c) The restriction must be reasonable with regards three elements - duration, subject matter, area - Mason v Provident Clothing & Supply Company Ltd (1913)
Once the clause if found to be reasonable between party, it is unlikely that the court will find it contrary to public policy - Wyatt v Kregliger and Fernaid (1933)
SALE OF BUSINESS
Modern law in this area is established by Nordernfelt v Maxim Nordebfelt (1894). The courts are much more likely to uphold a restrain of trade clause found in contract for the sale of business than a contract of employment. Cost paid is important in determining reasonableness. In some case the court will find not to compete in any future business as unreasonable and may accept worldwide restriction reasonable because of the low number of manufacturer in certain area.
OTHER AGREEMENTS
Restraing of trade sometimes apply in 'solus' or exclusive dealing agreement - Esso Petroleum Co. Ltd v Harpers Garage (Stourport) Ltd (1968) HL 4 yrs, 5 months agreement considered reasonable and 21 year was considered as beyond requirement to protect interest.
Exclusive agreement - A. Schroeder Music Publishing v Macaulay (1974).
Nordernfeilt v Maxim Nordenfelt
Contract of Employment
Establish that there is legitimate interest to protect
DISCHARGE OF CONTRACT
Contract would be discharged through performance, breach and frustration.
Principle of substantial performance
Cutter v Powell (1975); - No payment for the performance of an existing obligatio. Simpton v Hedges (1895) the wife of the dead vice captain of a ship was unable to claim for what her husband before he died. Very harsh principle
Exceptions:
Contracts could be established as series of obligation or stages of performance - Heeny v Isaacs (1952)
Repudiatory Breach - where one party refuses to continue performance or commit an act which prevent performance. To establish repudiatory breach it is important to consider the standard of performance to be met and type of term breach.
Standard performance - strict liability and a standard of reasoable care 100% measurement. Contract for the supply of goods imposes strict liability - Arcos v Ronenson (1937) AC 1/2 inch difference to the size of a barrel was found to be a breach. Some are imposed by legislation. Sales of Goods Act 1979.
Only a breach of condition or sufficient important intermediate/innominate term gives rise to a right to terminate contract.
CONSEQUENCE OF BREACH
Breach give rise to right to terminate, receive damages, order performance etc. Innocent party must communicate to party in breach - Vitol SA v Norelf Ltd (1996). For rescission for breach, there is no future for the contract, but the contract has a past. Lord Porter speech in Johnson v Agnew (1980) AC 367, Heyman v Davinds Ltd (1947)
Anticipatory is breach that occures before performance - Universal Cargo Carrier Loop v Cutati. Carter & Coward Ltd v McGregor (1963). He cannot continue where he needs the cooperation of the party in breach. When there is no legitimate interest the innocent ought not th saddle the other party with additional burden Lord Reid White v Carter (1971); Clear Shipping v Bulk Oil (1984)
ESSAY
Breach depend largely on particular terms. If breach does not justify termination and the innocent party purports to d do, he may be liable for breach - Great Peace; Decrowall International SA v Practitioner on Marketing Ltd (1971). Hong Kong Fir shipping Co. Ltd v Kawasaki Kize Kabshe Ltd (1962). The question is would legislation be helpful or give rigidity, should court attempt to give great to the manners in which the parties clasify term.
Friday, April 18, 2008
Sexual Offence Act 2003 - Lecture Notes 5-4-08
SEXUAL OFFENCES ACT 2003
Lecture 5.4.08
SECTION 74
A person consents if:
· he agrees by choice; and
· he has the freedom and capacity to make that choice
Under age?
Mental capacity?
Drink/drugs? (below)
Full knowledge? (below)
Duress?
Promise of reward?
I’ll give you £1M if …
I’ll give you the leading role in my next film if …
I’ll pay for your son to go to an independent school if …
‘Consent to sexual intercourse extends from passionate enthusiasm to reluctant or bored acquiescence.’ (Bree [2007] 3 WLR 600, para 22, per Sir Igor Judge, P)
Drink/drugs
1. ‘A drunken consent is still consent.’ (‘A useful shorthand, accurately encapsulating the legal position,’ Bree, para 33.)
2. This does NOT mean:
· A complainant who through drink is incapable of consenting to intercourse must nevertheless be deemed to have consented to it.
· A man is free to have sex with a woman who happens to be drunk, on the basis that her drunkenness deprives her of the right to choose whether she has intercourse or not.
3. What it does mean is that where the complainant (C) has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape. NB: Capacity to consent may evaporate well before C becomes unconscious, but whether or not this has happened depends on her actual state of mind on that particular occasion. (Bree, para 24)
Full knowledge
1. Does C have freedom and capacity to make a choice where a defendant (D) has deceived her as to his HIV status, or has simply not revealed it? The trial judge in B [2007] 1 WLR 1567 seems to have thought she did not. The question arose whether D’s HIV+ status was relevant on his trial for rape. The judge held that it was, because section 74 involves the person whose consent is being considered being in a position to be able to make a reasoned choice in the matter. For a person to be in that position, she has to have all the relevant facts, and one relevant fact is the prospect that she might become infected with HIV. So he directed the jury to consider, when dealing with whether or not she consented, whether she had freedom and capacity to make the choice if she did not know that D was HIV+.
2. This was a case of non disclosure, not of positive deceit. In this context, the Court of Appeal said that where one party to sex has a sexually transmissible disease, which is not disclosed to the other party, it does not vitiate consent.
3. Would the position be the same in a case of positive deception? If it were not, and a deliberate lie could negate C’s capacity to make a choice, where would you draw the line?
Examples
‘I love you and I want to marry you.’
‘I’m on £100,000 a year.’
‘I’ve always voted Labour.’
What if C changes her mind?
By s 79(2), penetration is a continuing act from entry until withdrawal. So an act that begins with a consensual entry can become rape or assault by penetration if C changes her mind while the penetration is continuing, and communicates this to D, who nevertheless fails to withdraw.
Mistakes about consent
1. Offences under ss 1, 2 and 3 require an absence of reasonable belief in C’s consent. Whether a belief is reasonable is to be determined having regard to all the circumstances. NB that if the mistaken belief is due to excessive drink, it won’t be reasonable (Heard [2008] QB 43, paras 15-16).
2. Prima facie, therefore, the question whether a mistake has been reasonable is one for the jury, who will have to look at all the circumstances.
3. There has been a suggestion that mistake as to the identity of the complainant is not a relevant circumstance. The effect of this would be that offences under ss 1, 2 and 3 are of strict liability so far as, but only so far as, the identity of C is concerned. This was the ruling of the trial judge in Whitta (2006), as a result of which D pleaded to a s 2 offence. The case was considered by CA not on an appeal against conviction, but because the AG thought the sentence too lenient and referred it to CA under s 36 CJA 1988. That was the only matter that CA could therefore decide, but the Court expressed some doubt, obiter, as to the correctness of the trial judge’s ruling (AG’s Ref No 79 of 2006 [2006] EWCA Crim 2626; [2007] 1 Cr App R (S) 122).
