For both The Comedy of Errors and The Merchant of Venice choose any one character from the higher classes, and compare that character’s socio-legal status to the status of (a) at least one other character from the higher classes; and (b) at least one character from a subordinated class.

http://shakespeare.mit.ed

1 – Introduction

In this essay I aim to demonstrate that none of the characters up for discussion are decisively and stagnantly in a position of power, and unexceptionally all of their roles evolve or involve respectively from a socio-legal standpoint. For the purpose of this essay the characters chosen to be from the higher societal echelons have been chosen due to their social and financial standing, free men and citizens (of Ephesus/Syracuse – Comedy of Errors (CE), or Venice/Belmont – Merchant of Venice (MV)).

In CE Shakespeare drew inspiration from Menaechmi of Plautus with a scene added from Amphitruo with the modification and considerable amplification both texts[1]. As a result Shakespeare was able to double the characters, for comedic effect as well as for confusing audiences in performance. It is only very recent scholarship that started treating the CE seriously, and saw beyond the inhumanly generated laughter[2] as Dromio is frequently beaten like an ‘ass’. This applies to both Dromios. They are both dehumanised ‘Dromio, thou Dromio, thou snail, thou slug, thou sot.’[3] to justify beatings and thus generate humour anthropomorphising their actions, as humour is inherently human, theory supported by Bergson[4]. The Dromios, as per my thesis are not intellectual inferiors, in spite of being treated like animals; such demeanour makes it easier to assume proprietary rights over them in this new emergent social order where the ultimate commodity is man.

Citizenship here is also important as a mitigating factor of one’s socio-legal standing; as such Antipholus of Syracuse is an outsider[5], like his father is risking the death penalty for being on Ephesian soil, whereas similarly in the case of the Jew in MV, Shylock is an alien in spite of being Venetian, whilst from an intellectual and financial point of view he is not inferior to Antonio in wisdom, or financial means.

Likewise MV shares many themes with its predecessor, Marlowe’s The Jew of Malta, in that both plays present us with the tragedy of Jewish fathers trying to overcome their unfavourable socio-legal status as aliens, that being made possible only through economic and legal means or a conversion to Christianity as a quick ticket to the Venetian elite. Shylock, as the play develops, from a legal standpoint gains the upper hand over Antonio[6], who is part of the Venetian Christian high society and for all purposes his superior, thus furthering the idea that their status is fluid and dependant on a number of variables of which money is paramount (although in MV the discord is more complex).

http://public.wsu.edu/~delahoyd/shakespeare/comedyerrors4.html

2. Part One: The Comedy of Errors: Antipholus

We have spoken about Shakespeare doubling characters to induce laughter[7], as believed by earlier critics and represented in earlier productions. As a result Shakespeare was able to double the characters, for comedic effect as well as confusing audiences in performance. Dualisms are omnipresent in the play, therefore starting off from the premise that Antipholus of Ephesis as the archetypical male is the strongest of the two Antipholi (as Antipholus of Syracuse was an alien and therefore had to labour undiscovered[8]) would be incorrect, as through a series of antimeric experiences[9] or errors his standing deteriorates whilst the standing of his brother, the alien, improves. Therefore it would be unwise not to discuss one Antipholus in relation to the other.

Antipholus of Ephesus is ridiculed and not allowed to enter his own house ‘What art thou that keepest me out from the house I owe’[10] in the presence of two merchants to the point of embarrassing himself, with more far fetching socio-legal implications, whilst his double from Syracuse is crowned master of the first’s estate. We see then how Antipholus of Ephesus’s position deteriorates and he risks loosing far more by way of trade if this scandal is known in the square of Ephesus, thus lowering his status from the introduction of the play. This also signals new values emerging in Ephesian society, whilst in feudal times the predominant value was honour that men would die for, now we see the emergence of ‘reputation’[11] and the implications it has on status as well as wealth.

Throughout the play, Shakespeare hints at the social hierarchy, which only accentuates the importance and relative strength of this emergent merchant class in pre-modern Elizabethan society. We learn that Antipholus of Ephesus married Adriana at the suggestion, or with the help, of the Duke of Ephesus[12]. Adriana also confirms this independently. This then highlights the importance of the Merchant class (to be in the Duke’s letters) but also the opposite truth becomes evident, that women are not free in the Ephesian society. They cannot own property, or at least dispose of it at their own will (Adriana does this at one crucial moment in the play, the one exception to this rule), nor are they allowed the same privileges men are[13] ’Why should their liberty than ours be more?’ thus also hinting at the sexual double standard men often practice in this pre-modern society. Within the humour of the Errors, Shakespeare therefore subtly hints at important themes, including the unstable socio-legal status, in some instances.

a. Relationship between Antipholus and his wife Adriana

In relation to Adriana, the wife of Antipholus of Ephesus, the first thing that becomes apparent is her frustration with how restrictive the Ephesian society is for women and the thought that her most intimate companion can sometimes seem a stranger[14], Furthermore, her wry bluntness is not permitted[15] in this very institutionally restrictive take on marriage. This, coupled with the reference to the ‘bridle’, introduces the master-servant relationship and accentuates her subservience which is enforced by the institution of marriage.[16] Her duality is accentuated, and could be humorously interpreted, but after listing her husband’s faults she concedes ‘Ah, but I think him better than I say’[17].

It quickly becomes apparent that she brought most of the wealth[18] into the marriage and as such is Antipholus’s socio-legal equal, if not his superior. However, because of her status as a female, Antipholus is charged with administering the estate. Shakespeare gives us an exception of this rule when Antipholus is believed to be mad or possessed and Adriana takes charge, trying to pay his bail ‘I sent you money, sir, to be your bail’[19], and later on attempt an exorcism. These acts thus defeat her status as her husband’s subservient, albeit temporarily. This empowering of Adriana offers a glimpse into the very particular circumstances needed for a woman to freely dispose of her own estate. Further frustrations arise as she is portrayed as the lonely wife whilst Antipholus conducts business involving her estate she is not allowed to be part of.

Adriana embodies the opposite ideas of her sister Luciana, who makes excuses, and actually defends male privilege[20] and the sexual double standard, thus accepting her subservient socio-legal role. Shakespeare here, in order to accentuate the class distinction, introduces Luce, a servant, who in various productions is seen flirting freely with Dromio of Syracuse. This then augments the socio-legal distinction within the master-servant relationship and is the perfect antithesis for the chaste Luciana. Moreover, promiscuity for vassals is brushed aside, whilst regarded as scandalous for the elite, with potentially damaging repercussions.

b. Relationship between Antipholi and their Vassals the Dromios

We turn now to analyse the relationship of the two Antipholi and their vassals the two Dromios. They are clearly members of the lowest socio-political group and consistently treated as such throughout the play. They are consistently debased, perhaps as a means of asserting authority over them ‘But, I pray, sir why am I beaten?’, and are consistently dehumanised by being likened to lowly creatures[21]. They are the source of Shakespeare’s comedy, as the error of their dual identity is the prime reason why they are beaten. But a deeper inquiry would uncover why they are actually beaten, as much like the courtesan, in this emerging Ephesean society driven by market forces and commodities, where man itself becomes a object.

I will argue that although the Dromios in no way equals to the Antipholi, the Dromios exhibit reason that Antipholus of Syracuse, in one instance, cannot understand, let alone anticipate[22]the full meaning of the ‘Why’ and the ‘Wherefore’, therefore alerting the audience to his lack of reason regarding these errors. He cannot understand the forces that maintain him in a position of power. His foreign legal status aside, his socio-legal position has improved since entering Ephesus, and instead of reasoning the cause, he dismisses Dromio’s hints as ‘merry jests’.

The play is riddled with the two vassals using legal terminology asking for justifications of the numerous beatings ‘If the skin were parchment, and the blows you gave were ink’

But Dromio is a vessel of satire and the scene in which Dromio of Syracuse describes having met the other’s wife Nell, the ‘kitchen wench’, is vastly important as he likens her to a globe. The reference to the globe stands as testimony of globalisation, a testimony of the increasing power of the merchant class, they travel for pleasure not only for business. Undoubtedly, without Antipholus Dromio’s world would be restricted to Nell. But the scene is significant in two ways.

First of all it distinguishes between the two enforcing the master-servant relationship through the grotesque augmentation of Nell. Antipholus has travelled the world as part of its wealthy elite whilst, Dromio’s world cannot be greater than a ‘kitchen wench’, that is his limitation.

Secondly, scholars have described Dromio as a political satirist,: he accurately describes the countries, Spain as very hot, a well known Shakesperian pun, but the mention of France here uncovers much more. ‘France making war against her heir’ can be interpreted as a reference to Henry III of France appointing Henry IV as successor[23].  States of France resisted on account of him being protestant therefore France opposing the succession of that heir. The whole episode is treated lightly by Antipholus, who seems ignorant and unappreciative of Dromio’s political prowess.

The Dromios need to hide behind this satirical mask of language and meanings to express their rebellion. As subjects to the powerful they are unable to speak freely or to dissent.

3.     Part Two: The Merchant of Venice: Portia

The Merchant of Venice, Alexandre Cabanel

To start off, the status of Portia is unclear. She is an extremely wealthy inhabitant of Belmont and but unable to dispose of her fortune as she is subject to the will of her dead father. So at least a surface reading would allow spectators to feel sympathy for Portia and her apparent inability to affect her own destiny, ‘so is the will of a living daughter curbed / by the will of a dead father’.[24] The scene where she is openly mocking her suitors based on nationalist grounds[25] represents a subconscious conservatism and effort to preserve wealth within a very restricted Venetian elite.

Portia would be master of her own estate but for her gender, and the lottery devised by her father, which is equated with socio-legal submissiveness. She is not financially inferior and possesses the means to save Antonio

‘What, no more?

            Pay hum six thousand and deface the bond.

            Double six thousand, and then treble that,’[26]

This passage is revealing as we not only grasp the extraordinary extent of her means, but also money doubling, trebling it is evident in the wealthy Venetian society that money and investments multiply exponentially.

But because of her gender limitation, in order to give voice to her leanings she must dress like a man (Vives)[27]. One would argue Portia would be one of the merchants of Venice if she wore a permanent disguise. By virtue of the exchanges she engages in, she already is. She exchanges ducats for Antonio’s life (or at least attempts to). She exchanges a ring with Bassanio, until she asks for the exchange to be reversed, only to confront Bassanio at a later date. This does generate conflict with Bassanio, her husband[28], who is part of the Venetian elite even though he is in debt, but in spite of her inabilities to dispose of her wealth freely, her ingenuity overcomes this hurdle. However one could argue that their reconciliation in the final moments of the play, mirrored by that of Gratiano and Nerissa, is a sign of submission.

She affects her own destiny through deceit, helping Antonio for the sake of Bassanio’s happiness, the casket scene where she chooses Bassanio (in spite of being devoid of choice) as well as the ring scene, amplify the irony of Bassanio repeatedly referring to her as ‘fair Portia’. This is often extrapolated to mean the hypocrisy of Christian Venice.

a) Relationship between Portia and the Jew Shylock

http://popdose.com/random-play-the-merchant-of-venice/

We turn now to examine the relationship between ‘fair’[29] Portia and Shylock the Jew. There is no indication that Shylock was not from Venice, and yet by virtue of him being a Jew he is a socio-legal alien. Traditionally seen as a stage devil, and source of humour, in production audiences were invited to hiss whenever he made an appearance on stage. In more recent times he incrementally became a tragic figure.

Portia only comes into contact with the Jew in the last scene of the play where he is defeated and proclaims ‘I am content’[30] at the terms of his defeat.

Although arguably a wealthy Jew, he becomes one through the practice of usury or money lending. He and other Jews have to live in a Venetian ghetto. As a Jewish man, and a usurer he is an outsider, disregarded by everyone in Venetian society. Antonio confesses to spitting on him, kicking him and ruining his reputation in the Rialto.

There are a few contexts in this play that are neutralising. One such equalising context is the human body ‘hath I not Jew eyes’[31] an idea adopted by Morocco as well. This is an equalising factor bringing him and the likes of Antonio on a similar footing.

Secondly the law, and contract and contractual terms serve as a more powerful equaliser. Regardless how much Antonio pleads with him; the Jew has the upper hand and terms of a contract favourable to him. This role reversal subordinates Antonio to the will of the Jew.

http://ainalsan.blogs.uv.es/curs-monografic-shakespeare-2/second-paper/disguise-in-the-merchant-of-venice/

Portia interacts with Shylock in disguise. This is the most powerful Portia as the doctor Bellario, a man, more powerful than her normal sociological position. That scene before Portia uses the statutes has been subject to much debate. Goddard has argued that ‘Portia draws out the scene to indulge her ego and to torture Shylock’[32]. Engle argued that the scene is drawn out to amply demonstrate Shylock’s murderous intent and therefore justify his destruction[33]. Whilst many recent scholars believe that Shylock is a tragic character destroyed at the hands of merciless Christians, Hugh Short has argued that he is actually truthful when saying ‘I am content’[34]. Regardless of the reason for Shylock’s destruction in court, at the hands of ‘fair Portia’ he reverts to an unprivileged position infinitely worse than before. His socio-legal standing develops as he gains the upper hand over Antonio but ends up losing even more, all of his wealth and a daughter.

b)    Relationship between Portia and Jessica

Jessica’s socio-legal stand point in the beginning of the play is that of her father’s property, we can derive this by the number of possessive language used ‘my sober house’[35] – and as such she rebels against her blood saying she is unlike her father’s manners. Unlike Portia that from a position of power gives all to her husband in what can be perceived as subservience, Jessica steals her status; she steals her dowry from her father, arguably a parallel to Portia’s hypocrisy in the casket scene. Whilst still regarded as an infidel[36] she converts to Christianity. Conversely, she is attributed Christian values by her husband Lorenzo, curiously before her conversion ‘Fair Jessica shall be my torch-bearer’[37]. However scholars have interpreted this to be due to her stolen dowry more than Lorenzo’s affections for her.

4. Conclusion

To conclude, the emerging wealthy, market oriented societies of Ephesus and Venice are places of wide social mobility driven mostly by financial forces. For the plays to be regarded as comedies they would need a harmonious ending. To make this possible there is little loss of socio-political status at the end of the play amongst the very elite, in fact in most circumstances they conclude in a better position than that at the outset of the plays.

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Cristian Tarcatu

About the author

Cristian Tarcatu has been a member of ELSA for many years now. He is a final year Law and Politics student at QMUL. Cristian has also been a volunteer for the Metropolitan Police (Special Constable).

Hobbies/Interests

Socialising, charity work, volunteering and debating.

 Favorite quote

Only one thing is impossible for God: To find any sense in any copyright law on the planet. (Mark Twain)

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Bibliography:

1. All quotations from the Comedy of Errors taken from – William Shakespeare, The Comedy of Errors, (Penguin, 2005) edited by Stanley Wells
2. All quotations from The Merchant of Venice taken from – William Shakespeare, The Merchant of Venice, (Arden Shakespeare, 2010) edited by John Drakakis
3. William Shakespeare, The Comedy of Errors, (Penguin, 2005) edited by Stanley Wells
4. William Shakespeare, The Merchant of Venice, (Arden Shakespeare, 2010) edited by John Drakakis
5. Robert S. Miola, The Comedy of Errors Critical Essays, (Routledge, 1997)
6. John W. Mahon and Ellen Macleod Mahon, The Merchant of Venice New Critical Essays, (Routledge, 2002)
7. S. P. Cerasano, William Shakespeare’s the Merchant of Venice, (Routledge, 2004)

 Articles:

1. Erma M. Gill, The plot-structure of ‘the Comedy of Errors’ in relation to its sources, (University of Texas Press) – Accessed on 5/11/12 via http://www.jstor.org/stable/pdfplus/20779407.pdf?acceptTC=true
2. John Drakakis, Jessica – in John W. Mahon and Ellen Macleod Mahon, The Merchant of Venice New Critical Essays, (Routledge, 2002)
3. Joan Ozark Holmer, Jewish Daughters: the Question of Philo-Semitism in Elizabethan Drama – in John W. Mahon and Ellen Macleod Mahon, The Merchant of Venice New Critical Essays, (Routledge, 2002)
4. John W. Velz, Portia and the Ovidian Grotesque – in John W. Mahon and Ellen Macleod Mahon, The Merchant of Venice New Critical Essays, (Routledge, 2002)
5. Hugh Short, Shylock is Content: A Study in Salvation – in John W. Mahon and Ellen Macleod Mahon, The Merchant of Venice New Critical Essays, (Routledge, 2002)
6. Corinne S. Abate, ‘Nerissa teaches me what to believe’: Portia’s Wifely Empowerment in The Merchant of Venice, in John W. Mahon and Ellen Macleod Mahon, The Merchant of Venice New Critical Essays, (Routledge, 2002)
7. Laurie Maguire, The Girls from Ephesus (1997) in Robert S. Miola, The Comedy of Errors Critical Essays, (Routledge, 1997)
8. Eric Heinze, ‘Where it not against our laws’: Oppression and Ressistance in Shakespeare’s Comedy of Errors, (June 2009) Legal Studies, Vol. 29 No. 2, pp. 230-263
9. T. W. Baldwin, Dromio of Syracuse as Political satirist: On the Compostional Genetics of The Comedy of Errors (University of Illinois Press, Urbana 1965)

Lectures:

1. Oxford University, Approaching Shakespeare, Lecture 12, Released 23 January 2012, Accessed via iTunes U on 6/11/2012 – Asks how serious we can take the farcical exploits in the Comedy of Errors

The post Law and Literature: Socio-Legal status of characters in Shakespeare’s The Comedy of Errors and The Merchant of Venice appeared first on ELSA Law Review.

• An essay by 2nd year LLB student, Ivona Zegrean
• Assessed by Prof Jeremy Horder, King’s College London
• Mark Achieved: First Class (74%)
• Written in April 2011
• Word Count: 7172

1.      Introduction

Murder, defined by Lord Coke in the 17^th century as the unlawful killing of a person with malice aforethought, can be regarded as the most serious offence in criminal law, as there is no greater harm that can be inflicted on a person and no higher wrong than the culpable causing of a person’s death.

