Petre Andrei University of Iai Faculty of Law

ENGLISH FOR LAW Second Year Second Semester

Professor: Roxana Patra, lecturer, BA and MA of Alexandru Ioan Cuza University of Iai

Target groups: students in the 2nd year at the Faculty of Law of Petre Andrei University of Iasi. Aims: to actualize, learn and work with English syntax notions; to integrate and recognize syntactic structures in law phrases and contexts; to form and use orally complex language structures; to discuss and debate over civilization issues such as British/American legal system vs. Romanian legal system, British/American Laws vs. Romanian laws; to comprehend and translate legal texts from and into English. Term Evaluation: the students will submit a term paper (written in English) on a specific legal topic (30%); the students will also get through a term examination which will consist of a grid test (70%); Course Plan: A. B. C. D. Reading & Comprehension Speaking Academic Legal Writing Civilization Notions European/British/ American vs. Romanian Legal System: samples of law cases European/British/American vs. Romanian Civil Codes (Laws on Labour, Family, Propriety, Commerce etc.): samples of acts and laws E. Appendices Law Terminology; Exercises and Further Practice; English/European vs. Romanian Law Documents.

Bibliography: Michael Brookes, David Holden & Wesley Hutchinson, Engleza pentru juriti, traducere de Cristina Anghel, Bucureti, Teora, 2007; Professional English in Use. Law, Cambridge, Cambridge University Press, www.cambridge.org; Amy Krois-Lindner & TransLegal, International Legal English. A course for classroom and self-study use, Cambridge, Cambridge University Press, www.cambridge.org;

Tom Hutchinson and Allan Waters, English for Specific Purposes. A learningcentered approach, Cambridge, Cambridge University Press, www.cambridge.org; Dan Dumitrescu, Dicionar juridic. Englez- Romn / Romn Englez, Bucureti, Akademos Art, 2009; Leon Levichi, Gramatica limbii engleze, Bucureti, Teora, 2010; Lazlo Budai, Gramatica englez. Teorie i exerciii, Bucureti, Teora, 2008; Constantin Paidos, English Grammar. Theory and Practice, ed. a III-a, Iai, Polirom, 2001. Rawdon Wyatt, Check your English Vocabulary for Law, Third Edition, London, A.&C Black, 2006. Andrew Radford, English Syntax: An Introduction, Cambridge University Press, Cambridge, 2004. Jong-Bok Kim and Peter Sells, English Syntax: An Introduction, 2007. http://papyr.com/hypertextbooks/grammar/cl_subj.htm http://englishgrammarsecrets.com http://www.lawteacher.net http://www.legislation.gov.uk/

UNIT 1
SAMPLES OF LAW CASES A. Crazy Law Facts Women can kill adulterous husbands: Did you know that in Hong Kong, a betrayed wife is legally allowed to kill her adulterous husband? Although she may only do this with her bare hands. Toad licking banned: Did you know that in California, it is illegal to lick toads in order to get high as some people were getting injured by the toads poison. I have a question on this. The first person that ever licked a toad, exactly what was going through his head when he did it? Beer making formula: Did you know that in Texas, the Encyclopaedia Britannica was banned as it gave people the formula for making beer! Err, I think they should also ban Google as I'm sure the formula for making all types of alcohol is on there too. Children under 12 banned from phoning: Did you know that in Blue Earth, Minnesota, it is illegal for children under 12 years of age to speak on the telephone unless accompanied by one of their parents? But, what if they need to ring one of their parents who are both out of the house? Anyone thought of that one? Illegal to marry the same man 4 times: Did you know that in Kentucky, it is against the law for a woman to remarry the same man four times. Why would anyone in their right mind marry the same person 4 times? It failed the first 3 times, will the 4th be any different? Kill 6 blackbirds before you marry me: Did you know that In Truro, Mississippi, before a man can get married, he must prove himself worthy by killing either 3 cows or 6 blackbirds! I would go for the cows personally, easier targets:-) I wonder if you could haggle with 2 cows and 3 blackbirds? Children need a licence to play games: Did you know that in Tennessee, it is illegal for children to play games on a Sunday without a valid license? Is this license only required for video games or do you need one to play Monopoly and eye spy as well? And who knows if you're playing without a licence? Soap stealers forced to use it: Did you know that in Mohave County, Arizona, if you are caught stealing soap from a shop, you must wash yourself with it until the soap has gone! A quick word of advice. If you are going to steel soap, make sure it's the liquid type, it's easier to use and you will definitely make a clean getaway afterwards. Get dressed or die: Did you know that in St. Louis, Missouri, it is illegal for a fireman to rescue a woman wearing only a nightgown? In order for her to be rescued, she must be fully clothed! Does that included jewellery, nice matching shoes and handbag? Really! Your horse is too ugly to ride: Did you know that in Wilbur, Washington, It's indeed illegal to ride a horse that is deemed to be ugly! And, what constitutes an ugly horse? Answers on a postcard please... Permission needed to have a bath: Did you know that in Colorado, an old law states that you must have a doctor's prescription before you can have a bath! There must have been a long queue at the reception in those days. I wonder if you had to pay to see the doctor as well?

First 4 Firemen Get Paid: Did you know that in Zeigler, Illinois, only the first 4 fireman on scene will be paid? What a great incentive for a speedy service! Swiss Bomb Shelters: Did you know that in Switzerland, every citizen is required by law to have a bomb shelter or at least have access to one? Do the Swiss realise what year it is? Failed Surgery = No Hands!: Did you know that in Ancient Egypt, if a surgeon lost a patient whilst performing an operation on them, then the surgeons hands were cut off! What about the rest of the patients in need of medical attention? Did anyone think of them? Did they? Posing Bears: Did you know that in Alaska, it is legal to shoot bears. But, if you wake a sleeping bear for the purpose of taking a photograph then that is strictly prohibited! Who makes these rules! Duelling Blood Donors: Did you know that in Paraguay, duelling is in fact legal, providing both participants are official blood donors! Does the one that does not get hurt, provide the blood for the injured party? Do they have to be of the same blood type before they duel? Hummmm... Camels Banned from the Cinema!: Did you know that in Baltimore USA, it is against the law to go to the cinema with a camel to watch a movie! Does that include drive in movies? Sleep Driving: Did you know that in Tennessee, you are breaking the law if you drive your car whilst sleeping. I guess you might break your neck as well! This reminds me of the case where a woman put her campervan on cruise control, went into the back to make a cup of tea and then the camper van crashed. She then successfully sued the manufacturer of the vehicle as the instructions never said that the van would not drive itself! Too scruffy to drive: Did you know that in Athens, a driver can have their driving license taken away if the driver is deemed too scruffy or poorly dressed? I guess the fashion police do exist! Feathered right of way: Did you know that in Utah, birds have the right of way on public highways! Do the birds know this? Have you ever stopped your car before to let a bird cross the road? Humm, these laws get stranger! Criminal Birthday Offence: Did you know that in the country of Samoa, it is indeed a crime to forget your wife's Birthday!!! Not sure what the punishment is though! Any ideas what it could be? Illegal Animal names: Did you know that in Australia, it is illegal to give an animal a name that you will eat at a later date! Exercises and further practice: 1. Read and translate into Romanian the following texts. 2. Can you give any example of crazy cases in the Romanian law system? 3. Write a short paragraph on the legal premises grounding the crazy cases mentioned above. 4. Exchange your work with your desk mates and ask him/her four questions on his/her statements. 5. Listen/ read carefully the answers and, browsing the dictionary, sketch a lexical cluster related to your desk mates specific legal issue. 6. Expand your own lexical cluster with larger syntactic units such as phrases, collocations, etc.

7. Starting from the new civil code/ the new employment law/ the new education law, write an essay on the blunders of Romanian laws having in mind the following argumentative structure:

Create an introduction to the proposed area of study Define the aims of the research project. Is there a hypothesis that needs to be answered? Detail upon the main objectives of the research project - what do you hope to find out? List your methodology / methods - state why have you chosen these methods and why not other methods. Consider the scope and limitations of the study - is there anything that is beyond the scope of investigation? List the resources - what sources do you expect you will use? Where will you find your information? Create a timetable - proposed timetable for completion of each section. Propose chapter headings Compile your references - any references used (for example, when writing the introduction)

UNIT 2

B. Cases on theft B.1. APPROPRIATION Lawrence v MPC [1972] AC 626. An Italian student took a taxi ride for which the proper fare was about 50p. He offered the defendant a 1 note, but the defendant said more money was needed and proceeded to take a further 1 note and a 5 note from the students open wallet. The defendant was convicted of theft and appealed unsuccessfully to the House of Lords. The defendant argued that he had not stolen the money because the victim had consented to its being taken by him. Viscount Dilhorne rejected this argument because the student only consented to the legal amount being taken and also the defendants contention that he should have been charged under s15 (obtaining property by deception) and not s1. R v Morris, Anderton v Burnside [1984] AC 320. Morris took two items from supermarket shelves and replaced the correct labels with ones showing lower prices. He took the items to the checkout, paid the lower price and was then arrested. Burnside took the label off a joint of meat and placed it on a more expensive joint. His act was discovered and he was arrested before he got to the checkout. Both defendants were convicted. Lord Roskill explained that the switching of price labels amounted to appropriation because it was an assumption by the defendant of the owners right to determine what price the goods were to be sold at. If accompanied by mens rea it would be theft. Lord Roskill envisaged appropriation as any assumption of any right of an owner which amounted to adverse interference with, or usurpation of, those rights. B.2. PROPERTY Oxford v Moss [1979] Crim LR 119. A student borrowed an advance copy of an examination paper, copied the questions and then returned the paper. The Divisional Court held that he was not guilty of theft on the basis that information could not be stolen. Clearly the paper on which the exam questions were typed was property belonging to Liverpool University, but there was no evidence that the defendant intended to permanently deprive the University of it. B.3. BELONGING TO ANOTHER R v Turner (No 2) [1971] 1 WLR 901. The defendant removed his car from outside the garage at which it had been repaired, intending to avoid having to pay for the repair. The Court of Appeal held that the car could be regarded as 'property belonging to another' as against the owner, since it was in the possession and control of the repairer. (Note: were the same facts to present themselves today, a charge of making off without payment contrary to s3 TA 1978 would be more appropriate.) Williams v Phillips (1957) 41 Cr App R 5.

A householder put refuse out for collection by the local authority refuse workers. It was held by the Divisional Court that such refuse remained property belonging to the householder until collected, whereupon property passed to the local authority. Hence, refuse workers helping themselves to such property could be convicted of theft, on the basis that the property never became ownerless. R v Woodman [1974] QB 758. A sold all the scrap metal on certain disused business premises to B, who removed most of it but left some as being too inaccessible to be worth the expense of removal. The defendant then entered the premises to take some of this scrap and was held to have been rightly convicted of its theft. A continued to control the site and his conduct in erecting fences and posting notices showed that he intended to exclude others from it. R v (Adrian) Small [1987] Crim LR 778. The defendant was charged with theft of a car. He claimed that he thought that it had been abandoned by the owner because it had been left for over a week with the keys in it. The Court of Appeal ruled that he could not be guilty of theft if he had an honest belief to that effect, as if the car had been abandoned, the owner would not be 'deprived' of it. R v Hall [1973] 1 QB 496. The defendant was a travel agent who had taken money for securing airline tickets for customers and not booked them. The defendant paid all the monies into the firm's general trading account. His business collapsed and the money was lost. He was convicted of theft of the money when the tickets failed to materialise. The Court of Appeal however, held that he was not under an obligation under s5(3). Although the defendant had a general obligation to fulfil his contract he did not have to deal with those specific notes and cheques in a particular way. He was free to use it as he pleased, and was therefore not guilty of theft when he was later unable to provide the tickets required. Edmund-Davies LJ stated: " when a client goes to a firm carrying on the business of travel agents and pays them money, he expects that in return he will, in due course, receive the tickets and other documents necessary for him to accomplish the trip for which he is paying, and the firm are "under an obligation" to perform their part to fulfil his expectation and are liable to pay him damages if they do not. But, in our judgment, what was not here established was that these clients expected them to "retain and deal with that property or its proceeds in a particular way," and that an "obligation" to do so was undertaken by the appellant. We must make clear, however, that each case turns on its own facts. Cases would, we suppose, conceivably arise where by some special arrangement (preferably evidenced by documents), the client could impose upon the travel agent an "obligation" falling within section 5(3). But no such special arrangement was made in any of the seven cases here being considered." R v Brewster (1979) 69 Cr App R 375. It was held that an insurance broker could be guilty of theft of insurance premiums collected by him for which he had to account to the insurance company. A determining factor was that the contract between the defendant and the insurance company stated that at all times the premiums were to be the property of the company.

Davidge v Bunnett [1984] Crim LR 297. The defendant shared a flat with several other people who gave her cheques on the understanding that a communal gas bill would be paid with the proceeds. In fact, the defendant spent the proceeds on Christmas presents and left the flat without giving notice. The Divisional Court held that the defendant was under a legal obligation to use the proceeds of the cheques in a particular way (for the discharge of the gas bill) and therefore they were property belonging to another by virtue of s5(3). This was therefore theft. R v Wain [1995] 2 Cr App Rep 660 The defendant, by organising events, raised money for a company which distributed money among charities. He paid what he had raised into a special bank account and thereafter, with the consent of the company, into his own bank account. He then dishonestly dissipated the credit in his account. The Court of Appeal held that he thereby appropriated property belonging to another because the jury were entitled to find that he was a trustee of the money collected and had therefore received it subject to an obligation to retain its proceeds (the successive bank accounts) and deal with them in a particular way (to hand them over to the company). A-G' Reference (No 1 of 1983) [1985] QB 182. The defendant, a policewoman, was overpaid. The money was credited to her bank account as a result of an error by her employer. The evidence suggested that having discovered the overpayment, the defendant simply allowed the money to remain in the account. She was charged with theft of the sum overpaid but the trial judge directed the jury to acquit. The question of whether a charge of theft was possible in such a situation was referred to the Court of Appeal. It was decided that provided there was sufficient evidence of mens rea, a charge of theft could succeed in such a situation. The defendant had got property (the excess payment) by another's mistake and was under an obligation to restore the debt (a chose in action) to her employer. Further, Lord Lane CJ suggested that s5(4) only started to operate from the moment the defendant became aware of the overpayment. R v Shadrokh-Cigari [1988] Crim LR 465. The defendant, who was the guardian of a child to whose bank account approximately 286,000 had been credited in error instead of 286, persuaded the child to sign authorities instructing the bank to issue drafts credited to him. The defendant spent most of the excess money before he was discovered, and was convicted of theft of the drafts on the basis that they remained property belonging to another, namely the issuing bank. The Court of Appeal expressed the view that the conviction for theft was sustainable on two grounds: (1) under s5(1) as the bank still had an equitable interest in the drafts; therefore the drafts could still be regarded as property belonging to another; and (2) under s5(4) as the defendant had obtained the drafts as a result of the bank's mistake, and was under an obligation to restore the property or its proceeds. R v Stalham [1993] Crim LR 310. The defendant was notified that he would be receiving a pay rise of 4,080, payment to be in instalments. A transfer of the total sum was made to the defendant in error, and he was told that a stop would be put on the transfer, and a cheque for the first instalment issued. The cheque was issued, but a stop was not put on the transfer. 9

