R v Woolin, Nedrick

Extract 1 : The effects of the Nedrick Decision
Extract 2 : Skeleton Argument for a Mooting Competition Quarter Final
Extract 3 : Legal review of Thomas v The Times Book Co., Ltd.
Extract 4 : The European Court of Justice ruling on employer discrimination
Extract 5 : The current law of Manslaughter, Corporate Manslaughter and Reforms
Extract 6 : Critical Analysis between fixtures and what constitutes a chattel
Extract 7 : An Analysis of the World Trade Organisation
Extract 8 : Is there a valid distinction to be made between 'the international' and 'the global
Extract 9 : The conflict in Kashmir
Extract 10 : The procedure of extradition in the UK

Extract from "R v Woollin [1999] 1 Cr. App. R. 8: a legal research exercise to determine the effects of the Nedrick Decision"

House of Lords opinion on Nedrick

The Lord Steyn gave his approval of Nedrick and proclaimed Lord Lane had "provided valuable assistance to trial judges and is now a tried-and-tested formula". Steyn LJ believed that Nedrick is the test to be concerned with the mens rea of murder which is to be established after sufficient consideration by the jury of all the evidence where Nedrick contributes no obstruction. Showing further reliability Lord Steyn also noted that "over a period of 12 years since Nedrick, the test of foresight of virtual certainty has apparently caused no practical difficulties" because of its simplicity and clarity. Steyn LJ stated that he would hold that section 8(b) of the Act of 1967 does not compel a result of guilt. He also confirmed that in cases where the defendant did not desire the final result of his act, it might be appropriate to give a direction in accordance with Nedrick. In the present case Lord Steyn held that the trial judge had misdirected his jury and that the "misdirection had enlarged the scope of the mental element required for murder." Supported by Glanville Williams, J.C. Smith and Andrew Ashworth, Lord Steyn agreed that the use of the word to infer may detract from the clarity of the model direction. Therefore the words to infer would be substituted with the words to find. But at all times it remained at the discretion of the presiding justice to decide what direction is to be issued to the jury in each particular case.

Lord Hope of Craighead: Agreed that the changes made by Lord Steyn were essential to increasing the clarity and establishing a rule that issues forth a direction to future juries which is clear, simple and more intelligible. "But the substitution of the word "find" for "infer" is an improvement, in the interests of clarity, and I also would make this change to it."

Extract from "Skeleton Argument for a Mooting Competition Quarter Final"

Introduction

1. This is an appeal against the decision of Lord Justice Els held for the Respondent. The issues raised by this appeal are:

(1) Whether the Appellant was owed a duty of care by the respondent because

a. The Appellant relied on the on the advice and skill of the Respondent and
b. The Respondent's negligence made the Appellant's position worse

(2) Whether a duty of care would have been owed to Mr Dimmock considering the circumstances by which he and the Respondent conducted their business

a. Whether reliance is reasonable
b. Whether inexperience is a defence and
c. Services rendered where not free of charge

(3) In finding a duty being owed to Mr Dimmock, Miss Maddox would not be in a better position then Mr Dimmock.

Background Facts

2. An agreement was made between the Respondent, Mr Greenwood, and Mr Dimmock in regards to creating a tax-free share issue to six permanent employees, including Miss Maddox, of Mr Dimmock's small industrial cleaning company. Mr Greenwood was instructed to create the documentation in return for a round of golf to be offered to him at a prestige course by Mr Dimmock.

3. The Respondent is a trainee solicitor and golfing partner of Mr Dimmock and was formally instructed to carry out the work in his own time, independent of his firm. Contrary to being a tax-free the share issue agreed as a matter of fact by both parties to be possible, the negligent documentations incurred Inland Revenue charges of £5,000 to each of the six employees including Miss Maddox.

4. Miss Maddox seeks action in negligence against Mr Greenwood for his negligent structuring of the share issue. Court in the first instance held no duty was owed Miss Maddox or Mr Dimmock in this instance.

Extract from "Legal review of Thomas v The Times Book Co., Ltd. [1966] 2 All ER 241.

Evidential Problems

Because of the death of Thomas, Plowman J made clear that he would be looking at the evidence in great care but also applying a thorough investigation with a suspicious mind-set in order to establish the truthfulness behind the evidence presented by both sides of counsel. This was on the advice of his learned colleague Sir Baliol Brett M.R. (Gandy v Macaulay (1885) 31 Ch.D pp.8-9)

