Tag Archives: case comment

Rape Investigations and police accountability: the case of the Black Cab Rapist

By Prof Joanne Conaghan, Professor of Law (University of Bristol Law School).

The case of the Black Cab rapist, John Worboys, may well qualify as one of the most egregious failures of modern policing of our times. Alleged to have assaulted over 100 women using his taxi as a lure and a crime site, Worboys terrorised women in the London Metropolitan area for the best part of a decade before eventually being apprehended and imprisoned in 2009 for 19 separate sexual assaults.  This week the Worboys case is once again in the public eye as a claim by two of his victims, DSD and NBV, that the Metropolitan Police violated their human rights by failing adequately to investigate their claims comes before the Supreme Court.

One has to wonder how such serious criminal activity in a public setting could go unchecked for so long. The simple answer is that the Metropolitan Police failed Worboys’ victims utterly and unequivocally, their investigation marred by multiple systemic and operational failings, as elaborated in painstaking detail by Mr Justice Green in a High Court judgment in 2014.  Continue reading

The law governing an arbitration clause

By Prof Jonathan Hill, Professor of Law (University of Bristol Law School).

A leading commentator has observed that ‘[t]he choice of the law applicable to an international commercial arbitration agreement is a complex subject’ (Born, International Commercial Arbitration (2nd edn, 2014) p 472). This complexity is reflected by the case law illustrating that the courts of different countries adopt different approaches to certain common scenarios. One area of divergence is the case where parties to a contract containing an arbitration clause choose state A as the seat of arbitration, but the law of state B as the law governing the matrix contract: which law governs the arbitration clause – the law of the seat or the law of the country chosen to govern the substantive contract?

Some legal systems, influenced in part by the doctrine separability (according to which a contractual arbitration clause is, conceptually, treated as a contract separate and independent from the matrix contract) and article V.1.a of the New York Convention of 1958, take the view that, in the absence of an express choice by the parties of the law applicable to the arbitration clause, the law of the seat should govern questions of material validity. English law, however, has never taken this view – although, arguably, the Court of Appeal came close to doing so in C v D [2007] EWCA Civ 1282. Continue reading

Law and Politics in the Supreme Court

By Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School).

By a majority of 8 to 3, the Supreme Court held that in light of the terms and effect of the European Communities Act 1972, ‘the prerogative could not be invoked by ministers to justify giving Notice under Article 50… Ministers require the authority of primary legislation before they can take that course’ (para. 101). Within hours, the European Union (Notification of Withdrawal) Bill,[1]  authorising the Prime Minister to trigger Article 50, was published. It passed through the House of Commons unscathed yesterday. A White Paper, setting out the Government’s plan for Brexit, such as it is, has also been published.[2]

The purpose of this post is very specific. My aim is not to analyse the judgment, the Bill or the White Paper. That has been done elsewhere. Instead, my aim is to begin to explore the relationship between law and politics, and between Parliament, the executive and the judiciary, taking as a starting point the judgments in the Supreme Court. The judges are, at times, careful not to trespass into the political realm. Nevertheless, their findings are informed and influenced, in a number of ways, by the political context. There are, moreover, important differences between the approaches adopted by the majority and the minority, including differences relating to the judges’ understanding of the legal process of Brexit.

It is hoped that inconsistencies between and within the judgments will provoke further academic consideration of the extent to which Courts should intrude into, or take cognisance of, the political realm; and of the extent to which constitutional safeguards are matters of substance or form. But, at this febrile political time, the clearest conclusion is that by failing to answer key questions of law, the Court has done a disservice to Parliament, thereby contributing, not towards the provision of a clear framework within which politicians are able to address the realities of Brexit, but to the pervasive sense of confusion. Continue reading

When Christmas drinks go wrong – Vicarious liability and the ‘course of employment’ test in the High Court

By Prof Paula Giliker, Professor in Comparative Law (University of Bristol Law School).

The office Christmas party is something many of us will have enjoyed recently.  In the words of Judge Cotter QC in the recent High Court decision in Bellman v Northampton Recruitment Ltd [2016] EWHC 3104 (QB), it is an occasion “no doubted dreaded by some and an annual highlight for others” (para 14).  Needless to say, in most cases, alcohol will be freely flowing and sadly things may be said or done regretted bitterly the next day.