When queried by a wages clerk, the defendant expressed the view that he believed it to be a tax rebate. The defendant signed a blank cheque which, with his brother's involvement, was subsequently made out to a woman who paid it into her account and gave the proceeds of the cheque to the defendant's brother. On a charge of theft, the defendant had contended that the money had not been property belonging to another. He was convicted and appealed. The appeal was dismissed. The Court of Appeal held that it was bound to apply its previous decision in A-G's Reference (No 1 of 1983). As in that case, the property (the chose in action represented by the right to draw on the account) had been transferred as the result of a mistake by the employer. The result was that it remained, as against the employee, property belonging to another, because there was a legal obligation to make restoration, thus the provisions of s5(4) could apply. B.4. THE MENS REA OF THEFT 1. DISHONESTY s2(1)(a) - BELIEF IN LEGAL RIGHT If D mistakenly believes that he owns V's umbrella, his appropriation of it would not be dishonest whether his mistake, or ignorance, is of fact or law. Moreover, D will not commit theft where he appropriates V's umbrella in the belief that it belongs to X on whose behalf he is acting. Similarly, D would have a defence if he took a bicycle belonging to V, in order to recoup a debt, under the erroneous belief that the law permitted debts to be recovered in this way. The D's belief merely has to be honestly held, it does not have to be reasonable. As with all subjective tests, the more outlandish the D's honest belief is, the less likely he is to be believed. s2(1)(b) - BELIEF IN THE OTHER'S CONSENT This might apply where D's car has run out of petrol, and D takes a can of petrol from his next-door neighbour V's garden believing that V would have consented had he known. Again the test is subjective. But D must believe not only that V would have consented to the appropriation but that V would have consented to the appropriation in the particular circumstances. D may believe that his next-door neighbour would consent to his appropriating a pint of milk from his doorstep when D himself had forgotten to leave an order for the milkman; but may believe that his neighbour would not consent to D's appropriating the milk in order to sell it at a profit to a thirsty hitch-hiker who is passing by. s2(1)(c) - BELIEF THAT PROPERTY HAS BEEN LOST Again the test for the D's belief is subjective. As regards the question of what might be required by taking reasonable steps to discover ownership will depend partly on the identification available, the location in which it is found, and the value of the property. A person finding a 10 note in the street may well come within this subsection, unless he has just seen it fall from the pocket of V who is walking in front of him. Similarly, if D finds a suitcase containing 1million in the street one would expect him to make considerable efforts to locate the owner. It should be kept in mind that s2(1)(c) is concerned with what the D views as reasonable steps. S2(2) - WILLINGNESS TO PAY For example, where D sees V's newspaper poking out of his letterbox, knowing that he would not wish to sell it, pulls out the newspaper, and leaves its price on V's doormat, D could be guilty of theft. R v Ghosh [1982] QB 1053. The defendant was a consultant at a hospital. He falsely claimed fees in respect of an operation that he had not carried out. He claimed that he thought he was not dishonest by his standards because the same amount of money was legitimately 10

payable to him for consultation fees. The judge directed the jury that they must simply apply their own standards. He was convicted of an offence contrary to s15 TA 1968 (which uses the same concept "dishonesty" and appealed against his conviction). The appeal was dismissed by the Court of Appeal. Lord Lane CJ stated: "In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did. For example, Robin Hood or those ardent anti-vivisectionists who remove animals from vivisection laboratories are acting dishonestly, even though they may consider themselves to be morally justified in doing what they do, because they know that ordinary people would consider these actions to be dishonest." 2. INTENTION TO PERMANENTLY DEPRIVE R v Warner (1970) 55 Cr App R 93. The defendant took a tool-box to annoy the owner but panicked and hid it when the police were called. He claimed that he intended to replace it as soon as he could do so undetected, but the judge directed the jury that an intention to keep property indefinitely could amount to theft. The Court of Appeal quashed the conviction. (Note: presumably in practice a jury simply might not believe such a story.) R v Velumyl [1989] Crim LR 299. The defendant had taken money from his employer's safe and claimed that he intended to pay it back after the weekend. The Court of Appeal held that he had not intended to return the exact coins and notes, and that therefore he was properly convicted of theft. (Note: in such cases it would be far better for the defendant to contend that he was not dishonest given his intention to replace the money with an equivalent fund.) s6(1) - INTENTION TO USE OR DISPOSE OF THE GOODS * Where D abandons property belonging to another he may be deemed to intend to permanently deprive that other of it, if the circumstances are such that there is little likelihood of the owner ever having the property returned to him. For example, D takes V's book and leaves it in a dustbin or on a park bench. D may hope that it is returned to V, but it is likely to be regarded as a disposal regardless of V's rights. * D may be deemed to have an intention to permanently deprive where he borrows another's property for a period and in circumstances amounting to an outright taking. The commonest example given is that involving a season ticket: V owns a season ticket entitling him to enter a football match for 21 home league games and D takes the ticket at the beginning of the season, uses it to attend the games, and returns it to V at the end of the season. Clearly V gets his ticket back, but the borrowing of it by D has taken the 'value' out of it, and such conduct would amount to theft by virtue of s6(1). (Note: Where D uses the ticket to get into one of the 21 games, he may be charged with obtaining services by deception contrary to s1(1) TA 1978.) R v Lavender [1994] Crim LR 297.

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The defendant removed doors from one council property undergoing repairs and used them to replace damaged doors at another council property. It was held that this was a "disposal" under s6(1) because the defendant intended to treat the doors as his own, regardless of the council's rights". www.lawteacher.net

Exercise and further practice 1. Pick one of the cases listed above and comment upon its legal frame. Would it be possible to find similar situations in the Romanian legal system? Underline the unknown words and make up a glossary related to theft. By using the dictionary, try to expand your glossary on theft crime with phrases. Collocations, idioms, etc. Read the following Introduction to the Theft Act 1978, then underline the unknown legal terms and make up a glossary. Write an essay on theft bearing in mind the structure given in the previous subchapter.

2. 3. 4. 5.

1 Obtaining services by deception. (1)A person who by any deception dishonestly obtains services from another shall be guilty of an offence. (2)It is an obtaining of services where the other is induced to confer a benefit by doing some act, or causing or permitting some act to be done, on the understanding that the benefit has been or will be paid for. [F1(3)Without prejudice to the generality of subsection (2) above, it is an obtaining of services where the other is induced to make a loan, or to cause or permit a loan to be made, on the understanding that any payment (whether by way of interest or otherwise) will be or has been made in respect of the loan.] 2 Evasion of liability by deception. (1)Subject to subsection (2) below, where a person by any deception (a)dishonestly secures the remission of the whole or part of any existing liability to make a payment, whether his own liability or anothers; or (b)with intent to make permanent default in whole or in part on any existing liability to make a payment, or with intent to let another do so, dishonestly induces the creditor or any person claiming payment on behalf of the creditor to wait for payment (whether or not the due date for payment is deferred) or to forgo payment; or (c)dishonestly obtains any exemption from or abatement of liability to make a payment. he shall be guilty of an offence. (2)For purposes of this section liability means legally enforceable liability; and subsection (1) shall not apply in relation to a liability that has not been accepted or established to pay compensation for a wrongful act or omission. (3)For purposes of subsection (1)(b) a person induced to take in payment a cheque or other security for money by way of conditional satisfaction of a pre-

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existing liability is to be treated not as being paid but as being induced to wait for payment. (4)For purposes of subsection (1)(c) obtains includes obtaining for another or enabling another to obtain. 3 Making off without payment. (1)Subject to subsection (3) below, a person who, knowing that payment on the spot for any goods supplied or service done is required or expected from him, dishonestly makes off without having paid as required or expected and with intent to avoid payment of the amount due shall be guilty of an offence. (2)For purposes of this section payment on the spot includes payment at the time of collecting goods on which work has been done or in respect of which service has been provided. (3)Subsection (1) above shall not apply where the supply of the goods or the doing of the service is contrary to law, or where the service done is such that payment is not legally enforceable. (4)Any person may arrest without warrant anyone who is, or whom he, with reasonable cause, suspects to be, committing or attempting to commit an offence under this section. 4 Punishments. (1)Offences under this Act shall be punishable either on conviction on indictment or on summary conviction. (2)A person convicted on indictment shall be liable (a)for an offence under section 1 or section 2 of this Act, to imprisonment for a term not exceeding five years; and (b)for an offence under section 3 of this Act, to imprisonment for a term not exceeding two years. (3)A person convicted summarily of any offence under this Act shall be liable (a)to imprisonment for a term not exceeding six months; or (b)to a fine not exceeding the prescribed sum for the purposes of [F2section 32 of the Magistrates Courts Act 1980] (punishment on summary conviction of offences triable either way: 1,000 or other sum substituted by order under that Act), or to both. 5 Supplementary. (1)For purposes of sections 1 and 2 above deception has the same meaning as in section 15 of the M1Theft Act 1968, that is to say, it means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person; and section 18 of that Act (liability of company officers for offences by the company) shall apply in relation to sections 1 and 2 above as it applies in relation to section 15 of that Act. (2)Sections 30(1) (husband and wife), 31(1) (effect on civil proceedings) and 34 (interpretation) of the M2Theft Act 1968, so far as they are applicable in relation to this Act, shall apply as they apply in relation to that Act. [] (4)In the M3 Visiting Forces Act 1952, in paragraph 3 of the Schedule (which defines for England and Wales offence against property for purposes of the

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exclusion in certain cases of the jurisdiction of United Kingdom courts) there shall be added at the end (j)the Theft Act 1978. (5)In the Theft Act 1968 section 16(2)(a) is hereby repealed. 6 Enactment of same provisions for Northern Ireland. An Order in Council under paragraph 1(1)(b) of Schedule 1 to the M4Northern Ireland Act 1974 (legislation for Northern Ireland in the interim period) which contains a statement that it operates only so as to make for Northern Ireland provision corresponding to this Act(a)shall not be subject to paragraph 1(4) and (5) of that Schedule (affirmative resolution of both Houses of Parliament); but (b)shall be subject to annulment by resolution of either House.

7 Short title, commencement and extent. (1)This Act may be cited as the Theft Act 1978. (2)This Act shall come into force at the expiration of three months beginning with the date on which it is passed. (3)This Act except section 5(3), shall not extent to Scotland; and except for that subsection, and subject also to section 6, it shall not extend to Northern Ireland. http://www.legislation.gov.uk

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UNIT 3

C. Company Law Cases Hickman v Kent or Romney Marsh Sheep-Breeders' Association [1915] 1 Ch 881: Outsider rights' The question of whether a person who is not a member of the company has rights to sue on the statutory contract' provide by what is now section 33 of the Companies Act 2006 was considered. It was held that an outsider to whom rights are purportedly given by the company's articles in his capacity as an outsider cannot sue in that capacity, whether he is also a member of the company or not. Salomon v A Salomon and Co Ltd [1897] AC 22:Corporate separate personality Salomon conducted his business as a sole trader. He sold it to a company incorporated for the purpose called A Salomon and Co Ltd. The only members were Mr Salomon, his wife, and their five children. Each member took one 1 share each. The company bought the business for 39,000. Mr Salomon subscribed for 20,000 further shares. However, 10,000 was not paid by the company, which instead issued Salomon with series of debentures and gave him a floating charge on its assets. When the company failed the company's liquidator contended that the floating charge should not be honoured, and Salomon should be made responsible for the company's debts. Lord Halsbury LC stated (at 30-31): it seems to me impossible to dispute that once the company is legally incorporated it must be treated like any other independent person with its rights and liabilities appropriate to itself, and that the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are. From this case comes the fundamental concept that a company has a legal personality or identity separate from its members. A company is thus a legal person'. Macaura v Northern Assurance Co Ltd [1925] AC 619: Members have no interest in a company's property The owner of a timber estate sold all the timber to a company which was owned almost solely by him. He was the company's largest creditor. He insured the timber against fire, but in his own name. After the timber was destroyed by fire the insurance company refused the claim. The House of Lords held that in order to have an insurable interest in property a person must have a legal or equitable interest in that property. The claim failed as the corporator even if he holds all the shares is not the corporation neither he nor any creditor of the company has any property legal or equitable in the assets of the corporation. (per Lord Wrenbury, at pg 633). DHN Food Distributors Ltd v Tower Hamlets London Borough Council [1976] 1 WLR 852: Piercing the corporate veil groups of companies The corporate veil may be pierced where groups of companies can be treated as partners.

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DHN was the holding company in a group of three companies. There were two subsidiaries, wholly owned by DHN. One subsidiary owned land used by DHN, the other owned vehicles used by DHN. The land was subject to compulsory purchase, and DHN sought compensation for disturbance of its business. In the Court of Appeal, Lord Denning MR said:These subsidiaries are bound hand and foot to the parent company and must do just what the parent company says This group is virtually the same as a partnership in which all the three companies are partners. They should not be treated separately so as to be defeated on a technical point. (at 860) It was therefore held that DHN was entitled to claim. The separate corporate personality doctrine was overridden. However, this is likely to only be followed where the subsidiaries are wholly owned and serve no purpose other than to own the parent company's assets. The case has not been applied to make one company in a group liable for the debts of another Re Southard and Co Ltd [1979] 1 WLR 118. Bhullar v Bhullar [2003] EWCA Civ 424: Corporate opportunity doctrine Duty to avoid conflicts of interest = duty to communicate opportunities A director owes a duty to avoid conflicts of interests, including through the exploitation of a corporate opportunity. In this case the company operated grocery stores, but also owned a commercial property which it let to tenant. The tenants used part of an adjacent property as a car park. One of the company's directors saw a fore sale' sign on the adjacent property. He caused a company which he controlled to buy the land without telling the other directors of the company. It was held that he was under a duty to communicate the opportunity to the company because it would have been a worthwhile' opportunity for the company. www.lawteacher.net Exercises and further practice: 1. 2. 3. 4. 5. Read the cases on company law and pick one of them in order to discuss and interpret it (one paragraph). Make up 3 questions concerning the case. Ask your group to answer them by writing one sentence. Read the Companies Act 2006, underline the unknown words and make a list of company-related legal terms. Write an essay on the introductory provisions of the Companies Act 2006.

