r v emmett 1999 case summary r v emmett 1999 case summary

Evidence during the trial suggested a possibility of manslaughter, but neither the defence nor prosecution proposed the alternate verdict. The more modern authorities involving the transmission of psychological conditions and in other sexual matters, reject the notion that consent can be a defence to anything more than a trivial injury. The majority, who found the conduct vile and disgusting, thought the case was about violence being done, which they thought had nothing to do with sex, she says. He notes the court of appeals ruling in 2019 in the case of Brendan McCarthy, the tattooist known as Dr Evil. R v Emmett, [1999] EWCA Crim 1710). A majority ruling in the House of Lords said the fact that the men had consented to the acts, which included inserting fish hooks through the penis and nailing foreskin and scrotum to a board, provided no defence. IMPORTANT:This site reports and summarizes cases. .Cited Meachen, Regina v CACD 20-Oct-2006 The appellant appealed his conviction for anal rape. He had neither. . Silence in these circumstances is incongruous with honesty, or with a genuine belief that there is an informed consent. Court of Appeal 22 CRNZ 568 568 R v LEE Court of Appeal (CA437/04) 5 April 2005; Anderson P, McGrath, Glazebrook, 7 April 2006 Hammond, William Young JJ Criminal procedure Appeals Extension of time Witnesses were Church members and Korean nationals Principal witnesses had returned to Korea Overall test is the interests of justice R v Knight approved Crimes Act 1961 . In R v Coney (1882) 8 QBD 534, members of the public who attended an illegal prize fight in a public place were convicted of aiding and abetting an assault. The same court held that a person accused of recklessly transmitting an STI could only raise the defense of consent, including an honest belief in consent, in cases where that consent was a "willing" or "conscious" consent. Case report and review of the . Notwithstanding their sexual overtones, these cases are considered to be violent crimes and it is not an excuse that one partner consents. Please send all comments, corrections or suggested revisions to openlaw@bailii.org. They had pleaded guilty after a ruling that the prosecution had not needed to . Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victims ability to give voluntary and genuine consent; To view the purposes they believe they have legitimate interest for, or to object to this data processing use the vendor list link below. Till was born to working-class parents on the South Side of Chicago. 2002;15:398-402. WHERE JUSTICES were sitting as a youth court they could make a secure training order for 12 months under s 1 of the Criminal Justice and Public Order Act 1994, since the well-established provisions in ss 31 and 133 of the Magistrates' Courts Act 1980, which limited them to imposing a sentence of six months' detention for a single offence, were explicitly couched in terms of imprisonment and did not apply to secure training orders. Hammersmith and Fulham London Borough Council v Creska Ltd; Ch D (Jacob J) 18 June 1999. Autonomy is a cornerstone of criminal law; the principle wherein an adult with full capacity is able to self-govern. A Collection of Interesting, Important, and Controversial Perspectives Largely Excluded from the American Mainstream Media Click the column heading to activate the filter (the heading will become Red). Cruelty is uncivilised.. The case of five men jailed for engaging in consensual sadomasochistic sexual acts is one of the few judgments that most law students actually read, and the facts tend to stay with them. This suggests that consent will only operate as a defense in all but the most exceptional of cases where there has already been prior disclosure of known HIV positive status. The court held that, even if the victim had consented to a being restrained and gagged, his consent was invalid because there was no way for him to communicate its withdrawal once the gag was in his mouth.[4]. Breeze v John Stacey & Sons Ltd; CA (Peter Gibson, Judge, Clarke LJJ) 21 June 1999. SHARE. In cross-examination two of the three women had explicitly acknowledged that, in general, unprotected sexual intercourse carried a risk of infection. 647, 662 (1957) ("By 1226 an agreement between the criminal and the relatives of a slain man would not avail to save the murderer from an indictment and a sentence of death. Leaving aside repugnance and moral objection, both of which are entirely natural, but neither of which are in my opinion grounds upon which the court could properly create a new crime.. On the first occasion he tied a plastic bag over the head of his partner. Judgement for the case R v Wilson. The Concise Oxford English Dictionary defines crime as; "act (usually grave offence) punishable by law; evil act; such acts collectively" It will be noted that many crimes are also torts and vice-versa. The appellants in R v Brown had been convicted of actual bodily harm (ABH) and wounding. These are situations in which a victim