DAY ONE – AFTERNOONThe English legal system is called a “common law” system. There are other legal traditions: civil law (origin: Roman law), Islamic law (Shari’ a law), and socialist law. Singapore – common law.

Common law:

Collection of statutes and case law Precedents are binding (stare decisis) Developed from Norman custom Expanded from the UK into its area of influence Judges are experience lawyers

Civil law:

Systematic codification of general principles Precedents are only persuasive Based on late Roman law and custom Expanded from Continental Europe Judges follow a different career path

Value of precedent

Common law: Precedent of higher courts is binding on lower courts (stare decisis)

Civil law: All precedent is only persuasive

DAY TWO – MORNINGPublic law:

Relationships between individuals and the state Vertical relationship Areas:

- Constitutional law- Administrative law- Immigration law- Criminal law

Private law:

Relationships between individuals Horizontal relation ship Areas:

- Civil law- Commercial law- Contract law- Tort law

Constitutional law:

Architecture of the state

It provides the rules that cement the structure of government Analogy with anatomy

Administrative law:

Functioning of the state It establishes the different functions of the bodies that constitute

government Analogy with physiology

Principles of public law:

Unwritten constitution Separation of powers Representative democracy – only votes for your representative Supremacy of parliament Rule of law Limited and responsible government – accountable through political

mechanism

Constitution: role of the Crown – Royal prerogative:

Appoints the PM and cabinet Summons and dissolves Parliament Gives Royal Assent to Acts Negotiating and making treaties Going to war and making peace Grants appointments and honours But, it is all rather formal than actually being exercised by the Monarch

Constitution:

Unitary state

The state is governed as a central unity The original constitutional power lies in the national entity Single centralized legislation

Federal state:

The state is constituted by separate smaller states The original constitutional power lies in the smaller states (or provinces) Overlapping levels of legislation

Devolution: UK has devolved some functions on Northern Ireland, Scotland and Wales, which have their own Parliament. The devolution was decided by the central government.

The Scottish Parliament

Created by Scotland Act 1998 Unicameral with 129 members

Reserved matters: Constitution, international relations, national security and currency

Separate education, economic development, health, law, police, agriculture, fisheries and forestry

National Assembly for Wales

Created by Government of Wales Act 1998 Unicameral with 60 members Power over certain devolved areas: Agriculture, fisheries, forestry and

rural development, ancient monuments and historic buildings, culture, economic development, education and training, education and training blablabla

Northern Ireland

Created by Northern Ireland Act 1998 Unicameral with 108 seats Reserved matters: International relations, defence, currency, taxation Not reserved: Agriculture, culture and art, education, environment,

justice, health

Rule of law – Dicey principles:

No one may be punished by the state except for a breach of the law Government under the law, equality before the law Individuals’ rights are protected through the ordinary law and the

ordinary court system Legal certainty and non-retrospectivity Fair hearing by an independent judge

Responsible government – check of governmental action

Political accountability (Parliament)- Select committees- Question time

Judicial accountability (Courts)- Judicial review- Human rights review

Judicial review

The courts check the legality of government actions It enforces the separation of powers and the rule of law It is only for public law issues against someone exercising public

functions Exhausted reasonable avenue to solve the issue through bureaucratic

administrative means before proceed to the court Ask for permission of the court before bringing an action Standing: sufficient interest

Grounds for legal review:

Illegality: ultra vires (beyond power), delegating when not allowed Irrationality: normally when using discretionary powers (irrationality

test) Procedural impropriety: administrative process and also natural

justification (right to be heard and rule against bias)

Remedies

Quashing order: invalidate a decision Prohibiting order: prevent the authority from going ahead Mandatory order: force authority to do something Injunctions (equity order) and interim injunctions (species of order) Declaration: a formal statement of the law by the court Damages: only if there is an additional private law wrong (breach of

contract/tort)

DAY TWO – AFTERNOONInternational law

Regulates the relationships between states and between states and international organisations (importance of the state)

History of international law (ius gentium) Current status of international law

Westphalian system

Inaugurated after the Peace of Westphalia 1618 Cuius regio eius religio (the religion of the ruler dictated the religion of

the ruled) Sovereign equality It has become less absolute during 20th century

Sovereignty

Internal: relationship of the state with its subjects. The capacity of having supreme authority inside a territory.

External: relationship of the state with other states. That the state is recognised by other states as having full control over a particular territory.

