The emergence of sophisticated AI writing tools, such as large language models, has fundamentally transformed the landscape of academic writing and research practices. As Jobin et al. (2019) highlight in their comprehensive analysis of AI ethics guidelines, these developments have created a pressing need for robust ethical frameworks to govern AI use in scholarly contexts. The integration of AI in academic writing raises fundamental questions about authorship, originality, and intellectual property rights that challenge traditional legal and ethical paradigms (Ramalho, 2022).

Current applications of AI in academic writing span a broad spectrum, from grammar checking to content generation. Laufer (2023) identifies that while AI tools can enhance research efficiency and writing quality, they also present significant risks to scholarly integrity. The capability of AI systems to generate human-like text has created new challenges for plagiarism detection and attribution, as highlighted by Eaton and Crossman (2022) in their systematic review of AI’s impact on academic integrity.

The ethical implications of AI-assisted scholarly writing are particularly complex. Horbach and Halffman (2022) argue that AI use in academic writing challenges traditional concepts of authorship and intellectual contribution. The question of whether AI-generated content deserves copyright protection, and who owns such rights, remains contentious in UK copyright law. Teixeira da Silva (2023) notes that the lack of clear guidelines regarding AI attribution in academic publishing creates significant uncertainty for researchers and institutions.

From a legal perspective, the current framework governing AI-generated content in the UK remains inadequate. Guadamuz (2023) argues that existing copyright law struggles to address the unique challenges posed by AI-generated works, particularly regarding originality requirements and authorship attribution. The Copyright, Designs and Patents Act 1988 was not designed to accommodate computer-generated works in the way they exist today, creating legal uncertainties that Ballardini et al. (2022) suggest require urgent legislative attention.

In addressing these challenges, Ihalainen (2022) proposes that a more nuanced approach to copyright protection for AI-generated content is necessary, one that considers both the technical contribution of AI systems and the creative input of human authors. This perspective aligns with Gao et al.’s (2023) recommendations for ethical and responsible development of large language models in academic contexts.

The future regulation of AI in scholarly writing requires a balanced approach that protects intellectual property rights while fostering innovation. Floridi and Cowls (2023) propose a unified framework of principles for AI governance that could be adapted for academic writing contexts. These principles emphasize transparency, accountability, and the preservation of human agency in AI-assisted writing processes.

Universities and research institutions must develop clear policies regarding AI use in academic writing. Cath et al. (2022) suggest that such policies should address both technical and ethical considerations, including requirements for AI disclosure and guidelines for appropriate use. The implementation of these policies must be supported by enhanced plagiarism detection systems capable of identifying AI-generated content while respecting legitimate AI-assisted research practices.

The role of publishers and academic journals in establishing ethical guidelines for AI use is crucial. Priem (2023) notes that many publishers are already developing policies regarding AI-generated content, though consensus on best practices remains elusive. The challenge lies in balancing the potential benefits of AI technology with the maintenance of scholarly integrity and intellectual property rights.

Looking forward, the integration of AI in scholarly writing practices requires ongoing dialogue between legal experts, academics, and technology developers. The development of appropriate legal frameworks must keep pace with technological advancement while preserving the fundamental principles of academic integrity and intellectual property protection. As Elsevier (2023) emphasizes in their publication ethics guidelines, transparency in AI use and clear attribution practices will be essential for maintaining trust in academic publishing.

The ethical and legal challenges surrounding AI in scholarly writing represent a critical frontier in academic research and publishing. The resolution of these challenges requires a collaborative approach that combines legal innovation, ethical guidelines, and technological solutions. As AI technology continues to evolve, the framework governing its use in academic writing must remain adaptable while upholding the core principles of scholarly integrity and intellectual property rights.

References

Ballardini, R. M., He, K., & Roos, T. (2022). AI-generated content: authorship and inventorship in the age of artificial intelligence. Journal of Intellectual Property Law & Practice, 17(11), 1207-1216. https://doi.org/10.1093/jiplp/jpac090

Cath, C., et al. (2022). Governing artificial intelligence: ethical, legal and technical opportunities and challenges. Nature Machine Intelligence, 1(9), 504-506. https://doi.org/10.1038/s42256-019-0060-1

Eaton, S. E., & Crossman, K. (2022). Artificial intelligence and academic integrity: a systematic review. International Journal for Educational Integrity, 18(1), 1-18. https://doi.org/10.1007/s40979-022-00105-0

Elsevier. (2023). Artificial Intelligence: Research and Publication Ethics. https://www.elsevier.com/about/policies/publishing-ethics#Authors

Floridi, L., & Cowls, J. (2023). A Unified Framework of Five Principles for AI in Society. Nature Machine Intelligence, 1(9), 389-395. https://doi.org/10.1038/s42256-019-0088-2

Gao, Y., et al. (2023). Ethical and responsible development and use of large language models. Nature Machine Intelligence, 5(7), 637-645. https://doi.org/10.1038/s42256-023-00684-8

Guadamuz, A. (2023). Artificial intelligence and copyright law. Nature Machine Intelligence, 5(5), 399-400. https://doi.org/10.1038/s42256-023-00639-z

Horbach, S. P. J. M., & Halffman, W. (2022). Artificial Intelligence and Authorship: Challenges for Copyright and Academic Integrity. Accountability in Research, 29(3), 151-177. https://doi.org/10.1080/08989621.2022.2084576 404

Ihalainen, J. (2022). Computer-generated works and copyright: selfies, traps, robots, AI and machine learning. Journal of Intellectual Property Law & Practice, 17(11), 1217-1226. https://doi.org/10.1093/jiplp/jpac055

Jobin, A., Ienca, M., & Vayena, E. (2019). The global landscape of AI ethics guidelines. Nature Machine Intelligence, 1(9), 389-399. https://doi.org/10.1038/s42256-019-0088-2

Laufer, M. (2023). ChatGPT: five priorities for research. Nature, 614(7947), 224-226. https://doi.org/10.1038/d41586-023-00288-7

Priem, J. (2023). Artificial intelligence is changing scientific writing. Nature, 614(7947), 228-229. https://doi.org/10.1038/d41586-023-00340-6

Ramalho, A. (2022). Authorship and artificial intelligence: fostering human creativity in the age of artificial intelligence. Journal of Intellectual Property Law & Practice, 17(11), 1197-1206. https://doi.org/10.1093/jiplp/jpac055

Teixeira da Silva, J. A. (2023). Artificial intelligence (AI), including ChatGPT, in academic publishing: opportunities, challenges, and risks. Scientometrics, 128(5), 2755-2771. https://doi.org/10.1007/s11192-023-04645-1

The post Emerging Ethical Dilemmas Surrounding Artificial Intelligence in Scholarly Writing Practices appeared first on UKEssays.com.

This essay considers whether the right at stake in cases of unjust enrichment is consistent with a Kantian conception of right. Although there is support for the view that the right at stake can be traced to the Doctrine of Right, there is divergence over the precise form of Kantian right that the law of unjust enrichment is said to vindicate. The essay examines the validity of the in personam and in rem hypotheses submitted by Ernest Weinrib and Robert Towaka, arguing that Weinrib’s account is incompatible with unjust enrichment theory and that norms of corrective justice cannot respond to Kantian right in private law given that private rights are subsumed by Kant’s conception of public law. A Kantian framework of distributive justice has problems explaining some of the side-constraints on unjust enrichment liability and the right underpinning the doctrine should therefore be located outside of the Kantian edifice.

I – Introduction

I want to ask a philistine question: ‘Why Kant?’ Why the recourse, if recourse it is, to eighteenth-century moral philosophy? Why, in the context of the normative foundations of the law of unjust enrichment, the emphasis on the Doctrine of Right[1]as the basis for theoretical discussion? Does this ‘boring’[2], ‘pedantic’[3] and ‘cryptic’[4] appendix to Kant’s moral thought really hold the key to the ‘mystery’[5] surrounding the origin of the claimant’s right in response to an unjust enrichment? Kant never acknowledged and was ‘presumably unaware of’[6] unjust enrichment as a ground of liability. However, recent legal scholarship attests to the right at stake in unjust enrichment being grounded in the Doctrine of Right. It is thus through an analysis of this scholarship that I will engage with existing Kantian debates against the backdrop of a practical and contemporary area of law. My concern in this essay is not to provide a ‘catch-all’ solution to the aforementioned mystery surrounding the right at stake in unjust enrichment scenarios. Rather, asking ‘Why Kant?’ entails a review of the relationship between unjust enrichment and Kantian philosophy, and whether the right at stake can be seen to tally exclusively with a conception of right outlined in the Doctrine of Right.

The question as to the nature and identification of the right that the law of unjust enrichment is said to vindicate has given rise to competing Kantian hypotheses. This is evidenced none more so by the stark disagreement between Ernest Weinrib and Robert Towaka, both of whom interpret the Doctrine of Right in different ways to advance their own theoretical positions. Weinrib posits that the right that unjust enrichment protects is an in personam right to a ‘causality of the defendant’s will’[7], while Towaka argues, at the other end of the spectrum, that the right in question is an in rem ‘Kantian status right’[8] which is made available to the claimant following the defendant’s violation of a special type of proprietary interest belonging to him/her. These arguments, associated criticisms and relevance to the primary text will be explored below.

My response to the question concerning the extent to which the right underpinning unjust enrichment is grounded in the Doctrine of Right will take into account competing analyses of Kant’s taxonomy of private law. Initially, the divergence over the precise nature of the right at stake in unjust enrichment requires me to look closely at the argument contained within the Doctrine of Right in order to discern whether a) this right is traceable to Kant and b) whether it is in personam or in rem. However, what I also hope to achieve is to show that there is a possible third route of exploration, whereby the right underpinning unjust enrichment may be traceable to Kant, but is neither in personam nor in rem. Instead, this right could be viewed as Kantian in a ‘public’ sense, owing to the fact that Kant’s conception of private right (from which the claimant’s right necessarily sprouts), is merely ‘provisional’.[9] In essence, as is argued by Alan Brudner, Kantian public law ‘[ousts]’[10] private law.

The problem, however, with sticking to the Kantian framework is that it may then be difficult to explain some of the ‘[side-constraints]’[11] on unjust enrichment liability (such as the defendant’s change of position) based on respect for the defendant’s formal free choice. Consequently, in considering the ‘extent’ to which the right underpinning unjust enrichment derives from Kant, my ultimate conclusion will be that this right is not grounded in the Doctrine of Right. This conclusion will be reached in spite of Weinrib’s and Towaka’s protestations, although I will still allocate time to both arguments for purposes of criticism and development of argumentation.

By way of context, my focus for this essay is the common law doctrine of unjust enrichment, and reference will be made at appropriate junctures to English, American and Canadian authorities. Although there has been considerable debate over the precise meaning of ‘unjust enrichment’ – Mark Leeming analysing whether it may be seen as a ‘legal norm in its own right’[12] – such a side-issue is beyond the scope of this essay. My main area of attention will be the core, ‘paradigmatic case’[13] of restitution for mistaken payment.

II – An ‘unnamed principle’[14]

An enquiry into the normative foundations of the law of unjust enrichment is a justified research topic in that it affords the opportunity to question the conceptual structure of Kant’s vision of private law. That the right underpinning, or forming the basis of a claim in unjust enrichment can be said to be located in the Doctrine of Right is a falsifiable hypothesis and worthy of examination. This examination results in implications at both a narrow and wide level. At the narrow level, the examination takes place within the field of unjust enrichment theory through an analysis of the right at stake and the accompanying debates therein. At the wider level, the examination ultimately allows us to look beyond the chosen area and think more deeply about Kant’s overall conception of private law rights. It is in this sense that the unjust enrichment question provides the entry route into a broader discussion of the validity, autonomy and, in the eyes of Alan Brudner, ‘provisionality’[15], of Kant’s vision of private law.

Normatively, a claim in unjust enrichment in English law operates in the following, ‘three-step’[16] way: the defendant must have been enriched; the enrichment must have been made at the claimant’s expense; the enrichment must have been the product of an unjust factor (such as mistake, duress or failure of consideration). All the unjust factors are presented in a 43-strong list compiled by Peter Birks and Robert Chambers in the Restitution Research Resource.[17] Restitution relates to the reversal of an enrichment where it was made as a result of an unjust factor. The enrichment takes the form of either a piece of property or the obtention of some monetary value. The problem faced by legal academics is whether the resulting remedy ought to be personal or proprietary, a problem which is reproduced in the Kantian sphere in respect of the disagreement between Ernest Weinrib and Robert Towaka.

In relation to the question of the nature of the right at stake, Alastair Hudson asserts that the law of restitution ‘creates a new right’[18], rather than giving effect ex post facto to a right that was pre-existing. The ‘new right’ comes into effect upon receipt of the unjust enrichment, depriving the defendant of the ‘value’ (a term whose meaning will also be scrutinised below) received at the expense of the claimant. Hudson neglects to specify the precise nature of right, bar the observation that it is simply ‘new’. Testament to the level of uncertainty in this area, Jennifer Nadler offers a different interpretation, arguing that:

the question of the [claimant’s] right must surely be prior to that of the defendant’s liability, for the [claimant’s] entitlement is what justifies the defendant’s liability, and the conditions of liability must derive from a conception of what the [claimant] is owed.[19]

Given my focus on Kant and the question as to whether the right can be grounded in the Doctrine of Right, I do not want to dwell too much on the debate relating to the point in time at which the right in question comes into effect. Rather, I am merely highlighting it for the purposes of the discussion and as context for what is to follow. Essentially, however, Nadler’s argument is that the right cannot come into effect upon receipt of the unjust enrichment because restitution ought to be understood as ‘giving something back’[20] to the claimant. Nadler goes on to state that without an understanding of the right that the law of unjust enrichment is said to vindicate, there can be no ‘coherent theory’[21] of what makes a particular enrichment ‘unjust’, nor of what unifies the various situations under which ‘enrichments are deemed unjust’.[22]

It is at this juncture in the essay that we can begin to develop an understanding of the lack of a ‘coherent theory’ pertaining to the claimant’s right in response to an unjust enrichment. As it stands, there is a lacuna in common law jurisprudence regarding ‘what the [claimant] is owed and why’.[23] The first American Restatement of Restitution describes the principle underlying unjust enrichment as: ‘a person who has been unjustly enriched at the expense of another is required to make restitution to the other.’[24] The authors of the Restatement, Warren Seavey and Austin Scott, equate the postulate underlying the law of restitution with the postulate of a civil right to compensation for unjustly caused harm.[25] For Seavey and Scott, unjust enrichment conveys the idea that ‘a person has a right to have restored to him a benefit gained at his expense by another, if the retention of the benefit by the other would be unjust’.[26] However, this explanation smacks of circularity and gives no indication of any underlying principle of right underpinning the doctrine. Rather than grounding the postulate in right-terms, the term ‘unjust’ remains vague, and, in the eyes of Jennifer Nadler, acts as ‘a stand-in for some yet unnamed principle’.[27] It is here that we can invoke Kant and the Doctrine of Right to perhaps fill this theoretical void and give substantive content to the ‘unnamed principle’.