[1] It is known that malice aforethought, as the mental element required for murder, means intention to kill or to cause grievous bodily harm. The way in which the courts have interpreted the definition of intention has led to uncertain and inconsistent decisions that have expanded the interpretation of intention well beyond its ordinary language sense. Difficulties arise especially in relation to cases where the defendant does not directly intend to kill or cause grievous bodily harm, but foresees that as a result of his actions death is a practical certainty. As we shall see, the underlying justifications for extending the definition of intention to cover foresight of virtual certainty are legal, as well as moral.

This article analyses to what extent foresight of virtual certainty of a result may lead to a defendant being convicted of murder. Firstly, we consider the theoretical approaches to intention; secondly we discuss the directions given to the jury in relation to finding intention from foresight in murder cases and thirdly we look at whether in cases where doctors, in the exercise of their profession, bring about the death of their patients, foresight of virtual certainty will suffice for conviction.

2.      Intention – Theoretical Approaches

As we mentioned above, murder is defined as a criminal offence so as to require the proof of ‘intention’ to cause death or serious bodily harm. In the law of murder, however, the meaning of this term has not been set out definitively, because practical approaches are uncertain and inconsistent. As to theoretical approaches, Smith and Hogan suggest that in law the term should only be used with its ‘narrow definition of purposive or direct intention’[2]. Simester and Sullivan use the example of Smith and Hogan to illustratethe meaning of (direct) intention, which they refer to as being ‘its core sense’[3]:

If D has resolved to kill V and he fires a loaded gun at him with the object of doing so, he intends to kill. It is immaterial that he is aware that he is a poor shot, that V is nearly out of range and that his chances of success are small. It is sufficient that killing is his object or purpose, …that he acts in order to kill.

When direct intention is proved it is clear that a conviction will follow, as Itzhak Kugler explains[4]: ‘…he [the defendant] will be convicted if when he acted he foresaw the possibility that his act would bring about the proscribed consequence and he also wished that this consequence would occur’.

The courts have given the term a wider meaning, known as ‘indirect’ or ‘oblique’ intention, as opposed to ‘direct’ intention. The issue of ‘oblique’ intention arises when the defendant did not directly intend to cause death or grievous bodily harm, but he was aware that as a result of his actions death or serious bodily harm will ensue and he foresaw that the probability of this happening was a virtual certainty. As Simester and Sullivan point out ‘mere foresight of a consequence…does not establish an intention’[5]. Consequently,  it is necessary that the defendant not only foresaw death or serious bodily harm as possible, but as certain to occur.

There is a moral argument underlying this classification.[6] In the case of a man who places a bomb on a plane with the aim of blowing it up in mid-flight and claiming the insurance on the cargo, although D’s purpose is to collect the insurance, if he foresees that the death of the crew is a result that will practically certainly occur, should the legal definition of intention cover D’s awareness of virtual certainty that the death of the crew will ensue? The argument in favour of this extension is that D’s behaviour in taking the practically certain risk that the death of the crew will be caused by the explosion shows no respect for the value of human life. The counter argument would be that since D’s purpose is to destroy the cargo, not to kill the crew, if the cargo is destroyed by the explosion, but the crew are not killed, he will not regard the explosion as a failure, and on this ‘test of failure’ D could be differentiated from someone who acted with the purpose of bringing about the death of the crew.

But to establish that a philosophical distinction exists between D and the purposeful killer is not to conclude the matter: to transfer the argument from morality to law, it has to be decided whether the person who foresees death as virtually certain should be bracketed with the directly intentional killer (murder) or treated as merely reckless (manslaughter). Recklessness [...] includes the taking of relatively small risks. There is a strong argument that someone who takes a risk of death that amounts to a virtual certainty comes very close to the person who chooses someone’s death as the means to an end.[7]

Itzhak Kugler argues that there are two possible justifications for extending the definition of intention to cover cases in which the result is foreseen as practically certain to occur:

One possible rationale of the law that oblique intention is sufficient for conviction in many intention crimes is that the degree of moral culpability of an actor increases in proportion to the degree of probability in which he foresees the occurrence of the bad result. Therefore, when the actor foresees the result as practically certain, a very high degree of culpability exists and it is equivalent to the degree of culpability that exists in cases in which there is a desire to cause the result. Hence, oblique intention is sufficient for conviction. [...]

A second possible rationale for the doctrine of oblique intention is that there is a common mental denominator between cases of direct intention and cases of oblique intention because in both of them the actor chooses to cause the proscribed result. A person who acts in order to cause the proscribed result certainly chooses to cause it. A person who does not act in order to cause the proscribed result but when he acts he knows that there is a practical certainty that his action will cause the proscribed result also chooses to cause that result. Therefore, the degree of culpability that exists in cases of oblique intention is identical to that which exists in cases of direct intention, and because of this oblique intention is sufficient for conviction in many intention crimes.[8]

3.      Uncertainty and Inconsistency in the Case Law

In theory, the doctrine of ‘oblique’ intention seems fairly straightforward: D can be said to have ‘obliquely’ intended to commit murder if he foresaw with virtual certainty that as a result of his actions death or serious bodily harm will ensue. In practice, however, the term ‘oblique’ intention is quite controversial, when it comes to finding intention from foresight of virtual certainty of a consequence and the question whether a defendant had foreseen as virtually certain a consequence of his act is one that the jury should provide an answer for. The question is when should they find that D had an ‘oblique’ intention with regard to the result and what directions should the judge give to the jury when it is for them to infer intention (in its direct sense) from foresight? Is it enough that the jury are satisfied that D knew at the moment he performed the act that it was probable that grievous bodily harm would occur as a consequence of his act and if death ensued he was to be found guilty of murder? How are we to express the degrees of probability of the foreseen results in order to be entitled to infer intention from such foresight and distinguish between murder and manslaughter? These are only a few of the questions for which case law has provided inconsistent answers over the years.

In Hyam[9], the defendant set on fire the house of a woman who she supposed to have a relationship with her former lover. One night, she poured petrol through the letterbox and set alight the house in which that woman and her three children were living. The mother and the son managed to escape, but the other two girls were killed in the fire. The defendant was convicted of murder and her conviction was upheld by the House of Lords. The point of law of public importance that the Court of Appeal identified was the following:

Is malice aforethought in the crime of murder established by proof beyond reasonable doubt that when doing the act which led to the death of another the accused knew that it was highly probable that that act would result in death or serious bodily harm? [Italics added]

The House answered that because ‘it is not foresight but intention which constitutes the mental element in murder’[10]  the degree of foresight does not assume much importance. However, the decision in Hyam seemed to have equated subjective recklessness to intention since accepting the highly probable formulation indicates that it is probability not virtual certainty which counts as the mental element necessary for a murder conviction.

Simester and Sullivan provide a more detailed explanation of this point: they argue that when D foresees a result which he may be happy of it occurring, but:

that outcome nonetheless plays no part in her decision to act, then she does not intend it. The outcome is, for D, incidental. Mrs Hyam foresaw the possibility of killing Mrs Booth, but she did not set fire to the house because of her belief that doing so might bring about Mrs Booth’s death.[11]

The conviction was, nonetheless, upheld, as Lord Hailsham explains in Moloney[12], on the basis that:

…the intention of the appellant in Reg v Hyam [1975] 1 AC 55 was made apparent by two separate sets of fact […] (1) that prior to setting in train her criminal plan Mrs Hyam first ascertained that her former lover was not in the house and therefore safe, thus making it plain that her intention was to expose those who were in the house to danger to their lives, and (2) that she took elaborate precautions to make sure her actions did not awake the sleepers in the house, thus making it doubly clear that her intention was to expose them to whatever danger would be involved in the fire.[13]

Glanville Williams argues that whether Mrs Hyam intended to kill or was only reckless as to causing the death of the two girls is a matter for which the jury in Hyam should have been left to provide an answer and adds that ‘in the latter event the conviction should have been as a very serious case of manslaughter: such a serious case, indeed, that the term of imprisonment might not have differed much in practice from that for murder’.[14]

In the case of Moloney, the defendant shot his stepfather in the course of a foolish game as a response to a challenge made to him by his stepfather who said that he could “outshoot”, “outload” and “outdraw” his stepson. In this case D was convicted of murder, but the conviction was quashed by the House of Lords. It was decided that the judge had misdirected the jury when he gave the direction on intent:

When the law requires that something must be proved to have been done with a particular intent, it means this: a man intends the consequence of his voluntary act (a) when he desires it to happen, whether or not he foresees that it probably will happen and (b) when he foresees that it will probably happen, whether he desires it or not.[15]

Lord Bridge emphasized that ‘the probability of the consequence taken to have been foreseen must be little short of overwhelming before it will suffice to establish the necessary intent’[16]and he states that two questions should be put to the jury where reference to foresight of result is necessary:

First, was death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant’s voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act?[17]

This position has been criticised in later cases, such as Hancock and Shankland[18] and Woollin[19]. There are commentators who suggest that the intention of Lord Bridge in Moloney was to establish the distinction between recklessness and indirect intention

by suggesting that ‘intend’ and ‘foresee’ connote two different states of mind. What he should have said, to be consistent with his analysis of indirect intention, was that the relevant distinction was between the mental states of ‘foresight of moral certainty’ and ‘foresight of a consequence within the range of probability’[20]

Glanville Williams considers that Moloney’s conviction ‘shows how illusory sometimes is the hope that the participation of a lay element in the criminal trial provides an opportunity for “jury equity”’[21]. He mentions that his conviction of murder was substituted with one of manslaughter based on the fact that his defence had not been properly indicated to the jury.

Another case in which the directions of Moloney were used and created controversial reactions is that of Hancock and Shankland. Two miners who were on strike and wanted to prevent a colleague from getting to work pushed a block of concrete off a bridge on a taxi passing underneath it and as a result the death of the taxi driver ensued. The defendants were charged with murder but the Court of Appeal quashed the conviction. On appeal from the Crown to the House of Lords, their Lordships decided that the Court of Appeal had been right in so doing, because the trial judge used the terms ‘natural consequence’, which were the words of Lord Bridge in Moloney, to direct the jury in this case and that turned out to be misleading. The problem was that the jury could not relate foresight to intention only by trying to answer the questions set out by Lord Bridge in Moloney[22] because they were offered ‘no assistance as to the relevance or weight of the probability factor in determining whether they should, or could properly, infer from foresight of a consequence…the intent to bring about that consequence’.[23] In the view of Lord Scarman, the guidelines provided in Moloney require a reference to the degree of probability of death or grievous bodily harm ensuing as a result of an act performed by the defendant. His Lordship considered that the jury ‘also require an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability that that consequence was also intended’.[24]

In Nedrick[25], the defendant set alight the house of a woman whom he had a grudge against and as a result one of the woman’s children died. The defendant was convicted of murder, but the Court of Appeal found that the direction of the trial judge was wrong in law because it equated foresight with intention, whereas foresight of a consequence can only be regarded as evidence of intent, so the conviction of murder was substituted with one of manslaughter. The Court held that

the jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the actions of the defendant and that he appreciated that fact. [26]

Glanville Williams

Glanville Williams comments that the use of  the term ‘infer’ in a direction to the jury may also be misleading, because it leaves it unclear what the jury should infer from the acts of the defendant. He explains that as a matter of legal definition, ‘intention…includes not only desire of consequence…but also foresight of the certainty of the consequence’[27] and ‘What the jury infer from the facts is the defendant’s direct intention or foresight of a consequence as certain; there is no additional element to be “inferred”’[28]. Lord Steyn in Woollin added that the word ‘infer’ should be substituted with ‘find’ in the model direction that is to be given to the jury in cases of oblique intention.

In Woollin the defendant threw his three-month-old son against a hard surface, causing a fracture to his skull and as a result death occurred. He was charged with murder and the prosecution rejected the idea that D had directly intended to kill his child, which led to the conclusion that ‘foreseeing a result as a virtual certainty is an alternative category of intention, and not just evidence from which to infer the core definition of intention’.[29] After analysing the directions given in previous cases, Lord Steyn explicitly rejected the language of inference and, in light of the comment made by Glanville Williams, decided that

in the rare cases where the [standard] direction that it is for the jury simply to decide whether the defendant intended to kill or to do serious bodily harm is not enough, the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.[30]

Directions given to the jury should be concise and expressed in a way which is both clear and simple. When it comes to finding the necessary intention for murder, the jury must first consider all of the evidence presented. Once they have done that, they might decide that the defendant had the necessary intention. Andrew Ashworth points out that the change brought by Woollin in terms of ‘finding’ instead of ‘inferring’ intention from foresight of virtual certainty is of little practical importance; however, because juries are not required to find intention in these cases, it may happen that in certain cases juries will lawfully decide not to find intention despite the fact that the result was foreseen as virtually certain.[31]

Professor Jeremy Horder takes the view that ‘So long as what the law treats as killing (or seriously harming) intentionally can be readily distinguished from instances of involuntary manslaughter…the law’s understanding of intention has done its job.[32]

Andrew Ashworth argues that the reason why the courts have given themselves the space to ‘twist’ the definition of intention so that on the basis of foresight of virtual certainty intention may also be found is the need for flexibility in doing justice; the same view is adopted by the Law Commission: ‘this element of flexibility is “the price of avoiding the complexity” needed if a comprehensive definition were attempted’.[33]

4.     Intention and Necessity in Medical Cases

A category of controversial cases are those of doctors who administer to terminally ill patients the only possible cure which they know will virtually certainly cause the death of the patient.

In these cases, the first thing to determine is whether the act done by the doctor (act in the case of administering, for example, a pill or, as pointed out in Airedale NHS Trust v Bland[34],an omission to prolong life, where there is an existing duty) is performed with an intention to kill (in most cases the intention will be oblique, as cases where the doctor directly intends the death of the patient will be straightforward). Secondly, should the fact that the doctor foresees death as a virtually certain effect of the treatment be enough to say that he intended to cause the patient’s death and make him criminally responsible?

We will deal first with the case of an omission to prolong life. The illustrative case is Airedale. Anthony Bland had been very seriously injured and his brain activity was irreversibly damaged, leaving him in persistent vegetative state. He was put on life support, in the hope that his condition would improve, but medical evidence showed that there was no chance of improvement or recovery. The question was whether the doctors could lawfully discontinue all life-sustaining treatment and medical support measures designed to keep the patient alive in his existing persistent vegetative state. This case did not fall in the category of a patient who had previously expressed his choice in the event that he should be put on life support (he did not give his consent to any kind of treatment and did not say whether he wanted to be kept alive in this situation). The House of Lords adhered to the principle applied in a case of medical necessity (In re F [35]) in which it was established that in the case of a patient who, because for example is of unsound mind or has been rendered unconscious by  accident or by illness, is incapable of stating whether or not he consents to treatment or care […] a doctor may lawfully treat such a patient if he acts in his best interest[36] and held that the same principle should apply to the situation where the doctor has to decide whether to continue treatment that has the effect of prolonging life. It was held that the correct question to be answered is not whether it is in the best interest of Mr Bland that he should die, but whether it is in his best interest that his life should be prolonged. There was no doubt that the course of action to be taken would bring about Mr Bland’s death and the intention of the doctors was to bring about this result. So the position was clear –the mens rea requirement for murder was met. As to the actus reus, their Lordships took the view that interrupting life support treatment would not be a positive act, but an omission to continue to supply the treatment (a treatment which, in fact, did not have any therapeutic effect) which prolonged the patient’s life and therefore they had to establish whether there was any duty to act on the part of the doctors. This case is similar to Re F on the basis that the patient is not able to make a decision and the action to be taken in his best interest would amount to a crime, if there is no consent on the part of the patient.

In Re F the sterilisation of a mentally disordered woman who was sexually active was justified on the basis of necessity, because of the grave risk of her becoming pregnant, which would have a negative impact upon her. In Airedale, termination of life support was held to be lawful, because, although when the treatment was initiated there was the possibility of Mr Bland recovering and the doctors were under a duty to treat him, any hope for recovery or improvement had disappeared and thus the duty of care was no longer present. In relation to the patient’s best interest, it was held that Mr Bland had no interest either in being kept alive or in being allowed to die.

Read Part 2 of this essay

[1] Andrew Ashworth, Principles of Criminal Law (6th ed., Oxford University Press, 2009), ch. 7 [hereinafter ‘Principles’]

[2] David Ormerod (ed.), Smith and Hogan Criminal Law (12th edition, Oxford University Press, 2008), p.99 [hereinafter ‘Smith & Hogan’]

[3] AP Simester, JR Spencer, GR Sullivan, GJ Virgo (eds.), Simester and Sullivan’s Criminal Law (4th ed., Hart Publishing, 2010), p.127 [hereinafter ‘Simester & Sullivan’]

[4] Kugler, I, ‘Coditional Oblique Intention’, [2004] Crim LR 284

[5] ‘Simester and Sullivan’, p 132

[6] Ashworth (n 1), ch 5.5(b)

[7] Ibid, at 173

[8] Kugler, I, ‘The Definition of Oblique Intention’, (2004) 68 JCL 79

[9] Reg v Hyam [1975] A.C. 55

[10] Ibid, at 77

[11] Simester and Sullivan’s Criminal Law, p 130

[12] R v Moloney [1985] A.C. 905 [hereinafter Moloney]

[13] Ibid, at 913

[14] Williams, G, ‘The Mens Rea for Murder: Leave it Alone’ (1989) 105 LQR 387, pp 395-396

[15] Moloney, at 917

[16] Ibid., at 925

[17] Ibid, at 929

[18] R v Hancock and Shankland [1986] A.C. 455 [hereinafter Hancock and Shankland]

[19] R v Woollin [1999] 1 A.C. 82 [hereinafter Woollin]

[20] Norrie, A, ‘After Woollin’ [1999] Crim LR 532, at 537

[21] Williams (n 13), at 395

[22] Moloney (n 16)

[23] Hancock and Shankland, at 471

[24] Ibid, at 473

[25] R v Nedrick (1986) 83 Cr. App. R. 267 [hereinafter Nedrick]

[26] Nedrick, at 268

[27] Williams (n 13), at 388

[28] Ibid

[29] ‘Simester and Sullivan’, at 134

[30] Woollin, at 96

[31] ‘Principles’, at 174

[32] Horder, J, ‘Intention in the Criminal Law – A Rejoinder’ (1995) 58 MLR 678, at 688

[33] Ashworth (n 1), ch. 5.5 (b)

[34] Airedale NHS Trust v Bland [1993] AC 789 [hereinafter Airedale]

[35] In Re F [1990] 2 AC 1

[36] Airedale, at 866, per Lord Goff

The post Guilty of Murder? An Application of Oblique Intention in the Law of Murder to Medical Cases (part 1) appeared first on ELSA Law Review.

