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Published: Fri, 02 Feb 2018

law-making process

Disasters occurred in quick succession in the form of the Zebrugge disaster in March 1987 claiming 193 lives, the Kings Cross Underground Station fire in November 1988, which claimed the lives of 31 people followed by the Piper Oil disaster in July 1988 causing 167 deaths and the Clapham Rail crash in December 1988 resulting in 35 deaths and over 500 injuries. In light of the scale and frequency of these “disasters” public perception was changing, and it was no longer acceptable that corporate failings were seen to be an “unfortunate accident”. Whilst prosecutions under the Health and Safety at Work Act 1974 (HASAW Act) are deemed as criminal offences, the monetary fines at this time were criticised as being too low to effect a deterrent, and the publicity generated failed to address the seriousness of the crime. To illustrate this point, one only needs to look at the case of Grimshaw v. Ford Motor Company (1 19 Cal.App.3d 757) in which Ford decided to compare the cost of an $11 repair against the monetary value of a human life on the basis of a cost-benefit analysis. A design flaw was noted in the position and function of a live electrical indicator circuit on the rear left hand side of the car. If the vehicle was involved in a rear end collision and the integrity of the fuel tank compromised, the interaction of the live electrical circuit and the fuel would result in a vehicle fire. Ford decided it was cheaper to pay compensatory damages to individuals rather than recall all the cars affected by the flaw. The public wished greater accountability within Corporations and more punitive sanctions to prevent reoccurrences. A case that was pivotal in establishing corporate responsibility and legal reform is illustrated below:

On the evening of 6 March 1987 the P & O European Ferries “MS Herald of Free Enterprise” set sail on its routine voyage from the Belgium Port of Zebrugge to the English Port of Dover. Within 20 minutes of sailing the ship had capsized with the resultant loss of 193 lives. An immediate public court of inquiry headed by Lord Justice Sir Barry Sheen found that the direct cause of the sinking was a failure to close the bow doors. In October 1987 during the Coroner’s Inquest the jury returned verdicts of unlawful killing. The immediate legislative response to this disaster was the creation of a new statutory offence under Section 31 of the Maritime and Shipping Act 1988, which stated that those “with responsibility for the safe operation of a ship may be criminally liable for the ships unsafe operation”. This response proved to be inadequate due to its restrictive drafting, only covering non-UK ships if they came within the territorial waters of the UK due to weather or unavoidable circumstances.

In June 1989 the Director of Public Prosecutions (DPP) launched prosecutions against the company and seven individuals. The subsequent case, R v P & O European Ferries (Dover) Ltd (1991) 93 Cr App R 72 trial collapsed after Turner J directed the jury to acquit the company and the five most senior individual defendants. The principal grounds for this decision was that, in order to convict the company of manslaughter, individual defendants who could be “identified” within the company would have themselves to be guilty of manslaughter; and since there was on the facts insufficient evidence to convict any such individual defendant, the case against the company also had to fail. This is also known as the “identification doctrine”, and in cases of gross negligence manslaughter (also known as involuntary manslaughter) has proved to be significant barrier to successful prosecution. Corollary to the failure of the identification principle, the requisite actus reus, (the guilty act) and the mens rea, (the guilty mind) cannot be established. The “controlling mind” of the corporation could not be identified, and where safety was involved, responsibility was abrogated. This case, whilst failing to secure a conviction, developed the law to the possibility for a company to be indicted with manslaughter, an offence normally only capable of being committed by a person and not by a corporate body. With smaller companies, finding a “controlling mind” was less of an obstacle. In R v Kite and OLL Ltd (1994) (unreported), a company was successfully convicted for corporate manslaughter in respect of four teenage students who drowned on a leisure canoeing trip. In R v HM Coroner for East Kent ex parte Spooner (1987) 88 Cr App R 10, Lord Justice Bingham tentatively opined that an indictment could lie against a company as well as an individual. The Law Commission, an independent body set up by Parliament to review and recommend reform in law in England and Wales, produced a report in 1996 entitled “Legislating the Criminal Code – Involuntary Manslaughter”. The Government issued a consultation document in 2000 proposing reforms to implement the Law Commissions Report. Despite representations from the charity “Disaster Action”, a charity formed following the 1987 Zebrugge ferry disaster, public pressure through media sources and a report by the Law Commission, it has taken 20 years to enact new legislation in the form of the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA 2007) which came into effect in April 2008. An organisation guilty of this offence will now be liable to an unlimited fine and may also be subject to a publicity order, requiring the organisation to publicise details of its conviction and fine. The first benchmark case is against Cotswold Geotechnical Holdings, in which an excavation pit collapsed causing a geologists death is due to be heard imminently. This case will be watched closely by numerous interested parties to gauge the effectiveness of this new legislation.