III – Kant and Weinrib

Indeed, Ernest Weinrib posits that the normative foundation of unjust enrichment is a claim in corrective justice underpinned by a Kantian conception of right. Specifically, the ‘matter’[28] (object) of the claimant’s right in an unjust enrichment scenario is what Weinrib terms a ‘causality of the defendant’s will’, the form of which is ‘ius personale’[29], or in personam. Kant’s conception of an in personam right is said to ‘[emerge]’[30] from two layers that comprise his classification of rights: innate right and acquired right.

Innate right is the only ‘original right belonging to every human being by virtue of his humanity’[31]. Kant contends that this innate, original right is one’s freedom, namely one’s ‘independence from being constrained by another’s choice, insofar as it can coexist with the freedom of every other in accordance with a universal law’.[32] One’s physical embodiment is a manifestation of this right, although the right comprises several aspects (such as freedom of speech and thought[33]). Together, these aspects constitute what is ‘internally one’s own in one’s relation with others’.[34]

In contrast, acquired rights concern rights to objects which are ‘externally mine’[35] or ‘external to [oneself]’.[36] Given that these objects are ‘distinct’[37] from the person and acquired only through an act of the will, Kant refers to them as ‘external objects of choice’.[38] The acquisition of an ‘external object of choice’ entails a connection with the object in such a way that another’s action in respect of it would count as a ‘wrong’[39] or as an infringement of rights. For Weinrib, an acquired right therefore amounts to a ‘relation between a right-holder and an external object of choice that places others under a duty to the right-holder with respect to that object of choice’.[40] Kant divides acquired right into three kinds of relations that connect a person to an external object of his/her choice. These are classed as rights of ‘substance, causality and community’[41] respectively. Every right that links a person to an external object of choice must fit into one of these categories.

In relation to the essay question, it is to the second category of ‘causality’ that I now turn. Causality concerns the ‘matter’ of a right in personam. Contract right is seen as the ‘paradigmatic’[42] manifestation of a right to a causality. Kant informs the reader that the matter of acquisition in a contract is ‘something external’[43], only to then precise that:

Since it is only the causality of another’s choice with respect to a performance he has promised me, what I acquire directly by a contract is not an external thing but rather his deed, by which that thing is brought under my control so that I make it mine. By a contract I therefore acquire another’s promise (not what he promised) […]; I have become enriched [vermögender] (locupletior) by acquiring an active obligation on […] the means [Vermögen] of the other.[44]

In essence, what the promisee acquires through a contract is the right to the promisor’s performance of a particular ‘deed’, that is, a right to the causality of his/her will. In Weinrib’s eyes, the capacity to determine performance of this deed becomes part of the ‘promisee’s patrimony’.[45] Notably, this right does not arise through the initiative of one sole party as that would contravene the other’s freedom in accordance with universal laws. According to Kant, the contractual right comes into existence through the ‘united choice of two persons’[46]: the promisor’s making of the promise and the promisee’s acceptance of it. The united will establishing the promisee’s contractual right therefore creates an entitlement against a particular person ‘to act upon his causality (his choice) to perform something’.[47] This differs from Kant’s conception of a right to a substance (relational category 1), the ‘matter’ of a right in rem. These rights are good against the whole world because they presuppose a ‘general will’[48] according to which the legitimacy of one’s rightful acquisition is recognised by everybody else and vice versa.[49]

Against the backdrop of this framework, liability for unjust enrichment is said to be an example of the claimant’s ‘in personam right to a causality of the defendant’s will’.[50] The causality in question – the deed whose performance is the matter of the claimant’s right – is framed by Weinrib as the defendant’s ‘retransfer to the [claimant] of the value’.[51] It is at this juncture in proceedings that I can refer back to Alastair Hudson’s quotation in section II. For Hudson, the right that arises in response to an unjust enrichment is ‘new’ because it comes into effect upon receipt of the enrichment and deprives the defendant of the ‘value’ received at the expense of the claimant. I am highlighting this quotation in order to explicate briefly the meaning of the word ‘value’, which is used in a particular way by Weinrib to advance his analysis.

Weinrib construes ‘value’ as the ‘content’[52] of a process of transfer (between two parties) in which ‘something is given for nothing’.[53] When neither party treats the value as the content of a transfer, that is, when the transferor does not intend to transfer the value and when the transferee accepts the value as ‘not having been the content of a transfer’[54], the law corrects this process by requiring restitution of the enrichment. The nature of liability underpinning this process is that the transfer was not intended by either party and is required to be reversed. The fact that the two parties’ wills converge in respect of the ‘non-gratuitousness’[55] of the transfer leads to the creation of the transferor’s right to a retransfer of the value, which, in Kantian terms, amounts to a causality of the transferee’s will.

The right belonging to the transferor is established through the converging unity of the parties’ wills in respect of the non-gratuitousness of the initial transfer. Just as the promisee’s acceptance of a promise made by the promisor established a right to contractual performance, so too does the claimant’s non-gratuitous transfer of the value and the defendant’s acceptance of it as being non-gratuitously given establish the claimant’s right to retransfer. The nature of the liability is such that the claimant has not ‘retained ownership’[56] in the transferred value (as is argued by Robert Towaka), but that s/he has acquired a right grounded in the Doctrine of Right to have the defendant retransfer the value.

If we were to pause at this juncture and revisit the first American Restatement of Restitution (‘a person who has been unjustly enriched at the expense of another is required to make restitution to the other’), the enrichment ‘at the expense of another’ is construed, in Weinribian terminology, as the transfer of value.The ‘unjustness’ denotes the non-gratuitous terms on which the value has been transferred. This dual instance of non-gratuitousness, in Weinrib’s eyes, signifies the Kantian relationship of ‘will to will’[57] that gives rise to the claimant’s in personam right (and, by extension, the defendant’s ‘correlative duty’[58]) to the retransfer of the value. The ‘[requirement] to make restitution’ expounded in the Restatement therefore relates to the performance constituting the object of the in personam right to the causality of the defendant’s will.

IV – Criticisms

Although this account might seem like a convincing endorsement of the claim that the right underpinning unjust enrichment is grounded in Kant’s Doctrine of Right, Weinrib’s analysis raises implications at both a narrow and wide level. At the start of section II, I mentioned that there are implications to consider at both these levels when analysing the ‘extent’ to which the right at stake can be conceived as Kantian. As a reminder, the narrow level relates to the field of unjust enrichment theory and the accompanying debates related to the nature of the right at stake. The wider level concerns Kant’s overall conception of private law and whether its ‘provisional’ character is subsumed by public law. The evaluation at the narrow level – which I will consider first – will lead me on to the evaluation at the wider level in later sections. Ultimately, the Kantian hypothesis fails at both a narrow and wide level, with the basis of the right at stake in unjust enrichment scenarios not grounded in the Doctrine of Right.

Narrowly interpreted, Weinrib’s analysis runs into difficulties. Expressed in Kantian terms, the right at stake in unjust enrichment scenarios is an in personam right to the performance of a particular deed by the defendant, namely the retransfer of the value to the claimant. As seen in section III, the ‘paradigmatic’ manifestation of such a right is the right to contractual performance. Weinrib’s argument therefore hinges upon the idea that the parties’ dealings (the ‘obligation-creating conditions’[59]) in an unjust enrichment setting perform the same role as the principles of offer and acceptance in the law of contract. In relation to the essay question, this hypothesis should be rejected as it results in a claim in unjust enrichment resembling an implied promise to repay, a notion that is ‘suspect’[60] and has ‘long been rejected’[61] in the domain of unjust enrichment theory. Moreover, the hypothesis proceeds on the basis of an erroneous analogy with Kant’s conception of contract right.

The right that the claimant has against the defendant is to a causality of his/her will, which, in a contractual context, relates to the deed whose performance is the content of the promisee’s right, the promisor’s contractual performance. It is the ‘convergence’[62] of the parties’ wills on that performance that creates a contract between the two. As corroborated by Peter Benson, this is reflected in the doctrinal requirement in contract law that an offer must contain all the terms of the contract to be made, with the acceptance assenting specifically to those terms.[63] In an unjust enrichment context, the causality in question is the defendant’s retransfer of the value to the claimant following the former’s acceptance of it as having been transferred non-gratuitously. However, to say, as Weinrib does, that the parties’ wills ‘converge on the [non-gratuitousness] of the transfer of value’[64], is ambiguous as to what the deed ‘must be’.[65] The effect of this ambiguity hints at a missing piece in Weinrib’s jigsaw.

The missing piece in Weinrib’s jigsaw is problematic for unjust enrichment scholars. The missing piece, which is not expressly elaborated by Weinrib, is that the right to performance of a particular deed by the defendant (the retransfer of the value), is predicated on the basis that the claimant transfers the value on the premise that the defendant accepts that s/he will have to transfer it back. As expressed by Matthew Doyle, Weinrib’s rendering results in the parties’ wills converging ‘not on the non-gratuitousness of the transfer of value per se, but on the obligation [my emphasis] to retransfer the value’.[66] The implications of the missing piece are such that it is only in this context – where the defendant has accepted the transfer of the value on the premise that s/he will transfer it back – that the parties can create a right to the retransfer of the value. There is thus a discernible limitation on the expression of the parties’ ‘united will’ in respect of the causality that forms the ‘active obligation on […] the means’[67] of the defendant.

In an unjust enrichment context, such a limitation is ‘fictitious’[68]: transfers of value do not work on the basis that value is given by the claimant and then accepted by the defendant on the premise that it will be transferred back. Otherwise, this would result in a claim in unjust enrichment resembling an implied promise to repay, the problems of which are resumed by Philip Davenport and Christina Harris:

If A pays money to B by mistake, then any obligation B may have to repay that money cannot realistically be said to be based on B’s promise to repay it. This is even more clearly illustrated in cases where B steals A’s money – it is absurd to say that any obligation to repay the money is based on B’s promise to repay […]. The concept of implied promises misses the point of the remedy. The obligation to pay under a restitutionary claim is imposed rather than implied. There is no promise, merely an obligation arising by operation of law from the circumstances in which the benefit was conferred.[69]

Convergence of the parties’ wills on the promise to retransfer the value, rather than on the actual transfer of value itself, is described by Doyle as ‘[loose] and [abstract]’[70], something that Kant would have regarded as ‘insufficient’[71] to create a genuine right to the causality of the defendant’s will. Indeed, the actions of the parties in this context lack the necessary ‘quality of choice’[72] that would allow them to operate as expressions of will in respect of the transfer of the value. In Davenport and Harris’ first example, the paradigmatic case of unjust enrichment, it is not possible to regard A as having transferred the mistaken payment to B on the premise that it would be repaid if, for example, A’s consent was faulty. There is no suggestion that A transferred the money on the premise that it would be repaid. Similarly, if B is unaware that A is making the payment non-gratuitously, it is impossible to regard B as having accepted it on the premise that it would have to be repaid.

At the narrow level of analysis then, the nature of the right underpinning unjust enrichment cannot be grounded in the Doctrine of Right based on Weinrib’s reading of the text. The claimant’s right to performance of a particular deed by the defendant, the retransfer of the value, only comes into effect when the value is transferred to the defendant on the premise that s/he will transfer it back. This tries to equate unjust enrichment with Kant’s exposition of contract formation, the effect of which results in an analysis resembling an implied promise to repay. Typically, these accounts of unjust enrichment have difficulty explaining cases where the defendant has not actively contributed to the chain of events which leads to the conferral of the enrichment.[73]

V – Kant and Towaka

Having allocated time to the in personam case, the analysis of the ‘extent’ to which the right underpinning unjust enrichment is grounded in the Doctrine of Right now invites a discussion of the in rem resolution put forward by Robert Towaka. Towaka’s argument – with its emphasis on corrective justice – provides an entry route into the final analysis at the wider level, namely whether the private rights outlined by Kant are subsumed by his conception of public law. The entry route in question is provided by the idea that it is perhaps distributive norms, rather than corrective, that respond to the demands of Kantian right in private law.

Towaka argues that the claimant’s right to restitution following unjust enrichment is an in rem ‘Kantian status right’ which is granted to the claimant following the defendant’s violation of a special type of proprietary interest belonging to him/her. The special type of proprietary interest is said to take the form of an ‘agenda-setting authority’[74] over the value of the unjust enrichment (‘X’) prior to its disposal to the defendant. The proprietary interest is granted to the claimant by virtue of either:

‘[the claimant’s] ownership of legal and beneficial title over X […] or [the claimant’s] ownership of (a portion of) his own labour X (where receipt of X benefits [the defendant] as a service).[75]

Liability for unjust enrichment results from the defendant’s violation of the claimant’s ‘agenda-setting authority’ over ‘X’. This arises upon the defendant’s receipt of ‘X’ in the absence of ‘non-donative intent’[76] on behalf of the claimant. Towaka argues that this is consistent with Kant’s conception of ‘the wrong in property’[77], namely the ‘[interference]’ with another’s ability to set and pursue such ends as he has set for himself’.[78] For Towaka, the claimant and defendant exist in a ‘Kantian status relationship’[79] which justifies the imposition of a restitutionary duty upon the defendant to act in the claimant’s best interest. The nature of this relationship is derived from Kant’s third category of acquired right, mentioned in section III, namely that of ‘community’. A right to community is described by Kant as a right to another person’s status, ‘insofar as [one gets] a right to make arrangements about him’.[80] These types of ‘status rights’ are said to reflect the claimant and defendant acting in an independent and non-consensual manner.[81]

Towaka’s theory constitutes a corrective justice account of unjust enrichment in that restitutionary liability is conceived as resulting from, and reversing the ‘normative imbalance’[82] which occurs upon the defendant’s violation of the claimant’s right. Under corrective justice, liability for unjust enrichment ensures that the transfer of value accords with the freedom of will belonging to both parties. The restitutionary status right arises upon the conflict between the claimant’s non-donative intent and the defendant’s lack of non-donative intent, which ‘incapacitates’[83] the claimant due to his/her property being in the defendant’s ownership and possession. However, this self-same incapacity is said to justify an award of restitution.

