Evidence: The admissibility of improperly obtained evidence

(Abstract taken from my own dissertation)

The admissibility of improperly obtained evidence

It is well established that the courts have the power to throw cases out of court based on some infraction. Whether a police officer denied the suspect the right to legal advice,[1] or failed to note his name and station on arrest,[2] the courts may use such reasoning to justify acquittal. Whilst in principle it is arguably a fine moral standard to ensure misconduct is punished, one must question whether the UK has the correct approach or whether more could be done to ensure justice is achieved on a range of levels. Sanders and Young state that ‘excluding reliable evidence at trial – or worse, halting the trial altogether – so that a guilty person walks free, punishes the innocent public along with the guilty police.’[3] This essay submits that our system has a worrying view of what ‘justice’ is and if we are going to start achieving it, changes must be made.

The provision under which the exclusion of improperly obtained evidence is made possible is found in the Police and Criminal Evidence Act 1984 (PACE) s.78. The section is based upon the supposed ‘adverse effects on the fairness of the proceedings’[4] if evidence is admitted which gives the prosecution an unfair advantage, or of which the opposition have little or no chance at responding to. Although this relatively new provision under PACE appears to empower the judiciary with abundant discretion, Watkins LJ in Mason pointed out that the section actually ‘does no more than to restate the power which judges had at common law before the 1984 Act was passed’.[5]  Issues of admissibility are thus potentially rooted in historical thought, which perhaps explains the system’s reluctance to reform. Nonetheless, there is certainly evidence of some change over the years, given that the historical common law ‘was at the crime control end of the spectrum’ whilst PACE demonstrates clear movement towards due process.[6]

All the same, the issues are as confused now as they have always been. Indeed in R v Sang [1980][7] ‘all the members of the Lords...were prepared to recognise that there should be the possibility of excluding evidence on the basis of unfairness, but did not present any uniform view as to what circumstances might justify this’.[8] It is probably fair to submit, given the ever-widening scope of s.78, that there is still a vital lack of clarity as to what may or may not be excluded. The new provision must, however, be extolled for the extensive scope inherent within it. The term ‘improper evidence’ may be applied in respect of ‘illegal search; identification evidence; suspects being wrongly denied access to solicitors; confessions; alibi notices; breaches of PACE codes.’[9] This means that whilst there may still be some confusion as to when evidence will be excluded, the circumstances under which such a debate might arise will undoubtedly fall within the provision.

It is not entirely apparent whether s.78 is rooted in due process or crime control rationale. Judicial discretion here, similarly, is neither prima facie advantageous nor detrimental to the defendant’s case as it tends to produce anomalous results; this is perhaps a flaw in its own right. The plethora of case law that has arisen in this area gives very little guidance as to what the outcome of any given trial may be. The notion of precedents has been partially, if not entirely, abandoned.

One of the most recent examples of rights going above and beyond their original purpose is that of Abu Qatada and the Courts’ decision to retain him in the UK. The saga has been described as ‘a very expensive and very embarrassing headache for the British Government’[10] as the suspected terrorist from Jordan has been detained in the UK for the past 7 years, for fears that deporting him to his native country would result in a criminal trial where evidence obtained by torture – which is not permitted under the European Convention on Human Rights[11] - is used to convict him. Taking such a due process stand has also highlighted the fundamental quandary in attempting to find the ‘correct’ outcome - assuming that one exists. As one human rights blog states: ‘On the one hand, we have national security. On the other, due process and the rule of law. All three are vital components of the public interest, and often they conflict.’[12]

There are a plethora of issues which arise in the on-going Abu Qatada debate, which will not be discussed here as the basis for this discussion is predominantly centred on exclusion of evidence, linking to the wider issue of whether criminals have too many human rights. However, it is important to note that making such deeply due process-rooted decisions regarding evidence exclusion means that not only in this case are public funds being spent on maintaining an immigrant and giving him a luxurious lifestyle[13] – it has been estimated that when calculating the legal aid, jail fees, government bill, security, housing and benefits, Abu Qatada will cost the UK approximately £6million in 2013[14] - but the suspected terrorist is not being prosecuted in this country either. Theresa May has voiced her concerns and told the Commons that the Government will continue to do everything it can to get rid of Abu Qatada;[15] the problem is finding a law that will permit such action, in a country which is notoriously due process.

However, exclusion of evidence dilemmas do not always arise in such high profile cases. Take for example, Attorney General’s Reference (No.3 of 1999)[16] in which the defendant was acquitted after DNA evidence, proving his guilt, was deemed inadmissible. The saliva sample taken on suspicion of burglary months earlier – of which he was later acquitted – was not destroyed in accordance with legislative provisions requiring destruction of samples.[17] When swabs were taken some 9 months later from a rape victim, which matched the defendant’s DNA profile, he was arrested and a hair sample was taken, proving further evidence of his guilt. It is worth noting that although the suspect was acquitted, the House of Lords disapproved of the result; this perhaps demonstrates the need for acquittals to be challenged. This will be discussed in the double jeopardy section below.