Further we consider the case of a doctor who administers to a patient, who is terminally ill, pain relief medication knowing that it is a virtual certainty that, as a side effect of administering that medication, death of the patient will ensue. If we apply Woollin, the fact that the doctor foresees death as a virtual certainty permits the jury to find that the doctor had the necessary intent for murder. There are some unreported cases on this matter which are discussed by Anthony Arlidge QC in his case comment ‘The trial of Dr David Moor’[1].

Dr Moor had a patient who was suffering from cancer of the bowel and who had undergone surgery which was thought to have been successful, though at autopsy it was noticed that the cancer had not been completely removed. Dr Moor continued to treat Mr Liddell at home. Soon after the surgery the patient started feeling severe pain which the doctor thought had an internal cause (failure to remove all the cancerous cells). The appearance of the patient was that of a terminally ill man who was close to death. Dr Moor started administering increasing doses of morphine and then switched to diamorphine, which put the patient to sleep. When Mr Liddell started making ‘a loud retching noise in his throat’[2] Dr Moor administered another drug which put Mr Liddell into a comatose state. Afterwards, the doctor gave the patient an injection which contained a higher dose of diamorphine, following which the patient subsequently died. Dr Moor maintained that his purpose in administering the overdose of diamorphine was to relieve the pain of the terminally ill patient, whom he considered to be dying from cancer. During the trial, the defendant was asked by the judge the following questions:

• Judge: You said in evidence that when you gave the final injection you intended to put Mr. Liddell to sleep. Did you think he would wake from that sleep?
• Moor: No.
• Judge: Death was therefore virtually certain?
• Moor: Highly probable.
• Judge: If he had wakened, would you have given a further similar injection and put him to sleep again?
• Moor: Yes.
• Judge: If he was sleeping he would not have been eating or drinking?
• Moor: No.
• Judge: And death would have been inevitable?
• Moor: Yes.
• Judge: But you only did this in the belief he was in extremis?
• Moor: Yes.

Mr Arlidge QC submits that Dr Moor’s answers ‘came very close to an admission of an intent to kill’[3].

The draft direction of the judge contained no reference to the doctor’s intention:

Has the prosecution satisfied you so that you are sure that the defendant unlawfully caused the death of George Liddell? [...]The act which caused the death, the intramuscular injection, would not be unlawful if (a) Dr Moor believed that George Liddell would die shortly of natural causes (and there is no dispute that he did so believe) and his purpose in giving the intramuscular injection was to relieve George Liddell’s pain and suffering and (b) if the intramuscular injection was the proper treatment for George Liddell in the circumstances as Dr Moor believed them to be.[4]

But, in the light of Dr Moor mistakenly believing the pain to be caused by the remaining cancer, the judged directed the jury through 4 questions:

Question 1 Has the prosecution satisfied you so that you are sure that the intramuscular injection given by Dr Moor to George Liddell contained significantly more than 60 mgms of diamorphine (2 ampoules of 30 mg). If the answer to question 1 is ‘No’, your verdict must be ‘not guilty’. If the answer to question 1 is ‘Yes’, go to question 2.

Question 2 Has the prosecution satisfied you so that you are sure that the defendant caused the death of George Liddell. If the answer to question 2 is ‘No’, your verdict must be ‘not guilty’. If the answer to question 2 is ‘Yes’, go to question 3.

A person causes the death of another if his act, in this case the intramuscular injection containing morphine, contributed significantly to the death. It does not have to be the sole or principal cause of death.

Question 3 Has the prosecution satisfied you so that you are sure that Dr Moor’s purpose in giving the intramuscular injection was not to give treatment which he believed in the circumstances (as he understood them) to be proper treatment to relieve George Liddell’s pain and suffering? If the answer to question 3 is ‘No’, your verdict must be ‘Not guilty’. If the answer to question 3 is ‘Yes’, go to question 4.

Bear in mind that there is no dispute that Dr Moor believed that George Liddell would die shortly of natural causes. [...]

Question 4 Has the prosecution satisfied you so that you are sure that the defendant when he gave the intramuscular injection intended to kill George Liddell. If the answer to question 4 is ‘No’, you verdict must be ‘not guilty’. If the answer to question 4 is ‘Yes’, then your verdict must be one of ‘guilty’.

A person intends to kill another person if he does an act, in this case giving the injection, for the purpose of killing that person. If Dr Moor thought or may have thought that it was only highly probable that death would follow the injection, then the prosecution would not have proved that he intended to kill and he would be not guilty.[5]

The third question focuses on the doctor’s purpose. However, it is submitted that it is doubtful that this question casts any light on the state of mind of the doctor, because the fact that his purpose was not to provide treatment for the patient’s pain does not mean that his purpose was to kill the patient. Had the question been ‘Did the doctor act with the purpose not of alleviating pain, but of bringing about the death of the patient?’ an affirmative answer by the jury would have meant that the doctor had a direct (purposive) intention to kill, which would have rendered the fourth question unnecessary.

It has been suggested that a better direction to replace the third and fourth questions would have been in the following terms:

The prosecution must make you sure that D intended to cause P’s death. In considering his intention you are entitled to infer he intended to cause death if you feel sure death was a virtually certain result of his actions (barring some unforeseen intervention) and that he appreciated that fact and that his primary intention in so acting was not purely to relieve pain and suffering but to cause death.[6]

We submit that the second part of the proposed direction is superfluous given that the doctor clearly did not have a direct intention to kill his patient and since he did foresee that death would virtually certainly occur as a result of him administering the diamorphine, that foresight enables the jury to find the necessary intention for murder.

Further clarifications have been made in other cases. In Arthur[7] the trial judge gave precisely the example of a doctor who administers pain killers to a patient suffering from cancer in terminal stage and stated that

there comes a point where the amounts of those doses are such that in themselves they will kill off the patient; but he is driven to it on medical grounds. There again, you [the jury] will, undoubtedly say that that could never be murder. That would be a proper practice of medicine’[8]

In Cox[9] the doctor administered to a patient who was suffering from arthritis a dose of potassium chloride which was known to have the effect of relieving pain in the short remaining life of the patient, but which would also kill. The judge directed the jury that

If a doctor genuinely believes that a certain course is beneficial to his patient, either therapeutically or analgesically, then even though he recognises that that course carries with it a risk to life, he is fully entitled, nonetheless, to pursue it. If in those circumstances the patient dies, nobody could possibly suggest that in that situation the doctor was guilty of murder or attempted murder.[...] There can be no doubt that the use of drugs to reduce pain and suffering will often be fully justified notwithstanding that it will, in fact, hasten the moment of death. What can never be lawful is the use of drugs with the primary purpose of hastening the moment of death.[10]

Anthony Arlidge submits that treating doctors differently from other defendants who foresee death as a virtually certain consequence of their acts would amount to a special defence being made available to doctors in these circumstances[11]. However, he suggests that a defence based on lack of intent would be available to a doctor who administers to a patient an analgesic to which tolerance is such that it is difficult to determine from what quantity the drug would cease to be a pain free dose and would be fatal.[12]

In the case of Dr Cox, it could not be proved that the cause of death was the injection of potassium chloride administered to the patient; however, Dr Cox was convicted of attempted murder. Dr Moor, on the other hand, was acquitted, because it was established that his primary intention was not to kill the patient. His acquittal has cast some light on the fact that doctors are allowed to administer potentially lethal doses of painkilling drugs to alleviate suffering, as long as they do not primarily intend to kill the patient. James Goss argues that the rationale in Moor was similar to that in Cox, where a distinction was drawn between primary intention and secondary effect.[13]

Taking into consideration the direction of the judge in Dr Moor’s trial (Questions 3 and 4) and the emphasis placed on primary intention in Dr Cox’s case, we could rightly conclude that in the case of a doctor who administers a lethal dose of painkillers to a terminally ill patient, knowing that it is virtually certain that the drug will bring about the death of the patient, oblique intention will not be considered enough to convict of murder, as the emphasis placed on the primary intention of the doctor shows that purposive intent (= intention in its direct sense) is required in such a case, and nothing less will suffice.

Another doctrine that plays an important part in these cases is the doctrine of double effect, as explained by Ward LJ in Re A [14]:

…an act [administering a lethal dose of painkillers] which produces a bad effect [death of the patient] is nevertheless morally permissible if the action is good in itself [administering a drug to alleviate pain cannot be considered to be bad in itself], the intention is solely to produce the good effect [the doctor intends primarily to relieve the pain and suffering of the patient] the good effect is not produced through the bad effect [alleviation of pain is not produced through death] and there is sufficient reason to permit the bad effect [it is in the best interest of the patient; it will reduce the distress of the family etc.]. It may be difficult to reconcile with R v Woollin. Nevertheless it seems to enjoy some approval…[15]

It is important to note that the issue of the patient’s best interest does not arise in either of the cases discussed by Anthony Arlidge, because, although the course of action take by the doctor is capable of bringing about the death of the patient, and indeed does so, the patients in those cases were not in a position in which they could not have given their consent to the treatment. It is arguable that in the case of Dr Moor, the last dose administered to the patient while he was asleep might be considered to have been given without consent, although, if seen as part of the treatment decided upon by the doctor, this matter loses its importance.

Andrew Ashworth argues that Adams [16] (a case concerning a doctor charged with the murder of a patient because he administered increasing doses of morphine, of which the patient died) ‘modified the general proposition that any acceleration of death satisfies the conduct element for unlawful homicide’[17]. The direction of the judge in that case was in the following terms:

Murder is an act or series of acts done by the prisoner which were intended to kill and did in fact kill the dead woman. It does not matter for this purpose that her death was inevitable and her days were numbered. If her life was cut short by weeks or months; it is just as much murder as if it were cut short by years. [...] But that does not mean that a doctor who is aiding the sick and the dying has to calculate in minutes, or even in hours, and perhaps not in days or weeks, the effect upon a patient’s life of the medicines which he administers or else be in peril of a charge of murder. If the first purpose of medicine, the restoration of health can no longer be achieved there is still much for a doctor to do and he is entitled to do all that is proper and necessary to incidentally shorten life.[...] The doctor who decides to administer or not to administer a drug is not, of course thinking in terms of hours or minutes of life. He could not do his job properly if he were. If, for example, because a doctor has done something or has omitted to do something, death occurs at eleven o’clock instead of twelve o’clock, or even on Monday instead of Tuesday, no people of common sense would say ‘oh, the doctor caused her death’. They would say the cause of death was the illness or the injury, or whatever it was, which brought her into hospital and the proper medical treatment that is administered and that has an incidental effect on determining the exact moment of death is not the cause of death in any sensible use of the term[18]

Furthermore, Ashworth points out that ‘…the desired effect was to avoid the conviction of a doctor who acted in the ‘best interests’ of the patient and the chosen method was to distort established concepts, rather than to confront the problem openly’.[19] In causal terms, where the doctor administers the drug as treatment to relieve pain and suffering ‘What the courts appear to be doing […] is to deny that there is causation […] in order to avoid the need to confront the question whether a doctor can have a valid defence to an intentional killing’.[20]

5.     Concluding Observations

If we are to take the view of Professor J. Horder that ‘So long as what the law treats as killing (or seriously harming) intentionally can be readily distinguished from instances of involuntary manslaughter…the law’s understanding of intention has done its job’, it is likely that we will end up even more confused about what the mens rea for murder is. By accepting the decisions in the medical cases discussed above, which follow a slightly different path than the decision in Woollin, since they establish that foresight, on the part of a doctor, of death as a virtually certain consequence of administering a high dose of a drug with the purpose of, for example alleviating the pain of a terminally ill patient, will not make the doctor guilty of murder, we accept that in medical cases the mens rea of murder will differ from other instances of intentional killing or that doctors have, in very limited circumstances, a defence based on medical necessity.[21]

About the author 

Ivona Zegrean is in her second year, studying law at King’s College London. Ivona has a keen interest in travelling and exploring new cultures. She also enjoys learning foreign languages. In her free time Ivona enjoys reading mystery novels, playing the piano, watching Julia Roberts movies and rollerskating.

Achievements

This year Ivona participated in the IARU Summer School ‘Southeast Asia in Context’ 2011 which was hosted by the National University of Singapore.

The post Guilty of murder? An Application of Oblique Intention in the Law of Murder to Medical Cases (part 2) appeared first on ELSA Law Review.

The law on automatism and insanity has been controversial in its application and scope. There are many justifications for having a law on insanity, but the chief justification is that it would not be right to a subject an unreasonable person to the same standards as a reasonable person. It thus makes sense to have a separate set of rules to govern the criminal conduct of such people, so that a fair balance can be struck between punishment and rehabilitation.

Daniel McNaughten

But it is submitted that the law on insanity is unsatisfactory and in urgent need of reform. Firstly, it is a shame that this area of the criminal law is even referred to as ‘insanity’. The Law Commission has proposed the defence be renamed “not guilty on evidence of mental disorder” to avoid the stigma of insanity[1], and it is hoped that the English law will in time move on to accommodate such a definition; after all, it has been successful in  renaming the Trial of Lunatics Act 1883[2].

The starting point for insanity is that of the court process. A defendant can be deemed too mentally unstable for trial under the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (having been diagnosed by “two or more registered medical practitioners, at least one of whom is duly approved.”[3]) It is submitted this is a positive aspect and complies with the UK Law’s obligations under the European Convention on Human Rights, but there still remain problems.

For example, the defendant and his counsel may be deprived of the right to make his own informed choice on the matter of whether he should go to trial or not – Pritchard[4]. In that case, he proceeded to trial even though he thought his lawyers and the courts were all plotting against him.

But these problems come even before examination of the criteria used to define what insanity is. The definition comes from M’Naghten’s Case[5]. These ‘rules’ arose from the acquittal of Daniel M’Naghten in 1843 on the ground of insanity, whereupon the law of insanity was debated in the House of Lords, who asked the judges to advise them on the relevant legal principles. Theoretically, this type of advisory opinion is not binding as precedent, but since the joint answer given by the fourteen judges as a result of M’Naghten’s Case[6] has been so frequently followed and approved; it must be taken as authority[7]. The ‘rules’ were defined as: “…at the time of committing of the act, the accused was labouring under such a defect of reason, arising from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know that what he was doing was wrong.”[8]

The shortcomings of the definition shall be attacked sequentially.

Firstly, “disease of the mind” catches epileptics as evidenced from the caselaw. This is shocking, because epilepsy is a recognised medical condition which many people have and deal with in their day-to-day lives and has no link to insanity. Thus, it should not follow that the ‘insanity’ label and stigma should follow in such a definition. Further problems arise with the internalisation of the mental condition; diabetics are a case in point – according to the circumstances they can either be insane or non-insane automatons. The case of Quick[9] treated D’s diabetic condition as an external factor (he failed to eat enough food) and so he was a non-insane automaton, whereas in Hennessey[10], D had failed to take his insulin and so because his diabetes was an internal situation which he had failed to correct, he was an insane automaton for the purposes of criminal law. Indeed, Simester and Sullivan point out this is a “conclusion only a lawyer could come to”[11]. There is no valid intellectual basis to support this distinction and it is submitted that the law could do much to reform this aspect of insanity and automatism.

Moreover, “defect of reason” has been disproved scientifically under empirical analysis because it fails to take into account volition, from recent statements of the Royal Institute of Psychiatrists. The M’Naghten Rules[12] indeed were formulated at a time when psychiatric analysis was in its infancy and so the law should be updated to reflect this.

The problem of the psychopath or schizophrenic person is also apparent in cases such as Coonan[13]. The psychopath simply

Peter Sutcliffe

does not sit well within the M’Naghten Rules[14]. Since Peter Sutcliffe (who believed it was his divine mission to kill prostitutes) had taken steps to avoid the police and who could not be said to have known his acts were morally wrong, he must have thus known that what he was doing was legally wrong – and the courts have consistently interpreted that limb of the M’Naghten Rules[15] as a legal wrongness test.

Put simply, those who are extremely deranged (but have sufficient cognitive awareness to realise the criminal nature of what they are doing) may not be able to raise the defence of insanity in England and Wales. Since these defendants have mens rea in a narrow legal sense, they will be held responsible for their insane acting.

Dr Dennis J Baker believes this is unjust in moral terms, because the defendants are not ‘morally culpable’[16]. Since they do not understand the moral wrongness of their actions and moral culpability in the wider legal sense underwrites the mens rea concept, insane defendants do not really act with legal mens rea either. He holds that union of harm and culpability provides a sound basis for criminalisation – a person should not be criminalised merely for knowing that something is legally wrong[17]. Where a person intends to commit a legal crime such as killing another person because he thinks (using Dr Baker’s example) that it will prevent the world from being sucked into a black hole, he does not act with the type of moral culpability that the sane murderer acts with, being only culpable in a narrow, legal sense.[18]

If the defendant’s insane delusions cause him to genuinely believe that he is morally justified in committing the particular criminal act, this type of insane defendant may be blameworthy in a technical legal sense, but he is not morally culpable.