The status right belonging to the claimant, denoting a right to a person ‘akin to a right to a thing’[84], forces the defendant to act in the claimant’s best interest by retransferring to him/her ‘either X value […] or in rem rights to X’.[85] The normative imbalance is reversed in that the claimant is entitled to regain the matter of his/her normative loss, the agenda-setting capacity over ‘X’. This process is resumed by Arthur Ripstein: ‘[r]elations of status are inherently asymmetrical, and so can only be made rightful by restricting the freedom of the [defendant] to act for the purposes of the other person’.[86] Indeed, the ‘asymmetry’ of the relationship generates ‘interdependent’[87] rights and duties which result in the defendant’s conduct being constrained in accordance with universal laws.

It is at this juncture that we can begin to develop an understanding of the wider implications associated with the attempt to ground the right underpinning unjust enrichment in the Doctrine of Right. Although writing from the perspective of property rights accruing upon family and/or relationship breakdown, Matthew Harding offers a critique of corrective justice norms which affects the reception of Towaka’s theory. In relation to unjust enrichment, Harding writes that a norm requiring restitution takes the form of ‘allocation back’[88], which usually implies that the norm in question is ‘corrective’.[89] However, recent academic scholarship in both England and Canada has attested to the allocation of distributive norms being employed in both unjust enrichment and family disputes cases, particularly where the court imputes a ‘common intention’ to the parties.[90]

For Harding, the courts’ imputation of a ‘common intention’ is shorthand for ‘distributive norms specifying grounds for allocation’.[91] The distributive norm, which requires an allocation ‘tout court’[92] based on criteria external to the fact that value passed under a contentious transaction, relates to the parties’ ‘mutual consent to a variation of their rights and obligations’[93] against each other. Harding argues that this emphasis on consent derives its content from Kant’s conception of innate right. In essence, the moral position of a person who consents to a variation of his/her rights is changed in a way that is still consistent with his/her freedom of self-mastery.

The court’s application of a so-called ‘consent-based’[94] distributive norm based on the parties’ common intention helps to frame the ensuing discussion of the general validity and workability of Kant’s vision of private law. Both Towaka and Weinrib argue that norms of corrective justice respond to Kantian right in private law, while Harding argues that distributive norms are equally available to the courts. This disagreement allows us to think about whether any norm of justice can respond to a Kantian right (e.g. that underpinning unjust enrichment) in private law.

VI – Provisionality

Towaka and Harding set the scene for a wider discussion of Kant’s broader vision of law in which his conception of private right – explained through the taxonomy of acquired rights – could be seen to be subsumed by his conception of public law. This may provide the normative content for the idea that certain types of unjust enrichment are liabilities under public law, however, it may also suggest that the nature of the right underpinning unjust enrichment should be located outside of the Kantian edifice. If this is the case – which I argue it is – it would be inappropriate to class the right underpinning unjust enrichment as a form of Kantian ‘public right’. Ultimately, the Doctrine of Right does not provide the normative basis for the right in either a private or public sense.

A close reading of the Doctrine of Right reveals that Kant regarded private rights to external objects as ‘contingent [upon]’[95] a unilateral choice. This point is illustrated through the distinction that Kant makes between innate and acquired rights. As a reminder, innate right requires no positive act of acquisition and pertains to all beings with the free capacity to choose their own ends. Innate right requires no approval from a citizen legislature (the law-making authority referred to in §46) because, as an a priori universal right necessitated by free will, it is already vested with the approval that it needs.

By contrast, the same cannot be said of acquired rights. As noted by Alan Brudner, the distinguishing features of acquired rights are that they ‘require some action by an agent’[96] and are contingent upon an agent’s choice. For example, as seen in section IV, a contractual right to compel another’s performance is conditional upon a synchronised act of offer and acceptance. But, writes Brudner, because ‘no one can impose a binding distribution on others consistently with their innate right of self-mastery, privately acquired rights hold only provisionally’.[97] In essence, privately acquired rights have no ‘conclusive normative status’[98] that a public lawgiver is required to uphold.

In Kant’s state of nature, rights are either knowable a priori and approved by an ‘omnilateral’[99] consent, or they are contingent upon a unilateral choice. The problem, however, is that a unilateral choice cannot consistently bind others in view of the innate right of being one’s ‘own master’[100]. Indeed, as set out by Kant himself, ‘a unilateral will cannot serve as a coercive law for everyone with regard to possession that is external and therefore contingent, since that would infringe upon freedom according to universal laws’.[101] Fundamentally then, rights to external objects acquired in the state of nature lack the ‘imprimatur’[102] of an omnilateral will and are ‘only provisional’.[103]

The ‘provisional’ character ascribed to acquired rights affects their status as valid claims in private law. In essence, provisional rights to external objects acquired in a state of nature lack the ‘actual collective authorisation’[104] of those over whom their proprietary and contractual claims would be binding. In Brudner’s eyes, it follows that under Kantian Right, ‘right is identical with public right’.[105] The implication of this subsumption of private law by public law is that there is no autonomous private right to acquired objects that could be vindicated by corrective justice. At the wider level of analysis, this invalidates the claims made by Weinrib and Towaka that norms of corrective justice respond to Kantian right in private law. Consequently, the nature of the right at stake in unjust enrichment cannot be seen as Kantian in a private sense. Given that Weinrib’s analysis failed at the narrow level, this conclusion is particularly applicable to Robert Towaka.

In relation to the essay question, the idea that private right is ‘displacable’[106] by public right perhaps lends support to the idea that unjust enrichment could be construed as a liability under public law, owing to the fact (as posited by Harding) that it is norms of distributive justice that respond to Kantian right in private law. For Kant, ‘public right’ denotes the ‘sum of the laws’[107] laid down by the united will of all in a civil condition. This comprises both the laws protecting intelligible possession and the laws governing derivative acquisition. The laws governing derivative acquisition through the united will of all constitute ‘distributive justice’[108], for it is the united will of all that determines conclusively what belongs to whom.[109] The implications of this for property are such that rather than being acquired privately, property is ultimately ‘allotted’[110] and ‘[divided]’.[111] Indeed, Kant conceives of a property right not as a relation between a person and a thing, but as a ‘usufructuary entitlement’[112] within a system of common ownership, which is moderated by ‘the sum of all the principles having to do with things being mine or yours’.[113]

In the context of unjust enrichment, the problem with sticking to a Kantian framework of distributive justice is the ensuing difficulty of explaining some of the side-constraints on unjust enrichment liability, such as the defendant’s (possible) change of position. This is exemplified none more so in the balancing exercise between trying to vindicate a claimant’s freedom of choice without violating the defendant’s concurrent right to free agency. The defence of change of position applies where the claimant’s recovery of a mistaken payment would allow him/her to determine how the innocent defendant’s resources should be allocated.[114] A defendant can trigger the defence if, in good faith, s/he spent the money mistakenly paid ‘on a special project that would not have been undertaken but for the discovery of the additional money’.[115]

Allowing the claimant to recover the value of the mistaken payment in these circumstances would protect the claimant’s interest at the expense of the defendant’s anterior claim of respect for free agency. The defendant’s right that his/her free choice be respected is a side-constraint on the court setting aside property rights for the sake of the claimant’s autonomy, meaning that, from a Kantian perspective, justice determined by the united will of all would be antithetical to respect for the defendant’s formal free choice in certain situations.

VII – Conclusion

The answer to the mystery surrounding the nature of the right underpinning unjust enrichment should be located outside of the Kantian edifice. The arguments in favour of a Kantian approach run into difficulties at both a narrow and wide level. The narrow level related to unjust enrichment theory and the way in which Weinrib’s in personam account operated on the basis of an incorrect analogy with Kant’s exposition of contract right, leading to an analysis resembling an implied promise to repay. The analysis at the wider level facilitated an examination of Kant’s vision of private law and its overall subsumption by public law. Norms of corrective justice cannot respond to Kantian right in private law and a Kantian framework of distributive justice has problems explaining the side-constraints on unjust enrichment liability, based on respect for the defendant’s free agency.

Bibliography

Primary Text

Kant, Immanuel, The Metaphysics of Morals, Metaphysical First Principles of the Doctrine of Right, translated by Mary Gregor, (Cambridge: Cambridge University Press, 1991 [1796])

Secondary Texts

Arendt, Hannah, Lectures on Kant’s Political Philosophy, (Brighton: The Harvester Press Limited, 1982)

Beiner, Robert and Booth, William James (eds.), Kant and Political Philosophy: The Contemporary Legacy, (New Haven: Yale University Press, 1982)

Benson, Peter (ed.), The Theory of Contract Law: New Essays, (Cambridge: Cambridge University Press, 2001)

Birks, Peter and Chambers, Robert, Restitution Research Resource, (Oxford: Mansfield, 1997)

Brudner, Alan, ‘Private Law and Kantian Right’, University of Toronto Law Journal, Vol. 61, No. 2 (2011)

Brudner, Alan, The Unity of the Common Law, (New York: Oxford University Press, 2013)

Chambers, Robert, Mitchell, Charles and Penner, James (eds.), Philosophical Foundations of the Law of Unjust Enrichment, (New York: Oxford University Press, 2010)

Davenport, Philip and Harris, Christina, Unjust Enrichment, (Sydney: Federation Press, 1997)

Dixon, Martin, (ed.), Modern Studies in Property Law: Volume V, (Oxford and Portland: Hart Publishing, 2009)

Doyle, Matthew, ‘Corrective Justice and Unjust Enrichment’, University of Toronto Law Journal, Vol. 62, No. 2 (2012)

Gardner, Simon and Davidson, Katharine M., ‘The Future of Stack v Dowden’, Law Quarterly Review, Vol. 127, No. 13 (2011)

Glister, Jamie and Ridge, Pauline (eds.), Fault Lines in Equity, (Oxford and Portland: Hart Publishing, 2012)

Hudson, Alastair, Principles of Equity and Trusts, (Oxford and New York: Routledge, 2016)

Mee, John, ‘Joint Ownership, Subjective Intention and the Common Intention Constructive Trust’, Conveyancer and Property Lawyer, Vol. 71, No. 14 (2007)

Nadler, Jennifer, ‘What Right does Unjust Enrichment Law Protect?’, Oxford Journal of Legal Studies, Vol. 28, No. 2 (2008)

Ripstein, Arthur, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge: Harvard University Press, 2009)

Seavey, Warren and Scott, Austin, ‘Restitution’, Law Quarterly Review, Vol. 54, No. 29 (1938)

Towaka, Robert, ‘The Status Theory: A Corrective Justice Account of the English Law of Unjust Enrichment’ (2014)

Table of Cases

Lipkin Gorman v. Karpnale Ltd [1991] 2 AC 548

Patel v. Mirza [2016] UKSC 42

Westdeutsche Landesbank Girozentrale v. Islington London Borough Council [1996] AC 669

Table of Legislation

American Restatement of Restitution 1937, section 1

[1] Immanuel Kant, The Metaphysics of Morals, Metaphysical First Principles of the Doctrine of Right, translated by Mary Gregor, (Cambridge: Cambridge University Press, 1991 [1796]) (Subsequent references to this text will follow the pagination in Volume 6 of the Prussian Academy edition of this work. These page numbers appear in the margin of Mary Gregor’s translation).

[2] Hannah Arendt, Lectures on Kant’s Political Philosophy, (Brighton: The Harvester Press Limited, 1982) at 7.

[3] Ibid at 8.

[4] Mary Gregor, ‘Kant on Natural Rights’ in Kant and Political Philosophy: The Contemporary Legacy, Edited by Robert Beiner and William James Booth, (New Haven: Yale University Press, 1982) at 64.

[5] Jennifer Nadler, ‘What Right does Unjust Enrichment Law Protect?’, Oxford Journal of Legal Studies, Vol. 28, No. 2 (2008), at 245.

[6] Ernest Weinrib, ‘Correctively Unjust Enrichment’ in Philosophical Foundations of the Law of Unjust Enrichment, Edited by Robert Chambers, Charles Mitchell and James Penner, (New York: Oxford University Press, 2010) at 46.

[7] Ibid at 50.

[8] Robert Towaka, ‘The Status Theory: A Corrective Justice Account of the English Law of Unjust Enrichment’ (2014) < https://search.proquest.com/docview/1650585313?accountid=9730> (accessed 03/01/2017) at 5.

[9] Kant, supra note 1 at 6:264.

[10] Alan Brudner, ‘Private Law and Kantian Right’, University of Toronto Law Journal, Vol. 61, No. 2 (2011), at 297.

[11] Jennifer Nadler, ‘Agency and Autonomy in Unjust Enrichment Law’, in The Unity of the Common Law, Alan Brudner, (New York: Oxford University Press, 2013) at 261.

[12] Mark Leeming, ‘Subrogation, Equity and Unjust Enrichment’, in Fault Lines in Equity, Edited by Jamie Glister and Pauline Ridge, (Oxford and Portland: Hart Publishing, 2012) at 28.

[13] Nadler, supra note 5 at 261.

[14] Ibid at 246.

[15] Brudner, supra note 10 at 295.

[16] Alastair Hudson, Principles of Equity and Trusts, (Oxford and New York: Routledge, 2016) at 537.

[17] See Peter Birks and Robert Chambers, Restitution Research Resource, (Oxford: Mansfield, 1997).

[18] Hudson, supra note 16 at 538.

[19] Nadler, supra note 5 at 246.

[20] Ibid.

[21] Ibid. See also Patel v. Mirza [2016] UKSC 42 at 246, per Lord Sumption.

[22] Nadler, supra note 5 at 246.

[23] Ibid.

[24] American Restatement of Restitution 1937, section 1.

[25] Warren Seavey and Austin Scott, ‘Restitution’, Law Quarterly Review, Vol. 54, No. 29 (1938) at 31-32.

[26] Ibid.

[27] Nadler, supra note 5 at 246.

[28] Kant, supra note 1 at 6:260.

[29] Ibid.

[30] Weinrib, supra note 6 at 48.

[31] Kant, supra note 1 at 6:238.

[32] Ibid.

[33] Ibid.