So why are we so hell-bent on excluding evidence which is known to be reliable? How can we be so blasé about acquitting a known-rapist? The issue remains unclear, although it is thought to be rooted in the moral, or not-so-moral standards, we are endorsing when we permit the state to benefit from misconduct. Sanders and Young point out the fundamental impasse: ‘What discredits the criminal justice system more: ignoring apparently reliable evidence and allowing the apparently guilty to go free, or using illegally obtained evidence and, by doing so, condoning illegal police behaviour which may not be subject to any other sanction?’[18]

The writers also highlight the crime control view that ‘legal niceties should not obstruct the search for the truth’[19] – with which this essay is inclined to agree. The issue of admissible or inadmissible evidence is ripe for reform. Although adjudicators now lean towards an arguably more attractive ‘reliability’ stance, if judicial discretion is indeed the way forward, there is a need for clearer guidelines and more consistent precedents; otherwise the justice system becomes a shambles of incomprehensible decisions, supposedly founded on little more than simply good sense.

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[1] Samuel [1988] 2 All E.R. 135

[2] Osman v Southwalk Crown Court [The Times 28 Sept 1999]

[3] Andrew Sanders & Richard Young, Criminal Justice (4^th edn, OUP 2010) 700

[4] Police and Criminal Evidence Act 1984, s.78(1)

[5] Diane Birch & David Ormerod, ‘The evolution of the discretionary exclusion of evidence’ [2004] Crim LR 774

[6] Andrew Sanders & Richard Young, Criminal Justice (4th edn, OUP 2010) 701-2

[7] [1980] AC 402

[8] Richard Stone, Civil Liberties & Human Rights (8^th edn, OUP 2010) 168

[9] Diane Birch & David Ormerod, ‘The evolution of the discretionary exclusion of evidence’ [2004] Crim LR 774-5

[10] Online constitutional law blog: Tom Hickman, ‘The Return of Abu Qatada (to the streets of London)’ (2012) - http://ukconstitutionallaw.org/2012/11/14/tom-hickman-the-return-of-abu-qatada-to-the-streets-of-london/

[11] European Convention on Human Rights, Article 3

[12] Online human rights blog: Adam Wagner, ‘Abu Qatada: in the public interest’ (2012) - http://ukhumanrightsblog.com/2012/11/16/abu-qatada-in-the-public-interest/

[13] For example, the £400,000 house in Wembley, as reported by Tom Peck, ‘Abu Qatada is moved to secret address after protesters target his home’ (2012) The Independent

[14] Online article: Richard Moriarty & Luke Heighton, ‘Abu Qatada will cost UK taxpayers £6m this year’ (2013) The Sun - http://www.thesun.co.uk/sol/homepage/news/4765055/Abu-Qatada-will-cost-UK-taxpayers-6m-this-year.html

[15] Online article: unknown author, ‘Abu Qatada wins appeal against deportation’ (2012) BBC News - http://www.bbc.co.uk/news/uk-20295754

[16] [2001] 2 A.C. 91

[17] Police and Criminal Evidence Act 1984, s.64(1)

[18] Andrew Sanders & Richard Young, Criminal Justice (4th edn, OUP 2010) 700

[19] Andrew Sanders & Richard Young, Criminal Justice (4th edn, OUP 2010) 700

Herbert Packer's Models of Criminal Justice - Crime Control vs Due Process

(Abstract taken from my own dissertation)

Packer’s models of criminal justice

It has been said that any given justice system will generally adopt one of ‘two conflicting value systems that [compete] for priority in the operation of the criminal process.’[1] Of course, these two systems are the Crime Control and Due Process models mentioned above; and whilst it is true to say that they stand for inherently different values and most people are inclined one way or the other, Packer has said that ‘anyone who supported one model to the complete exclusion of the other ‘would be rightly viewed as a fanatic’.[2]

The Crime Control model (CC) has been described as a conveyor belt by Sanders and Young. This is perhaps due to the nature of the system which moves quickly, knocking off various suspects one by one. Abolishing crime is CC’s primary concern, whilst human rights exist as a secondary or even tertiary consideration – this is one of its major criticisms, given that the Human Rights Act 1998 is now a fundamental part of our legal system.

Despite heavy critique, the model must be praised for its ability to address levels of crime with speed and efficiency; it has also been suggested that without such a harsh system, a ‘general disregard for the criminal law would develop and citizens would live in constant fear’.[3]

However, whilst some CC arguments are plausible, the inconsistency in practice cannot be justified so easily as the lack of thorough investigation puts innocent people at risk of conviction. Additionally, achieving such efficiency with resistance to challenge suggests methods such as interrogation may be freely endorsed; it is a worrying thought that we might be prioritising conviction rates above human autonomy.