may have given apparent consent to parting with ownership or possession of money and/or goods, or to generally suffering a loss, but this consent is treated as vitiated by the dishonesty of the person making the untrue representations. On appeal the conviction was quashed. The court distinguished a number of cases where sexual violence had been consented to but had found to be unlawful given its nature and subsequent harm caused to the participant. b. Each of the three women said that they had only consented because they thought the appellant had either medical qualifications or relevant training. However, this argument is proved invalid with the case of R v Emmett (1999), as in this case the defence of consent could not be used for sadomasochist acts between heterosexual . In criminal law, consent may be used as an excuse and prevent the defendant from incurring liability for what was done.[1]. He said again that this had been consensual. Gan SC, Barr J, Arieff AI, et al. Three years later, in the case of R v Wilson, which involved a husband branding his initials on his wifes buttocks with a hot knife, the court of appeal reached the opposite result, ruling that the man had the defence of consent. Narrow pore size distribution was observed with the maxima at 0.97 and 1.4 nm, respectively, well in line with the predicted pore diameter from structural analysis. The 'nature' of the act here is therefore taking the complainant away by fraud. If it is proposed to criminalise the consensual taking of risks of infection by having unprotected sexual intercourse, enforcement is impractical. However the Appeal Court judges ruled that before the complainants' consent could provide the appellant with a defence, it had to be an informed and willing consent to the specific risk, here the risk of contracting HIV, rather than the general one of contracting something. In R v Navid Tabassum (May, 2000). An example of data being processed may be a unique identifier stored in a cookie. The second ceremony will do no more than expose the prospective spouse to a charge of bigamy. Only full case reports are accepted in court. The community prefers that sexual relationships are a private matter between the individuals involved and if adults were suddenly to be liable to prosecution for taking known risks with their health, this would represent a significant interference with personal autonomy. Thus, while the criminal law is not generally a means of escaping civil obligations, the criminal courts may be able to offer some assistance to the gullible by returning their property or making compensation orders. The problem has always been to decide at what level the victim's consent becomes ineffective. r v emmett 1999 case summary. This was not tattooing, it was not something which absented pain or dangerousness and the agreed medical evidence is in each case, certainly on the first occasion, there was a very considerable degree of danger to life; on the second, there was a degree of injury to the body. With that conclusion, this Court entirely agrees.. On a different occasion, she agreed that he could pour fuel from a lighter onto her breasts and set fire to the fuel. Even professional sport should have an element of fun while the players are, in the more extreme cases, given criminal as well as civil law protection (see R v Johnson (1986) 8 Cr App R (S) 343 and R v Lloyd (1989) CLR 513 dealing with injuries inflicted on the rugby field in "off the ball" incidents). R v Rai [1999] EWCA Crim 2250; [2000] 1 Cr App R 242: Court of Appeal (EWCA Crim) Deception; failure to disclose change in circumstances: 379: The act was considered comparable to tattooing, whilst Brown applied specifically to sadomasochism. The latter concluded that while you cannot consent to serious and disabling injury, you could consent to minor injury in a sexual context. R v BM is the latest case to consider the exceptions to Offences Against the Person Act 1861 (OAPA). Kidnapping may be established by carrying away by fraud. Maouloud Baby v. State of Maryland was a 2007 case in the Maryland Court of Appeals, the state's highest court, which determined that a person may withdraw sexual consent after having given it, and that the continuation of sexual activity after the withdrawal of consent constitutes rape. He pleaded guilty to three counts of causing grievous bodily harm with intent and received a 40-month jail sentence. Thus, in R v Aitken and Others [1992] 1 WLR 1006, the victim was a serving member of the Royal Air Force and the fact that he had participated in practical jokes played on his companions was accepted as evidence that he had consented to become a victim when it was "his turn". Now the ruling in R v Chan-Fook [1994] 1 WLR 689, which held that psychiatric injury could be actual bodily harm, has been confirmed by the House of Lords in R v Burstow, R v Ireland [1998] 1 Cr App R 177. "It is difficult to see how one could ever consent to that once fraud was indeed established. The length of the given string is even. However, consent is valid in