Firstly, the prosecution presented the relevant facts to Plowman J in regards to the significance of the manuscript as witnessed by close friends of Mr. Thomas. This evidence pointed out the great value placed on the manuscript by Mr. Thomas through evidence given by Mr. Todd and thus the absurdity in assuming that the manuscript was indeed a gift. Plowman J dealt with the evidence by applying objectivity and reminding the court that Mr. Todd's testimony could have indeed been flawed because the conversations had taken place over twelve years previous and much of the evidence presented by the claimants are pure matters of hindsight.
Facts that made their version of events more probable included accounts of Mr. Cleverdon mentioning the gift on public radio and television interviews, his account of the remarkable story of the gift to many witnesses. The conclusive reason for Plowman J's acceptance of Mr. Cleverdon's evidence as the truth was down to this, he had known Mr Thomas would return to the UK at that moment in time, therefore, why would he have recounted the story of the gift if he knew his lie would be found out upon Thomas's return and why would he have mentioned this to the co-trustees of the Thomas copyrights as early as 1954.
Secondly, on the point of delivery, Mr Cleverdon had the consent of Dylan Thomas to search for his manuscript and gave him the name of the public house where it was subsequently found. This, in the mind of Plowman J, constituted sufficient delivery to a perfect gift in Mr. Cleverdon's favour.
Plowman J was therefore, justified in asserting that the defence had indeed proven on a balance of probabilities that the gift had intention and was a valid gift and also confirmed their successful proof of delivery of the gift which could only result in the manuscript being a valid and perfect gift.

Extract from " A Critical Analysis of The European Court of Justice (ECJ) ruling reported in C-249/96 [1998] ECR I-621 (Westlaw) in regards to employer discrimination".

Advocate General Elmer's Opinion

Specifically argued that "to tolerate such discrimination would be tantamount, as regards to such a person, to failure to respect the dignity and freedom to which she is entitled and which the court has a duty to safeguard."

Comparison

It is quite obvious from the Court's reaction that they did not feel that that was the situation. As is evident from their findings they were systematic in applying the Community law and were steadfast in remaining objective and decisive as to the interpretation of the existing Article 119. As the report's endnote states they were willing to offer what was soon to be within their realms of interpretation however, they where only going to lawfully remain intra vires and apply the law having given consideration to human right's legislation. The court also considered the government positions of both member states involved and held that resolution to this situation could diplomatically be through national legislation. This indicates that the court was wary of the potential to open floodgates and bring forth issues in regards to sexual orientation at a time when a number of member states to not recognise homosexual marriages or cohabitations as a relationship equivalent to opposite-sex cohabitation and marriage. The Court must have considered the political ramifications of their judgment and ceded on the basis of Community law to establish a clear and precise affirmation of the Community's legal stance on this issue. It seems that Elmer was set on using the Mischief rule of construction in deeming that the situation that Directive 76/207 was trying to address was equal rights for all regardless of gender or sexual orientation. Unfortunately he was not constant in his application of the rule because he had to bring in the use of the Eiusdem generis rule in order to emphasise that the original Directive was implying regulations outlawing discrimination based on sexual orientation. He lacked consistency and methodology in approaching the questions at hand and instead let a great deal of emotional wording to enter in his opinion. For example the quote given in the previous section of this report is charged with emotional expressions such as respect, dignity and safeguard. In comparison with the ECJ ruling Elmer presents a very one-sided opinion and betrays his objectivity in the first few paragraphs. He also asserts that although Directive 76/207 does not apply to this instance, the case law in regards to it must be incorporation in finding a rational judgment. Lastly to confound his opinion even further Elmer redefines the issue by accommodating various references to transfer the issue from one of sexual discrimination to a more correct version of 'gender discrimination'.

Thus it can be concluded that the ECJ's ruling was much more of what is expected in a court of law and the decision was rationally deducted and systematically applied against what Community law has outlined.

Extract from "The current law of Manslaughter, Corporate Manslaughter and Reforms"

Introduction

At present the law for involuntary manslaughter is due for reform due to its lack of clarity in regards to the required elements of the mens rea, recklessness and sentencing. The Government has outlined its proposals and has concurred with the Law Commission on a great deal of their proposed reforms. The new reforms have also included a new offence of corporate killing in response to further culpability being held against companies responsible for fatal disasters such as The Herald of Free Enterprise disaster. The jurisdiction for the new individual offences is proposed to remain the same, whereas it will be reduced to deaths that occur anywhere the English courts have jurisdiction for the offence of corporate killing.

Current Problems with the Law

Not only does the current law on manslaughter involve a great many discussions in regards to test for the establishment of gross negligence, the breadth of the entire offence of manslaughter has ballooned leaving much of the public questioning what law to base their actions upon. The courts are also unsure in establishing sentences, which reflect and deter the accused because of the range of offences that can be tried for manslaughter. There are no mid-points of categories that exists between murder and accidental death, therefore, when accused of a dangerous and unlawful act, the guilty party will face charges of manslaughter regardless of the severity of his act which at present is not even reflected in the sentencing.