It could be argued that ‘criminal justice agencies have been put under considerable performance pressure to reduce crime, to bring offenders to justice and to deal with juvenile offenders’,[4] but critics would submit that this goes little way to providing a defence as what we ‘save’ in monetary terms, we have to make up for in other ways – and this is usually at the expense of human dignity.

The Due Process model (DP) on the other hand, could be described as the antonym of crime control. It is based on procedure and sensitivity to each case – placing as much importance on the process as the end result. Sanders and Young have said that its aim is as much about protecting the factually innocent as convicting the factually guilty, which automatically denotes far fewer convictions.

The willingness of DP to sacrifice crime statistics in the name of preventing demoralising and oppressive behaviour is perhaps founded on the belief that we must teach by example and are failing to educate offenders when we too become law-breakers. “To seek to condemn and deter these people for their supposedly free-will decision to breach the criminal law smacks of cruel hypocrisy, particularly when there is a failure to provide for the individualised and humane rehabilitation of offenders.” [5]

There is a dire need to improve confidence in the criminal justice system[6], and those in favour of due process would submit that respect for individual rights is a step in the right direction. The Government in 2004 said that ‘improving the way that we treat the public, particularly victims and witnesses, is essential to enhancing levels of confidence.’[7] Nevertheless, without improved statistics the due process model will fail to be competent enough on its own, and this is perhaps where our crime control anomalies arise.

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[1] Andrew Sanders and Richard Young, Criminal Justice (4^th edn OUP 2010) 21

[2] Andrew Sanders and Richard Young, Criminal Justice (4^th edn OUP 2010) 24

[3] Andrew Sanders and Richard Young, Criminal Justice (4^th edn OUP 2010) 22

[4] Daniel Gilling, Crime Control and Due Process in Confidence-Building Strategies, A Governmentality Perspective [2010] BJC

[5] Andrew Sanders and Richard Young, Criminal Justice (4^th edn OUP 2010) 23-4

[6] Daniel Gilling, Crime Control and Due Process in Confidence-Building Strategies, A Governmentality Perspective [2010] BJC

[7] HM Government, Cutting Crime, Delivering Justice: A Strategic Plan for Criminal Justice 2004-08, (2004)

Equity and Trusts: Resulting Trusts (Basic notes)

The term ‘resulting’ comes from the Latin word ‘resalire’, meaning ‘to jump back’. 

The trust operates to ‘jump back’ interest in property to a donor who transferred it to another person who is now deemed a resulting trustee of property in his hands.

Resulting trusts respond to the absence of any intention on his part to pass the beneficial interest to the recipient. Additionally, where a trust has been used properly for its purpose but a surplus fund remains, it will be held on resulting trust.

Equitable maxim that ‘equity abhors a beneficial vacuum’ – where a person transferred property to another without identifying who was to enjoy the beneficial interest in such property, the beneficial interest would result back to the person transferring the property.

CASE LAW:

In Vandervell v IRC (no1) Lord Reid said the ‘beneficial interest must belong to or be held for somebody; so if it was not to belong to the donee or be held in trust by him for somebody, it must remain with the donor.’

Westdeutsche case: two instances in which a resulting trust arises:

1) A makes a voluntary payment to B, or pays for the purchase of property which is vested in either B alone or in their joint names. There is a presumption that A did not intend to make a gift to B – but this is only a presumption, and is easily rebutted where the A’s intention demonstrates that it was intended to be a gift.

2) A transfers property to B on express trust but fails to exhaust the entire beneficial interest.

Air Jamaica v Charlton [1999] – LJ Millett: a resulting trust ‘arises whether or not the transferor intended to retain a beneficial interest – he almost always does not – since it responds to any absence of intention on his part to pass a beneficial interest to the recipient.’

Re Sick [1973] – Megarry LJ: ‘a resulting trust is essentially a property concept; any property that a man does not effectually dispose of remains his own.

There are a plethora of circumstances in which a resulting trust might arise, although in all cases, the presumption in equity is that is that the transferor or the person providing the purchase money does not intend to confer absolute ownership on the transferee; rather the presumption is that he intends to retain the beneficial ownership.

Justifications for resulting trusts – 1) to reverse an unjust enrichment; 2) to give effect to the true intention of the settlor.

Automatic and presumed resulting trusts - Megarry J in Vandervell (no2) said that a resulting trust was one of two main types: 1) Automatic – arise automatically in circumstances where an express trust failed for some reason, e.g. failure to comply with a formality or being contrary to perpetuity rules; or 2) Presumed – arise on the basis of the presumed intentions of the person transferring property to another; most typically where a person transfers or purchases property in the name of another.