a range of circumstances, including contact sports (such as boxing or mixed martial arts), as well as tattooing and piercing. John Cherryman QC, John L Davies (W.J. Original reporting and incisive analysis, direct from the Guardian every morning. In each case, their sexual partners would not have consented had they known the truth and a reasonable person might be expected to realise this. Consequently, the Appeal Court decided that had the women known of his infection, their consent to unprotected sexual intercourse would have been a valid defence. Summary Offence One that is tried in the District Court. The exceptions allow an action causing injury that would be a criminal offence to . He had HIV/Aids, and was found to have transmitted the disease by intercourse when the victims were not informed of his condition. These are some of the questions considered by the Domestic Abuse Bill (DAB) 2020. In R v Brown, the House of Lords rejected the defense on public policy grounds (see below). FNCB Ltd v Barnet Devanney & Co Ltd; CA (Morritt, Sedley LJJ, Lindsay J) 1 July 1999. Before making any decision, you must read the full case report and take professional advice as appropriate. Most states have laws which criminalize misrepresentations, deceptions, and fraud. In R. v Konzani, the defence argued that by consenting to unprotected sexual intercourse with the defendant, the women were impliedly consenting to all the risks associated with sexual intercourse which included infection with HIV. A comparison with HIV transmission: The case of R v Dica [30] Insightful recent commentary by the likes of Sharon Cowan on the risk of STI infection as an exceptional category is useful to this debate, because here we can go even further and say that it is practically impossible to justify distinguishing the Brown practices. It was not suggested that any rape . Where the culture supports the playing of practical jokes and active physical interaction as a form of "fun", those who become a part of that culture must accept the local standards of contact and the injuries that might result. This is a criminal law version of the civil law principle volenti non fit injuria (Latin for consent does not make an [actionable] injury) and the victim consents to run the risk (not the certainty) of injury arising within the rules of the game being played. summaries the situation at para 42: In the public interest, so far as possible, the spread of catastrophic illness must be avoided or prevented. The amine-based postcombustion CO 2 capture (PCC) process involves absorption of CO 2 into a solvent and then regenerating the solvent to produce CO 2.In this study, the effect of an activated carbon (AC) catalyst, synthesized through hydrothermal treatment and furnace activation on CO 2 absorption in a 4M BEA/AMP amine blend, was evaluated and compared with that of a KMgO/CNTs (1:4) catalyst. On the first occasion, she was at risk of death, and lost consciousness. Baker also argues that the Harm Principle provides an important constraint, as it prevents the consenter from being criminalized because it is only harm to others that is criminalisable under the Harm Principlenot harm to self. There was no evidence of any sexual motive. Woking Police Station, Vagrancy Act 1824; assault by frightening, Assault; ABH; indirect application of force, Actus reus; GBH; indirect force; mens rea, Manslaughter; suicide; GBH; psychological injury, Racially or religiously aggravated assault; hostility, Sexual offences, consent; deception: gender, Rape; consent; deception: identity as police officer, Rape; consent; capacity; voluntary intoxication, Sexual offences; consent; deception; conclusive presumption, Rape; abolition of marital exemption; ECHR Art.7, Rape; mens rea: reasonable belief in consent, Rape; mens rea: reasonable belief in consent: mental disorder, Sexual offences; children under 13; strict liability, Unlawful and dangerous act manslaughter; 'act' requirement, Unlawful and dangerous act manslaughter; 'unlawful act' requirement, Unlawful and dangerous act manslaughter; 'dangerous act'; mens rea. Equally, her personal autonomy is not normally protected by allowing a defendant who knows that he is suffering from HIV which he deliberately conceals, to assert an honest belief in his partner's informed consent to the risk of the transmission of HIV. In Victoria, South Australia, Tasmania and the Northern Territory, there is no consent where the complainant is so affected by alcohol or other drugs as "to be incapable of freely agreeing" to the sexual activity. In 1998, the Home Office issued a consultation paper entitled Violence: Reforming the Offences Against the Person Act 1861 rejecting the Law Commission's recommendation that there should be offences for the intentional or reckless transmission of disease. . Updated: 19 January 2022; Ref: scu.158110. The injuries were inflicted during consensual homosexual sadomasochist activities. This does not give sport a license to enact rules permitting acts that are clearly, excessively and maliciously violent. We