Category: Civil Law

Foster carer struck off after Muslim girl converts to Christianity

On the 9 February the Christian Legal Centre published this story.  It tells the story of a foster carer in the North of England who was struck off because a Muslim girl in her care converted to Christianity.  The council claim that the girls carer failed in her duty as a foster carer by allowing the 16 year old girl to be baptised.

The carer said that she put no pressure on the girl to convert to Christianity and even tried to find ways of discouraging the girls initial interest.  The Qur’an strongly condemns the repudiation of Islam and the act is considered taboo in many Muslim communities.

The woman has said that the council were fully aware that the girl was attending church, but only objected when they learned of the fact that the girl had been baptised.  The Christian Legal Centre reports that:  “social services officials then advised the girl to reconsider her decision and urged her to stop attending Christian meetings, ruling last April that the girl should stay away from church for six months.”.

The Woman, who cannot be named for legal reasons, was struck of their register in November.  She had been responsible for caring for over 80 children in the last ten years.  The Woman, with the help of a solicitor, is seeking judicial review of the council’s decision.

The girl, now 17, is back at home with her parents and is giving her full support to her former carer.

This story is really quite ridiculous.  The girl made a choice of her own to convert from Islam to Christianity.  She was not forced to convert and attended a Christian Church off her own back.  Her carer actively tried to discourage her interest and offered to help her find places where she could practice Islam.  To me there is not much more that a foster carer can do to stop a 16 year old from making up their own mind.

I wish the carer every success with her Judicial review and hope that the court expose the council for being the idiots that they are.

MOD to be sued for Nimrod disaster

The Ministry of Defence (MOD) is to be sued by the families of two of the fourteen who perished when a nimrod plane exploded in the skies of Afghanistan in September 2008.

The MOD are accused of negligence, failing to minimise risk and a breach of the right to life.  This will be the first time that the MOD has faced a challenge under the European Convention on Human Rights and Fundamental Freedoms.

In May, a coroner ruled the Nimrod fleet had never been airworthy. The MoD said it had already planned to compensate families of the servicemen.  The coroner also said the fleet, based at RAF Kinloss in Moray, should be grounded.

If the action is successful it could pave the way for further such actions.

Santa ignores right to refund

Santa Claus’s failure to alert children to their rights to full refunds within seven working days under the Distance Selling Regulations is in breach of those rules, an expert has warned.

Gifts specialist Claus has already failed to respond to accusations that his data protection policies are putting children’s personal data at risk.

“Under the Distance Selling Regulations anyone taking orders in the post as Santa does has certain obligations,” said Struan Robertson, e-commerce specialist at Pinsent Masons.

“Children have a right to reject the gifts they requested and receive a full refund within seven working days. If he does not provide lots of information about the child’s purchase when making his delivery then that period can be extended by up to three months,” said Robertson.

“All they have to do is cancel their contract, and I imagine a follow-up letter up the chimney should do it. He must also tell children that they have this right, which he plainly doesn’t,” he said.

Under the Distance Selling Regulations, Claus is obliged to provide children with details of the price of the goods delivered, something which is to most people not in the spirit of Christmas. A source close to the Grotto said that Claus was simply unprepared to bend to that rule.

“Santa says he takes the hit on that one every year, giving canny kids the chance to get refunds because he’s failed in the information he supplies,” said the source. “But what good is a Santa with price tags? It’s just not Christmas.”

For the laws to apply there must be a contract in place, but Robertson said that this was almost always the case. “The letter up the chimney is clearly an offer, the delivery of the goods is acceptance. Under English law there also must be a form of consideration, which the glass of brandy and carrot clearly qualify as,” he said. “It does mean, of course, that the less generous household which leaves nothing for Santa or the reindeer is left without adequate consumer protection, which seems oddly just.”

OUT-LAW can also reveal that Claus is likely to be in breach of one company’s trade mark with his gift distribution enterprise. ‘Santa Claus of Greenland’ has a trade mark over that term in relation to games, playthings, sports goods, decorations for Christmas trees and the regulation and control of electricity, amongst other things.

“This is a clear case of infringement,” said David Woods, a litigation specialist at Pinsent Masons. “True, Santa is from Lapland not Greenland, but I think that you could make the case that the level of general ignorance of geography is such that confusion would be created by Santa’s trading under the name Santa Claus.”

Review ordered for Civil Appeals

The Constitutional Reform Act 2005 establishes a UK Supreme Court to remove the judicial functions from the House of Lords. This court is due to come into operation sometime in 2009.

