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Good morning. My name is Graham Virgo and this is Janet O'Sullivan and we both teach
in the Law Faculty and actually give lectures in this very room. Now, you've heard a bit
about what it's like to study law at Cambridge in particular and what we want to do now is
to give you an idea of what the supervision system is actually like and also what it's
actually like to study law. Because when you study law you do a lot of reading and a lot
of thinking, but quite a lot of your time is spent looking at hypothetical problems
and trying to work out, when you consider those problems, what is the law, what are
the issues in the problem, how you apply the law to the problem and what results you get
and then, the really interesting part, you step back a bit and start thinking, well is
that right, am I happy with that, should we actually change the law?
So that's what we're going to try and do in this session. So hopefully you've all got
a piece of paper headed "Legal Problems" and there are five problems there. We will see
how this goes, we probably won't have time to look at them, but you can take this away
and in your own time talk about them, think about them. Quite often, if you find you have
a long car journey, this is a very good topic for discussion because law will take you over
I guarantee it and you'll be desperate to engage with these issues. That said, some
of you may be here thinking, I'm not really sure whether law is for me and actually I
think the session we're about to run may actually help you to work out whether law is the right
subject for you. Because if you like talking about these sorts of issues and engaging with
them, I think that's quite a good sign that you're going to enjoy studying law.
Now, for this session to work we rely on audience participation. We are not going to be picking
on anybody, but we do want you to participate and actually, everybody in the room can participate.
Parents, if you want to have a go as well, that is fine. Also realise that some people
here will have studied law already or will be studying law now and may have a bit of
legal knowledge. Most of you won't, and that's fine. This is not us testing what you know;
we expect no legal knowledge at all. But what we want you to start doing is to think like
lawyers and we'll give you an idea as we go through this as to exactly what that means.
So please feel free to have a go. There are no wrong answers. Well, that's not quite right.
If you disagree with either of us you are by definition wrong, but you might want to
come back and say, well, we disagree with you, that's fine. We are not testing legal
knowledge, we're testing thinking and getting you to think like lawyers. So we'll go straight
into the first question and we're going to swap between us and jump around a bit and
we'll see how the time goes.
The first question is a criminal question about the criminal law. Peter and Natasha
are boyfriend and girlfriend who are madly in love. Peter wants to show his devotion
to Natasha so he asks her to give him a love bite on his neck. I'm going to interrupt,
I think if I press this button... you're there, you can see it up on the screen. So Peter
wants to show his devotion to Natasha, so he asks her to give him a love bit on his
neck which she does. Unfortunately, she bites rather too hard, causing a big bruise which
is very painful. Peter is very happy with the mark. Should Natasha be convicted of a
criminal offence? Well, let me give you a little bit of legal
background first of all. We have crimes in this country concerning causing injury to
somebody else and we define injury in various ways, you can wound somebody or you can cause
grievous bodily harm or you can cause actual bodily harm and actual bodily harm is committed
where you injure somebody to cause them some physical discomfort, something which interferes
with their health or comfort that is more than transient or trifling. That's actually
the legal definition. But take it from me that a bruise which is big and which is painful
is actual bodily harm. So this could be the crime of assault occasioning actual bodily
harm. But in this country we have a principle of consent. So if the victim consents to things
happening to them then the person causing the harm, in principle, is not guilty of an
offence. Now, the consent may be expressly given or it may be implied. So for example
if all of you decide you are desperate to get out of this room and you go up the stairs
through the door, knocking into each other, there is deemed consent to that because that's
ordinary social interaction, that wouldn't constitute any crime. On the facts of this
case, it does look as though Peter has consented to this. He wanted this love bite and he's
pleased that he's got this mark of affection. So that suggests no crime has been committed.
But now the crux of this question. A few years ago there was a very famous case and to spare
my blushes I am not going to go through the facts of that case other than to say it was
a bunch of people interacting with another bunch of people and various injuries were
caused as a result. But in that case it was decided that if somebody causes actual bodily
harm to somebody else the fact that they consent is irrelevant, save if the conduct can be
justified on the grounds of public policy. In other words, if you cause actual bodily
harm to somebody, if they consent it's irrelevant, it is a crime unless you can justify the conduct.
