Appeal Court Judges Research Articles

The Sacrificial Communications of the Law During and after Apartheid

This article explores how law communicates socio-economic injustice under fundamentally different legal orders. It consists of a comparison of two appeal court judgment which are more than thirty years apart: Southern Insurance Association v Bailey (1984) and Komape v Minister of Basic Education (2020). Relying on the work of Johan van der Walt, the argument in relation to the Bailey case is that the judgment is characterised by a structural silence in relation to justice which, in turn, reflects a logic of unacknowledged sacrifice. This is a sacrifice of Aristotelian corrective justice at the altar of the exigencies of an apartheid political economy grounded in the exploitation of Black labour. The article then proceeds to an exposition of the recent judgment of the Supreme Court of Appeal in the Komape case. It is argued that, for several reasons, the Komape decision can be understood as the rudiments of a precarious resistance of justice to the socioeconomics of the new legal order. The judgment is explicitly characterised by an acknowledgement of sacrifice. The article concludes with a brief reflection, in the postscript, on the spectre of the unsacrificeable that the Komape judgment inevitably also raises.

Legislative language and judicial politics: The effects of changing parliamentary language on UK immigration disputes

Why does the British government increasingly lose immigration cases in court? More broadly, what can explain the changing behaviour of appeal court judges? It is because government powers to manage immigration, delegated by Parliament, are increasingly couched in indeterminate language. Indeterminacy in legislation not only allows for executive discretion but also encourages litigation. Parliament has therefore provided the cause of action, and judges are not being ‘activist’. This argument revitalises, with nuance, the legal model of judicial behaviour. New evidence supports the claim, with discourse analysis of all 1233 sections of immigration legislation enacted from 1905 to 2016 showing an increase in indeterminacy. Logit regression modelling of 252 immigration appeal cases between 1970 and 2012 shows that changes to language and the administration of the law can explain the outcome in 73% of cases.

Where should the buck stop? Doctors, medical errors, and the justice system

Editorial, doi:10.1136/bmj.i6268 After the Court of Appeal overturned surgeon David Sellu’s conviction for manslaughter, Clare Dyer reports on fears that doctors are being unjustly criminalised When David Sellu, a respected...

Diversity, rights or privileges? Denunciation of multiculturalism, ‘political correctness’ and anti-racism of the ex-Commander of Scotland Yard Ali Dizaei

ABSTRACTThe widely disseminated court verdict on the former Scotland Yard commander, Ali Dizaei, as a violent bully and a liar at the end of his first trial in February 2010, brought about a noted denunciation of multiculturalism as ‘political correctness’. The jury's decision on the abuse of power by the Iranian-born officer was used by the denunciators to condemn the politics of rights that aligned multiple ethnic and racial identities as equal. The denunciation is looked at as a contingent mobilisation of the apolitical subject that is loitering on the boundary of politics calling for the ‘end of politics’ marked by the exclusion of the Other. At the same time the trial revealed that by advocating a policy designed to subsume particular ethnic and cultural belongings within a universal exercise of rights Dizaei had been able to resume his cultural differences as a source of privileges among his compatriots. Drawing on the incident as a result of which Dizaei had to stand trial and later a re-trial, using various sources, the paper examines the tension between the exercise of rights and privileges built into multiculturalism. The pertinence of the sources used to highlight the tension remains largely unaffected by the questioned reliability of the main witness of the prosecutor and the Appeal Court judges’ decision to order Dizaei's re-trial. The paper argues that multiculturalism sets in motion the incompatible agencies of the citizen, the member of a political community, and Man whose role is inscribed within civil society. Thus, the exercise of equal rights calls for dis-identification of the subject as a social and cultural agent. Such dis-identification, however, is displaced when the subject asserts his identity as Man, the bearer of unequal relations based on class, gender and race. In making provision both for the exercise of rights as well as the assertion of identity multiculturalism becomes instrumental in the subsumption of cultural differences within rights and the resumption of these differences in the articulation of privileges. The mediation of multiculturalism in the realization of rights and privileges accounts for the Iranian-born officer's oscillation between subsuming his cultural differences within British citizenship and resuming these differences in asserting his identity as an Iranian among the diasporic community. Using the notion of cultural diversity Dizaei was able to keep at arm's length the two spheres of rights and identity that allowed him to claim ‘not to be one of them’ thus oscillating between claiming the rights of a British citizen and the privileges of an Iranian magnate. The noted disruption in his power game that brought Dizaei to sit in the dock was the result of a failed attempt by the Iranian-born officer to contain the growing tension in his advocated multiculturalism arising from his simultaneous resort to rights and privilege.

