Court of Civil Rights Appeals - Case Study Example

Case and Statute Analysis Part A a). The judgment is made in the Court of Appeal, Civil Division (b) Sir Thomas Bingham, Hobhouse LJ and Morritt LJJ (c) 11 applicants applied for judicial review (d) They brought the claim on behalf of the Fire Brigades Union, UNISON, GMB, RCN, POA, CPSA and many other Unions (2) The issues under appeal were the lawfulness of the Secretary’s Act in (a) failing to fully implement the provisions of the 1988 Criminal Justice act (b) implementing a non statutory tariff scheme 3(a) In 1988, the non statutory Criminal Injuries Compensation Scheme was set up for ex gratia payments to victims and were to come into force by a statutory order made by the Secretary. However, instead of doing so, the Home Secretary announced a new non statutory tariff scheme (b) The new non statutory tariff scheme calculated compensation on a flat rate basis according to category of injury under common law rather than compensation taking into account factors such as special damages and individual circumstances of a particular case. (4) The first issue was to determine the effect of subsection 171(1) and the role of the Secretary that was implied within it. The Union members contended that the subsection only imparted flexibility in when the order was to be made by the Secretary but that it had to be done. While a delay was permissible, it did not mean refusal to comply. If the Secretary did not wish to employ the statutory instrument, it was his duty to press for repeal of the Act. For the Home Secretary it was argued that this subsection also implied that he had the discretion to decide whether it should be implemented at all. (5) Sir Thomas Bingham made it clear that the term “may” in the phrasing of the subsection “….Secretary of State may by order made by statutory instrument appoint…” did not indicate that the Home Secretary had a choice in the matter; rather he was bound by Section 12(2) pf the 1978 Act to carry out his statutory duty. (6) Hobhouse LJ argued that the wording of the subsection meant that the provisions of the Act were not meant to come into force unless and until the Minister decided that they should. Parliament had chosen not to impose any restrictions on the Secretary of State and could have set out the mandatory nature of his confirmation through an amendment which it chose not to do. It made a difference in issue 1 because it established that the Home Secretary had not acted unlawfully in regard to issue 1. (7) Applicants had initially sought an injunction to restrain implementation of the tariff scheme. But this was not pressed for after the Secretary have an undertaking that no claimant would be adversely prejudiced by the tariff scheme and the awards would be stayed until final resolution of the appeal. (8) (a) Hobhouse suggests that a Minister look into the entire statutory context to determine whether it is coupled with a duty and carry out that duty first before implementation, example The Town and Country Planning Act of 1971. Morritt suggests that an act of Parliament would come into force unless some other act provides otherwise in which case the Minister may reexamine the implementation of a statute, example section 2(2) of the Transport Police Jurisdiction Act of 1994. (b) Statutes under the Children and Young Persons Act 1969 and the Police At of 1969. (9)(a) The second issue was in relation to ss108 to 117 and schs 6 and 7 and whether it was lawful for the Secretary to exercise his prerogative in a manner inconsistent with the will of Parliament spelt out in the Act of 1988. Plaintiffs contended that the Home Secretary could not exercise his prerogative when it would frustrate the will of Parliament and therefore he had acted unlawfully. For the Home Secretary, it was argued that the provisions of the 1988 act had not been brought into effect and therefore they could not be deemed to exist at all. According to Sir Thomas Bingham, compensation was a prerogative matter due to its non statutory nature and is deeply entrenched in the judicial consciousness since it involves distribution of Crown monies. He referred to judicial precedents as being determinative of the prerogative issue. Therefore he decided that as long as the Parliamentary provisions of the Act of 1988 remained unrepealed, the Minister did not have the statutory power to introduce a different scheme. (b) In relation to the second issue, Hobhouse J contended that the Minister was well within his prerogative powers to introduce the tariff scheme and there was no abuse of the prerogative power. He stated that a statutory provision not in force was not law, the Minister did not need any authority to solicit funds from parliament and could introduce the tariff scheme in accordance with budgetary requirements approved by parliament. (10) Thomas Bingham did not consider the Appropriation Act of 1994 relevant to the issue of whether or not there had been an abuse of prerogative powers by the Secretary. Hobhouse LJ took a different approach from Bingham, arguing that the recognition of the new scheme under the Appropriations Act of 1994 was in itself adequate to justify the Home Secretary’s action without recourse to the prerogative. (11) (a) In relation to Issue 1, the Court found in favor of the Secretary in relation to issue 2, the Court found in favor of the appellants and declared that the Secretary’s actions were unlawful. (b) The Court allowed the Appeal and held that the Secretary’s new scheme was unlawful. (12) The De keyser case was brought to the notice of the Court in view of the prerogative aspect of the Home Secretary’s powers being suspended by Statute. Bingham held that since the Keyser case did not concern statutory provisions that had not been brought into force, it could not be taken into account. Hobhouse also stated that when the statutory provisions being relied upon by the appellants were not yet law, the Secretary’s exercise of prerogative to introduce the tariff scheme could not be assessed from that viewpoint. Morritt J stated that it was the existence of a statute that had empowered the crown to override the prerogative in the Keyser case. Part B: (1). An authorized person is one who is the owner/occupier, or has the owner/occupier’s consent or is there by lawful authority (2) The Court could apply the same meaning of ammunition and firearms that has been spelt out in the Firearms Act of 1968. Additionally, the Court can also apply the principles of the Environmental protection Act of 1990. (3) Venison for the purpose of the Act refers to any carcass of a deer or any part of its carcass that has not been cooked and canned. (4) This literally means that the expression of