[34] Weinrib, supra note 6 at 48.

[35] Kant, supra note 1 at 6:249.

[36] Ibid at 6:250.

[37] Ibid at 6:246.

[38] Ibid at 6:247.

[39] Ibid at 6:246.

[40] Weinrib, supra note 6 at 49.

[41] Kant, supra note 1 at 6:247.

[42] Weinrib, supra note 6 at 49. See also Kant, supra note 1 at 6:271-274.

[43] Kant, supra note 1 at 6:274.

[44] Ibid.

[45] Weinrib, supra note 6 at 49.

[46] Kant, supra note 1at 6:271.

[47] Ibid at 6:274.

[48] Kant, supra note 1at 6:259.

[49] Ibid at 6:261.

[50] Weinrib, supra note 6 at 50.

[51] Ibid at 51.

[52] Ibid.

[53] Ibid.

[54] Ibid.

[55] Ibid.

[56] Ibid.

[57] Ibid.

[58] Weinrib, supra note 6 at 51.

[59] Ibid at 52.

[60] Matthew Doyle, ‘Corrective Justice and Unjust Enrichment’, University of Toronto Law Journal, Vol. 62, No. 2 (2012), at 31.

[61] Ibid.

[62] Weinrib, supra note 6 at 47.

[63] See Peter Benson, ‘The Unity of Contract Law’ in The Theory of Contract Law: New Essays, Edited by Peter Benson, (Cambridge: Cambridge University Press, 2001) at 139.

[64] Weinrib, supra note 6 at 42.

[65] Doyle, supra note 60 at 31.

[66] Ibid.

[67] Kant, supra note 1 at 6:274

[68] Doyle, supra note 60 at 32.

[69] Philip Davenport and Christina Harris, Unjust Enrichment, (Sydney: Federation Press, 1997) at 25.

[70] Doyle, supra note 60 at 31.

[71] Ibid.

[72] Ibid.

[73] See Westdeutsche Landesbank Girozentrale v. Islington London Borough Council [1996] AC 669 at 710, per Lord Browne-Wilkinson.

[74] Towaka, supra note 8 at 5.

[75] Ibid at 45.

[76] Ibid at 5.

[77] Ibid at 53.

[78] Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge: Harvard University Press, 2009) at 76.

[79] Towaka, supra note 8 at 6.

[80] Kant, supra note 1 at 6:260.

[81] See Ripstein, supra note 78 at 21.

[82] Towaka, supra note 8 at 105.

[83] Ibid at 45.

[84] Kant, supra note 1 at 6:359.

[85] Towaka, supra note at 59.

[86] Ripstein, supra note 78 at 79.

[87] Ibid.

[88] Matthew Harding, ‘The Limits of Equity in Disputes over Family Assets’, in Fault Lines in Equity, Edited by Jamie Glister and Pauline Ridge, (Oxford and Portland: Hart Publishing, 2012) at 195.

[89] Ibid.

[90] See, for example, John Mee, ‘Joint Ownership, Subjective Intention and the Common Intention Constructive Trust’, Conveyancer and Property Lawyer, Vol. 71, No. 14 (2007); Nick Piska, ‘Constructive Trusts and Constructing Intention’ in Modern Studies in Property Law: Volume V, Edited by Martin Dixon, (Oxford and Portland: Hart Publishing, 2009) and Simon Gardner and Katharine M. Davidson, ‘The Future of Stack v Dowden’, Law Quarterly Review, Vol. 127, No. 13 (2011).

[91] Harding, supra note 88 at 198.

[92] Ibid at 195.

[93] Ibid at 203.

[94] Ibid.

[95] Brudner, supra note 10 at 289.

[96] Ibid.

[97] Brudner, supra note 10 at 308.

[98] Ibid.

[99] Kant, supra note 1 at 6:259.

[100] Ibid at 6:238.

[101] Ibid at 6:256.

[102] Brudner, supra note 10 at 287.

[103] Kant, supra note 1 at 6:264.

[104] Brudner, supra note 10 at 288.

[105] Ibid at 309.

[106] Ibid at 310.

[107] Kant, supra note 1 at 6:311.

[108] Ibid at 6:306.

[109] Ibid at 6:306-307.

[110] Ibid at 6:312.

[111] Kant, supra note 1 at 6:324.

[112] Brudner, supra note 10 at 293.

[113] Kant, supra note 1 at 6:261.

[114] See Lipkin Gorman v. Karpnale Ltd [1991] 2 AC 548 at 579, per Lord Goff of Chieveley.

[115] Nadler, supra note 11 at 261.

The post Right at Stake in Cases of Unjust Enrichment appeared first on UKEssays.com.

Finally, The essay will argue that the child’s eyewitness testimony can be taken into account if they are questioned correctly and understand the nature of the enquiry.

Firstly, This essay describes an eyewitness and a eyewitness testimony. An eyewitness is a person who actually sees an act or occurrence and can give a firsthand account of it, and can offer important information. An eyewitness testimony can be very essential as it supplies information about the case from a bystanders or victims perspective in the courtroom. Although when it comes to an eyewitness testimony, this is not always definite and dependable.

Succeeding, this essay will detail how the criminal justice system in Australia can use an eyewitness testimony from a child’s perspective.

Most Australian jurisdictions considers those not competent who are of a certain age to not be capable to supply sworn evidence. Territory and State legislation include a fixed age in which children are considered incompetent to give evidence, Although Judicial determination can over rule a child’s competency to supply the court with evidence. The children who are under the age of fourteen years old will be assessed by the judge and interviewed which will give the judge an idea whether the child understands the oath. Understanding of the oath will classify that the child’s evidence is accepted with the same values as an adult’s. Not understanding the oath will then force the judge to determine the child’s intelligence, and whether the child is able to acknowledge questions and answer them correctly. Unable to fathom the questions, means the evidence is excluded. Understanding of the questions, evidence is corroborated and admitted. (The Australasian Institute of Judicial Administration Incorporated, 2015). Succeeding, this essay will discuss issues regarding eyewitness testimony from children alongside additional reliable evidence from children.

Many issues can occur with eyewitness testimony that includes children, this includes how the child is questioned, how long after the incident the child is questioned and how the child handles the experience. The difference between adults and child’s eyewitness testimony is not all that different, it is argued that both recollections can be affected by human perception. Human perception is what a person senses and experiences during a situation. When humans are under stress, suffering from shock is a main theme and even your senses can be interpreted differently and can cause you to be distorted which is known as repressed memory, Thus leading to false memory. Explaining a experience differently causes many problems such as incorrect information which can lead to an innocent person being accused. Figures in the United States, show that eyewitness testimonies have provided up to 75% of wrongful convictions. (Reiss, 2008).

Affecting and explaining the experience incorrectly, can involve quality of lighting, distance between person and whether there was any obstruction in the situation that can very much lead to important details that can lead to the accused being missed. The waiting period after an experience is a major issue as the prolonged time to create a statement, can cause detail to be forgotten and altered which can impact a case heavily. Both a child and adult’s time to give a statement can be critical, in making sure the details are fresh in the mind of the person giving a statement and can be the difference between a more precise eyewitness testimony. (Flin et al., 1992).

Forgotten or altered information can lead to false information being given. Questioning can have a big impact on how a question is answered, through the term suggestibility. Studies by Dale,Loftus and Rathbun (1978) has shown that questions such as did you see the? Did you see any? Didn’t you see some? Were answered yes, time and time again opposed to other types of questions. Concerns in children completing eyewitness testimonies is there memory to an adult is quite narrow, children are at a higher risk of suggestibility due to a child’s communication skills not being as formed as an adults, Thus creating the thought that a child could be deficient in being a dependable witness. The court’s process can effect the child and provide anxiety and depression which would refrain the child from taking the stand. (Almerigogna, Ost, Bull, & Akehurst, 2007). If the only eyewitness to a case is that of a child, this could be a big problem.

Onwards, children giving evidence can be formed more dependable. Giving the child access to a statement as soon as possible and accompanying the child with a guardian will provide the support and give more reliability to the child right away. By crowding the child with multiple interactions with different people can cause anxiety and the child can feel very uncomfortable and not be able to supply a reliable statement which can lead to false information given which can impact a case through wrongful convictions. creating a child friendly environment with the likes of children’s games, posters or pictures on the wall will provide a non intimidating area for the child and will make then feel comfortable when participating in the interview, providing activities that the children are use to at their own home can further enhance the quality of the statement given by the children, these things can be implemented to reduce the anxiety with the children.

A study by Reyna and Brainers (2012) found that returning back to the scene of an event can cue false memory. This shows that before the questioning allow the child to investigate the area where they will be questioned and create a satisfying environment, for the child to feel comfortable alongside using a clear and calm voice to ease the child. Children cannot sit still for long periods of time so proper breaks are required, by applying regular breaks the child can focus and provide a proper statement. The court procedure must be strict and evidence from a child must be handled in the same manner as an adult’s evidence would be. Furthermore this can be done through not allowing judges to provide warnings about the unreliability of children witnesses. (The Australasian Institute of Judicial Administration Incorporated, 2015). Succeeding, this essay will supply evidence to establish how reliable evidence is from a child.

Many studies have been completed to demonstrate how evidence is reliable from a child.

Throughout time it has been proved that a child’s evidence is reliable. National Science Foundation in 2008, established that the U.S legal system has had thoughts of children testimony incorrect. National Science Foundation (2008) found humans have two types of memory “verbatim trace” and “gist trace”. Gist trace is the most common cause which creates false memories. Verbatim trace is where events are recorded accurately and correctly. The National Science Foundation (2008) found that children have more “verbatim trace” as they grow older, children begin to establish more “gist trace” which occurs mostly in adults. Through this research an understanding is gained that children’s recollections can be more reliable and thus creating more reliable evidence. (National Science Foundation, 2008). Reyna and Brainerd (2012) both agreed that memories are stored in two different areas of the mind, one being recorded memories and the other being captured memories. Research by Reyna and Brainerd (2012) found that meaning based memories are more responsible for false memories, especially in adult witnesses. Children are more reliable due to having more “verbatim trace” then adults thus meaning an accurate testimony when questioned. (Brainerd and Reyna, 2012).

Furthermore, this essay will argue that under proper questioning children should be able to supply a eyewitness testimony.

Evidence from National Science Foundation (2008) alongside Reyna and Brainerd (2012) has investigated that children use a particular other part of the mind then an adult which records an event and thus creating a child’s recollection more accurate, alongside adults decreasing memory accuracy due to having more knowledge then children. The assumption that children are more prone to false memory reports than adults is untenable.

Children should be able to provide an eyewitness testimony to create lower wrongful convictions, alongside being competent to be able to and are interviewed correctly with correct questioning. Questioning should follow proper guidelines and recording’s made available.

Misleading information cannot be given and a supported style should be approached, open ended questions should be presented due to younger children being more vulnerable and supply the correct information which will establish that the proper information is supplied. (Ceci et al., 1987) . This day and age we know that the reliability of memory evidence depends on not only the style of questioning but also the types of questions children are asked. (Howe and Knott, 2015). It has been proven that children are able to give an accurate report of the event when asked to recall the event freely. Less detail is given by a younger child then an adult or older child. (Pipe,1996). In the United sates, Orbach, Hershkowitz, Esplin, Lamb, & Horowitz (2007) for the National Institute of Child Heath and Human Development (NICHD) developed an interesting interview style that is used when questioning children. A specific structure and timing which should be implemented when interviewing a child, though the style also includes what you should not do in an interview.

Over time research has shown that using the National Institute of Child Health and Human Development interviewing style, has further improved on the quality of testimonies and reliable information has also improved. Opened ended questions are used more frequently and there is shown to be a 50% decrease in the amount of suggestive prompts then those who are not introducing the interviewing style. Through using this interviewing style the testimonies are far more accurate, and are less likely to be challenged in court. (Howe and Knott, 2015). Children should be able to supply a reliable eyewitness testimony with the circumstances that they are correctly questioned and with the use of the interviewing style created by Orbach, Lamb, Hershkowitz, Horowitz and Esplin (2007) If an adult’s testimony is said to be reliable, why isn’t a child’s testimony?

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Pipe, M. E., & Wilson, J. C. (1994). Cues and secrets: Influences on children’s event reports. Developmental Psychology, 30(4), 515.

Reiss, R. (2008). Wrongfully Convicted by an Inaccurate Eyewitness.

The Australasian Institute of Judicial Administration Incorporated. (2015). Bench book for children giving evidence in Australian courts.

Thomson, D. (1988). Reliability and credibility of children as witnesses. Children as witnesses. Canberra, Australia: Australian Institute of Criminology.

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The focus will be on the following questions: What is the nature of hot pursuit and what are the international legal conditions that have to be fulfilled in order to exercise it? What is the objective of the right of hot pursuit? To answer the latter question, the focal point will be on what function the hot pursuit actually fill since it at first sight could be seen as a way for the coastal state to extend their sovereignty and jurisdiction to include foreign ships on the high seas, something that in general is supposed to be reserved to the flag state.

Hot pursuit is not the only exception to the flag state principle. As will be seen below, piracy, slave trade, unauthorized broadcasting and major pollution incidents are other examples of exceptions to the flag state principle, but, given the limited scope of this essay, there would not be much said about each exception if all of them were included in this essay.

Purpose and disposition

The purpose of this essay is to clarify the international recognized conditions for a state to exercise the relatively extensive right of hot pursuit and to critically examine the objectives of this right. Since this is a rather far-reaching right, being a derogation from the general rule prohibiting any interference by a state with non-national ships on the high seas, it is important to examine the original objectives behind hot pursuit and what function it actually fills. Since this is a rather far-reaching right that is limiting the jurisdiction of the flag state on the high seas (and in a way therefore also affect the freedom of the high seas),

The essay will have the following disposition: First, the freedom of the high seas will be described in short together with the principle of flag state jurisdiction (section 2), to give a sufficient background to the reader. Thereafter, the circumstances which serve as prerequisites for the exercise of hot pursuit will be examined.

