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Monday, 19 July 2010

Cases that changed our lives

The following are the chapter introductions to a forthcoming LNUK publication on which I have been working.

Cases that Changed our Lives - Chapter Introductions

I. Public law

The first five cases in this chapter fall broadly within the category of separation of powers. That was not a phrase which would have been employed by those in Dr Bonham's time, although they were certainly familiar with territorial disputes between Parliament, the Monarchy and the Courts, and within half a century would take those disputes to the ultimate extreme of civil war. In the United States of America and Australia the presence of a written constitution gave rise to different outcomes, reflected in Marbury v Madison and the five Australian cases respectively.

In the years following the Second World War the landmark case of Wednesbury became the leading authority on one issue - the power of the courts to review executive action. It remains the leading authority on that point today, although since it was decided the role of the courts has been considerably altered by the United Kingdom’s accession to the European Union. Aside from the additional complexity of another legislative layer to consider, a fundamental shift in the constitutional balance was effected by Britain’s EU membership in the form of the supremacy of European law, as established by Factortame. The influence of European law will be seen again in several other chapters.

The trial of Dr Sacheverell concerns another key question in constitutional law, the relationship between the citizen and the state. This is an issue as old as the state itself and, as the essays on the right to life in Chapter V and on the state and terrorism in Chapter VI demonstrate, unsurprisingly remains one of the central legal questions of the present day. As to the people involved, there was more than a touch of irony in the champion of non-resistance becoming the icon of the mob, with Parliament eventually responding by way of “An act for preventing tumults and riotous assemblies, and for the more speedy and effectual punishing the rioters”.

The final two essays discuss race relations in the American and Australian contexts. It should not be too trite to observe that the United Kingdom played a key role in the development of both countries and that the ensuing legal issues should accordingly be of interest to British lawyers as well. No one in the present day would defend Plessy - a transparent and iniquitous attempt to justify inequality by little more than calling it something else - although the essay expresses the view that its ghost has not been entirely exorcised. Mabo has been a decision in the other direction: recognition of native title, which was controversial at the time but has become settled law since. As with many of the essays the lives of the people actually involved contain some interesting turns, since as Dr Lindgren QC observes Eddie Mabo himself was derided by some in his own community as a trouble maker and never lived to see the full effect of the legal proceedings for which his surname is now common shorthand.

II. Land law

The United Kingdom has one of the highest rates of private home ownership in the world, and the importance of land law to its citizens corresponds. That said, it is probably fair to assume that the majority of late-night revellers in Leicester Square remain unaware of the case of Tulk v Moxhay in 1848, which preserved that famous piece of land as a public square in perpetuity. Still less would they associate it with a key legal development regarding restrictive covenants.

Lord Denning became one of England's most famous judges partly through his desire to achieve justice notwithstanding apparently hide-bound legal rules, though he did not often admit to it openly. High Trees, decided when he was still a first instance judge, remains one of his best known decisions due to his fashioning a legal answer which provided justice as he saw it. Unlike some of his other attempts, however, rather than being distinguished in later cases, it became the bedrock authority for the now-commonplace doctrine of promissory estoppel.

III. Criminal law

The first two cases in this chapter are classics of law students' tutorials - the moral dilemma of the shipwrecked sailors, and the legal as opposed to medical definition of insanity.

One of the most striking aspects of the real-life tale of R v Dudley and Stephens is that one of the participating cannibalistic seamen wasn't so put off by the whole experience that he didn't repeat the voyage. As related in the essay, Dudley subsequently emigrated to Australia (where he met a more banal end of dying of the plague). But the issue of necessity is not confined to exotic facts from nineteenth century voyages: more recently the issue arose in the context of the tragic Siamese twin litigation (Re A (children) (conjoined twins: surgical separation) [2000] 4 All ER 961) and indeed in the well-known plight of trapped mountaineers recorded in the book and film Touching the Void (where one severed the rope connecting him to another in order to save his own life, though in the event both survived) albeit in that instance no litigation ever followed.

M'Naghten's case too has facts that are quite extraordinary. One way or another the wood turner turned would-be assassin was in possession of a large sum of money, quite inconsistent with his legitimate occupation. Was he paid to undertake "the hit"? If so, whoever made the payment did so before the attempt (or at least made a substantial down payment), and therefore had to have had considerable confidence not only in Mr M'Naghten's contract killer skills but also his propensity to keep to a legally unenforceable bargain.