EXAMPLES WHERE A RESULTING TRUST ARISES

1. A settlor attempts to create a trust by appointing a trustee and transferring the £1000 to him. The settlor explains to the trustee that he will inform him later as to who the beneficiary of the trust is. The settlor fails to inform the trustee as to whom the £1000 was to benefit and a few weeks later dies.

2. A settlor creates a trust by transferring £20,000 on trust to his trustee for the medical costs of his old aunt so long as she is in hospital. The aunt recovers and is discharged from hospital. The trustee, however, has £12,000 of trust money which was not used for the aunt’s medical costs.

3. At the beginning of their studies, 50 law students form a club which organises seminars and talks on equity. The club also organised a number of trips. Membership to the club could only be taken on payment of a fee. The club also received some money from the parents of the students by way of voluntary donations and one legacy of £1000. The students are now coming to graduation and wish to end the club. There are 30 members remaining and the club has £1,200 in a bank.

4. You secure employment with a firm. The employer provides you with the opportunity to join a private pension payable on your retirement. The scheme requires that you pay a sum of money from your wage every month into the scheme. The employer also agrees to pay a certain sum each year into the scheme so as to make sure that it provides sufficient cover when the employees retire. Your employer has informed you that the business will be closed and the employees will receive their benefits from the scheme as explained in the scheme should the business cease trading. After payment of the agreed benefits, the pension scheme has a surplus of £200,000.

5. Michael transfers his house voluntarily in the name of his brother in fear that his new business may fail and his house may be at risk from the claims of creditors. The business, however, is a success and he wishes his brother to re-convey the house to him. The brother refuses to do so. Michael commences proceedings in court to recover the house on the ground that the only reason he transferred the house to his brother was to hide it from the creditors.

6. V and D are an unmarried couple, and have decided to purchase a house to live in. The legal title is taken in the name of V despite the fact that D contributed £30,000 to the initial deposit price. 

Succession: Key cases for s.9 Wills Act formalities

Kell v Chamer – a will may be written in any language or code - jewellery codes

Barnes – a will may be written on any material - egg shell

Murray – a will may be written on any material – cigarette packet

Hindmarsh v Charlton – signature: name or mark intended to represent name

In the Goods of Kieran – 2 letter signature was sufficient

Re Cook – “your loving mother” was sufficient

In the Goods of Flinn – thumb print signature was sufficient

Wood v Smith – may sign anywhere on the will

In the Goods of Mann – unsigned will contained in signed envelope was sufficient

In the Estate of Bean – unsigned will and unsigned envelope: name, address, date had been stated but was still insuffient

Smith v Smith – witness need not know the document is a will

Re Collings – witness must stay present until signature is complete

Brown v Skirrow – witnesses must be mentally and physically present

Casson v Dade – it was enough that the testator could have seen the witness sign, even if he did not actually see it

Couser v Couser – the judge questioned why no one asked if testator had looked to see the witness sign

Wilson v Beddard – 14 yr old witness was sufficient

Corbett v Newey – will doesn’t need to be dated

Banks v Goodfellow – T must understand 1) effect, 2) extent, 3) nature of will

Parker v Felgate – 1) capacity when drafting will, 2) will prepared as directed, 3) remembers instructions and believe they were followed, 4) no suspicious circumstances

In the Estate of Bohrmann – only need to exclude the part of the will affected by incapacity

Hall v Hall – Undue Influence – testator may be “lead but not driven”

Vaccianna v Herod – Forgery – civil standard of proof

Family Law: Surrogacy

Family: Surrogacy

-       Criminal offences: Surrogacy Arrangements Act 1985 s.2(1) – no person shall on a commercial basis take part in surrogacy negotiations, offer or agree to negotiate, or compile any information with a view to using it in negotiations.

To constitute an offence the arrangement must be made before the gestational mother becomes pregnant.

NB: the gestational and commissioning mother are not liable for the offence, only third parties making the arrangements.

It is also an offence to pay money that constitutes a reward or profit to the gestational mother under a surrogacy arrangement. Payment can cover expenses. Any payments can be authorised under s.30(7) HFEA 1990.

-       Enforcing a surrogacy arrangement: s.1A Surrogacy Arrangements Act 1985 says that no arrangement is enforceable.

Without this provision a surrogacy contract might be thought to be enforced in the same way as another contract.

In Briody v St Helens and Knowsley HA the court referred to the surrogacy arrangement as an ‘unenforceable and unlawful contract’.

-       What happens when the baby is born?

Option 1: Commissioning parents take no legal steps. Gestational mother (surrogate) would be the mother, and the biological father would be the father. If the legal status of the child’s parentage ever came to court, it’s likely that they’d order to maintain the status quo. In Re H a mother gave birth but did not want to care for the child. She handed the baby over to her friends, a lesbian couple –one had a history of mental illness whilst the other had a criminal conviction. The matter was brought before the court 9 months later, by which time the couple had bonded with the child. The court said that unless there was significant danger of harm, they would have to confirm present arrangements.