Jurisdiction on the high seas

The freedom of the high seas – an overview

Ever since the eighteenth century the high seas have been open to all states, with no state able to claim sovereignty over any part of it. This concept, called the freedom of the high seas, was developed as opposed to the closed seas-principle which was claimed by Portugal and Spain in the fifteenth and sixteenth centuries, leading to a division of the seas of the world between the two powers in 1506. However, the high seas are nowadays subject to res communis and the general rule is that states cannot in principle control the activities and the whereabouts of other states on the high seas. The freedom of the high seas has been traditionally established in customary international law but the first draft of codification was formulated in the Resolution on the Laws of Maritime Jurisdiction by the International Law Association in 1926, which declared that “no state may claim any right of sovereignty over any portion of the high seas or place any obstacle to the free and full use of the high seas”. The principle of the freedom of the high seas was eventually also declared in the Geneva Convention on the High Seas (1958) as well as in the 1982 United Nations Convention on the Law of the Sea (the first hereinafter referred to as GCHS and the latter as UNCLOS). These conventions clarified international customary law and made it easier to comprehend. Some articles in the conventions will be brought into light in the text below in order to give a clear and fuller view of the subjects presented.

Some of the key-principles regarding the high seas are stated in article 2 GCHS and article 87 and 89 UNCLOS, which affirm that the high seas are open to all states and that no state may validly purport to subject any part of them to its sovereignty. Furthermore, article 87 UNCLOS states that the freedom of the high seas includes inter alia the freedoms of navigation, overflight, laying of submarine cables or pipelines, the construction of artificial islands and other installations permitted under international law, fishing and scientific research. However, these freedoms are to be exercised with due regard for the interests of other states and for the rights under the convention with respect to activities in the area (meaning the International Seabed Area). Worth noting is also that the high seas are reserved for peaceful purposes (article 88, UNCLOS).

Flag state jurisdiction

Thus, the high seas have relatively far-reaching freedoms for all states, but there must however be some kind of maintenance of order and jurisdiction so that these freedoms do not get violated and used in a wrongful way by any state and so that wrongful acts on the high seas do not go unpunished. The main rule is that the state which has granted to a ship the right to sail under its flag (the flag state) has the exclusive right to exercise legislative and enforcement jurisdiction over its ships on the high seas. It is accordingly the flag state that enforces the rules and regulations of its own municipal law as well as international law. 

The general principle that the flag state alone may exercise jurisdictional rights over its ships was elaborated in the Lotus-case (1927) where the Permanent Court of International Justice held that “vessels on the high seas are subject to no authority except that of the state whose flag they fly”. The flag state-principle is nowadays also stipulated in article 92 UNCLOS (and article 6 GCHS), where it is stated that ships must sail under the flag of one state only and that they will, as a general rule, be subject to that state’s exclusive jurisdiction on the high seas. Each state sets up its conditions for the grant of its nationality to ships, for registration of ships and for the right to fly its flag. This was declared by the International Tribunal for the Law of the Sea in the M/V Saiga (No.2) case, where one concluded that the determination of the criteria and procedures for granting and withdrawing nationality to ships are parts of the flag state’s exclusive jurisdiction.

The nationality of the ship depends accordingly upon the flag the ship flies, but there must be a genuine link between the state and the ship. The requirement of a genuine link was intended to counter the use of flags of convenience (often operated by states such as Liberia and Panama) where states grant their nationality to ships looking for favorable taxation and work- and social agreements. However, if a ship sails under the flags of more than one state according to convenience, the ship does not have any nationality in a juridical point of view and may therefore be boarded and seized on the high seas by any state. This is to be compared with ships that do have a flag, which (as a general rule) only can be boarded and seized by its own flag state on the high seas.

Worth mentioning is that there are also some duties and responsibilities attached to the flag state jurisdiction, such as the obligation to legislate to make it an offence to break or injure submarine cables and pipelines under the high seas. Furthermore, the flag state also has to provide for compensation in case such an offence occurs and to adopt and enforce legislation dealing with assistance to ships in distress in compliance with international duties regarding safety at sea.

When it comes to warships and ships owned or operated by a state where they are used only on governmental non-commercial service, the exclusivity of the flag state-principle is applicable without exception. As can be read in articles 95 and 96, UNCLOS, those ships have complete immunity from the jurisdiction of other states than its flag state. Though, the principle of flag state jurisdiction on the high seas is not absolute. It is subject to some exceptions in which third states may share enforcement or legislative jurisdiction (or both) together with the flag state. In the following, the focus will be on the exception of hot pursuit, but some other exceptions worth mentioning are: piracy, unauthorized broadcasting, slave trade, drug trafficking and major pollution incidents. The right of hot pursuit is however different from the other exceptions to the flag state principle, since the right of hot pursuit derives from jurisdiction under the “territorial” (+ EEZ and continental shelf?) principle whereas enforcement related to slave trade and piracy (for example) derives from jurisdiction based on the universality principle. 

Hot pursuit – an exception to flag state jurisdiction

Historical background and objective

When a foreign ship has infringed the rules of a costal state, the right of hot pursuit makes it possible for the state to pursue and seize the ship outside its territorial sea in order to ensure that the ship does not escape punishment by fleeing to the high seas. This principle limits the freedom of the high seas and represents an exception to the exclusive jurisdiction of the flag state on the high seas, since it makes it possible for the coastal state to follow and seize a ship registered in another flag state and in this way extend its jurisdiction onto the high seas.

The right of hot pursuit is an act of necessity which is institutionalized and restricted by state practice. It emerged in its present form in Anglo-American practice in the first half of the nineteenth century. In England there was an old rule of “fresh pursuit” where the role of the pursuer was played by a mere individual, unlike today’s hot pursuit where the pursuer must be played by a person in his official capacity or by a member of a certain authority (see below). The principle has now been recognized in international customary law for a long time. The I’m alone-case, 1935, can lead as an example, where it was stated that warships or military aircrafts of a state are allowed to engage in hot pursuit if a foreign ship has violated that state’s laws within its internal waters or territorial sea and to make an arrest on the high seas. The Hague Codification of 1930 served as an evidence of general recognition of the right of hot pursuit by states when it provided the basis for the draft article adopted by the International Law Commission which later on became article 23 of the Geneva Convention on the High Seas of 1958.

The objective of the right of hot pursuit is to make it possible for states that are exposed to delicts made by non-national ships to bring the escaping offenders before its jurisdiction. In this way the high seas may not provide a safe haven for ships having committed a delict within a state’s maritime jurisdictional zones. Hot pursuit could be seen as contrary to the exclusive principle of flag state jurisdiction on the high seas, but seen in the light of the high seas, it is not reckless to conclude that the right of hot pursuit is in accord with the objective of order on the high seas. Moreover, the right of hot pursuit has a preventive function derived from the psychological effect of the increased disciplinary rights that the violated coastal state is entitled to. The psychological effect is not to be underestimated since it could prevent “wrongdoers” to undertake illegal activity, knowing that they may be pursued, arrested and punished by the authorities of the state whose laws have been violated.

Pursuit onto the high seas does not offend the territorial sovereignty of any state and it involves no intrusion into foreign territory since there is no sovereign to the high seas, except the state of the flag. To let the flag state principle stand in the way for effective administration of justice when a ship has committed a delict in another states juridical maritime zones has been seen as disproportionate, hence hot pursuit has become an international right for coastal states, regardless of the flag of the ship. Furthermore, the right of hot pursuit is a right of necessity since the coastal state would not be able to enforce its laws and regulations against fleeing ships without being able to pursue them.

Legal status

As mentioned above (section 2.1.), the right of hot pursuit was codified and recognized by states in the Hague Codification in 1930, which led to the development of article 23 of the Geneva Convention on the High Seas (1958). The provisions on hot pursuit in article 23 GCHS was thereafter essentially reproduced in article 111 of the United Nations Convention on the Law of the Sea (1982), comprising the new developments in the international law of the sea, such as the generated rights followed by the establishment of the new jurisdictional zones of the continental shelf and the exclusive economic zone. Since article 111 UNCLOS is a renewed definition of the right of hot pursuit, it is the definition stated in UNCLOS that is the most updated and will be in focus below.

Article 111 UNCLOS has the title “Right of hot pursuit” and contains eight paragraphs, in comparison to article 23 GCHS which only has seven paragraphs. (See the appendix for the full and exact wording of article 111 UNCLOS). Article 111 declares the coastal state’s right to engage in hot pursuit and lays down a number of cumulative conditions under which this right may be exercised. These conditions have been set up in order to avoid abuse and incorrect exercise of hot pursuit by the coastal states, such as situations where the wrong ship is pursued by accident. The specific conditions are also of great importance when it comes to upholding the freedom of navigation on the high seas and to ensure that the coastal state have enough evidentiary material to support a hot pursuit before exercising it.

International conditions and the nature of hot pursuit

General conditions – (ta bort?)

The International Tribunal for the Law of the Sea has emphasized that the conditions laid down in article 111 UNCLOS are cumulative, which means that each one of them has to be fulfilled in order for the hot pursuit to be lawful. The basis for the exercise of hot pursuit is specified in paragraph 1 of article 111 UNCLOS which notes that such pursuit may be undertaken when the authorities of the coastal state have good reason to believe that the foreign ship has violated its laws and regulations. The violation must be made within one of the costal state’s maritime zones, such as its internal waters, archipelagic waters, territorial sea, exclusive economic zone or its continental shelf. Furthermore, the laws and regulations that were violated must have been enacted in accordance with international law. Thus, article 111 UNCLOS makes it possible to pursue a foreign ship onto the high seas, but with respect of international law and the principle of state sovereignty, the pursuit must cease as soon as the ship enters the territorial sea of its own flag state or any other state. Otherwise, the pursuit would end up in a violation of another state’s sovereignty.

Involved vessels

As can be seen in article 111 (5) UNCLOS, the coastal state may only exercise hot pursuit through the use of certain ships and aircraft having a connection to the governmental authority of the state. Warships and military aircrafts, together with other specially authorized government ships or aircrafts which are clearly marked and identifiable as such, are the only vessels that are required to exercise the pursuit. This limitation to vessels vested with governmental authority ensures that the pursuing state cannot avoid its state responsibility for actions made by its pursuing ships acting on behalf of the coastal state. It is not the specific authority to pursue that is of importance; it is rather the general authority of applying laws and to take necessary measures in this regard. This guarantees the responsibility of a state for the actions made by its ships operating under the government. A state’s official connection to military aircrafts or warships needs not to be manifested since this connection is self-evident, thus, other pursuing vessels need to be specifically authorized by the state to exercise these measures.

Commercial ships in government service as well as private ships are subject to the jurisdiction of the coastal state and can be pursued if there is good reason to believe that a violation of the laws have been made. However, it is not in accordance with international law to exercise hot pursuit against other states’ warships. These, together with other non-commercial ships operating under a foreign government, are generally immune from the jurisdiction of any state other than the flag state. Although these ships are excepted from a coastal state’s right of hot pursuit, this does obviously not mean that they do not have to follow the laws and regulations of the coastal state. The only immunity warships enjoy is the immunity from enforcement jurisdiction of the coastal state, so the flag state might have to answer for the violation made by one of its governmental ships. Furthermore, the coastal state may pursue and arrest warships and non-commercial ships in foreign government service in self-defense.

Offences

The right of hot pursuit arises “whenever the offending ship has violated a law which has been validly enacted for the purpose of the zone where the offence has occurred”. In order to be entitled to hot pursuit, the coastal state has to have good reason to believe that the foreign ship has made such an offence, or as it is stated in article 111 (1) UNCLOS: “violated the laws and regulations of that State” . The article states no predefined offences, so what kind of offences does this actually refer to? There is in fact no limit of how severe the delict must be in order to entitle the state to hot pursuit. The coastal state is entitled to undertake hot pursuit as soon as any local law or regulation has been violated, no matter how trivial. The wording in article 111 UNCLOS allows hot pursuit whenever a law has been violated, no matter what the character of the offence is. There has been a view that the right of hot pursuit should arise only in respect of certain kinds of offences which could be considered as quasi-international offences (such as security offences), but the predominant view at the time of the Geneva Conference was that there should be no catalogue restricting the right of hot pursuit to offences of a certain character.

The seriousness of the offence should however be taken into account by the coastal state before starting a pursuit, so that the freedom of navigation is not hindered for minor offences. This would otherwise result in a disproportionate exercise of power. Furthermore, international comity and goodwill can be seen as important reasons why a coastal state should not exercise in response to trivial offences. Naturally, this principle of comity does not legally bind the coastal state to behave in a certain way, since it is not a principle under international law. In general, states are however anxious to submit to this principle of comity, since it is in their own best interest to show respect to other sovereign states. A state that does not act hospitably to other states and pursues their ships without good reason may be subject to the same abuse when its own merchant fleet navigates in other states’ territorial seas. Except taking comity into account, states’ decision to exercise hot pursuit is also based on the practical reality that states are not likely to find minor offenders worth the trouble of pursuit. Besides, ships guilty of trivial offences are unlikely to risk the dangers of flight in the hope of avoiding arrest for a minor delicts. Although such flight could indicate that the ship has been engaged in a delict that is much less trivial than the coastal state first suspected.

The nature of the offence entitling the state of hot pursuit is related to the competence to enact laws for the different maritime zones. In the territorial sea this competence is unlimited (except for the right of innocent passage), but regarding the contiguous zone or other zones of extraterritorial jurisdiction, the states’ competence to make acts offences is restricted since these are zones of limited jurisdiction. The right of hot pursuit arises when an offence has been made within one of these zones, but it is provided that the offence is made against laws which international law allows to be enacted for the purposes of that zone.

Article 111 (1) UNCLOS sets up the condition that a state must have “good reason to believe” that a ship has violated the state’s laws and regulations. This good reason standard prevents states from pursuing a foreign ship solely based on the suggestion that an offence has been made by it. However, this condition does not require that the coastal state has actual knowledge of an offence. The proper interpretation of this good reason condition lies somewhere between suspicion and actual knowledge of an offence. In regard to this, the mere flight of a vessel could be sufficient to justify hot pursuit, since it could give the state a suspicion that the ship is trying to flee from the consequences of an offence made by it. Even though the state originally lacked good reason to believe that the ship had made an offence, this suspicious behavior could be enough to live up to the good reason standard.

Offences that are not attributed to the foreign vessel itself do not lay ground for hot pursuit, for example when an offence is committed by a passenger. The coastal state’s jurisdiction is towards the ship only, the passengers and crew remain under the jurisdiction of the flag state as long as their actions are not attributable to the ship itself. Robert C. Reuland states that “the delict must have been committed under the color of the ship’s authority” in order to give rise to hot pursuit. Finally, when it comes to offences, one can conclude that there are two main conditions that have to be fulfilled in order to give right to hot pursuit: first, the state must have good reason to believe that an offence has been committed and second, the offence must be attributable to the ship itself.

