Case Judgments Research Articles

Paediatric femur fractures\u2014the value of contextual information on judgement in possible child abuse cases: are we bias?

The majority of paediatric femur fractures result from accidental trauma; however, it is important to consider non-accidental trauma, especially in pre-ambulatory children. We study whether irrelevant contextual information subconsciously influences conclusions of healthcare professionals with respect to whether observations provide evidence for non-accidental trauma. A survey with nine radiographs of femur shaft fractures was designed. Two different clinical histories (vignettes) with contextual information were designed, non-abuse versus abuse context. One of both vignettes was randomly assigned to the radiograph shown to the participant, followed by a question with a 5-point answer scale, which represents a verbal expression of the likelihood ratio of the fracture regarding a non-accidental versus accidental cause. Participants were medical residents and staff members of different specialties from several Dutch hospitals. A total of 172 participants responded. The reported evidential strength of the vignettes with a non-abuse context was 0.19 (n = 784; 95%CI 0.10–0.28) and for the abuse context 0.94 (n = 764; 95%CI 0.86–1.02; p < 0.001). Women reported a stronger evidential strength than men, but both were influenced by context. Emergency department and paediatric doctors were more likely to decide that non-accidental trauma was the cause; paediatric radiologists were the least likely. Experience in years of practice and current function did not prevent participants from being bias.Conclusion: This study shows that the interpretation of medical results by healthcare professionals can be influenced by contextual information, such as low income and marital status, which are irrelevant to the decision as to whether abuse might have occurred. Given the same information about an injury, women, emergency department and paediatric doctors were more likely to decide that non-accidental trauma was the cause, while paediatric radiologists were least likely to decide this outcome. It is important to prevent contextual influence as much as possible, by recognizing it and implementing a management contextual information procedure.What is Known:• Contextual information is of possible influence on healthcare professionals in identifying non-accidental trauma.• Increased working experience is thought to be protective against this influence.What is New:• Contextual information influenced the interpretation of medical results by healthcare professionals regardless of work experience.• The interpretation of medical results by healthcare professionals is influenced by both affirmative and negative contextual information.

Death Penalty in South Asia: A Comparative Study between India and Bangladesh

The death penalty has been the subject of controversy for a long time. South Asian countries have found themselves with this controversy by acquiring an ambivalent approach towards the death penalty. Out of eight South Asian countries, Afghanistan, Bangladesh, India and Pakistan retain the death penalty law, and firmly believe that the death penalty can deter people from committing future crimes, whereas Sri Lanka and Maldives have chosen to retain the death penalty law but have abolished it in practice. Conversely, Nepal and Bhutan are the only two countries that have abolished death penalty both in law and practice. In this context, this comparative study of death penalty trials explores the approach taken by the judiciary of two South Asian jurisdictions, Bangladesh and India, towards the death penalty. This paper utilizes the findings of two original empirical research projects that explored judges’ opinions on the retention and administration of the death penalty in both jurisdictions. Amnesty International death penalty reports along with the case judgements are used, which helped to portray the true approach and flaws in the death penalty trials in both the jurisdictions. The paper will assess the death penalty trials and approach of the different stakeholders in the trial to highlight the distinct approaches taken by the two jurisdictions towards the death penalty. The paper argues that in both countries there is inconsistency in sentencing, the social cry for justice is prioritized over convicts’ rights and, from judges to legal representatives, all the stakeholders involved in a criminal trial hold a convictive approach, making a criminal justice system which presumes justice is served by awarding the death penalty.

A within-statement baseline comparison for detecting lies

To make veracity judgements in individual cases, practitioners may rely on baselining. That is, they may evaluate a statement relative to a baseline statement that is known to be truthful. We investigated whether a within-statement verbal baseline comparison could enhance discriminatory accuracy. Participants (n = 148) read an alibi statement of a mock suspect and provided a veracity judgement regarding a critical two-hour period within the alibi statement. This critical element was either deceptive or truthful and was embedded into an otherwise truthful story. Half of the participants received additional instructions to use the surrounding truthful elements of the statement as a baseline. Instructing participants to make a within-statement baseline comparison did not improve the accuracy of credibility assessments.