SECTION 75
You should remember the distinction between evidential and legal burdens. The evidential burden is not really a burden of proof at all. Where a party has an evidential burden in relation to a particular issue, all it means is that for that issue to be a live one in the trial, so that the jury can consider it, he must be able to point to some evidence that supports his case on that issue. This evidence, of course, can come from himself. It’s not a requirement that there has to be evidence from an independent source.
For example, if a defendant wants to rely on self-defence as his answer to a charge of assault, for the jury to consider at all whether he might have been acting in self-defence, there must be some evidence from someone that he did so. Once the issue has been raised in this way, it’s for the prosecution to disprove it as a possibility beyond reasonable doubt. If they fail to do so, the defendant must be acquitted.
THE CONCLUSIVE PRESUMPTION UNDER S 76
1. For this to apply, there must have been deception as to the nature or purpose of the act: see s 76(2)(a). So lies told by way of inducement won’t be enough for these purposes unless they are about the nature or purpose of the act. But lies told by way of inducement are still capable of negating consent if they lead to a situation in which it can be said that C did not agree by choice, or did not have the freedom or capacity to make that choice: see the definition of consent in s 74, and Jheeta [2007] 2 Cr App R 34.
2. At common law, for deception to vitiate consent it had to be as to the ‘nature or quality’ of the act. It was not wholly clear how ‘quality’ was to be distinguished from ‘nature’, but ‘nature’ and ‘purpose’ seem clearly distinguishable. You can have a full understanding of the nature of the act, but be misled as to its purpose.
3. For possible examples, see (from pre-2003 law, referred to in Jheeta, para 26) Green [2002] EWCA Crim 1501; Lineker [1995] 2 Cr App R 49.
4. Note s 77, which lists the offences to which ss 75 and 76 apply. Attempts are not included.
DEFINITION OF ‘SEXUAL’: S 78
1. Only a partial definition. ‘An approach for determining whether the activity in question is sexual where this may be in doubt.’ (Temkin and Ashworth in [2004] Crim LR 331, quoted by CA in H [2005] 1 WLR 2005, para 4.)
2. There are two possibilities:
(a) The act is of its nature sexual, regardless of the circumstances or anyone’s purpose. Note the difficulty of labelling an action as ‘intrinsically x’ when x depends on the circumstances; e.g., ‘To kill another person is intrinsically immoral.’ (What about self defence? Defence of wife or children? Partner or children? A just war? And so on.) OR
(b) Where -
(i) because of its nature it may be sexual; AND
(ii) because of circumstances or purpose it is sexual.
This analysis has to be conducted in two stages; it’s easy to miss this if you don’t read the statute carefully. See H [2005] 1 WLR 2005, paras 8-9, 12-14.
DEFINITION OF ‘TOUCHING’: s 79
1. Another partial definition. See s 79(8): touching includes …
2. In H (2005, see above) CA held that ‘where a person is wearing clothing … touching the clothing constitutes touching for the purpose of the s 3 offence.’ (See how this was possible in view of the partial definition.)
Defence counsel had argued that if pressure in some form is not brought against the body of the person concerned, there cannot be touching. There has to be some form of touching of C’s body, even if it’s only through clothing. But this argument failed. So what about -
The train on a wedding dress?
The wing on an academic’s gown?
A coat that is being worn half on and half off?
The decorations on an Ascot hat?
3. The best way of looking at H is to say that it has to be read in the context of its own facts. What CA said is not to be treated as if it were a statutory provision. The decision establishes that touching clothing without touching C’s body, even through clothing, can constitute touching for s 3 purposes.
SECTION 3: SEXUAL ASSAULT
1. The forbidden act has to be intentional (as also in ss 1 and 2), so reckless touching is not enough (Heard [2008] QB 43, para 22). To flail about, stumble or barge around in an uncoordinated manner which results in an unintended touching that is objectively sexual is not this offence, either when sober or drunk. A drunken accident is still an accident. (See para 23.)
2. The intentional touching element requires no more than a basic intent. So voluntary intoxication can’t be relied on to negate that intent. The jury must be sure that the touching was deliberate, but a drunken intent is still an intent (Heard, especially paras 17-18).
3. Note the possibility of a conviction under s 62 (committing an offence with intent to commit a sexual offence) as an alternative to a s 3 offence where the prosecution fails to establish that a touching was sexual (H [2005] 1 WLR 2005, para 15).
4. D must have no reasonable belief that C was consenting. Whether a belief was reasonable is to be determined having regard to all the circumstances. It’s clear from the Parliamentary debates that this was intended to include D’s characteristics. It remains to be seen if the courts will follow this interpretation.
Lecture 5.4.08
SECTION 74
A person consents if:
· he agrees by choice; and
· he has the freedom and capacity to make that choice
Under age?
Mental capacity?
Drink/drugs? (below)
Full knowledge? (below)
Duress?
Promise of reward?
I’ll give you £1M if …
I’ll give you the leading role in my next film if …
I’ll pay for your son to go to an independent school if …
‘Consent to sexual intercourse extends from passionate enthusiasm to reluctant or bored acquiescence.’ (Bree [2007] 3 WLR 600, para 22, per Sir Igor Judge, P)
Drink/drugs
1. ‘A drunken consent is still consent.’ (‘A useful shorthand, accurately encapsulating the legal position,’ Bree, para 33.)
2. This does NOT mean:
· A complainant who through drink is incapable of consenting to intercourse must nevertheless be deemed to have consented to it.
· A man is free to have sex with a woman who happens to be drunk, on the basis that her drunkenness deprives her of the right to choose whether she has intercourse or not.
3. What it does mean is that where the complainant (C) has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape. NB: Capacity to consent may evaporate well before C becomes unconscious, but whether or not this has happened depends on her actual state of mind on that particular occasion. (Bree, para 24)
Full knowledge
1. Does C have freedom and capacity to make a choice where a defendant (D) has deceived her as to his HIV status, or has simply not revealed it? The trial judge in B [2007] 1 WLR 1567 seems to have thought she did not. The question arose whether D’s HIV+ status was relevant on his trial for rape. The judge held that it was, because section 74 involves the person whose consent is being considered being in a position to be able to make a reasoned choice in the matter. For a person to be in that position, she has to have all the relevant facts, and one relevant fact is the prospect that she might become infected with HIV. So he directed the jury to consider, when dealing with whether or not she consented, whether she had freedom and capacity to make the choice if she did not know that D was HIV+.