Due to changing societal trends the nuclear family comprising of a married heterosexual couples with two biological children has undergone a paradigm shift. Social constructs in this modern age vary greatly, with increased single parent families, cohabitation and step families. It is of note that there is no legal definition of family and the closest statement in judicial terms describes a family as “what the ordinary man in the street thinks it is”. This loose concept was tested in a recent case of Sefton Holdings v Cairns [1988] 2 FLR 109. The case concerned a Miss Florence Cairns and whether or not she was classed as a statutory tenant under the Rent Act 1977. Miss Cairns, at the age of 23, moved in with the Gamble family at the insistence of the Gambles daughter, Ada Gamble in 1941 following the death of her own parents. She was treated as a family member by the Gambles despite no consanguineous ties existing. The tenancy passed to Ada Gamble, who met the criteria for “family” in compliance with Schedule 1 Part 1 Paragraph 7 of the Rent Act 1977 following the death of her father in 1965. Ada Gamble died in 1986 and Miss Cairns mounted a legal challenge that she was a member of the Gamble family, therefore entitled to continue the tenancy. Whilst Miss Cairns won her case at County Court level, Sefton Holdings PLC appealed the decision. Sefton Holdings PLC successfully appealed as Miss Cairns had failed to establish the distinction between being a member of a family and a member of a household. There was also a distinction drawn between being treated as a member of a family and actually being one.

Marriage linked families in law, and conferred a legal status in both private and public law. The definition of marriage in the UK is based upon the case of Hyde v Hyde {1866) 1 P. & D. 130 in which Lord Penzance stated that marriage is the voluntary union for life of one man and one woman to the exclusion of all others. The Matrimonial Causes Act was initially an Act of Parliament moving litigation from the jurisdiction of the ecclesiastical courts to the civil courts. In 1956 the Royal Commission on Marriage and Divorce reported on proposals for reforms on divorce law. Whilst being split in its decision on the issue of no fault divorce law, this was finally allowed due to “irretrievable breakdown” in the Matrimonial Causes Act 1973.

It is a common myth that there is such a concept as a “common law” husband and wife. This is illustrated by the case of Miss Homsi, whose partner Corporal Brad Tinnion SAS was killed in a hostage release operation in Sierra Leone in September 2000. Despite having a relationship for 7 years and expecting their first child, Miss Homsi was not eligible to a war widow’s pension as she had not legally been married. In 2002 Lord Lester of Herne Hill proposed a Private Members Bill in the form of the Civil Partnership Bill to achieve legal parity for unmarried couples on provision of registration. This Bill was a joint initiative by both the Odysseus Trust, a legal equality organisation and the pressure group Stonewall, a gay rights organisation and sought to enable unmarried couples, both same and opposite sex, living in a mutually supportive relationship to make legal provision for their joint protection. The Bill reached its second reading in the House of Lords and a decision was made to allow the Government the opportunity to conduct an inter-departmental review in relation to civil partnerships and formulate its position on the proposed civil partnership registration scheme pending further consultation. The Civil Partnership Bill became law in December 2005 and is known as the Civil Partnership Act 2004. Whilst addressing legal issues to same sex couples the original intention of the Bill was to grant limited legal recognition to all those, either statute barred or choosing not to get married. The end result has drawn criticism from the Odysseus Trust who are still lobbying the Government for further change due to the revision to exclude heterosexual couples.