International law

Based mainly on treaties and custom Voluntary Sovereign equality Lack of enforcement mechanisms

Domestic law

Based on laws and judicial precedent Imposed Bound to the sovereign

Well developed enforcement mechanisms (courts, police, prisons)

Sources of international law

Article 38 of the Statute of the International Court of Justice Main sources: International custom, treaties, general principles of law Subsidiary sources: Judicial decisions and writings of publicists

International custom

Consistent and general practice Accepted as law The evidence of the practice is given by documents and activity of states.

The subsidiary sources can provide evidence of an existing custom.

Treaties

Bilateral or multilateral Contracts Regulate many areas: investments, peace, human rights, borders

General principles of law

Not defined Mostly taken from domestic law Examples: good faith, pacta sunt servanda, abuse of right, acquiescence,

res iudicata

Relationship between international law and domestic law

Monist system

International law and domestic law share a same legal space International law is directly applicable as law in the domestic courts Treaties are automatically part of the domestic legal order (normally

superior)

Dualist system

International law and domestic law exist in different legal spaces International law is only applicable once it has been formally

incorporated Treaties need to be incorporated by law to be applicable in local courts

Role of international law:

Facilitate the relationship between states Prevent conflict Improve human rights

DAY THREE – MORNING International law (continued)

Treaties:

International agreements One of the main sources of international law Contracts (depend on state consent) Bilateral or multilateral Organised by Vienna Convention

1969 Vienna Convention

Regulate treaties between states Governed by international law Partly codified customary international law Regulates the creation, application, interpretation, amendment and

termination

Interpretation – Article 31

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

Any agreement relating to the treaty which was made between all the parties

Settlement of disputes: negotiation, mediation (with 3rd party usually the UN), arbitration and judicial settlement

International tribunals: International Court of Justice, International Tribunal for the Law of the Sea, WTO dispute settlement body, International Investment Tribunals

International Court of Justice

Principal judicial organ of the UN Based on The Hague (Netherlands) 15 judges elected for 9 years by the Security Council and the General

Assembly Contentious cases and advisory opinions Jurisdiction in contentious cases only between states and on the basis of

consent

Contentious jurisdiction

Matters provided in the UN Charter Jurisdiction by special agreement Advance consent contained in a treaty Advance declaration for any dispute

Types of disputes solved

Territorial and maritime border disputes

Compensation over the death of a diplomat Responsibility of a state for genocide Denying an imprisoned foreigner consular assistance Determining whether the establishment of a pulp mill was polluting a

river in violation of a treaty

DAY FOUR – MORNINGHuman rights

Universal- Every single person is entitled to human rights- They apply through nations and countries

International- Part of international law- Can be implemented at a national level

Undeniable- Human rights cannot be relinquished or abrogated

History of human rights

Traced to liberalism of the revolutions of the bourgeois revolutions Older antecedents in Rome and Greece, Christianity as well as influenced

by other cultural traditions Developed after WW2 Now human rights play a fundamental role in law, politics and

international relations

Human rights now: branch of law, political language and advocacy tool

Human rights law:

Part of international law (law that binds states) Created through treaties and custom Applicable internally depending on each state

List of human rights:

Freedom of speech Right to life, liberty, security of person, free from slavery and servitude,

non-discrimination, free from torture and cruel, inhuman or degrading treatment, a fair trial, education, healthcare, religious freedom, equality before the law, privacy, freedom of movement and residence, leave your own country and to return to it, seek asylum from persecution, nationality, marry and protection of the family, property

Main instruments:

UN Declaration of Human Rights 1948 Intl Covenant of Civil and Political Rights 1966 Intl Covenant of Economic, Social and Cultural Rights 1966 Convention of the Elimination of All Forms of Racial Discrimination 1966

The Convention of the Elimination of All Forms of Discrimination against Women 1979

Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment 1984

Convention on the Rights of the Child 1989 Convention on the Rights of Persons with Disabilities 2006

Regional conventions

European Convention on Human Rights 1950 American Convention on HR 1969 African Charter on Human and People’s Right 1981 (people as a collective

group)

Compliance mechanisms

UN Human Rights Council Treaty bodies – UN HR Committee Regional bodies – European, Inter-American and African courts National mechanisms