Companies Act 2006 CHAPTER 46 An Act to reform company law and restate the greater part of the enactments relating to companies; to make other provision relating to companies and other forms of business organisation; to make provision about directors' disqualification, business names, auditors and actuaries; to amend Part 9 of the Enterprise Act 2002; and for connected purposes. [8th November 2006]

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Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. Companies (1)In the Companies Acts, unless the context otherwise requires company means a company formed and registered under this Act, that is (a)a company so formed and registered after the commencement of this Part, or (b)a company that immediately before the commencement of this Part (b)(i)was formed and registered under the Companies Act 1985 (c. 6) or the Companies (Northern Ireland) Order 1986 (S.I. 1986/1032 (N.I. 6)), or (ii)was an existing company for the purposes of that Act or that Order,(which is to be treated on commencement as if formed and registered under this Act).(2)Certain provisions of the Companies Acts apply to (a)companies registered, but not formed, under this Act (see Chapter 1 of Part 33), and (b)bodies incorporated in the United Kingdom but not registered under this Act (see Chapter 2 of that Part). (3)For provisions applying to companies incorporated outside the United Kingdom, see Part 34 (overseas companies). 2 The Companies Acts (1)In this Act the Companies Acts means (a)the company law provisions of this Act, (b)Part 2 of the Companies (Audit, Investigations and Community Enterprise) Act 2004 (c. 27) (community interest companies), and (c)the provisions of the Companies Act 1985 (c. 6) and the Companies Consolidation (Consequential Provisions) Act 1985 (c. 9) that remain in force. (2)The company law provisions of this Act are (a)the provisions of Parts 1 to 39 of this Act, and (b)the provisions of Parts 45 to 47 of this Act so far as they apply for the purposes of those Parts. 3. Limited and unlimited companies (1)A company is a limited company if the liability of its members is limited by its constitution. It may be limited by shares or limited by guarantee. (2)If their liability is limited to the amount, if any, unpaid on the shares held by them, the company is limited by shares. (3)If their liability is limited to such amount as the members undertake to contribute to the assets of the company in the event of its being wound up, the company is limited by guarantee. (4)If there is no limit on the liability of its members, the company is an unlimited company. 4. Private and public companies (1)A private company is any company that is not a public company. (2)A public company is a company limited by shares or limited by guarantee and having a share capital (a)whose certificate of incorporation states that it is a public company, and

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(b)in relation to which the requirements of this Act, or the former Companies Acts, as to registration or re-registration as a public company have been complied with on or after the relevant date. (3)For the purposes of subsection (2)(b) the relevant date is (a)in relation to registration or re-registration in Great Britain, 22nd December 1980; (b)in relation to registration or re-registration in Northern Ireland, 1st July 1983. (4)For the two major differences between private and public companies, see Part 20. 5. Companies limited by guarantee and having share capital (1)A company cannot be formed as, or become, a company limited by guarantee with a share capital. (2)Provision to this effect has been in force (a)in Great Britain since 22nd December 1980, and (b)in Northern Ireland since 1st July 1983. (3)Any provision in the constitution of a company limited by guarantee that purports to divide the company's undertaking into shares or interests is a provision for a share capital. This applies whether or not the nominal value or number of the shares or interests is specified by the provision. 6. Community interest companies (1)In accordance with Part 2 of the Companies (Audit, Investigations and Community Enterprise) Act 2004 (c. 27) (a)a company limited by shares or a company limited by guarantee and not having a share capital may be formed as or become a community interest company, and (b)a company limited by guarantee and having a share capital may become a community interest company. (2)The other provisions of the Companies Acts have effect subject to that Part. 7. Method of forming company (1)A company is formed under this Act by one or more persons (a)subscribing their names to a memorandum of association (see section 8), and (b)complying with the requirements of this Act as to registration (see sections 9 to 13). (2)A company may not be so formed for an unlawful purpose. www.legislationgov.uk

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UNIT 4
D. Contract Law Cases Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) [2008] UKHL 48: Remoteness of damage Ship-owners let a ship on a time charter, to end no later than 2 May 2004. In April2004 market rates on the charter had more than doubled. The owners therefore arranged a new charter with a third party, promising delivery of the ship no later than 8th May. The ship was not returned by the charterers until 11 May. By this time market rates had again fallen, and the third party took the ship at a rate reduced by $8,000 per day. The owners claimed damages from the charterers at the rate of $8,000 per day for the whole six month contract with the third party. The defendant charterers argued that this damage was too remote and that they were only responsible for damages during the period of delay (9 days). The House of Lords held that there is more to remoteness than just a factual issue of probability or likelihood, and that it is also a question of what the parties had in mind. As the charterers had no knowledge of the third party contract, they could not have had the sort of loss sued for in mind. They were only liable for the damages during the 9 days delay. Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10: Explanation of terms officious bystander and business efficacy tests In this case, Lord Hoffman in the Privy Council gave an explanation, and an easy-to-use reformulation, of the officious bystander' and necessary to give business efficacy' tests. He stated that these tests are:not to be treated as different or additional tests. There is only one question: is that what the instrument, read as a whole against the relevant background, would reasonably be understood to mean? (at [21) Barry v Davies (Trading as HEathcote Ball & Co) [2000] 1 WLR 1962: Offer and Acceptance Auction sales without reserve collateral contract A seller put up two engine analysers for sale by auction, with no reserve. The price of the machines would have been 14,521 each if they had been new. The claimant was a bidder at the auction. He bid 200 for each machine, and was the highest bidder. The auctioneer refused to sell the machines to the claimant for such a low price, despite the no reserve' sale. The claimant brought an action against the auctioneer for breach of contract. It was held by the Court of Appeal that there was a collateral contract between the auctioneer and the highest bidder. The offer was made by the auctioneer to sell to the highest bidder, and this was accepted when the bid was made. Spice Girls Ltd v Aprilia World Service BV [2002] EWCA Civ 15: Misrepresentation representation made by conduct The claimants, the Spice Girls, entered into a contract with the defendant motorcycle manufacturer under which the defendant agreed to sponsor the Spice Girls' tour in return for promotional work. The contract was signed on 6 May 1998. Geri Halliwell left the band on 27 May that year. The defendant discovered that

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Halliwell informed the other members of the group of her decision to leave prior to the signing of the contract. The defendants claimed they had been induced to enter the contract by a misrepresentation. The claimants denied misrepresentation. It was held by the Court of Appeal that the Spice Girls had made a misrepresentation by conduct in that all of the members participated in a commercial photo shoot, at considerable cost to the defendants, at a time when they knew that one member was to leave. They also engaged in other conduct, such as the supply of logos, images and designs, which included the five Spice Girls, which also amounted to misrepresentation. Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1: Consideration performance of existing obligations The defendant building contractors entered into a contract with the plaintiff carpenter. The plaintiff was to carry out work in 27 flats. The price was 20,000. The plaintiff fell into financial difficulties, partly because the contract price was too low. The defendants were subject to a penalty clause' under the main contract on the flats. The defendants therefore agreed to pay the plaintiff an extra 575 per flat. The defendant failed to pay the extra money. The question for the Court of Appeal was whether the plaintiff's performance of its existing contractual duty to complete the work on the flats could amount to sufficient consideration for the promise of the additional payment. The Court of Appeal held that consideration was present in the form of practical benefits' which would be obtained by the defendants, in the form of their avoidance of the penalty clause. www.lawteacher.net Exercises and further practice: 1. Read the previous contract cases and pick one of them in order to discuss/ argue about it with your team. 2. Ask your team members 3 questions about the legal problem you have chosen. 3. Write down the answers to all the questions arisen within the group debate. 4. Make up a glossary of unknown words and, after browsing the dictionary, expand it into a lexical cluster containing phrases, idioms, expressions related to contact law. 5. Write a description of a questionable contract having in mind its principles (offer, acceptance, consideration, intention). 6. Read the first 2 parts from the Sale of Goods Act (1979), underline all the words related to contracting and make a list of them. Part I 1 Contracts to which Act applies. (1)This Act applies to contracts of sale of goods made on or after (but not to those made before) 1 January 1894. (2)In relation to contracts made on certain dates, this Act applies subject to the modification of certain of its sections as mentioned in Schedule 1 below. (3)Any such modification is indicated in the section concerned by a reference to Schedule 1 below. (4)Accordingly, where a section does not contain such a reference, this Act applies in relation to the contract concerned without such modification of the section.

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Part II Formation of the Contract 2 Contract of sale. (1)A contract of sale of goods is a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. (2)There may be a contract of sale between one part owner and another. (3)A contract of sale may be absolute or conditional. (4)Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale. (5)Where under a contract of sale the transfer of the property in the goods is to take place at a future time or subject to some condition later to be fulfilled the contract is called an agreement to sell. (6)An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred. 3 Capacity to buy and sell. (1)Capacity to buy and sell is regulated by the general law concerning capacity to contract and to transfer and acquire property. (2)Where necessaries are sold and delivered [to a minor or] to a person who by reason of [...mental incapacity or]... drunkenness is incompetent to contract, he must pay a reasonable price for them. (3)In subsection (2) above necessaries means goods suitable to the condition in life of the [ minor or other] person concerned and to his actual requirements at the time of the sale and delivery. 4 How contract of sale is made. (1)Subject to this and any other Act, a contract of sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may be implied from the conduct of the parties. (2)Nothing in this section affects the law relating to corporations. 5 Existing or future goods. (1)The goods which form the subject of a contract of sale may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by him after the making of the contract of sale, in this Act called future goods. (2)There may be a contract for the sale of goods the acquisition of which by the seller depends on a contingency which may or may not happen. (3)Where by a contract of sale the seller purports to effect a present sale of future goods, the contract operates as an agreement to sell the goods. 6 Goods which have perished. Where there is a contract for the sale of specific goods, and the goods without the knowledge of the seller have perished at the time when the contract is made, the contract is void. 7 Goods perishing before sale but after agreement to sell.

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Where there is an agreement to sell specific goods and subsequently the goods, without any fault on the part of the seller or buyer, perish before the risk passes to the buyer, the agreement is avoided. 8 Ascertainment of price. (1)The price in a contract of sale may be fixed by the contract, or may be left to be fixed in a manner agreed by the contract, or may be determined by the course of dealing between the parties. (2)Where the price is not determined as mentioned in sub-section (1) above the buyer must pay a reasonable price. (3)What is a reasonable price is a question of fact dependent on the circumstances of each particular case. 9 Agreement to sell at valuation. (1)Where there is an agreement to sell goods on the terms that the price is to be fixed by the valuation of a third party, and he cannot or does not make the valuation, the agreement is avoided; but if the goods or any part of them have been delivered to and appropriated by the buyer he must pay a reasonable price for them. (2)Where the third party is prevented from making the valuation by the fault of the seller or buyer, the party not at fault may maintain an action for damages against the party at fault. 10 Stipulations about time. (1)Unless a different intention appears from the terms of the contract, stipulations as to time of payment are not of the essence of a contract of sale. (2)Whether any other stipulation as to time is or is not of the essence of the contract depends on the terms of the contract. (3)In a contract of sale month prima facie means calendar month. 11 When condition to be treated as warranty. [(1)This section does not apply to Scotland.] (2)Where a contract of sale is subject to a condition to be fulfilled by the seller, the buyer may waive the condition, or may elect to treat the breach of the condition as a breach of warranty and not as a ground for treating the contract as repudiated. (3)Whether a stipulation in a contract of sale is a condition, the breach of which may give rise to a right to treat the contract as repudiated, or a warranty, the breach of which may give rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated, depends in each case on the construction of the contract; and a stipulation may be a condition, though called a warranty in the contract. (4)[Subject to section 35A below] Where a contract of sale is not severable and the buyer has accepted the goods or part of them, the breach of a condition to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as repudiated, unless there is an express or implied term of the contract to that effect. [...] (6)Nothing in this section affects a condition or warranty whose fulfilment is excused by law by reason of impossibility or otherwise. (7)Paragraph 2 of Schedule 1 below applies in relation to a contract made before 22 April 1967 or (in the application of this Act to Northern Ireland) 28 July 1967.

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12 Implied terms about title, etc. (1)In a contract of sale, other than one to which subsection (3) below applies, there is an implied [term] on the part of the seller that in the case of a sale he has a right to sell the goods, and in the case of an agreement to sell he will have such a right at the time when the property is to pass. (2)In a contract of sale, other than one to which subsection (3) below applies, there is also an implied [term] that (a)the goods are free, and will remain free until the time when the property is to pass, from any charge or encumbrance not disclosed or known to the buyer before the contract is made, and (b)the buyer will enjoy quiet possession of the goods except so far as it may be disturbed by the owner or other person entitled to the benefit of any charge or encumbrance so disclosed or known. (3)This subsection applies to a contract of sale in the case of which there appears from the contract or is to be inferred from its circumstances an intention that the seller should transfer only such title as he or a third person may have. (4)In a contract to which subsection (3) above applies there is an implied [term] that all charges or encumbrances known to the seller and not known to the buyer have been disclosed to the buyer before the contract is made. (5)In a contract to which subsection (3) above applies there is also an implied [term] that none of the following will disturb the buyers quiet possession of the goods, namely (a)the seller; (b)in a case where the parties to the contract intend that the seller should transfer only such title as a third person may have, that person; (c)anyone claiming through or under the seller or that third person otherwise than under a charge or encumbrance disclosed or known to the buyer before the contract is made. (6)Paragraph 3 of Schedule 1 below applies in relation to a contract made before 18 May 1973. 13 Sale by description. (1)Where there is a contract for the sale of goods by description, there is an implied [term] that the goods will correspond with the description. [(1A)As regards England and Wales and Northern Ireland, the term implied by subsection (1) above is a condition.] (2)If the sale is by sample as well as by description it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description. (3)A sale of goods is not prevented from being a sale by description by reason only that, being exposed for sale or hire, they are selected by the buyer. (4)Paragraph 4 of Schedule 1 below applies in relation to a contract made before 18 May 1973. 14 Implied terms about quality or fitness. (1)Except as provided by this section and section 15 below and subject to any other enactment, there is no implied [term] about the quality or fitness for any particular purpose of goods supplied under a contract of sale.

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[(2)Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality. (2A)For the purposes of this Act, goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances. (2B)For the purposes of this Act, the quality of goods includes their state and condition and the following (among others) are in appropriate cases aspects of the quality of goods (a)fitness for all the purposes for which goods of the kind in question are commonly supplied, (b)appearance and finish, (c)freedom from minor defects, (d)safety, and (e)durability. (2C)The term implied by subsection (2) above does not extend to any matter making the quality of goods unsatisfactory (a)which is specifically drawn to the buyers attention before the contract is made, (b)where the buyer examines the goods before the contract is made, which that examination ought to reveal, or (c)in the case of a contract for sale by sample, which would have been apparent on a reasonable examination of the sample.] (3)Where the seller sells goods in the course of a business and the buyer, expressly or by implication, makes known (a)to the seller, or (b)where the purchase price or part of it is payable by instalments and the goods were previously sold by a credit-broker to the seller, to that credit-broker, any particular purpose for which the goods are being bought, there is an implied term that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied, except where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the skill or judgment of the seller or credit-broker. (4)An implied [term] about quality or fitness for a particular purpose may be annexed to a contract of sale by usage. (5)The preceding provisions of this section apply to a sale by a person who in the course of a business is acting as agent for another as they apply to a sale by a principal in the course of a business, except where that other is not selling in the course of a business and either the buyer knows that fact or reasonable steps are taken to bring it to the notice of the buyer before the contract is made. [...] (7)Paragraph 5 of Schedule 1 below applies in relation to a contract made on or after 18 May 1973 and before the appointed day, and paragraph 6 in relation to one made before 18 May 1973. (8)In subsection (7) above and paragraph 5 of Schedule 1 below references to the appointed day are to the day appointed for the purposes of those provisions by an order of the Secretary of State made by statutory instrument. 15 Sale by sample.

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(1)A contract of sale is a contract for sale by sample where there is an express or implied term to that effect in the contract. (2)In the case of a contract for sale by sample there is an implied [term] (a)that the bulk will correspond with the sample in quality; [...] (c)that the goods will be free from any defect, [making their quality unsatisfactory], which would not be apparent on reasonable examination of the sample. www.legislationgov.uk

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UNIT 5
E. Employment Law Cases Richmond Adult Community College v McDougall [2008] EWCA Civ 4: Disability discrimination assessment of disability likelihood of disability recurring M had suffered from psychological disorders but recovered after medical treatment. M was offered a job as a database assistant for the College. When the College learned of M's medical history it withdrew the offer. M brought a disability discrimination claim. The employment tribunal accepted that M had a mental impairment but held that she was not disabled within the meaning of section 1 of the Disability Discrimination Act 1995, as the impairment did not have a substantial and long-term adverse effect and there was no evidence that the condition was likely to recur. The EAT reversed the decision, stating that the tribunal ought to have taken into account medical evidence between the date of the discrimination and the hearing of the claim, which showed a relapse. The College appealed on the basis that when considering whether the effect of a medical condition was likely to recur the employer had to base its decision on the circumstances existing at that date, and that what actually happened after that date was not relevant to the tribunal's decision. The Court of Appeal allowed the appeal. On the facts, there was no evidence at the time of the decision that M's condition was likely to recur. The tribunal should only consider evidence available at the relevant time. Enfield Technical Services Ltd v Payne; Grace v BF Components Ltd [2008] EWCA Civ 393: Illegality in employment contracts Contracts generally may be void for illegality. In the employment sphere, if the contract is void for illegality then the employee' will not be able to claim for breach of that contract, for example in cases of wrongful dismissal, or for unfair dismissal. The nature of the illegality necessary to render the employee outwith of employment protection was considered by the Court of Appeal. The appellant employers in these joined proceedings appealed against an EAT decision that the employees had not acted illegally in the performance of their contracts The employees (P and G) had worked on a self employed basis and were treated as such by the Inland Revenue. They later claimed unfair dismissal, arguing that they were really employees, rather than self-employed. The EAT found that they were employees but had believed in good faith that they were self-employed and had not made misrepresentation to the Inland Revenue, and were entitled to claim unfair dismissal. The employers claimed that as the employees had participated in an illegal performance of the contract, they were not entitled to protection. The Court of Appeal dismissed the appeal. The employees were entitled to claim unfair dismissal. The employees had committed insufficient' illegality. A contract of employment may be unlawfully performed if there are misrepresentations as to facts. However, that is distinguishable from an error of categorisation which is unaccompanied by false representations, as had occurred in this case.