Finger v State provides the following analysis: “Similarly, persons who thought they were soldiers in the middle of the battlefield and that individuals they were killing were enemy forces would meet the second factor of M’Naghten. Such persons would know they were shooting and killing human beings, but would not understand that it was wrong because of their delusional belief they were in the middle of a war.”[19]

It would be unjust to punish people when no retributive or deterrent objective is served. Lamer J. in R v Chaulk provided the following dicta: “This is because sane people are presumed to have the capacity to distinguish between right and wrong – if a sane person is of the opinion that murder is not wrong, his opinion makes him ‘bad’ (as opposed to sick) because he has the capacity to distinguish right from wrong.”[20]

Thus, one way to get around this problem of the psychopath or schizophrenic person would be to take the approach of the Canadian Supreme Court in R v Chaulk[21] and introduce a ‘moral wrongness’ test alongside the legal wrongness test. Indeed, as recently in the case of R v Johnson[22], the UK Court of Appeal held that the defendant (a paranoid schizophrenic who had stabbed his neighbour in the belief that the victim had molested his sister) was sufficiently cognitive to realise that his acts were legally wrong. They held that it was therefore irrelevant that he was insane and could not comprehend the moral wrongness of what he had done. Dr Baker nevertheless believes that this analysis of the earlier law is not convincing and hypothesises that the UK Supreme Court will overturn R v Johnson when an opportunity arises:

As long ago as 1933, Sir Owen Dixon in The King v Porter[23] said that (of the head in the M’Naghten test where the defendant’s disease of the mind was of such character that he was unable to appreciate the nature and quality of the act he was doing):

“It is supposed that he knew he was killing, knew how he was killing and knew why he was killing but that he was quite incapable of appreciating the wrongness of the act… If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know what he was doing was wrong… [where] what is mean by wrong is wrong having regard to the everyday standards of… reasonable people. [If it is found that] he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him guilty… [the defendant] was disabled from knowing that it was a wrong act to commit in the sense that ordinary reasonable men understand right and wrong and that he was disabled from considering with some degree of composure and reason what he was doing and its wrongness”

Sir Owen Dixon later affirmed this principle as the Chief Justice of the Australian High Court in Stapleton v R[24]. In R v Chaulk[25] the Supreme Court of Canada overruled its earlier ruling on this point in R v Schwartz[26] and cited Stapleton v R. as providing the correct interpretation of the law.

Dr Baker summarises the core points of the analysis as follows:

• The second limb [of the M’Naghten test] adds little to nothing if it means that the defendant can only rely on the insanity defence when he is so deranged that he does not realise he is committing a crime.
• The authorities predating M’Naghten’s case and earlier common law standard for determining the criminal responsibility of insane persons was “whether the particular accused had the capacity to distinguish between conduct that was good or evil, right or wrong.” M’Naghten did not depart from or distinguish that standard.
• M’Naghten drew a clear line between knowledge of illegality and knowledge of moral wrongness.
• If wrong simply meant ‘illegal’ the court would basically be prevented from considering the defendant’s incapacity. Such an approach would inject “a formalistic legalism into the insanity equation to the disregard of the psychological underpinnings of legal insanity.”[27]
• Finally, the contention that a moral standard would favour amoral offenders overlooks the fact that the loss of cognition has to be linked to disease of the mind.

Dr Baker also added that “More than half the states in the USA allow the defence for those who do not realise the moral wrongness of their actions”[28].

Indeed, even the Butler Committee as far back as 1975[29] recommended the reform of the defence, describing the M’Naghten Rules as “outdated”.

Automatism in of itself is a defence to any crime and enables a state of ‘no mens rea’ to be proved. It is submitted that apart from the problem of the diabetic as mentioned earlier, there is no need for imminent reform of the defence, as it comes with strict limits and the burden of proof is on the defendant to show that he was acting in an automatic state.

In conclusion, the law on automatism and insanity display many shortcomings, of which urgent reform should be implemented to ensure fair labelling and proportionality – and for faith to be restored in the workings of the UK criminal justice system with regard to these defences.

About the author

Dominic Wong is a second-year Law student studying at King’s College London. As part of the LLB with European Legal Studies programme at KCL, Dominic will be taking his third year of study at Université Toulouse 1 Capitole from September 2012 before returning to finish his degree in his fourth year at KCL by June 2014.

Hobbies/interests:

• Cultural exposure – in particular, to European as well as Chinese and South-east Asian traditions,
• Sampling and cooking world cuisines.
• Martial arts, in particular karate.

Favourite quote:  Emergencies have always been the pretext on which the safeguards of individual liberty have eroded. -Friedrich August von Hayek, Austrian economist, Law, Legislation and Liberty, Vol. 3, 1979 

Bibliography

• Jonathan Herring, Criminal Law: Texts, Cases Materials (London: 4th edition, OUP Oxford, 2010) at Chap 12: Defences, 10: Insanity.
• A.P Simester, G.R Sullivan, J.R Spencer, Graham Virgo, Simester and Sullivan’s Criminal Law – Fourth Edition: Theory and Doctrine (London: 4th Revised edition, Hart Publishing, 2010) at Chap 19: Mental Condition Defences.
• Dennis J. Baker, Glanville Williams: Textbook of Criminal Law, (London: 3rd edition, Sweet & Maxwell, 2012), at Chap. 27: Criminal Capacity and Insanity.

The post In what ways, if at all, is the law governing automatism and insanity in need of reform? appeared first on ELSA Law Review.

Globalisation and its effect on state-made law cannot be theorised using traditional techniques. As Twining remarks: “Globalisation and interdependence challenge ‘black box’ theories that treat nation-states or societies or legal systems as discrete, impervious entities that can be studied in isolation either internally or externally…In so far as our stock of theories of law assumes that municipal legal systems are self-contained or that public international law is concerned only with external relations between states, such theories just do not fit the modern facts”.[1] This essay will therefore not utilise the methodology of those theorists who claim to treat the nation-state or some particular society as a self-contained unit. Rather, this essay will analyse the conditions of globalisation in the late 20^th century and argue that they force a recognition that certain assumptions about the sovereignty of the nation-state can no longer be made. Indeed, it will argue that traditional conceptions of nation-state sovereignty are no longer applicable to global society. We live in an age of post-sovereignty in which the nation-state is just one of the many law-creating bodies and no longer enjoys a monopoly on law creation at the global level. This essay will distinguish at the outset global forms of law and legal ordering from international law, which has the primacy of the nation-state as its paradigm and thus concerns itself only with the external relations between states. Global law, on the other hand, is law decoupled from the nation-state generated in the process of globalisation itself as a product of global social sources.[2] Socioeconomic interactions on the global level create legal orders in ‘relative insulation’ from the state.[3] On the basis of this analysis of the nature of global law, this essay will argue that a conception of legal pluralism is crucial for understanding both how such non-state laws are created in global society and the place they occupy in relation to state-made law in this post-sovereign age. In offering this analysis, it will locate state-made law within the heterarchy of legal orders operative in global society and conclude that state-made law cannot be said to have been ‘marginalised’ even though it has now to be considered as part of a global legal heterarchy.

The process[4] of globalisation can be defined as “the intensification of worldwide social relations which link distant realities in such a way that local happenings are shaped by events occurring many miles away and vice versa.”[5] The rapid intensification of transnational economic interactions is the most important element of the globalisation process. Santos highlights the pre-eminence of transnational corporations, which are ‘the key agents of the new world economy’.[6] These agents play the major role in the new economy, the main features of which are: “worldwide sourcing; flexible systems of production and low transportation costs allowing for the production of industrial components in the periphery and export to the core; the emergence of three great trading blocs – the US, based on privileged relations with Canada, Mexico and Latin America; Japan, based on privileged relations with the four little tigers and the rest of East Asia; and Europe, based on the EU and on privileged relations with Eastern Europe and North Africa”.[7] In light of these intensified transnational interactions, sceptical theories such as those put forward by Hirst and Thompson are shown to be false. These authors argue that globalisation cannot be seen as anything qualitatively new and that there has been interconnectedness on a global scale since at least the 19^th Century.[8] Whilst it is accepted that there were elements of global society forming as early as the 19^th century, this view “underestimates the novelty of late twentieth-century conditions”.[9] The sheer rapidity and volume of transnational interactions that has occurred in the late 20^th Century would have been impossible in any other epoch.[10] As Gray notes, transnational corporations “are less dependent than ever before on national conditions” and they have “significant leverage on the policy options of national governments”.[11] To deny that the conditions of late 20^th century globalisation are qualitatively different from anything the world has experienced before is therefore to “trade in falsehoods”.[12]

The political impact of globalisation on the nation-state is contemporaneous with and to a large extent a product of the economic transformations it brings about. Santos argues that the economic developments outlined above have had a tremendous impact on the economic policies of nation-states, including forcing national economies to remain open to trade; directing national fiscal and monetary policy to the maintenance of price and balance-of-payments stability; ensuring that private property rights are clear and inviolable and enforcing the privatisation of state-owned productive enterprises.[13] It is clear that, as a result of these intensified transnational interactions, “the nation-state appears to have lost its traditional centrality as the privileged unit of economic, social and political initiative. The intensification of cross-border interactions and transnational practices erodes the capacity of the nation-states to initiate, steer and control flows of people, goods, capital or ideas, as it had done in the past”.[14] It is the very nature of globalisation to pose a threat to the nation-state and as a consequence state-made law as it discounts national boundaries through the intensification of transnational interactions: as Habermas puts it, “the locus of control has shifted from space to time…as ‘masters of speed’ come to replace ‘rulers of territory’”.[15]

Traditionally, the process of globalisation was not theorised as a threat to the nation-state or its laws. For Kant, the sovereignty of the nation-state was not reduced at the global level, but was vindicated and upheld in the process of globalisation. Kant argued that globalisation would entail the creation of an ideal federation of states for the guarantee of perpetual peace. He argues that “a federation of this sort would not be the same thing as an international state. For the idea of an international state is contradictory, since every state involves a relationship between a superior (the legislator) and an inferior (the people obeying the laws), whereas a number of nations forming one state would constitute a single nation. And this contradicts our initial assumption, as we are here considering the right of nations in relation to one another in so far as they are a group of separate states which are not to be welded together as a unit.”[16] The notion of a nation-state that was not sovereign was simply not possible in this system. Kant argued that ‘this federation does not aim to acquire any power like that of a state, but merely to preserve and secure the freedom of each state in itself, along with that of the other confederated states, although this does not mean that they need to submit to public laws and to a coercive power which enforces them, as do men in a state of nature’.[17] Clearly then, the laws of the nation-state were not to be undermined in the global society Kant envisaged, and no other authority could impose a higher law on the state. That state-made laws could be subsumed or operate at a lower level than other non-state or supra-state laws was impossible for Kant.[18]

This vision of a global federation of states is extremely far removed from the reality of globalisation.[19] “Today’s globalisation is not a gradual emergence of a world society under the leadership of interstate politics, but is a highly contradictory and highly fragmented process in which politics has lost its leading role”.[20] Politics and law remain grounded in the nation-state[21], the sovereignty of which is being lost under the pressure of globalisation. As the state’s sovereignty is undermined, so too are its laws in relation to non-state law. MacCormick defines sovereignty as “power not subject to limitation by higher or coordinate power, held independently over some territory”.[22] This sovereignty can be found in two different forms: internal and external sovereignty. If there is any person who enjoys power without higher power internally to the state, then that person is internally sovereign. If the state is not subject to any higher power imposed upon it externally by another state, then that state is sovereign ‘in the sense that the totality of legal or political powers exercised within it is in fact subject to no higher power exercised from without’.[23] Most traditional Western legal theory posits sovereignty, in either the external or the internal sense, as a prerequisite for the valid creation of law.[24] As Twining notes, for the past 200 years Western conceptions of law have been dominated by the notion that the state has a monopoly on law within its territory, and that only that which is created or recognised as law by the state is law.[25] Globalisation, by eroding the equation between nation, state and law[26] forces us to accept that the traditional conception of sovereignty, as well as the notion of sovereignty as the basis of authentic law, is no longer operative to explain the position of state-made law under globalisation. As Habermas notes, the process of globalisation “forces the nation-state to open itself up internally to the multiplicity of foreign, or new, forms of cultural life. At the same time, globalisation shrinks the scope of action for national governments, insofar as the sovereign state must also open itself externally, in relation to international regimes”.[27] The nation-state, then, is losing both internal and external sovereignty. The nation-state does not enjoy the monopoly on law creation, either conceptually or empirically. This decentring of the state forces the acceptance of the possibility of law creation from other areas outside the state as well as the possibility of a plurality of legal orderings emerging at the global level.[28]

There exists a new conceptual framework for accounting for forms of law that are emerging in the wake of the decline of nation-state sovereignty at the global level; understanding this notion, named legal pluralism, is crucial for locating state-made law in the context of global forms of law in the post-sovereign age. As Twining points out, a new theme of “the disengagement of law and state”[29] emerges as the process of globalisation continues. Such diverse emergent legal orderings as “a ius humanitatis, a transnational lex mercatoria, Islamic law, transnational humanitarianism and human rights law, and, in a different way, some new regional orderings, and even parts of public international law itself are all arguably more or less clear examples of the amorphous category ‘non-state law’”.[30] It is abundantly clear that no ‘black box’ normative theories can function to weigh the relative importance of these and other forms of non-state law against the law of states, as these theories treat legal orders as self-contained and as a consequence purport to limit their application to the nation-state, societies or other supposedly self-contained units.[31] This is inadequate considering the process of globalisation entails the weakening of the nation-state[32] and denies the very possibility of any legal system declaring itself to be self-contained.[33] Instead, a theory of legal pluralism has to be utilised. The tendency of globalisation “to loosen the association of the ideas of law, state and nation and so to make more salient the multiplicity of legal orderings”[34] makes an understanding of legal pluralism essential to assessing the importance of state-made laws in global society.[35] “Legal pluralism maintains the existence and circulation in society of different legal systems, the state legal system being one of them, even if the most important one”.[36] Having shown that globalisation decentres the nation-state and removes the possibility of a state monopoly on law creation, legal pluralism, in insisting that more than one legal system can operate within one social space, places state-made law within a heterarchy of non-state laws that operates on the global scale.

The kind of legal pluralism that is operative here is not the traditional form. Santos states that: “Legal pluralism is the key concept in a post-modern view of law. Not the legal pluralism of traditional legal anthropology in which the different legal orders are conceived as separate entities coexisting in the same political space, but rather the conception of different legal spaces superposed, interpenetrated and mixed in our minds as much as in our actions, in occasions of qualitative leaps or sweeping crises in our life trajectories as well as in the dull routine of eventless everyday life”.[37] Thus, the concept we must have in mind is one of an interdependence of legal orderings on the global level; state-made law is just one of a number of ‘legal spaces’ operating in global society. As Merry notes, plural forms of ordering should be considered as participating in the same social field rather than mutually influencing each other as separate entities.[38]

The way in which these legal spaces interact demonstrates that an inherent hierarchy of forms of law, with the correspondent marginalisation of a particular form at the bottom of the hierarchy, does not exist. For Santos, legal developments on the global scale reveal three different legal spaces and their correspondent forms of law: local, national and world legality.[39] He states that these forms of law operate on different scales: local law is large-scale legality, nation-state law is medium-scale legality and world law is small-scale legality.[40] He argues that as a result of the different scales, “the different forms of law create different legal objects upon eventually the same social objects”.[41] Since “in real socio-legal life the different scales do not exist in isolation but rather interact in different ways”[42] it can be said that “socio-legal life is constituted by different legal spaces operating simultaneously on different scales and from different interpretive standpoints”.[43] Santos thus provides us with an idea of the intensity of the interrelations between the different legal scales; all of the legal orders operate on the same social objects and apply their own legal interpretations to the same social phenomena. The result of this is not an immediate negation of one interpretation due to the imposition of another, but a mixture of interpretations in the minds and actions of agents in the social space where before there existed just one operative interpretation on the scale of the nation-state.

It is clear that these different legal scales generate genuine forms of non-state law. Identifying the ‘truly’ legal is not, according to Twining, essential to legal pluralism.[44] He argues that legal pluralism should be seen as a ‘sub-species’ of normative pluralism. Normative pluralism is the “undeniable fact of the coexistence of normative orders or agglomerations which…are not necessarily linked hierarchically”.[45] Twining argues that it is not necessary to distinguish the legal from other norms in the abstract, “because the indicia of ‘the legal’ are more like a continuum or more complex mix of attributes, which it is not necessary to set off artificially from closely related phenomena except for pragmatic reasons in quite specific contexts”.[46] It is my contention that Santos’s theory would benefit from being placed in the context of normative pluralism since, as Twining argues, it would displace scepticism about the importance or even existence of legal pluralism.[47] However, it is necessary to identify the legal in the abstract as accepting the plurality of legal orders involves substituting the hard law of legal scholarship with the soft law of legal pluralism. Identifying the legal provides a crucial answer to the questions “where does pluralism end? What is law, and where is it?”.[48] Santos provides a framework for recognising how different legal scales identify the legal within the social objects they regulate. He argues that “irrespective of the social object it regulates and the purpose of regulation, each scale of legality has a specific regulation threshold which determines what belongs to the realm of the law and what does not.”[49] The ‘regulation threshold’ is the product of the combined operation of three other thresholds: the detection threshold, the discrimination threshold and the evaluation threshold. “The detection threshold refers to the smallest details of the social object that will be considered for regulation; it distinguishes between relevant and irrelevant issues. The discrimination threshold refers to the minimum detectable differences in the description of the social object that may justify qualitative differences in regulation…Finally, the evaluation threshold refers to the minimum detectable differences in the ethical quality of the social object; it distinguishes between the legal and the illegal”.[50] This framework allows non-state forms of law generated by the conditions of the world legal space to be identified as law and therefore be properly positioned against state-made law.