Landmark case fails to quell thirst of councils to cut youth services

Campaigners and legal experts say local authorities across the country are pressing ahead with cuts to youth work staff and funding despite an Appeal Court judgment in November that was meant to make it harder to do

THE BRAVE NEW TERRITORY OF GAY PARENTING

Many couples in same-sex relationships are as enthusiastic in their desire to become parents as those who are in heterosexual relationships. Adoption, surrogacy, sperm donation, have all enabled same-sex couples to achieve their parental ambitions and create families. For the most part, they have done so without any interference by, or involvement with, the biological parents after the birth of their children.Whilst the majority of lesbian parents tend to use sperm which has been obtained from an anonymous donor, some women have shown a preference to use a sperm donor who is known to them to become the biological father of their children.This may be because they want to know the background, personality and medical history of a potential father before embarking on the procreative process. In some cases, it may also be because some women want their children to have a male role model in their life. Using a known sperm donor can, however, involve risks for would-be-mothers if, contrary to the father’s wishes, they do not want him to play a significant role in the child’s life. Their dreams of creating an autonomous nuclear family may be destroyed and replaced with a new form of extended family, consisting of three or even four parents if the biological father has a partner. The tale recounted in the Appeal Court judgment in A v B and C (Lesbian co-parents: role of father) (2012) is a cautionary one for lesbian would-be-parents and one of hope for potential biological fathers who are known to them. The Court of Appeal emphasised the paramountcy of the welfare principle, contained in s1(1) of the Children Act 1989 in resolving all child contact disputes. It declined to elicit any further principles in these difficult fact specific cases and stated that the sexual orientation of the parents and their pre-conceptual agreements, or understandings, spoken or unspoken are either irrelevant (per Thorpe LJ) or relevant but not determinative (per Black LJ).* Dr Mary Welstead, CAP Fellow, Harvard Law School, Visiting Professor of Family Law, University of Buckingham.[1] Re G; Re Z (Children: Sperm Donors: Leave to Apply for Children Act Orders) [2013] 1 FLR 1334.

Appeal Court judges to decide on long-term care

Appeal Court judges to decide on long-term care

Bournewood: Law and capacity

The Law Lords in June 1998 overturned the judgement in the matter of L. v. Bournewood. The Law Lords, on a majority decision, were of the opinion that a compliant incapacitated patient such as L. does not need the formal powers of the Mental Health Act and admission to hospital and subsequent assessment and treatment for mental disorder can be based on the common law principles of necessity. However, this position is quite contrary to the Appeal Court judges' view, “The right of a hospital to detain a patient for treatment for mental disorder is to be found in, and only in, the 1983 Act, whose provisions apply to the exclusion of the common law principle of necessity” (L. v. Bournewood Community Mental Health Trust, 1997).

Test case of sexual abuse goes to Lords

The House of Lords is to decide, in a test case that could open the way for dozens of other claims, whether a doctor whose mistaken diagnosis of sexual abuse caused a child wrongly to be taken into care can be sued for damages. The appeal follows a 2-1 majority decision by the Court of Appeal barring a mother and her 11 year old daughter from suing Newham Health Authority; Dr Eileen Vizard, a child psychiatrist; and the London Borough of Newham in east London. The master of the rolls, Sir Thomas Bingham, would have allowed the girl - though not her mother - to sue, but Lords Justices Staughton and Peter Gibson held that neither could bring a claim. The Appeal Court's judgment raises a question mark over the pounds sterling1 million settlement for 27 families whose children were taken into care …