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O'Hanlon v HM Revenue & Customs [2007] EWCA Civ 283: Disability-related discrimination reduction in pay because of sickness absence The claimant was clinically depressed, making him disabled' for the purposes of the Disability Discrimination Act 1995. The employer's sick pay rules provided that anyone absent through sickness would receive full pay for 26 weeks in any fouryear period, and thereafter half pay for the next 26 weeks, and thereafter the pension rate. The claimant had lengthy absences related to her disability. She claimed that she should be given full pay during her absence as that failure to do this amounted to disability-related discrimination. The EAT stated that it would be rare for a duty to make reasonable adjustments to entail a requirement that a disabled absent employee be paid more than a nondisabled absent employee. It held that the reduction was disability-related discrimination but that it was justified, as the suggested adjustment of increasing sick pay was not an adjustment that a reasonable employer would be required to make. The Court of Appeal rejected the appeal, agreeing with the reasoning of the EAT. Blundell v Governing Body of St Andrew's Catholic Primary School [2007] IRLR 652: Maternity leave right to return to work same job' The claimant teacher had taught a reception class before taking maternity leave. Upon her return, she was offered a role either as a floating teacher or taking a class of older children. The claimant took the role of teaching older children, but considered it to be a particularly onerous duty, as she had not previously taught that age-group, who were subject to national assessment tests. The claimant argued that the employer had committed acts of less favourable treatment towards her due to her pregnancy, and that the employer had failed to return her to the same job. The tribunal dismissed the claim, finding no detriment, as the claimant was contractually required to teach whatever class she was allocated. The job in which she had previously been employed was that of teacher, not of reception class teacher. The EAT held that the right to return to the job in which she was employed before her absence' provided by Reg 18 of the Maternity and Parental Leave etc Regulations1999 meant that the employee should be able to return to a work situation as near as possible to that which she left. In this case the return post was within the normal range of variability which the claimant could reasonably have expected. Pay v Lancashire Probation Service [2004] ICR 187; Pay v UK [2009] IRLR 139: Unfair dismissal reason for dismissal some other substantial reason sexual behaviour outside work - respect for private life (Article 8 ECHR) The claimant was involved in the sale of products connected with BDSM and performing in fetish clubs. Photographs were available on the internet of him involved in these activities. The claimant was a probation officer working with sex offenders. The employer dismissed him on the basis that his activities were inconsistent with the role of probation officer. The claimant claimed unfair dismissal, relying on his Article 8 ECHR right to respect for private life. The EAT held that section 98 of the Employment Rights Act 1996 should be interpreted as including having regard to the applicant's Convention rights' but that Article 8 was not engaged because the activities were in the public domain, as photographs were available on the internet and the activities took place in fetish clubs. The claimant's activities were therefore not private'.

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The case was heard before the European Court of Human Rights as Pay v UK. The ECHR adopted a different approach, finding that conduct occurring outside a purely private place could still fall within the protection of Article 8 as private life. The court was content to continue on the basis that the claimant's Article 8 right was engaged. However, it found that any interference with his right was justified. www.lawteacher.net Exercises and further practice: 1. Read carefully the cases described above and pick the one which seems the most charged from an ethical point of view. 2. Make a list of new legal terms and try to discover either synonym words or phrases. 3. Write down three questions concerning the chosen case as if you were the judge in Court. 4. Write down three questions concerning the chosen case as if you were one of the jurors in the Court 5. Write down three questions concerning the chosen case as if you were the defendants barrister 6. Write down three questions concerning the chosen case as if you were the claimants barrister. 7. Write an essay on the Romanian employment laws as provided by the new labour code.

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UNIT 6
F. Equity Law Cases* Hameed v Qayyum [2009] EWCA Civ 352: Constructive trust effect of innocent misrepresentation A husband and wife bought a property for W to live in. In 1991 H and W executed a deed under which H held his interest on trust for W absolutely. In 2004 H became involved in litigation and mistakenly understood that a freezing injunction to which he was subject required him to be able to demonstrate free assets in excess of the limit fixed by the injunction. W and H agreed that H should be released from trusteeship, taking beneficial interest in half the property. W borrowed money against her share to fund H defence in the litigation. Charging orders were later obtained over the property, and sale was ordered. H and W argued that the 2004 agreement did not amount to a constructive trust that they owned the beneficial interests equally, as the court could not give effect to the 2004 agreement because it was procured by Hs misrepresentation as to the requirement of the freezing injunction. The Court of Appeal held that a constructive trust did arise notwithstanding Hs innocent misrepresentation. It stated that in a case where the issue was whether an innocent misrepresentation precluded the existence of a common intention constructive trust, the court should consider what would happen if there had been a rescission of the agreement immediately afterwards It would be an unusual case which refused rescission for innocent misrepresentation, but where that same misrepresentation would be held to prevent the creation of a common intention constructive trust. Elithorn v Poulter [2008] EWCA Civ 1364: Beneficial interests loan amount providing purchase contribution whether beneficial interest accrued at purchase or repayment of loan A property was registered in Es name. The property had been purchased with money provided by M (with whom E was in a relationship). The couple were registered as joint proprietors, but a restriction on the registered showed that they were not beneficial joint tenants. M died and C were executors. Their case was that M and E had intended that their beneficial interests would reflect their contributions to the purchase price. It was contended that E would make a contribution of up to half the price upon the sale of another property. That second property was not promptly sold and E never made any payment to M towards the purchase price. E contended that M had leant him half the purchase price at the time of purchase, and that although he never repaid this loan, he was still a beneficial owner through the arrangement. The judge found that M did make the loan to E, but that E
*

In legal dictionaries, equity = a. Justice applied in circumstances covered by law yet influenced by principles of ethics and fairness. b. A system of jurisprudence supplementing and serving to modify the rigor of common law. c. An equitable right or claim. d. Equity of redemption.

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was only to acquire a beneficial interest if and when he repaid that debt, and that since he had not repaid it, had no beneficial interest. Es appeal to the Court of Appeal was allowed. As the judge had found that M did lend E half the purchase price, E was a purchaser and had acquired a beneficial interest in half the property at the time of purchase. Moriarty v Various Customers of BA Peters Plc [2008] EWCA Civ 1604: Separate client bank accounts breach of trust priority proprietary rights C were customers of B. B was a broker for the purchase of yachts. Each C had paid substantial amounts of money to B as payment for yachts and had been told by B that the money would be held in a separate client account. A small proportion of the money was paid into the client account but the majority was paid into Bs current account, which was substantially overdrawn. The Cs did not receive the yachts. B went into administration. The current account remained overdrawn but the customer account was in credit. There was a substantial deficiency as regards unsecured creditors The Court of Appeal held that the small amount of money belonging to C which had been paid into the client account was held on trust for C. Had the rest of the funds also been paid into the client account, they would also have been held on trust. The fact that this did not occur was attributable to Bs breach of trust. However, as the money had been paid into the overdrawn current account, it had been used to reduce Bs liability with the band and had effectively disappeared. There was therefore no fund upon which a proprietary claim could operate. Although equity treats as done that which ought to have been done, it would be a step too far to conclude that the client account should be treated as having received the money. Thorner v Major [2009] UKHL 18: Proprietary estoppel; lack of express promise; extent to which assurances capable of being relied on to support proprietary estoppel P. owned a farm and in 1997 made a will leaving the farm to D. The will had been destroyed and P. died intestate. D. worked on the farm for no remuneration from 1976 onwards. No express representation that D would inherit the farm was made by P. However, D relied on hints and remarks made by P over the years, which he claimed led him to believe that he was to inherit the farm. In 1990 P handed D a bonus notice relating to two life insurance policies, stating thats for my death duties. D argued that at this point his hope of inheritance became an expectation. At first instance the judge found that D had the benefit of proprietary estoppel, as he had understood Ps words and acts as an assurance that he would inherit the farm, and P had intended that to be the understanding. The Court of Appeal reversed the decision because there was no clear and unequivocal intention on the part of P and no basis to construe Ps statements as a definite assurance. The House of Lords reversed the decision of the Court of Appeal, allowing the appeal. It held that whether a representation had sufficient clarity to establish a proprietary estoppel depended on the context. In this case the context was of two men who communicated obliquely but understood each other well. It was held that the Court of Appeal had given insufficient weight to the advantage of the judge in hearing the witnesses. It was further held that although the 1990 incident had been a significant point, the evidence showed a continuing pattern of conduct by P for the

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remaining 15 years of his life. The assurances were intended to be taken seriously, and had been relied upon by the claimant. Re Harding [2008] 2 WLR 361: Charities charitable intention exclusively charitable purpose The courts have recently been reluctant to invalidate otherwise charitable trusts on the basis of lack of exclusivity of purpose. In this case Lewison J sought to construe the underlying intention as being charitable and found that the trustees could in practice apply the trust property so as to make it operate as a charitable trust. The bequest was to the effect that property was to be held in trust for the black community of Hackney, Haringey, Islington and Tower Hamlets. It was held that this should be interpreted to make it valid as to comply with s. 34(1) of the Race Relations Act 1976 the specific ethnic limitation should be treated as having been removed. The judge found that the trustees should set up a scheme for using the property in a way which would satisfy the Charity Commission. www.lawteacher.net Exercise and further practice: 1. Read and translate the previous equity cases. 2. Make a list of unknown words, phrases etc and, by using a legal dictionary, try to find synonyms or equivalent lexical constructions. 3. Choose one of them and discuss it with your desk mate. 4. Write 3 statements concerning the chosen case. 5. Read the following text and make a glossary of new legal words. 6. Develop your statements into an essay on equity principle applied to income tax after reading the following statutory law: INCOME TAX The Personal Equity Plan Regulations 1989 Made 14th March 1989 Laid before the House of Commons 14th March 1989 Coming into force 6th April 1989 The Treasury, in exercise of the powers conferred upon them by section 333 of the Income and Corporation Taxes Act 1988(1) and section 149D of the Capital Gains Tax Act 1979(2), hereby make the following Regulations: Citation and commencement 1. These Regulations may be cited as the Personal Equity Plan Regulations 1989 and shall come into force on 6th April 1989. Interpretation 2.(1) In these Regulations unless the context otherwise requires: the Board means the Commissioners of Inland Revenue; gains means chargeable gains within the meaning of the Capital Gains Tax Act 1979; investment trust has the same meaning as in section 842 of the Taxes Act(1); the Management Act means the Taxes Management Act 1970(2); market value shall be construed in accordance with section 150 of the Capital Gains Tax Act 1979;

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notice means notice in writing and notify shall be construed accordingly; ordinary share means a share which forms part of a companys ordinary share capital (within the meaning of section 832(1) of the Taxes Act); a plan investment is an investment under a plan which is a qualifying investment within the meaning of regulation 6; a plan investor is an individual who subscribes to a plan and who is a qualifying individual within the meaning of regulation 7; a plan manager is a person who fulfils the conditions of these Regulations and is approved by the Board for the purposes of these Regulations as a plan manager; a portfolio is a portfolio of plan investments which are held under a plan; recognised stock exchange has the same meaning as in section 841 of the Taxes Act; share includes stock; tax where neither income tax nor capital gains tax is specified means either of those taxes; tax credit means a credit under section 231 of the Taxes Act; year means a year beginning with 6th April in any year and ending with 5th April in the following year; the Taxes Act means the Income and Corporation Taxes Act 1988; the 1986 Regulations means the Personal Equity Plan Regulations 1986(3). authorised unit trust means a unit trust scheme in the case of which an order under section 78 of the Financial Services Act 1986(4) is in force and which is an authorised securities scheme within the meaning of the Authorised Unit Trust Scheme (Investment and Borrowing Powers) Regulations 1988(5); unit holder means a person entitled to a share of the investments subject to the trusts of a unit trust scheme; unit trust scheme has the same meaning as in section 469 of the Taxes Act; and references to a unit include references to a fraction of a unit. [] Introductory 3. These Regulations provide (a)for the setting up of plans by plan managers approved by the Board under which individuals may make certain investments, for the conditions under which they may invest and under which those plans are to operate, for relief from tax in respect of plan investments and generally for the administration of tax in relation to plans, and (b)for transitional arrangements in respect of plans and plan investors under the 1986 Regulations. General conditions for plans and subscriptions to plans 4.(1) A plan is a scheme of investment to which an individual who is a qualifying individual may subscribe and in respect of which (subject to regulation 10) the following conditions must be fulfilled (a)a qualifying individual may subscribe to only one plan in any year; (b)subject to paragraph (2) (i)the individual may not subscribe to a plan otherwise than by means of a sum or sums of his cash paid directly to the plan manager; and (ii)the individuals cash subscription may not exceed the subscription limit in any year.