Now, a good example of that is a doctor performing an operation on a patient. Now, that will
be, if it involves opening the patient up, that will involve at least actual bodily harm.
So, on the face of it, the victim can't consent, but surely we would say, we can justify that
for reasons of public policy. That's all the background to this. Over to you. In the light
of everything I've told you, do you think that Natasha is guilty of a criminal offence?
Anybody got any thoughts on that? Yes?
There's a precedent set for tattoos. You can get a tattoo with your girlfriend's name on
it and that's not a criminal offence and that's GBH, so it's an example of ABH with consent
where the consent's been given with reasonable rationale to suggest that it's not an offence.
Okay, so let's accept that a tattoo is... well, it could be ABH or GBH, depending on
how we characterise it. But let's say it's ABH. The question then is, can we justify
that by reference to public policy? Can we justify tattoos? Does anybody want to try
and justify having tattoos? Because if you can't, you've suddenly criminalised tattooing
in this country.
And ear piercing.
We'll come to ear piercing in a minute. Now, it's on my list. Does anybody want to try
and justify tattoos? Nobody wants to justify tattooing? So you are going to criminalise
all of tattooing? Yes.
There's an age of consent for tattoos.
There is, you're right, and in fact tattoos of a child under the age... I think here it
is 16; that is criminal. That is actually an interesting point as well that tattooing
and tattoo parlours are regulated, there is statutory regulation for them. So you might
want to distinguish between that sort of tattooing, regulated therefore fine and unregulated tattooing
if your best friend says, "Look, I borrowed this tattoo set, I'll tattoo you. I haven't
the faintest idea what I'm doing, let's give it a go." We may say that's different. Any
other thoughts about Natasha? Does anybody want to convict her or acquit her? Yes.
She could be convicted because although she did cause the injury, she did bite too hard,
so she actually had the intention of trying to cause a larger mark.
Right, okay, and that's a really good point, that if somebody consents to something and
then somebody does something far worse, they could legitimately say, "I didn't consent
to that," therefore that's actually quite an easy criminal offence to establish. Maybe
on these facts he didn't say precisely how hard to bite and he is happy with what happened
afterwards. That may suggest he's consenting throughout. Any other thoughts? Yes?
Well, how are you going to prosecute because he says he's very happy with the mark, so
he won't have gone to the police about it and he's unlikely to press charges against
his girl who's now being, so either way...
out of the window and just assume this has gone to the police. There was a very famous
case, but again I'm not going to go through the facts, involving a husband and wife.
Oh do, go on. I think so.
Involving a husband... this is being recorded.
I know, that's...
Involving a husband and wife who again as a sign of affection, the wife asked the husband
to brand his initials on her body. It adds something to this case to realise that this
couple were in their late sixties. But they were madly in love.
Explain what they used.
Oh, they used a butter knife that was put in a gas flame to warm it up. Also, I've
started, so... he couldn't... he wasn't very good at writing, so actually he put the branding
on his wife and he got his initials the wrong way round, so he had to do it all over again
later. Now, she never complained but she did go to her doctor for a check-up, the doctor
saw that and he complained on her behalf, arguably in breach of medical confidentiality,
but the complaint was made. It went to trial and initially the husband was convicted, because
this was ABH, actual bodily harm, and the court said, it couldn't be justified by public
policy. Let me just leave... are there any thoughts on that case? Do you think that case
was right? So a husband and wife engaging in that sort of behaviour, do you think we
should be convicting the husband for doing that?
Can I just ask, did she give evidence?
She actually did not give evidence, she refused to do so, but the husband was being very frank
about it and said yeah, this is what happened and the medical evidence was there and...
What was the sentence?
The sentence was a suspended sentence but it was... if he did anything else wrong he'd
have gone to prison. Do you think he should be convicted?
No.
Why?
Because she gave consent.
But can you justify this by public policy? Could you say it's right for the state to
say, do this sort of thing?
It's difficult because you know branding could be... you could brand someone very badly without
their consent.