Human Rights beyond law

IR: all states use human rights as a language of international relations Politics: human rights are a powerful advocacy tool for local, national and

international civil society

Criticism of human rights

Whose human rights? Cultural values Human rights for what? Lack of compliance Which human rights? Prevalence of civil and political rights

DAY FOUR – AFTERNOON Drafting human rights

Human rights are contained in legal documents which are open to interpretation

They have to be drafted with care: can’t be too broad or too restricted They are negotiated by states which try to influence their content Civil society can also participate

Strong and weak obligations

Strong: Article 5 of the UN Declaration of HR: No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment

Weak: Article 22 of the UN Declaration of HR

Human Rights Declaration

1. Everyone has the right to life, liberty and security of person.2. No one shall be subjected to torture or to cruel, inhuman or degrading

treatment or punishment.

3. Everyone is equal before the law without any discrimination.4. Everyone has the right to freedom of opinion and expression.5. Everyone has the right to leave his own country and to return to his

country.6. Everyone has the right to seek asylum from persecution.7. No one shall be held in slavery or servitude.8. Everyone is entitled to a fair trial in determination of his rights and

obligations, and of any criminal charges against him.9. Everyone has the right to own property.10. Everyone has the right to privacy

Freedom of Speech

Characteristics of FOE

One of the most traditional civil and political rights Enabler of other rights Individual and collective aspect

- Individual: every person is free to express his ideas and opinions- Collective: we all benefit from the views expressed by others. It is the freedom of information

Three-part test

Any restriction to FOE has to:

Be provided by law (part 1): precise, clear, not customary law Pursue a legitimate aim (part 2): respect for the rights and reputations of

others, protection of national security, public order, public health and public morals

Necessary and proportionate to the aim pursued (part 3)- Necessary: the goal can’t be achieved in any other way. It has to be the least intrusive way.- Proportionate: there has to be a balance between restriction and aim. Restriction must be proportionate to the interest protected.

UN HR Committee

Treaty body of the Intl Covenant on Civil and Political Rights Composed by 18 independent experts It issues general comments on specific rights, examines states’ reports.

And solves individual cases (communication)

DAY SIX – MORNING Introduction to Criminal Law

Purpose of criminal law:

Protect society: deterrence to future crime, sets an example, make society safer by restraining its dangerous members, morality enforcement

Prisoners rehabilitation Retribution, punish the guilty

Closure for the victim Make the victim or his/her family feel that justice has been done and that

he/she can be safe again

Capital punishment (dead penalty)

Murder Terrorism Treason

The different punishments

Death penalty Imprisonment Community service Fine (financial penalty)

The different players

The Parliament and judges (stating the law and advising the jury) The two sides (the defendant and the State)

This is important – the prosecutor is not necessarily defending the victim in the court but the state. In some cases, the victim doesn’t have a say at all.

The prosecutor The witness The juries (max of 12, 9-3 the person is guilty)

Some basic rules of criminal law

The substantive rules change according to the crime, but you always need to prove actus reus, mens rea and causation.

The procedural rules:1. Innocent until proven guilty2. The burden of proof is on the prosecution3. The prosecution has to prove the crime beyond reasonable doubt.

Criminal law, however, can be internally contradictory, static, too strict and be abused

Harm Principle: no action or omission should be done that is harmful to any other person/self

Physical harm Psychological/mental harm Purpose/intention

Offense Principle: protects society’s moral standards and prevents people from feeling victimized. It can restrictive.

Paternalistic Principle: state steps in to protect us from our own lack of foresight. Does the state know what’s best for us better than we do?

The need for a principled approach

Criminal law can restrict people’s freedom; it can also be abused. Dictatorship and regimes that do not respect HR use the criminal law

DAY SIX - AFTERNOONActus reus: The defendant’s actions must have caused the harm. This is relatively simple in some cases, but complicated in others.

Complications:

1. Omissions are generally not sufficient to constitute actus reus. (Fagan v. Metropolitan Police Commissioner). However, look at DPP v. Santana-Bermudez (2004) – policewoman touched an infected needle in the D’s pocket after he lied.

2. Is there an obligation to warn sexual partners that D is suffering from AIDS? R v. Dica – sexual relationships with several women, but did not tell them he was HIV+ (does it make a difference if it is a casual or a committed relationship?)

The importance of consent

- When someone has consented, actus reus does not apply anymore.- Whether you consent to something or not can make the difference

between an actus reus and a normal act. (St. George’s NHS Trust (1998))- However, legally there are certain things you cannot consent to. (R v.