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(2) Where, in pursuance of a public offer, an application is made by a qualifying individual for the allotment to him of shares of a company which are qualifying investments and such shares are allotted to that individual, he may, subject to the conditions prescribed by paragraph (3), subscribe to a plan by transferring or renouncing his rights to any shares so allotted to the plan manager or a nominee for the plan manager. (3) The conditions prescribed by this paragraph are (a)that the shares are transferred, or the rights to the shares are renounced, within 30 days of their allotment to the individual; (b)that any sum payable on such an application and the individuals cash subscription to the plan do not together exceed the subscription limit in any year. (4) The subscription limit for the purposes of these Regulations is 4,800. (5) A plan must be managed in accordance with these Regulations by a plan manager and under terms agreed in writing between the plan manager and the plan investor. (6) Apart from other requirements of these Regulations the terms agreed to which paragraph (5) refers shall include the following conditions (a)that the plan investments shall be in the beneficial ownership of the plan investor; (b)that the title to the plan investments shall be vested in the plan manager or his nominee or jointly in one of them and the plan investor; (c)that the share certificate or other document evidencing title to a plan investment shall be held by the plan manager or as he may direct; (d)that the plan manager shall, if the plan investor so elects, arrange for the plan investor to receive a copy of the annual report and accounts issued by every company or other concern in respect of shares or units (as the case may be) which are his plan investments; (e)that the plan manager shall be under an obligation (subject to any provisions made by or under any other enactment and if the plan investor so elects) to arrange for the plan investor to be able (i)to attend shareholders' or unit holders' meetings, (ii)to vote, and (iii)to receive, in addition to the documents referred to in paragraph (d) above, any other information issued to shareholders or unit holders; (f)that at the request of the plan investor and within such time as shall be agreed an entire plan with all rights and obligations of the parties to it may be transferred to another plan manager; (g)that the plan manager shall notify the plan investor if by reason of any failure to satisfy the provisions of these Regulations a plan has or will become void. General investment rules 5.(1) All transactions whether by way of sale, purchase or otherwise by a plan manager in investments under a plan shall be made at the price which those investments might reasonably be expected to fetch in the open market. (2) Investments, or rights in respect of investments, may not at any time (a)be purchased or made otherwise than out of cash which a plan manager holds (and is entitled under the provisions of these Regulations to hold) under a plan at that time; or (b)be purchased from (i)a plan investor, or

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(ii)the spouse of a plan investor, so as to become plan investments under a plan to which the plan investor subscribes or has subscribed. (3) A plan investors cash subscription and any other cash held by a plan manager which he is entitled to hold under a plan shall be held only in sterling and be deposited with a deposit-taker or a building society in circumstances where (a)the deposit-taker is liable to account for and pay an amount representing income tax on payments of interest in respect of the deposit calculated by applying the composite rate to the grossed-up amount of the payments in accordance with the provisions of section 479 of the Taxes Act, or (b)the reduced rate amount payable by the building society under Regulation 3 of the Income Tax (Building Societies) Regulations 1986(8) includes an amount calculated in accordance with those Regulations by applying the reduced rate there referred to to the grossed-up amount of interest paid or credited in respect of the deposit, and in either case the deposit is designated for the purposes of these Regulations only. (4) Subject to paragraph (5), cash by way of dividends, other rights or proceeds in respect of shares, not being shares in an investment trust, which are held as plan investments may be invested only by way of cash deposit or in other such shares. (5) Cash referred to in paragraph (4) may be invested in an authorised unit trust or in an investment trust provided that immediately after such an investment is made the total market value of plan investments in authorised unit trusts and investment trusts does not exceed one half of the market value of the portfolio. Qualifying investments 6.(1) This regulation specifies the kind of investments (qualifying investments) which may be purchased, made or held under a plan. (2) Qualifying investments to which paragraph (1) refers are (a)ordinary shares, not being shares in an investment trust, issued by a company which is incorporated in the United Kingdom and quoted in the official list of a recognised stock exchange in the United Kingdom or dealt in on the Unlisted Securities Market; (b)subject to the conditions specified in paragraph (3), investments in (i)an authorised unit trust, or (ii)an investment trust; (c)cash which the plan manager is entitled to hold for investment under a plan. (3) The conditions specified in this paragraph are (a)that the total amount of the cash subscription to the plan invested in authorised unit trusts and investment trusts in any year does not exceed one half of the subscription limit; and (b)that on and after 6th April 1990 at least 75 per cent. in value of the investments subject to the trusts of a unit trust scheme which is an authorised unit trust or held by an investment trust are qualifying investments within paragraph (2)(a). Qualifying individuals who may invest under a plan 7.(1) This regulation specifies the description of individual who may invest under a plan (qualifying individual). (2) A qualifying individual to whom paragraph (1) refers is an individual (a)who is 18 years of age or over,

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(b)who (subject to regulation 10) has not subscribed to any other plan during the year for which he makes an application under regulation 9, and (c)(i)who is resident and ordinarily resident in the United Kingdom, or (ii)who, though non-resident, performs duties which by virtue of section 132(4)(a) of the Taxes Act (Crown employees serving overseas) are treated as being performed in the United Kingdom. Plan investor ceasing to qualify 8. Notwithstanding any other provision of these Regulations a plan investor who, after subscribing to a plan, at any time ceases to fulfil the conditions of regulation 7(2)(c) may retain the benefits of the plan (including the right to any relief or exemption due under the plan) subsisting at that time but, so long as he fails to fulfil those conditions, shall not be entitled to subscribe further to such a plan. Conditions for application to subscribe to a plan 9.(1) An application by an individual to subscribe to a plan must be made to a plan manager in a statement in writing and fulfil the conditions specified in paragraphs (2), (3) and (4). (2) An application must specify the year for which the applicant is to subscribe to a plan. (3) An application shall provide for a declaration by the applicant that the applicant (a)is 18 years of age or over; (b)fulfils the conditions of regulation 7(2)(b) and (c); (c)has made no other application to subscribe to another plan in the year to which paragraph (2) refers; (d)authorises the plan manager in writing (i)to hold the applicants cash subscription, plan investments, interest, dividends and any other rights or proceeds in respect of those investments and any other cash; (ii)to make on his behalf any claims to relief from tax in respect of plan investments; (iii)on the applicants written request to transfer or pay to him, as the case may be, plan investments, interest, dividends, rights or other proceeds in respect of such investments or any cash. (4) An application must contain (a)the applicants full name, (b)his permanent address, (c)his national insurance number, and (d)where he knows it, his tax office reference. (5) A plan manager may not accept as a plan investor any individual if he has reason to believe that (a)he is not or might not be a qualifying individual, or (b)he has given untrue information in his application. (6) Section 95 of the Management Act shall have effect as if (a)the statement and declaration to which paragraphs (1) and (3) refer were a statement or declaration, as the case may be, within the meaning of subsection (1)(b), and (b)there were substituted for subsection (3) the following words (3)The relevant years of assessment for the purposes of this section are the year of assessment in respect of which any claim to relief from tax, in connection with

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which the statement or declaration is relevant, is made, the next following, and any preceding year of assessment. [] Exemption from tax of plan income and gains 17. Subject to these Regulations, except interest in respect of plan investments which is not reinvested but is paid to or at the direction of the plan investor or otherwise applied for his benefit, no tax shall be chargeable on the plan manager or his nominee or the plan investor in respect of interest, dividends or gains in respect of plan investments, losses in respect of plan investments shall be disregarded for the purposes of capital gains tax, and relief in respect of tax shall be given in the manner and to the extent provided by these Regulations. Tax liabilities and reliefsplan manager to act on behalf of plan investor 18.(1) A plan manager may under these Regulations make claims, conduct appeals and agree on behalf of the plan investor liabilities for and reliefs from tax in respect of a plan. (2) Claims shall be made to the Board in accordance with the provisions of regulations 19 and 20. (3) Where any relief or exemption from tax previously given in respect of a plan has by virtue of these Regulations become excessive, in computing the relief due on any claim there shall be deducted, so that amounts equal to that excess are set-off or repaid to the Board, as the case may be, notwithstanding that those amounts have been invested (a)any amount repaid in respect of a tax credit; (b)any other amount due to the Board by a plan manager in respect of any tax liability in respect of investments under a plan including (but without prejudice to the making of an assessment under the provisions of that section) any amount falling due in respect of a liability under section 737 of the Taxes Act(11). (4) Any amount deducted under paragraph (3) shall be treated as an amount of income tax deducted at source and not repayable within the meaning and for the purposes of section 95(2)(a) of the Management Act. Repayments in respect of tax to plan managerinterim claims 19.(1) Notwithstanding the provisions of any other enactment, the Board shall not be under an obligation to make any repayment in respect of tax under these Regulations earlier than the end of the month following the month in which the claim for the repayment is received. (2) A claim for repayment in respect of tax which is not an annual claim (interim claim) may be made only for a period of a month (or a number of months not exceeding six) beginning on the 6th day of the month and ending on the 5th day of the relevant following month. (3) No claim for repayment may be made for the month ending 5th October or any subsequent month until the annual return due in respect of a plan for the preceding year has been duly made by the plan manager and received by the Board. (4) Where, on the occasion of a claim, there is due to the Board an amount in respect of tax that amount shall be recoverable by the Board in the same manner as tax charged by an assessment on the plan manager which has become final and conclusive.

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Repayments in respect of tax to plan managerannual returns and annual claims 20.(1) An annual claim is a claim for repayment in respect of tax for a year and may not be made at any time more than six years after the end of the year. (2) A plan manager shall within six months after the end of the year make a return of all income and in addition an annual claim to establish the total of repayments due under a plan for that year. (3) Where the aggregate of the repayments in respect of interim claims for the year shown by an annual claim exceeds the amount repayable for the year shown on the claim, the plan manager shall repay the amount of the excess to the Board with the claim. (4) If a plan manager fails to make the return and the annual claim required under this regulation within the time limited, the Board may issue a notice to the plan manager showing the aggregate of payments in respect of the interim claims for the year, and stating that the Board are not satisfied that the amount due to the plan manager for that year exceeds the lower amount stated in the notice. (5) If a return and an annual claim are not delivered to the Board within 14 days after the issue of such a notice under paragraph (4) the amount of the difference between the aggregate and the lower amount stated in the notice shall immediately be recoverable by the Board in the same manner as tax charged by an assessment on the plan manager which has become final and conclusive. (6) Where a return and an annual claim have been made and the plan manager subsequently discovers that an error or mistake has been made in the return or claim the plan manager may make a supplementary return or annual claim within the time allowed in paragraph (1). www.legislationgov.uk

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UNIT 7
G. Human Rights Law Cases A v United Kingdom (Application No. 3455/05) ECtHR Judgment of February 19 2009: Human Rights: Liberty and security Derrogation from right to liberty, whether justified on grounds of national security. Right of D to know reason for arrest and any charge against him. In the UK, non-national terrorist suspects may be detained indefinitely without charge. This case considered 11 applicants subject to detention on the grounds that they were suspected terrorists. The UK had issued a derogation order, stating that a breach of Art 5 right to liberty was necessary to protect national security. The suspects were not permitted to hear all the evidence against them, because of national security fears, and so Special Advocates were appointed. It was held by the European Court of Human Rights that some of the applicants had suffered breaches of Article 5(1) and 5(2). The UK had discriminated unjustifiably between national and non-national terror suspects, and that the measures adopted were disproportionate. The Special Advocate procedure was justified, but that the suspect must be given specific details sufficient to mount a defence. S and Marper v United Kingdom (Application Nos 30562/04 & 30566/04) ECtHR Judgment of December 4 2008: Human Rights: Private life Retention of DNA from individuals not convicted of an offence. In 2001 the law in the UK was changed to allow the retention of fingerprints, cellular samples and DNA profiles of individuals who have not been convicted of a crime or even charged with an offence. The statutory basis of the system is contained in section 64(1A) of PACE 1984. S was arrested in January 2001, aged 11, and charged with attempted robbery. His fingerprints and DNA were taken. He was then acquitted in June 2001. Marper was arrested in March 2001, aged 38, and charged with harassment. His fingerprints and DNA samples were taken but charges were not pressed and the case was discontinued. Both applicants requested that their fingerprints and DNA samples be destroyed. The police refused, indicating that the Chief Constable had a policy of retaining samples in all cases. The applicants contended that retention was incompatible with their right to respect for private life under Art 8. The Grand Chamber of the ECtHR held that the UK's blanket approach to the retention of DNA from individuals not convicted of an offence was a disproportionate inference with respect for private life under Art 8. Natunen v Finland (Application No 21022/04) ECtHR Judgment of March 31 2009: Human Rights: Fair Trial Intercept evidence. In the UK, intercept evidence is currently inadmissible. However, there is currently a call on the Government to bring in an intercept evidence regime in order to support increased prosecutions. In this case the applicant was suspected of drugs trafficking. Telephone intercept evidence was used in the investigation and pre-trial investigation material contained details of 21 telephone conversations. On appeal the applicant contended that other

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telephone conversations could have proved his innocence, and that the intercepts of these conversations had never been disclosed. The prosecution maintained that the recordings were destroyed because they were not connected to an offence, and could not have been retained without breaching the law. It was held by the European Court of Human Rights that Article 6(3)(b), which guarantees the accused the right to prepare his defence without restriction, had been breached. The accused had not been given an opportunity to acquaint himself with the results of the investigations. The public prosecutor's duty to act fairly and impartially in assessing what recordings were relevant was insufficient to safeguard the applicant's rights. Ghaidan v Godin-Mendoza [2004] UKHL 30: Human Rights: Private life; prohibition of discrimination Whether a section referring to a person who had lived as the wife or husband of a deceased could be interpreted to include same-sex couples. The case concerned the right of succession to a tenancy of the spouse of the deceased or the person who had lived with them as his or her wife or husband. On a straight interpretation of the section, the applicant could not benefit as he was the homosexual partner of the deceased man. It was found by the House of Lords that such an interpretation would render the section incompatible with Art 8 of the Convention, when read along with Art 14, in that it discriminated against same-sex couples. It was held that section 3 of the Human Rights Act 1998 allowed the section to be read as applying to homosexual couples. Vo V. France 40 EHRR 12: Human Rights Law: Right to life Does right to life applies to an unborn child? Or when does right to life begin? A woman was mistaken for another patient and was treated for another diagnose. When it was realised that she was pregnant and had a wrong operation had been performed, a therapeutic abortion was carried out on health grounds. She failed in an action for unintentional homicide and made an application to the European Court to determine whether the unavailability of criminal remedy for destruction of foetus amounts to failure to protect by law the right to life within the meaning of Article 2 of the convention. The Court held that a foetus is not protected but failed to define 'everyone' whose life is protected under Article 2 of the HRA. Kara V. UK Appl No 36528/97, 22 Oct 1998: Human Rights: Freedom of movement Violation of freedom to personal life may be interfered with only in circumstances where it is aimed at protecting the rights of others. A bisexual was instructed not to wear female dressing to work as this, the council viewed, not only violated the council's code of conduct but will like bring it into disrepute. The applicant challenged his employer on the ground of violation of Article 8 and 14 of the Human Rights Act 1998. It was contended that the restriction on his dressing was an infringement on his privacy and religious believes. He claimed to belong to Native American that conventionally dresses in female outfit. The European court acknowledged that rules on mode of dressing at work affected the applicant during work but that the interference was justifiable for the protection of the rights of others since the applicant had contact with the public and other organisation during work.

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Van Droogenbroeck V. Belgium (1982) 4 EHRR 443: Human Rights: Prohibition of torture Detaining and working while serving a prison sentence does not constitute slavery and servitude under Article 4 of the convention right. The applicant was sentenced for theft for a period of two years imprisonment. He was also ordered to be placed under governmental disposal for a period of ten years as a result of his tendency to commit further crimes. After serving the sentence and while in recidivist in attempt to reintegrate him into the society. He appealed against his continued detention to earn money to sustain a living when released and his being placed at government disposal for 10 years as violating Article 4 of the Human Rights Act. The European Court rejected this claims and held that the detention was not an act of servitude as only particularly serious' form of 'denial of freedom' could amount to this. R V. Shayler [2003] 1 AC 247: Human rights: Freedom of expression This case clearly showed that the sections 1(1) and 4(1) of the Official Secrets Act, which prohibits member of the intelligence service form divulging information, is not incompatible with the Article 10 of the Human Rights Act 1998 which guaranteed the freedom of expression. Shayler, a secret service agent, sold information to a newspaper company. This information was matters of national security and intelligence which he came across by virtue of employment with the service. He pleaded that the disclosure was made on the ground of public interest. The court held that the combined effect of Ss. 1 (1) and 4 (1) was that a defendant could not rely on a defence of public and national interest to disclose information protected by these sections. Furthermore, this does not amount to restriction on freedom of expression as article 10 "did not ban absolutely any disclosure. Rather it restricted disclosure unless lawful authority has been gained." Directorate of Public Prosecution V. Jones (Margaret) and Anor [1999] 2 AC 249: Human rights: Lawful Assembly Taking part in a lawful assembly in public places does not amount to trespass. The Defendant and others were part of a peaceful demonstration on a highway where there was a prohibition of trespassory assembly in force according to Section 14A of the Public Order Act 1986. They appealed against their conviction and it was held that a public highway is a place of lawful assembly. Acts which does not involve nuisance should not be regarded as trespass and a right of peaceful assemble to lawfully use the highway can exist subject to complying with the restriction. www.lawteacher.net Exercises and further practice: 1. Read and translate the following cases on human rights issues. 2. Make a list of new words and phrases and (where possible) find their antonyms in your dictionaries. 3. Develop your list into a cluster of related phrases. 4. Chose a case on human rights and write a short paragraph on its ethical points.