2. This was a case of non disclosure, not of positive deceit. In this context, the Court of Appeal said that where one party to sex has a sexually transmissible disease, which is not disclosed to the other party, it does not vitiate consent.
3. Would the position be the same in a case of positive deception? If it were not, and a deliberate lie could negate C’s capacity to make a choice, where would you draw the line?
Examples
‘I love you and I want to marry you.’
‘I’m on £100,000 a year.’
‘I’ve always voted Labour.’
What if C changes her mind?
By s 79(2), penetration is a continuing act from entry until withdrawal. So an act that begins with a consensual entry can become rape or assault by penetration if C changes her mind while the penetration is continuing, and communicates this to D, who nevertheless fails to withdraw.
Mistakes about consent
1. Offences under ss 1, 2 and 3 require an absence of reasonable belief in C’s consent. Whether a belief is reasonable is to be determined having regard to all the circumstances. NB that if the mistaken belief is due to excessive drink, it won’t be reasonable (Heard [2008] QB 43, paras 15-16).
2. Prima facie, therefore, the question whether a mistake has been reasonable is one for the jury, who will have to look at all the circumstances.
3. There has been a suggestion that mistake as to the identity of the complainant is not a relevant circumstance. The effect of this would be that offences under ss 1, 2 and 3 are of strict liability so far as, but only so far as, the identity of C is concerned. This was the ruling of the trial judge in Whitta (2006), as a result of which D pleaded to a s 2 offence. The case was considered by CA not on an appeal against conviction, but because the AG thought the sentence too lenient and referred it to CA under s 36 CJA 1988. That was the only matter that CA could therefore decide, but the Court expressed some doubt, obiter, as to the correctness of the trial judge’s ruling (AG’s Ref No 79 of 2006 [2006] EWCA Crim 2626; [2007] 1 Cr App R (S) 122).
SECTION 75
You should remember the distinction between evidential and legal burdens. The evidential burden is not really a burden of proof at all. Where a party has an evidential burden in relation to a particular issue, all it means is that for that issue to be a live one in the trial, so that the jury can consider it, he must be able to point to some evidence that supports his case on that issue. This evidence, of course, can come from himself. It’s not a requirement that there has to be evidence from an independent source.
For example, if a defendant wants to rely on self-defence as his answer to a charge of assault, for the jury to consider at all whether he might have been acting in self-defence, there must be some evidence from someone that he did so. Once the issue has been raised in this way, it’s for the prosecution to disprove it as a possibility beyond reasonable doubt. If they fail to do so, the defendant must be acquitted.
THE CONCLUSIVE PRESUMPTION UNDER S 76
1. For this to apply, there must have been deception as to the nature or purpose of the act: see s 76(2)(a). So lies told by way of inducement won’t be enough for these purposes unless they are about the nature or purpose of the act. But lies told by way of inducement are still capable of negating consent if they lead to a situation in which it can be said that C did not agree by choice, or did not have the freedom or capacity to make that choice: see the definition of consent in s 74, and Jheeta [2007] 2 Cr App R 34.
2. At common law, for deception to vitiate consent it had to be as to the ‘nature or quality’ of the act. It was not wholly clear how ‘quality’ was to be distinguished from ‘nature’, but ‘nature’ and ‘purpose’ seem clearly distinguishable. You can have a full understanding of the nature of the act, but be misled as to its purpose.
3. For possible examples, see (from pre-2003 law, referred to in Jheeta, para 26) Green [2002] EWCA Crim 1501; Lineker [1995] 2 Cr App R 49.
4. Note s 77, which lists the offences to which ss 75 and 76 apply. Attempts are not included.
DEFINITION OF ‘SEXUAL’: S 78
1. Only a partial definition. ‘An approach for determining whether the activity in question is sexual where this may be in doubt.’ (Temkin and Ashworth in [2004] Crim LR 331, quoted by CA in H [2005] 1 WLR 2005, para 4.)
2. There are two possibilities:
(a) The act is of its nature sexual, regardless of the circumstances or anyone’s purpose. Note the difficulty of labelling an action as ‘intrinsically x’ when x depends on the circumstances; e.g., ‘To kill another person is intrinsically immoral.’ (What about self defence? Defence of wife or children? Partner or children? A just war? And so on.) OR
(b) Where -
(i) because of its nature it may be sexual; AND
(ii) because of circumstances or purpose it is sexual.
This analysis has to be conducted in two stages; it’s easy to miss this if you don’t read the statute carefully. See H [2005] 1 WLR 2005, paras 8-9, 12-14.
DEFINITION OF ‘TOUCHING’: s 79
1. Another partial definition. See s 79(8): touching includes …
2. In H (2005, see above) CA held that ‘where a person is wearing clothing … touching the clothing constitutes touching for the purpose of the s 3 offence.’ (See how this was possible in view of the partial definition.)
Defence counsel had argued that if pressure in some form is not brought against the body of the person concerned, there cannot be touching. There has to be some form of touching of C’s body, even if it’s only through clothing. But this argument failed. So what about -
The train on a wedding dress?
The wing on an academic’s gown?
A coat that is being worn half on and half off?
The decorations on an Ascot hat?
3. The best way of looking at H is to say that it has to be read in the context of its own facts. What CA said is not to be treated as if it were a statutory provision. The decision establishes that touching clothing without touching C’s body, even through clothing, can constitute touching for s 3 purposes.
SECTION 3: SEXUAL ASSAULT
1. The forbidden act has to be intentional (as also in ss 1 and 2), so reckless touching is not enough (Heard [2008] QB 43, para 22). To flail about, stumble or barge around in an uncoordinated manner which results in an unintended touching that is objectively sexual is not this offence, either when sober or drunk. A drunken accident is still an accident. (See para 23.)
2. The intentional touching element requires no more than a basic intent. So voluntary intoxication can’t be relied on to negate that intent. The jury must be sure that the touching was deliberate, but a drunken intent is still an intent (Heard, especially paras 17-18).
3. Note the possibility of a conviction under s 62 (committing an offence with intent to commit a sexual offence) as an alternative to a s 3 offence where the prosecution fails to establish that a touching was sexual (H [2005] 1 WLR 2005, para 15).
4. D must have no reasonable belief that C was consenting. Whether a belief was reasonable is to be determined having regard to all the circumstances. It’s clear from the Parliamentary debates that this was intended to include D’s characteristics. It remains to be seen if the courts will follow this interpretation.
Friday, March 28, 2008
LAW OF CONTRACT - GENERAL ISSUES
ISSUES/AUTHORITIES IN 2004-2005 CONTRACT LAW EXAMINATIONS
S/N
ISSUES
AUTHORITIES
ISSUES IN THE FORMATION OF A CONTRACT:
OFFER
Legal requirements necessary for the formation of a contract
Storer v Manchester City Council (1974) and
Intention to enter contract and offer not capable of being accepted. We may sell to you at certain prices.
