Law-law and morals-balancing conflicting interests

Question 1

What are interests?

Answer 1

Everybody would want to be sure their interests are protected by law, and that the law achieves this through various sets of rules. Another way of describing an interest it to call it a right. So in this context, it is perhaps simpler to think of law as a set of mutual rights and obligations than merely as a body of rules

Question 2

How are rights protected by law?

Answer 2

In this way, the law protects a person’s rights by imposing a corresponding duty on the other party so that they are bound in law not to interfere with those rights. Inevitably, the interests of one individual and the interests of the majority may sometimes fall into conflict

Question 3

How are rights/interests seen in every area of law?

Answer 3

In every area of law, the principle of fault or blame is a concept that is commonly applied in determining whether in fact a person has interfered wrongly with another person’s rights or interests

Question 4

Why are interests/rights not always so easy to define?

Answer 4

The law is obviously full of specific rights, for instance rights of ownership. However, while it may appear at first glance to point to a particular object or even land as being someone’s property, it is not as straightforward as it actually looks. Undergraduate students of Land Law and of Trusts would recognise the problem instantly

Question 5

How would a right or interest in property be demonstrated?

Answer 5

Demonstrating it would often involve arguing over an abstract concept of ownership in a court of law, with the court demanding concrete proof/evidence of ownership. In ownership of land, or rights such as debts, actual ownership may be shared and this may not mean half each. In case of land brought through mortgage, both the house owner and the building society in effect own the property at the same time, up to the value of the mortgage. As a result of this, the building society is able to sell the property and take back the loan if the house owner defaults on payment

Question 6

How can a legal right or interest be proved?

Answer 6

The only way we can often prove a legal right or interest is by being able to enforce it. An obvious example of this is in a contract where we have an interest in the property to be passed. If the contract is not performed we may sometimes be able to enforce performance, but most often we only have a right to compensation for the loss of the bargain we made

Question 7

How do rights and duties correspond?

Answer 7

The way that the law works is that where an individual has an enforceable right, this then imposes on other parties to acknowledge that right, and so there is a duty

Question 8

How do rights and duties correspond in criminal law?

Answer 8

In criminal law each offence carries with it a right not to be the victim of the offence. The criminal law imposes sanctions on those people who in effect fail in their duty and infringe those rights. The natural right to life means that there is a duty not to kill. The right to personal safety carries with it the corresponding duty not to assault, batter, wound or commit a grievous bodily harm which would be contrary to the offences under the Offences Against the Person Act 1861. It follows easily from this that the various offences under the Theft Acts including theft itself, but also robbery, burglary and the fraud offences, are based on rights to personal property and a corresponding duty to respect it

Question 9

How do rights and duties correspond in tort?

Answer 9

Some similar rights and duties exist in tort. These rights are recognised by the law and duties imposed by law. The right to civil liberties is represented in trespass to the person, and also in defamation and other torts protecting reputation. Negligences is a tort that we all know is based on proving duty of care, so our rights are interfered with when the defendant fails to prevent his negligence acts or omissions which he should contemplate will lead to foreseeable harm

Question 10

How do rights and duties correspond in other areas of law?

Answer 10

Marriage is a voluntary union. However, the relationship gives rise to rights and duties which are reflected in the five facts that will prove irretrievable breakdown of the marriage justifying the granting of a petition for divorce. Right to faithful behaviour from our partner and adultery is breach of that duty that goes with that right. Right and a duty to live together, so desertion may justify divorce after a certain period. Neither are we bound to accept unreasonable behaviour from our partners, so domestic violence may be clear evidence of a breach of our duty, although much less than that may be accepted by the courts as behaviour justifying divorce

Question 11

What is an example how sometimes a right is actually only gained following performance of they duty?

Answer 11

Examples of this would include the paying of National Insurance contributions with then entitle us to claim contributory benefits, or the two years’ service that in many cases is needed before we can exercise various employment rights (such as the right not to be unfairly dismissed)

Question 12

Why do rights often involve both power and choice?

Answer 12

People who own property, whether personal property or land, have the right to sell it, but they also have power in that they have the choice whether to sell or not People whose rights have been infringed also have the power to sue, but may choose not to do so if an alternative is preferable

Question 13

Why does, in some cases, what appear to be a right not actually attach protection?

Answer 13

Certain rights have only limited protection because to exercise the right may interfere with another person’s interests. A good example of a conflict between rights and freedoms is the right to life of an unborn child. A foetus has no legal protection so cannot be represented in legal action. This was firmly stated in Paton v The UK. Also the status of a foetus was considered in the criminal case of Attorney-General’s Reference No3

Question 14

What happened in the case of Paton v the UK?

Answer 14

A father of an unborn child was not allowed to prevent its abortion. The logic, while it may seem unfair to the unborn child, is inescapable; to prevent the abortion would be to interfere with the rights of the mother over her own body

Question 15

What happened in Attorney-General’s Reference No3?