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5. Within your group vote the most outstanding human rights case among those cited above. 6. Write an essay on one of the cases quoted above having in mind The Universal Declaration of Human Rights (), The Charter of Fundamental Rights of the European Union (2000): PREAMBLE Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, Whereas it is essential to promote the development of friendly relations between nations, Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom, Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms, Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge, Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction. Article 1. All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. Article 3. Everyone has the right to life, liberty and security of person. Article 4.

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No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 6. Everyone has the right to recognition everywhere as a person before the law. Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Article 9. No one shall be subjected to arbitrary arrest, detention or exile. Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. Article 11. (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed. Article 12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. Article 13. (1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his country. Article 14. (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. Article 15. (1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Article 16.

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(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. Article 17. (1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property. Article 18. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 20. (1) Everyone has the right to freedom of peaceful assembly and association. (2) No one may be compelled to belong to an association. Article 21. (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. (2) Everyone has the right of equal access to public service in his country. (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. Article 22. Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. Article 23. (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. (2) Everyone, without any discrimination, has the right to equal pay for equal work. (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. (4) Everyone has the right to form and to join trade unions for the protection of his interests. Article 24. Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. Article 25. (1) Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care

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and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. Article 26. (1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. (3) Parents have a prior right to choose the kind of education that shall be given to their children. Article 27. (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. Article 28. Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized. Article 29. (1) Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations. Article 30. Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein. http://www.un.org/en/documents PREAMBLE The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values. Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.

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The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organisation of their public authorities at national, regional and local levels; it seeks to promote balanced and sustainable development and ensures free movement of persons, goods, services and capital, and the freedom of establishment. To this end, it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter. This Charter reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights. Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations. The Union therefore recognises the rights, freedoms and principles set out hereafter. CHAPTER I DIGNITY Article 1 Human dignity Human dignity is inviolable. It must be respected and protected. Article 2 Right to life 1. Everyone has the right to life. 2. No one shall be condemned to the death penalty, or executed. Article 3 Right to the integrity of the person 1. Everyone has the right to respect for his or her physical and mental integrity. 2. In the fields of medicine and biology, the following must be respected in particular: -the free and informed consent of the person concerned, according to the procedures laid down by law, -the prohibition of eugenic practices, in particular those aiming at the selection of persons, -the prohibition on making the human body and its parts as such a source of financial gain, -the prohibition of the reproductive cloning of human beings. Article 4 Prohibition of torture and inhuman or degrading treatment or punishment No one shall be subjected to torture or to inhuman or degrading treatment or punishment. Article 5 Prohibition of slavery and forced labour 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. Trafficking in human beings is prohibited.

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CHAPTER II FREEDOMS Article 6 Right to liberty and security Everyone has the right to liberty and security of person. Article 7 Respect for private and family life Everyone has the right to respect for his or her private and family life, home and communications. Article 8 Protection of personal data 1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority. Article 9 Right to marry and right to found a family The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights. Article 10 Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance. 2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right. Article 11 Freedom of expression and information 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 2. The freedom and pluralism of the media shall be respected. Article 12 Freedom of assembly and of association 1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests. 2. Political parties at Union level contribute to expressing the political will of the citizens of the Union. Article 13 Freedom of the arts and sciences The arts and scientific research shall be free of constraint. Academic freedom shall be respected. Article 14 Right to education

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1. Everyone has the right to education and to have access to vocational and continuing training. 2. This right includes the possibility to receive free compulsory education. 3. The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right. Article 15 Freedom to choose an occupation and right to engage in work 1. Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation. 2. Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State. 3. Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union. Article 16 Freedom to conduct a business The freedom to conduct a business in accordance with Community law and national laws and practices is recognised. Article 17 Right to property 1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest. 2. Intellectual property shall be protected. Article 18 Right to asylum The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community. Article 19 Protection in the event of removal, expulsion or extradition 1. Collective expulsions are prohibited. 2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. CHAPTER III EQUALITY Article 20 Equality before the law Everyone is equal before the law. Article 21 Non-discrimination 1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, geneticfeatures, language, religion or belief, political or any other opinion,

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membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited. Article 22 Cultural, religious and linguistic diversity The Union shall respect cultural, religious and linguistic diversity. Article 23 Equality between men and women Equality between men and women must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex. Article 24 The rights of the child 1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. Article 25 The rights of the elderly The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life. Article 26 Integration of persons with disabilities The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community. CHAPTER IV SOLIDARITY Article 27 Workers' right to information and consultation within the undertaking Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices. Article 28 Right of collective bargaining and action Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action. Article 29 Right of access to placement services Everyone has the right of access to a free placement service.

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Article 30 Protection in the event of unjustified dismissal Every worker has the right to protection against unjustified dismissal, in accordance with Community law and national laws and practices. Article 31 Fair and just working conditions 1. Every worker has the right to working conditions which respect his or her health, safety and dignity. 2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave. Article 32 Prohibition of child labour and protection of young people at work The employment of children is prohibited. The minimum age of admission to employment may not be lower than the minimum school-leaving age, without prejudice to such rules as may be more favourable to young people and except for limited derogations. Young people admitted to work must have working conditions appropriate to their age and be protected against economic exploitation and any work likely to harm their safety, health or physical, mental, moral or social development or to interfere with their education. Article 33 Family and professional life 1. The family shall enjoy legal, economic and social protection. 2. To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child. Article 34 Social security and social assistance 1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Community law and national laws and practices. 2. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Community law and national laws and practices. 3. In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Community law and national laws and practices. Article 35 Health care Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities. Article 36 Access to services of general economic interest The Union recognises and respects access to services of general economic interest as provided for in national laws and practices, in accordance with the Treaty establishing

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the European Community, in order to promote the social and territorial cohesion of the Union. Article 37 Environmental protection A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development. Article 38 Consumer protection Union policies shall ensure a high level of consumer protection. CHAPTER V CITIZENS' RIGHTS Article 39 Right to vote and to stand as a candidate at elections to the European Parliament 1. Every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State. 2. Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot. Article 40 Right to vote and to stand as a candidate at municipal elections Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State. Article 41 Right to good administration 1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union. 2. This right includes: -the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; -the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; -the obligation of the administration to give reasons for its decisions. 3. Every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States. 4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language. Article 42 Right of access to documents Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to European Parliament, Council and Commission documents. Article 43 Ombudsman Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to refer to the Ombudsman of the Union cases of maladministration in the activities of the Community institutions or

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bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role. Article 44 Right to petition Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to petition the European Parliament. Article 45 Freedom of movement and of residence 1. Every citizen of the Union has the right to move and reside freely within the territory of the Member States. 2. Freedom of movement and residence may be granted, in accordance with the Treaty establishing the European Community, to nationals of third countries legally resident in the territory of a Member State. Article 46 Diplomatic and consular protection Every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that Member State. CHAPTER VI JUSTICE Article 47 Right to an effective remedy and to a fair trial Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice. Article 48 Presumption of innocence and right of defence 1. Everyone who has been charged shall be presumed innocent until proved guilty according to law. 2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed. Article 49 Principles of legality and proportionality of criminal offences and penalties 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles recognised by the community of nations. 3. The severity of penalties must not be disproportionate to the criminal offence. Article 50

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Right not to be tried or punished twice in criminal proceedings for the same criminal offence No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law. CHAPTER VII GENERAL PROVISIONS Article 51 Scope 1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers. 2. This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties. Article 52 Scope of guaranteed rights 1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. 2. Rights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties. 3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. Article 53 Level of protection Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' constitutions. Article 54 Prohibition of abuse of rights Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein. http://www.europarl.europa.eu/charter/pdf

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UNIT 8
H. Medical Law Cases Bolam V Friern hospital Management Committee (1957) WLR 582: Medical negligence This case has become popular because it established a separate standard of test for medical negligence from that of a reasonable man test in other tort cases. In this case, Bolam, a mental health patient, was advised to undergo electro convulsive therapy (ECT). Though there is varied opinion as to desirability to warn client of risk involved in the process at that time, he was not warned of the risk of fracture, the use of relevant drugs and physical restraint necessary. As a result, Bolam sustained fractured hip during this treatment and claimed for negligence. In a claim for negligence, the court held that it is sufficient if the skill exercised is in accordance with accepted practice by 'responsible body of medical men' skilled in that particular art. This means that when the defendant is a doctor, to determine his or her liability for medical negligence, the test of a reasonable man is substituted for that of another doctor conducting the same practice. Janaway V. Salford Health Authority (1989) AC 537: Conscientious objection Conscientious objection defence under Section 4 (1) of the Abortion Act 1967 applied only to persons who are actually involved in the abortion operation the. In this case, a secretary was requested to type a letter which referred a patient to a consultant in regards termination of the client's pregnancy. She refused to carry out the doctor's instruction claiming conscientious objection under section 4 (1) Abortion Act 1961. This section provided that "no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection." The court held that natural meaning of "participate in" should be given to it. It means taking part in the treatment for the purpose of termination the abortion. Exercise and further practice: 1. Read and translate the previous medical law cases. 2. Chose the key words/notions in their presentations and extract from the dictionary a cluster of related legal phrases, words, expressions etc. 3. Chose one of these cases and write a plea from the defence standing point. 4. Work in groups> translate into English the following text concerning medical deontology: CODUL DE DEONTOLOGIE MEDICAL al Colegiului Medicilor din Romnia EMITENT: COLEGIUL MEDICILOR DIN ROMNIA PUBLICAT N: MONITORUL OFICIAL nr. 418 din 18 mai 2005 ANEXA nr. 2 la DECIZIA nr. 3 din 25 martie 2005 privind adoptarea Statutului i a Codului de deontologie medical ale Colegiului Medicilor din Romnia CAP. I

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Domeniul de aplicare i principii generale ART. 1 Prezentul cod cuprinde normele de conduita obligatorii n legatura cu exerciiul drepturilor i ndatoririlor profesionale ale medicului. ART. 2 Prevederile prezentului cod, att cele ce reamintesc regulile morale pe care orice medic trebuie sa le respecte, cat i cele care privesc aspecte tehnice, precum i comportarea fata de confrati, sunt obligatorii pentru medicii din evidenta Colegiului Medicilor din Romnia. Medicii care au activiti n nvmnt rspund n respectarea prevederilor prezentului cod de cei pe care i au n ndrumare. ART. 3 Sntatea omului este telul suprem al actului medical. Obligaia medicului consta n a apara sntatea fizica i mentala a omului, n a usura suferinele, n respectul vieii i demnitii persoanei umane, fr discriminri n funcie de varsta, sex, rasa, etnie, religie, naionalitate, condiie social, ideologie politica sau orice alt motiv, n timp de pace, precum i n timp de rzboi. Respectul datorat persoanei umane nu nceteaz nici dup decesul acesteia. ART. 4 n exercitarea profesiei sale, medicul acorda prioritate intereselor pacientului, care primeaza asupra oricror alte interese. ART. 5 n exercitarea profesiei sale, medicul este obligat sa respecte drepturile fundamentale ale omului i principiile etice n domeniul biomedical. Colegiul Medicilor din Romnia va actualiza periodic prevederile prezentului cod n concordanta cu declaraiile i conveniile la care Romnia este parte, privind etica n domeniul biomedical. ART. 6 Este interzis medicului, n exercitarea profesiei sale, sa impun pacientului opiniile sale personale de orice natura ar fi acestea. ART. 7 Medicul nu trebuie sa nceteze niciodat, n decursul vieii sale profesionale, sa i nsueasc achiziiile tiinei medicale, n scopul mbuntirii cunotinelor sale medicale. ART. 8 Medicul trebuie ca, n conformitate cu abilitatile i cunotinele sale, sa contribuie la informarea obiectiv a publicului i autoritilor medicale n ceea ce privete problemele medicale. Medicul care ofer informaii medicale n mass-media trebuie sa verifice modul n care afirmatiile sale sunt fcute publice i sa ia atitudine n cazul denaturarii acestora. CAP. II ndatoriri generale SECIUNEA A Despre independenta profesional a medicului i responsabilitate ART. 9 Medicul are independenta profesional absolut, libertatea absolut a prescripiilor i actelor medicale pe care le considera necesare, n limitele competentei sale, i este

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rspunztor pentru acestea. n cazul limitrii prin constrngeri administrative i/sau economice a independentei sale, medicul nu este rspunztor. ART. 10 Medicul nu va garanta vindecarea afectiunii pentru care pacientul i s-a adresat. ART. 11 n activitatea medical ce se desfoar n echipa (secii de spital, proces de nvmnt medical tip rezidentiat), rspunderea pentru actele medicale aparine efului echipei, n limitele atribuiilor administrative de coordonare, i medicului care efectueaz direct actul medical, n limitele competentei sale profesionale i rolului care i-a fost atribuit de eful echipei. n echipele interdisciplinare, eful echipei se considera a fi medicul din specialitatea n care s-a stabilit diagnosticul major de internare, dac nu exista reglementri speciale care sa prevad altfel. ART. 12 ncredinarea total sau parial a obligaiilor proprii ctre alte persoane, n lipsa controlului personal, constituie abatere deontologica. ART. 13 Exprimarea consimmntului informat al pacientului pentru tratament nu inlatura responsabilitatea medicului pentru eventualele greeli profesionale. SECIUNEA B Secretul profesional ART. 14 Secretul profesional este obligatoriu, cu excepia situaiilor prevzute de lege. ART. 15 Fac obiectul secretului profesional tot ceea ce medicul, n timpul exercitrii profesiei sale, a aflat direct sau indirect n legatura cu viata intima a bolnavului, a familiei, a apartinatorilor, precum i probleme de diagnostic, prognostic, tratament, diverse circumstane n legatura cu boala. Secretul profesional persista i dup terminarea tratamentului sau decesul pacientului. ART. 16 Secretul profesional trebuie pstrat i fata de apartinatori, dac pacientul nu dorete altfel. ART. 17 Secretul profesional trebuie pstrat fata de colegi, cadre sanitare i instituiile medicale care nu sunt implicate n actul medical al pacientului n cauza. ART. 18 n comunicrile tiinifice cazurile vor fi n asa fel prezentate nct identitatea bolnavului sa nu poat fi recunoscuta. ART. 19 n cazul n care nu este contrar intereselor pacientului, medicul curant va permite accesul mass-media la pacient numai cu acceptul acestuia. Medicii efi ai unitilor medicale sunt obligai sa ia toate msurile n asa fel nct accesul mass-media la pacient sa se fac numai cu acceptul medicului curant i al pacientului. Acordarea de informaii cu privire la un anumit caz se poate face numai cu acordul pacientului, al medicului curant i al efului unitii medicale. ART. 20 Evidentele medicale trebuie pstrate ca materiale secrete profesionale. SECIUNEA C