Brown, 1994)- While this precedent stands, it has numerous exceptions: 1. R v. Wilson

(1996) – he branded his wife’s buttocks with his own initials after she consented. Similar to tattooing. 2. Boxing

Mens rea: The defendant must have a guilty mind – in other words he must have intended the crime or he must have been reckless about it. The test is an objective one.

1. R v. Cunningham (1957): stealing coins out of the gas meter and accidentally fracturing the pipe, thus causing death.

2. R v. Spratt (1991): shooting with an air-riffle out of the window and accidentally killing the neighbour.

3. Section 8 of Criminal Justice Act 1967: If you have a situation where the defendant must have foreseen the risk because everyone else did, then the jury may act on the belief that he realized it. This is a rebuttable presumption, forcing the defendant to get in the witness box.

Causation

The test: “but for the actions of D, the harm would not have taken place.” This is again relatively simple and in some cases it is not even discussed, but it others ‘the chain of causation might be broken’.

1. R v. D (2006): Man hitting his wife on a regular basis. When he left the house one day she committed suicide. Can he be convicted of manslaughter? (Psychiatric report needed)

2. R v. Robert (1971): Sexually assaulted hitchhiker who jumped out of the moving vehicle. Chain not broken, even if unforeseeable because she was stressed.

3. R v. Gibson (1984): If it is established that the child was in the parents’ joint custody and control, it suffered injury inflicted by one or both, there is no explanation from either, and no evidence pointing to one rather than the other, the inference may properly be drawn that both were jointly responsible.

4. R v. Carrey (2006): The V, a 15-year-old girl, had been out walking with friends when the defendants verbally abused them. Scared, she started running, but she collapsed and subsequently died. Heart disease was completely unforeseeable.

5. R v. Kennedy (2007): The chain of causation was broken when she injected herself with drugs, so the drug dealer could not be convicted of manslaughter.

6. R v. Cheshire (1991): D shot V in the leg and stomach, seriously wounding him. V was taken to hospital and placed in intensive care. More than two months after shooting, he died of cardio-respiratory arrest. D was charged with murder. A consultant surgeon gave evidence for the defence at the trial that the leg and stomach wounds were no longer life threatening at the time of actual death and that death had been caused by negligent medical treatment. Exceptional case, but chain of causation broken.

7. R v. Miller (1983): A defendant may be guilty of arson where, although unaware that his conduct has started a fire, he nevertheless, once aware of the situation, makes no effort to prevent or reduce the risk of further damage.

R: Regina

DPP: Director of Public Prosecutors

The Law of Murder

The actus reus of murder: killing someone

A-G’s Reference (1998): D stabbed his girlfriend who was carrying a baby with intent to injure her and the baby who was born alive subsequently died as a result of D’s act. The case is authority for:

Transferred malice The embryo, no matter how late in term, is not a human being

Vo v. France (2005): The ECHR refused to get into a discussion on whether a late abortion can amount to a violation of Article 2, bringing it within the margin of appreciation cases. This is the one case it could have done that.

Re A (Conjoined twins) (2004): Mary was totally depended on Jody since she had no respiratory system. It was accepted that if they were not separated, which

would result in the death of Mary, they would live for 18 months. No matter how deficient is a child; she is still a human being. The defence of necessity was used (doctrine of necessity).

DAY SEVEN – MORNINGThe mens rea of murder: A guilty mind exists when the defendant had intention to cause death or serious injury. It is acceptable if the defendant was reckless about causing death or serious injury. Being negligent is not good enough, although if the negligence is ‘gross’, this can result in gross negligence manslaughter.

R v. Adomako (1995): an anaesthetist failed to notice that a tube had become disconnected from the ventilator and the patient died.

Objective: judging by what a reasonable person would have done, subjective: based on the defendant itself.

Negligent: objective – what a reasonable person would think (test for tort/civil law)

Reckless: subjective – what you thought (criminal act)

Manslaughter – because of defences (intoxication, provocation and diminish responsibility (mental illness)).

Constructive manslaughter – when you kill someone while you break the law.

Serious harm and death

In R v. Cunningham (1982) it was held that the mens reas concerning ‘grievous bodily harm’ and ‘death’ should remain.