Targeted Groups, Rape and Dolus Eventualis

Abstract This article discusses a number of substantive law developments at the Extraordinary Chambers in the Courts of Cambodia (ECCC) after the issuance of the trial judgment in Case 002/02 against Nuon Chea and Khieu Samphan. It focuses on three themes emblematic of the Khmer Rouge era’s unique set of facts: the identification of targeted groups, male victims of rape in the context of forced marriage and the mens rea standard of indirect intent or dolus eventualis. These themes are distilled from the most pertinent jurisprudential developments regarding a number of specific crimes and a mode of liability: persecution on political grounds, genocide, other inhumane acts through conduct characterized as rape in the context of forced marriage, extermination and joint criminal enterprise. This article posits that these substantive law developments have an important place in international criminal law’s corpus as a rare stepping stone between the post-World War II trials and the modern-day international criminal courts and tribunals.

The role of capacity in the EU internal electricity market in the context of the General Court's judgment of 15 November 2018 in case T-793/14 Tempus Energy

Since the judgment in Case 6/64 Costa v ENEL electricity (electrical energy) has been considered as ‘good’ subject to the principle of free movement of goods of the European Union (EU). Although the EU electricity market has undergone fundamental regulatory and technological changes, this qualification still determines the assessment of regulatory solutions. The changes that have taken place have made it possible for resource adequacy to be ensured not only by generators but also by “demand side management”. It changes the market from a single-product market where electricity is the exclusive commodity (‘good’) traded to a two-commodity market where capacity securing resource adequacy is the second product. It raises the question if the capacity is good or service and how it affects qualification of electricity as a good and a model for developing EU regulation based on this assumption. In Case T-793/14 Tempus Energy the General Court challenged the British capacity market which also affected the Polish one, showing the need for delimitation of this concept. The aim of this article is to try to give answers to these questions. The article aims to propose such a delimitation and the consequences that result from for the EU electricity market.

A Safe Subarachnoid Block in Idiopathic Thrombocytopenic Purpura with Severe Thrombocytopenia

BACKGROUND: Idiopathic thrombocytopenic purpura (ITP) still presents particular challenges for anesthetists, especially when the patient needs surgery. Preparing a patient with ITP in elective surgery is an advantage for anesthetists since it gives us time to prepare the patient properly.&#x0D; CASE REPORT: We present a case of a 36-year-old woman scheduled for an elective laparotomy due to an ovarian cyst. She had been diagnosed with ITP in 2015 and was admitted to the intensive care unit (ICU) for post-operative bleeding.&#x0D; CONCLUSION: Individual experience in elective surgery should lead anesthetists to a better judgment in emergency cases with ITP.

The Lloyds case judgment: illuminating on practice but not on law

ABSTRACT The Lloyds case concerned the 2009 acquisition of HBOS. Shareholders sued 5 directors for losses sustained by them. It was the first case in the UK arising out of the financial crisis of 2008/2009 which went to full trial, with cross- examination of defendant directors, advisers and expert witnesses. It was also the first minority shareholder group litigation case brought against the directors of a listed company pursued through trial to judgment. The 280 page judgment provides an insight into the processes of listed company takeovers. It might have provided illumination of directors’ duties and of the reflective loss principle, which denies shareholders recovery where the company has a claim on the same facts. It did not: and the case gives attention to two reported cases which have long since lost authority.

Zakres przedmiotowy tzw. uchwały krajobrazowej. Uwagi na tle wyroku Wojewódzkiego Sądu Administracyjnego w Gdańsku z 18 września 2018 r., sygn. II SA/Gd 328/18

The text concerns an analysis of theses and justification for the judgment of Province Administrative Court in Gdańsk dated 18 September 2018 (case no. II SA/Gd 328/18). Although the judgment is based on particular factual state of affairs, its conclusions seem to be connected with common problems in the area of so-called ‘landscape acts’ adopted at the municipal level. Firstly, the judgment states that landscape acts may refer to campaign materials presented in connection with elections or referendum. In the commentary, this approach is approved, although the reasoning is developed via a detailed interpretationof the spatial management and planning act and electoral code. Later in the judgment it is claimed that landscape acts may cover rules of locating advertisements nearby elements of the road infrastructure. Moreover, this standpoint is shared in the gloss, detailed relations between landscape act and act on public roads as well as judgments in similar cases have been additionally presented. The last issue raised in the judgment was the problem of the legal grounds of imposing an obligation to maintain small architecture objects, advertisement boards /units and fences in the proper condition. As the court claimed, this is possible, because maintenance of the object is the element of its location, and this is also connected with the obligation to use high-quality materials. Moreover, it is stated that the problem of maintaining these objects has not been fully regulated in building law. This approach is accepted in the gloss, although attention is drawn to some inconsistencies in the justification, as well as to the possibility of raising other, moreaccurate arguments by the court.