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Reguli generale de comportament n activitatea medical ART. 21 Medicul nu poate trata un pacient fr a-l examina medical n prealabil, personal. Numai n cazuri excepionale, de urgenta sau n cazuri de forta major (mbolnviri pe nave maritime aflate n mers, pe avioane n zbor, locuri inaccesibile sasu n timp util) se vor da indicaii de tratament prin mijloace de telecomunicaii. ART. 22 Medicul poate executa o activitate medical doar dac are pregtire i practica suficienta pentru aceasta. Aceasta prevedere nu se aplica n cazuri de urgenta vitala, care nu poate fi rezolvat altfel. ART. 23 Medicul poate utiliza numai aparate de diagnostic sau tratament autorizate i pentru manuirea crora are pregtire ori suficienta practica. ART. 24 Dac n urma examinrii sau n cursul tratamentului medicul considera ca nu are suficiente cunotine ori experienta pentru a asigura o asistenta corespunztoare, va solicita un consult, prin orice mijloace, cu ali specialiti sau va indruma bolnavul ctre acetia. ART. 25 n caz de pericol de moarte iminent, medicul va rmne lng pacient att timp cat este nevoie de ajutorul lui profesional. ART. 26 Pacientul nevindecabil va fi tratat cu aceeai grija i aceeai atentie ca i cel care are sanse de vindecare. ART. 27 Medicul va informa pacientul asupra bolii acestuia, tratamentului necesar i a sanselor de nsntoire. Medicul va evita sa trezeasca prin comportamentul lui imaginea unei boli mai grave dect este ea n realitate. ART. 28 Medicul va pstra o atitudine de stricta neutralitate i neamestec n problemele familiale ale bolnavului, exprimandu-i prerea numai dac este solicitat i numai dac intervenia este motivat de interesul sntii bolnavului. ART. 29 Medicul nu trebuie sa se implice n problemele legate de interesele materiale din familia bolnavului sau. SECIUNEA D Obligativitatea acordrii asistenei medicale ART. 30 Medicul care se gsete n prezenta unui bolnav sau rnit n pericol are obligaia sa i acorde asistenta la nivelul posibilitilor momentului i locului ori sa se asigure ca cel n cauza primete ingrijirile necesare. ART. 31 n caz de calamitati naturale sau accidentari n masa, medicul este obligat sa rspund la chemare, chiar sa i ofere de bunvoie serviciile medicale imediat ce a luat cunostinta despre eveniment. ART. 32

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Medicul poate refuza acordarea de ngrijiri de sntate din motive personale sau profesionale temeinice, indrumand pacientul spre alte surse de ngrijire medical, cu excepia situaiilor de urgenta. Medicul este obligat sa pun la dispoziie confratelui care preia pacientul toate informaiile medicale referitoare la caz. SECIUNEA E ntreinerea i folosirea cunotinelor profesionale. Educaia medical continua ART. 33 Medicii au datoria de a-i perfectiona continuu cunotinele profesionale. ART. 34 n folosirea unor metode terapeutice noi trebuie sa primeze interesul pacientului, iar acestea nu pot fi utilizate dect dup evaluarea raportului risc-beneficiu. SECIUNEA F Integritatea i imaginea medicului ART. 35 Medicul trebuie sa fie model de comportament etico-profesional, contribuind la creterea nivelului sau profesional i moral, a autoritii i prestigiului profesiunii medicale pentru a merita stima i ncrederea pacientilor i a colaboratorilor. ART. 36 Medicul nu trebuie sa se foloseasc de un mandat electiv, o funcie administrativ sau de alte autoriti pentru a-i creste clientela. ART. 37 Medicul poate folosi numai titlul la care are dreptul, conform pregtirii sale profesionale. ART. 38 Informarile privind serviciile medicale sunt acceptate, cu condiia sa fie corecte, i se pot referi la: a) sediul profesional, orele de funcionare, conducerea instituiei medicale; b) specialitatea i titlul medicului; c) metodele de diagnostic i tratament folosite. Aceste informaii trebuie sa se refere numai la metode de diagnostic i tratament fundamentate tiinific i acceptate n lumea medical. Nu trebuie sa conin informaii eronate sau care ar putea induce pacientii n eroare; d) tarifele percepute. Aceste informaii nu trebuie sa induca pacientilor impresia ca neapelarea la serviciile medicului respectiv le poate pune n pericol starea de sntate fizica sau psihic. ART. 39 Medicul nu poate face reclama unor medicamente sau bunuri medicale de consum. Menionarea denumirii unor medicamente sau bunuri medicale n cuprinsul unor articole, cri, facuta n scop tiinific, nu se considera reclama. ART. 40 Medicul nu trebuie sa fac propaganda n mediile nemedicale sau chiar medicale unor procedee de diagnostic ori tratament insuficient probate, fr sa sublinieze i rezervele ce se impun. ART. 41

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Este contrar eticii nelegerea dintre doi medici, ntre medic i farmacist sau ntre medic i un cadru auxiliar pentru obinerea de avantaje materiale. ART. 42 Este interzis medicului practician implicarea n distribuirea unor remedii, aparate sau produse medicamentoase autorizate ori neautorizate. ART. 43 Este interzis practicarea de ctre medic a unor activiti care dezonoreaza profesia medical. Orice medic trebuie sa se abin, chiar n afar vieii profesionale, de la acte de natura sa duc la desconsiderarea acesteia. ART. 44 Medicul nu poate fi obligat sa i exercite profesia n condiii ce ar putea compromite calitatea ingrijirilor medicale i a actelor sale profesionale, cu excepia urgentelor medico-chirurgicale vitale. ART. 45 Medicul nu poate propune sau aplica pacientului ca benefice ori lipsite de riscuri remedii sau procedee iluzorii ori insuficient probate. Orice practica nestiintifica este interzis. ART. 46 Este interzis acordarea de faciliti, colaborarea sau sprijinirea oricrei persoane care practica ilegal medicina. Medicul are obligaia de a sesiza existenta unor astfel de situaii colegiului teritorial al medicilor. SECIUNEA G Onorarii i atragerea bolnavilor ART. 47 Este interzis emiterea oricrui document medical care ar aduce pacientului un avantaj material nejustificat sau ilicit. ART. 48 Este interzis medicului practicarea concurentei neloiale, inclusiv prin practicarea unor tarife minimale, vadit disproportionate fata de costul real al serviciului medical, n scopul atragerii clientelei. Este admis serviciul gratuit n scopuri filantropice, cu informarea colegiului teritorial al medicilor cel mai trziu la 3 zile dup acordarea asistenei medicale. http://www.cmr.ro

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UNIT 9

I. Immigration Law Cases R. V. Secretary of State for the Home Department EX P Khawaja (1984) AC 74: Immigration law: Illegal immigrant An illegal immigrant is someone who entered the United Kingdom by means of fraud and deception and it is the duty of the court to determine whether the immigration office's belief that an immigrant is illegal is sufficient. This case involves a person who was granted an entry upon interview. It subsequently emerged that she gave false accounts to the officer. She was detained The court held that entering into the UK by deceit classifies as an illegal immigrate. Also, where a person claims wrongful detention as illegal entrant, the court has to enquire into the immigration officer's evidence to justify such detention. Chen V. Secretary of State for the Home Department (2005) QB 325: Immigration law: Migration of the European Union State citizen within EU country A European Union citizen has a right of free movement within any country in the European Union and there is no minimum age requirement to exercise such right. A child born to Chinese mother in Ireland obtained Irish citizenship and lived together with her mother in the United Kingdom. The mother subsequently sought for a long term residence in the United Kingdom for the child and herself as principal carer. The application was refused because as a child, she was unable to exercise her rights of movement under the Council Directive 90/364 Art 18 (1) as such has no right to reside in the UK. The European Court held that the applicants have right to live in the UK as there is no minimum age requirement to exercise the directive, it is irrelevant whether the child is exercising the right or not. R V. Secretary of State for the Home Department Ex P Naheed Ejaz (1994) 2 WLR 534: Immigration law: Revocation of citizenship British citizenship can only be withdrawn by the Secretary of State by procedure laid down by Section 40 (1) of the British Nationality Act 1981. A woman married a British passport holder and was granted naturalisation on this basis and British passport. It was subsequently discovered that the husband has been fraudulent in possession of the passport, sought to cancel the wife's passport as a nullity and held her as an illegal entrant. The court held that the Secretary of State action was unlawful because deprivation of British nationality is governed by section 40 of the Act. Secretary of State V. Rehman [2003] 1 AC 153: Immigration law: Terrorism In determining whether a person is a treat to nation security a global approach should be adopted to consider whether a person is a treat to national security. The Appellant who was investigated for acts of terrorism appealed against the decision of the Court of Appeal that conduct of the appellant outside that UK could be investigated to determine whether deportation was 'conducive to public good'.

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The House of Lords held that threats to national security also means threats against other states and not limited to direct threat to the UK. For the protection of national security the Secretary of State is entitled to determine real possibility to national security and this does not have to be proved against. www.lawteacher.net Exercise and further practice: 1. Read the immigration cases above and write 3 questions on one of them. 2. Make a list of new legal words and develop it into a cluster of related phrases. 3. Write an essay on immigration after reading the first two parts from the UK Immigration Act 1971. Part I Regulation of Entry into and Stay in United Kingdom 1 General principles. (1)All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person. (2)Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain). (3)Arrival in and departure from the United Kingdom on a local journey from or to any of the Islands (that is to say, the Channel Islands and Isle of Man) or the Republic of Ireland shall not be subject to control under this Act, nor shall a person require leave to enter the United Kingdom on so arriving, except in so far as any of those places is for any purpose excluded from this subsection under the powers conferred by this Act; and in this Act the United Kingdom and those places, or such of them as are not so excluded, are collectively referred to as the common travel area. (4)The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom. 2 Statement of right of abode in United Kingdom. (1)A person is under this Act to have the right of abode in the United Kingdom if (a)he is a British citizen; or (b)he is a Commonwealth citizen who

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(i)immediately before the commencement of the M1British Nationality Act 1981 was a Commonwealth citizen having the right of abode in the United Kingdom by virtue of section 2(1)(d) or section 2(2) of this Act as then in force; and (ii)has not ceased to be a Commonwealth citizen in the meanwhile. (2)In relation to Commonwealth citizens who have the right of abode in the United Kingdom by virtue of subsection (1)(b) above, this Act, except this section and section 5(2), shall apply as if they were British citizens; and in this Act (except as aforesaid) British citizen shall be construed accordingly. Deprivation of right of abode (1)The Secretary of State may by order remove from a specified person a right of abode in the United Kingdom which he has under section 2(1)(b). (2)The Secretary of State may make an order under subsection (1) in respect of a person only if the Secretary of State thinks that it would be conducive to the public good for the person to be excluded or removed from the United Kingdom. (3)An order under subsection (1) may be revoked by order of the Secretary of State. (4)While an order under subsection (1) has effect in relation to a person (a)section 2(2) shall not apply to him, and (b)any certificate of entitlement granted to him shall have no effect 3 General provisions for regulation and control. (1)Except as otherwise provided by or under this Act, where a person is not [F5a British citizen] (a)he shall not enter the United Kingdom unless given leave to do so in accordance with [F6the provisions of, or made under,] this Act; (b)he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; (c)if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely (i)a condition restricting his employment or occupation in the United Kingdom; (ia)a condition restricting his studies in the United Kingdom; (ii)a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds; (iii)a condition requiring him to register with the police. (iv)a condition requiring him to report to an immigration officer or the Secretary of State; and (v)a condition about residence. (2)The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality). If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days

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beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid). (3)In the case of a limited leave to enter or remain in the United Kingdom, (a)a persons leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions, but if the limit on its duration is removed, any conditions attached to the leave shall cease to apply; and (b)the limitation on and any conditions attached to a persons leave [F11(whether imposed originally or on a variation) shall], if not superseded, apply also to any subsequent leave he may obtain after an absence from the United Kingdom within the period limited for the duration of the earlier leave. (4)A persons leave to enter or remain in the United Kingdom shall lapse on his going to a country or territory outside the common travel area (whether or not he lands there), unless within the period for which he had leave he returns to the United Kingdom in circumstances in which he is not required to obtain leave to enter; but, if he does so return, his previous leave (and any limitation on it or conditions attached to it) shall continue to apply. (5)A person who is not a British citizen is liable to deportation from the United Kingdom if (a)the Secretary of State deems his deportation to be conducive to the public good; or (b)another person to whose family he belongs is or has been ordered to be deported. (6)Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so. (7)Where it appears to Her Majesty proper so to do by reason of restrictions or conditions imposed on British citizens, British Dependent Territories citizens or British Overseas citizens when leaving or seeking to leave any country or the territory subject to the government of any country, Her Majesty may by Order in Council make provision for prohibiting persons who are nationals or citizens of that country and are not British citizens from embarking in the United Kingdom, or from doing so elsewhere than at a port of exit, or for imposing restrictions or conditions on them when embarking or about to embark in the United Kingdom; and Her Majesty may also make provision by Order in Council to enable those who are not British citizens to be, in such cases as may be prescribed by the Order, prohibited in the interests of safety from so embarking on a ship or aircraft specified or indicated in the prohibition. Any Order in Council under this subsection shall be subject to annulment in pursuance of a resolution of either House of Parliament. (8)When any question arises under this Act whether or not a person is a British citizen, or is entitled to any exemption under this Act, it shall lie on the person asserting it to prove that he is.

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(9)A person seeking to enter the United Kingdom and claiming to have the right of abode there shall prove it by means of (a)a United Kingdom passport describing him as a British citizen, (b)a United Kingdom passport describing him as a British subject with the right of abode in the United Kingdom, (c)an ID card issued under the Identity Cards Act 2006 describing him as a British citizen, (d)an ID card issued under that Act describing him as a British subject with the right of abode in the United Kingdom, or (e)a certificate of entitlement. 3A Further provision as to leave to enter. (1)The Secretary of State may by order make further provision with respect to the giving, refusing or varying of leave to enter the United Kingdom. (2)An order under subsection (1) may, in particular, provide for (a)leave to be given or refused before the person concerned arrives in the United Kingdom; (b)the form or manner in which leave may be given, refused or varied; (c)the imposition of conditions; (d)a persons leave to enter not to lapse on his leaving the common travel area. (3)The Secretary of State may by order provide that, in such circumstances as may be prescribed (a)an entry visa, or (b)such other form of entry clearance as may be prescribed, is to have effect as leave to enter the United Kingdom.(4)An order under subsection (3) may, in particular (a)provide for a clearance to have effect as leave to enter (i)on a prescribed number of occasions during the period for which the clearance has effect; (ii)on an unlimited number of occasions during that period; (iii)subject to prescribed conditions; and (b)provide for a clearance which has the effect referred to in paragraph (a)(i) or (ii) to be varied by the Secretary of State or an immigration officer so that it ceases to have that effect. (5)Only conditions of a kind that could be imposed on leave to enter given under section 3 may be prescribed. (6)In subsections (3), (4) and (5) prescribed means prescribed in an order made under subsection (3). (7)The Secretary of State may, in such circumstances as may be prescribed in an order made by him, give or refuse leave to enter the United Kingdom. (8)An order under subsection (7) may provide that, in such circumstances as may be prescribed by the order, paragraphs 2, 4, 6, 7, 8, 9 and 21 of Part I of Schedule 2 to this Act are to be read, in relation to the exercise by the Secretary of State of functions which he has as a result of the order, as if references to an immigration officer included references to the Secretary of State. (9)Subsection (8) is not to be read as affecting any power conferred by subsection (10). (10)An order under this section may (a)contain such incidental, supplemental, consequential and transitional provision as the Secretary of State considers appropriate; and