Yeah.
So it's very difficult to ignore consent because if you ignore consent then you have such a
massive impact on whether actually the person wants it to happen and if they did, if they're
doing it to them, it's obviously a crime because you're damaging someone without their consent.
Okay. Hold onto that idea. You mentioned ear piercing. If somebody pierces your ear, is
that a criminal offence? Having a hole in your ear lobe is actual bodily harm, so therefore
it's a crime unless you can justify the conduct by public policy. Does anybody want to justify
ear piercing? Yeah.
I think it's freedom of expression and so like I have them because I like the way they
look and I like the way that...
Are you a victim of a crime though, if we discount your consent? Okay, so you're going
to say it's accepted, cosmetic.
Yeah.
Everything. It's fine, okay. What about love bites? Actual bodily harm, does anybody want
to justify love bites as a matter of public policy?
Isn't it... you might consider human rights and like... isn't it a right to
do it in their own home if that's what they want to do and also in the interest of public
interest wise, with either of the cases they're not a danger to society through the...
Right, absolutely right. And we've got to have regard to human rights here. But it's
a really good example of a clash between the rights of the individual and the rights of
the state. Because we have the European Convention of Human Rights which at least as things are
at the moment in this country, define human rights. The relevant right to freedom of expression
is qualified on the basis that the state can intervene and prohibit and criminalise conduct
if it's considered to be for the greater good to maintain society and standards of behaviour
etc. So actually the law on human rights recognises that it's not an absolute right of freedom
of expression, the state is allowed to qualify it. That's only really background. The question
then is, whether here you feel it should be qualified. Let's just think about the love
bite example, it's actual bodily harm. The law says it's a crime unless you can justify
it. Well, I find it very difficult to justify love bites. We've got the boyfriend and the
girlfriend, surely they should be doing much better things with their time, they should
be doing more cultural activities, going to the opera, not doing this sort of thing. So
surely we can't justify this. Are you all happy with that argument? Right, yes?
One of the things is why he's doing it is because he wants to show his devotion, so
he's doing it because it's something that he thinks she'll like and his loyalty for
doing it is because she wants... she almost wants it to happen and linking it to the 60
year old couple with the butter knife, you don't know if it was the woman who asked him
to do that tattoo.
And she actually did, yes.
So in that case it's not just giving consent, you almost led the...
It's actually encouraging it. Okay. Pulling this together, that case about the butter
knife, in the end the husband was acquitted and he was acquitted on the basis that this
conduct was perfectly justifiable.
It went to appeal?
It went to appeal. He was convicted first and it had to go to a higher court and they
said yes, that lower court got it wrong. And this conduct was justified on the basis that
this was a sign of affection. This is actually one of the most romantic cases in the criminal
law; they were in love with each other. That was a sufficient justification for the conduct.
Now, you can then apply that over to this case particularly and I think from that I
would argue this is not a criminal offence. That then forces you to say, is that right?
And actually should we be curtailing consensual activity? I mean it's very different if the
parties are not consenting, that's so much easier as a matter of principle. But where
they are consenting is it appropriate for the state to intervene? Yeah.
If they're consenting it doesn't say about her age, so it could be the fact that he could
be a lot older than her or vice versa.
Absolutely, that's a really good point. So in analysing consent we do have to think,
is this a real consent? Does she actually know or he here, does he know what he is consenting
to? I'm assuming they are sufficiently old, it's not an abusive relationship and therefore
it's a real consent. If it wasn't, again, legally, it would be very easy, that would
be a crime. Okay. So that at least gives you an idea of how we start thinking about some
of these issues. I'm now going to hand over and you're going to do a different one.
I'm going to do number three. How do I make it go on to number three? Right, so this is
a very different sort of problem. I'll just read it through quickly, but you've got it
up there. So we're told that Jenny dialled 999 in the middle of the night, screaming
down the phone that her ex-boyfriend was trying to get into the house and was shouting that
he was going to kill her. The operator told her to stay on the line and reassured her
that a police car would be with her within five minutes. Unfortunately, you always get
that word in the middle of problem questions of this kind; unfortunately the operator carelessly
forgot to give the incident priority emergency status, so it was logged as a routine call.