For maintaining the law: serious harm might easily lead to death, so someone willing to cause that, is reckless about the possibility of death. Also, if the law would be changed the Court involved in endless battle

The development of the mens rea case law

R v. Smith (1961) : D had stolen goods in his car. When he was stopped by the policeman at red lights, he panicked and when the light turned green he took off while the policeman was clinging on to his car. The policeman had to let go of the car and was hit by traffic. The House ruled that D was guilty because he should have foreseen that he would cause serious injury. Objective test established.

This was subsequently rejected and the test was that there to be intention/recklessness. But how do you define these?

R v. Hyam (1975) : D had burnt down the house of her rival in love, thereby killing her children. ‘High probable’ test derived in order to define recklessness.

This was still considered problematic, so the Court came up in R v. Moloney (1985) with the ‘natural consequence’ test.

R v. Hancock (1986) : The defendants were on strike and in attempt to stop those who were not on strike from going to work they threw a

concrete block from a bridge, hitting a taxi and killing its driver. They had no intention of killing the driver but following the Moloney instructions (natural consequence test), the jury convicted them of murder. This showed the problems of the natural consequence test.

R v. Woollin (1999) : A father threw his 3-month-old son on a hard surface because he was annoyed by all his crying. The prosecution agreed that he did not intend to cause serious harm to or kill the baby.

The House of Lords came up with the following test: the greater the probability of a consequence, the more likely it is that it was foreseen and if it was foreseen, the greater the probability is that it was also intended.

Euthanasia and Assisted Suicide

Assisted suicide:

You are killing yourself and someone is helping Merely assisting the terminally ill person to kill him/herself Life sentence

Euthanasia:

Someone else is doing the killing The actual act of killing someone after he/she has requested it Murder and a mandatory life sentence

Assisted suicide: psychologically mentally fit

Not pressure Background check Scope for recovery Assistor: medical professional/relative

The law in Oregon, US (Death with Dignity Act, 1994)

Adult Capable Resident of Oregon Attending physician Consulting physician Terminal disease Voluntarily expressed his/her wish to die Two oral requests separated by at least 15 days and one written request, Written statement must be witnessed by two people, one of whom cannot

be his relative, doctor or benefit financially from the patient’s death, If either of the two doctors think that the patient lacks capacity, he must

be referred to a psychiatrist and only after his competence is confirmed can the process continue

Before the doctor prescribes the barbiturates, he must inform the patient of other alternatives

Evaluation of the law

1. (+) The Act includes a number of safeguards that are aimed to protect the patient

2. (+) Evidence so far suggests that patients that fall in the category of ‘vulnerable patients’ have not used the Act to a greater extent than others

3. (-) It is not the responsibility of the doctor to ensure that the barbiturates have been taken. It is thus possible that the patient decides not to take them, but there is still a legal dose of barbiturates in his house

4. (-) There is no sufficient system to ensure that the doctors are actually following the procedure properly

5. (-) It is very difficult, even for doctors, to recognize when a patient is suffering from depression. Only 6% of doctors in Oregon are ‘very confident’ that they can detect depression in a single meeting. Yet, there are very few referrals to psychologists.

The Law in the Netherlands

The ‘due care’ criteria of the Act that must be met by the doctor:

1. hold the conviction that the patient’s request was voluntary and well-considered

2. hold the conviction that the patient’s suffering was lasting and unbearable3. have informed the patient about the situation he was in and about his

prospects4. hold the conviction that the patient believed that there was no other

reasonable solution for the situation he was in5. have consulted at least one other, independent physician who has seen

the patient and given his written opinion on the requirements of due care referred to in parts 1-4

After assistance has been provided, the doctor must report this as an ‘unnatural death’ to the Coroner. The Coroner examines the patient’s body, prepares his own report and forwards both documents to a Special Committee, which decides whether the requirements have been satisfied.

Enforcing the Act

It’s easier for Dutch doctors to detect depression because in the Netherlands, people tend to have a ‘doctor for life’

Of the 16,000 that have reached the Special Committee so far, in only 17 have the two doctors disagreed with each other as to the due care requirements.

The Law in England

D commits an offence if

D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and

D’s act was intended to encourage or assist suicide or an attempt at suicide

Only if the Director of Public Prosecutions consented then you’ll be punished

The loophole that requires the DPP to give consent – in order for consent to be given, there must be sufficient evidence of a crime and it must be in the public interest.