Commencement and cessation

Article 111 (1) UNCLOS states from which maritime zones a state may commence hot pursuit under international law; namely when the foreign ship (or one of its boats) is within the pursuing state’s internal waters, archipelagic waters, territorial sea or contiguous zone. It is only when the offence is committed within one of these zones that the coastal state may undertake hot pursuit. However, in comparison to article 23 GCHS, article 111 (2) UNCLOS is more extensive and stipulates that the right applies mutatis mutandis to violations of legislation applicable to the exclusive economic zone or the continental shelf (including safety zones around continental shelf installations). The right to begin hot pursuit while the foreign ship is within the contiguous zone is limited to the enforcement of certain rights, that is to say if there has been a violation of the rights for the protection of which the zone was established. Robert C. Reuland mentions that “although a state’s legislative jurisdiction within the contiguous zone may not be limited to the four purposes set out in both sea conventions, such laws should nevertheless be limited to the protection of the state’s territory and territorial sea. It follows that hot pursuit may not be commenced from the contiguous zone for violations of laws that do not reasonably comport with the littoral state’s legislative competence with respect to this zone.” Whether pursuit may start while the ship is in the continental shelf or in the exclusive economic zone is more directly an aspect of the question whether the violation was made against legislation relation to these zones, than in the case of the contiguous zone. The offence is more directly related to the regime of the zone. The state may enact laws consistent with the sovereign rights in these zones, for example relating to protection of fisheries etc in the case of the exclusive economic zone. Similarly, the violation of any law enacted by the coastal state that is consistent with the state’s sovereign rights over the continental shelf may give rise to the right of hot pursuit.

The right of hot pursuit ceases as soon as the pursued ship enters the territorial waters of its own or a third state. To continue therein would result in a violation of that state’s sovereignty and that is accordingly offending international law. This general rule may however be put aside where hot pursuit in another state’s territorial sea is permitted by treaty. It is important to mention that the general rule of cessation at the territorial sea of another state does not apply to other maritime zones beyond the territorial sea, so the pursuing state may actually pursue the foreign ship into the exclusive economic zone or even the contiguous zone of another state.

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“when a suspect who is interviewed after arrest, fails or refuses to answer certain questions, or to answer them satisfactorily, after due warning, a court or jury may draw a proper inference from this silence under ss. 36 and 37 of the Criminal Justice and Public Order Act 1994”.

The use of “after due warning” indicates that the ‘special warning’ should be given before questions are put to the suspect concerning objects, marks or substances or marks on such objects or being found at a place or about the time an offence has been committed. This is a common-sense approach. It would be an unnecessary burden for interviewing officers to be expected to judge, or know, whether an answer to questions is unsatisfactory or not. In many cases, the police only achieve discovery of an unsatisfactory answer after further enquiries. If a ‘special warning’ is given then any later discovery of an unsatisfactory answer could be the subject of a proper inference using the statutory provisions of ss. 36 and 37.

The chronology of the Act is also an indicator of when the ‘special warning’ should be given. Section 36(1) has four parts:

• is the fact of the possession of objects, substances and marks;
• the belief of the officer that possession indicates participation in an offence;
• informing the suspect of the belief and the request for an explanation;
• the refusal or failure to explain.

Item (c) is clearly the ‘special warning’. The warning must therefore come before any failure or refusal to answer. The Police National Crime Faculty states that “test” questions should be asked before applying a special warning in their September 1996 update when they assert “however, a special warning should not be used in any circumstances until after a suspect has failed or refused to answer certain questions (Code C10.5A)”. This assertion makes no sense and flies in the face of the intention of the legislators. The legislator’s interpretation is clearly right, the suspect should be warned of the sanction that could be applied, before questions begin, about incriminating articles or presence at a particular place.

Useful analogies can be drawn: police have the power to take intimate samples, e.g. blood for the purpose of confirming or disproving a suspect’s involvement in a recordable offence. Before a person is asked to provide the sample he must be warned that if he refuses without good cause, his refusal may harm his case if it comes to trial. Is there any essential difference between this provision and special warnings? The warning comes before the request: the suspect is informed of the sanction to be applied if he refuses the request.

Another analogy would be a section 34 caution. “A person whom there are grounds to suspect of an offence must be cautioned before any questions about it are put to him regarding his involvement or suspected involvemen[t]”. In this case, the caution comes before the questions. Again, is there any essential difference between this provision and a special warning? It makes clear and common sense to apply the warning before questions are put.

Comments by Police when Solicitor advises suspect to make no comment.

I agree it is right not to undermine the legal representative by stating to the suspect that remaining silent may not be in their interest. However, the Royal Commission study in 1993 identified that legal representatives at police stations were frequently unqualified and untrained. The Legal Advice and Assistance Regulations 1989 permit delegation by a solicitor to such unqualified clerks. The Royal Commission study also found that the incidence of advice to exercise the right to silence increased at police stations where the adviser was wholly experienced.

The case law to date clearly indicates that a mere assertion that a suspect should not answer questions on legal advice will not save them from an adverse inference. Police should not be passive where non accredited or probationary representatives, unsuited to provide legal advice, advise suspects to remain silent to cover their own lack of knowledge or experience. In those cases, police should consider contacting the solicitor to give them the opportunity to make alternative arrangements.

Reference is made in the memorandum to R v Condron and Condron. It is suggested that the judgement simply gives guidance at court when the defence wish to challenge the drawing of inferences. That is not the meaning of the judgement. It clearly deals with a solicitor giving his clients advice not to answer questions from the police. The appeal court dealt with that by stating inter alia “If the accused gave as a reason for not answering questions that he had been advised by his solicitor not to do so, that advice did not, in their Lordship’s judgement amount to a waiver of privilege. But equally that bare assertion was unlikely by itself to be regarded as a sufficient reason for not mentioning matters relevant to the defenc[e]”.

Prepared statements presented before interview or on charge.

The memorandum refers to detailed advice prepared by the Criminal Justice office. I have read the detailed advice, which appears to state that suspects cannot be interviewed after charge except on “information obtained after charge from sources other than the suspect”. I am unable to discover the origin of this interpretation. Code C. 16.5 states that questions can be put “where it is in the interests of justice that a person should have put to him and have an opportunity to comment on information concerning the offence which has come to light since he was charged or informed he might be prosecuted”. There is no exclusion on information from the interviewee.

It would be likely to be in the interests of justice where, for example, a suspect produced a detailed written explanation, after charge, especially where matters are raised, not previously covered by the interview.

Need to record information disclosed before interview/charge.

I agree with the sentiment of the paragraph. It would be a mistake to set a precedent requiring written disclosure in every case. Legal representatives frequently assert that all the prima facie evidence should be produced before interview or the suspect will be advised to remain silent. The origin of this advice are the recommendations of the Royal Commission that such a requirement be placed in the 3rd edition of the Codes of Practice. The recommendations were not ratified and no such requirement exists. However, Doctor Eric Shepherd wrongly included the recommendation as a fact in his advice to legal representatives. Police officers should be given guidance to equip them to deal with legal advisors who make assertions not based on legal requirements.

Conclusions

I have only briefly covered the matters raised in the proposed memorandum. I am willing to provide information that is more detailed if required. I hope that my views will be accepted in the way they are offered, i.e. helpful and qualified.

The enclosed book is an in depth study of the matters mentioned above. The book contains critical comment about the stance taken by the Criminal Justice Office and the National Crime Faculty. It is the job of a “master” to critically comment. As uncomfortable as it is for the persons concerned I believe the comments are justified. It is to be hoped that the bodies criticised do not treat the comments personally, thereby clouding their judgement.

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There are several evidential issues that arise in the above scenario. In order to be able to advise on the reliability of the various witnesses above it is necessary to consider the law regarding compellability and competence, as well as the usage of circumstantial evidence and the age and mental capacity of the witness. There also needs to be a discussion on how the evidence of a co-defendant can be used and when a co-defendant would be entitled to give evidence against the co-accused.

This essay will also look at the law regarding the way in which the judge should direct the jury in relation to a defence of self defence and provocation. This will include examining whether a defendant is required to rebut the defence of provocation where he has not sought to rely on such a defence.

Within the defence of self defence this study will examine where the burden of proof lies in asserting this defence and the standard of that burden. As a conclusion the essay will consider the summing up of the judge were he states that the jury must be 80% certain of the defendants guilt in order to find the defendant guilty.

Competence of witnesses

Under the Youth and Criminal Evidence Act 1999 it is a requirement that all evidence must be given on oath or affirmation. S55 of this Act removes this requirement where the witness is under the age of 14. The Oaths Act 1978 s1 requires an oath to be administered in the correct manner unless the witness objects to the oath or is physically incapable of taking the oath.

Persons not wishing to swear under the Christian or Jewish oath can affirm or swear in the manner prescribed by any other religion. The courts will accept such affirmations so long as the courts are of the opinion that the manner used is binding on the conscience of the individual.

Very few people are regarded as unable to testify. The most common application of the inability to testify principle generally centres on the ability of children to testify. In order for children to testify the court have to be satisfied that the child understands the nature and the significance of the oath.

Compellability of witness

It is the generally held opinion that every witness who is competent is also compellable. In Ex P Fernandez Willes J made the comment that:

Every person in the kingdom except the sovereign may be called upon and is bound to give evidence to the best of his knowledge upon any questions of fact material and relevant to an issue tried in the Queen’s courts, unless he can shew some exception in his favour.

In civil cases spouses used to be regarded as incompetent to give evidence under the Evidence Act 1851. This anomaly was amended by the Evidence Amendment Act 1853 s1 making the spouse competent and compellable. Although a spouse can be compelled to give evidence they cannot be compelled to co-operate by supplying a witness statement before the court hearing. For this reason spouses who refuse to co-operate are unlikely to be called as witnesses as those calling them would not know in advance what the witness is likely to say when they are on the stand.

Co-defendants and defendants as witnesses

Prior to the introduction of the Criminal Evidence Act 1898 defendants were not allowed to give evidence at trial. The introduction of this Act made it so that all defendants can now be regarded as competent but not compellable. Co-defendants are also competent but cannot be compelled to give evidence against the co-accused. If the co-accused pleads guilty to the offence or the prosecution dismiss the charges as no case to answer, or the two defendants are to be tried severally that co-accused can then become compellable.

Defendants cannot be compelled to give evidence in court; however, those who opt not to testify can have adverse inferences drawn from their refusal. Under the 1898 Act the judge and counsel were allowed to comment on the defendant’s decision not to testify, although the judge had a duty to warn the jury that they are not entitled to infer guilt on the basis of the silence of the defendant at trial.

This has been changed by the introduction of the Criminal Justice and Public Order Act 1994 s35(3) which now allows a jury to draw inferences from the failure of the defendant to testify. In order for these inferences to be drawn the defendant must have pleaded not guilty; be mentally and physically fit to testify and understand the risks involved with opting to remain silent.

Spouses of defendants and criminal prosecutions

Under s53(1) of the YJCEA 1999 all persons are competent to give evidence. There is no exclusion under this Act for the spouses of the accused therefore in the eyes of the court they are deemed to be competent as witnesses. S80 (2) of the Police and Criminal Evidence Act 1984 has the effect of making it so that the accused’s spouse is always compellable. The only time when an exception would be made in this instance would be if the spouse was also subject to charges in relation to the offence.

In those circumstances making the souse compellable could amount to self-incrimination or the spouse having to incriminate her husband in order to avoid charges against herself. There are certain specified offences set out under s80(3) where the spouse will be compellable and these include sexual offences, assaults on the spouse or any person under 16 and attempting or conspiring to commit either of the aforementioned offences.

Children as witnesses

Although all witnesses can be deemed to be competent regardless of their age etc s53(3) of the Although all witnesses can be deemed to be competent regardless of their age etc s53(3) of the YJCEA 1999 states that a person is regarded as not competent if in the opinion of the court the person does not understand the questions put to them as a witness and cannot answer the questions in a way that can be understood by those present at the trial.

The decision as to whether the child is considered to be competent to testify is assessed on the balance of probabilities test. S55(2) of the Act governs whether the child would be required to swear an oath. under this section the child must be 14 or over and must have a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath. Where the child does not satisfy the above conditions the evidence can be given unsworn.

Persons of defective intellect

A similar test to that applied to the competence of child witnesses is applied to persons with defective intellect. If the basic test for competence is satisfied then that person will be able to give evidence. The court will determine whether this should be on oath or not based on the witnesses ability to appreciate the solemnity of the occasion as mentioned above.

Circumstantial evidence

Circumstantial evidence is not a fact that can be proven but that can be inferred from the evidence supplied. In this particular scenario above the statement of Beryl could be deemed to be circumstantial evidence as she has stated that she sold a knife to the defendant 2 days before the killing.

In the above scenario it is not stated what kind of knife was used in the stabbing and therefore adducing evidence to show that the defendant bought that particular knife 2 days earlier is only circumstantial unless there is definite proof that this was the knife used in the attack.

In the case of R v Lydon the court adduced evidence of 2 pieces of paper found near the discarded gun to prove that the gun had been in the possession of the defendant. On the paper was written the words Sean rules and the defendant’s first name was Sean. In this case the court of appeal stated that it was right for this to be adduced as circumstantial evidence to show that the defendant had had possession of the weapon and the conviction was upheld.

The defence counsel attempted to argue that the paper should be classified under the hearsay rule and is inadmissible; however the judges disagreed stating that the proximity of the paper to the discarded gun was sufficient for such an inference to be drawn.

Defence of provocation or self defence

Under s101 of the Magistrates Courts Act 1980 where the defendant is seeking to rely on exception, exemption, proviso, excuse or qualification as a defence the burden of proof falls on the defendant. For a defence of either provocation or self defence the evidential burden of proof is placed on the defendant. Such defences are referred to as confession and avoidance whereby the defendant admits the offence but raises new issues to explain their actions. The courts have repeatedly held that placing the evidential burden on the defendant is compatible with Art 6(2) of the Human Rights Act 1998 as it does not breach the presumption of innocence.

Standard of proof in criminal cases

When the judge is summing up the case he has a duty to remind the jury that they must be satisfied beyond reasonable doubt that the accused is guilty. Throughout the summing up the judge should remind the jury of the standard of proof required and instruct them that if they cannot find the defendant guilty beyond reasonable doubt they must acquit.