By the time a police car attended the house 45 minutes later, Jenny had been stabbed to
death.
Should Jenny's two children be able to recover compensation money, damages, from the police
authority? So this is a very different area of law from the one we've just been thinking
about. This is the law of tort, concerned with when... effectively, when people who
suffer harm can recover financial compensation from the wrongdoer or, quite commonly actually,
from the employer of the wrongdoer. And that's what we'll assume here, that any claim that's
brought won't be actually against the operator herself, will be against the police authority
that employed her.
So we're in the territory of the law of negligence and what I'm going to do is a bit like Professor
Virgo did, start by giving you the bare bones of what the elements are of that particular
tort and see whether your instinct first of all is that the family will be able to recover
compensation or won't be able to. So you really need four elements. You need to show that
this is the sort of situation where the defendant, that's the police authority, owed the victim
a duty of care and that's such a complicated concept I won't even try and start to define
it now. But it's got to be a duty sort of situation, a kind of situation that the law
of negligence attaches to. Assuming you've got a duty of care you've got to show that
the defendant breached that duty of care and that means acted negligently, acted unreasonably,
and that's judged to an objective standard. So it's whether they fell below the standard
of the reasonable whatever it is, police telephonist or driver or doctor or whatever. So you've
got a duty, you've got to have a duty that's been breached and then you've got to show
that the breach of that duty caused the damage that's being complained about and you've also
got to show that there's damage that wasn't in some nebulous way, too remote, too disconnected
from what's gone wrong.
So it's impossible to simplify and actually make any sense but let's just go with that
for now, that you need a duty of care that's been breached, that's caused damage and the
damage isn't too remote. A real rough show of hands. Whose instinct is that the victim's
family will be able to recover compensation? Okay. Whose instinct is that the victim's
family won't be able to recover compensation? How interesting. Because in fact this problem
is based on a real case that was decided by the Supreme Court earlier this year and the
majority of the Supreme Court denied the claim. The victim's family and the victim's estate
was unable to recover damages in negligence. If you put your hand up and said no, pat yourself
on the back for being in line with the majority of the judiciary. If you put your hands up
and said yes, pat yourselves on the back for being in line with what I think the law ought
to be. So you're all winners. But if you said no, can you articulate why, what did you think
was missing from the facts here? Yeah.
I think that... I think she could have been killed even if they did manage to make it
Oh, that's a really interesting point. Any idea which of the four elements that I mentioned,
that, which category does that point sit under? I'd be blown away if you got that,
if anybody got that right. But the point that's been made is, it's possible or indeed probable,
that even if the police telephonist had acted brilliantly, perfectly, not remotely carelessly
but had accorded this call priority status and the police car had whizzed round there
and got there in 30 seconds, it's still... she still might have died, it still might
have been too late. What's that, yeah.
There is a fundamental error in that there is a breach of... I first thought that they
have a duty of care.
Well, if I can just interrupt you there, that's the point that's actually going to be the
nub of the case, which is whether the police owe a duty of care in these circumstances.
But let's just... sorry.
There was a duty of care because they have to do that and if the call was prioritised,
was done, they might have saved her. It's an argument, we don't know that.
But if there's no duty then they can be as careless as they like and they still can't
be sued. So you've assumed the thing that actually the House, the Supreme Court, denied,
which is the existence of a duty of care. But let's get to that. Your point is actually
about causation, when you think about it, which is that if the same damage... what's
the damage here that's being complained about? Death, yeah exactly, about as serious as it
gets. If it can be shown that on the balance of probabilities, so more likely than not,
any negligence that there might have been made no difference because she would have
died anyway, then how can the... any negligence that did exist, have made any difference?
That would mean that there would be no causation. It's quite difficult for some people to accept
that the police... let's not worry about the other bits of the cause of action and just
concentrate on causation for a minute.