Conclusion

The proposed offences regarding involuntary manslaughter and corporate manslaughter have been successful in deciphering the obiter that has surrounded and invoked a great deal of confusion. The Government has approved new offences to be established which standardise judge's sentencing and jury directions providing egalitarian legal proceedings for all parties. The rule of law cannot continue if the law is ambiguous because of the indistinctness does not allow the public to comprehend the law which the charges are founded upon. The proposals for corporate killing have been approved not only by the Government but also by organisations such as the FBU and ASLEF 1 and would bring comfort to the public in light of continued fears for safety in regards in particular to public transport. The recent proposed reforms (2000) and draft Criminal Law Bill in 1996 have initiated a positive and comprehensive approach process to the development of the law in regards to involuntary manslaughter, in particular corporate manslaughter.

Extract from "Critical Analysis between fixtures and what constitutes a chattel"

Analysis Results:

Both agree that a great deal of one's decision must be reliant upon common-sense and the objective test. One can not deduce that a dwelling house can be considered a chattel due to it's characteristics therefore, they are determined to be realty. Lord Clyde stated that the intention involved in this instance is in reference to the purpose which the object is serving not the intention of the creator. The Lordships disagreed on this point with Lord Berwick believing the intention comprised of the reason it was constructed and whether it was built to become part of the land and its enjoyment. Both agree that intention must be explored however, the fundamental basis for forming a decision, identifying a fixture from chattel, is whether the object can be removed from the land and in what capacity it is likely to leave the object once removed.
Both Lords agreed that having been in existence for over half a century the bungalow had clearly been inferred as part of the realty not only by Morris but by the land ordinance as well therefore, when common-sense is applied one can not deem the bungalow to be a chattel regardless of the intention behind its construction or purpose.

Lord Berwick offers a more amicable judgment due to his lack of ambiguity in establishing a definition of fixture amid his unease with the word. He clearly states his logical deduction of establishing permanency of the object when considering if it could possibly be a chattel by citing cases which offer straightforward definitions and tests which can be applied for ease of interpretation. He also places more emphasis on the use of common-sense and objectivity when looking at the facts of the case. He assumes that a reasonable man would indeed view a dwelling-house to be a fixture of the land based upon the acceptance of these facts by the land ordinance and the neighbouring residents. I feel he was more straightforward and established clear facts which could easily be used in future cases in regards to this subject matter.

Extract from "An Analysis of the World Trade Organisation"

Previously known as GATT, the WTO has been reshaped in order to portray National Governing institutions as providing the means by which governments can use their policy to monitor trade and be fruitful economically. The WTO now incorporates non-trade issues, a phenomenon which was initiated by American multinational corporations. With the conclusion of the Uruguay Round the WTO emerged but was still hampered by the legacy of its predecessor as it attempted to unite and shape the world economy. At present the Non Governmental Organisations (NGOs) seem to be increasing their clout over trade policies and using their influence to monitor and make demands of the WTO. The example of Seattle is briefly examined to demonstrate how many different bodies are contesting the actions of the WTO including their own members and the effect this will ultimately have on rescuing the ideals on which the WTO was founded. As is the case with globalisation, the WTO is attempting to break down trade barriers, liberalise trade and unite nations under the banner of a global economy. Whereas globalisation on an individual scale is also trying to break down differences and encourage a global image to unfold.

A great transformation in global politico-economics has occurred since the end of the Second World War when decisions were taken to never let the atrocities that occurred happen ever again. Thus forth, one key aspect of managing world security was through a global consensus and deeper coherence.

Under the guise of the WTO the developing nations are facing a prospect whereby their guard has been dropped and they are being raped under legitimate rules and regulations. Their infant industries are swiped out of existence before they are even conceived by MNCs from the Quad region and policies rule in favour of their trades and practices. The developing nations are hampered further by the amount of trade they can carry out within each other's boundaries due to poverty and the inability to purchase each other's goods. One can sympathise with the WTO and deem its working processes to be a consequence of the uncontrollable globalisation force in action. It has expanded to include mandates not intended for its regulation such as labour services and is often hampered with environmental issues. The role of the WTO plays on the processes of globalisation is one of a global policeman. Their responsibility is ensuring that trade is regulated to a certain standard and that nations are dealt with if not in compliance with rules and regulations. New pressures need to be elevated off of the WTO's shoulders in order to deal with other issues such as the environment, by new bodies which are given power to help in global policing. This would allow more attention and capital to examine prominent issues and give full attention to a single topic that does not overlap with any other governing body. The people who gathered at the riots in Seattle claimed they had a cause for creating scenes never seen before. If a new environmental World Organisation formed and enforced environmental rules and regulations in could be sure that there would be less protesters and a few more supporters of regulatory systems.