Option 2: Commissioning parents could apply for a parental order.

Option 3: Commissioning couple could apply for a residence order. Leave to make the application will be required unless the commissioning husband is the genetic father of the child. The courts’ paramount consideration will be the welfare of the child. Generally, unless the gestational mother opposes the application, it will be granted. Re P was an exceptional case where the surrogate mother had lied to the father and told him that she miscarried. He later found out the truth and applied for a residence order with his wife. Evidence of the surrogate mother’s psychological state meant that the child was better off with the commissioning parents, even though the child had bonded with the surrogate mother for 18 months.

Option 4: Commissioning parents may also apply for an adoption order where a parental order is not available. NB: the Adoption Act 1976 clearly forbids any ‘payment or reward’ in private adoption placements.

Option 5: Local authority may wish to investigate in order to decide whether to use any of its powers; e.g. care order.

-       Where gestational mother refuses to hand the child over – the commissioning parents could apply for a residence order. However, by the time the matter reaches the court it may well be that the child will have bonded with the gestational mother. This, in conjunction with the natural parent presumption, is likely to mean that the court will not grant the order and the child will stay with the gestational mother.

-       Confusing approach – the law’s response to surrogacy is ambiguous. Surrogacy itself is not illegal, but on the other hand surrogacy contracts are unenforceable.

ARGUMENTS FOR SURROGACY

-       A woman should be allowed to do with her body as she wishes

-       Some believe surrogacy is a more appropriate solution for infertile couples than many forms of assisted reproduction

-       Surrogacy is inevitable and therefore best regulated by law

-       Surrogacy encourages and enables a variety of family forms. It is especially good for gay couples

ARGUMENTS AGAINST SURROGACY

-       Surrogacy arrangements are contrary to the best interests of children. It is not desirable for a child to be born in circumstances that are so likely to result in a dispute between adults, which may well harm the child. A child may also be confused about his identity

-       Can be seen as demeaning to women as they are being used as ‘walking incubators’

-       Surrogacy does not challenge the attitude of society towards infertility and means resources are not directed towards discovering the causes of infertility

-       The Roman Catholic Church has argued that surrogacy is analogous to adultery, in that it brings a third party into the married

-       The child after birth might be rejected by both the gestational mother and the commissioning parents, particularly if the child is born disabled

-       Commercial surrogacy arrangements commodify children and treat them as chattels to be bought and sold.

Reform

In 1998 there was a review of surrogacy which led to proposals for a new code of practice aimed at controlling the payments of surrogate mothers and the regulation of surrogacy in the UK. These reforms perhaps happened following the publicity surrounding Karen Roche.

NB: some of the above content may have been taken from other sources

Family: Ancillary Relief

ABOLITION OF MAINTENANCE

-       The argument is that the existence of maintenance perpetuates the fact that women are dependent upon men.

-       The law tells wives that they will be entitled to financial support if their relationship ends, therefore women are willing to take lower-paid jobs and become dependent on their husbands.

-       If maintenance were abolished, it would encourage women to find adequately paid jobs.

-       O’Donovan has suggested that the abolition of maintenance can only fairly be accomplished when there is equality of division of labour during marriage, including financial equality; there is equal participation in wage-earning; there are wages geared to people as individuals and not as heads of families; there is treatment of people as individuals by the state in taxation and benefit provision.

ORDERS THAT THE COURT CAN MAKE

Income orders

Periodical payments order (PPO) under s.23 MCA 1973.

-       May be weekly, monthly or annually

-       Can be secured or unsecured (against property)

However, Thorpe LJ in AMS v Child Support Officer has said that secured PPOs ‘have been virtually relegated to the legal history books’.

-       Will cease on the death of either party – unless the order is secured, in which case it will continue after the payee’s death. It will also cease on the remarriage of the recipient as the new partner is deemed to be financially responsible for the recipient. Additionally, the court order may specify a specific date when payments are to end.

Property orders

There are three main types of property orders:

1) Lump sum orders

-       A lump sum order (LSO) requires a lump sum of money to be handed over by one spouse to the other.

-       May be made to a parent for the benefit of a child.

-       May be paid in instalments.

-       Often used when considering housing issues, assuming one party is going to stay in the matrimonial home.

2) Transfer of property orders

-       Orders one party to transfer a share in the matrimonial home to the other.

-       This order could also be used to transfer other property, such as a car or piece of furniture.

3) Power to order sale

-       Under s.24A MCA 1973 the court can order the sale of property, whether it’s owned outright by one of the parties or jointly by both parties.

-       The owner will usually be required to sell the item and then the proceeds are divided between the spouses by means of a lump sum order.

