- Created by: hanalakie1
- Created on: 30-05-17 17:34
Theorists of BCI
Several important theorists questing wheteher the law is achieving this
- Karl Marx(1818-82) - Believed that the law was part of of the 'repressive state apparatus' ensuring the exploitation of the the working class by capitalistis. Marx adhered to the conflict model of society and thus was of the veiw that law did'nt reconcile conflicting interests in a compramise but rather imposed the interest of one at the expence of another
- Rudolf von Jhering(1818-92) - Law was a prime method of ordering society. He was an ulititarian and more concered with social than individual aims. He followed Jeremy Bentham, whose principle of utility was aimed at maximising human happiness by increasing pleasure and diminishing pain according to the principle of 'the greatest happiness of the great number'. Society is made up of several competing interests, which arent all satisfied. He believed that the interests of the individual would conflict with the interests of society as a whole. The role of law is to balance these interests by reconciling the interests of the individual to society, achived through state-organised coercion ie. the law, rewards, duty and love
- Roscoe Pound(1870-1964) - Divided interetsts into 2 main categories: individual and social interests. Arguing that interets could only be properly balanced if placed on the same level (weighed against themseleves). Failiure to do this builds in a bias to favour the social interests. Developing the ideas of Von Jhering. Law needed to be developed according to social needs, serving interests that lead to the good of society. Subscribed to the consensus model of society, believing that interets should be balanced in accordance with society's values or 'jural postulates'.
- The courts have not generally adopted Pound's approach. For example: Miller v Jackson: involving an application for an injunction. Lord Denning approached the problem in terms of 'a conflict between the interest of the publi at large and the interests of a private individual'. He concluded that the public interest outweighed the individual and refused to grant the injunction. But did attempt to balance this by awarding damages to compensate for the inconvenience.
- To follow Pound they would have necessiated seeing both interests in the same term, either individual or social.
BCI Parliament (Leg Process)
- Positives: The process of making an Act of Parliament - The Green Paper invites consultation from various interested partes who may be affected by the proposed legislation. The bill stage of making the legislation requires many debates and votes. There are several political parties reflecting a wide range of veiws. Before the Act, many compromises and amendments will be made, which take into accont the different views of those who are both interested and involved in the legislative process.
- Negatives: Is it there a true balance of conflicting interests achived by the legislative process - There are many powerful interest groups and classes within society. Thesse are many powerful interest groups and classes within society. these influence the veiw of ministers, members of Parliament and civil servants. Many politicans are wealthy and influencial. They may possess large shareholdings in companies and have directorships or other connections. They may be persuaded more often than they should by groups who are in favour of protecing such interests, despite requirements that these interests should be revealed.
BCI Parliament (Protective Leg)
Parliament sometimes seeks to balance competing interets through legislation, which is advantageous to weaker interest groups.
For example: (cosumer law)
- Consumer Protection Act 1987 - Imposes strict liabilty on producers in respect of damage caused by dangerous products.
- Sale and Supply of Goods Act 1994 - Applies conditions to consumer contracts in respect of title, description , quality and sale by sample
- Unfair Contract Terms Act 1977 - The use of exclusion and limitation clauses by businesses in consumer contracts is significantly reduced
- Negatives: How successful is it? - Phil Harris in An Introduction to Law, points out that such legislation is not rigorously enforced by the state. Resulting in the protective legislation aiding the stronger group while appearing to aid the wekaer one. The protection offered to consumers enables businesses to enjoy a better public image and sp further own interests. It depends on enforcement by the consumer. Harris believes that most consumers are ignorant of their legislative rights. He also questions whetehr the average customer would know that a clause in an agreement excluding liabilty for implied terms is invaild under the Unfair Contract Terms Act 1977
Judges are faced with balancing competing interests, especially in nuisance, occupier's liability, crime and consumer law
- Nuisance: The claiments interests ie. enjoying their property balanced against interets of neighbours to do what they must with propety
- Occupier's liabiltiy: Interests of the occupier of land blanaced against the interests of people coming on to their land
- Criminal law: Interests of the offender balanced against the interests of society
- Consumer law: Interests of the consumer balanced against the interests of the business
Public outweigh private interests
Pound's theroy was genuine balancing of conflicting interests could only be achived when interests are placed in the same category. For example: Miller v Jackson - if the interests were placed in the same category, the outcome may have been different. Eg: individual category, Miller's interests in privacy against Jackson's interets playing cricket or by social category, public interest in domestic privacy against public interest in playing cricket.
Protection of national security is another social interest which nearly always prevails if balanced against and individual interest. For example Council of Civil Service Unions v Minister for the Civil Service: the GCHQ, the PM issued an order at the intelligence-gathering centre were no longer permitted to a trade union. The HOL backed the PM as interest of national security, despite valid argument of unions had not been consulted. Tony Blair restored the right of workers to belong to a trade union, making the orginal threat to nation security appear doubtful.
Public interest can also outweight the private in respect of most positive rights provided by the European Convention on Human Rights and the Human Rights Act 1998. These rights are subject to derogation clauses which can be drafted in broad terms. For example: R(Begum) v Headteacher and Govenors of Denbigh High School, She claimed her right to prctice her relgion under Article 9, the school terms had been violated due to school unifrom policy by wearing her jibab and was unsuccessful. The right to practice a religious bellief id subject to limitations that are 'necessary in demorcratic society for the protection of the rights and freedoms of other's. The interests of schools in devising uniform policies that are safe, inclusive and uncompetitive outweighs the interest of an individual in being able to wear what he or she wants.