Extract from "Is there a valid distinction to be made between 'the international' and 'the global'"

There is a valid distinction to be made between 'the global' and 'the international'. Many things, which are perceived to be global, are in fact international. Only a small number of nations are involved in the relationships of trade and commerce. Only very few nations who belong to a prestigious group such as the Triad nations can experience the upsurge in living standards and home comforts. The admittance of Ohmae that most of the wealth is created and consumed within the Triad nations is a testament to the growing rift between the powers of the world. The concept of globalisation presented by the globalisers is in essence an Americanisation of the world, with western thoughts and ideologies predominant in its make up. It is the liberal capitalist revolution where free markets reign supreme and borders are nullified. However, I disagree with this point and state that Panitch and Shaw are correct to point out that the Capitalist classes are involved in the reshaping of the nation state to make it a central if not regional player which specialises in its part and advocates liberal democracy. It is the state however, which is a major player, shifting and adapting to the circumstances. It may shrink or it may grow in the form of an empire but it is the state, which hold sway over its populations through the use of legitimate force. Thus, Hirst and Thompson may be correct in stating that indeed it is a growing 'international interconnectedness' but as observed above there views are rather pedantic and technologically unaware. The global economy is becoming more and more interconnected but not how Hirst and Thompson describe it through the fact that nation states are maintaining a growing international presence. States are now interconnected through regional blocks such as European Union or NAFTA, or through regional hotspots such as the financial centres of the world. All these areas rely on each other to continue the process. But the major factor in this notion is the demonisation of opposing ideologies or thoughts. The fact that power and wealth is in the hands of so few. So whether it is an 'international', 'global' or 'an international interconnectedness' it is scant consultation to the majority who have no say in this new altercation of power and direction.

Extract from "The conflict in Kashmir"

The term 'international' has been defined as: "1. Existing or carried on between nations. 2. Agreed on by many nations." (Elliot, 2001, p398) The term 'domestic' has been defined as: "Of One's Own Country" (Ibid, p222) The thesis I propose for this study is that the conflict in Kashmir is inherently International.
In order to discern an opinion the subsequent research carried out was predominantly of a secondary sourced nature. It should be noted that commentators native to either India or Pakistan have written most of the literature available on the subject. Therefore, in consideration of the historical antecedents it is not feasible to discern an impartial prospectus of the history, region or disputes from a majority of the work consulted. Authors from their respective nations have in most cases adopted particular stances, which, is conterminous to the thought process in that nation. Thus, Work cited in this study has been acquired from those commentators who have maintained some form of impartiality in their literature.
In order to prove the stated thesis the study has been divided into three sections plus a conclusion. The first section of the study addresses all those factors which, Internationalise the conflict in Kashmir. The assertions for these points to be international are derived from the definition stated of the term 'International'.

…Thus, this internationalising factor of religious ideology is the most poignant to override all domestic considerations. It was this sentiment upon which the nation of Pakistan was created. However, in context of the argument, the political factors, which contrive to internationalise the Kashmiri conflict, rely extensively on the involvement of the UN, International Human Rights Groups, third party mediators and the idiosyncratic insurgents. The combination of these factors has sought to elucidate the issue to the detriment of Indian hubris. India has to accept the blatancy of the situation and seek to involve the 'third party' in this conflict, the Kashmiris. With nuclear capabilities at disposal for both sides the 'clausewitzian' 2 extension of politics through war may prove highly consequential not just to the region but to the world thus, the issue is inherently international.

Extract from "The procedure of extradition in the UK"

Effect of Delay

Should the initial period, or any other relevant period expires, the individual has a right to apply to the High Court for an order for release from custody.3 If the individual makes an application for release the court is authorised to quash the warrant for return as well as disregard the application if justified. 4
The relevant periods, mentioned in statute in regards to delay, authorise a period of two months, beginning on the day return has been authorised by the courts, to constitute the time limit for applications under section 11 to be dealt with. Whereas if the warrant for return has been issued by the courts, then a time limit of one month will be given prior to allowing an application for release. If the individual applies for judicial review of the OFR then the time limits begin after the review has taken place or "one month after they end."5 The Act defines "the end" to signify, in cases where judicial review has been sought, the discontinuance or day of decision. 6
.
Backing of Warrants Procedure for the Republic of Ireland

When the Republic of Ireland (ROI) makes an extradition request for an individual the United Kingdom (UK) applies a procedure governed by the Backing of Warrants (ROI) Act 1965. Similar to the process governed by the Extradition Act 1989, it is applicable if the request is made as a result of a crime being committed in ROI which, if committed in the UK, is an indictable offence or would incur a minimum six month imprisonment upon summary conviction.

Appleby, M. Thompsons Health and Safety Department. Jul/Aug 2001.[^ Return]
This is in reference to Carl von Clausewitz's work On War. See Bibliography.[^ Return]
Extradition Act 1989 s16(1)[^ Return]
ibid s16(5)[^ Return]
ibid s16(2) and s16(3)[^ Return]
ibid s16(4)[^ Return]