English Legal Systems and Skills - Essay Example

? English Legal Systems and Skills of English Legal Systems and Skills Material facts of the case and initial grounds of appeal The case was an allegation that the claimant had sexually assaulted a fifteen year old school boy who was undergoing a short period of work experience at the school where the claimant had been newly employed as music assistance. It was alleged that the claimant had inappropriate contact with the boy and further that inappropriate text from the claimant to the boy inviting the boy to meet him were found in the boy’s phone. The school consequently expelled the claimant from working in the school. The initial grounds of appeal by the appellant was that he was denied his right to legal representation1 by the school board which amounted to gross violation of his rights under the European Convention on human Rights that among other rights provide for a right to a legal representation2. Legal issues upon which G’s case was heard at first instance The legal issue to be proved at first instance was whether there was any form of sexual contact between the claimant and the boy. They had to establish whether there was any form of improper contact that would attract disciplinary action against the claimant. On founding of a disciplinary action, a report would be forwarded to the Secretary of State to consider any future employment of the claimant especially in any employment position that would put him in any kind of contact with school going children. The panel should consider whether the actions constitute an abuse of trust of his implicit position in the school and consequently constituting gross misconduct. Legal issues identified in the appeal in the Supreme Court One of the legal issues that were identified by the Supreme Court was whether the claimant’s rights had been violated at the hearing in the first instance. It has to consider whether the denial of the claimant’s legal representation amounted to a violation of his rights. The claimant had been denied representation by his counsel in the hearings at the tribunal. In fact the tribunal went ahead to make a decision having denied her this right. In any case involving the determination of a person’s civil rights as well as obligations of any criminal charge against him, he is entitled to a public and fair hearing that should be conducted within a reasonable time by an impartial and independent tribunal that has been established by law. Another principle issue for determination is the question on determining the kind of connection that is required to exist between the proceedings in A that do not determine civil rights and obligation and proceedings B which determined civil rights and obligation. The court has to determine whether the connection is strong enough to determine the proceeding’s outcome. Another issue for determination was whether the proceeding by ISA which went ahead to include his name in the children barred list would violate his rights under article 6 (1). Another issue for the Supreme Court to determine was what statutory regulation to apply. Regulation 4 of 2003 regulations could not apply in a case where the secretary had not invited representations by 20th January 2009. The Ratio ‘decidendi’ in the case An appeal can be made to the Supreme Court only on the grounds that the ISA has erred on a point of law or erred in a finding of a fact that it has made and the decision was based on that finding of fact. The decision on whether it was in order for an individual to be included in a barred list is not a question of law or fact as per section 4(3). The court decided this case based on the decision in Austrian case3 that held that it must be shown that the dispute relates to civil rights and obligations. Relevance of Article 6 (1) of the European Convention to this case This Article safeguards a person’s right to a fair trial. The article in criminal cases as well as in civil cases safeguards the right to a hearing that should be conducted in public as well as by an independent and impartial tribunal. It further holds that such trial should be conducted within a reasonable time as well as the presumption of innocence where one is presumed innocent until they are proved guilty4. Finally the Article provides rights for those charged with offences to be accorded with enough time to prepare for their defense, be allowed to access legal representation be allowed to examine witness and if they don’t understand the language of the court they be provided with an interpreter. This article is relevant in this case because one of the issues as well as one of the grounds for appeal was the allegation by the claimant that their rights had been violated. The claimant alleges that he was denied the right to be represented by an advocate in the proceedings in the tribunal. The significance of the case of Ringeisin v Australia in this case The issue in this case involved refusal by the Austrian District and regional property to effect approval of some plots of land. The person who was seeking the approval was challenging the refusal alleging that the refusal was biased and violated his rights under Article 6 of the European Convention