The case of R v Morgan also contains an interesting factual angle, in that a man who initially pleaded guilty eventually had his conviction quashed. The tragedy of a fatal train crashes always gains the attention of the national press. Usually too the press demand recrimination and reform, though the task of apportioning liability is inevitably a complex and controversial legal task. As Morgan demonstrates, the knee-jerk reaction of blaming the “front line operator” such as the train driver may obscure more serious failings of a corporate nature.

IV. Civil law

No collection of “cases that changed our lives” could omit Donaghue v Stevenson, the most important single step in the law of negligence, something most people encounter almost every day in their relations with neighbours physical and otherwise. Caparo v Dickman is just one of the many significant cases which followed: the law of negligence has never showed signs of slowing its development since the epoch began with Donaghue. The number of times both cases are cited in the law reports each year indicates as much.

Mareva, another of Lord Denning’s famous decisions, today forms a substantial amount of the business of the Commercial Court. In practical terms securing the disputed assets prior to trial is of equal importance to any substantive legal right, for the obvious reason that any substantive legal cause of action may be rendered illusory by an elusive defendant dissipating his or her assets.

Anything approximating a new cause of action will also keep practitioners, judges and legal editors busy, and the developing law of privacy is no exception, as illustrated by the Campbell case. Of course it comes squarely into conflict with one of English law’s proudest traditions, freedom of the press, and as the essay relates the particular newspaper involved wasn’t shy about asserting that tradition. The litigation still has not been concluded at the time of publication of this book, and in the meantime many a famous claimant has sought to rely on a right to privacy when seeking to suppress details of colourful activities which have kept the tabloid press busy.

V. The right to life

Once again the issue of citizen and the state arises in this chapter, in this case with what may uncontroversially be called the most important issue of all. The ultimate legal resolution in the cases of all three individuals considered in this chapter also devolved from another theme explored in chapter I - the constitutional arrangements of the United Kingdom and in particular its relationship with Europe. At the heart of their cases lay the obligations of the United Kingdom under the European Convention on Human Rights, and the decisions thereon of the court in Strasbourg. Among other things, that court has developed the obligation of contracting states under the Convention to undertake an effective investigation into deaths in certain circumstances.

VI. The state and terrorism

English law has occasionally had to deal with individuals whose potential or perceived threat greatly exceeds that of "ordinary criminals", and perhaps inevitably its responses (seen, for example, in Liversidge v Anderson during the Second World War and the Diplock courts in Northern Ireland during the 1970s) have elicited much controversy.

In the twenty-first century, the issues are perhaps more complex than ever before, for at least two reasons. The first is the somewhat nebulous nature of the contemporary enemy which is modern international terrorism: strictly identifying Al Qaeda and its members is a formidable task for the authorities in the present day, arguably more so than other enemies of the British state in the past. The second reason concerns the international obligations the United Kingdom now owes, most notably in the form of the European Convention on Human Rights.

Relations with other nations is a further complicating factor as acutely demonstrated by the Corner House decision, where the somewhat less than seaworthy vessel of English bribery law foundered on the rocks of an allied state's objections to a criminal investigation.

VII. Family law

The first two cases in this chapter concern the division of property between married or co-habiting couples. Obviously the law in this area involves rather more than simply the allocation of money and property; it reflects, occasionally belatedly, changes in social attitudes. In the late 1970s Basil Fawlty was apoplectic at the thought of an unmarried couple staying in the same room in his hotel. Even if some of the humour of the episode was directed at Basil for his old fashioned views, it would never have worked had it not been plausible for 1970s viewers that someone might openly share Mr Fawlty’s values. It is fairly safe to assume, therefore, that Mr Fawlty would not have approved of unmarried couples seeking legal enforcement of property rights as in Stack v Dowden. Indeed, the law regarding married couples’ rights itself has undergone significant transformation over the years, in line with changing social attitudes, as reflected in cases such as White v White.

Occasionally litigants’ names become part of legal parlance for precisely the opposite reason to that which they intended. The unfortunate claimant husband in Scott v Scott went to court hoping to keep his marital issues quiet; instead, his failed appeal to the House of Lords remains the leading statement on the common law principle of open justice almost a century later. A similarly ironic fate was shared by Mrs Gillick, the (unsuccessful) claimant in the final case in this chapter. Objecting to doctors treating her teenage daughter without her consent, the phrase Gillick-competence has become standard legal shorthand for the test for whether a child is competent to give consent to medical treatment independently of his or her parents.

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