Clean break order

When considering which financial order to make, the court must consider whether to make a clean break order. If a clean break order is not made, the parties can potentially have further financial obligations placed upon them after divorce for the rest of their lives. I.e. if husband wins the lottery, the amount he is required to pay the wife may increase if there has not been a clean break. Similarly, if she won the lottery, the husband might ask that the payments stop.

-       A clean break order ends any continuing obligation between the spouses. However, it should be stressed that the clean break cannot end the possibility that a spouse may be liable for child support – it is only spousal support that can be cleanly broken.

-       A delayed clean break order is also possible, i.e. after 2 years of periodical payments

-       S.25A MCA 1973 provides the court with a duty to consider whether a clean break would be appropriate in all cases, but it will certainly not always be preferable.

Benefits of a clean break order: parties are free to pursue their own careers without worry that it will lead to a variation of the order; there may be emotional reasons i.e. feeling released from the marriage; if the recipient intends to remarry it will ensure she does not lose out on payment; it avoids future problems in the payment and collection of periodic payments. In Miller; McFarlane, Baroness Hale said ‘periodical payments are a continuing source of stress for both parties’.

-       The main advantage is that the court ties its hands and will not reopen the court order.

A clean break order is appropriate where

            1) Continuing support offers to benefit to the wife

            2) Short childless marriages are involved

            3) Very wealthy people are involved

            4) Both spouses have well-established careers

            5) There is antagonism between the parties

A clean break order is inappropriate where

            1) There are still young children

            2) There is too much uncertainty over the recipient’s financial future

            3) Where there is a lengthy marriage

            4) The courts want to achieve fairness

STATUTORY FACTORS TO BE TAKEN INTO ACCOUNT

-       Listed in s.25 MCA 1973

-       In Piglowska v Piglowska [1999] the HL accepted that different judges may reach different conclusions as to what the most appropriate order may be in a particular case.

-       In White v White Lord Nicholls suggested that fairness is the overriding purpose of the Act. This is the judges’ objective view of fairness.

-       However Miller; McFarlane said ‘fairness is an illusive concept’

1) The welfare of children – the court’s first consideration must be as to the welfare of any child who has not attained the age of 18. Although Suter v Suter and Jones clarified that although it is the first consideration, it is not the overriding consideration.

2) Financial resources – in reality the courts are mostly dealing with the debts rather than the assets of the parties. All assets will be considered, even those which the parties owned before the marriage.

NB: the financial resources of a third party (i.e. a new boyfriend) cannot be taken into account. However, the court can consider that a new spouse may be in a position to contribute to the household expenses, thereby reducing her needs.

NB: ‘other resources’ considered may include income from discretionary trusts, personal injury damages, or even inheritance received post-divorce.

B v B –held unfair to divide assets equally on divorce after a 12 year marriage where all the capital had been provided by the wife from an inheritance.

C v C – a husband was due to acquire a quarter share in a substantial trust fund on the death of a 74yr old widow. The court held that given that the woman was likely to die within the next 15 years and that the husband was definitely likely to be entitled, it was an asset that could be taken into account – had the widow been much younger, it’s unlikely that the court would have considered it.

NB: the court will consider both present income and any extra earnings that could be gained by working overtime. If a person is unemployed then he or she may be expected to find work. However, in A v A the court held it was not reasonable to expect a woman of 45 to seek full-time employment, although had she been much younger and childless the court may have reacted differently.

3) The needs, obligations and responsibilities of the parties – needs not be restricted to those that arise directly from the marriage. The concept ‘needs’ is inevitably subjective. The courts have interpreted ‘needs’ loosely. The needs of a rich couple are not the same as the needs of a poor couple. In F v F the court held that the wife needed 3 houses! Reasonable requirements are not limited to essentials.

4) The standard of living enjoyed by the family before marriage breakdown – this factor tends to be relevant to rich couples in particular. In S v S the court heard that because the couple had been heavily involved in horses during the marriage, the wife should be entitled to a sum which allowed her to continue her love of horses.

5) The age of each party to the marriage and the duration of the marriage – the shorter the marriage, the less likely the court will make a substantial award.

In Attar v Attar the couple had been married for 6 months, so it was suggested that the sum must simply reflect the amount required to put the parties back in the position they had been in before the marriage.

However, in C v C despite only a nine month marriage, a child with significant health issues had been born into it; therefore both a lump sum and periodical payments were ordered.

In Miller v Miller a wife was awarded £5million after a 3 year marriage, because the husband had made a significant amount of money during that time.

Alternatively in Krystman v Krystman the couple had been married for 26 years but only lived together for two weeks, so no order was made.

6) Any physical or mental disability of either of the parties to the marriage – the most notable case is C v C in which a husband was badly disabled and so was entitled to £5million, even though the wife was therefore left on social security benefits. The husband’s disabilities meant he required constant care and complex equipment, thus he was entitled to all the assets.

