Contents

Brown v Board of Education of Topeka Donoghue v Stevenson Airedale NHS Trust v Tony Bland Dudley and Stephens Michael Charman v Orion Publishing Regina v R The Trial of Saddam Hussein

Brown v Board of Education of Topeka

An unequal situation
Race relations in the U.S. had been dominated by racial segregation. This policy had been endorsed in 1896 by the United States Supreme Court case of Plessy v. Ferguson, which held that as long as the separate facilities for the separate races were "equal," the segregation did not violate the Fourteenth Amendment. Racial segregation in education varied widely from the 17 states that required racial segregation to the 16 that prohibited it.

Fighting the case

In 1951, a class action suit was filed against the Board of Education of the City of Topeka, Kansas in the U.S. District Court for the District of Kansas. The plaintiffs were thirteen Topeka parents on behalf of their twenty children. The suit called for the school district to reverse its policy of racial segregation. Separate elementary schools were operated by the Topeka Board of Education under an 1879 Kansas law, which permitted (but did not require) districts to maintain separate elementary school facilities for black and white students in twelve communities with populations over 15,000. The plaintiffs in Brown asserted that the system of racial separation, while claiming to provide separate but relatively equal treatment of both white and black Americans, instead offered inferior accommodations, services, and treatment for black Americans. The named plaintiff, Oliver L. Brown was a parent, a welder in the shops of the Santa Fe Railroad. Brown's daughter Linda had to walk twenty one blocks to her school bus stop to ride to Monroe Elementary, her segregated black school one mile (1.6 km) away, while Sumner Elementary, a white school, was only seven blocks from her house. Brown and the other parents attempted to enroll their children in the closest neighborhood school in the fall of 1951. They were each refused enrollment and directed to the segregated schools.

Overturning the law

The District Court ruled in favor of the Board of Education, citing the U.S. Supreme Court precedent set in Plessy v. Ferguson which had upheld a state law requiring "separate but equal" segregated facilities for blacks and whites in railway cars. The three-judge District Court found that segregation in public education has a detrimental effect upon black children, but denied help on the ground that the black and white schools in Topeka were substantially equal with respect to buildings, transportation, curricular, and educational qualifications of teachers. The case was taken to the United States Supreme Court who, in a landmark decision which overturned the earlier rulings, declared that state laws that established separate public schools for black and white students denied black children equal educational opportunities. Handed down on May 17, 1954, the unanimous (9-0) decision stated that "separate educational facilities are inherently unequal." As a result, racial segregation was ruled a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. This victory paved the way for integration and the civil rights movement.

Donoghue v Stevenson
On Sunday 26th August 1928 May Donoghue sat in a caf with a friend. The friend ordered and paid for some ginger beer, which came in a bottle made from dark opaque glass. Donoghue drank some of the contents then her friend proceeded to pour the remainder of the contents of the bottle into the tumbler when a snail, which was beginning to rot, floated out of the bottle. As a result of the sickening sight of the snail, and the impurities in the ginger-beer, Donoghue suffered from shock and severe gastro-enteritis. She argued that the ginger-beer was manufactured by the defendant (Stevenson) to be sold as a drink to the public; that it was bottled with a label bearing his name; and that the bottles were then sealed with a metal cap by the defendant. Donoghues lawyer, Walter Leechman, claimed that it was the duty of the defendant to provide a system of working his business which would not allow snails to get into ginger-beer bottles, and that it was also his duty to provide a system of inspection of the bottles before the ginger-beer was filled into them, and that he had failed in both these duties and had so caused the accident.

The neighbour principle

The case went all the way to the House of Lords where the Law Lords ruled for Donoghue. It was the speech of Lord Atkins that was most influential. He said : ``You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.'' This `neighbour principle' was, and to a certain extent still is, the foundation of the modern law of negligence.

Airedale NHS trust v Tony Bland

The tragedy
On the 15th of April 1989 Liverpool was playing Nottingham Forest for an FA Cup semi-final at Sheffield Wednesday's Hillsborough football ground. Traffic delays had led to many Liverpool fans arriving late and in the moments prior to kick off there were several thousand fans outside the turnstiles. As a bottleneck developed outside the ground, police, fearing a crush, opened a set of gates leading in to a narrow tunnel at the rear of the terrace. Fans streamed down the tunnel into the already crowded central section of the terrace. At the front of the terrace fans were pushed and crushed against steel fencing installed to prevent hooliganism. 96 people died as a result of the crush at Hillsborough with 766 injured.