and our partners use cookies to Store and/or access information on a device. [9] The three complainant women agreed to the appellant showing them how to examine their own breasts. Peter Gross QC, Geraldine Clark (Stewarts) for the bank; Roger Ter Haar, Andrew Phillips (Hextall Erskine & Co) for the brokers. R v Emmett. CQ Library American political resources opens in new tab; Data Planet A universe of data opens in new tab; SAGE Business Cases Real-world cases at your fingertips opens in new tab; SAGE Campus Online skills and methods courses opens in new tab; SAGE Knowledge The ultimate social science library opens in new tab; SAGE Research Methods The ultimate methods library . In R v Emmett (unreported, 18 June 1999), as part of their consensual sexual activity, the woman allowed her partner to cover her head with a plastic bag, tying it tightly at the neck. OCGA 9-11-56 (c) ." Lau's Corp. v. Haskins, 261 Ga. 491 ( 405 S.E.2d 474) (1991). The application of solid adsorbents for oil spills remediation has gained attention in recent times. This case is authority for the point that the result must be caused by a culpable act. are mint imperials bad for your teeth; kooper davis death hobbs, nm. For other uses, see, This article is about consent in criminal law in general. 7. The defendant was convicted of inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861. These highly porous GPs were combined at pH 7.5 with cationic CNCs that had been synthesized from . We do not provide advice. Richard Davies QC (Vizards) for the appellant; Nigel Baker QC, Desmond Bloom-Davis (Antony Gorley & Co, Newbury) for the respondent. Start your Independent Premium subscription today. J Nephrol. July 12, 2018. Rose LJ, Wright and Kay JJ [1999] EWCA Crim 1710, [1999] No. Their Lordships in the Court of This left the issue of fraud. Hence, the principal offence was committed and, since it would not have taken place had there been no crowd to bet and support the fighters, the secondary parties were also liable. This case document summarizes the facts and decision in R v Stone and Dobinson [1977] 1 QB 354, Court of Appeal. Gross negligence manslaughter; Liability for omissions: duty of care, Liability for omissions; manslaughter; parent/child, Liability for omissions; manslaughter; parent/non-dependent child, Liability for omissions; assumption of responsibility; manslaughter, Liability for omissions; assumption of responsibility: drug takers; manslaughter, liability for omissions; contractual duty; manslaughter, Liability for omissions; creation of a dangerous situation; arson, Liability for omissions; police officer: misconduct in public office, Withdrawal of life-sustaining medical treatment; act/omission distinction; murder, Liability for omissions; gross indecency with a child, Liability for omissions; performance of duty: extent of duty, Causation; causing death by driving whilst uninsured/without a licence, Causation; causing death by driving whilst uninsured; aggravated vehicle taking, Causation; intervening events; death by dangerous driving, Causation; intervening acts of third party: drug importation, Causation; intervening acts of third party; manslaughter, Environment Agency v Empress Car Co (Abertillary) Ltd, Causation; intervening act of third party; pollution; strict liability, Causation; intervening acts of third party; medical treatment; murder, Causation; intervening act of victim; assault occasioning ABH, Causation; intervening act of victim; manslaughter, Causation; intervening act of victim: lapse of time; manslaughter, Causation; drug use: intervening act of victim; manslaughter, Causation; drug use: joint administration; manslaughter, Causation; supply of drugs; duty of care; gross negligence manslaughter, Causation; pre-existing medical condition: 'take your victim as you find them'; manslaughter, Causation; Jehovah's Witness: 'take your victim as you find them'; manslaughter, Causation; intervening act of victim: suicide; murder, Causation; intervening act of victim: suicide; recognisable psychiatric injury; manslaughter/GBH, Mens rea, intention; motive; doing acts likely to assist the enemy, Re A (conjoined twins: surgical separation), Separation conjoined twins: civil declaration; intention; necessity; murder, Motive; moral purpose; conspiracy to commit breach of the Official Secrets Act 1911, Malice; Mens rea; Offences against the person, Intoxication; mens rea; recklessness; specific/basic intent; arson, Coincidence of actus reus and mens rea; murder, Coincidence of actus reus and mens rea; unlawful and dangerous act manslaughter, Coincidence of actus reus and mens rea; continuing act; assault, Transferred malice; unlawful and dangerous act manslaughter, Attorney General's Reference (No.3 of 1994), Transferred malice; murder/manslaughter; GBH rule, Transferred malice; accessories: joint enterprise; murder; Tyrell principle, Mistake; presumption of mens rea: strict liability; inciting a girl under 14 to commit an act of gross indecency, Presumption of mens rea: strict liability, Gammon Ltd. V