7) Contributions to the welfare of the family – must first consider the position of the spouse who is not earning, but has been working as the homemaker and child carer. White v White emphasised that the division of labour must be considered but it was not important who earned the money.

8) Conduct – at one time conduct was considered to be very important i.e. an adulterous wife could expect a low award. However it is now rare for conduct to be taken into account, unless it is such that the court would be inequitable to disregard it. In K v K the woman helped her depressed husband commit suicide as she wanted to acquire his estate.

Criminal: Is the law too kind to criminals?

I've decided to write a small post on whether the law is too kind to criminals, particularly as they pass through the criminal justice system. I am in the process of writing a 12,500 word dissertation on the subject, and therefore any comments are very much welcomed.

The idea for my dissertation came together after some thought on the ways in which justice is achieved in our 21st century legal system. Herbert Packer proposed two conflicting models which may attempt to deal with 'justice' - the Crime Control system and the Due Process system. Much as its name suggests, the Crime Control system focuses on ensuring criminals are successfully convicted, even at the expense of breaching human rights such as the right not to be tortured. In contradistinction, the Due Process system believes human rights should be upheld and respected at all times, even at the expense of criminals walking free. Looking at these two systems caused me to question whether either system alone could, or indeed should, work in isolation to the other - and furthermore, whether a Crime Control approach to justice could ever be justifiable.

The two systems then led me to think about Utilitarian ideologies and whether it's right that one person should suffer so that the many may be happy - or in criminal respects, that one person might be treated unjustly by the system in order that a conviction is secured and society might be safe.

It has been overwhelmingly clear that, as a general principle, the UK's justice system tends to favour the Due Process approach. As the technically more 'just' of the two, I suggest that this is the safer option, particularly given the outrage and criticism that would ensue were police permitted to take more heavy-handed action with suspects. Nevertheless, it must be questioned as to whether the Due Process model has gone so far as to not only protect criminals, but aid them in their quest for acquittal.

One area of particular interest to me has been the issue of 'double jeopardy' - an 800 year old law which states that no person can be tried twice for the same crime. Whilst in principle this principle may have a number of merits including preventing the floodgates of litigation from opening, it has led to some abhorrent results. Take, for example, the murder of Julie Hogg. The 22 year old woman who was brutally murdered for refusing to have sex with a man. He then hid her body behind her bath panel, only for her mother to discover it rotting months later. Whilst her murderer should have been convicted at trial - with evidence such as his semen on the blanket she was wrapped in, his finger prints on her keys, and many of her belongings hidden under his floorboards - the jury failed twice to come to a unanimous verdict, and he was subsequently acquitted. Knowing that double jeopardy would protect him, Julie's murderer later confessed to his ex-wife and a prison officer that he had strangled her for refusing to have sex with him.

If you're interested in the facts of this case, they are readily available online; however, the important factor is that double jeopardy has since been abolished in England and Wales (although unfortunately not in Scotland) as a result of this case. Julie Hogg's murderer was given a life sentence and many others like him are now facing re-trials. Part 10 of the Criminal Justice Act 2003 now permits a re-trial where 'new and compelling evidence' is available. What I attempt to explore, inter alia, is whether reform of this law has gone far enough - for instance, is the requirement that the evidence be 'new' too high a standard or should we make it easier for suspects to be re-tried? I will also look at whether the courts are too readily dismissing improperly obtained evidence or overturning convictions based on 'unfair trials', thereby allowing many known criminals to escape justice.

Please give me your thoughts, I look forward to hearing them!

Equity and Trusts: Fully Secret and Half Secret Trusts: the difference

Fully Secret

There are no names of trustees or beneficiaries on the will, neither are there terms or any information.

Requires INTENTION, COMMUNICATION and ACCEPTANCE.

Leading case is Ottaway v Norman.

In the event of a failure of the secret trust, the intended secret trustee takes the trust property absolutely.

The trust will fail if the intended trustee dies before the testator.

Half Secret

The name of the trustee will be mentioned in the will but the terms of the trust and the beneficiaries will not be mentioned.

Also requires INTENTION, COMMUNICATION and ACCEPTANCE, however the 'communication' must be before the execution of the will and evidence will be inadmissible if it's not consistent with the terms of the will.

Leading case is Blackwell v Blackwell.

In the event of a failure to create the half secret trust, a resulting trust will be set up for the testator's legatees and next of kin.

The trust will not fail if the intended trustee dies before the testator.

Family Law: Void and Voidable Marriages

What appears to be a ceremony of marriage can either be:

1. A valid marriage
2. A voidable marriage
3. A void marriage
4. A non-marriage, a ceremony of no legal significance

The difference between divorce and nullity: where a marriage is annulled the law recognises that there has been some flaw in the establishment of the marriage, rendering it ineffective. Where there is a divorce the creation of the marriage is considered proper but subsequent events demonstrate that the marriage should be bought to an end.

