Essay: Questions and answers on Barnett v Chelsea And Kensington Hospital Management Committee

(1) There were two legal questions to decide in this case. What were they? Why do we need to be able to distinguish the questions of law from the questions of fact when reading cases?
The two legal questions to decide in the case of Barnett v Chelsea And Kensington Hospital Management Committee, were: whether the medical casualty officer was negligent, this is an example of a question of fact. A question of fact is one which needs reference to evidence and facts in order to reach a verdict. The second legal question in this case is whether that negligence was the cause of the death of the deceased, this is an example of a question of law. A question of law is a question in which the application of legal principles is necessary to reach a verdict.
It is important that we are able to distinguish between questions of fact and questions of law when reading cases because of the use of precedent in the common law system. If a court was to pass verdict upon a case based upon a precedent in which was on a question of fact, then this would cause an unjust verdict to be present. Another reason that it is important to be able to distinguish between a question of law and a question of fact is that appeals on fact will not be legible in some courts and therefore, the courts need to be able to distinguish between both, in order to grant or decline an appeal.
(2) In his judgment, Nield J referred to what Lord Denning said in Cassidy v Ministry of Defence. He then went on to use that information for the case he was deciding. Did Nield J apply or distinguish Cassidy? How do you know?
In law, to distinguish a case means a court decides the legal reasoning of precedent does not wholly apply because the facts are different between the two cases . If a case is different then, the rule of precedent should not apply as it would be unfair to base the verdict of a case upon another which is based around different facts. Whilst to apply a case in law means a court decides the legal reasoning of precedent wholly applies because the facts of the two cases are closely matched, this would therefore allow for a just verdict as the facts of the case are similar and it is plausible that the verdict would also be similar. In the case of Barnett v Chelsea And Kensington Hospital Management Committee it is clear that Nield J distinguished as he states, “Here the problem is different”.
(3) Nield J also looked at an extract from Winfield on Torts. Was he bound to follow the information he read here? Explain and define the concept of a binding precedent.
No, Nield J is not bound to follow the information he read in Winfield on Torts, this is because an extract from a book does not satisfy the “ratio decidendi” – the rule of law on which a judicial decision is based – and so this cannot be used as precedent.
English law is based upon a doctrine called binding precedent. This is when judges are not necessarily able to make their own decisions in a case due to the decisions reached in previous cases by other judges. Two facts are necessary when determining whether a precedent is binding, these are: The position of the court in the hierarchy of England and Wales and whether the facts of the current case are within scope of the previous decisions.
(4) It was said that the onus of proof remains on the plaintiff (now called the Claimant). What is the standard of proof in civil cases and how does it differ from the standard of proof in criminal cases? Why is there a different?
The standard of proof in civil cases is 51% or higher. This is typically to prove that it is “more than likely” that the defendant committed the wrong doing. This is different to the standard of proof necessary for a criminal case which is 99% and described as “beyond reasonable doubt”. The standard is much higher in criminal cases, this is because the consequences of criminal convictions are much more severe than those in a civil case. For example, the punishment for a civil wrong-doing would be the use of damages. This is a payment in the form of compensation to the claimant in order to restore them to the position they were at before the wrong-doing. In a criminal case, the punishments can range from community sentences in which the defendant would have to voluntarily work for a specific amount of time, up to imprisonment which can stretch to a total sentence of life.
(5) Identify which court this case was heard in. What would have happened if Mrs Barnett wanted to appeal the outcome (in accordance with today’s rules)?
This case was heard in the High Court – Queen’s Bench Division. If Mrs Barnett wanted to appeal this verdict then the first court, she would escalate this to would be the Court of Appeal – Civil Division. If a further appeal was to take place, this would be heard in the Supreme Court, however in this case this would have to be done on a point of law and cannot be for any other reason. In rare situations, a case can escalate straight to the Supreme Court from the High Court. This is typically when the case is deemed in public interest.
In the case of Wainwright v United Kingdom (2006) 22 BHRC 287, the European Court of Human Rights had to decide whether two people’s Article 8 Rights had been breached by the Home Office. Did the ECHR find a breach? How did they justify their findings?