The Meaning of ‘Associate’: An Analysis of the Outcomes of Commissioner of Taxation v BHP Billiton (2019)

This article will discuss the judgment of the recent Australian tax case of Commissioner of Taxation v BHP Billiton Limited (‘BHP’). Specifically, it will discuss how the case affects the meaning of the word ‘associate’ and the phrase ‘sufficiently influenced.’ It will do this by recapping the original Administrative Appeals Tribunal (‘AAT’) case of MWYS v Commissioner of Taxation which formed the basis of the appeal in BHP. It will then discuss the majority and dissenting judgements in the BHP case and how they both interpreted the meaning of ‘associate’ and ‘sufficiently influenced,’ before reconciling the ideas from both judgments, and the original AAT judgement. This paper will then aim to highlight the precedential value of BHP and how BHP may affect other areas of Australian Taxation Law, namely the Controlled Foreign Corporation rules, Thin Capitalisation Rules, and the R&amp;D grant rules.

Comprehensive moral thinking and the demandingness objection

AbstractIn his tripartite theory of corporate responsibility, Kenneth Goodpaster argues for the inclusion of “Comprehensive Moral Thinking (CMT)” as the third part alongside shareholder and stakeholder thinking. CMT requires managers sometimes to act for reasons of dignity or a just community, against what shareholder and stakeholder thinking recommend. To address concerns about the demandingness of CMT, Goodpaster argues that the responsibilities it imposes are significant but qualified or conditional: they require only that managers make efforts to address problems of dignity and justice, especially in cooperation with other willing firms. If extreme efforts are required or if other firms are unwilling to cooperate, managers can be justified in deciding in favor of shareholder or stakeholder values, even when dignity or justice is at stake. I raise two problems for the appeal to qualified responsibility—an extensional problem about the inability of the account to yield the correct judgment in important cases and an internal problem about the coherence of the account when qualified responsibility is included. I conclude by considering the prospects of a theory that includes CMT but rejects qualified responsibility.

Trial Chamber Case 002/02 Against Nuon Chea and Khieu Samphan (Extraordinary Chambers in the Courts of Cambodia)

On November 16, 2018, the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) rendered the judgment in Case 002/02 against Nuon Chea and Khieu Samphan. The full written version of the judgment was notified in Khmer, English, and French on March 28, 2019. The Chamber found Nuon and Khieu guilty of crimes against humanity, grave breaches of the Geneva Conventions, and genocide of the Vietnamese ethnic, national, and racial group. The Chamber additionally convicted Nuon of genocide of the Cham ethnic and religious group under the doctrine of superior responsibility. Both Nuon and Khieu were sentenced to life imprisonment.

Effect of and Compliance with Judgments of the Court of Justice of the European Union: The Case of Trade Defence Measures

When is litigation successful? Using the example of trade defence measures, this article addresses the effect of and compliance with judgments of the Court of Justice of the European Union. Its premise is that if a favourable judgment does not result in an improvement of the legal or economic position of the applicant, there is no incentive to litigate. This reduces accountability for EU institutions, turning the effect of and compliance with judgments into a fundamental question of judicial protection. With that in mind, this article sets out the differences in the effect of annulments and invalidations. It then turns to how this effect translates into compliance obligations, and how the EU institutions have complied with judgments in trade defence cases. Court of Justice of the European Union, litigation, effect of judgments, annulment, invalidation, implementation, measures taken to comply, Article 266 TFEU, trade defence, anti-dumping, anti-subsidy