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(b)make different provision for different cases. (11)This Act and any provision made under it has effect subject to any order made under this section. (12)An order under this section must be made by statutory instrument. (13)But no such order is to be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House.] 3B Further provision as to leave to remain. (1)The Secretary of State may by order make further provision with respect to the giving, refusing or varying of leave to remain in the United Kingdom. (2)An order under subsection (1) may, in particular, provide for (a)the form or manner in which leave may be given, refused or varied; (b)the imposition of conditions; (c)a persons leave to remain in the United Kingdom not to lapse on his leaving the common travel area. (3)An order under this section may (a)contain such incidental, supplemental, consequential and transitional provision as the Secretary of State considers appropriate; and (b)make different provision for different cases. (4)This Act and any provision made under it has effect subject to any order made under this section. (5)An order under this section must be made by statutory instrument. (6)But no such order is to be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House. 3C Continuation of leave pending variation decision (1)This section applies if (a)a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave, (b)the application for variation is made before the leave expires, and (c)the leave expires without the application for variation having been decided. (2)The leave is extended by virtue of this section during any period when (a)the application for variation is neither decided nor withdrawn, (b)an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or (c)an appeal under that section against that decision brought while the appellant is in the United Kingdom is pending (within the meaning of section 104 of that Act). (3)Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom. (4)A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section. (5)But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a). (6)The Secretary of State may make regulations determining when an application is decided for the purposes of this section; and the regulations (a)may make provision by reference to receipt of a notice, (b)may provide for a notice to be treated as having been received in specified circumstances,

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(c)may make different provision for different purposes or circumstances, (d)shall be made by statutory instrument, and (e)shall be subject to annulment in pursuance of a resolution of either House of Parliament. [] 5 Procedure for, and further provisions as to, deportation. (1)Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force. (2)A deportation order against a person may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British citizen. (3)A deportation order shall not be made against a person as belonging to the family of another person if more than eight weeks have elapsed since the other person left the United Kingdom after the making of the deportation order against him; and a deportation order made against a person on that ground shall cease to have effect if he ceases to belong to the family of the other person, or if the deportation order made against the other person ceases to have effect. (4)For purposes of deportation the following shall be those who are regarded as belonging to another persons family (a)where that other person is a man, his wife or civil partner, and his or her children under the age of eighteen; and (b)where that other person is a woman, her husband or civil partner, and her or his children under the age of eighteen; and for purposes of this subsection an adopted child, whether legally adopted or not, may be treated as the child of the adopter and, if legally adopted, shall be regarded as the child only of the adopter; an illegitimate child (subject to the foregoing rule as to adoptions) shall be regarded as the child of the mother; and wife includes each of two or more wives. (5)The provisions of Schedule 3 to this Act shall have effect with respect to the removal from the United Kingdom of persons against whom deportation orders are in force and with respect to the detention or control of persons in connection with deportation. (6)Where a person is liable to deportation under section (5) or (6) above but, without a deportation order being made against him, leaves the United Kingdom to live permanently abroad, the Secretary of State may make payments of such amounts as he may determine to meet that persons expenses in so leaving the United Kingdom, including travelling expenses for members of his family or household. 6 Recommendations by court for deportation. (1)Where under section 3(6) above a person convicted of an offence is liable to deportation on the recommendation of a court, he may be recommended for deportation by any court having power to sentence him for the offence unless the court commits him to be sentenced or further dealt with for that offence by another court:

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Provided that in Scotland the power to recommend a person for deportation shall be exercisable only by the sheriff or the High Court of Justiciary, and shall not be exercisable by the latter on an appeal unless the appeal is against a conviction on indictment or against a sentence upon such a conviction.(2)A court shall not recommend a person for deportation unless he has been given not less than seven days notice in writing stating that a person is not liable to deportation if he is a British citizen, describing the persons who are British citizens and stating (so far as material) the effect of section 3(8) above and section 7 below; but the powers of adjournment conferred by section 10(3) of the M2Magistrates Courts Act 1980, section 179 or 380 of the M3Criminal Procedure (Scotland) Act 1975 or any corresponding enactment for the time being in force in Northern Ireland shall include power to adjourn, after convicting an offender, for the purpose of enabling a notice to be given to him under this subsection or, if a notice was so given to him less than seven days previously, for the purpose of enabling the necessary seven days to elapse. (3)For purposes of section 3(6) above (a)a person shall be deemed to have attained the age of seventeen at the time of his conviction if, on consideration of any available evidence, he appears to have done so to the court making or considering a recommendation for deportation; and (b)the question whether an offence is one for which a person is punishable with imprisonment shall be determined without regard to any enactment restricting the imprisonment of young offenders or first offenders, persons who have not previously been sentenced to imprisonment; and for purposes of deportation a person who on being charged with an offence is found to have committed it shall, notwithstanding any enactment to the contrary and notwithstanding that the court does not proceed to conviction, be regarded as a person convicted of the offence, and references to conviction shall be construed accordingly.(4)Notwithstanding any rule of practice restricting the matters which ought to be taken into account in dealing with an offender who is sentenced to imprisonment, a recommendation for deportation may be made in respect of an offender who is sentenced to imprisonment for life. (5)Where a court recommends or purports to recommend a person for deportation, the validity of the recommendation shall not be called in question except on an appeal against the recommendation or against the conviction on which it is made; but (a). the recommendation shall be treated as a sentence for the purpose of any enactment providing an appeal against sentence (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F35 (6)A deportation order shall not be made on the recommendation of a court so long as an appeal or further appeal is pending against the recommendation or against the conviction on which it was made; and for this purpose an appeal or further appeal shall be treated as pending (where one is competent but has not been brought) until the expiration of the time for bringing that appeal or, in Scotland, until the expiration of twenty-eight days from the date of the recommendation. (7)For the purpose of giving effect to any of the provisions of this section in its application to Scotland, the High Court of Justiciary shall have power to make rules by act of adjournal. 7 Exemption from deportation for certain existing residents. (1)Notwithstanding anything in section 3(5) or (6) above but subject to the provisions of this section, a Commonwealth citizen or citizen of the Republic of

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Ireland who was such a citizen at the coming into force of this Act and was then ordinarily resident in the United Kingdom (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b)shall not be liable to deportation under section 3(5) if at the time of the Secretary of States decision he had for the last five years been ordinarily resident in the United Kingdom and Islands; (c)shall not on conviction of an offence be recommended for deportation under section 3(6) if at the time of the conviction he had for the last five years been ordinarily resident in the United Kingdom and Islands. (2)A person who has at any time become ordinarily resident in the United Kingdom or in any of the Islands shall not be treated for the purposes of this section as having ceased to be so by reason only of his having remained there in breach of the immigration laws. (3)The last five years before the material time under subsection (1)(b) or (c) above is to be taken as a period amounting in total to five years exclusive of any time during which the person claiming exemption under this section was undergoing imprisonment or detention by virtue of a sentence passed for an offence on a conviction in the United Kingdom and Islands, and the period for which he was imprisoned or detained by virtue of the sentence amounted to six months or more. (4)For purposes of subsection (3) above (a)sentence includes any order made on conviction of an offence; and (b)two or more sentences for consecutive (or partly consecutive) terms shall be treated as a single sentence; and (c)a person shall be deemed to be detained by virtue of a sentence (i)at any time when he is liable to imprisonment or detention by virtue of the sentence, but is unlawfully at large; and (ii)(unless the sentence is passed after the material time) during any period of custody by which under any relevant enactment the term to be served under the sentence is reduced. In paragraph (c)(ii) above relevant enactment means section 240 of the Criminal Justice Act 2003 (or, before that section operated, section 17(2) of the M4Criminal Justice Administration Act 1962) and any similar enactment which is for the time being or has (before or after the passing of this Act) been in force in any part of the United Kingdom and Islands. (5)Nothing in this section shall be taken to exclude the operation of section 3(8) above in relation to an exemption under this section. 8 Exceptions for seamen, aircrews and other special cases. (1)Where a person arrives at a place in the United Kingdom as a member of the crew of a ship or aircraft under an engagement requiring him to leave on that ship as a member of the crew, or to leave within seven days on that or another aircraft as a member of its crew, then unless either (a)there is in force a deportation order made against him; or (b)he has at any time been refused leave to enter the United Kingdom and has not since then been given leave to enter or remain in the United Kingdom; or (c)an immigration officer requires him to submit to examination in accordance with Schedule 2 to this Act; he may without leave enter the United Kingdom at that place and remain until the departure of the ship or aircraft on which he is required by his engagement to leave.

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(2)The Secretary of State may by order exempt any person or class of persons, either unconditionally or subject to such conditions as may be imposed by or under the order, from all or any of the provisions of this Act relating to those who are not British citizens. An order under this subsection, if made with respect to a class of persons, shall be made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament. (3)Subject to subsection (3A) below, the provisions of this Act relating to those who are not British citizens shall not apply to any person so long as he is a member of a mission (within the meaning of the M5Diplomatic Privileges Act 1964), a person who is a member of the family and forms part of the household of such a member, or a person otherwise entitled to the like immunity from jurisdiction as is conferred by that Act on a diplomatic agent. (3A)For the purposes of subsection (3), a member of a mission other than a diplomatic agent (as defined by the 1964 Act) is not to count as a member of a mission unless (a)he was resident outside the United Kingdom, and was not in the United Kingdom, when he was offered a post as such a member; and (b)he has not ceased to be such a member after having taken up the post. (4)The provisions of this Act relating to those who are not British citizens, other than the provisions relating to deportation, shall also not apply to any person so long as either (a)he is subject, as a member of the home forces, to service law; or (b)being a member of a Commonwealth force or of a force raised under the law of any colony, protectorate or protected state, is undergoing or about to undergo training in the United Kingdom with any body, contingent or detachment of the home forces; or (c)he is serving or posted for service in the United Kingdom as a member of a visiting force or of any force raised as aforesaid or as a member of an international headquarters or defence organisation designated for the time being by an Order in Council under section 1 of the M6International Headquarters and Defence Organisations Act 1964. (5)Where a person having a limited leave to enter or remain in the United Kingdom becomes entitled to an exemption under this section, that leave shall continue to apply after he ceases to be entitled to the exemption, unless it has by then expired; and a person is not to be regarded for purposes of this Act as having been settled in the United Kingdom at any time when he was entitled under the former immigration laws to any exemption corresponding to any of those afforded by subsection (3) or (4)(b) or (c) above or by any order under subsection (2) above. (5A) An order under subsection (2) above may, as regards any person or class of persons to whom it applies, provide for that person or class to be in specified circumstances regarded (notwithstanding the order) as settled in the United Kingdom for the purposes of section 1(1) of the M7British Nationality Act 1981. (6)In this section the home forces means any of Her Majestys forces other than a Commonwealth force or a force raised under the law of any associated state, colony, protectorate or protected state; Commonwealth force means a force of any country to which provisions of the M8Visiting Forces Act 1952 apply without an Order in Council under section 1 of the Act; and visiting force means a body, contingent or detachment of the forces of a country to which any of those provisions

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apply, being a body, contingent or detachment for the time being present in the United Kingdom on the invitation of Her Majestys Government in the United Kingdom. 8APersons ceasing to be exempt. (1)A person is exempt for the purposes of this section if he is exempt from provisions of this Act as a result of section 8(2) or (3). (2)If a person who is exempt (a)ceases to be exempt, and (b)requires leave to enter or remain in the United Kingdom as a result, he is to be treated as if he had been given leave to remain in the United Kingdom for a period of 90 days beginning on the day on which he ceased to be exempt. (3)If (a)a person who is exempt ceases to be exempt, and (b)there is in force in respect of him leave for him to enter or remain in the United Kingdom which expires before the end of the period mentioned in subsection (2), his leave is to be treated as expiring at the end of that period. 8B Persons excluded from the United Kingdom under international obligations. (1)An excluded person must be refused (a)leave to enter the United Kingdom; (b)leave to remain in the United Kingdom. (2)A persons leave to enter or remain in the United Kingdom is cancelled on his becoming an excluded person. (3)A personss exemption from the provisions of this Act as a result of section 8(1), (2) or (3) ceases on his becoming an excluded person. (4)Excluded person means a person (a)named by or under, or (b)of a description specified in, a designated instrument. (5)The Secretary of State may by order designate an instrument if it is a resolution of the Security Council of the United Nations or an instrument made by the Council of the European Union and it (a)requires that a person is not to be admitted to the United Kingdom (however that requirement is expressed); or (b)recommends that a person should not be admitted to the United Kingdom (however that recommendation is expressed). (6)Subsections (1) to (3) are subject to such exceptions (if any) as may specified in the order designating the instrument in question. (7)An order under this section must be made by statutory instrument. (8)Such a statutory instrument shall be laid before Parliament without delay. www. legislationgov.uk

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UNIT 10

J. Cases on the effect of EU Law THE DECISIONS OF THE ECJ Van Gend en Loos (1963) The principal question in this case was the question of the direct effects of Article 12, which dealt with customs duty. If the Article was found to be directly effective it would conflict with an earlier Dutch law. Under Dutch law, if Article 12 was found to be directly effective it would, under the Dutch constitution, take precedence over domestic law. The reference to the ECJ did not raise the issue of sovereignty directly. Nevertheless, in addition to declaring that Article 12 was directly effective, the ECJ went on to say that " the Community constitutes a new legal order in international law, for whose benefit the States have limited their sovereign rights, albeit within limited fields." Costa v ENEL (1964) This case involved an alleged conflict between a number of Treaty provisions and a later Italian statute nationalising the electricity company. Costa, a shareholder in the electricity company refused to pay an electricity bill, and claimed that the nationalisation was contrary to EC law. The Italian government argued that the Italian statute nationalising the electricity company was later in time than the Italian Ratification Act which incorporated EC law in Italian law. Therefore the Italian court was obliged to apply the domestic law in preference to EC law. The Italian court referred this question of priorities to the ECJ. The principle of supremacy was clearly affirmed by the ECJ. The ECJ cited Van Gend. It also noted that Article 189 indicated that there had been a transfer of powers to the Community institutions and Article 5 underlined States' commitment to observe EC law. The ECJ concluded: "The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail." Internationale Handelsgesellschaft (1970) This case involved a possible conflict between EC regulations and the German Constitution. The applicant argued that the EC regulation should be invalidated due to its conflict with the Constitution. The ECJ rejected any possibility of EC law being judged against national laws, even constitutions. It stated: " the validity of a Community instrument or its effect within a member State cannot be affected by allegations that it strikes at either the fundamental rights as formulated in that States' constitution or the principles of a national constitutional structure." Simmenthal (1978) In this case an Italian judge was faced with a conflict between an EC regulation and Italian laws, some of which were enacted after the regulation. Under Italian law, domestic legislation contrary to EC law was unconstitutional. However, only the

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Constitutional Court had jurisdiction to make such a ruling; the ordinary courts could not. The judge referred this issue to the ECJ, which held that: "every national court must in a case within its jurisdiction apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule it is not necessary for the court to request for or await the prior setting aside of such provisions by legislative or other constitutional means." Factortame (1990) A group of Spanish fishermen brought a claim before the English courts for an interim injunction to prevent the application of certain sections of the Merchant Shipping Act 1988, which denied them the right to register their boats in the UK, and which the plaintiffs alleged were in breach of EC law. The legality of the MSA 1988 under EC law had yet to be decided under a separate reference to the ECJ. The British courts were being asked to grant an interim injunction against the Crown, pending resolution of the substantive issues, something they were not permitted to do under national law. Following a reference by the House of Lords asking whether they were obliged to grant interim relief as a matter of EC law, the ECJ pointed out that national courts were obliged, by Article 5, to ensure the legal protection which persons derive from the direct effect of EC law. Moreover: "It must be added that the full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court seised of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law. It follows that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule." Exercises and further practice: 1. Read the cases described above and try to identify the legal frame they belong to. 2. Make a list of new legal words and extract from the dictionary clusters of related phrases. 3. Write an essay on the common and divergent points of national legal systems (either British or Romanian) and the legal frame of the European Community.

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