This particular reform has implication for Scots Law as currently the highest court of appeal for civil cases is the House of Lords and the Judicial Committee of the Privy Council hears devolution minutes raised under the Scotland Act 1998.

The Scottish Government has ordered a review of how this will affect Scots Law. The review is to be conducted by Professor Neil Walker of Edinburgh University. Professor Walker will report to the Justice Secretary, Kenny McAskill MSP, by November 2009 (probably after the court has come into operation).

Mr McAskill said,

The establishment of a UK Supreme Court is an important constitutional reform.

It is entirely appropriate that the implications of these changes for the distinctive Scottish legal system are considered in full, in Scotland, and at this time.

Changes to strengthen judicial independence have also been introduced recently by the Scottish Parliament, and it is important to ensure that such significant constitutional changes are compatible with each other and do not compromise the Scottish legal system’s distinctiveness or its full fitness for purpose.

Indeed this is an important constitutional reformfor Scots Law, but does it really require an expensive, year long investigation and report by a top professor from Edinburgh University? Just now I cannot see how much value the report will have, but it will certainly make for interesting reading when it is finally published.

Revealed: UK’s first official sharia courts

The Times published this article today on their website and it has caused a massive pro-BNP discussion on a forum which I am a member of.  It is really quite infuriating as everyone seems to have lost all reason and are paying no attention whatsoever to those of us on the forum (it’s a student on) who happen to undertake the study of Law when we explain the situation of it.  So, I’ve decided that I am going to explain it here (just in case anyone else has gotten the wring idea).

Sharia Law conjures up many nasty images, and quite rightly so.  The criminal aspects to Sharia law are abhorrent with thieves having their limbs amputated, gay people being executed and so on.  However, this is not only what Sharia Law is about.

Sharia Law is a description of the set of principles Muslims are meant to live by, including aspects worship, penal law, and personal law. Sharia is everywhere a group of Muslims are, and it’s practised in Britain today too in the form of Muslim ‘councils’. But these councils don’t obviously sentence any Muslim, they can’t practice penal law, in fact these councils primarily use are to handle divorces under Islamic law.

Nothing has really changed.  The tribunals that this article is referring to are still not allowed to practice penal (or criminal) law.  They are using a widely used method of Alternative Dispute Resolution (ADR) called arbitration.  Companies and private individuals in the UK have been resolving disputes through Arbitration and other methods of ADR for quite some time.  There are many advantages to using Arbitration such as it being cheaper and quicker than going to litigation through the civil courts.

What has changed is that the awards from these tribunals can now be enforced by the civil courts, like awards from arbitration have always been.

The main difference is that these Sharia tribunals are slightly more organised than the arbitration we are used to.  This doesn’t mean that it is fundamentally different, it just means that the Muslim community have been motivated to organise their ADR in this way.

We are not, as a result of this, going to see Muslim Police running around Britain, arresting Muslim people for crimes and then dispensing the penal justice Sharia Law has come to be associated with.  This is outside of the jurisdiction of ADR.

dual-jurisdictional cases

In a recent post over on Scots Law News, Professor Hector MacQueen posed an interesting question.  He said:

Is it beyond the wit of our legal systems to devise some joint procedure involving both Scots and English judges to produce rulings that will be binding in both systems?  Could this be a role for the new UK Supreme Court the launch of which is now not much more than a year away?  As things stand, the Scottish legal system is not even being treated as a junior partner in the UK legal structure by either the OFT or the banks, and Scottish litigants are being denied the opportunity to have their complaints considered with the compliance of several of the Scottish judges.  Someone in a position to do so ought to be doing something about it.

He does make a good point.  The Office of Fair Trading and the banks have had total contempt for Scottish customers.  This case s before a court which has no direct impact upon the operation of Scots Law and as such no Scottish court is obliged to follow the decision of the case.

In cases of such importance, where there is to be a UK wide impact, there should be a mixed bench sitting.  Professor MacQueen has suggested that this could, in the future, be a function of the UK Supreme Court established by the Constitutional Reform Act 2005 and which is to come into operation in the very near future.

If anyone has any opinions I would really like to read them, so please do comment or send me an E-mail.

Rich or poor, who favours?

I’ve been thinking recently about the fairness of our legal system. Like most common law/hybrid countries we have an adversarial system (as opposed to inquisitorial system). An adversarial system pits one side against another in order to convince an impartial person or group of people (i.e. a judge or jury) that their version of the truth is in fact the truth.