Customs Valuation: A Bosnian and Herzegovinian Perspective

When is litigation successful? Using the example of trade defence measures, this article addresses the effect of and compliance with judgments of the Court of Justice of the European Union. Its premise is that if a favourable judgment does not result in an improvement of the legal or economic position of the applicant, there is no incentive to litigate. This reduces accountability for EU institutions, turning the effect of and compliance with judgments into a fundamental question of judicial protection. With that in mind, this article sets out the differences in the effect of annulments and invalidations. It then turns to how this effect translates into compliance obligations, and how the EU institutions have complied with judgments in trade defence cases. Court of Justice of the European Union, litigation, effect of judgments, annulment, invalidation, implementation, measures taken to comply, Article 266 TFEU, trade defence, anti-dumping, anti-subsidy

ADEQUACY OF PENAL POLICY IN CRIMINAL CASES OF ORGANIZED CRIME

Organized crime is a serious form of crime, whether it is viewed in the criminological sense or as the criminal justice response to this phenomenon. In this regard, the penal policy of the legislator should be proportionate to the gravity of organized crime. However, the penal policy of the courts does not reflect the stated intentions, which is primarily reflected in relatively mild criminal penalties for criminal offenses of organized crime. Although the case law does not contravene the law, i.e. contra legem, because it moves within the boundaries prescribed by the law, it is obvious that the issue is about imbalance of punishment for these criminal offenses, even when it comes to mitigating of the sentence of imprisonment. This paper will provide an analysis of the criminal law framework of organized crime prescribed by the Criminal Code of Bosnia and Herzegovina (CC BiH), as well as an analysis (statistical and descriptive) of the jurisprudence in the criminal cases of organized crime before the Court of Bosnia and Herzegovina (Court of BiH) for the period 2015-2018. As it is not justified and desirable for the legislator's criminal policy and court case jurisprudence to have a different approach in relation to these criminal offenses (different valuation and grading of severity of organized crimes), we will also make certain proposals for de lege ferenda. The paper is a continuation of earlier researches of this problem and is based on the analysis of court judgments in organized crime cases.

Targeted Groups, Rape, and Dolus Eventualis: Assessing the ECCC’s Contributions to Substantive International Criminal Law

This article discusses a number of substantive law developments at the Extraordinary Chambers in the Courts of Cambodia (ECCC) after the issuance of the trial judgment in Case 002/02 against Nuon Chea and Khieu Samphan. It focuses on three themes emblematic of the Khmer Rouge era’s unique set of facts: the identification of targeted groups, male victims of rape in the context of forced marriage, and the mens rea standard of indirect intent or dolus eventualis. These themes are distilled from the most pertinent jurisprudential developments regarding a number of specific crimes and a mode of liability: persecution on political grounds, genocide, other inhumane acts through conduct characterised as rape in the context of forced marriage, extermination, and joint criminal enterprise. This article posits that these substantive law developments have an important place in international criminal law’s corpus as a rare steppingstone between the post-World War II trials and the modern-day international criminal courts and tribunals.

CHALLENGES FOR LEGAL EDUCATION IN THE ERA OF I.R.4.0

The formulation of the National Policy on Industrial Revolution 4.0 (IR4.0) and Internet of things signals the Malaysian government readiness to come up with the necessary policy framework for the digitalised era. It has been said that universities’ curriculum structure and instructional design must also be revisited to ready the graduate to face the onslaught of technological revolution. Through content analysis of relevant literature, this paper analyses the myriad ways in which legal education has been impacted by IR4.0 both in terms of the ‘body of knowledge’ as well as the ‘skill sets’ required for law students to survive in the era of automatous systems. The paper is structured to first explain the concept of IR4.0 and how some national countries leverage the digital technology to improve their economy or facilitate social transformation. The paper proceeds with a discussion of how autonomous system, artificial intelligence and data analytics can enhance the instructional design of teaching and researching law. In terms of the body of knowledge, most of the legal principles drawn for the brick and mortar environment are no longer relevant in the IR4.0 era. The paper reveals that the traditional method that focuses on the training of law graduates to think like a lawyer by understanding the reasoning in the judgement of cases or the preparation of conveyancing and court documents are no longer relevant in the IR4.0 era as these activities could easily be undertaken by bots. Instead, law students should be imparted with a multiplicity of human skills that could not be performed by autonomous systems such as those involving conscience, high level thinking, and emotion such as mediation, negotiation, counselling, court prosecution, advocacy, witness examination, plea mitigation as well as social skills, resource management skills, technical skills and most importantly system skills.