Child Custody Appeals: The Search for Principle

The vagueness and uncertainty of application of the principles used to determine child custody appeals continue to cause great problems for the legal practitioner who must advise a client aggrieved by a decision at first instance. Child custody is an area where the right of appeal is unrestricted, but appeal court judges have nonetheless shown a marked tendency towards self-restraint in the exercise of their appellate jurisdiction. Two principal reasons are commonly given for this: first, the trial court in a child custody dispute often has a special advantage not possessed by the appeal court, in that it has seen and heard the witnesses; secondly, and more generally, the determination of a child custody dispute involves an exercise of discretion on the part of the trial court, in which the paramount consideration is the welfare of the child. For these reasons, which are considered in detail in the following section, it is perceived to be necessary to allow trial courts a degree of latitude. However, although the necessity for appellate self-restraint is generally accepted, there has been and continues to be wide disagreement as to the form which that self-restraint should take. In addition, there are many reported cases in which an appeal court has acknowledged the need for self-restraint, only to succumb to the temptation to intervene on the facts before it. The result of the absence of a principled justification for intervention is that there is no rational basis upon which parties can assess the strengths of their respective positions.

Twenty-Five Years of Civil Law System in Kuwait

The year 1961 was a landmark in the history of Kuwait. In that year, Kuwait achieved full independence, accepted democracy as a form of government, and, last but not least, chose a French-based civil law system. It was a daring choice, because Kuwait at that time had no experience of a modern legal system. What it then had, was, in the main, tradiiional Islamic courts staffed by Shariahwducated judges who administered e Mejelleh (which is the Ottoman compilation of the code of obligations) and other uncodified S&nah law. But with the advent of full mdependence and the accelerating economic resurgence, Kuwait felt the need for a modern system of codified law and chose the civil law system, and turned to Egypt for assistance. Egypt, which had extensive expenence in civil law) furnished Kuwait with a complete machinery of justice, from appeal court judges, public prosecutors and legal advisers) down to legal clerks and summons seners. Above all) Kuwait obtained the services of the eniinent jurist Dr Abdi Razzak Al-Sanhuri) the Jeremy Bentham of Egypt, who had previously drafted laws and consiituiions for several Arab countries. It is not the purpose of this paper to analyse the various laws that Kuwait had adopted) but simply to describe briefly the manner and fonn in which Kuwait adopted what essentially was an alien legal system and integrated it into its social fabric and body politic. Apart from the Constituiion, the most important piece of legislation which Dr Sanhuri drafted was the Law of Commerce, which laid the foundation of commercial activities in Kuwait until it was superseded 20 years later by the new commercial code. Its title as the Law of Commerce was an intended misnomer, since it also incorporated a substantial part of the civil code. In drafting it, Dr Sanhuri borrowed a great deal from the commercial laws of the other Arab countries, which he also helped to draft. For mstance, the seciion on the law of obligaiions came principally from the Iraqi civil code, which itself was a blend of Shah and French legal principles. Dr Sanhuri explained that he preferred the Iraqi law to the Egypiian law of obligaiions, because it was, in his opinion, more akin to the Kuwaiii local environment. The section of the code which deals with agenciesn commission agents, brokers and securities came from the Syrian commercial code) whereas the seciion on bankruptcies came from Egypt. Further laws dealing with other commercial matters were also drafted and enacted. The most significant of these were the law of land registraion, the law regulamg liabiliiies arising from unlawful acts (the law of torts)) the law of commercial companies, and the labour law in the pnvate sector. However) two important aspects Of Kuwaiti law remained unchanged and were unaffected by modern legislations.

The Law as a Sex-Typed Profession

The English legal profession is, overwhelmingly, a male profession. Less than one lawyer in ten is a woman. In October 1980 there were 447 practising women barristers, 9.7% of the total, and in the year 1979/80 The Law Society issued 3,700 practising certificates to women, who comprised 9.8% of all practising solicitors.[1] The senior levels of the profession are almost exclusively a male preserve. There were in 1980 just nine women amongst the 537 Benchers (members of the governing bodies) of the four Inns of Court.[2] In the same year three of the 96 Court of Appeal and High Court judges were women,[3] eight of the 308 circuit judges, 15 of the 411 Recorders and 13 out of a total of 720 Queen's Counsel. This massive under-representation of women in the highest ranks of the barristers' branch of the profession is not wholly because there are few senior women barristers, though a high proportion of women are relatively junior in point of call. Kennedy has shown that, in 1976, only 21% of women with more than 15 years practice since being called to the Bar had received a judicial appointment, compared with 53% of men of over 15 years call.[4]