Tonys case a Persistent Vegetative State

Tony Bland, an 18 year old Liverpool supporter, suffered crushed ribs and two punctured lungs. This interrupted the supply of oxygen to his brain which caused catastrophic and irreversible damage, and left him in a Persistent Vegetative State. He could not see, hear or feel anything. However the brain stem, which controls the reflexive functions of the body like heartbeat, breathing and digestion, continued to operate. In the eyes of the medical world and of the law a person is not clinically dead so long as the brain stem is still functioning. In order to keep Tony Bland alive in his present condition, he had to be fed with a tube. All medical opinion agreed that Tony Bland would never recover from his present condition, but that he would continue to live for many years as long as he was provided with medical treatment. The doctors in charge of Tony Bland formed the view, which was supported by his parents, that no useful purpose was to be served by continuing that medical care. They decided that it was appropriate to stop the artificial feeding and other measures aimed at prolonging his existence. In short there was no benefit to Tony Bland in keeping him alive. Since, however, there were doubts as to whether this might constitute a criminal offence, the Airedale NHS Trust, who were responsible for Bland, asked the High Courts of Justice for advice.

The ruling
The judges debated the moral and ethical issues raised by the case but in the end they agreed that given the circumstances: it is perfectly reasonable for the responsible doctors to conclude that there is no affirmative benefit to Anthony Bland in continuing the invasive medical procedures necessary to sustain his life. Having so concluded, they are neither entitled nor under a duty to continue such medical care. Therefore they will not be guilty of murder if they discontinue such care. Treatment was stopped and Tony Bland died on March 3rd 1993. The Hillsborough disaster and the following enquiry resulted in the conversion of many football stadiums to all-seater and the removal of barriers at the front of stands.

Dudley and Stephens

On July the 5th, 1884, a yacht crew were cast away in a storm 1600 miles from the Cape of Good Hope. Thomas Dudley, Edward Stephens, a man known as Brooks, and teenager Richard Parker managed to escape on a smaller boat. They had no water and no food except two 11b. tins of turnips, which helped them through the first three days. On the fourth day they caught a small turtle, which they ate for a few days. They had no fresh water, except when they managed to catch rain in their oilskin capes.

A gruesome suggestion
On the eighteenth day, when they had been seven days without food and five without water, the men discussed what should be done if no help came, and suggested that someone should be sacrificed to save the rest. Brooks disagreed and Richard, the teenager, was not consulted. On the 24th of July, Dudley proposed to Stephens and Brooks that they should draw straws to see who should be put to death, but Brooks refused to join in, and the boy was not consulted. On the 25th of July, with no rescue in sight, Dudley said that the boy had better be killed. Stephens agreed to the act, but Brooks still disagreed. Richard Parker was then lying at the bottom of the boat quite helpless, and extremely weakened by famine. Dudley, with the assent of Stephens, went to the boy and put a knife into his throat, killing him then and there. The three men fed upon the body and blood of the boy for four days. Four days later the boat was picked up by a passing ship, and the prisoners were rescued, still alive, but in weak and confused. The ship reached the port of Falmouth, and the three men were committed for trial at Exeter.

An unfair ruling?
The defence argued that if the men had not fed upon the body of the boy they would probably have died of famine and that the boy, being in a much weaker condition, was likely to have died before them. The judges decided that it is not correct to say that there is any absolute or unqualified necessity to preserve one's life. The law is that where a private person takes the life of another person, his act can only be justified on the grounds of self-defence. This principle had been extended to include the case of a man killing another to prevent him from committing a great crime upon a third person, but the principle had no application to this case. In this case, the prisoners were not protecting themselves against Parker, but from their situation in general. Therefore the killing of Richard Parker was felony and murder, and that Dudley and Stephens were both guilty and were sentenced to death.

Michael Charman v Orion Publishing

What happened?
Michael Charman was a former detective constable in the Metropolitan Police force who claimed that he had been defamed in a book called "Bent Coppers" written by Graeme McLagan and published by Orion Books Ltd. The book claimed that Charman, and his informant Geoffrey Brennan, fabricated stories about money laundering and gun running in order to conceal their own involvement in criminal activity. Brennan had also previously accused Charman of receiving payment in exchange for his protection. McLagans book detailed how Brennan had given Charman up to 50,000 to protect him while he carried out a substantial fraud. Police executed search warrants at Charmans home, and he was suspended from duty in 1997. Chapman argued that the book libelled him by suggesting there were "cogent grounds" for suspecting him of being involved in police corruption.