The Current Status of the Preclusive Effects of Judgments in the Federal Court System of the United States of America

Res judicata law in the United States of America has a long, extensive and complex history. The aim of this paper is to provide at least a working summary of some of the most important aspects of the current res judicata law in the federal court system of the United States. The flexible discovery, pleading and joinder rules have given rise to more expansive res judicata law. The paper will discuss what exactly constitutes a judgment; how the federal courts deal with finality of judgments in multiple party and multiple claim cases; the final judgment rule; the form of judgments; the methods to enter judgments and significance of entry of judgments; together with a detailed overview of the doctrine of res judicata itself, including the separate, but related twin doctrines of claim preclusion and issue preclusion.

The ECJ’s ICAP Judgment Sends a Clear Message That Procedural Rights Matter (C-39/18 P Commission v ICAP and Others)

Case C-39/18 P Commission v ICAP and Others, Judgment of the Court of Justice (Third Chamber) of 10 July 2019 The Court of Justice’s judgment in the ICAP case confirms that European Courts will not shy away from annulling Commission decisions due to violations of procedural rights and that there is a general trend towards scrutinizing Commission decisions more closely. The Court’s ruling makes it clear that the Commission must provide sufficient reasons concerning the methodology used when setting the fine for a cartel facilitator. At the same time, it can be expected that the Commission will continue to prosecute cartel facilitators rigorously, as the Court did not take issue with the facilitator doctrine as such.

К ВОПРОСУ O НОВОЙ РЕДАКЦИИ ГЛАВЫ 40 УГОЛОВНО-ПРОЦЕССУАЛЬНОГО КОДЕКСА РОССИЙСКОЙ ФЕДЕРАЦИИ

The review and analysis of the changes carried into the Russian Federation Criminal procedural code by the initiative of the Supreme Court of the Russian Federation is provided in this article. These changes are carried in two directions: concerning the conditions being obligatory for the application of the special order of passing a judgement in a criminal case and the possibility of stopping the criminal case examined in this order. The problems of usefulness of the changes carried in and also the consequences of them for lawinforcement practice. The changes of the positions of the chapter 40 of the Criminal procedural code including its first reduction are analysed too. Summerising the investigation the proposals for further perfection of the legislative regulation of the positions concerning the conditions of using of this institution are also examined.

Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (2)

The discussion of the South African case law on the quantification of damages arising from wrongful arrest and detention which commenced in part (1) of this series, continues in the present part. In part (1), the Constitutional Court judgment in Zealand v Minister of Justice and Constitutional Development 2008 (4) SA 458 (CC) which emphasised the respect and reverence for the constitutional guarantee of personal liberty, and De Klerk v Minister of Police 2018 (2) SACR 28 (SCA) as well as the recent Constitutional Court judgment in the same case – De Klerk v Minister of Police 2020 (1) SACR 1 (CC); [2019] ZACC 32 (22 August 2019) – were among a host of important cases discussed. The Supreme Court of Appeal cases on quantification of damages for wrongful arrest and detention also discussed include: Mashilo v Prinsloo 2013 (2) SACR 648 (SCA); Minister of Police v Zweni (842/2017) [2018] ZASCA 97 (1 June 2018); Minister of Safety and Security v Magagula (991/2016) [2017] ZASCA 103 (6 September 2017). The first section of this part continues with the discussion of the other instances not involving failure to take the detainee to court within 48 hours or consequences of the accused person’s first appearance in court whereby Hendricks v Minister of Safety and Security (CA&amp;R/2015) [2015] ZAECGHC 61 (4 June 2015); Mrasi v Minister of Safety and Security 2015 (2) SACR 28 (ECG); and Ramphal v Minister of Safety and Security 2009 (1) SACR 211 (E) are among the cases discussed. The second limb of the discussion in this part concerns the issue of wrongful arrest and detention under the Domestic Violence Act 116 of 1998 where the law has developed side by side with the traditional law of wrongful arrest and police negligence as illustrated by the case of Naidoo v Minister of Police 2016 (1) SACR 468 (SCA).