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Friday, 17 September 2010

Cases that changed our lives

Another piece on Cases that Changed Our Lives, which is now available for purchase here. The chapter intros are reproduced here. UPDATE: This piece is now published here.

Cases that Changed Our Lives is a new collection of essays from LexisNexis on great cases in the common law, written by a team of leading authors, practitioners and judges. The book was conceived as part of LexisNexis’ commitment to the rule of law, a central component of which is the ongoing and open study of landmark cases which, by the system of precedent, govern all our lives. It is being launched at the IBA Conference in Vancouver in October 2010.

Compiling and editing the book was a challenge, if an intellectually stimulating and rewarding one. The main problem was in deciding what cases to include – which quickly became the rather more tricky question of which cases to leave out. As a starting point we coined a list of “law student classics”: the likes of Factortame, Wednesbury, Donaghue v Stevenson, M’Naghten, Dudley & Stephens, which any lawyer will instantly recognise, to the extent that the full names and citations are hardly necessary. Then followed what one might call the “second XI”, cases almost as well known: Tulk v Moxhay, High Trees, Caparo v Dickman, Mareva and Gillick.

Even that classification would hardly be uncontroversial. There can never be a definitive answer as to whether a great criminal case such as M’Naghten – which framed the rules for insanity in the context of criminal law for over a century and a half – is more “important” than great civil cases, such as Mareva - which established one of the most fundamental weapons in the commercial litigator’s armoury. As it happens we have included both of those, but one can see the sort of dilemma with which we were faced.

To assist in making the choice we looked for two things: first, cases with great moral dilemmas at their centre. R v Dudley and Stephens, the classic case of stranded sailors resorting to cannibalism at the expense of the cabin boy, is perhaps the best example. Secondly, we wanted to find cases with an interesting human angle. Almost everyone has heard of the M’Naghten rules, but perhaps not so many know of the intriguing conspiracy theory underlying the case – why M’Naghten shot who he did, who he thought the victim actually was, and whether he was being paid to do it.

We were also pleased to include a case less well remembered – the trial of Dr Sacheverell – which can properly be described as one of the great state trials in English history. Another round of the Whig v Tory battles which form a central part of the fabric of English constitutional history, the case brought down a government and gave rise to the Riot Act of common parlance.

As well as the classic cases we wanted to include a few cases of more recent vintage. There have been many of late that have kept headline writers in work – indeed, the tabloid press itself was the very reason for Naomi Campbell’s privacy litigation. Not all high profile cases involve new law, obviously enough, so the first task was selecting those that did. As a further refinement we again looked for cases with a strong moral dispute at their core. Of these the cases on the right to life – the duty of the state to protect those in its care, and the opposing right to end one’s life in a manner of one’s choosing – were the most obvious. Thus we have included the case of the death in custody of the convicted murderer Colin Middleton and, as the sharpest contrast, the attempts by the tragically ill Diane Pretty and Debbie Purdy to ensure they could end their lives as they wished.

As a separate section we look at the responses of the state to international terror in the twenty-first century. Predictably the great challenge to the state is how to reconcile traditional notions of liberty, the presumption of innocence, open justice and the right to know the case against oneself with the threat of another attack of the scale of the September 11 atrocities in the United States. Whether the old maxim of it being better to allow ten guilty men to walk free than one innocent man to be imprisoned can really bear scrutiny if those ten men (or even one of them) then commits murder of several hundred, or even thousands, of innocent people is one of the great challenges to the law in the present day.

In the same vein is the extraordinary saga which became the Corner House litigation. Legally the case changed little: it was decided under the old regime of bribery law, and involved the exercise of an undoubted discretion by the prosecutorial authorities. Underlying the legal issues, however, was the extremely disturbing reality that an apparently closely allied state had made a naked threat to the lives of British citizens, for no more than thirty pieces of silver. The startling nature of that threat enraged the Divisional Court, but aside from a heavy sigh or two from some of the more outspoken judges, it elicited an almost diffident brushing aside by the House of Lords, who simply said the prosecutors had had no choice.