In the case of the Northampton Recruitment Ltd 2011 Christmas party, it was not the party itself (held at the Collingtree Golf Club) which proved eventful, but the “after party” held in the lobby of the Collingtree Hilton Hotel in the course of which the managing director of the company, John Major, punched an employee (Clive Bellman) twice during the course of a disagreement at 3am. Mr Bellman’s head hit the marble floor, leading to brain damage. By the time of the trial, his condition was such that he was not able to litigate or manage his affairs and brought his claim as a protected party. To add to the tragedy, the parties in question had been friends since childhood. The assault, no doubt fuelled by alcohol, had been provoked by a work-related dispute, although discussions at the Hilton Bar had covered a variety of matters. The question for the court was whether the company would be held vicariously liable for the tort of its managing director. Continue reading

The Ugandan Bridge Schools & Education as Freedom

By Dr Foluke Adebisi, Teaching Associate (University of Bristol Law School).

© CCTV Africa

© CCTV Africa

On the 4th of November 2016, in Bridge International Academies Ltd v. Attorney General Ugandaa Uganda High Court judge ordered the closure of 63 Bridge International Schools. The judge cited the use of unqualified teachers, unsanitary learning conditions as well as the fact that the schools were not properly licensed as reasons for ordering the closures. The court also considered the poor quality of education provided in these schools.

Bridge schools are backed by Bill Gates and Mark Zuckerberg. The schools claim to have 12,000 students in Uganda and 100,000 students across Africa, mainly. According to their teaching model statement, teachers read scripted lessons from a tablet. The content of learning is standardised and not adapted to individual needs. It is suggested that this is an effective low-cost way of providing ‘quality’ education. Nevertheless, Bridge Schools in Africa have been the subject of much controversy. The UN has suggested that funding such schools could contribute to violations of international law. Those who suffer the most from this are poor Ugandans, they are caught at the intersection of a convergence of disadvantage: government education is unreliable, often unsanitary, and almost always underfunded. Private education is unaffordable and inaccessible for most Ugandans. Yet Bridge education is barely education at all. Continue reading

Same old, same old: The European Court of Justice’s fixation with the Plaumann test for individual concern

By Mr Konstantinos Alexandris Polomarkakis, Graduate Teaching Assistant and PhD Candidate (University of Bristol Law School).

© Trevor Parker

© Trevor Parker

In its Judgment in Ackermann Saatzucht and Others v Parliament and Council, joined Cases C-408/15 P and C-409/15 P, EU:C:2016:893, the European Court of Justice was given yet another chance to set out its position on the admissibility criteria, and more specifically on that of individual concern, for individuals to bring an action for annulment under the fourth paragraph of Article 263 TFEU.

This Judgment follows its recent rulings in T&L Sugars (C-456/13 P), Stichting Woonpunt (C-132/12 P), Stichting Woonlinie (C-133/12 P), Telefónica (C-274/12 P) and Inuit (C-583/11 P). The cases at hand were decided by the ECJ on appeal, lodged by two groups of German and Dutch operators active in the field of plant breeding, following the rejection by two orders of the General Court (in cases T-559/14 and T-560/14) of their  annulment actions against Commission Implementing Regulation (EU) No 511/2013 establishing the standard import values for determining the entry price of certain fruit and vegetables into the EU’s internal market.

The annulment of the said regulation was sought on the basis of it being incompatible with the content of Regulation (EC) No 2100/94 and the International Convention for the Protection of New Varieties of Plants. These laid down the breeders’ exemption granting plant breeders unrestricted access to protected varieties without a duty to disclose any information, something that was allegedly hampered by the entry into force of Article 4(3) of Regulation 511/13, which bestowed upon them an obligation of disclosure. Nonetheless, the said operators’ actions for annulment were dismissed by the General Court as inadmissible due to the lack of individual concern. In their appeal to the ECJ, they contested this finding, pleaded that the Regulation runs counter to higher ranking rules, and, also, claimed that because of the inadmissibility of their action, their right to effective judicial protection has been impinged. Continue reading

EU rights as British rights

By Dr Eirik Bjorge, Senior Lecturer in Public International Law (University of Bristol Law School).

eca-1972-imageAccording to a carefully argued contribution by Professor Finnis in the Miller debate, rights under the European Communities Act 1972 ‘are not “statutory rights enacted by Parliament”’; they are only ‘rights under the treaty law we call EU law, as it stands “from time to time”’. Finnis thus purports to have broken the chain of the claimant’s main argument.