Louise Brown was the world’s first baby to be conceived by in vitro fertilisation (IVF) in 1978. This technology raised many moral ethical and legal issues not encountered before. In response to this new form of technology, the Government formed a Committee in 1982, chaired by Dr Mary Warnock to develop principles for the regulation of IVF and embryology. The Committee concluded that the human embryo should be protected, but that research on embryos and IVF would be permissible, given appropriate safeguards. A regulatory authority with the remit of licensing the use in treatment, storage and research of human was recommended. This body would later become the Human Fertilisation and Embryology Authority. The Warnock Report formed much of the subject matter contained within the Human Fertilisation and Embryology Act 1990 (HFEA 1990). After more than a decade in operation, the HFEA 1990 was reviewed by the House of Commons Science and

Technology Committee with its findings being published in 2005. This was followed by a White Paper entitled “Review of the Human Fertilisation and Embryology Act”, within which the Government presented its initial proposals to revise the legislation due to technological advances and recent changes in ethical and societal attitudes. The primary motivation was a series of legal challenges, principally by Mrs Diane Blood. Diane Bloods husband was admitted to hospital suffering from meningitis and whilst on life support, a sample of his semen was extracted. In R v Human Fertilisation and Embryology Authority ex Parte Blood [1997] 2 All ER 687 the ensuing legal challenge was twofold, whether consent was given and also whether a refusal to allow the export of stored sperm for treatment in another EU country infringed Diane Bloods right to obtain medical treatment. It was Diane Bloods contention that oral consent was given prior to her husband’s illness, as they had discussed and consented to posthumous conception. Lord Woolf concluded that written consent, a requirement under Schedule 12 of HFEA 1990, was not given. It was found that under Article 59 and 60 of the EC Treaty that Diane Blood had a directly enforceable right to receive medical treatment in another EU State. In light of the Court of Appeals decision the Human Fertilisation and Embryology Authority (HFEA) granted an export licence for Mrs Blood to be treated in Belgium. Another high profile case was Quintavalle (on behalf of Comment on Reproductive Ethics) v HFEA [2005] UKHL 28. The case centred on six-year-old Zain Hashmi, whose parents wanted a baby with a specific tissue type to help treat his debilitating blood disorder. This case has been dubbed by some as “Saviour Siblings” or “Designer Babies”. Despite opposition from the pressure group Prolife Alliance the five Law Lords ruled unanimously to overrule the earlier Court of Appeal decision and the practice of such tissue typing including Preimplantation Genetic Diagnosis (PGD) could be authorised by the Human Fertilisation and Embryology Authority (HFEA). The end result of the white paper was the introduction of the Human Fertilisation and Embryology Act 2008 which addressed many issues from previous legal cases and included provisions clarifying the scope of legitimate embryo research activities, through to allowing for the recognition of both partners in a same-sex relationship as legal parents of children conceived through the use of donated sperm, eggs or embryos.

In summary, there is a need for continual law reform arising from changing societal attitudes to scientific advancements. The amount of law and the increasing rate at which it is being made has become overwhelming. According to the Home Office, the number of criminal offences is now in excess of 70,000. In a rapidly changing society new laws have to be made to meet new needs and the task of law reform does not befall onto one single organisation. In the preceding case examples, law reform has been undertaken through a variety of means from Bills acceding to Acts of Parliament to judges using the doctrine of precedent to encompass new decisions, whilst Royal Commissions and the Law Commission have examined the need to adapt or enact new legislation. Pressure groups, charities, media sources and public opinion have all had an influence on law reform. Whilst legal reform appears to be effective, criticisms may be made on the speed of reform although expediting this complex process may result in unwanted legal anomalies.

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