on Human Rights. Since the approval was refused any sale purportedly effected without the approval was null and void and of no effect whatsoever. The court held in this case that when the applicant purchased the property, there was a right to have the contract approved by the council. The court could proceed on this basis to decide if the proceedings in the present case complied with what was laid down in Article Six of the convention. It is therefore evident that the case is relevant in this case because it provides the guideline for courts to consider in deciding whether a person’s rights have been violated as provided for under Article six of the European Convention on Human Rights. The case in point involves a determination of the issue as to whether the claimant rights as provided by the convention have been violated. Dissenting judgment A dissenting opinion is an opinion that does not agree with the majority due to a number of reasons. This could be as a result of differing interpretation of the case law, using different principles in a particular situation or also applying the existing facts in a particular situation differently. A dissenting opinion usually is not a binding precedent and doesn’t form case law5. However, dissents can be used to form persuasive authorities especially in contending that a court’s ruling needs to be overturned. A persuasive authority is one that can be used to influence the court in its decision but that which the court is not bound to follow. In other instances a dissent that occurred in an earlier case can be applied to cause a change law that is later used by a majority in writing a later decision based on the dissent6. There is a dissenting judgment in the instant case. It is dissenting in the sense that while majority of the judges allow the appeal one judge doesn’t allow it and contends that the appeal should be dismissed. The dissenting opinion is by Lord Brown. He doesn’t agree with other judges reasons for allowing the appeal. The majority decision allowing the appeal is by the four other judges. In his dissenting opinion, he disagrees with the majority holding that all requirements of by Article six of the convention should be present in all hearings. He asserts an impartial tribunal requirement can be considered at a later stage of the hearing by the tribunal. In this case it is not in order to consider the question as to whether the court considered Article six. Effect of the European Court Judgment on the UK Supreme Court The Supreme Court is the highest decision making court in the United Kingdom. The United Kingdom has discretion on whether or not to apply the decisions made by the European Court in determining cases before it7. But whenever the Supreme Court is applying the convention, it is bound to apply the European court jurisprudence. The European Union convention has in very many cases influenced the decisions made by the UK Supreme Court. The effect of the European court judgments can therefore be binding or not binding to the Supreme Court. It depends on the judge before which a particular case is being heard. In case where a European Court has made a decisions concerning a particular case, such a decision can in instances where it is not binding be used as a persuasive authority before the Supreme Court8. However, the decision on whether or not to follow European Courts decisions depends on the circumstances of a particular case9. If it is a matter alleging the violation of European Union law, the court must have regard to the law of the European Union that is applicable in particular circumstances10. The court in interpreting the domestic law it is not bound at all to follow European Court decision11. The Supreme Court should refer to the European Court of Justice (ECJ) that is based in Luxembourg all questions pertaining to European Union law12. Whenever the Court is giving effect to all the rights in the European Convention on Human Rights, it should take into consideration all decisions made by the European Court of Human Rights in Strasbourg13. No court is allowed to dilute or alter the decisions that have been delivered by the European Court14. Any person whose rights have been violated by any court can bring a claim against the violation to the European Court on Human Rights15. Bibliography 1. Kurkan v Milton Keynes Hospital NHS Trust (2009) 2. Article 6(1) of the European Convention on Human Right 3. Ringesein v Austria no. 1 1971 ECHR 455 4. R (Wright) v Secretary of State for Health [2009] 1 AC 739 5. Journal of Supreme Court History. Volume 19, Issue 1, pages 33–44, December 1994 6. Deumeland v Germany (1986) 8 EHRR 448 7. Sueur, P. A. (2004). Building the UK's new Supreme Court: National and comparative perspectives. Oxford University Press 8. “Justice of the UK Supreme Court." London, United Kingdom 9. Treaty on the Functioning of the European Union (article 267) 10. Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator [2004] UKHL 26 11. The Supreme Court of the United Kingdom: History, Art, Architecture Chris Miele ed. (Merrell) 12. Official Journal of the European Union 13. Human Right Act 1988 14. Administration of Justice Act 1997 15. Constitutional Reform Act 2005 Read More