The European Convention on Human Rights is an international convention which protects the human rights and political freedoms of all of those who are governed by it, In Europe.
In the case of Wainwright v United Kingdom, the applicants are the mother and handicapped brother of a prisoner. They attended HMP Leeds to visit their relative but were unaware of the fact that the prison officials had given order that all of the prisoner’s visitors are to be strip-searched as he was suspected of using drugs within the prison. The applicants were told that if they did not agree to the strip-search then they would be denied their visit. They reluctantly agreed to the searches and were not asked to sign any consent forms once the search was completed. In the first instance the applicants were awarded damages. However, this was appealed by the Home Office, in the Court of Appeal and granted. At this stage the applicants escalated the case to the European Court of Human Rights resulting in a verdict which deemed that Article 8 of the European Convention of Human Rights had been breached. It is said that Article 8 was engaged because, they stated that they were “visiting a member of their family, the first applicant’s son and the second applicant’s half-brother and emphasised the importance of the visiting regime in prison for maintaining family links” .
One possible ethical approach is the utilitarian approach . This is when the action which results in the greatest happiness for the greatest number of people is chosen. In the case of Wainwright v United Kingdom, it can be argued that the levels of discomfort, stress and following medical illness suffered by the applicants far outweighs the necessity of the search. As the applicants were visibly distressed throughout the search, subsequently resulting in the boy developed PTSD, it can be argued that by not completing the search a greater number of people would have been happier and therefore, the utilitarian approach would have been satisfied. However, this can also be argued for the fact that by completing the search and stopping drugs from potentially getting into the prison is a far better consequence as, had drugs got in people could have been harmed and the human interest of the greatest amount of people, the prison population, should be first priority in the utilitarian approach.
Another ethical approach which could be applied to this case is the character-based approach also known as virtue ethics. This approach highlights that ‘a right act is the action a virtuous person would do in the same circumstances” . In the case of Wainwright v United Kingdom, this could be applied to how both the applicants were visibly distressed and panicked from the searches. Having separated the son, who suffers from disabilities and has the mental age of 12 from his mother, and strip-searching him, whilst inappropriately touching his penis, the prison officers could see he was visibly distressed and knew he did not have an adequate explanation as to what was happening, as he didn’t have a consent form. The prison officers should have applied the character-based approach and used their own moral character to realise that by strip-searching the applicants and causing them to be visibly distressed is not morally acceptable and therefore, should probably be halted.
The final ethical approach which can be applied to the case of Wainwright v United Kingdom, is the rule be ruled based approach . This is when ethics are considered with what people do and not the consequences of their actions as long as the rules (laws) are followed. This can be applied to the case in question as the search can be deemed necessary as it is highlighted in the rules of the prison. Therefore, both parties have to be involved in the search in order to follow the internal procedures set out by the prison.
The ECHR decided that there was a breach of Article 8. They stated that the prison officers conducted the search with “sloppiness” . This was shown by the failure to provide the applicants with the necessary explanation as to why the search was going to be conducted and also as to what it would consist of. This ultimately led to confusion for the applicants and subsequently the distress and suffering highlighted in the case. Also, the fact that the curtains were left open when strip-searching the applicants is the fault of the prison officers and should not have been necessarily requested by the applicants, this is expected to be complete by the officers in order to retain as much privacy as possible for all those involved. They also held that they were “not satisfied that the searches were proportionate to that legitimate aim” as they did not adequately protect the dignity of those being searched by allowing one applicant to be touched inappropriately on the penis and both to visibly suffer whilst the search was being conducted. As a result of the points highlighted above, the ECHR decided that there was a breach of Article 8.
I agree with the decision of the ECHR in that there was a breach of Article 8. This was highlighted by the fact the prison officers deviated from necessary procedures, having touched one applicant in an inappropriate area and caused visible and mental distress to both. Also, the blinds should have been closed initially before the search was conducted to protect the applicants however, this did not happen and therefore a breach is clear. Finally, the consent forms were vital in this search as this would have shown an understanding from both parties as to what should have happened and the correct procedures necessary. However, this was also not complete and therefore this supports my decision.