Private outweigh public interest
Article 8 of EU Convention on HR states that everyone has the right to respect private and fmaily life, home and correspondence. But Article 8 also states that this right can be overriden 'in interests of national security, public saftey or the economic well-being of the country, for the prevention of disorder of crime, for the protection of health and morals, or for the protection of freedom of others'. Meaning the rights of the individuals will not prevail in the event of conflict with public interest. But in Mosley v News Group Newspapers Ltd the private interest did prevail, after the daily mail attacked on freedom of expression. Another example of a private prevail under Article 8 is Dickson v UK the private interest of the prisoner wanting to artifically inseminate his wife prevailed over the public interest of maintaining confidence in the prison sentence.
A and others v Secretary of State for the Home Department - An example where the courts decided in favour of the private interests by using s21 of the Anti-Terrorism, Crime and Security Act, that the private interets of it being unlawful to detain forenign nationals over the public argument interests. The Law Lords recognised the importance of preserving private interests.
Civil courts and access to justice
Interests can only be balanced if institutions are available to have access on a equal basis. The rule of law, state-assisted funding of legal actions and the independence of the judicary ensure that the court and tribunal system is able to achieve balance.
But, the Woolf commission provide evidence that the civil courts ofetn operate in ways which favour powerful organisations and disadvantage individual claimants. It can be argued that tribunals provide a fairer balance as there are fewer formal prcedures and encourage claimants to represent theselves. However, no government funding is available and the ordinary claiment is likley to be facing an opponent who is represented.
The small claims procedure achives greater balance. But again, there is evidence that the balance remains in favour of the parties who can afford to use lawyers. The majority of cases are brought by businesses trying ti recover bad debts rather than by individual claimants.
BCI in criminal law
The interest of society is the conviction of the guilty and the aquittal of the innocent. The interest of the defendant is to have an assumption of innocenece, to be treated with dignity and have to have a fair trail. The interest of the victim must be considered. The traditional balance balance of the law in favour of the D may leave victims feeling that their interests are not being effectively represented in the criminal process.
The Criminal Procedure and Investigation Act allows for the retrail of someone acquitted by a jury where there is evidence of intimidation of witnessess. And the Criminal Justice Act, which gives the CoA the power to order a retrail where 'new and compelling evidence'.
There is an issue that surrounds the rights of defendants - burden of proof, rules on arrest, rules of evidence, right to silence, effect of not-guilty finding -. These rules are created to create balance betwween the prosecution and the defence. It adresses the question that if balance has now swung too far in favour of the prosecution.
An example The Bail Act, interest of public being protected and the interest of the individual is inncocent until proven guitly
BCI in criminal law
Substantive criminal law: Defence of intoxication
The public interest lies in being protected from those whi cause harm when drunk. The individual interest lies in being held less responsible for actions carried out while intoxicated (with limited MR) than for actions carried out with full awareness.
The defence varies according to circumstances. Involuntary intoxicated, can be a defence to any crimes, provided the accused lacks the necessary MR. Voluntray intoxication, can only be a defence to a crime of specific intent. The courts regard vol intox as recklessness but is also the level of basic inetent.
For example: DPP v Majewski the HoL refused to allow vol intox to be a defnce for a basic intent. Lord Steyn said one of the main purposes if the protection of unprovoked violence of people who are pursuing theire law lives; to allow intoox as a defnce it would leave the citizen unprotected. The HoL opinion was to allow vol intox as a defence would not provide a proper balance between the interests of the D and the interests of society as a whole.
BCI in criminal law
Concept of strict liabilty
The creation of SL crimes the law may suppress the interests of the individual in the interetsts of public saftey. Rivers (Prevention of Pollution) Act makes it a criminal offence to pollute rivers, without the need to porve such pollution is caused intentionally, recklessly or negligently.
Alphacell v Woodward - D was found guitly of polluting a river, despite the fact that they were not negligent and were unaware of the mechancial breakdown of their equiptment, which usually prevented such pollution occuring.
One justification for strict liability in situations like this is that it works to the disadvantage of the more powerful interest and thus helps to achieve balance.
BCI in tort law
The law of Tort is mainly concerned with balancing two individual interests. However, public interests can arise, as seen earlier when considering Miller v Jackson. In this cases, the public interest was considered when determining whether to award an injunction.
BCI in tort law
The interest of one individual is not being harmed through anothers carelessness has to be balanced against the interest of the other individual is not being hel liable for unforesseable and remote consequences
Psychiatric injury, the law limits liability to secondary victims by applying stringent criteria not applied to primary victims. Primary victims can be foreseen as being likley to be affected by the D's actions. However, the courts apply restrictions on who can calim as a result of seeing or hearing something happen to someone else, Alcock v Cheif Constable of South Yorkshire and Page v Smith made it clear that a secondary victim must prove 5 addional critera:
- he or she is a person of ordinary phlegm
- he or she has close ties of love with those in the accident
- they are close in time ad space
- they perceived the accident with his ir her own unaided senses
- it can be shown that psychiatric illness rather than just physical injury was foreseeabel
BCI in tort law
The law of private nuisance os concernd with balancing the competing interests of neighbours to enjoy their property. Any interference which is unreasonable i sunlawful. In deciding whether the level of interference is unreasonable, the courts take into account factors such as locality, sensitivity and malice.
For example: Laws v Florinplace - When a shop in a residential area was converted into a sex shop and cinema club, locality was a relevant factor
Hollywood Silver Fox Garm v Emmettt - The claim succeeded because the D had deliberately set out to cause harm