Probably your instinct is to be a little bit uncomfortable with any suggestion that the
police caused her death. And you might still be uncomfortable with that even if it can
be shown that the boyfriend who killed her went away and sharpened his knife and didn't
return until half an hour later. So that it can be shown... there's CCTV footage happily,
there isn't normally in the real world, but for our purposes it's helpful to assume that
everything can be proved, let's assume he came back and stabbed her half an hour later,
so that the negligence really did make the difference between her living and her dying.
Even if we accept that, you might still be a little bit uncomfortable with the idea that
the police caused her death, just as a matter of sort of the ordinary use of language. The
killer killed her, the killer caused her death. But as lawyers we have to be rather careful
with what we mean by concepts, one of which is notoriously difficult, is causation.
If it wouldn't have happened were it not for their negligence then in a way their negligence
did, as a matter of fact anyway, cause the death. That's not the same thing as saying,
therefore they are automatically responsible for the death or to blame for the death because
that's a value judgement about where responsibility ought to lie, which is a different and additional
sort of enquiry over and above the factual question of, would it have happened if it
wasn't for this negligence. So I think there's a great causal question at the heart of these
sorts of cases. To what extent are we comfortable making a third party, the police, legally
responsible for the criminal conduct of somebody else? It's quite a big decision to make. Yes?
Well, you'd have to make an extension because they're responsible for their negligence and
then the negligence is responsible for her death. But they aren't responsible for killing
her directly, so you'd have to say by extension of the negligence she died.
True, but the question we're asking... and that's absolutely right, but the question
we're asking is whether the family... let's say she was the breadwinner, she was a well
paid person and her children are now deprived not just of their mother's love but also of
the salary that she earns, they would have actually a cast iron claim in tort to sue
the killer. There's no doubt about it, he caused her death. Not just the tort of negligence
but other torts like trespass to the person, which is the sort of tort equivalent of the
crimes that we were discussing a minute ago. But of course he's not worth suing; he's languishing
in police custody with no indemnity insurance to cover him for massive compensation payouts.
Which is of course why in these sorts of cases it makes sense to try and sue a publicly funded
authority.
So that brings us to the bigger question, the real question here which is, is this the
sort of situation where we think the law of negligence has any role to play? And we must
remember that we're dealing with a publicly funded police authority and some of the reasoning
that's used to deny the possibility of a compensation claim here is the desire not to have the sort
of culture that imposes greater and greater burdens on publicly funded authorities. What
might it do? I'm not sure I believe this argument by the way but I'll give it to you
anyway, what might it do to the police if they could be sued if their investigations
go wrong or if the conduct of their criminal investigations isn't perfect? Might they adopt
the sort of defensive attitude that we see so much in modern life which is covering their
backs at every turn and not acting decisively? I'm not actually particularly convinced by
that argument, particularly on these facts, because this was just a simple... for want
of a better phrase, *** up. It wasn't a difficult decision about the allocation of scarce resources.
But nonetheless that worry is in the mixture. There's also a worry in the mixture about
the problem of omissions. Now, I don't know if any of you have ever come across this difficulty
before, but if I run over a child on the pavement with my motorcar because I'm driving negligently,
then there's no doubt at all that I'm liable to pay compensation to that child. But if
I see a child about to walk off a cliff and I do absolutely nothing and the child falls
off the cliff and dies, am I liable for the child's death?
Well, you're putting yourself in danger in order to save the child.
I wouldn't have done no, I could have shouted a warning. It's a good point and that's a
point that some jurisdictions make actually, which some jurisdictions, French law for example,
do recognise liability in a case like I've just mentioned. If the person could have acted
to protect somebody else without any danger to themselves, but chooses not to do so, the
law thinks they should be responsible. Yes.
There's no grounds to show that you owe a duty of care to the child.
Right, because you're not... if the person who decides not... who omits to shout the
warning, if that person is the child's parent, or the child's teacher, or the child's scout
master and so on and so on, people that are already under some responsibility to that
child, then it then becomes a bit like a driver who omits to break at a red traffic light.
Well, that's just bad driving in the same way as if they negligently put their foot
on the accelerator. It's bad parenting, its negligent teaching, it's negligent scout mastering.