It’s often said that there is one rule for the rich/powerful/famous and another for the rest and this applies equally to the law. The legal system is of course flawed (like any man made system), but is this such a huge flaw that destroys any authority that the system has or is it just a minor inconvenience that means that the occasional miscarriage of justice happens?

When in court, regardless of whether the case is a criminal or civil one, there are two sides (we’ll assume two for simplicity sake) and each side is putting its own story to the court. In Scotland juries very seldom sit in civil cases; I want to begin by looking at the impressionability of juries.

Juries, as lay people, are very impressionable. They will seldom have any great understanding of the law which they will, at the conclusion of a case, have to apply to a set of facts to determine an accused person’s guilt or innocence. Yes, the judge will give them the basics of the law including the standard of proof, who needs to prove what and the basic component parts of the crime that the accused is charged with. However, it is then up to the jury to decide whether they are guilty of the crime or not. Ideally, this should just be based entirely on the evidence they have heard in court. However, it is not that simple. Advocates play a part in this. So, what part do advocates play in helping the jury come to its conclusion?

In everyday life we make decisions about people we meet and see. We often make these decisions based on subjective criteria. We can be swayed by a very articulate person who may or may not be as they present (a good conman is usually articulate). The way a person talks, their posture and body language all play a vital role in how we perceive them. Is this transferred into the justice system? More than likely.

If we are presented with two advocates in a court room and one is better presented and more articulate than the other, then, it is very likely that nature will take its course and we draw a conclusion upon this person. It very seldom comes down to actually how truthful a person is, more how truthful do they appear.

The same can be applied to the accused, although, it can be argued that by simply being in the dock the jury can draw a lot of inferences about the person (despite the presumption, in law, that you are innocent). If the accused is well dressed, has a good background and then, when they give evidence, is very well spoken, polite and gives a good impression it could help their case a lot.

Now, the best advocates are often the ones who are articulate, well dressed and have the better body language. An upper class, well educated accused will often, also, be well dressed, articulate and have a batter body language compared to an unemployed, poorly educated working class accused. The better advocates cost far more than the mediocre and poor advocates, and, the upper-class, well educated accused will often be in a better financial position than the unemployed, poorly educated working class accused. Thus, the former can afford the better advocate and the latter often has to make do with a mediocre or poor advocate fighting their corner in the court room.

Now, if people generally are influenced and persuaded by well dressed, articulate people with the ‘correct’ body language and juries are made up of people who are just as susceptible as anyone else, who is likely to succeed in convincing a jury that their story is the true one? The upper-class, well educated accused who can afford the articulate, well dressed and advocate.

The same can apply to the civil law. However, the access to civil justice is limited by wealth as well. It can be costly brining a civil action against a person or company. Thus, if someone at the poorer end of the social scale is ‘ripped off’ by a company or someone at the top end of the social scale, it is very unlikely that this person could afford to bring a case against this person or company and therefore do without compensation that they very well may be entitled to.

Looking at it from the other side, if a wealthy person has cause to sue someone and the defender happens to be at the lower end of the social spectrum then, the scenario discussed in detail above about being able to afford the best advocates applies again and as such, this can have a negative impact on the case of the defender.

So, it’s not the case that there are actually two separate physical laws. However, the saying is true in that the representation a person can afford in court plays a fairly big part in the outcome of a case and the wealthier a person is the better representation they can afford to get.

Scottish Government to legislate on Asbestos

The BBC News website reports that the Scottish Government intends to pass legislation reversing a House of Lords decision on asbestos (for Scots Law only).

The decision in Johnston v NEI International Combustion Ltd [2007] UKHL 39 in October 2007 meant that sufferes of a lung condition called plural plaques (which is a scarring on the lungs caused by asbetos exposure) could not use this as the basis for a claim for damages in delict against their employer. The House of Lords ruled that it was technically not a disease as it is asymptomatic (other than physical scarring of the lungs).

The Minister for community safety, Fergus Ewing MSP, said:

Industries such as ship building and construction contributed to our nation’s wealth in the past.Sadly however these industries have also given many Scots a legacy which still impacts on their lives today through exposure to asbestos.

It is therefore right and proper that we should not turn our back on these people.

The Scottish Labour Party are backing the bill. At the time of the House of Lords ruling the SNP, Labour and the Liberal Democrats united to condemn the ruling.

There are no plans to introduce similar legislation for England and Wales. The bill that has been introduced by the Government is the Damages (Asbestos-related Conditions) (Scotland) Bill.