The difference between a void marriage and a non-marriage: a void marriage is one where, although there may have been some semblance of a marriage, there is in fact a fundamental flaw in the marriage which means that it is not recognised in the law as valid. Distinguish from a non-marriage in which the ceremony that the parties undertook was nothing like a marriage and so is of no legal consequence. With a void marriage the court has the power to make financial orders, redistributing property between the couple. If the ceremony is a non-marriage the court has no power to redistribute property and the couple will be treated as an unmarried couple.

Hudson v Leigh [2009] 3 FCR 401, Bodey J: list of factors indicating a void or non-marriage:
(a) Whether the ceremony or event set out or purported to be a lawful marriage;
(b) Whether it bore all or enough of the hallmarks of marriage;
(c) Whether the three key participants (man, woman, officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage;
(d) The reasonable perceptions, understanding and beliefs of those in attendance.

The difference between a void and a voidable marriage: A void marriage is one that has never existed in the eyes of the law. A voidable marriage exists until it has been annulled by the courts; until then it is valid. NB: a child born to parties of a void marriage would be ‘illegitimate’. NB: any person may seek a declaration that the marriage is void, but only the parties to the marriage can apply to annul a voidable marriage.

Grounds on which a marriage is void: set out in the Matrimonial Causes Act 1973 s.11.
(a) that is it not a valid marriage under the provision of the Marriage Acts 1949 to 1986 (that is to say where- (i) the parties are within the prohibited degrees of relationship; (ii) either party is under the age of 16; or (iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage);
(b) that at the time of the marriage either party was already lawfully married;
(c) that the parties are not respectively male and female;
(d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales.

Referring to s.11(c) in which the parties must be male and female, a person can apply for a Gender Recognition Certificate where they wish to legally change gender.

Gender Recognition Act 2004 s.9(1) – “Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is female gender, the person’s sex becomes that of a woman).”

Gender Recognition Act 2004 s.2(1) – “(a) has or has had gender dsyphoria, (b) has lived in the acquired gender throughout the period of two years ending with the date on which the application is made, (c) intends to continue to live in the acquired gender until death.”

Grounds on which a marriage is voidable: set out in the Matrimonial Causes Act 1973 s.12.
(a) That the marriage has not been consummated owing to the incapacity of either party to consummate it;
(b) That the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it;
(c) That either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;
(d) That at the time of the marriage either party, though capable of giving a valid consent, was suffering from mental disorder within the meaning of the Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage;
(e) That at the time of the marriage the respondent was suffering from venereal disease in a communicable form;
(f) That at the time of the marriage the respondent was pregnant by some person other than the petitioner.


When considering lack of consent, this may be due to duress. Hirani v Hirani suggested that the test for duress should be based on the effect of the threat rather than the nature of the threat. In other words, the threats can be of any kind, but it must be shown that ‘the threats, pressure or whatever it is, is such as to destroy the reality of the consent and overbear the will of the individual.’ P v R (Forced Marriage) followed Hirani and held that severe emotional pressure could be such as to mean that there was no genuine consent to marry.

Approbation: Matrimonial Causes Act 1973 s.13(1) – “The court shall not... grant a decree of nullity on the ground that a marriage is voidable if the respondent satisfies the court- (a) that the petitioner, with the knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and (b) that it would be unjust to the respondent to grant the decree.”

NB: a decree of nullity will normally not succeed unless bought within three years of the date of marriage (unless the petitioner suffered from some mental disorder).

Effects of a decree of nullity: Matrimonial Causes Act 1973 s.16 – “A decree of nullity granted after 31st July 1971 in respect of a voidable marriage shall operate to annul the marriage only as respects any time after the decree has been made absolute, and the marriage shall, notwithstanding the decree, be treated as if it had existed up to that time.”

Reform of nullity: in 2008 only 200 annulments were granted out of the 331 petitions. The tiny numbers involved have raised the question as to whether we need such complex law on the area. There have been some debates over whether the concept of voidable marriage should be abolished. The Law Commission argued that voidable marriage should be retained as to some couples, it’s very important that annulment end their marriage and not divorce; e.g. for religious reasons.

Forced marriages: defined as where one person forces another to enter into a marriage without their ‘full and free consent’. Article 12 ECHR protects the right to marry; this includes the right not to be forced into a marriage against your will. A marriage of this type can be annulled on the grounds of no consent but forced marriages do not have their own legislation governing validity. In Re B; RB v FB and MA [2008] 2 FLR 1624 Hogg J described forced marriage as ‘abusive’.

It should be emphasised that there are no legal objections to arranged marriage, where the parents of the parties have a choice in who their child marries.

The Forced Marriage (Civil Protection) Act 2007 enables the court to make ‘forced marriage protection orders’ (FMPOs)

(Notes based on the Herring, Family Law text book)