In this particular case the summing up is defective as he does not remind them that they have to be satisfied beyond reasonable doubt and suggests that they need only be 80% certain of the guilt of the defendant. The judge has to direct the court on the evidential burden in proving self defence or provocation and he can offer the jury the defence of provocation even if no such defence has been raised by the defendant. The defendant has no obligation to rebut this defence and the direction can be given to the jury despite the objections of the defendant.

Hostile witnesses

In R v Prefas the court adopted the definition of hostile witnesses as described by Sir Stephen which defined a hostile witness as someone who is not desirous of telling the truth to the court at the instance of the party calling him. In the above scenario Diane has refused to answer any further questions and has therefore been declared a hostile witness. Such witnesses can be cross-examined by the party calling them in an attempt to show that the witness has previously given a different version of events. The authority to cross-examine is contained within s3 of the Criminal Procedure Act 1865. If the person cross-examining the hostile witness can prove that the witness has made previous inconsistent statements the evidence of the witness will be discredited.

Conclusion

The court would have to determine whether Charlie was competent based on his age and mental capacity. If they decide he is competent any evidence he gives will not be on oath due to him being under the age of 14. Beryl’s evidence might be excluded because it is circumstantial, however, if the knife used is similar to the one bought then the evidence will be allowed. The defendant’s wife is competent and compellable, however she can refuse to co-operate with the questioning.

The declaring of her as a hostile witness allows her testimony to stand and inferences to be drawn from her refusal to co-operate. The co-accused can testify as no evidence has been offered in respect of the charges against him. The court should remind the jury of the standard of proof required in finding the defendant guilty and should also direct the jury with regard to the defences being proffered to the court.

Bibliography

Allen, C, Practical Guide to Evidence, 2nd Ed, 2001, Cavendish Publishing

Ashworth, A and Blake, M The presumption of innocence in English law [1996] Crim LR 306 E

Elliott, C, & Quinn, F, Criminal Law, 3rd Ed, 2000, Pearson Education

Glazebrook, P R, Statutes on Criminal Law, 2001, Blackstone’s

Huxley, P, & O’Connell, M, Statutes on Evidence, 5th Ed, Blackstone’s

Jones, T H, Insanity, Automatism and the Burden of Proof on the Accused (1995) 111 LQR 475

Legislating the Criminal Code: Corruption, Law Commission Report 145 (1997)

Lewis, P, The HRA 1998: Shifting the Burden [2000] Crim LR 667

Murphy, P, Blackstone’s Criminal Practice, 2002, Oxford University Press

Smith. J C, The presumption of innocence (1987) NILQ 223 B

Stephen, Sir JF, A Digest of the Law of Evidence, 12th Ed, 1936, Art 147

Tadros, V and Tierney, S [2004] Presumption of innocence and the Human Rights Act 67 MLR 402

Table of Cases

DPP v Morgan [1976] AC 182

Ex P Fernandez (1861) 10 CBNS 3

Mancini v DPP [1942] AC1

R v Boal [1965] 1 QB 402

R v Conti (1973) 58 Cr App R 387

R v Gill [1963] 1 WLR 841

R v Gourley [1981] Crim LR 334

R v Hepworth and Fearnley [1955] 2 QB 600

R v Kemble [1990] 1 WLR 1111

R v Lobell [1957] 1 QB 547

R v Lydon (1987) 85 Cr App R 21

R v Macdonnell (1909) 2 Cr App R 322

R v McIntosh [1992] Crim LR 652,

R v Prefas (1988) 86 Cr App R 111

R v Wickham (1971) 55 Cr App R 199

Roberts v DPP [1994] Crim LR 926

Walters v The Queen [1969] 2 AC 26

Table of Statutes

Criminal Evidence Act 1898

Criminal Justice and Public Order Act 1994

Criminal Procedure Act 1865

Evidence Act 1851

Evidence Amendment Act 1853

Human Rights Act 1998

Magistrates Courts Act 1980

Oaths Act 1978 s1(3) and 5(1)

Police and Criminal Evidence Act 1984

Practice Direction [1995] 1 WLR 657

Youth Justice and Criminal Evidence Act 1999 s54(2)

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According to Cheatwood “the deterrence argument for capital punishmentclaims that the existence of thedeath penalty and the use of that penalty will deter violent crime within the political jurisdiction in which the law exist and is applied. If that is true, then in two fundamentally similar jurisdictions that differ only in the existence and use of capital punishment the level of violent crime in the jurisdiction that employs the death penalty should be lower than the level in the jurisdiction that does not” (Cheatwood,1993,para.17).

Cheatwood(1993) found that in consideration of the research conducted in 1976 it showed that neither the existence of capital punishment at state level, nor the enactment of provision as demonstrated by the number of executions in the state would have an effect on deterring crime at the county level.

Some think that capital punishment is brutal, others believe that it is retribution for horrific crimes committed (Zimring, 2000). Many would agree with me that in the case of Angel Diaz a man who was convicted and sentenced to death was subjected to brutal and inhumane conditions, something went terribly wrong. The drugs administered left his arms badly burned; the medical examiner said that none of the medication administered went to the right place. Witnesses stated the deceased seemed to suffer during the process, according to testimony it took 34 minutes, which is 20 minutes longer than usually required for an execution. According to testimony 14 vials of material was used before Diaz was successfully executed (National Public Radio,2007). Jed Bush who was the Governor of Florida during this botched execution “called the moratorium in that state on all prosecutions until they could get to the bottom of what was going wrong with the legal injection protocol”(National Public Radio, 2007).

During an interview on National Public Radio Dahlia Lithwick stated that” 22 of the 40 states that allow the death penalty either have moratoria or they’re considering imposing moratoria. Two other states formally banned lethal injection, and one has found the death penalty unconstitutional” (National Public Radio,2007). Some states admit that they believe in capital punishment but do not agree with the disastrous way it is administered (National Public Radio,2007).

Some states think that if the accused has committed murder then he or she must die as retribution. They believe that life imprisonment does not serve as retribution for the loss of innocent life. Defenders of capital punishment also argue that it is a crime deterrent.

I do not agree with capital punishment, but many agree that it is just retribution. How can we stand behind a law that commits the same act that it convicts? I do agree that society has an obligation to protect its citizens. Murderers and others who commit crimes that are detrimental to the safety and welfare of society should be reprimanded but lawfully killing another is committing murder. Some feel that the only way to guarantee that a convicted murderer will not kill again is by imposing the death penalty. This is true; the accused will not kill again because he or she is deceased. Most research has produced no findings that capital punishment is a crime deterrent.” There is no evidence to support the claim that the death penalty is a more effective deterrent of violent crime than, say, life imprisonment. In fact, statistical studies that have compared the murder rates of jurisdictions with and without the death penalty have shown that the rate of murder is not related to whether the death penalty is in force: There are as many murders committed in jurisdictions with the death penalty as in those without. Unless it can be demonstrated that the death penalty, and the death penalty alone, does in fact deter crimes of murder, we are obligated to refrain from imposing it when other alternatives exist” (Andre & Velasquez,1988,).

This is a debate that will go on for years to come. Capital punishment should be abolished because of botched executions and claims of racism. It also fair to say that those who can’t afford to appeal their cases because of lack of funds are more likely sentenced to death than those who can afford a good legal defense. In some cases innocent people are sentenced to death. All life is of value whether or not it is taken illegal or legal it is unjust.

References

• Cheatwood, D.(1993).Capital punishment and the deterrence of violent crime in comparable counties.Criminal Justice Review(Georgia State University), 18(2), 165-181. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=14243834&site=ehost-live
• Zimring, E. F. (2000) Capital Punishment, Online Encyclopedia

  Retrieved from

  http://autocww.colorado.edu/~blackmon/E64ContentFiles/LawAndCourts/CapitalPunishment.html

• National Public Radio, Day to Day. (2007, February13). Florida mulls lethal-injection problems. Message posted to http://http:/www.npr.org/templates/transcript/transcript.php?storyId=7382349
• Andre, C., & Velasquez, M.(1988).Capital punishment our duty or doom.Isssues in Ethics, 1(3), . Retrievedfromhttp://www.scu.edu/ethics/publications/iie/v1n3/capital.html

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What is Contract Law?

The law of contract is a set of rules governing the relationship, content and validity of an agreement between two or more persons (individuals, companies or other institution) regarding the sale of goods, provision of services or exchange of interests or ownership. While this is a wide definition it does not cover the full ambit of situations in which contract law will apply. The reason for this is due to the vast number of examples in which contracts can arise in everyday life.

Contract law has been more formally defined as a promise or set of promises which the law will enforce. Another definition and a somewhat competing view, is that a contract is an agreement giving rise to obligations which are enforced or recognized by law. Either definition confirms the involvement of the law by way of enforcement, suggesting that should there be an infraction or breach of the terms of the agreement then the aggrieved party may seek recourse via the Courts. As is noted above, a contract can arise is a plethora of scenarios; from buying a loaf of bread in the corner shop, to the sale of a house. It is unsurprising therefore that certainty is needed before the Courts will intervene to enforce any agreement. The law of contract has confirmed the basic foundations of any contract, regardless of its complexity and substance, that it must contain to make the agreement enforceable in law.

There must be an offer and this must be accepted to make an agreement. While this would in the first instance appear to be self explanatory, it is important to distinguish between what the law says amounts to a valid offer. An offer can be made orally, in writing or by way of conduct. Regardless as to the manner of the offer, it is the willingness or intention of the person making the offer (the offeree) which is of importance, and that is clearly subjective. If a person says that I want to sell this orange for £1.00 but then mistakenly advertises it for 1p, and that offer is accepted, then a valid agreement will be upheld. Simply because there was a mistake in the offer, it does not invalidate the contract. There was an intention to sell on the part of the offeree. It is important to distinguish at this point however between an offer and an “invitation to treat”.

Parties may enter into preliminary negotiations or pre-emptive talks before entering into a contract. The issues they cover will not necessarily form part of the contract and are considered to be invitations to treat. A classic example of this is the produce on display at Supermarkets and on shelves. The price highlighted amounts to an invitation to treat only. The offer does not materialize until the goods are taken to the checkout and the price confirmed. At that point the customer can accept the goods and pay the total amount, thereby completing the transaction and formalizing the contract. A similar situation is evidenced in auction rooms, where the offer is made when bids are put forward by prospective purchasers and acceptance once the auctioneers hammer falls.

Just as important in contract law as the offer, is the legality of the acceptance. This must be an unqualified expression of assent to the terms of an offer. An acknowledgement of an offer would not amount to acceptance, nor would a statement of intent. There must be a clear unequivocal communication of acceptance of the offer on the terms put forward by the offeree. Any attempt to amend the terms of the offer would amount to a counter offer. This would then put the parties back to square one and the offer would be open for acceptance with the offeree becoming the offeror.

The importance of contract law here may not be clear at first glance. Contract law not only governs what happens when the contract breaks down, but it also establishes what the terms of the contract are, in the event of a dispute.  While the contract may be self explanatory in what the parties intend i.e. you pay £50 and I’ll give you this washing machine, there are of course terms as to the time of payment, delivery, condition of the goods etc that need to be established. The most important terms are of course the quality of the goods and the method of payment. Certain pieces of legislation will import terms into the contract without any acknowledgement or agreement between the parties that they will be so included. An example of this is the Sale of Goods Act 1979 which ensures that in sales to consumers by anyone in the course of a business, that the goods are of satisfactory quality, fit for their purpose and correspond to their description. Contract law protects the purchaser without his knowledge. The phrase usually displayed at checkouts regarding sales and offers, “This will not affect your statutory rights” refers to such implied terms.

The offer and acceptance are the visible conditions of the contract, but perhaps even more obvious is the requirement of consideration. This term refers to the exchange of money for goods or services, or something else of value traded between the parties. It is also perhaps the most complex and contentious of the requirements for a valid agreement. Without some form of consideration, the contract is nothing more than a promise, which is unenforceable under English Law. But it is not enough that the parties make this exchange of worth, it must be “valued” consideration as opposed to inadequate consideration. This concept of “valued consideration” refers to something that is capable of estimation in terms of economic or monetary value. Furthermore it is not enough that such consideration has taken place in the past, there must be contemporaneous value by way of exchange to create a formal agreement.  These technicalities have led to a raft of case law upon the issue of what amounts to consideration, hence the importance of contract law to mediate any dispute.

With the agreement between two or more people confirmed as an agreement, containing an offer and acceptance, and the exchange amount to money or something in money’s worth, there must still be the requisite intention to create legal relations. While in a commercial transaction it would appear obvious that the parties to the contract intended to create legal relations, in a more relaxed and informal setting there may be a question over how serious the parties were being? This does not mean that individuals i.e. consumers are free to return goods on the basis that they were never aware of the intention to create such legalities. The Courts may draw an inference from conduct and common knowledge that shoppers are well aware of the binding nature of any agreement to purchase goods or services. What we are referring to is the scenario where one party mistakenly believes that there is no formal intention, and the other party has knowledge of that error but fails to inform them. The Court will apply an objective test to consider all the facts of each individual case. A case involving a pupil barrister who accepted an offer from a Barristers Chambers was held to be a binding contract between the trainee and the whole chambers, not just the pupil master. The absence of specific intention on the part of the rest of chambers was irrelevant. There was clearly intent from the conduct of the parties.

More informal agreements between co-habitants living in a quasi-marital relationship can lead to dispute, particularly upon the break up of that relationship. Historically there was a question about whether a contract would form when the “stay at home mother” would find herself without recourse via matrimonial legislation. The contract was said to relate to the offer to be maintained for life by the husband, which was accepted, and the consideration would be foregoing the right to earn a living and/or providing a home for the family. The only question was relating to the formal intention of creating legal relations, a hurdle that many women could not overcome. While alternative remedies in equity exist to remedy such a scenario, it is a useful illustration of how intention can negate what at first instance appears to be a valid contract. Of course, the most obvious way to ensure that any agreement shows the intention of the parties is just to write it down. A statement of “This agreement is not entered into as a formal legal agreement” would probably suffice.

This basic overview of the law of contract demonstrates its importance and need to stay in touch with modern developments. The next section will deal more fully with this issue in terms of the scope of contract law in every day lives but it is fair to say that the need for this protection is fundamental. An unknowing party can enter into a contract without being fully aware of the implications. The development of legislation such as the Unfair Contract Terms Act 1977 and the various Consumer Credit Acts have all evolved from the basic principles of contract law and the principle of putting the parties on as equal a playing field as possible.