But all we can say of the stranger is that they're a bad person if they don't shout a
warning and the argument is that the law isn't in the business of telling us we have to be
a good person. It tells us that once we've decided to act we have to act carefully. But
it doesn't tell us that we have to act in the first place and that's the sort of reasoning
that the Supreme Court used in the police case. It said, the police have done nothing;
they didn't make the situation any worse than they would have done if they'd simply not
taken the call in the first place. This is a pure omission. I'm not sure about that.
They have statutory duties and statutory powers to be the police force in this country. They
are not like a stranger; they are actually obliged by statute to respond to calls. It's
not, however, possible to say, because there's a statute that creates the police authority,
it's therefore the same thing as saying they're under a duty of care or negligence. Yes?
Isn't there a contract to that when you said will be there in five minutes, and then he
wasn't, so essentially he's made a verbal commitment.
J O'Sullivan: He may have made a verbal commitment. I wouldn't think it would be a contract for
lots of technical reasons to do with the law of contract. But a lot of people say that's
right, because, in fact you've reached a point that I was about to turn to, which is,
there's a case that says if the ambulance service take a call and say they'll turn up
and then don't, perhaps the sat nav went wrong and they went the wrong way and it took them
ages, and by that time the person's had another heart attack or asthma attack or whatever,
it's an authority that says, ah, well, there you see the ambulance authority have assumed
responsibility to the victim and that's enough to create a duty of care. Much like if you
present yourself in a casualty department, the doctor can't say, I decide not to treat
you. I'm going to omit and I'm allowed to do that. So the ambulance service has been
treated in one way, but the police were treated in a different way. But the Supreme Court
still said, but if the operator had said something like, I guarantee or you know, don't worry,
we'll be there, then that might have been enough. So I deliberately made those the facts,
which are slightly different from the facts of the actual case.
Let me give you one other thing to think about if I may, well there are two other things
for you to think about. We could do a whole lecture couldn't we; on each of these problems
and in fact you would get that if you were here. All this law on whether the police owed
a duty of care in these circumstances derives from... or in recent years anyway, derives
from a decision of the House of Lords in a case from the 1980s where the family of the
last victim of the Yorkshire Ripper sued the police. The Yorkshire Ripper was a notorious
serial killer, killing young women in Yorkshire in the 1980s and they didn't catch him for
years and eventually he killed his last victim and her family sued the police and said, you
were so careless and useless in the way you conducted your investigations, that our daughter
was killed. If you'd acted carefully, if you'd been a competent police force, you would have
caught him much sooner and our daughter would still be alive. Therefore you are liable to
pay compensation for her death. Can anyone immediately see an important difference between
those facts and the facts here? Yeah.
A serial killer who's killed before and has a history of...
True, a serial killer that has killed before. So you think that case should have... would
that be an argument for making it more appropriate for there to be liability on the police? Maybe.
Yes.
for the Ripper, it was just about the police's ability to catch a killer instead of them
being...
Yes, so I think that's a good point. The facts I've given you here in this problem have sort
of... by the way it's phrased they've ticked the second box haven't they which is, there's
obviously... if there's a duty then there's obviously a breach of it, we're told she carelessly
cocked up basically. We don't know that in the Yorkshire Ripper case. There are all sorts
of allegations of what they did wrong, but you know it's notoriously difficult to catch
a serial killer and this was before DNA evidence had really got going. There was a... I don't
know if you know, there was a hoax tape that was sent to the police where someone with
a Geordie accent claimed to be the Yorkshire Ripper so they diverted all their resources
to looking for him. So if the House of Lords had decided there was a duty of care the victim's
family would still have faced fairly formidable difficulties in showing that duty had been
breached, which I don't think apply on the facts here. But in fact the House of Lords
decided there was no duty in the first place, which means actually the police could be as
negligent as they like, there's no way of taking them to task. I mean there's no way
in the law of tort of taking them to task. But the big difference on the fact pattern,
if you take a telescope and turn it round and instead of looking at the detail look
at the... look from a long way away at the pattern of the facts, what we had in that
case was a situation where the police didn't know who the victim might be and didn't know
who the third party killer might be. So they were being expected� it was being suggested
that they owed a duty... well who to, all the women in the Yorkshire area? With respect
to someone who... they didn't know who he was? And there the House of Lords said, this
isn't... this is nothing like the sort of tort situation where... the classic tort situation
where A smashes into B's car and causes them injury, where there's something called proximity,
a very, very difficult concept to understand. But a closeness, a sort of reigned in factual
situation that makes it meaningful to think that the defendant owes a duty to the claimant.
