Legislation and Treaties That Affect All Member States of the European Union - Essay Example

?Task One Question There are three main sources of law in the UK. These are European law (legislation and treaties that affect all member s ofthe European Union), legislation (incorporating all the laws passed by Parliament) and case law (which has been developed through setting precedent by a court) (Clarkson et al, 2008). There are also customs, treaties, equity, delegated legislation and statutory interpretation to consider. Question 2 There can often be some ambiguity or room for interpretation for cases that involve a statue. This means that judges may have to use this skill when interpreting how to apply legislation (Clarkson et al, 2008). There are three main approaches to statutory interpretation, also known as canons. The first is the textual canon which gives rules for interpreting legislation as written. For example, one of the textual canons suggests that anything not mentioned on a list given in a statute is not included in the law. The second is the substantive category, which includes canons that promote the judge to favour specific results or judgements. For example, this includes the Charming Betsy canon, stating that decisions made should not conflict with international law, based upon Murray v. The Charming Betsy (Steele, 2007). Finally, there are a group of deference canons, which allow the court to defer to another authority when using interpretation (Steele, 2007), such as the UK Supreme Court. Question 3 Prior to the Human Rights Act 1998, European Convention was not a source of rights (Steele, 2007), and was not allowed to be used for statutory interpretation in many cases (Steele, 2007). The Human Rights Act 1998 has now made it obligatory for courts to interpret the UK legislation in a way that fits in with European Convention rights (as in the substantive category of canons). This effect can be seen in cases such as Venables and Thompson v. News Group Newspapers [2001] 1 All ER 908 (Clarkson et al, 2008). Question 4 In stare decisis, the court is required to abide by the precedent set by a previous legal case. For example, the case of In R v Cotswold Geotechnical (Holdings) Ltd - [2011] All ER (D) was the first to be brought under the Corporate Manslaughter and Corporate Homicide Act 2007, and therefore the actions of the judge in this case set a precedent for the following cases (Clarkson et al, 2008). This is also applicable in areas where case law is the source of law because there are no legislative pieces that adequately allow the judge to come to a decision (Gruner, 2004). The strength of binding judicial precedent is that it allows decisions to be made based on previous cases without excessive need for interpretation. However, it does take the focus away from the facts of the case in hand which may cause a wrong decision to be made. Task Two Question 1 The exception to the general rule that a corporation is criminally liable occurs in cases where either the crime or the punishment cannot be committed by or served by a company. For example, in the case of R v ICR Haulage Co Ltd [1944] KB 551 (Gruner, 2004), the company was convicted of a common law conspiracy to defraud. However, it was decided that the company as an entity cannot ‘conspire’ as it does not possess mens rea (Gruner, 2004). Additionally, as the punishment for murder is life imprisonment, a company cannot be convicted as it would not be applicable to an organization. Question 2 Using the principle of identification is difficult in some cases when dealing with business law. For example, a company cannot be convicted of manslaughter without some proof that a directing or leading mind behind the company is the reason for this gross negligence, then the prosecution will fail. The main issue with this is that the directing mind has proven to be extremely difficult to identify in many companies (Laufer, 2008), and only 7 of the 34 work-related manslaughter cases brought since 1997 have succeeded (Select Committee on Home Affairs and Work and Pensions First Report, 2004). To illustrate this, in the case of Tesco Supermarkets Ltd v Nattrass [1972] AC 153, it was said that “The person who acts is not speaking or acting for the company. He is acting as the company and his mind which the company.” Question 3 Holding a corporation or business criminally liable is one way of regulating such organizations, and therefore works as part of this capacity. It is also desirable and necessary because in many cases, an individual cannot be held criminally liable for the actions of the company and therefore would not make sense to attribute criminal behavior to an individual (Pieth & Ivory, 2011). Question 4 Worcester Ski and Snow Ltd is criminally liable for the death of Suzie as it was caused by negligence of the business under the Corporate Manslaughter and Corporate Homicide Act 2007 (Steele, 2007). There are several points in the example which show gross negligence by various parties, meaning that the aggregation doctrine would find the company criminally liable rather than one controlling mind (Laufer, 2008). However, under the Corporate Manslaughter and Corporate Homicide Act 2007, the company would be liable due to the management failure model (Laufer, 2008), as the conduct of the organization is below that which could be reasonably expected of a company in such a position. For example, the Hatfield Rail Disaster case, the maintenance company Balfour Beatty was fined ?10m for breach of health and safety regulations (Marsh & Soulsby, 2002). In R v Balfour Beatty & Others [2005] (Central Criminal Court), the company was held criminally liable for the death of 4 individuals, and therefore Worcester Ski and Snow can expect the same to be true of them, as both involved a breach of health and safety. In R v Cotswold Geotechnical (Holdings) Ltd - [2011] All ER (D), the company was fined for failing to ensure the safety of one of the geologists that worked for them. Similarly, Worcester Ski and Snow Ltd failed to ensure the safety of those that attended the centre by not enforcing the use of helmets and not carrying out proper maintenance (Marsh & Soulsby, 2002). Word Count: 995 References Clarkson, K.W., Miller, R.L., Jentz, G.A., Cross, F.B., 2008. Business Law: Text and Cases. Cengage Learning. Great Britain. 2004. Select Committee on Home Affairs and Work and Pensions First Report. Parliament. Gruner, R.S., 2004. Corporate Criminal Liability And Prevention. Law Journal Press. Laufer, W.S., 2008. Corporate Bodies and Guilty Minds: The Failure of Corporate Criminal Liability. University of Chicago Press. Marsh, S.B., Soulsby, J.J., 2002. Business Law. Nelson Thornes. Pieth, M., Ivory, R., 2011. Corporate Criminal Liability: Emergence, Convergence, and Risk. Springer. Steele, J., 2007. Tort Law: Text, Cases, & Materials. Oxford University Press. Read More