The small scale world legality, which interpenetrates with state-made law (which is itself one of the scales of legality), may serve to diminish the importance of state-made law in the legal spaces in which it operates, but only in specialised areas, not through the marginalisation of state-made law as a whole. Santos illustrates this by discussing lex mercatoria, which is a type of world legality.[51] This form of law – the law of transnational economic agents – “creates a transnational legal space which often conflicts with the national state legal space”.[52] International commercial contracts and the internal codes of conduct of TNCs give the transnational economic agents their “own personal legal quality” and enable them to carry their law with them wherever they go.[53] Santos uses the lex mercatoria to illustrate how globalisation has enabled a shift from ‘geocentric legality’ – the law of the state – to ‘egocentric legality’ – “the emergence of new legal particularisms that…by creating personal legal ‘enclosures’, empty or neutralise the conditions for the application of the law of the land”.[54] State-made law is thus bypassed by these new particularisms which, in the interlegal global society, seem to have the last word on the type of law that will take precedence on the social object that the lex mercatoria regulates.[55] Teubner similarly analyses at length the importance of lex mercatoria for global law. He goes further than Santos in holding up lex mercatoria as “the most successful example of global law without a state”.[56] He uses the example of lex mercatoria as a basis on which to argue that “global law will grow mainly from the social peripheries, not from the political centres of nation-states and international institutions”.[57] Global law will emerge from civil society itself and the nation-state will play a very marginal role indeed.[58] By applying autopoietic analysis to legal pluralism, Teubner arrives at the conclusion that the social source of global law should be seen as “the ongoing self-reproduction of highly technical, highly specialised, often formally organised and rather narrowly defined, global networks of an economic, cultural, academic or technological nature”.[59] He argues that legal pluralism should shift its attention to such highly specialised discourses, which are autonomous and self-contained.[60] The state and its laws will become the periphery of global law since the discourses which are the social source of global law are sealed from the discourse of the nation-state.[61]

It is submitted that Santos’s view of legal pluralism should be preferred to that of Teubner’s. By submitting legal pluralism to autopoietic analysis, Teubner “treats even the ordering of ‘semi-autonomous social fields’ as being bounded by autonomous, self-contained discourses” which is “paradoxical”.[62] Furthermore, by treating global law as a self-contained system he denies interlegality and forces the law of the nation-state to the periphery; a position which it does not occupy.[63] Santos, by introducing the concept of interlegality, provides a framework for arguing for a conception of a global legal heterarchy; Teubner meanwhile tries to force closure of discourses and to push civil society as being the only source of law of any importance on the global level, which is patently not the case.[64] Santos’s view of interlegality recognises that state-made law and non-state global law are now no longer necessarily linked hierarchically, and that the most important aspect of legal pluralism is the mixture in the minds and actions of individuals of a plurality of legal orderings. At the present time, it is clear that state-made law is still the fundamental element of the mixture of legal spaces in our minds and actions. Santos states: “In a polycentric legal world the centrality of state law, though increasingly shaken, is still a decisive political factor. But above all it is reproduced by multiple mechanisms of acculturation and socialisation…Because people are permanently (even if inconsistently) socialised and acculturated in the types of scale, projection and symbolisation that are characteristic of the national state legal order, they refuse to recognise as legal those normative orders that use different scales, projections and symbolisations. They are beyond the minimum and maximum threshold of legal cognition”.[65] At least in the short term then, globalisation does not force us to accept a marginalisation of state-made law because cognitive perceptions of law are still very much grounded in nation-state forms of law. Whilst there is now a mixture of different legal scales in the minds and actions of individuals, the highest position in the mixture is still given to state-made by the individual as a result of the individual’s ‘acculturation’ in the nation-state scale of law. Even though the sovereign state has been decentred as a result of globalisation and its laws set in the context of a heterarchy of other forms of non-state legal orders as a consequence of legal pluralism on the global scale, there is nothing inherent in legal pluralism which can be said to place one form of law over another. Legal pluralism is the existence of more than one legal order in the same social space; it is a phenomenon rather than a process of marginalisation.[66] As Santos states, acculturation in state-made law ensures the continued importance of this form of law as globalisation continues.

State-made law, then, is not ‘marginalised’ by the process of globalisation. Its previous unshaken centrality has been negated by the decentring of the nation-state in the post-sovereign age, but it now occupies an important space in the legal heterarchy. Statist conceptions of law that afford the sovereign state the monopoly on law creation and treat the nation-state as a self-contained unit are made defunct by the process of globalisation, but denying that state-made law has or indeed can have any impact on the global scale as a result of global law’s autonomous and sealed social sources as Teubner does goes too far. As Santos argues, all of the legal scales apply their interpretive standpoints to the same social objects; none can be said to be marginalised as a result unless there is a cognitive recognition of marginalisation. Since this is plainly not the case with forms of state-made law then, even in this period of rapid globalisation, it cannot be said that state-made law has been marginalised. It remains to be seen whether Santos will succeed in instilling a new legal pluralistic common sense will be effective to achieve this shift in cognition away from state-made law.[67] In any case, as Twining notes, any such shift will not occur within the near future[68], so for now it seems that state-made law occupies an important and in no way marginalised position in the legal pluralistic global society created through the process of globalisation.

About the author

Chris Hobson is in his third year at King’s College London. His interests include jazz music, art history and poetry. Chris is also involved in KCL Pro Bono projects, which he enjoys very much.

The post Is globalisation forcing us to accept a marginalisation of state-made law? appeared first on ELSA Law Review.

The best answers to legal questions are those which involve the consistent application of law, rather than the making of ad hoc decisions. The consistent application of law depends on adherence to legal principle. Legal principle is derived from the sound classification of laws. First, this essay will consider two potential bases for the classification of trusts: one from statute, and one from underlying legal doctrine, selecting the one most likely to produce a principled taxonomy. Following this, both the two traditional categories of resulting trusts: ‘presumed’ and ‘automatic’ resulting trusts, and a controversial third category: ‘Quistclose’ trusts will be analysed, in order to place them into the wider context. Consideration of the results will enable us to see if they form a unitary category or are analytically distinct. Ultimately, this essay will argue that there is no unitary category, with presumed resulting trusts and Quistclose trusts being better classified as express trusts, and analytically distinct from automatic resulting trusts, which are non-express trusts, arising by operation of law on the basis of proprietary arithmetic.

The most obvious basis for classifying trusts is provided by statute. Section 53(2) of the Law of Property Act 1925 provides that ‘the creation…of resulting, implied or constructive trusts’ will not be affected by the formality requirements set out by s. 53(1) for, inter alia, the express creation of trusts of land. Thus it has a fourfold classification, entailing: express, resulting, implied, and constructive trusts, but is it a suitable one on which to analyse resulting trusts? Clearly, a unitary category of resulting trusts is continenced, but both its content and its relationship to the other categories of trusts, is not at all clear. Resulting trusts get their name from their form. They ‘result’ in the sense that the beneficiary of the trust is the settlor: the individual whose property was transferred to the trustee. This on its own could be fine, but some trusts which have such a form are accepted as and classified as express trusts, because they arise as a result of the settlor’s clear intention for them to do so. In fact, the courts only seem to accept two types of trust as being ‘resulting trusts’: presumed resulting trusts and automatic resulting trusts.¹ Why this is so, is unclear, at least from the accepted definition of ‘resulting’. All we can glean from said accepted definition is that these are trusts where the settlor is the beneficiary and where the reason why this is so is something other than the settlor’s express declaration of such a trust in his own favour. In other words, all it tells us is what these trusts are not, rather than what they are, and so, without more, it is impossible to say whether resulting trusts form a unitary category or are analytically distinct.

Consideration of the other categories mentioned by the act does not provide the required assistance. The category of express trusts is defined by its constituents’ reason for existence: they arise because of the settlor’s intention, rather than by their form, and so does not provide any definition assistance to its sister category. The category of implied trusts is almost, if not entirely, obsolete. The two common instances have been superseded by statute and reclassified as constructive trusts respectively² and as a result no useful definition of the category exists for us to use. The third category, that of constructive trusts, can loosely be defined as comprising of trusts which arise by operation of law. Like express trusts then, this category is defined in terms of ‘reason for existence’ rather than form, and so is again of no help in understanding the nature of resulting trusts. However, on a side note, it should be noted that in terms of definition, constructive trusts and express trusts appear to form a dichotomy of all trusts. Overall, it is clear that, when developed even a little, a system based on the statute provides an inadequate basis for classifying trusts. This is because the supplied categories lack consistent definition. Certain trusts could conceivably fit into more than one of the categories set out, which is confusing and tends to badly developed rules. An alternative basis is required.

The apparent dichotomy highlighted above may provide a more subtle basis for classification than s. 53. Distinguishing between trusts because of the reason why they arise avoids the coherence problems the statutory categories have, and will produce a more principled classification of trusts, which gives us a chance of understanding the true nature of resulting trusts. A classificatory system based on this idea could sensibly distinguish between those trusts which arise because of the settlor’s intention, and those which do not (and so which arise because of an operation of law). The reason for the operation of law is often varied and this springs to mind as a reasonable basis for a sub classification of non-express trusts. The answer to the question posed above can then be determined by considering where on such a scheme each type of resulting trust sits. If they arise for the same reason, they may form a unitary category of trusts, but if they do not it would be fair to conclude that the various types of resulting trusts are in fact analytically distinct. Presumed resulting trusts arise after a gratuitous transfer of property, and due to the operation of a presumption. Presumptions work as follows: proof, by evidence, of a certain fact, establishes, without the need of proof by further evidence, of a second fact.³ In the case of presumed resulting trusts, the first fact is the gratuitous transfer, and the second fact is the reason why the trust arises. The identity of this fact is therefore crucial. In the Westdeutsche case⁴, the House of Lords held that the second fact is that the transferor intended the transferee to hold the property on trust for him.⁵ A classification looking to the reasons why trusts arise would suggest we should classify these alongside express trusts, rather than separately, since in all cases the trusts arise in order to give effect to the settlor’s intentions.

The position taken by the Lords in Westdeutsche has much support. Swadling⁶ provides a detailed historical case law justification, which makes it quite clear that most of the courts, most of the time, held steadfastly to such a view. However, a small number of cases simply cannot be reconciled with this position. Ryall v Ryall⁷ is just such a case, and it has been seized on by those who take a view contrasting to Swadling’s. Because the majority of case law supports the intention to create a trust view, the alternative argument will be assessed in terms of whether it is compelling enough to ‘rebut’ the orthodox position.

The alternative argument has been advocated by both Birks and Chambers, who argue that the second fact is that the transferor did not, by the transfer, intend to benefit the transferee. This would mean that the trust arises not because of any intention to create a trust, but because of an operation of law, the reason for which is the reversal of the transferee’s unjust enrichment. On this basis, presumed resulting trusts would rightly be classified as non-express trusts, and sub classified as those which arise to reverse unjust enrichment.

In support of this, Chambers advances a line of argument we can label a ‘necessity’ argument, which contends that a presumption of an intention to create a trust is inconsistent with the law on certainty of intention to create a trust⁸, which is that a settlor’s intention much be ‘clearly…collected from the language used and the circumstances of the case’⁹ and not inferred, or presumed, from ‘indications’¹⁰ given by the parties, and so without changing the first fact for the second fact, the law would exist in conflict with itself. Swadling has demonstrated that this ‘necessity’ argument is flawed because it confuses questions of substance and procedure.¹¹ The rule in Re Schebsman is a rule of construction for words proved by evidence, when deciding if they amounted to a valid declaration of trust. In the case of presumed resulting trusts, the presumption is of an intention to create a trust. Such an intention is, by virtue of the successful operation of the presumption, a proven fact, which could not fail to give rise to a trust when subject to scrutiny for certainty. The claimants in Westdeutsche also argued in support of the Birks and Chambers’ interpretation, hoping for a proprietary remedy¹² to solve their predicament, because a change in the content of the second act would facilitate this. In this form, with its unashamed focus on its ‘downstream’ consequences, the argument met the wroth of the House of Lords in Westdeutsche. Lord Goff emphasised that in most such cases the parties are almost always commercial, and so should have taken account of the risk of the transferee’s insolvency, like all the transferee’s other creditors would have,¹³ and Lord Browne-Wilkinson condemned the idea on the basis that it introduce an unreasonable level of risk and confusion into commercial dealings.¹⁴ Taken together, these arguments concern both the technical legal or ‘upstream’ aspect and the practical or ‘downstream’ aspect of the Birks and Chambers’ argument, but expose both as problematic. On this basis there does not seem to compel and altering of the orthodox position, and so we can confidently support Swadling’s side of the debate. The ramifications for cases like Ryall are clear: they have seemingly been decided wrongly, and the ramifications for the classification of presumed resulting trusts (i.e. that they are to be classified along with express trusts) is obvious.

Automatic resulting trusts arise on the failure of express trusts. The label ‘automatic’ describes the fact that the trust arises immediately upon the failure of the previous trust, not why it arises, which is what we need to know in order to classify the trust. In Westdeutsche, Lord Browne-Wilkinson extended his intention based analysis to ‘automatic’ resulting trusts, asserting that they ‘[give] effect to…intention’, and are never imposed ‘by law against [a transferor’s intention]…(as in a constructive trust)’¹⁵ but rather exist to give effect to ‘presumed intention’.¹⁶ If this is correct, automatic resulting trusts should likewise be classified as express trusts, and would not be analytically distinct from presumed resulting trusts. Unfortunately, for two reasons, it is not. The trust is neither based on any sort of presumption of intention, nor is it never imposed against a transferee’s intention. The presumption point has been convincingly dismantled by both the Lords in Vandervell v IRC¹⁷ and Swadling¹⁸, but the imposition point requires further explanation. Vandervell appears to show that an automatic resulting trust can arise where there is a clear lack of intention to create a trust in one’s own favour¹⁹, but Lord Browne Wilkinson explained it as follows: the transferor could have intended to abandon any beneficial interest in the property, leaving it as bona vacantia, meaning no resulting trust would arise, but because he never expressed such an intention, he must be taken to have intended to retain an interest²⁰. However, this explanation is unconvincing. It is illogical to confine a transferor’s intentions to such a dichotomy. Vandervell shows that a transferor can have no intention either way, which will be so when they do not continence the potential failure of the first trust. Clearly intention has nothing to with it, and as a result, automatic resulting trusts must be classified as non-express trusts. The reason why the operation of law occurs must be determined in order to sub classify them.

There are two schools of thought over the reason for the non-express trust’s existence. In Vandervell, the Lords advanced the ‘proprietary arithmetic’ argument²¹, which employs the reasoning that anything a transferor does not dispose of, he necessarily retains²². On this basis, automatic resulting trusts should be classified as non-express trusts which arise because of his failure to dispose effectively of his asset. This argument is attacked on the basis that it is appears to grounded in the notion, contrary to authority, that before a transfer, the transferor has both a legal and an equitable interest in the property, the former of which he does effectively dispose of, and the latter of which he does not (because the first trust has failed), hence it is retained. In fact, when someone holds property outright, they have a legal beneficial title to it, and no equitable title exists²³. It arises for the first time on the creation of a trust, and hence it is meaningless to speak of it being retained, after the transfer, by the transferor. This appears to be fair grounds for criticism, but the logic is in fact superficial. The proprietary arithmetic argument does not doubt that the settlor doesn’t have a separate equitable interest pre-transfer. The real gist of the argument is that a proprietary interest entitles the holder, by virtue of being the very owner of the property, to determine how and when then the property will be disposed of, so that until they decide, they property remains with the holder. In other words, in principle, property remains with its holder unless and until it is effectively disposed of. The passing of the legal title to property suggests that there is an effective disposition, but the fact that the law immediately creates an equitable title in favour of the original holder, allowing them to recover the property, shows us that in fact, the disposition was not wholly effective. Because it is not, the owner is entitled, as he was before the failed disposal, to retain the property. This argument is cogent (as indeed is the concept of ‘proprietary inertia’²⁴) and provides it a credible reason why automatic resulting trusts arise.

The alternative reason is the prevention of unjust enrichment. The argument is that in the case of automatic resulting trusts, the facts show that the transferee was not meant to take the property beneficially, but only as a trustee, hence, a transfer accompanied with no intention to benefit the transferee, to that transferee, has taken place. It is because of this intention that the trust arises, because although legal title has passed, the transferee should not be unjustly enriched. This argument faces much sterner criticism than the superficial counters posed to the ‘proprietary arithmetic’ explanation. One argument, put forward by Gardner²⁵, highlights both technical legal and practical criticisms. It is argued that if there is unjust enrichment and therefore a resulting trust when a transferor transfers property to a transferee without an intention for them to benefit, then why is there no unjust enrichment and no resulting trust when a settlor transfers property to a trustee to hold to trust for a beneficiary, because here as before there is a transfer with no intention for them to benefit the recipient. No one advocating the unjust enrichment argument says this is unjust enrichment, but Gardner’s clever point is that they can’t say way. Until then, if they are ever able to at all, validation and adoption of the unjust enrichment argument would produce extraordinary and confounded (in the sense that two directly conflicting results would always be appropriate) and undesirable (in the sense that an indeterminate amount of transfers may fail, or be validated, seemingly with disregard to the intentions of the settlor, because they would at once both not intend to benefit the trustee and create a trust in favour of the beneficiary). On this basis, the ‘proprietary arithmetic’ argument stands out as a much more appealing and persuasive basis for why automatic resulting trusts arise. Based on both the conclusions made about automatic resulting trusts, in light of the system of classification we have chosen to use, it is plain that resulting trusts do not form a unitary category of trusts.

All that has been said necessarily shapes our analysis of Quistclose trusts, because, if there is no unitary category of resulting trusts, it seems they must fall on one side of the express/non-express line explained above. The term ‘Quistclose trust’ describes the trust which arises in favour of the transferor when money is lent on the condition that it is used only for a stipulated purpose, at least when such a disposal becomes impossible. When the money is correctly disposed of, something which the lender has an equitable right to enforce, the transferee becomes a debtor to the transferor for an equivalent sum. The technical form of this arrangement is still debated. In the Quistclose case, Lord Wilberforce advanced the classic two trusts explanation, but this is deeply problematic, and more recent Lords authority²⁶ has embraced the one trust approach put forward by Millett²⁷. On this approach, one trust exists throughout, with the beneficial interest always being vested in the lender, though the transferee has a power to apply that money for the stipulated purpose. This means that Quistclose trusts can at least be said to ‘result’ if nothing else, but what more is there? Both the two trust and one trust analyses seem to rest on the idea that the Quistclose trusts arises because of the settlor’s intention. In Quistclose, Lord Wilberforce emphasised that because the money was transferred only for the payment of shareholders, there was clearly no intention on behalf of the transferor for the money to become part of the transferee’s assets, and as a result, a correlative intention that it be held on trust must have existed, which was sufficient to give rise to the trust²⁸. Similarly, Millett states that the existence of the trust ‘depends upon [the transferor]’s intention, to be collected from the language used, the conduct of the parties, and the circumstances of the case’.²⁹ The result, on either of the analyses, is that Quistclose trusts would be suitably classified with other express trusts.