Looking beyond English shores we have four cases showing the common law in action in the United States and Australia. With respect to the United States we chose a key constitutional case – that of Marbury v Madison – which established a vital aspect of the system of government, the ability of the Supreme Court to strike down unconstitutional legislation. In reaching that case the Court followed a line of reasoning originating in England, where a failed attempt to establish the same principle was made in the very first case of the book, Dr Bonham’s Case. So much for the idea that the Seventeenth Century cases established nothing due to it all being blood and iron in those days. We then picked out a case that certainly changed lives – much for the worse. Plessy v Ferguson was one of the disgraceful “separate but equal” decisions that kept open old Civil War wounds until the civil rights movement of the 1960s, and arguably has left lingering damage still felt in the present day. The Australian cases provide an interesting counterpoint: a similar power to find legislation unconstitutional was established in a series of decisions in the late twentieth century, although not without some controversy, and the landmark case of Mabo was seen as a great step towards minority rights in contradistinction to the oppressive boot of Plessy in the United States.

Having chosen the cases, they seemed to fall quite naturally into different groupings: public law, land law, criminal law, civil law, family law, the right to life and terrorism in the twenty-first century.

No doubt we have now said enough to show that it was inevitable that whatever list we came up with would contain omissions that other readers would instantly seize upon. And equally someone will probably object that there were more logical groupings for the chapters. We expect – and welcome the fact – that they will do so. Our response to such anticipated criticism is threefold. First, no-one is ever going to agree on the final list, not for a book of manageable proportions anyway. Secondly, there is always volume II! (and possibly III, IV and V, and potentially L and beyond ...). Finally, if by making the “wrong” choices we have at least managed to provoke debate about the relative importance of famous cases and therefore the workings of the law, then we will have achieved what we set out to do.

Here then are the 24 cases which made the cut:

I. Public law

Changing Perspectives on the Constitution and the Courts: Dr Bonham’s Case -- Andrew Goddard QC and Marie-Thérèse Groarke

What breathes life into the US Constitution? Marbury v Madison -- Kenneth Thompson II

Associated Provincial Picture Houses Ltd v Wednesbury Corpn -- Jennifer James

The Factortame Litigation -- Dr Jo Hunt

An implied constitutional freedom of speech in Australia: Theophanous v The Herald and Weekly Times Limited – The Hon Dr Kevin Lindgren QC

A right to resist? The Trial of Dr Sacheverell -- Dr Craig Rose

“The evil that men do lives after them”: Plessy v Ferguson -- Henry Horbaczewski

Native title in Australia: Mabo and Another v The State of Queensland and Another -- The Hon Dr Kevin Lindgren QC

II. Land law

Tulk v Moxhay -- Richard de Lacy QC

A promise is a promise: Central London Property Trust Ltd v High Trees House Ltd -- Robert Pearce QC

III. Criminal law

Legal insanity: the enduring legacy of Daniel M’Naghten’s Case -- Jeremy Dein QC and Jo Sidhu

Death on the High Seas: The Cabin Boy, the Cannibals and the Criminal Law: R v Dudley and Stephens -- David Perry QC

Red light spells danger: R v Morgan -- Gerard Forlin QC

IV. Civil law

The Snail in the bottle: Donoghue (or McAlister) v Stevenson -- Paul Reed QC and Philippa Harris

Legal celebrity or jurisprudential substance? Caparo Industries plc v Dickman and other -- John Randall QC

As if by a side-wind … The Mareva/Freezing Order Jurisdiction in England: Mareva Compania Naviera SA v International Bulkcarriers SA; The Mareva -- Paul Lowenstein QC

From catwalk to courtroom: public figure, private life: Naomi Campbell v MGN Limited -- Heather Rogers QC

V. The right to life

“How … the deceased came by his death …”: R (on the application of Middleton) v West Somerset Coroner – Dr Karen Widdicombe

R (on the application of Purdy) v Director of Public Prosecutions How the Law Lords Made Way for a Compassionate Clarification of the Law on Assisting Suicide -- Lynne Townley

VI. The state and terrorism in the twenty-first century

A and others v Secretary of State for the Home Department: The Courts and counter-terrorism – asserting the rule of law? -- Alexander Horne

The day we sold the rule of law: R (on the application of Corner House Research and another) v Director of Serious Fraud Office (BAE Systems plc, interested party) -- John Cooper QC

VII. Family law

Is it that simple? Stack v Dowden and buying a house together. – His Honour Judge Stephen Wildblood QC

An ordinary tale of farming folk? White v White and its legacy -- Janet Bazley QC and Stephen Jarmain

Gillick and the dwindling right of parental authority -- Janet Bazley QC and Stephen Jarmain

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