Answer 15

Defendant stabbed girlfriend who was 23 weeks pregnant. The stab wound caused premature birth seven weeks after the stabbing. The baby was born alive but died at 4 months as a result of the premature birth. Defendant was charged with murder of the child. At the trial the judge directed the jury that a foetus was not a ‘reasonable creature in being’ and so the defendant could not in law be guilty of either the murder or manslaughter of the child. Defendant was acquitted. Attorney-General then referred the case on a point of law as to whether a foetus could be a ‘reasonable creature in being’. House of Lords held that the judge’s direction was correct. A foetus was not a ‘reasonable creature in being’. However the House of Lords held that if a child was born then died of injuries caused while it was in the womb, the attacker could be guilty of murder or manslaughter

Question 16

Why is it important to try to balance competing rights and interests?

Answer 16

It can often prove impossible to exercise a right or interest without it infringing another person’s right

Question 17

how are competing rights and interests balanced in tort?

Answer 17

In tort, an obvious example can be found in the law of nuisance involving neighbouring landowners. Here a landowner may bring an action for an indirect interference with his land. However, the action may fail and the landowner may be unable to enforce his right to quiet enjoyment of the land because the locality is one where the nuisance is allowed as stated in obiter in St Helens Smelting v Tipping. It may be that it is not in the public interest to allow the claim, as in Miller v Jackson, where an injunction would have prevented the playing of cricket

Question 18

how are competing rights and interests balanced in criminal law?

Answer 18

There are many situations in criminal law where it is necessary to consider the competing rights. Any offence requiring mens rea means the defendant will be acquitted if he did not have the necessary mens rea. This is so even though he did the act required for the offence. Here the rights of the victim give way to rights of the defendant not to be convicted in the absence of mens rea. This balancing of interests was discussed in O’Grady

Question 19

What happened in the case of O’Grady?

Answer 19

Defendant and victim had been drinking heavily. Defendant claimed he woke to find victim hitting him with a piece of glass. Defendant picked up an ashtray, hit the victim and killed him. He was convicted on manslaughter. Court of Appeal upheld the conviction as drunken mistake could not provide a defence

Question 20

What did Lord Lane point out in the case of O’Grady?

Answer 20

‘There are two competing interests. On the one hand the interest of the defendant who has only aced according to what he believed to be necessary to protect himself, on the other hand that of the public in general and the victim in particular who, probably through no fault of his own, has been injured or perhaps killed because of the defendant’s drunken mistake. Reason recoils from the conclusion that in such circumstances a defendant is entitled to leave the court without a stain on his character’

Question 21

Since the case of O’Grady, how has the Government responded?

Answer 21

The Government has since given statutory force to this decision. Section 76(5) Criminal Justice and Immigration Act 2008 makes it clear that a defendant cannot rely on any mistaken belief if that mistake is made due to the defendant being voluntarily intoxicated. This gives priority to the victim’s rights above those of the defendant

Question 22

How does the criminal justice system balance competing rights and interests?

Answer 22

The trial process in criminal cases, especially where vulnerable victims are concerned, tries to balance the rights of the defendant and the right of the witness. Witnesses are now allowed to give evidence by video-link, or from behind a screen, so they don’t have to face the defendant in the court room. In some extreme cases, witness’ identities are kept secret where there is a real risk of retaliation against them by the defendant’s associates

Question 23

Why do individual’s rights sometimes have to be sacrificed?

Answer 23

Sometimes an individual’s rights or interests are sacrificed for the greater public good. Examples include the defence of statutory authority in tort, strict liability where there is no requirement to prove fault, the defences of absolute privilege and fair comment in defamation actions, the changes to the right to remain silent after caution by a police officer etc

Question 24

What is an area in criminal law where public interest has been given priority over the defendant’s interests?

Answer 24

The defence of const. The courts have ruled in a number of cases that consent to an assault which causes injury cannot be a defence. This was a key point in Brown where the rights of the defendants were overridden by the rights of society. However, in Wilson, it was held consent to an injury was allowed as a defence. The court considered the private acts between husband and wife were not against the public interest

Question 25

How are individual rights and public interests balanced?

Answer 25

By the English legal system, the crown prosecution service, bail, and sentencing

Question 26

How does the English legal system balance individual rights and public interests?

Answer 26

The legal system itself is always trying to balance rights. In criminal law this is seen throughout the process of the criminal justice system

Question 27

How does the crown prosecution service balance individual rights and public interests?

Answer 27

The decision of whether to prosecute or not may involve consideration of the public interest. This is recognised by the Crown Prosecution Service’s Code of Practice. Two points in paragraph 3.3 of the Code are important: No-one should be prosecuted if there is insufficient evidence to justify it, and there are instances where it is not in the public interest to prosecute, although the victim of the offence may well feel aggrieved by the decision not to prosecute

Question 28

How does bail balance individual rights and public interests?

Answer 28

Granting bail is key area where the accused’s right to bail have to be balanced against the protection of public in general and the victim in particular. The accused is presumed innocent until proven guilty, so should not be held in custody while awaiting trial. However, there may be a risk to the public or to a particular person if the accused is given his liberty

Question 29

How does sentencing balance individual rights and public interests?

Answer 29

The aims of sentencing are set out in s142 Criminal Justice Act 2003. Three of them are: punishment of offenders, reform and rehabilitation of offenders, and protection of public. These aims require the sentencing court to balance the offender’s rights against those of society. Should the offender be given a community-based sentence in an effort to rehabilitate him? Or does public protection require that a long term of imprisonment be imposed?