one thing is the exclusion of another. Therefore if something is not included within a statute it is necessarily excluded from it. (5) The ‘close season for stags is 1st May to 31st July and for hinds 1st March to 31st October. (a) Darcus would have committed the offense of poaching under Section 1(1) and (2)of the Act since he entered Farmer Giles’ land without his consent and intentionally killed the deer. He would also be liable under Sections 4 (1) (a) for setting a poisoned trap since the use of arsenic would qualify as a stupefying agent. Under the Deer Act of 1991, it is an offense to set up any kind of trap to cause any harm or injury to deer. Section 4 (2) (a) for using a firearm to kill deer without a license and without the possessing the lawful authority to do so. Schedule 2 of the Deer Act of 1991 includes any smooth bore gun in the list of prohibited forearms and since Darcus has used such a gun, he would be guilty of an offense. He would also be held liable for having in his possession such a firearm. (b) Darcus could possibly plead his defense under one of the exceptions that have been laid out in Section 7 of the act in reference to his gun and whether it was “not less guage than 12 bore” and that his cartridge contained shot 5.16 mm in diameter and weighed not less than 350 grains. Alternatively, if he can show that he had sufficient cause to believe that the deer on Farmer Giles’ land were damaging his own crop and that he had to shoot it to prevent future damage, he may be held not liable for the offense. If however, he has obtained permission from farmer Giles, then he will have no liability at all. (c) Poachers of deer can be arrested without a warrant. Their cases will generally be tried by the Environmental protection Board. When a crime has been committed by killing a deer the case will be tried at the Magistrate Courts and can go to the Court of Appeals. For the offences mentioned in para (a), Darcus could be subjected to a summary conviction and be liable to pay a fine not exceeding level 4 on the standard scale and/or imprisonment for a period not exceeding three months. (7) (a) Mike has committed four offenses under the Act. (i) Under Section 1 of the Act, Mike is guilty of poaching and killing deer without a license (ii) Under Section 2 of the Act, he is also guilty of killing a deer in close season, since the close season for the roe buck has been designated as 1st Novemebr to 31st March and January is inclusive within this period. (iii) Under Section 3 of the Act, Mike is guilty of killing the deer at night (iv) Under Section 4, Mike is also guilty of using unauthorized possession and use of firearms, which do not conform to the requirements that would have lessened his liability. (b) P.C. Singh will be perfectly within his rights as specified in Section 12(a) to (c) of the Deer Act to stop and search Mike’s person and his car if he has reason to suspect that Mike may be guilty of an offense. Moreover, when P.S. Singh discovers the blood stained carcass of the deer in Mike’s car, he can also arrest him in accordance with Section 25 of the Police and Criminal Evidence Act of 1984, as spelt out in section 12 (2) (b) of the Act. (c) A Court convicting a person of an offense under the Deer Act can order forfeiture of any venison or deer that may be illegally in the offender’s possession. The Court can also seize the vehicle the offender was driving or the gun the offender used to commit his offense, apart from sentencing to imprisonment or a fine. (8) Danny may not be guilty of any offense under the Deer Act. For one thing, although he has killed the fallow deer, it is after the close season. Danny has also used a shotgun that would qualify under the exceptions included under Section 6(5) since his bullet weights 22.68 grams. Moreover, Danny is the owner/occupier of the land and therefore his rights will be protected. However, the most important factor that is in Danny’s favor is the fact that Danny can show good cause that the deer was destructive. The evidence is the turnip patch being trodden upon and destroyed and the turnips which is the crop his father grows on the land. If Danny had allowed the deer to escape when he knew perfectly well that it was responsible for the damage to his father’s land, he would have only left room for it to cause further damages to their crop and might not have been fortunate enough to come upon it another time to get rid of it before it caused further damage. Since the fallow deer is one of the species protected under the Deer Act, it is possible that Danny may be liable for a fine, however such a fine is not likely to be a substantial sum since the killing occurred in order to prevent further damage. (9) The Secretary of State’s new order will be quite legal since he/she is not required to consult the RSPCA, he is only required to act jointly with the Agriculture Minister. (10) Both Younis and Jamie would be deemed to have committed an offense under Section 10 (1) and (3) of the Act, since Section deals with the sale of unlicensed venison and section 10 (3) deals with the purchase of such unlicensed venison from an unlicensed dealer. The fact that Younis has killed the deer illegally is apparent from his reluctance to divulge the circumstances and explanation of how the carcass came to be in his possession. Similarly, Jamie offers to purchase the meat inspite of suspecting that it has been procured through poaching and criminal violations of the Deer Act. They will both be liable for summary conviction and a fine that is not less than 4 on the standard scale. (11) (a) Jamie’s offense under the Deer Act of 1991 lies in the use of a prohibited weapon, since the javelin would qualify under Section 4(2) (b) of the Act as construing an offense if used. However since she is a licensed person, she can sell the carcass, especially to another licensed person (b) Upon purchase, it is Jacques’ duty and obligation under Section 11(1) and (3) of the Act to record the details of how much venison he has purchased and the date upon which he did so. He is also required to note down Jamie’s name and address and must maintain the full particulars of his transcation. Such records must be kept for a period of at least 3 years from the date of purchase (c) Tariq has the authority under Section 10 (4) of the Act to require Jacques to produce the records of his purchase, since the time period of three years from the date of his purchase has not yet expired and Tariq is an authorized officer of the Westminster Council. (d) Jacques may be held liable for (a) refusing to divulge the details of his transaction with Jamie and lying about it and (b) failing to maintain written records of his transaction. Read More