Gibson v Manchester City Council (1978)
Display of Goods is an invitation to treat and an offer is made by the customer when he presents the goods at the cash desk. Newspaper advertisement is also an invitation to threat
Partridge v Crittenden (1968)
In a case of unilateral offer of contract, the advertisement can be the offer
Acceptance by performance
No communication of acceptance is required
Carlill v Carbolic Smoke Ball Co. (1893), Bowerman v ABTA (1995).
Harvey v Facey (1993) and Clifton v Palumbo (1944)
No offer between them because there is no offer matched by corresponding acceptance –
R v Clarke (1927) – Contrary authority Gibbons v Proctor (1891)
CONSIDERATION
Consideration must move from the promises but not necessarily to the promisor
Oxford v Davies
Consideration provided for one party can serve as good consideration to a second party in a separate contract
Pao On v Lau Yiu Long (1980)
Public duty and consideration
Glasbrook Bros Ltd v Glamorgan C. C. (1925)
Ward v Byham (1956).
To receive extra amount there must be consideration
Stilk v Myrick (1809)
Practical Benefit must be established to receive extra benefit –
Williams v Roffey Bros & Nicholls (1991) and doubts on the case Re. Selectmove Ltd (1995) and South Caribbean Trading Ltd (SCT) v Trafigura Beeher BV 2004
ACCEPTANCE
Can there be acceptance in ignorance of an offer. The law is ambiguous
Williams v Cardawardine (1833), Gibbons v Proctor (1891), R v Clarke (1927)
COMMUNICATION
If however the communication can be made over the phone or e-mail (something which will turn on the wording of the advertisement itself) then A should succeed in communicating his acceptance first and creating a binding contract before C’s communication has occurred.
Manchester Diocesan Council for Education v Commercial and General Investments (1970)
LEGAL ISSUES IN THE CREATION OF A CONTRACT
Rules on intention to create legal relations
Balfour v Balfour (1919),
Jones v Padavatton (1969)
Coward v MIB (1962)
Simpkins v Pays (1955)
Edmonds v Lawson (2000)
Problems with consideration – offer to make payment after the arrangement has commenced
Ø Roscorla v Thomas (1842), Re McArdle (1951), Pao On v Lau Yiu Long (1980)
Ø It appear there is no contract with Ian
Ø Jeremiah is her brother with – Balfour v Balfour and Jones v Padavatton
Intention to enter legal contract was excluded within a family relationship
Ø in which intention was excluded within a family relationship
REVOCATION OF AN OFFER
Revocation of an offer must be communicated to be effective
Byrne v Van Tienhoven (1880), Henthorn v Fraser (1892)
Revocation of an offer in a newspaper advert must reach substantially the same audience as the offer.
Shuey v USA (1875)
Principles of certainty of contract terms
Scammel v Ouston (1941) and Hillas v Arcos 1932
Promissory Estoppel
Central London Property Trust Ltd v High Street House Ltd (1947)
Variation of contract principles
Pinnel’s case and Foakes v Beer.
How can Cruisers end the arrangements – The
Post Chaser (1982)
Sale of Goods issues
Sale of Goods Acts 1979
PRIVITY OF CONTRACT AND RIGHTS OF THIRD PARIES
Linden Gardens v Lenesta Sludge Disposal (1994) 1 AC 85
They may fall within the limited class of exception discussed by Lord Denning in Jackson v Horizon Holidays ad still generally recognised
s.1(1) and .1(2) as regards the provision of bus service – Nisshin Shipping Co. Ltd v Cleaves & Co. Ltd.
Recognition of performance interest
Panatown v Alfred McAlpine Construction Ltd (2000): Radford v DeFroberviller (19977)
Common law exception to privity of contract
(Darlington B.C. v Wiltshier;Contract (Rights of Third Parties) Act 1999.
Remote Losses
Hadley v Badendale and Jackson v Royal Bank of Scotland (2005) UKHL 3)
McAlpine Construction Ltd (2000) HL:
INCORPORATION OF TERMS INTO A CONTRACT
SALE OF GOODS ACT 1979 & COMMON LAW CASES
Ø Olley v Marlborough Court Hotel (1941), Chapleton v Barry UDC (1940)
Ø Thorton v Shoe Lane Parking (1971)
Ø Parker v South Eastern Rly (1987)
Ø s.14 of the Sale of Goods Act 1979 (goods sold in the course of business should be of satisfactory quality
UNFAIR CONTRACT TERMS ACT 1977
Ø Unfair Terms in Consumers Contract Act 1977 (UCTA) [s.1 applies where one party deals in the course of a business or s.2 where the parties deal on one party’s standard written terms
Ø The 1977 Act applies where a party attempts to exclude liabilities arising in the context of a business s.1.
Ø D & B Customs Brokers v UDT
Ø Central London properties v High tress Houses
Ø R&B Customs Brokers, Stevenson v Rogers
Ø Feldaroll Foundry Plc v Hermes Leasing (London) Ltd (2004)
Ø or if the parties deals on Ultraclean’s written standard terms of business (St. Albans City District Council v International Computers Ltd (1996).
UNFAIR TERMS IN CONSUMER CONTRACT REGULATION 1999
Ø Unfair Terms in Consumers Contract Regulations Act 1999 (UTCCR)
Ø Applications of ss. 6 and 12 of UCTA 1997 and the relevant case law.
Ø Application of ss.2(2), 3, 11, 13, 24, Sch. 2 and the case laws interpreting the sections
Ø Terms are also implied into contract by Breach of implied terms and whether express terms cover the breach
Ø 1999 (UTCCR) applied to unfair terms between a seller and supplier on the one hand and consumer on the other s.4(1)
Ø Unfair terms principles in Director-General of Fair trading v First National Bank Plc (2002) HL; UTCCR 1999 ss.4-6, Sch.2)
Ø L’Estrange v Graucon
Notice must be given before the time of the contract
Olley v Marlborough Court (1949)
It must be embodied in a document of ‘contractual force’
Chapelton v Barry Urban District Council (1940)
Appropriate notice of exclusion clause must be given
Parker v South Eastern Railway (1877
Extra notice must be given of onerous or unusual terms
Spurling v Bradshaw (1956) and Interfoto Ltd v Stiletto Visual Programmes Ltd (1989) (terms iii and iv)
CATEGORISATION OF TERMS IN CONTRACT
Principles for establishing the importance of contract terms
L Schulter v Wickman Machine Tool Sale (1974); Lambeth North Central v Butterworth [1987
Innominate Terms
practical consideration will usually be of commercial nature [expectation of future business in other contracts, long-term relationship or an unwillingness to impede supply)
Legal consideration will generally be considered with the claimant’s duty to mitigate his losses
British Westinghouse Electric Co. Ltd v Underground Electric Rys Co of London Ltd (1912) and Payzu v Saunders (1919)
Classification of contractual terms into conditions, warranties and intermediate and innominate terms
Hong Kong Fir Shipping Co. Ltd v Kawasaki Kisen Kaisha Ltd (1962)
ELEMENTS THAT COULD VITIATE AN APPARENT CONTRACT
Ø Legal doctrine of economic duress and equitable doctrine of undue influence
Ø As a matter of practicability and commercial reality, most transactions were affected by some form of duress or undue influence
Ø Are the principles upon which courts intervene very clear and whether the case which established this principles were in conflict.