So there was just a vast array of possible victims and a vast array of possible killers.
But these facts are really different. An identified victim contacted them and said... asked them
to do their job, to protect her from an identified assailant. So the proximity problem that dominated
the discussion in the Yorkshire Ripper case is absent here. Add to that the fact that
the policy arguments that were used in the Yorkshire Ripper case, like we don't want
the police creeping around being defensive and worrying about being sued, they're a publicly
funded body and so on, those arguments are deeply suspect. There's been no research done
into the question of whether the police actually, in other jurisdictions, where there is negligence
of liability, whether they actually act defensively. In most case we think that being under duties
of care and negligence makes people act better, protects people, because it raises standards.
So the arguments are not very convincing. The final point I'll just throw at you and
then I suppose we...
Well, then we'll have time for one more question.
Fantastic. The final thing that I'll throw at you is, how odd is this, right? That the
House... do you know what I'm living 20 years in the past, I can't get used to saying the
Supreme Court and our top court changed from being the House of Lords to the Supreme Court
probably about... well, five or ten years ago now, so I'm just losing it. But anyway.
The Supreme Court spent pages and pages and pages dismissing the idea that there was a
duty of care in tort. Vast, complex, legal arguments to deny a duty of care. It wouldn't
be in the public interest, it wouldn't be right for the police to be under tort obligations
to victims in this sort of case. It's an omission and a statutory scheme doesn't give rise to
a tortious remedy and there are policy arguments against it, pages and pages and pages. Then
you turn a page and you get to another subheading, human rights. Ah, ah, ah well, if you plead
your cases under the Human Rights Act, which the victim's family did as well, ah well yeah
there's a right to life and we think it's arguable, only arguable, this was just a sort
of a preliminary skirmish in the Supreme Court, it wasn't a decision about the outcome, there'd
never been a trial, it was just a preliminary skirmish to work out what the parameters of
the law were, but ah, if you put it like that, that there's a... the police have breached
your human right to life, sure yeah not a problem, not a problem that it's an omission,
not a problem that it's a publicly funded body. Yep, we'll allow the Human Rights Act
bit of the claim to proceed to a trial.
So there's something rather strange about this mismatch and really the last thing I
want to say is, what then happens in a case where the police *** up and the resulting
damage isn't death? So you can't engage the Human Rights Act with a human right to life.
There is a perfect example waiting to be decided. Do you remember when those elderly burglars
broke into the diamond safe underneath wherever it was... where was it? Hatton Garden, that's
the phrase I'm forgetting. It was in the news a few days after the heist that the burglar
alarm had gone off to notify the police that there was burglary and for some reason as
yet unexplored the police ignored it. Well, that, my friends, is a tort question waiting
to happen, because it doesn't have the sort of let off for the family which is, well look
don't worry that the law of negligence doesn't apply here because you can pursue your Human
Rights Act claim. And it would be awful, wouldn't it, if the victims of burglary were told,
oh yes well you are owed a duty of care because the burglar alarm meant that the police assumed
responsibility or something? That would be very unpalatable if they had a different outcome.
But I just wanted to... I hope that that's introduced you a bit to some of the niceties
of the law of negligence.
We're going to move on to question four, very quickly, just to introduce you to another
dimension and there are two questions here but the first of them follows on from what
you've just heard. Ian and Hayley break into a bank to steal some money from a safe. Ian
blows up the safe; shrapnel from the safe badly injures Hayley. Assuming that Ian had
been acting negligently should Hayley be able to recover compensation from him? So we'll
assume everything we've just heard about duty of care and causation and all of that, so
Hayley could therefore sue Ian. But do you think she should be able to, bearing in mind
the context in which this happened? Any thoughts on that? Yeah.