Unhelpfully, Lord Millett (as he became) subtlety changed his position in Twinsectra, providing in form the same explanation as he previously elaborated but grounded it in Chambers’ unjust enrichment analysis, meaning it could be considered a non-express trust. This is hard to accept. Not only does this change Lord Millett’s position to being in agreement with the view in the Carreras Rothmans case³⁰ that Quistclose trusts are constructive trusts (i.e. trusts arising by operation of law), which he had previously demonstrated as flawed³¹, but, as Penner points out³², despite Lord Millett’s rejection of splitting the category³³ into express and ‘constructive’ Quistclose trusts, Chambers’ analysis of resulting trusts demands just that, because, without it, it cannot cover Quistclose trusts which exist because of specific declaration of intent, because in such cases there is not merely an absence of an intention that the transferee should take the property beneficially, but there is a positive intention that it is held on trust for themselves. Furthermore, Lord Millett characterises the Quistclose trust as ‘a simple commercial arrangement akin…to a retention of title clause’³⁴. It is bizarre to characterise Quistclose trusts as such if they are not intentionally created by the parties. If this all this is correct, then, as explained above, we are correct to characterise Quistclose trusts as express, rather than non-express, trusts.

In conclusion, it is plain enough that there is no unitary category of resulting trusts. Those types of trusts we choose to categorise as ‘resulting trusts’ are analytically distinct, with presumed resulting trusts and Quistclose trusts being species of express trust, and automatic resulting trusts being non-express trusts. This result can be supported on the basis that the system of classification used as a principled one; at least to the extent that each category is defined in congruous terms, meaning it provides a coherent conception of the many different types of trusts which exist. This result obviously excludes an unjust enrichment based analysis of the law of resulting trusts, which addresses the fears of both Lord Goff and Lord Browne-Wilkinson in Westdeutsche³⁵, which are supported by a range of academics and appear to me also credible.

About the author 

Julius is currently in his 3rd year at Oxford University. He wrote this essay during his second year. Outside studying law, Julius spends most of his time talking about football, especially the Arsenal, with anyone who’ll listen: hopefully depressed Spurs fans, but if he’s not doing that, he’ll be watching test cricket, listening to the radio, or trying to sing.

Footnotes:

1. This is the terminology used by Megarry J in In re Vandervell’s Trusts (No. 2) [1973] 3 W.L.R. 744 at 762-763.

The post Do resulting trusts form a unitary category, or are there analytically distinct types of resulting trusts? appeared first on ELSA Law Review.

• An essay by Sarah Curry, First Year Jurisprudence
• Assessed by Professor Beatrice Krebs, Oxford University
• Mark Achieved: First Class (72%)
• Written in June 2011

Barker[i] deals with the area of causation in the tort of negligence. In this case, the House of Lords reconsidered its ruling in the earlier case Fairchild[ii] concerning the liability of multiple tortfeasors.

Like in Fairchild, the appellants (or their husbands) had contracted mesothelioma, a fatal illness, after having worked for a number of different employers, all of whom had negligently exposed them to asbestos. Unlike Fairchild, in addition to periods of exposure on the part of the employers including the defendant, in one case the deceased had also been self-employed for a period of time and had been exposed to asbestos dust during this period of self-employment. Mesothelioma is a non-progressive disease caused by a single exposure: it follows that the risk of contracting the disease increases depending on how often one is exposed. So it was impossible in this case to know which employer actually caused the disease, although all of them increased the risk of the disease occurring.

The question arose whether the solvent employers should pick up the proportion of the damage for which the insolvent employers were responsible. Or, should a tortfeasor or a claimant bear the risk of the other tortfeasors going insolvent? The outcome was a new concept of “proportionate liability”.[iii]

In coming to this conclusion, the House of Lords returned to the judgement of Fairchild and the standard rule for indivisible harm. Before this essay continues, we must briefly restate these principles.

The general approach to proving causation was affirmed by Lord Kissen in the case of McGhee[iv]: “the pursuer, in order to succeed, must also establish, on a balance of probabilities, that this fault on the part of the defenders caused or materially contributed to his injury.”

The appeals in Fairchild related to employees who had been exposed to asbestos dust by more than one employer in different periods of employment and had developed mesothelioma. The mechanism triggering the disease was unknown, and so while it could be proven that the risk of contracting the disease increases depending on how often one is exposed, it is impossible to prove which defendant caused the injury. The issue, then, was “whether a pursuer who could not show that the defendant’s breach had probably caused the damage of which he complained could none the less succeed.”[v]

It was confirmed that proof of material contribution to a risk of injury was not the same as proof of material contribution to the injury itself, particularly in the case of a non-progressive disease. But the House allowed, as a matter of law, that in certain circumstances proof of contribution to the risk will be sufficient evidence of causation. On these grounds, the general approach to proof of causation could be satisfied and all the employers were held jointly and severally liable for the damage.

Lord Bingham of Cornhill in Fairchild mentioned that “no argument was addressed to the House that […] there should be an apportionment of damages because the breaches of duty of a number of employers had contributed to cause the disease.” But there was no need for Lord Bingham to have mentioned it at all – the standard rule for apportionment was trite law. The courts were resolute in refusing to apportion indivisible damage[vi], and mesothelioma is such an indivisible disease. C McCaul[vii] looked at this issue further: “Apportionment of damage does not arise because there has been a breach of duty by a number of different defendants… It is necessary to look at the damage, not the breach, in order to see whether apportionment is appropriate. If the damage is indivisible, then it matters not how many defendants’ breaches of duty have caused it.”

But it is understandable why Lord Bingham may have considered such a course of action. The Fairchild decision enabled the claimant to sue any of his former employers, notwithstanding the fact that some of those employers may not have actually caused any harm. Moreover, it may only have been one which caused all the harm. As Baroness Hale of Richmond put it: “For the first time in our legal history, persons are made liable for damage even though they may not have caused it all.”

So when Barker came to the House of Lords four years later, it was faced with the two issues left unresolved by Fairchild: the limits of the exception, and the extent of the defendant’s liability. By this time, legal commentators had begun to show discontent with the current ‘all or nothing’ standard rule, urging that proportionate damages should be more readily available to secure compensation for claimants who would otherwise fail. Barker had to decide whether the Fairchild approach to proof of causation could apply where the disease had not necessarily been caused by a breach of duty but where it might have been caused by the actions of the claimant himself, and whether the damages awarded should be reduced to reflect the limited extent to which the defendant could be proven to be responsible for the damage suffered.

The appeals were allowed. The judges agreed that although liability was imposed on all the defendants, it should be divided according to the probability that they caused the harm; apportioning the damages would reflect this quantifying of liability.

This decision was notoriously controversial within the House: although the majority arrived at the same conclusion, they did so using significantly different arguments. There was no dispute that this case dealt with an indivisible injury; debate rather focused on whether the standard rule – that damages for indivisible injuries could not be apportioned – was applicable (thereby dismissing the appeals) on their individual interpretations of Fairchild.

Each of the judgements will now be looked at further in turn, and assigned into one of three categories. Judgements in the first category did not accept that Fairchild equated contribution to risk of causing injury with contribution to the actual injury. On this basis, the standard rule which does not apportion damages to indivisible injuries does not apply, so damages can be apportioned in this case. The second category, in contrast, holds that Fairchild did treat contribution to the risk of causing the injury the same as contributing to the actual injury, in which case the standard rule is invoked and damages cannot be apportioned. The final category of judgements do not rely on the interpretation of Fairchild to reach the conclusion that damages should be apportioned, but rather base their decision on other considerations including policy concerns.

1. Fairchild does not treat contribution to the risk of causing injury as contribution to the actual injury; the standard rule does not apply

Within this category is the judgement of Lord Hoffmann who holds that the House in Fairchild applied “an exceptional and less demanding test for the necessary causal link between the defendant’s conduct and the damage.” This was necessary since it could not be proved, on a balance of probability, that the defendant’s conduct did cause the damage in the sense that it would not otherwise have happened: scientific knowledge about the mechanism by which asbestos fibres cause mesothelioma did not enable any claimant who had been exposed to more than one significant source of asbestos to satisfy this test. Therefore, a new test was necessary. “The purpose of the Fairchild exception is to provide a cause of action against a defendant who has materially increased the risk that the claimant will suffer damage and may have caused that damage, but cannot be proved to have done so because it is impossible to show, on a balance of probability, that some other exposure to the same risk may not have caused it instead.”

He asserts that the House of Lords in Fairchild had not held that a breach of duty which materially increased the risk should be treated as if it had materially contributed to the disease. To do so would be to proceed upon a fallacy: “I would respectfully prefer not resort to legal fictions and to say that the House treated a material increase in risk as sufficient in the circumstances to satisfy the causal requirements for liability.”

Lord Hoffmann argued that there is a material distinction between them: contribution to injury was not divisible, but contribution to the risk of injury was. “Different people can be separately responsible to a greater or lesser degree for the chances of an event happening.” He compared the situation to a raffle: “a person who buys a whole book of tickets in a raffle has a separate and larger chance of winning the prize than a person who has bought a single ticket.” On these grounds, liability can be quantified according to the relative degree of contribution to the chance of disease being contracted. He defended this conclusion: “Characterising the damage as the risk of contracting mesothelioma would be in accordance with the basis upon which liability is imposed and would not be inconsistent with the concept of damage in the law of torts.”

In light of this, he turned to the issue of apportionment and reflected on the judgement of Moses J in the first instance. Moses J dealt with the point quite shortly. He said that mesothelioma was an indivisible injury, and so subject to the standard rule that all defendants will be held jointly and severally liable for the full extent of the damage. In looking further into the foundations of this decision, Lord Hoffmann highlighted that Moses J had based his argument on the judgement of Devlin LJ in Dingle[viii] who stated: “where injury has been done to the plaintiff and the injury is indivisible, any tortfeasor whose act has been a proximate cause of the injury must compensate for the whole of it… He can obtain judgment for total compensation from anyone whose act has been a cause of his injury.” Lord Hoffmann points out that the Dingle case was concerned with contribution to harm, whereas the present case is concerned with contribution to the risk of harm. Therefore, Moses J’s argument is flawed.

He then turned to consider the effect of divisible liability on damages, concluding that “it will then be possible to determine the share of the damage which should be attributable to him.” Lord Hoffmann acknowledged the policy concerns that surround such a decision, but held that fairness supported his conclusion to allow the appeals: “In my opinion, the attribution of liability according to the relative degree of contribution to the chance of the disease being contracted would smooth the roughness of the justice which a rule of joint and several liability creates. The defendant was a wrongdoer, it is true, and should not be allowed to escape liability altogether, but he should not be liable for more than the damage which he caused and, since this is a case in which science can deal only in probabilities, the law should accept that position and attribute liability according to probabilities.”

The judgement delivered by Lord Scott of Foscote also falls within this category. Agreeing with Lord Hoffmann, he held that the principle in Fairchild was not based upon a ‘fiction’, but was instead “the joint and several liability of tortfeasors is based upon a finding that the breach of duty of each has been a cause of the indivisible damage for which redress is sought.” Therefore, his judgement differs slightly in the sense that he concluded contribution to the risk of injury cannot be treated as contribution to the injury since the former can be proven, whereas the latter cannot be.

From this point, his argument aligns with Lord Hoffmann’s, as Lord Scott concludes that liability for contribution to the risk can be quantified, and therefore should be reflected in damages. “Each defendant would be responsible only for his proportion of the total damages that would have been awarded if the whole period of exposure had occurred during the claimant’s employment by a single defendant.” On these grounds, he would also allow the appeals.

It may be worth noting Lord Scott’s remark to any future development of his idea. He urged that it should not extend to cover multi-agent cases as well, since “identification of the proportion of risk of the eventual outcome attributable to each particular agent would, to my mind, be well nigh impossible and highly artificial.” Whereas in the present case “it is known that asbestos was responsible for the eventual outcome and that the negligent defendants are to be held liable for subjecting the victim to a risk that has materialised.”

2. Fairchild treats contribution to the risk of causing injury as contribution to the actual injury; the standard rule does applies

This view was put forward by Lord Rodger, dissenting, who would not have allowed the appeals. His interpretation of Fairchild was in line with Lord Bingham of Cornhill in that case who said “in the circumstances no distinction was to be drawn between making a material contribution to causing the disease and materially increasing the risk of the pursuer contracting it”. On these grounds, Lord Rodger disagreed with arguments put forward by the other judges: “It respectfully appears to me to be impossible to say that in Fairchild the majority of the House decided the case simply on the basis that the creation of a material risk of mesothelioma “would suffice” for liability. That is to ignore the further stage in the reasoning-derived fair and square from the reasoning of the majority in McGhee — that in cases of this kind there is, in Lord Bingham’s words “no distinction” between making a material contribution to causing the disease and materially increasing the risk of the victim contracting it.”

Furthermore, he argued that the new analysis which the House is adopting will tend to maximise the inconsistencies in the law “by turning the Fairchild exception into an enclave where a number of rules apply which have been rejected for use elsewhere in the law of personal injuries. Inside the enclave victims recover damages for suffering the increased risk of developing mesothelioma while, just outside, patients cannot recover damages for suffering the increased risk of an unfavourable outcome to medical treatment.” He claimed that the reason for such interpretation was “to open the way to making each defendant severally liable for a share of the damages.” On the contrary, Lord Rodger asserts that the defendants are to be “held liable in solidum like any other concurrent tortfeasors whose separate wrongful acts combine to produce indivisible harm”.

Lord Rodger does not ignore the obvious arguments of fairness and justice that his position throws up: “it may seem hard if a defendant is held liable in solidum even though all that can be shown is that he made a material contribution to the risk that the victim would develop mesothelioma… A defendant is held liable in solidum even though all that can be shown is that he made a material, say 5%, contribution to the claimant’s indivisible injury. That is a form of rough justice.” Even so, he claims that the law prefers “as a matter of policy, to place the risk of the insolvency of a wrongdoer or his insurer on the other wrongdoers and their insurers.”

On these grounds, he dismissed the appeals.

3. Departure from the standard rule

Lord Walker of Gestingthorpe allowed the appeals but, unlike the judgements in the first two categories, his reasoning did not stem from Fairchild; his main focus was policy considerations.

He argued that using the Fairchild principle to treat contribution to the risk of harm as contribution to harm itself was unfair on the defendant: “A rule of law by which exposure to risk of injury is equated with legal responsibility for that injury entails the possibility that an employer may be held liable for an injury which was not in fact caused by that exposure.” Apportioning damages would reduce the injustice of this situation. “This possible unfairness cannot be eliminated, as the House recognised in Fairchild, but it is considerably reduced if each employer’s liability is limited in proportion to the fraction of the total exposure for which each is responsible.”

Lord Walker did not completely ignore the standard rule, rather he felt justified in departing from it. He pointed out that Devlin LJ described unlimited concurrent liability for indivisible damage as a fundamental principle; but he also emphasised that whether the damage is indivisible is a question of fact, not law.[ix] The rule was not rigid – it offered a degree of flexibility where circumstances called for it.

Lord Walker referred to previous ‘borderline’ cases before submitting that Barker was sufficiently different from all of these to justify departure from the rule: “there may be borderline cases of indivisibility of damage, but I do not think that your Lordships can avoid the problem by treating mesothelioma itself as a borderline case… The solution to the problem is in my opinion more radical.”

Furthermore, if Barker is to be treating as an outstanding case, it does not need to be reconciled with Wilsher. In doing so, Lord Walker seems to have struck a balance between allowing the appeals and not upsetting case law.

The final judgement, delivered by Baroness Hale of Richmond, also falls within this final category[x]. She agreed with the majority in allowing the appeals, and in particular with Lord Walker so far as policy is concerned, but she presented a unique argument of her own.

Baroness Hale analysed further the standard rule that liability for indivisible injury cannot be quantified. She revealed a “logical connection between the law’s approach to causation and the law’s approach to the extent of liability”, asserting that the principle has always been closely linked to the common law’s approach to causation. Therefore, where the approach to causation develops, the rule should also be modified, and the issue of whether there may exist a sensible basis for apportionment may change too. Baroness Hale concluded that since Barker employed a new test for causation, so there should be a new rule on damages.

Of course, she admits that this is a policy question and a lot rests on whether this would strike the right balance of fairness between claimant and defendant. While the defendants are in breach of their duties towards the claimants, they may not have caused any harm at all. Baroness Hale concluded that “it seems to me most fair that the contribution they should make is in proportion to the contribution they have made to the risk of that harm occurring.”

She supports her argument by distinguishing the present case from Fairchild where all the defendants were in breach of duty and all should be liable, whereas in Barker, the appellant’s period of self-employment represents a non-tortious cause. The ‘all or nothing’ standard rule would not be appropriate in this case. The only reasonable conclusion is for the tortious defendants to be liable in proportion to their own contribution. The victim’s own behaviour is only relevant if he fails to take reasonable care for his own safety during a period of tortious exposure by a defendant.

The first and final categories hold the majority opinion allowing the appeals, but the judgements of Lord Hoffmann and Lord Scott very much depended upon their interpretation of Fairchild. Peculiarly, Lord Rodger’s dissenting speech was also based upon the principle of Fairchild. The rest of the judgments considered policy concerns to come to their conclusion, but that is not to say the other judges did not pay any regards to them either; all of the judgments referred to the fairness of their decision. It appears, then, that to understand the judgements, one must come to his own conclusion about what is said in Fairchild. The judgements have presented two interpretations: the first category claims it employed a new test, arguing that the House did not intend for contribution to risk of harm to be treated as contribution to the injury itself. This was submitted on the grounds that there is a material distinction between them: firstly, contribution to harm is indivisible, whereas contribution to risk is not (Lord Hoffmann), and secondly, a source cannot prove it has contributed to this type of injury, whereas it can be proven that a source contributed to the risk of injury (Lord Scott). In contrast, Lord Rodger argued this is exactly what Fairchild did and that since contribution to harm cannot be divisible in this case, neither can contribution to risk of harm if they are to be treated equally. Therefore, the standard rule would apply, effectively, that liability cannot be quantified so damages cannot be apportioned.

It appears that, theoretically, the correct interpretation is that of the Lord Rodger in the second category. Fairchild was decided in light of McGhee which allowed the plaintiffs to prove ‘material contribution to the risk of harm’ to prove causation. In that case, as followed by Fairchild, the House accepted proof of this as proof of contribution to the harm, thereby holding all employers jointly and severally liable.