Ø All involve the application of House of Lords’ decision in Shogun Finance v Hudson – the way in which the contract was formed (particularly whether it was made face to face) was critical in determining, whether the resulting contract was voidable or void.
Ø If it is voidable, has luxury taken steps to avoid the contract before jack ‘sell’ the jewellery to Owen. Car and Universal Finance Co. v Caldwell
Supervening event which renders the performance of contract impossible - and so forth
Ø Davis Contractors Ltd v Fareham Urban District Council (1956)
Ø National Carriers Ltd v Panalpina (Northern) Ltd (1981)
Ø Tsakiroglou & Co. v Noblee and Thorl (1962)
Ø Nature of frustration – Davis Contractors Ltd v Fareham Urban District Council (1956) and National Carriers Ltd v Panalpina (Northern) Ltd (1981)
Ø The coronation case were of particular use in determining these – Harne Bay Steamboat Company v Hutton (1903) and Krell v Henry (1903)
Principles for Breach of contract
Marine National Fish v Ocean Trawlers (1935) and the Super Servant Two (1990)
Law reform (Frustrated contracts) Act 1943
PROMISORY ESTOPPEL
Ø Circumstances in which promissory estoppel was developed (attempts at contractual variation or promises given which were intended to be relied upon but were given in absence of consideration)
Ø A rigid insistence upon consideration can lead to harsh result, promissory estoppel is designed to alleviate such injustice
Ø In English law promissory estoppel may be poised as alternative to consideration, that situation has not yet been realised – Baird Textile Holdings v Marks and Spencer (2001)
Ø Application of the rule in Balfour v Balfour (1919), Jones v Padavatton (1969), Coward v MIB (1962), Simpkins v Pays (1955) and Edmonds v Lawson (2000)Formation of contract
MISREPRESENTATION
Actionable Misrepresentation – Implicit statement
Spice Girls Ltd v Aprila World Service BV (2000)
Misrepresentation Act 1967
Is the statement of an agent a misrepresentation?
Bisset v Wilkonson (1927) AC 177
Smith v Land House Corporation (1884) 28 ChD 7
Royscot v Rogerson
Operative mistake has the effect of vitiating a contract
Smith v Hughes
Negligent misrepresentation
Hedley Byrne v Heller(1964) AC 465
Effect of a mistake as to the quality of the subject matter in a contract –
Bell v Lever Bros
Mutual mistake
Sole v Butcher, Associated Japanese Bank v Credit du Nord, the Great Peace
Discharge of a contract
Davis Contractors Ltd v Fareharm Urban District Council
MISTAKE
MISTAKE INDUCED BY FRAUD
THE EFFECT ON CONTRACT
MISTAKE AS TO IDENTITY AND ATTRIBUTES
Ø The situation required candidates to explore, analyse and attempt to reconcile the growing body of case law on the issue of mistake as to identity of one of the contracting parties brought about by the fraud of that party
Ø The law is difficult to reconcile in this area.
Ø The judgement of the House of Lords in Shogun Finance Limited afforded ample materials to discuss in answering this question.
Ø
MISREPRESENTATION - FALSE/FRAUDULENT
warranties of representation:
Heilbut, Symons &Co. v Buckelton (1913)
Statements of opinion can be misrepresentation
Bisset v Wilkinson (1927)
Esso Petroleum v Mardon (1976).
Possession of knowledge which implies a set of fact particularly within her knowledge:
Smith v Land and House Property Corp (1884);
BG Plc v Nelson Group Services (Maintenance) Ltd (2002)
Negligent misrepresentation
Hedly, Byrne v Heller
Innocent misrepresentation
Entitled the other party to rescission of the contract
Fraudulent Misrepresentation
Derry v Peek
James modification of the van may make rescission impossible and would prevent relief under the Act –
Floods of Queensferry Ltd v Shand Construction Ltd (2000);
Government of Zanzibar v British Aerospace (Lancaster House) Ltd (2000).
Contrary authority in Thomas Witter Ltd v TBP Industries (1996).
Finally, has there been a lapse of time that bars rescission?
FRUSTRATION
Principle relating to frustration
Davis Contractors Ltd v Fareham Urban District Council (1956)
National Carriers Ltd V Panalpina (Northern Ltd (1981)
ILLEGAL CONTRACTS
ILLEGAL CONTRACTS
Ø Different treat to contract illegal as formed (which are unenforceable)
Ø Illegal as performed (which may be enforceable in some circumstances)
Ø The importance is, thus, as to the potential enforceability of the contract as to recover money or benefits conferred upon another pursuant to an illegal contract
Statutory illegality – purpose behind the statute
John Shipping v Rank,
In some circumstances, courts have allowed such contract to be enforced
(cf Archbolds (Freightage) v Spanglett); i
in other cases, courts have not allowed the contract to be enforced
(cf Re Mahmoud and Ispahani)
Recovery on a quantum valebat basis for the goods supplied
Mohammed v Alaga
Public policy may not however allow restitutionary recovery on a quantum valebat basis
Awwad v Geraghty & Co.
The parties are in pari delicto and neither can sue on the contract.
PRINCIPLES FOR AWARD OF DAMAGES FOR BREACH OF CONTRACT
Expectation loss
Robinson v Harman (1884).
Non-pecuniary matters such as loss of amenity, pain, distress and so forth
Ruxley Electronics and Contruction v Forsyth (1995), Farley v Skinner, Hamilton Jones v David & Snape (2003)
Alternative basis for measuring damages on the reliance loss or loss of expenditure basis
Anglia Television v Reed (1972)
Award for restitutionary losses e.g. an account of profit following House of Lords decision in
Attorney General v Blake (2001). Controversy in Experience Hendrix LLC v PPX Enterprises Inc. 2003
Nature of award of damages
under s.2(1) of the Misrepresentation Act 1967 in the light of decision in Royscot Trust Ltd v Rogerson (1991) in terms of removal of possibility of claim of either negligent misstatement or fraudulent misrepresentation at common law
Either a duty of care or an assumption of responsibility to be established by the claimant.