Judgement: be responsible!
The appeal court judges ruled in favour of Orion Publishing. They said that although the allegations about Mr Charman could not be proved, Mr McLagan, a former BBC home affairs correspondent, had taken steps to verify the story and that as a result of his honesty, his expertise, his research and his thorough evaluation of a mass of material, the book qualified as responsible journalism. Essentially the High Court decided that if the subject matter was of public interest and the steps taken to gather and publish the information was responsible and fair than this constituted responsible journalism. This ruling has interesting implications for investigative journalism because it accepts that even if a journalistss claim cannot be proven, as long as the writing is responsible then the journalist can publish their findings.

Regina v R
In 1736 Chief Justice Hale ruled that the husband cannot be guilty of rape committed by himself upon his lawful wife, on the grounds that marriage itself counts as consent for as long as the couple are together. For many years there was no challenge to Hales ruling until R v Clarke in 1949, one of the first cases that allowed the husband to be charged with rape. The court decided that Chief Justice Hales exemption could not be held in this case, because the wife had already obtained a non-cohabitation order from a magistrates court. The non-cohabitation order meant that she had withdrawn her consent. There are at least four recorded instances of a husband successfully relying on the exemption as a defense to the charge of rape in England and Wales. The first was R v Miller (1954), where it was argued that the wife had not revoked her consent despite having presented a divorce petition. The argument defense was not upheld and the husband was instead convicted of indecent assault.

The crucial case

In Regina v R (1991) the husband had been charged with rape upon his wife and actual bodily harm (ABH). The wife had left to live with her parents but there was no formal separation, although the wife had consulted solicitors. The prosecution claimed that the husband had broken into her parents home and raped her. The defence argued that there was no such offence, because of the marriage exemption. The case was appealed until it reached the House of Lords. The judgment was given by Lord Keith of Kinkel who said that the contortions being performed in the lower courts in order to evade the marital rights exemption demonstrated how absurd the rule was. He said that, the marital rights exemption was a common law fiction which had never been a true rule of English law. Kinkel concluded that the fiction of implied consent has no useful purpose to serve today in the law of rape Rs appeal was accordingly dismissed, and he was convicted of the rape of his wife.

The trial of Saddam Hussein

In March 2003 The United States, backed by British forces and smaller contingents from Australia, Poland and Denmark invaded Iraq. Their declared aims were "to disarm Iraq of weapons of mass destruction, to end Saddam Hussein's support for terrorism, and to free the Iraqi people." Iraq fell in April 2003, and Hussein was captured on 13th December. He remained in US custody in Baghdad until he was brought to trial on 19th October 2005.

How should he be tried?

There were discussions as to whether the Iraqi president should be tried in front of an international court but the US government had announced before the fall of Baghdad that it wanted any trial of Hussein to be in Iraq. The trial began before the Iraqi Special Tribunal, set up by the U.S.-appointed Iraqi Governing Council. Hussein and seven other defendants were tried for crimes against humanity with regard to events that took place after a failed assassination attempt in Dujail in 1982 by members of the Islamic Dawa Party. The second trial dealt with the genocide of the Kurds of Northern Iraq.

A difficult trial
Saddam Hussein claimed that the tribunal were not immune from US interference, and so was not legitimate. He pleaded not guilty. Shortly after the trial began two lawyers representing the defendants were killed. In January the chief judge resigned after complaining of government interference. On 21st June 2006, Hussein's chief defence lawyer, Khamis al-Obeidi, was assassinated. Despite the interference, Hussein was found guilty, sentenced to death and executed on 30 December 2006.

Was it fair?
International human rights groups have expressed concern about the legal process surrounding the trial. The US set up the court, funded it and provided the security. The US, and to a lesser extent the UK government, had lawyers working openly and behind the scenes from the beginning, leading some to question the extent of legal consultation before the tribunal's creation. Further the tribunal did not have to prove guilt beyond reasonable doubt. Instead, the Iraqi tribunal only had to be "satisfied" of guilt. Questions have also been raised about the quality of some of the prosecution evidence and testimony, and there are allegations that some witnesses had been coached by prosecutors. There is little doubt that Saddam Hussein was a brutal tyrant and that he was indeed guilty as charged however the concerns expressed about the type of trials he was subjected to raise serious issues about international law and the prosecution of people who commit crimes against humanity.