However, while the test may be correct, the conclusion it leads to (dismissing the appeals) cannot be justified in this case. Therefore, it seems that the judgements in the third category adopt the right approach – to decide the case on principles of policy. Baroness Hale was able to arrive at the majority conclusion, without misconstruing the Fairchild principle, but instead by reassessing the role of the standard rule that damages cannot be apportioned for indivisible injuries. Since it was closely linked to causation, it should be modified when the test for causation does; this way is both fairer on the defendant and claimant. Lord Walker, whose judgment is also within this category, allows the appeals on the similar grounds that this case is significantly different from others and presents a new dilemma facing the standard rule. He highlights that the rule was never rigid, and this case warrants departure from it.

One must agree with the majority outcome, but for the reasons under the third category. The question remains, however:  was it for the judges to make such a decision? Some critics have argued that this was out of their jurisdiction and a matter better left to Parliament. Indeed, after the decision in Barker there was fierce political backlash and a demand for the reversal of the ruling on the basis that it would undermine full compensation for working people and their families. Soon enough the Compensation Act 2006 was introduced, specifically to reverse the ruling. It was applied in the case of Sienkiewicz[xi] were a claimant had been exposed to asbestos dust from one employer who had been in breach of duty, and from the general atmosphere. Smith LJ judging this case held that there was no need to consider the common law principle at work in Barker, given the terms of sections 3(1)(d). This would suggest that the topic was one better left to Parliament, but it cannot be denied that their conclusion in Barker was fair and just.

About the author

Sarah Curry wrote this essay while in the first year of her law degree at Oxford University. She is currently a second year

The post Barker – a critical assessment appeared first on ELSA Law Review.

‘The decision of the Court of Appeal in James v London Borough of Greenwich finally resolved the legal status of temporary agency workers to the benefit of both the private recruitment industry and individuals who value flexibility in their working arrangements.’   Critically assess this statement.

For many years now, due to poor statutory guidance on the issue, the Courts have been involved in determining the employment status of individuals. This status is important as the various benefits such as greater employment protection under statute, tax breaks and social security entitlement and a much greater duty of care from employers, are reserved solely for ‘employees’ and not to ‘workers’ or to the ‘self employed’.  As temporary agency work in this country has increased in recent years, the courts have increasingly found themselves settling contentious employment disputes as to which status these workers belong to. After years of conflicting case law, the case of James[i] has been sighted by many as important in finally resolving this question of status by clearly setting the boundaries essential for an employment contract to exist. However, it remains to be seen whether this case provides the courts with the necessary guidance needed to resolve all the cases that come before them, many of which turn on a range of complex facts.

The shift in employment market, whereby jobs that ‘used to be thought of as ‘atypical’…actually became quite typical’[ii], has triggered many inconsistencies with the law with regards to employment status. The ‘employment rights limbo’[iii] that many people have now found themselves in ‘has rendered the courts perplexed and tentative about how to conceptualize their working relationships…resulting in inconsistent judgements that have not offered firm protection to temporary agency workers’[iv].

At first, prior to the judgement in James, the courts looked for evidence of a ‘mutuality of obligation’ between worker and agency[v]. This was considered at the outset of every case and resulted in the unsatisfactory view that the worker had a sui generis contract[vi]. If it could be subsequently shown that there was an ongoing fulfilment of the agency’s obligation to find workers assignments, then it was held that the individual was an employee of the agency. However, a recent shift has seen the courts applying the ‘control test’ to establish whether a contract of employment existed. ‘After the Court of Appeal’s ruling in Montgomery v Johnson Underwood Ltd[vii] in 2001 that the absence of control over a temp’s work precluded an agency from being her employer, the quest to have the courts recognize a contract of employment in the agency/temp relationship cooled’[viii].

As a result, it is more likely that a worker will seek to show that they are employed by the end- user client. Until the case of Motorola Ltd v Davidson[ix], the courts were reluctant to find that there was a contract of employment with the client company, especially as many of terms and conditions that a worker agrees to are from the agency, particularly those which specifically point out that the temp is not an employee of the client[x]. However, the landmark EAT case of Motorola held that where the client had such control over the temp’s training, undertaking of work, arrangement of absences and holidays and grievances procedure, then it had ‘in practical terms much the same or even a greater degree of control over the worker than it would have had over a full-time “orthodox” employee’[xi]. It was enough that although there was no legal right control, there was practical control. Following on from this, in Franks v Reuters[xii], it was said that the everyday working relationship between temp and client brought about an implicit working contract. The case of Dacas[xiii] firmly held that there could be an implied contract of employment between the client or end-user and the worker, particularly when the individual had worked for the end-user over the course of a number of years. It showed the courts ruling that tribunals should actively look for implied contracts when establishing the status of agency temps during appeals. Furthermore, the Court of Appeal’s decision in Cable and Wireless plc v Muscat[xiv] held that even when there is an explicit contract between the agency and temp, the Court may still imply a contract between the temp and the client. However, after this period of relative certainty and stability, the case of James contradicted this case law.

The facts of James concerned an agency worker, Mrs James, who was supplied to the London borough of Greenwich. Ms James worked for the Council consistently for a period of three years until she was replaced when she took some time off due to illness. Mrs James tried to claim unfair dismissal but both the tribunal and the EAT held that she had not been the council’s employee at all. The tribunal decided that there was no mutuality of obligations between Mrs James and the Council: she was not obliged to work for the Council and they were not obliged to accept her services. In the EAT hearing, Elias J held that the mere passage of time itself does not create employment status. This went against the principle in Dacas. Elias J applied a rigid necessity test for implying a contract between temp and end-user. He adopted the traditional common law test for implication of contract as upheld in The Aramis[xv]. This approach looks at the actual contractual arrangements between the parties rather than the general de facto circumstances of the working relationship between the parties, which had been applied in Dacas. The Court of Appeal expressly approved the guidance of the EAT. Since Mrs James had only signed a ‘Temporary Worker Agreement’ with the agency, and the agency and the Council entered an agreement with each other underlining the agency’s responsibility for James’ remuneration, no contract of employment with the client could be implied. Mummery LJ held that a contract of employment could not be implied just because of passage of time, thereby completely going against what he had previously ruled in Dacas. It was held, in line 45, that the ‘mutuality of obligations’ approach was inappropriate in this case. ‘The mutuality point is important in deciding whether a contract, which has been concluded between the parties, is a contract of employment or some other kind of contract. In this case, on the findings of fact by the tribunal about the arrangements, how they operated in practice, about the work done by Mrs James and the conduct of the Council, there was no contract at all…there was no express contract and there were insufficient grounds for requiring the implication of a contract’. The other judges on the panel, Thomas LJ and Lloyd LJ both agreed with this judgement.

For many observers, this judgement went against the precedent offered in similar cases leading up to James. However, Mummery LJ was at pains to declare that the facts of each individual case would determine the outcome. In subsequent cases, the same conclusion reached in James was followed. In the EAT case of Craigie v London Borough of Haringey[xvi], the judges expressly agreed with the judgement of James. In Heatherwood and Wrexham Park Hospitals NHS Trust v Kulubowila[xvii], the use of the strict test of necessity in The Aramis as formulated in James was used to dismiss the claim that if Claimant looked like an employee of the Trust, acted like an employee and was treated like one, this should mean that he is therefore an employee. The fact that the Claimant was rejected by the Trust when she applied for a permanent post was wholly inconsistent with an inferred intention by the Trust to contract with him. In Astbury v Gist Ltd[xviii], a similar judgement was reached. The idea of the ‘necessity’ to imply a contract as set out in James was reiterated in both RSA v Evans[xix] and East Living v Sridhar[xx].

So are we to now assume that James has clearly set out the correct legal status for temporary agency workers? Or, will another case come along causing upheaval and disruption to this unclear area of law once again? In the interim it appears that the precedent set by James is being followed. Some commentators have speculated about ‘the end of the road for the Implied Contract’[xxi]. If this is the case then it’s a welcome development for both private recruitment agencies of temporary workers and end- user clients who avail of their workers. End-user clients can continue to increase or decrease their workforce depending on supply and demand within their business, without any fear of any legal obligation to the workers. They are not obliged to give a notice period and indeed many end- user clients will take the conscientious approach of making sure that they are not treating temp workers like actual employees of the company out of a fear that the court may imply an employment contract based on the fact that the worker looks and acts like a regular employee.

For the temporary agency workers themselves however, the apparent resolution of the court’s stance on their legal status as employees signals the end of the possibility that they might be granted the same benefits and protection that is standard for employees. Although some will say that James finally brought long awaited and much needed clarity to the uncertainty regarding the legal status of temporary workers, this will hardly be much consolation to those who work in these unstable and indefinite positions. The fact that there are no express statutory provisions protecting temps from adverse treatment at work is especially of concern when we look at the type of people who make up the majority of temps. Evidence from across the European Union suggests that temporary agency staff tend to be much younger workers with a lower educational achievement and consequently mixed chances of moving on to permanent employment. Only a minority have positively chosen temporary and agency work over a permanent job[xxii]. The TUC highlights how in most other E.U. states the agency worker is an employee of the agency and enjoys much if not all the same protections and rights as any other employee. However, as this essay has explored, this is not the case in the UK. Neither does the UK have robust licensing conditions which agencies in most other countries are subject to. Indeed up until 2006, no agency in the UK was required to have a licence. Given that free movement of workers is a central tenet of the European Union, this appears to be a negligent omission. The expansion of the European Union in 2004 and the Directive on Services in 2005 led to an increase in the number of immigrants arriving on British shores. The archetypical Polish plumber became a symbol for cheap labour coming in from central Europe. Immigrants were able to fill gaps in areas of the economy where there were skills shortages, mainly in the construction and manufacturing sectors. However, without adequate statutory legislation, abuses of power, were, and to this day are, still common. In a direct response to the 2004 Morecambe Bay cockling disaster where 21 Chinese cockle pickers died after drowning due to insufficient health and safety guidance and equipment, Parliament enacted the Gangmasters (Licensing) Act 2004 which required agencies in the agricultural, shellfish and food packing sectors to be licensed. The LRD also exposed what was ‘bogus’ self-employment in the construction industry. Immigrants were directed by employers to sign contracts explicitly stating that they were self- employed free agents[xxiii], even though the conduct of their work life suggested anything but[xxiv].  In an even more worrying article[xxv], The Guardian looked at the Equality and Human Rights Commission (EHRC)’s inquiry[xxvi] into the meat processing sector in England. The 15- month inquiry found that; a fifth of workers interviewed reported physical abuse, a third of workers said they experienced, or witnessed abuse, which was “bullying, humiliating and abusive”, and a quarter of workers mentioned poor treatment of pregnant workers and women attributed miscarriages to conditions. ‘Despite finding the workplace distressing and degrading, nearly one- third of workers endured this treatment without complaint because of fears that their work would be terminated and their chances of securing stable, permanent employment harmed’. As the article points out, the report ‘could be describing conditions in developing countries. But the inquiry…focuses on employees in the UK’. Consequently, it is impossible to say that the seemingly resolved question of legal status of agency workers thanks to James, has benefitted the agency workers themselves. Instead, the decision in the case has set the hurdle for agency workers to jump in order to gain employee status, and thus protection from the type of treatment discussed in the EHRC inquiry, even higher.

It is clear that Parliament intervention is essential. In both Dacas and James, Mummery LJ elucidated how the principles of contract are flexible but not infinite and that legislation would be necessary where it failed to deliver[xxvii]. He warned against ‘unrealistic expectations about what the courts and tribunals can legitimately do. Through their decisions adjudicating on legal disputes courts and tribunals are builders in the law. They are not architects of economic and social policy. As they must operate within the legal architecture created by others, they cannot confer the right not to be unfairly dismissed on a worker who is without a contract of employment’[xxviii]. Although the courts are currently holding firm to the decision in James, it is unclear if such steadfast adherence will continue. A reversal of thinking such as was evidenced after Dacas and Cable and Wireless cannot, unfortunately, be ruled out. Those working in the temporary agency industry called upon the same ‘equal treatment’ afforded by many of their European counterparts. Their prayers seemed to have been answered in 2008 after several unsuccessful suggestions for new bills, when the EU proposals of its Temporary and Agency Workers Directive[xxix] were finally agreed by all member states. The UK was one of the last countries to agree to the directive, and appears to be waiting until it eventually has to implement the directive on 5 December 2011. Its apparent reluctance is perhaps a sign of its desire to keep hold of a flexible labour market in the interests of a competitive economy and of full employment, especially as it tries to recover from the recession. The main effect of the directive is that it gives full employment rights to agency workers after 12 weeks. Rather worryingly, the law firm Eversheds have warned that the current coalition Government is looking at ways to water down parts of the new regulations[xxx]. Prime Minister Cameron’s silence on the issue when questioned by his Labour party counterpart, Ed Milliband, has only heightened expectation that the government will attempt to look again at who should be covered, with the obvious aim of restricting its scope. Only time will tell how temporary agency workers will be affected by the implementation of this directive however. Nevertheless, it would finally be the beginning of government acknowledgement and legislation of the modern labour market, giving it a much- needed clarity, benefitting agencies, end-user clients, and especially temporary agency workers themselves.

About the author

Patrick is currently in his third year at Manchester University.

Bibliography

Books:

• Regulating Flexible Work by Deirdre McCann. Oxford University Press, 2008
• Employment Law, 7^th Edition by Gwyneth Pitt. Sweet & Maxwell, 2009
• Smith & Wood’s Employment Law, 10^th Edition by Ian Smith and Aaron Baker, Oxford University Press, 2010

Websites:

• www.fairtoagencyworkers.org
• www.guardian.co.uk
• www.lexisnexis.co.uk
• www.tibunemagazine.co.uk
• www.westlaw.co.uk

Journals

• Protecting Agency Workers: Implied Contract or Legislation? By Edward Brown. Industrial Law Journal 2008 37 (178), 1 June 2008
• Agency Workers – Where Now? By Edward Kemp. 12 King’s Bench Walk. ELA Briefing, June 2007
• “Temp” to “Employee” by Nicola O’ Neill. Industrial Law Journal 32 CSR 1, 1. 30 April 2008
• A Case of Status, by Kate Upcraft. Payroll & Human Resources,     Febuary 2008, 35
• Agency workers- the background by the Labour Research Department, 30/01/09
• The EU Temp Trade: Temporary Agency Work across the European Union by the Trades Union Congress, 17 June 2005

The post James v London Borough of Greenwich – a critical assessment appeared first on ELSA Law Review.

The root of the question concerns the way patents are enforced, whether they are enforced and applied for to protect legal rights, or whether they are used more like a legal instrument of business competition. A perception that patents are not in fact operating mainly to protect legal rights may come from a lack of clarity as to the primary function of patent law, that is, why the law allows a person or business privileged rights on a product they have created.

There is still plenty of academic comment debating whether or not a patent system should exist at all.

Andrew Griffiths suggests that:

…the patent system is seen as justifiable because it strikes a balance between the private interests of inventors and those who invest in inventive activity on the one hand and the wider interests of society as a whole in the exploitation of the invention and the knowledge embodied in it on the other.[1]

Edmund Kitch noted an economic review which basically said the only reason the patent system should be retained was because it had already been in existence for a long period, adding that had this not been the case, instituting one would be ‘irresponsible’.[2]

Vandana Shiva goes further, commenting that patents are ‘…built on the fiction of totally individualistic scientific innovation. There is then an intrinsic conflict built into the granting of patents as private rights…and the view of knowledge as a collective endeavour.’[3] Keeping in mind that patents function in an international context, lack of unity in its function and use is likely to affect the manner in which it functions.

Another conflict can be seen in the fact that while of course patents are protected under law, they will typically be enforced by a business, only when it is financially expedient. Further, whenever a patent case reaches court, the claimant patentee will almost invariably risk losing its patent as the defendant will vigorously argue that the patent is invalid for some reason anyway.

A case in point would be Hallen Co v Brabantia,[4] where the upshot of an attempt by the claimant to enforce their patent was its revocation on the grounds of obviousness. In this way, section 72 of the Patents Act 1977 means there is an inherent risk in enforcing one’s patent. The poker analogy becomes apt here because a business is encouraged to hesitate in enforcing their legal rights for fear of losing their patent entirely.

This would suggest the registering authorities are not performing particularly well in filtering out ineligible claims. If the UK and European Patent Offices are applying the rules in a more lenient manner than the courts, who themselves vary across jurisdictions it risks a situation where patentees cannot be confident in the strength of their granted patent.

Christopher Heath informs us of the risks involved in even warning an infringer that they may be encroaching on a patent: ‘In the UK, threats open the possibility of not only suing the patentee for non-infringement, but also the lawyer who sent the warning letter, making the practice of sending warning letters more risky than elsewhere.’[5] In Reckitt Benckiser v Home Pairfum[6], albeit in a trade mark case, the High Court repelled the defendants’ attempt to drag the claimant solicitor into proceedings by including him in a counterclaim, suggesting: ‘…on balance, it is likely that the major or only real purpose of the attempted joinder of Laytons is …to make Laytons and their relationship with the claimant uncomfortable. The latter is an illegitimate purpose of the counterclaim.’[7] Although in this instance the attempt was unsuccessful, it shows that there is the possibility of tactical or spiteful retaliation.

In Improver Corp v Remington Consumer Products[8], the claimant’s epilator patent, was deemed not infringed in the UK and in Hong Kong, but was infringed on the exact same facts in Germany. So we have a situation where a prospective claimant has to decide whether they have confidence in the decision of the office that allowed them the patent, as well as perhaps which jurisdiction to bring the case in. Any solicitor also has to be aware of the risk of being dragged in to a counterclaim, should the patentee seek to warn first. This is rather a lot of considerations for the patent holder to think of before raising a case or not. If this is a game of poker, it is a particularly complex one.

Conversely, it in also be debated whether in some cases enforcement of a patent is used over aggressively, either as a way of threatening or unsettling competitors, or as a way of seeking to protect a line of research before another undertaking perhaps finds the answer first.