Hedley Byrne v Heller
Claimant need only establish that a misrepresentation has occurred
S.2(1) shifts burden of proof to the defendant to establish that they had reasonable ground to believe that the statement was true up to the point of contracting
Generous awards
Royscot Trust v Rogersn which allows a claimant to receive damages measure as if the tort of deceit had been committed.
Reservations
Forest International Gaskets Limited v Foster Marketing Limited (2005) the CA refused permission for the issue to be sent on appeal to the House of Lords
Non-financial losses arising from loss of enjoyment and this irrecoverable or can they be recovered
Addis v Gramophone Co. Ltd (1909), Jarvis v Swans Tour (1973),
Ruxley Electronics and Construction Ltd v Forsyth (1996),
Malik v BCCI (1991)
Hamilton Jones V David & Snape (2003).
Remote losses
Hadley v Baxendale (1854)
Victoria Laundry (Windsor) v Newman Industries (1949)
The Heron II (1969) and H Parsons (Livestock) v Uttley Ingham (1978)
If the breach is not enough to justify termination of the agreement and the innocent party does so, he may himself be have breached the contract
Decro-Wall International SA v Practitioners in Marketing Ltd 1971
Damages could not be recovered on the basis
Addis v Gramophone Co. (1909) although candidates would want to consider the line of authorities decided since Malik v BCCI (1997).
Damages for loss of employment because the purpose of the contract was employment
Jarvis v Swan Tours (1973); Jacksons vs Horizon Holidays (1975); Farley v Skinner (2001)
Damages on behalf of guest
Pantown v Alfred McAlpine Construction Ltd (2002)
DISCHARGE OF CONTRACTS
Relevant criteria established for the frustration of a contract by the case law
Ø Davs Contractors Ltd v Fureham Urban District Council and National Carriers Ltd v Panalpina (Northern) Ltd [1981]
Ø Destruction of the subject matter Taylor v Caldwell (1863)
Ø Bay Steam Boat Co v Hutton (1904): it is still possible to perform a significant element of the contracts and that they are therefore not frustrated
Ø Bay Steam Boat Co v Hutton (1904) and Krell v Henry (1903) to ascertain whether the existence of the island formed a foundation of the hall hire contract
Ø Essential element - Steam Boat Co v Hutton
Misrepresentation Act 1967 – Frustration
s.1(1), s.2(5), S.1(2) must be applied to determine the result of frustration.
Gamerco SA v ICM/Fair Warning Agency (1995) would be appropriate
If there was unilateral mistake the contract is void unless is within
Smith v Hughes (1871)
Bilateral or common mistake
Bell v Lever Bros (1931); Great Peace (2002)
Impossibility – you can purchase what belongs to you
Cooper v Phibbs (1987)
Destruction of the subject of contract
Financings Ltd v Stimson (1962)
Misrepresentation of warranty
Heillbut, Symons & Co. v Buckleton (1913)
Type of misrepresentation
Hedly, Byrne v Heller (1964) and s.2(1) of the Misrepresentation Act 1967
REMEDIES FOR BREACH CONTRACT
Ø Generally it is only damages that is available for a breach of contract
Ø Nature of damages available
Ø Equitable remedies – order of specific performance or an injunction (granted only in exceptional circumstance
Ø A would not in any event, recover damages for disappointment on the basis of Addis v Gramophone Co. (1909) although candidates would want to consider the line of authorities decided since Malik v BCCI (1997).
S/N
ISSUES
AUTHORITIES
ISSUES IN THE FORMATION OF A CONTRACT:
OFFER
Legal requirements necessary for the formation of a contract
Storer v Manchester City Council (1974) and
Intention to enter contract and offer not capable of being accepted. We may sell to you at certain prices.
Gibson v Manchester City Council (1978)
Display of Goods is an invitation to treat and an offer is made by the customer when he presents the goods at the cash desk. Newspaper advertisement is also an invitation to threat
Partridge v Crittenden (1968)
In a case of unilateral offer of contract, the advertisement can be the offer
Acceptance by performance
No communication of acceptance is required
Carlill v Carbolic Smoke Ball Co. (1893), Bowerman v ABTA (1995).
Harvey v Facey (1993) and Clifton v Palumbo (1944)
No offer between them because there is no offer matched by corresponding acceptance –
R v Clarke (1927) – Contrary authority Gibbons v Proctor (1891)
CONSIDERATION
Consideration must move from the promises but not necessarily to the promisor
Oxford v Davies
Consideration provided for one party can serve as good consideration to a second party in a separate contract
Pao On v Lau Yiu Long (1980)
Public duty and consideration
Glasbrook Bros Ltd v Glamorgan C. C. (1925)
Ward v Byham (1956).
To receive extra amount there must be consideration
Stilk v Myrick (1809)
Practical Benefit must be established to receive extra benefit –
Williams v Roffey Bros & Nicholls (1991) and doubts on the case Re. Selectmove Ltd (1995) and South Caribbean Trading Ltd (SCT) v Trafigura Beeher BV 2004
ACCEPTANCE
Can there be acceptance in ignorance of an offer. The law is ambiguous
Williams v Cardawardine (1833), Gibbons v Proctor (1891), R v Clarke (1927)
COMMUNICATION
If however the communication can be made over the phone or e-mail (something which will turn on the wording of the advertisement itself) then A should succeed in communicating his acceptance first and creating a binding contract before C’s communication has occurred.
Manchester Diocesan Council for Education v Commercial and General Investments (1970)
LEGAL ISSUES IN THE CREATION OF A CONTRACT
Rules on intention to create legal relations
Balfour v Balfour (1919),
Jones v Padavatton (1969)
Coward v MIB (1962)
Simpkins v Pays (1955)
Edmonds v Lawson (2000)
Problems with consideration – offer to make payment after the arrangement has commenced
Ø Roscorla v Thomas (1842), Re McArdle (1951), Pao On v Lau Yiu Long (1980)
Ø It appear there is no contract with Ian
Ø Jeremiah is her brother with – Balfour v Balfour and Jones v Padavatton
Intention to enter legal contract was excluded within a family relationship
Ø in which intention was excluded within a family relationship
REVOCATION OF AN OFFER
Revocation of an offer must be communicated to be effective
Byrne v Van Tienhoven (1880), Henthorn v Fraser (1892)
Revocation of an offer in a newspaper advert must reach substantially the same audience as the offer.
Shuey v USA (1875)
Principles of certainty of contract terms
Scammel v Ouston (1941) and Hillas v Arcos 1932
Promissory Estoppel
Central London Property Trust Ltd v High Street House Ltd (1947)
Variation of contract principles
Pinnel’s case and Foakes v Beer.