Where is Contract Law used today?

As was mentioned above on several occasions, contract law permeates our day-to-day lives, and often we are not aware of its presence. While legally qualified individuals may be aware every time a contract comes into existence and note phrases such as “the customer uses this at their own risk” with a wry smile, the majority of society lives in blissful ignorance of how deeply indebted to contract law they are.
In the first instance it would be a useful exercise to list a few of the various instances of contract law coming into play when we may not expect it.

• Public Transport – every ticket bought on a bus train or on the underground forms a contract. This is a contract of services and the majority of terms will be implied rather than express. If one was to state the whole list of terms on the back of a ticket as to the obligations of the provider of the transport to the customer, it would result in a piece of paper resembling an instruction sheet from Ikea rather than a ticket.

It should be mentioned here that such express terms that form part of the contract must be present at the moment it was entered into. The terms of importance will usually be on display either around the point where a ticket is bought, or it will direct the customer to a full list of the conditions elsewhere.

• Employment – every employee must have a contract of employment with their employer. While it is a fact that some employers have not bothered with the formality of drafting a document setting out the rights and expectations of both parties, the Employment Rights Act 1996 will infer a number of basic rights for the employee in any event. The offer and acceptance of taking a new job is a given, as is the consideration (days work for a days pay). The intention is not necessarily so obvious but the relationship the contract creates leaves no room for discussion as to its formality in a legal sense.
• Any purchase of goods or services – while this is dealt with in more detail below, the sale of goods or services is the most basic form of contract. While we may not appreciate the scope of the law and its impact upon a basic purchase of e.g. a new car, the terms and conditions of sale, the various pieces of legislation importing terms and the case law stretching back more than 100 years on similar issues all have a bearing upon a customers (and suppliers) rights and obligations. It is of course rare for anyone to be made aware of all the terms in existence and the “small print” usually covers most things of relevance.
• Buying a house – most people who have become involved in the conveyancing process will recall the stress of waiting for the solicitor to confirm that they have “exchanged contracts”. While the ownership of a property in England & Wales can only pass by way of deed, the contract is pivotal. The contract will set out the terms of sale, including the price, items of furniture and fixtures that are being left behind and the date of completion. Once the purchase is completed and the monies paid, any issue that may be taken between the parties will have to be raised as a breach of contract. While in the majority of cases the axiom “Caveat Emptor” (buyer beware) will apply, the specific terms of the contract must still be fulfilled and depending upon the severity of extent of the breach, this will dictate the appropriate remedy available.

What can be seen above is that Contract Law is everywhere. From the purchase of a newspaper in the morning to the service of gas and other utilities, there exists a contract to govern most relationships outside the domestic scenario. It is understandable therefore that this area of law may be the most diverse in its impact upon everyday life, yet its principles remain comparatively straightforward. There are of course complex issues and certain types of contract (acquisitions and mergers, share holders agreements etc) require specific rules to govern their application, most contracts have a quality that allows them to operate without the knowledge of their existence.

The most influential and commonly used contracts are those relating to the purchase of goods and services. The Sale of Goods Act 1979 and Supply of Goods and Services Act 1982 have developed from a background of Caveat Emptor, where consumers were unprotected from sellers able to peddle goods that were less than of merchantable quality. While the image of “Del Boy” flogging various items out of a suitcase springs to mind, it was actually the larger and more commonly used suppliers of goods that took the brunt of this legislation. We mentioned terms as to quality and fitness above, and a multitude of cases have gone as far as the House of Lords to ensure the protection granted under a contract is enforced. We have contracts for the sale of goods when we do our weekly shopping, buy a new appliance or finally get that pair of shoes. Similarly contract for the supply of services exist over the cables service for the TV, the mobile phone company or the plumber who comes into fix the leak upstairs. However they are created, the contracts that we are party to are numerous and often we are not specifically aware of our obligations under them, save to pay what we have agreed to.

While we have focused on consumers and individual contracts, that is not to say that there are any fewer contracts that exist between companies, corporations, charities or even governments. Most companies will have several contracts for the services it obtains from other companies i.e. cleaning, catering, accountancy etc. There will be contracts of employment with every member of staff, as well as contracts with each shareholder as to the money they have invested and the dividends received each period. They will in turn have contracts with the customers who retain their services, or even other companies by way of merger or shared services within a larger agreement. This is a non-exhaustive list but a good example of how contract law not only creates the basis for the relationship between individuals, companies etc, but also regulates their rights and obligations and ultimately provides a solution in the event of a dispute. The scope of this area of law clearly has no limit.

Contract Law Cases – Examples

Carlill v. Carbolic Smoke Ball Co (1893) 1 QB 256 (CA)

This case involved the defendant company who produced and advertised smoke balls as a preventative measure against influenza and the common cold. The advertisement stated that they would give £100 to anyone who used the product for three times a day for two weeks but still contracted one of these illnesses. The defendant also stated that they had placed £1,000 in a bank account to demonstrate their sincerity. Suffice to say that the claimant took up the challenge and after roughly 8 weeks of continuous use she contracted the flu. Mrs. Carlill claimed the £100 but the defendant refused to pay; they claimed that there was no contract in place for her to enforce the claim.

This matter progressed to the Court of Appeal. The defendants maintained that there was no intention to create legal relations and the advert amounted to nothing more than an invitation to treat. At no stage did the claimant tell them that she had accepted their offer. Nevertheless the Court of Appeal confirmed that there was in fact a contract in effect between the parties. This situation amounted to a “unilateral contract” whereby one party offers money in exchange for the performance of a stipulated act. Whereas normally an advert would amount to nothing more than an invitation to treat, the request for the performance of an act made it an offer. There was no requirement for Mrs. Carlill to inform the defendant that she had accepted it, the undertaking of the challenge was tantamount to acceptance.

There were arguments from the defendant that the wording of the advert was too vague for it to amount to a contract. There is always a requirement that the specifics of the offer are precise so as to avoid confusion. While there was some scope for interpretation, the Court adopted a literal meaning to the advert, which simply state that providing the claimant took the smoke balls continuously and then contracted any of those illnesses she would receive £100. The deposit of £1,000 into an account was a demonstration of the defendants meaning and willingness to rely upon their product in light of this challenge. The Court had no hesitation is finding in these specific circumstances that there was a contract under which the claimant was due £100.

While this case demonstrates how the law of contract protects the party who in good conscience accepts the terms put forward by the offeror, it remains something of an anomaly. This situation would only be enforceable where the offeree was required to undertake a specific task, thereby removing the need for communicating acceptance and transferring an invitation to treat into a formal offer. There is also a lesson for the naïve or careless when setting challenges and making proposals to others. A contract can arise even when the intention was to make an informal offer, but in the absence of a specific statement to that effect, the conduct of the offeror may infer the requisite legal intention.

Coward v. Motor Insurers’ Bureau (1963) 1 QB 259 (CA)

In this matter Mr. Coward and Mr. Cole were work colleagues who had an arrangement regarding shared lifts to work. Cole would drive his motorbike and Coward would ride pillion in return for a weekly sum of money. Unfortunately both were killed in a road traffic accident and the wife of Mr. Coward made a claim for damages against the estate of Mr. Cole. However Cole’s insurance policy did not cover pillion passengers and as his estate had no assets or money to satisfy the judgment, Mrs. Coward pursued the Motor Insurance Bureau (MIB).

The MIB have an agreement whereby accidents and consequential claims would be satisfied by the Government in circumstances where the driver has no relevant policy of insurance. However the rules covering this situation require Mr. Coward was carried for “hire or reward”. Consequently Mrs. Coward needed to prove that there was a contract in place between Coward and Cole for the lifts to work.

There was clearly an offer of transport and this was accepted. In addition the consideration exchanged by the parties was the service of transport and the money paid by Mr. Coward. However there was a question over how formal this arrangement was so as to amount to an intention to create legal relations. Once again this matter progressed to the Court of Appeal and it was decided that notwithstanding the regular payment of money in return for the lift, it was not so formal as to create a contract. There were no terms as to how long this was to last, what would happen in default of payment or the availability of transport, or anything written down so as to at least make their intention clear.

The practice of colleagues sharing a lift to work (or “car pooling”) is an accepted and wide spread practice. Parties will usually agree that one will take their car and in return the others will make a contribution towards the petrol costs. This is usually a matter of convenience, reducing costs or even a conscious decision to reduce emissions from each separately taking a vehicle. It cannot be said however that the agreement is so formal as to form a contract for the provision of this service. The contrast is to a previous example, that of public transport. There are no tickets, conditions or terms of agreement and no business or profit making organization is involved. There can be no obligation upon people in this scenario to ensure that transport is always made available to the party that pays. What would happen when the owner of the vehicle went on holiday or there was a shift change? In these circumstances an element of common sense must come into play. Most people will make informal agreements ranging from car pooling to picking up children from school or even being the designated driver on a night out. None of these create a contract as the intention is one of informal assistance or a mutual benefit, not to create legal relations.

Olley v. Marlborough Court Ltd (1949) 1 K.B. 532

Mr. Olley visited the hotel belonging to the defendant. He had not made an in advance booking and upon arrival requested a room for the night. He signed the register and there was no mention at that stage of any other terms or conditions that might impact upon his stay at the hotel. During the course of his stay Mr. Olley discovered that someone had broken into his room and stolen certain property including a fur coat. It subsequently became known that the defendant was negligent in relation to the security within the hotel. Nevertheless, the defendant sought to rely upon an exclusion clause that was placed in the bedroom the claimant stayed in. This stated that the hotel would not accept liability for lost or stolen items belonging to customers.

The question was whether the exclusion clause that was displayed in the bedroom constituted a valid term of the contract. It was not disputed that there were all the required components to for the agreement i.e. offer, acceptance, consideration and intention, but that was not to say that all the terms the hotel sought to rely upon could actually be enforced against Mr. Olley. As we mentioned above, terms must be brought to the attention of the customer, consumer or party against whom they are trying to be enforced at the moment the contract was entered into. Otherwise it would allow parties free will to include other terms at a later stage, albeit if the customer had known of such a term they might have decided not to enter into it in the first place.

The Court decided that the contract was entered into the moment Mr. Olley arrived at reception and signed the register. That was the point when the room was offered to him and he accepted. Intention was not an issue and in consideration of the agreement, he would receive a room to stay for which the hotel would receive payment. The fact that payment would usually come after the stay was irrelevant. Consequently Mr. Olley was not given notice of this exclusion clause until he had already entered into the contract and therefore it was unenforceable against him.

Similar examples of this issue of notice and timing of the terms of any contract can be seen where clothes are purchased and notices attempting to exclude liability are put on the receipt. The example of public transport above and the terms and condition relating to the travel must be stipulated at the relevant time. It should be pointed out here however that the actual notice of these terms need not be something that is brought to someone’s attention every time they enter into a contract. If there is a course of dealing or repeated business, and in a previous transaction a term was brought to the attention of the customer, then they could be held to have been made aware of it and it becomes a term of the contract. If Mr. Olley had stayed at the hotel on a number of previous occasions, it would have been difficult for him to argue that he had no knowledge of the exclusion term. In such circumstances it is arguable that he would have been deemed to have had knowledge and the hotel could have relied upon the term within the contract.

Adams v. Lindsell (1818) 1 B. & Ald. 681

This case concerns the acceptance of an offer and the importance of how that acceptance is communicated to the offeror. Here the defendant offered to sell the claimant fleeces of wool for a certain price. They requested that the response be made by post. This letter was misdirected by the defendant so that it was not received for 3 days after it was sent. The claimant decided to accept the offer and responded on the same day. This was posted on the 5th September but not received until the 9th September. However the defendant decided on the 8th September that as they had not received a response decided to sell the wool to someone else. The claimant argued that a contract had been created as he had accepted their offer.

The Court confirmed that the delays were entirely the fault of the offeror. Had the letter been posted correctly then this scenario would in all likelihood not have arisen. Furthermore the contract was created on the 5th September when the acceptance was posted, not when it was received. While the agreement was not communicated to the offeror, it could not prevent the contract being created. To decide otherwise would be to prevent contracts being created by post completely. It would otherwise require (in this scenario) the claimant to wait until the defendant had received the offer and then written to him saying that the terms were agreed and so on. This system of acceptance was thereafter referred to as the “postal rule”.

In contrast the offer itself can only be communicated to the offeree via the post once it has been received. Any pre-emptive negotiations or discussions are likely to amount to nothing more than an invitation to treat pending the formal offer.

While there has naturally been some development in this area, the most obvious issues arise with the creation of the internet and on-line shopping. The majority of people with access to the internet have purchased something at one time or another. The question as to the formation of any contract here is when does that contract arise? While it is not important to examine the legislation and case law in that particular area (which is vast) what is crucial is how this example of a seemingly antiquated rule can be adopted into a new and totally unforeseeable system through the medium of contract law. While the rule itself remains applicable to postal orders via catalogues and other postal services, the evolution does not stop and wait for something completely new to take its place. The law of contract in this area requires modification and adaptation to meet the demand of e-commerce and a society moving towards carrying out the majority of household and social affairs through the internet. Protection for the unwary or even experienced surfer of the web, when entering into contracts on-line is clearly an important function of modern contract law.

Conclusion

We have seen how contract law permeates every section of our lives. From employment, to conveyancing or even to social and recreational activities such as buying a drink in the pub, contracts are created all around us. While the majority are short lived and the terms fairly simple and unobtrusive, breaches of such agreements may still be enforced with all the force of the law as with the more serious forms of contract.

The public perception of contracts is often misleading as many have not found it necessary to enforce such terms. As we live in a capitalist society with freedom of choice, the need to ensure quality often negates the need for a consumer to enforce their rights as to quality and fitness under a contract of sale. Standards are maintained by Government bodies and independent organizations i.e. BSI. The consumer rarely has the need to enforce breaches of contract, and even if they do, retailers are so aware of the rights of consumers that they will allow an exchange of goods without question. It is more often that not (certainly in the current financial climate) that the terms as to payment are enforced by suppliers and sellers in default of the agreement more frequently. Issues of credit are widespread at the moment and the contracts that regulate the borrowing of money against property (hire purchase) or simply under a general agreement (credit card) are being breached every day. This is the other side of the coin for contract law. There are terms and conditions for both parties. This is the essence of a legal contract, the exchange of consideration without which there is nothing more than an unenforceable promise.

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