Novartis AG v Johnson and Johnson[9] contains a rather strong rebuke from Lord Justice Jacob toward the claimant for their patent, deemed insufficient due to: ‘Its avaricious ambit coupled with its failure to provide any help makes it nothing but a hazard to those conducting research into extended wear contact lenses.’[10], in addition noting that: ‘In substance the claim amounts to this: if you try any pair of polymers, to see if they work (perhaps only after surface treatment) and find anything that does, we claim it…’[11] This coupled with Jacob LJ’s concern that parallel proceedings in France, Germany and the Netherlands may not have picked up on this, indicates that there is (at least in England), an awareness of the danger.

Matthew Fisher does however in a case comment, draw attention to the fact that:

Jacob LJ considered that the Dutch, German and French courts, as well as the Technical Board of Appeal of the EPO, had all made one fatal error… they all assumed that the examples given in the patent did, in fact, work; however, this was not actually the case. Consequently, each failed to notice ‘just how devoid of meaningful limitations claim 1 is’.[12]

Lack of uniformity in applying what are invariably supranational patent principles certainly adds a worrying ‘pick your nation’ dimension to the poker game. Insufficient patents are a particular issue in the field of biotechnology, where patentees will often seek to gain a patent as early as possible and in as wide a field as they can get away with.

An example would be Biogen v Medeva[13], where the claimants sought to use an earlier patent as support for a later patented invention on which they sought to claim. Lord Hoffmann stated that ‘…care is needed not to stifle further research and healthy competition by allowing the first person who has found a way of achieving an obviously desirable goal to monopolise every other way of doing so.’[14]

Rather inevitably since the intellectual property landscape is often populated by large multinational businesses, the desire to protect legal rights seems to have been overridden by business and competition consideration considerations. The broad patents which are one of the symptoms of this appear to be assisted by the leniency of the European Patent Office (EPO), as compared to the national courts.

Jobst Wibbelmann comments: ‘…a patent office that views its applicants as customers is prone to place an improper emphasis on the creation of incentives for prospective patentees. By and large, one may question the neutrality of such an office when it comes to an opposition.’[15], referring to the EPO’s tendency to allow the kind of wide patents which were so disdainfully revoked in such cases as Novartis. Wibbelmann concludes that the EPO: ‘…seems to have been carried away by its efforts in favour of patentees. It is to be hoped that the EPO will return to dealing with fundamental requirements of patent examination.’[16]

It is suggested that if the EPO were even nearly as rigorous as national courts are in examining the validity of patents, the lack of uniformity in European patent law could be reduced, and perhaps more importantly, a patent holder could be more confident in the validity of their patent, meaning that the choice to seek enforcement may be much more efficiently made.

Christopher Heath begins his article by stating ‘Enforcement…is not an end in itself, but is meant to serve the general purposes of intellectual property laws and is justified only to that extent.’[17] Looking at the current state of the US market, specifically the smartphone market is a prime example of competition considerations in the enforcement of patent law. Apple currently has a patent action against Samsung[18], while defending a counter action from Samsung[19], in addition to a set of patent actions from Nokia[20] and Kodak.[21]

The fact that these actions principally concern technologies universal to all the major smartphone manufacturers (e.g touchscreens) indicates the actions are being brought more to inconvenience rivals in a particularly aggressive market than to protect genuine patent rights.

Another dimension arises from the obviousness and novelty rules, which among other things prevent information in the public domain from being patented.[22] However, if the inventors themselves release the information, despite this being partially addressed in section 2(4) of the Patents Act 1977, they still risk the situation in Bristol Meyers Sqibb v Baker Norton Pharmaceuticals[23], where the patentees were in effect punished for not telling the Patent Office first, by having their patent revoked for lack of novelty alongside the fact it was deemed as a medical treatment.

So even though, as Viscount Dunedin put it: ‘…a patent represents a quid pro quo. The quid to the patentee is the monopoly; the quo is that he presents to the public the knowledge which they have not got’,[24] this apparently only applies if the public is told through the Patent Office rather than through a lecture as was the case in Bristol, encouraging that information to be kept close to the chest, and it is suggested, encouraging experimental leads to be withheld for fear of killing the novelty of a research strand.

It unfortunately is inevitable in a population of businesses that various tactical and poker style maneovures are made upon the patent law landscape which have only a tenuous connection to legal rights; however, many of these maneovures could be reduced in frequency if there was more uniform application of the guidelines, particularly between the EPO and national courts, and if some of the conflicts between the law and inevitable business behaviour were confronted. It should be noted however that the courts clearly play a valuable role in repelling some of the more extreme plays made by patentees.

A bit about the author …

Jemille wrote this essay while in his third year at Kingston University. He is now on an Erasmus year, at Lund University, Sweden. Next semester he will move to the Hanze Groningen University in The Netherlands. After Erasmus, Jemille hopes to start the LPC.

Jemille enjoys badminton and cricket and likes to keep updated on current and foreign affairs.  Ideally, once qualified, Jemille would like the opportunity to work abroad.

Achievements

• winner of the in-house mooting competition at Kingston University twice out of three years (1st and 3rd),
• 2nd place runner up in the other (2nd) year
• winner of Course Representative of the Year for the Law Faculty in 2011, having made many efforts to make the reps an effective voice (e.g by arranging meetings outside of the designated consultancy periods to discuss specific issues, and using a facebook page to feedback to the student body).

Favourite Quote

Before you embark on a journey of revenge, dig two graves. Confucius

The post Patent Enforcement: Defence of innovation or industrial poker? appeared first on ELSA Law Review.

On 27 July the Supreme Court of England and Wales handed down a judgement determining two important issues of intellectual property law. The first was to clarify definition of “sculpture” in the Copyright, Designs and Patents Act 1988. The second was to overturn the Court of Appeal’s decision in ruling that claims based on infringements of US copyright taking place in the USA are justiciable in the courts of England where the court has personal jurisdiction over the defendant. This is a significant ruling which categorically confirms that claims for infringement of foreign copyright are in principle justiciable in England.

Background to the case

The appeal was concerned with intellectual property rights in the Imperial Stormtrooper helmet made for use in the first Star Wars film, “Star Wars Episode IV – A New Hope”.

The film’s characters, conceived by Mr Lucas, were drawn by an artist and given three-dimensional form by the respondent, Mr Ainsworth. The respondent made several prototype vacuum-moulded helmets and, subsequently, 50 helmets for use in the film.

The Appellants, Lucasfilm, own copyrights in the artistic works created for the Star Wars films and have built up a licensing business, including licensing models of Imperial Stormtroopers.

In 2004 Mr Ainsworth used his original equipment to make versions of the Imperial Stormstrooper helmet and armour for sale to the public in the US, where Lucasfilm obtained judgment against him. It also commenced proceedings in the English High Court, involving claims for infringement of English copyright and claims under US copyright law.

Procedure

The English law claim involved section 4 of the Copyright Designs and Patents Act 1988 that the helmets qualified for protection under English law as “sculptures”, in which copyright subsists as an original artistic work. The issue of whether an Imperial Stormtrooper helmet was a sculpture would determine whether Mr Ainsworth’s copying of the original helmets was an infringement of copyright. It was also relevant to a defence under section 51 of the 1988 Act to an English copyright action based on infringement of the designs of the helmet recorded by the artist. If the helmet did not qualify as sculpture, and was therefore not an artistic work, there could be no infringement of copyright in a design document. No separate claim based around a design right could be brought under Part III of the act because such a claim was time-barred by section 216.

Lucasfilm also brought claims based on US law.

The High Court held that the helmet was not a work of sculpture and so there was no infringement of copyright under English law. However, the English courts also had to determine whether it had jurisdiction to hear those of Lucasfilm’s claims based on US law. The High Court held that the US copyright claims were justiciable and that US copyright had been infringed. The Court of Appeal ([2009] EWCA Civ 1328) allowed Mr Ainsworth’s appeal. It agreed with the judge’s findings that the helmet was not a work of sculpture, but held that the US copyright claims were not justiciable. Lucasfilm appealed to the Supreme Court.

Judgement

The Supreme Court unanimously allowed the appeal. In a joint opinion given by Lord Walker and Lord Collins, with which Lord Mance agreed, it held that the helmets were not sculptures for the purposes of English copyright law, but that the US copyright claims could be heard in English proceedings.

On this latter issue, the decision takes a new approach to the application of principles of private international law in the context of intellectual property cases. It is this aspect of the ruling which is likely to prove far more significant for future commercial and IP cases.

Definition of ‘sculpture’

The court conducted a review of the legislative development in the area of copyright for sculptures and the surrounding case law. Having disapproved the approach in previous decisions which emphasised the manner of creation (whether by hand or industrially) as decisive, the court strongly favoured an approach which did not extend the meaning of the word ‘sculpture’ in the Act far beyond the meaning it held for ordinary members of the public. The court noted with approval a formulation that a sculpture is a “three dimensional work made by an artist’s hand.”

At trial the application of this definition turned on whether the helmet’s function was primarily artistic or utilitarian. Despite Lucasfilm’s contention that the helmet’s purpose was wholly artistic, to make a visual impression on the film-goer, the trial judge found that it was a mixture of “costume and prop” and that the artistic creation was the film itself; within which the helmet had a utilitarian function which was to portray an idea linked to a character. The Supreme Court found that it would not be appropriate to interfere with this finding.

Following this rather strict interpretation, is likely that objects that have a function as well as artistic value will not qualify as sculpture for the purposes of copyright protection. 3D objects falling outside the scope of copyright protection for sculptures could nevertheless be protected by design right. Design rights are protected under Part III of the 1988 Act, but do not offer the same level of protection for 3D objects as copyright. In particular, the length of protection is only 15 years from the date of the design being recorded in a design document or prototype[1]. Indeed, in Lucasfilm v Ainsworth the filmmakers were prevented from claiming any design right because any such right would have already expired.

The Court commented on the relationship between copyright and design right, noting an “emerging legislative purpose” of protecting three-dimensional objects in a graduated way, unlike the indiscriminate protection of literary copyright. Different periods of protection, the court felt, are accorded to different classes of work. Artistic works of art (sculpture and works of artistic craftsmanship) have the fullest protection; followed by works with “eye appeal”; and under Part III of the 1988 Act a modest level of protection has been extended to purely functional objects. The Court felt that there are good policy reasons for the differences in the periods of protection, which went against “allowing the boundaries of full copyright protection to creep outwards”.

 Justiciability of a foreign copyright claim

In holding that there was “no reason” for the English courts to refuse to take jurisdiction over an English defendant in a claim for breach of foreign copyright, the Supreme Court made a significant new step in the law.

The Court of Appeal had held that the US claims were not justiciable. They concluded that the common law rule in British South Africa Co v Companhia de Moçambique – that an English court had no jurisdiction to entertain an action for the determination of title to foreign land, or the recovery of damages for trespass to such land – was a general principle and so could be extended to claims for infringement of foreign intellectual property rights. Lucasfilm contended that the Court of Appeal was wrong to extend that rule to apply in its case.

The Supreme Court reviewed the development of the case law. In particular, the case law refusing the justiciability of an IP right outside of the territory where it was granted has relied on two ‘rules’ in the previous authorities. The Supreme Court analysed both of these and found that much of the justification for applying them to questions of the infringement of intellectual property rights was either misconceived or had been undermined by more recent developments.

The Mocambique rule and Act of state doctrine

The rationale for the Mocambique rule came to be understood as being based on the fact that the right is held “according to the laws of the country where it is situated, and as the right of granting it is vested in the ruler of the country, controversies relating to such property can only be decided in the state in which it depends.” It was to avoid conflict with foreign jurisdictions.

This led to a question whether there is a distinction between actions to determine title and/or validity and actions for infringement of rights. The Court found that development in the law meant that state action/ no jurisdiction rules are only concerned with actions to protect title

Firstly, today it is Article 22(1) of the Brussels Convention that prescribes exclusive jurisdiction for determination of rights “in rem”.  The European Court has confirmed that this section should not be extended to actions for damages based on infringement of rights in rem or on damage to property in which rights in rem exist.  Thus, the Moçambique rule only applies to determinations of the validity of rights and should not be extended to claims concerned with the infringement of those rights. It therefore could not, in their lordships’ opinion, be relied upon by the appellants to exclude justiciability of the US claim in the English courts.

The Court also considered the Act of State doctrine, which has been used in the US courts as a basis for non-justiciability of foreign trade mark and patent rights. The doctrine had founded decisions that a US federal court should not rule on the validity of a foreign IP right because the granting of such a right is an act of a foreign sovereign done within its own territory, which should not, under international law, be adjudicated upon elsewhere. However, the doctrine has been held not to apply to actions for infringement, as such actions do not lead to deciding upon the validity of acts of foreign governmental officials. The Court concluded in the present case that the doctrine was no impediment to an action for infringement of foreign intellectual property rights, “even if validity of a grant is in issue, simply because the action calls into question the decision of a foreign official.”

The rule in Phillips v Eyre

The second rule that the Court held to be inapplicable was the first branch of the rule in Phillips v Eyre which dictates that when a wrongful action has been committed on foreign soil, the action cannot be brought on home soil unless it would have actionable if it had occurred on home soil, as well as at the place where it occurred. This rule was widely considered to exclude intellectual property claims from being heard outside of the territory where the right was granted because the rights concerned were “local”. Thus, it was thought that the holder of a French patent, trade mark or copyright could not sue in England for its infringement in France, because the French patent trade mark or copyright is territorial in its operation and so any supposed breach of the French right would not be wrongful if committed in England. However, as the Supreme Court rightly noted its judgment in the present case, “to describe the claims as “local” is simply to beg the question whether as a matter of law they must be brought in the place where the rights originate and are effective.”

Their lordships considered the question to have been resolved by Parliament. The rule in Phillips v Eyre was abolished by the Private International Law (Miscellaneous Provisions) Act 1995. Consequently, so far as English proceedings are concerned, the rule in Phillips v Eyre is no impediment to actions in England for infringement of foreign intellectual property.

The court noted several developments in EU and international law which, in its opinion, substantially cast doubt on the view that actions for infringement of intellectual property rights cannot be brought outside the State in which they are granted or subsist.

Firstly, article 22(4) of the Brussels I Regulation  provides that, in proceedings concerned with the registration or validity of IP rights required to be deposited or registered, the courts of the Member State in which the deposit or registration has been applied for or has taken place have exclusive jurisdiction irrespective of the domicile of the defendant. Their lordships felt that this was an exception to be strictly construed and applies only to intellectual property rights which are required to be deposited or registered. The European Court has emphasised that article 22(4) is only concerned with cases in which a question of validity arises and does not apply to infringement actions in which there is no issue as to validity.

Secondly, The Draft Principles for Conflict of Laws in Intellectual Property, 2011 implicitly envisage actions based on infringement of foreign IP rights in that its two main principles are (a) the primary rule of jurisdiction in the Principles is habitual residence (Part 2, section 1), and (b) the primary law applicable to infringement is the law of the State for which protection is sought (Part 3, section 6).

Implications of the decision

Application

The reasoning of the Court which led it to allow Lucasfilm’s appeal on the justiciability point relied strongly on the distinction between validity and infringement proceedings. However, the distinction between validity actions and infringement actions may not be one that is clear-cut.

There is a question as to how the English courts would treat infringement proceedings which also require issues of validity to be determined. If the action is for infringement and validity is treated as an accessory issue then perhaps logically it should ‘follow the principal’ in the sense that the action should be capable of being brought in a foreign court. Conversely, an ECJ   decision has suggested that exclusive jurisdiction would apply if the question of validity were raised by way of defence in infringement proceedings. Such a rule might have the unfortunate effect of encouraging parties to tactically plead a validity defence where an action in the foreign court is considered to be less advantageous.

There are also practical issues to consider. Separate proceedings to determine validity and infringement will inevitably increase the parties’ costs. There is also the difficulty that, in fragmenting the issues this way, a court may not hear all of the evidence relevant to the action which would inform its decision on the scope of the right.

Moreover, the decision promotes a certain degree of ‘forum shopping’ in that the English courts will now appear to be a very attractive place for potential claimants to bring proceedings against English residents, irrespective of where the alleged breach occurred. There is a temptation for claimants to take two bites at the legal cherry and consolidate actions based both on the relevant English law and its foreign equivalent. The fact that the English civil procedure rules provides for costs shifting, with the losing party normally being ordered to pay a significant part of the winning party’s legal costs, is another factor that could make the prospect of enforcement in England attractive to a foreign copyright owner with a strong case.

Scope

The issue on this appeal was a very narrow one because the appellants did not contest the application of the Moçambique rule to intellectual property so far as it is limited to patents and other intellectual property rights dependent on the grant or authority of a foreign State, and to cases where what is in issue is the validity of the patent, as opposed to its infringement. There is a degree of doubt whether the reasoning in this case concerning copyright could be extended to a similar case involving, for example, a patent.

Certainly the Court’s analysis seems to envisage differing legal treatment between different IP rights. At [106] their lordships thought that the distinction was more easily justified when applied to patents, as claims might touch on the validity of patents in sensitive areas such as armaments. This was felt to be the rationale behind article 22(4) of the Brussels I Regulation. Conversely, it was thought that copyright rarely involves delicate political issues and those problematic cases could be “dealt with by an application of the principles of public policy”.

 About the author

Sophia Hurst is currently in her 4th year at Oxford University studying law with law studies in Europe (France). She wrote the above casenote on a recent Supreme Court decision, Lucasfilm v Ainsworth, in the field of intellectual property and private international law. The casenote was written during a 2011 summer vacation scheme at Norton Rose LLP. It was reviewed by a senior partner and two partners and a version kept on file for the IP department’s know-how resources. A shorter version was mailed to clients, including Orange and T-mobile and a number of large US companies.

Bibliography

Copyright Designs and Patents Act 1988

Private International Law (Miscellaneous Provisions) Act 1995

British South Africa Co v Companhia de Moçambique [1893] AC 602

Phillips v Eyre (1870) LR 6 QB 1

Brussels Convention

The Draft Principles for Conflict of Laws in Intellectual Property

Case C-343/04 Land Oberösterreich v ČEZ as [2006] ECR I-4557, para [26] et seq.

Case C-4/03 Gesellschaft für Antriebstechnik GmbH & Co KG (GAT) v Lamellen und Kupplungsbau Beteiligungs KG (LuK)

[2006] ECR I-6509, para [16] et seq.

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