How can Cruisers end the arrangements – The
Post Chaser (1982)
Sale of Goods issues
Sale of Goods Acts 1979
PRIVITY OF CONTRACT AND RIGHTS OF THIRD PARIES
Linden Gardens v Lenesta Sludge Disposal (1994) 1 AC 85
They may fall within the limited class of exception discussed by Lord Denning in Jackson v Horizon Holidays ad still generally recognised
s.1(1) and .1(2) as regards the provision of bus service – Nisshin Shipping Co. Ltd v Cleaves & Co. Ltd.
Recognition of performance interest
Panatown v Alfred McAlpine Construction Ltd (2000): Radford v DeFroberviller (19977)
Common law exception to privity of contract
(Darlington B.C. v Wiltshier;Contract (Rights of Third Parties) Act 1999.
Remote Losses
Hadley v Badendale and Jackson v Royal Bank of Scotland (2005) UKHL 3)
McAlpine Construction Ltd (2000) HL:
INCORPORATION OF TERMS INTO A CONTRACT
SALE OF GOODS ACT 1979 & COMMON LAW CASES
Ø Olley v Marlborough Court Hotel (1941), Chapleton v Barry UDC (1940)
Ø Thorton v Shoe Lane Parking (1971)
Ø Parker v South Eastern Rly (1987)
Ø s.14 of the Sale of Goods Act 1979 (goods sold in the course of business should be of satisfactory quality
UNFAIR CONTRACT TERMS ACT 1977
Ø Unfair Terms in Consumers Contract Act 1977 (UCTA) [s.1 applies where one party deals in the course of a business or s.2 where the parties deal on one party’s standard written terms
Ø The 1977 Act applies where a party attempts to exclude liabilities arising in the context of a business s.1.
Ø D & B Customs Brokers v UDT
Ø Central London properties v High tress Houses
Ø R&B Customs Brokers, Stevenson v Rogers
Ø Feldaroll Foundry Plc v Hermes Leasing (London) Ltd (2004)
Ø or if the parties deals on Ultraclean’s written standard terms of business (St. Albans City District Council v International Computers Ltd (1996).
UNFAIR TERMS IN CONSUMER CONTRACT REGULATION 1999
Ø Unfair Terms in Consumers Contract Regulations Act 1999 (UTCCR)
Ø Applications of ss. 6 and 12 of UCTA 1997 and the relevant case law.
Ø Application of ss.2(2), 3, 11, 13, 24, Sch. 2 and the case laws interpreting the sections
Ø Terms are also implied into contract by Breach of implied terms and whether express terms cover the breach
Ø 1999 (UTCCR) applied to unfair terms between a seller and supplier on the one hand and consumer on the other s.4(1)
Ø Unfair terms principles in Director-General of Fair trading v First National Bank Plc (2002) HL; UTCCR 1999 ss.4-6, Sch.2)
Ø L’Estrange v Graucon
Notice must be given before the time of the contract
Olley v Marlborough Court (1949)
It must be embodied in a document of ‘contractual force’
Chapelton v Barry Urban District Council (1940)
Appropriate notice of exclusion clause must be given
Parker v South Eastern Railway (1877
Extra notice must be given of onerous or unusual terms
Spurling v Bradshaw (1956) and Interfoto Ltd v Stiletto Visual Programmes Ltd (1989) (terms iii and iv)
CATEGORISATION OF TERMS IN CONTRACT
Principles for establishing the importance of contract terms
L Schulter v Wickman Machine Tool Sale (1974); Lambeth North Central v Butterworth [1987
Innominate Terms
practical consideration will usually be of commercial nature [expectation of future business in other contracts, long-term relationship or an unwillingness to impede supply)
Legal consideration will generally be considered with the claimant’s duty to mitigate his losses
British Westinghouse Electric Co. Ltd v Underground Electric Rys Co of London Ltd (1912) and Payzu v Saunders (1919)
Classification of contractual terms into conditions, warranties and intermediate and innominate terms
Hong Kong Fir Shipping Co. Ltd v Kawasaki Kisen Kaisha Ltd (1962)
ELEMENTS THAT COULD VITIATE AN APPARENT CONTRACT
Ø Legal doctrine of economic duress and equitable doctrine of undue influence
Ø As a matter of practicability and commercial reality, most transactions were affected by some form of duress or undue influence
Ø Are the principles upon which courts intervene very clear and whether the case which established this principles were in conflict.
Ø All involve the application of House of Lords’ decision in Shogun Finance v Hudson – the way in which the contract was formed (particularly whether it was made face to face) was critical in determining, whether the resulting contract was voidable or void.
Ø If it is voidable, has luxury taken steps to avoid the contract before jack ‘sell’ the jewellery to Owen. Car and Universal Finance Co. v Caldwell
Supervening event which renders the performance of contract impossible - and so forth
Ø Davis Contractors Ltd v Fareham Urban District Council (1956)
Ø National Carriers Ltd v Panalpina (Northern) Ltd (1981)
Ø Tsakiroglou & Co. v Noblee and Thorl (1962)
Ø Nature of frustration – Davis Contractors Ltd v Fareham Urban District Council (1956) and National Carriers Ltd v Panalpina (Northern) Ltd (1981)
Ø The coronation case were of particular use in determining these – Harne Bay Steamboat Company v Hutton (1903) and Krell v Henry (1903)
Principles for Breach of contract
Marine National Fish v Ocean Trawlers (1935) and the Super Servant Two (1990)
Law reform (Frustrated contracts) Act 1943
PROMISORY ESTOPPEL
Ø Circumstances in which promissory estoppel was developed (attempts at contractual variation or promises given which were intended to be relied upon but were given in absence of consideration)
Ø A rigid insistence upon consideration can lead to harsh result, promissory estoppel is designed to alleviate such injustice
Ø In English law promissory estoppel may be poised as alternative to consideration, that situation has not yet been realised – Baird Textile Holdings v Marks and Spencer (2001)
Ø Application of the rule in Balfour v Balfour (1919), Jones v Padavatton (1969), Coward v MIB (1962), Simpkins v Pays (1955) and Edmonds v Lawson (2000)Formation of contract
MISREPRESENTATION
Actionable Misrepresentation – Implicit statement
Spice Girls Ltd v Aprila World Service BV (2000)
Misrepresentation Act 1967
Is the statement of an agent a misrepresentation?
Bisset v Wilkonson (1927) AC 177
Smith v Land House Corporation (1884) 28 ChD 7
Royscot v Rogerson
Operative mistake has the effect of vitiating a contract
Smith v Hughes
Negligent misrepresentation
Hedley Byrne v Heller(1964) AC 465
Effect of a mistake as to the quality of the subject matter in a contract –
Bell v Lever Bros
Mutual mistake
Sole v Butcher, Associated Japanese Bank v Credit du Nord, the Great Peace
Discharge of a contract
Davis Contractors Ltd v Fareharm Urban District Council
MISTAKE
MISTAKE INDUCED BY FRAUD
THE EFFECT ON CONTRACT
MISTAKE AS TO IDENTITY AND ATTRIBUTES
Ø The situation required candidates to explore, analyse and attempt to reconcile the growing body of case law on the issue of mistake as to identity of one of the contracting parties brought about by the fraud of that party
Ø The law is difficult to reconcile in this area.