No, she's clearly committing a crime, so she'll happy to say she was committing a crime, to
say that she's getting compensation from the crime committed so it would be completely
pointless because she'd get convicted for breaking into a bank.
Fine, so why don't we convict her for breaking into a bank, but also allow her to sue him
for money for her injuries? He's been negligent. He should have blown up the safe much more
safely.
Doesn't this bring up the whole discussion of whether criminals should have rights to...
Absolutely. Well, it does. So what do you think?
Well, I don't want to reveal my ideological stance on this per se, but I think they should
have certain rights but I don't think in this case she should have done.
Okay. Yes, so criminals should have certain rights but not to get compensation for injuries
caused whilst they're committing a crime. Does anybody want to disagree with that? A
few people do. Okay. Why?
Well, if you look at the... they must have fantastic barristers because they all seem
to have an issue with suing the bank if she...
Okay.
She was on what?
So, fine, but as a matter of principle should the fact that she is a criminal stop her from
getting any compensation? I think most people are saying she shouldn't get any compensation.
Yes?
I'm not necessarily saying this is right, I think the fact that she broke in is separate
from the fact that she got injured, because she could be going along with him, maybe just
going to do something about a hobby and if you do it wrong and hurt her. She'd have to
get compensation. So just because she agreed to go and do it doesn't mean that she agreed
to get hurt.
Yes, well she didn't agree to it, presumably, but... so the question is, should we allow
the law of the country to be used to enable a career criminal to get compensation? Now,
briefly, what about the second one, odd facts but this is based on a real case. Jennifer
tells Nigel that if he pays her £10,000 she will be able to obtain a kinghood for
him. Nigel has always wanted to be a knight so he pays her the money. Paying money for
an honour like a knighthood is a criminal offence. Jennifer fails to obtain the knighthood
for Peter. Can he get his money back? Now again this is illegal conduct. Do you think
he can get his money back? Any thoughts on that? Is that exactly like the first one?
Or is this crucially different?
In terms of contracts she valued a knighthood at £10,000 and didn't deliver it so in that
sense he's owed £10,000 because of the valuation of the knighthood.
Oh so he ought to that money back?
Well, he'll obviously take the argument that because he's committed an offence, but then
there has to be some aspect because Jennifer's received that money, but she hasn't fulfilled
the contract and it's also a criminal offence, so yeah.
Okay. Now, I know loads of you have got your hands up. We're going to have to stop. Let
me just tell you what the law is on this one. The answer to the first one, absolutely, she
cannot recover because she is tainted by being a criminal.
So the court won't touch it, yeah.
Yes, exactly. But the second one, the answer is the same; the court will not allow him
to recover that money. He's done something illegal and he is tainted by the illegality.
Now, we could say this one's different because the result of that is she is also a criminal
and she is allowed to retain the money and he is the one that suffers. That issue, not
those precise facts involving the sale of honours, but that issue is going to the Supreme
Court later this year and the Supreme Court, I understand, highly unusually, nine Judges
are going to sit to resolve that question and work out whether, if you've participated
in illegality and you've given somebody something and not got what you wanted, can you get your
money back. I'm not going to say what I think the answer is, I'm actually one of the advisers
on one side. But watch the newspapers because that could be a really important case.
Are you acting for Nigel or Jennifer?
I'm not saying. I think we're going to win, but let me say one final thing and then we'll
stop. We have tried in the very short time available to us, to give you an idea as to
what it's like to study law. And I am going to say this finally, some of you may be thinking
what about law at university, should you be studying law at university? I hope what we've
said will give you some answer to that. We've actually helped write a book called, What
About Law?
Shameless.
I'm being shameless. But it's aimed at people like you, in your position, trying to work
out whether you want to study law but also if you're studying law at Cambridge, how we
teach it and also I hope you realise how enthusiastic we are about it and about the study of law.
Thank you very much for your attention and enjoy the rest of the open day. Thank you.
Thank you.