In that connection, Finnis considers the somewhat recherché example of taxation treaties and the Taxation (International and Other Provisions) Act 2010 to be a useful analogy. The point of the present contribution is to suggest that a more natural analogy would be the Human Rights Act 1998 and the European Convention on Human Rights (ECHR). Like the ECA 1972, the HRA 1998 conditions the legal relationship between citizen and state in an overarching manner and deals with fundamental constitutional rights. There is also particularly instructive judicial authority on the HRA 1998 specifically on question of the nature of its relationship with the international treaty whose obligations it mirrors. Continue reading

Tesco Bank and Cybercrime

By Mr Andrew Charlesworth, Reader in IT Law, and Prof Keith Stanton, Professor of Law (University of Bristol Law School).

© Tesco Bank

© Tesco Bank

The day has arrived on which a cyber attack has succeeded in breaching a bank’s security with the result that customers’ money has been taken from their accounts. According to press reports the accounts of around 40,000 customers of Tesco Bank have been accessed and the bank has refunded £2.5 million to 9,000 who have had money removed.

Banks’ IT systems are an obvious target for cybercriminals.  The fact that such systems contain both money and data on customers makes them extremely tempting. As banks have developed new channels for delivery of services, such as websites, mobile applications and social media, these have often been added, or linked, to existing out-dated systems. This increased complexity may mean that new avenues of attack are inadvertently created, and make it difficult for a bank to rapidly pinpoint the source of system risks and breaches. The increased use of distributed computing, with multiple systems running across multiple servers, can also create new system risks and simultaneously increase the number of staff requiring access.  While external threats are increasing, it appears that industry insiders remain responsible for a significant share of bank fraud.  How the Tesco cyber attack was carried out remains unclear, but the scale and speed of the transfer of funds suggests a degree of sophistication. Continue reading

Miller: Why the Government should argue that Article 50 is reversible

By Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School).

© PA

© PA

Last week’s judgment in the High Court is a ringing endorsement of the sovereignty of Parliament. It asserts that ‘Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses’ (at [20]). It explains why the ‘subordination of the Crown (ie executive government) to law is the foundation of the rule of law in the United Kingdom’ (at [26]), including references to the bedrock of the UK’s Constitution, the Glorious Revolution, the Bill of Rights, and constitutional jurist AV Dicey’s An Introduction to the Law of the Constitution. The Crown has broad powers on the international plane, for example to make and unmake treaties, but as a matter of English law, these powers reach their limits where domestic law rights are affected. EU law, by virtue of the European Communities Act 1972 (described again as a constitutional statute), does indeed have direct effect in domestic law. As a result of the fact that the decision to withdraw from the European Union would have a direct bearing on various categories of rights outlined in the judgment (at [57]-[61]), the Crown cannot, without the approval of Parliament, give notice under Article 50.  Continue reading

Allowable Costs under the Single Source Contract Rules: Costs for work undertaken at risk before entering into a defence contract

By Dr Luke Butler, Lecturer in Law (University of Bristol Law School).

38611963In an earlier blog, I introduced the Defence Reform Act 2014 (DRA), the Single Source Contract Regulations (SSCR) and the Single Source Regulations Office.[1] Collectively, these regulate the pricing of defence contracts awarded by the Ministry of Defence to a single source contractor. It is recalled that contractors can recover certain “Allowable Costs” incurred under a Qualifying Defence Contract (QDC) if they are appropriate, attributable to the contract, and reasonable in the circumstances (the so-called “AAR test”).[2]

But what if, ahead of the agreement of the contract, work relating to the contract is undertaken at risk pursuant to an “intention to proceed” (ITP) arrangement?[3] Unless the ITP fulfills the requirements for a legally binding contract, it cannot itself constitute a QDC.[4] This leaves the question whether this kind of pre-contractual work can constitute an Allowable Cost recoverable under the QDC once the QDC is in place. Continue reading