Ø The judgement of the House of Lords in Shogun Finance Limited afforded ample materials to discuss in answering this question.
Ø
MISREPRESENTATION - FALSE/FRAUDULENT
warranties of representation:
Heilbut, Symons &Co. v Buckelton (1913)
Statements of opinion can be misrepresentation
Bisset v Wilkinson (1927)
Esso Petroleum v Mardon (1976).
Possession of knowledge which implies a set of fact particularly within her knowledge:
Smith v Land and House Property Corp (1884);
BG Plc v Nelson Group Services (Maintenance) Ltd (2002)
Negligent misrepresentation
Hedly, Byrne v Heller
Innocent misrepresentation
Entitled the other party to rescission of the contract
Fraudulent Misrepresentation
Derry v Peek
James modification of the van may make rescission impossible and would prevent relief under the Act –
Floods of Queensferry Ltd v Shand Construction Ltd (2000);
Government of Zanzibar v British Aerospace (Lancaster House) Ltd (2000).
Contrary authority in Thomas Witter Ltd v TBP Industries (1996).
Finally, has there been a lapse of time that bars rescission?
FRUSTRATION
Principle relating to frustration
Davis Contractors Ltd v Fareham Urban District Council (1956)
National Carriers Ltd V Panalpina (Northern Ltd (1981)
ILLEGAL CONTRACTS
ILLEGAL CONTRACTS
Ø Different treat to contract illegal as formed (which are unenforceable)
Ø Illegal as performed (which may be enforceable in some circumstances)
Ø The importance is, thus, as to the potential enforceability of the contract as to recover money or benefits conferred upon another pursuant to an illegal contract
Statutory illegality – purpose behind the statute
John Shipping v Rank,
In some circumstances, courts have allowed such contract to be enforced
(cf Archbolds (Freightage) v Spanglett); i
in other cases, courts have not allowed the contract to be enforced
(cf Re Mahmoud and Ispahani)
Recovery on a quantum valebat basis for the goods supplied
Mohammed v Alaga
Public policy may not however allow restitutionary recovery on a quantum valebat basis
Awwad v Geraghty & Co.
The parties are in pari delicto and neither can sue on the contract.
PRINCIPLES FOR AWARD OF DAMAGES FOR BREACH OF CONTRACT
Expectation loss
Robinson v Harman (1884).
Non-pecuniary matters such as loss of amenity, pain, distress and so forth
Ruxley Electronics and Contruction v Forsyth (1995), Farley v Skinner, Hamilton Jones v David & Snape (2003)
Alternative basis for measuring damages on the reliance loss or loss of expenditure basis
Anglia Television v Reed (1972)
Award for restitutionary losses e.g. an account of profit following House of Lords decision in
Attorney General v Blake (2001). Controversy in Experience Hendrix LLC v PPX Enterprises Inc. 2003
Nature of award of damages
under s.2(1) of the Misrepresentation Act 1967 in the light of decision in Royscot Trust Ltd v Rogerson (1991) in terms of removal of possibility of claim of either negligent misstatement or fraudulent misrepresentation at common law
Either a duty of care or an assumption of responsibility to be established by the claimant.
Hedley Byrne v Heller
Claimant need only establish that a misrepresentation has occurred
S.2(1) shifts burden of proof to the defendant to establish that they had reasonable ground to believe that the statement was true up to the point of contracting
Generous awards
Royscot Trust v Rogersn which allows a claimant to receive damages measure as if the tort of deceit had been committed.
Reservations
Forest International Gaskets Limited v Foster Marketing Limited (2005) the CA refused permission for the issue to be sent on appeal to the House of Lords
Non-financial losses arising from loss of enjoyment and this irrecoverable or can they be recovered
Addis v Gramophone Co. Ltd (1909), Jarvis v Swans Tour (1973),
Ruxley Electronics and Construction Ltd v Forsyth (1996),
Malik v BCCI (1991)
Hamilton Jones V David & Snape (2003).
Remote losses
Hadley v Baxendale (1854)
Victoria Laundry (Windsor) v Newman Industries (1949)
The Heron II (1969) and H Parsons (Livestock) v Uttley Ingham (1978)
If the breach is not enough to justify termination of the agreement and the innocent party does so, he may himself be have breached the contract
Decro-Wall International SA v Practitioners in Marketing Ltd 1971
Damages could not be recovered on the basis
Addis v Gramophone Co. (1909) although candidates would want to consider the line of authorities decided since Malik v BCCI (1997).
Damages for loss of employment because the purpose of the contract was employment
Jarvis v Swan Tours (1973); Jacksons vs Horizon Holidays (1975); Farley v Skinner (2001)
Damages on behalf of guest
Pantown v Alfred McAlpine Construction Ltd (2002)
DISCHARGE OF CONTRACTS
Relevant criteria established for the frustration of a contract by the case law
Ø Davs Contractors Ltd v Fureham Urban District Council and National Carriers Ltd v Panalpina (Northern) Ltd [1981]
Ø Destruction of the subject matter Taylor v Caldwell (1863)
Ø Bay Steam Boat Co v Hutton (1904): it is still possible to perform a significant element of the contracts and that they are therefore not frustrated
Ø Bay Steam Boat Co v Hutton (1904) and Krell v Henry (1903) to ascertain whether the existence of the island formed a foundation of the hall hire contract
Ø Essential element - Steam Boat Co v Hutton
Misrepresentation Act 1967 – Frustration
s.1(1), s.2(5), S.1(2) must be applied to determine the result of frustration.
Gamerco SA v ICM/Fair Warning Agency (1995) would be appropriate
If there was unilateral mistake the contract is void unless is within
Smith v Hughes (1871)
Bilateral or common mistake
Bell v Lever Bros (1931); Great Peace (2002)
Impossibility – you can purchase what belongs to you
Cooper v Phibbs (1987)
Destruction of the subject of contract
Financings Ltd v Stimson (1962)
Misrepresentation of warranty
Heillbut, Symons & Co. v Buckleton (1913)
Type of misrepresentation
Hedly, Byrne v Heller (1964) and s.2(1) of the Misrepresentation Act 1967
REMEDIES FOR BREACH CONTRACT
Ø Generally it is only damages that is available for a breach of contract
Ø Nature of damages available
Ø Equitable remedies – order of specific performance or an injunction (granted only in exceptional circumstance
Ø A would not in any event, recover damages for disappointment on the basis of Addis v Gramophone Co. (1909) although candidates would want to consider the line of authorities decided since Malik v BCCI (1997).
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