Attorney General of Hong Kong, Presumption of mens rea: strict liability; ECHR Art.7, Pharmaceutical Society of Great Britain v Storkwain Ltd, Presumption of mens rea: strict liability; funding terrorism, Presumption of mens rea: strict liability; freedom of expression; proscribed organisations; terrorism offences, Strict liability; rape of a child; ECHR arts. Also from SAGE Publishing. However, Baker points out that R v. Brown is more borderline, as the harm in that case was reversible and is not too different from having unnecessary plastic surgery that is no longer benefiting the patientthat is numerous surgical procedures which are clearly having a disfiguring rather than beneficial cosmetic effect. "To prevail at summary judgment under OCGA 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. The Court held that the identity of the defendant was not a feature which, in that case, precluded the giving of consent by the patient. The Criminal Law list is current up to the Last Updated date above and may not include recent decisions. "Consenting adult" and "Consenting adults" redirect here. The degree of harm was such as to make it appropriate for the criminal law to interfere and accordingly the appeal was dismissed. This decision was confirmed in the ECHR in Laskey v United Kingdom (1997) 24 EHRR 39 on the basis that although the prosecution might have constituted an interference with the private lives of those involved, it was justified for the protection of public health. maria robles reaction paper crm serial crime and criminal profiling understanding sexual homicide paul greenall (2012) summary the article greenall (2012) Optident Ltd and anor v Secretary of State for Trade and Industry and another; CA (Morritt, Sedley LJJ, Lindsay J) 1 July 1999. For an offence to be tried summarily, a) the DPP must consent to a summary trial b) the District Court must be satisfied that the offence is minor. The. As an application of parens patriae, for example, minors cannot consent to having sexual intercourse under a specified age even though the particular instance of statutory rape might be a "victimless" offense. The case, she recalls, involved a group of ordinary men who happened to be homosexual and into S&M, who occasionally got together to act out fantasies, got sexual stimulation, and had a cup of tea at the end. 114 Citing Cases From Casetext: Smarter Legal Research Sw. Bell Tel., L.P. v. Emmett Download PDF Check Treatment Summary holding that local governmental agency's refusal to comply with Water Code provision constituted ultra vires act Summary of this case from City of New Braunfels v. Tovar See 10 Summaries In R v Emmett [1999], the defendant was charged under Section 47 of the OAPA 1861 after - following her requests - tying a plastic bag over his girlfriend's head and, on a separate occasion, setting alight lighter fuel he had poured over her breasts. 1824). Although Haggart was bigger, and trained as a boxer, Jobidon landed one punch directly in Haggart's face, which knocked him unconscious and he fell on a hood of a car. He said: Society is entitled and bound to protect itself against a cult of violence. This follows the rise in the use of the rough sex defence by defendants in cases of homicide, where defendants claim that death was caused from sexual activities that went wrong. Summary - Criminal Summative - First Class vasi 16012929 criminal law summative bibliography primary sources cases brown 212 donovan (john george) 498 emmett . Baker (2009) in "Moral Limits of Consent" 12(1) New Criminal Law Review argues even if the consent in Konzani was genuine, that it like Brown was rightly decided, as Baker is of the view that a person cannot consent to irreparable harm of a grave kind without also degrading his or her humanity in the Kantian sense. R v Emmett [1999] EWCA Crim 1710; Case No. It concluded that the issues which might arise if this was a legal basis to negate consent, could be far wider than might be first appreciated. They were convicted of robbery and appealed on the grounds that the force came after they had appropriate the jewellery and thus did not come within the requirement of being immediately before or at the time of stealing. Chromium, especially hexavalent chromium, can be released into the environment from a variety of industrial sources, like leather processing and finishing, steel processing, ceramic processing, electroplating, catalytic manufacture and drilling muds (Barnhart, 1997, Darrie, 2001, Jacobs and Testa, 2005).Hexavalent chromium Cr(VI) is the most common Cr species, is highly toxic . "Mens Sana in Corpore Sano? On the first occasion he tied a plastic bag over the head of his partner. In an appeal against conviction for two offences of assault occasioning actual bodily harm arising out of sado-masochistic acts between two consenting adults, the issue of consent was immaterial where there was a realistic risk of harm beyond a merely transient or trivial injury . Sorting and Filtering: The case lists are designed to be filtered by different criteria. Mr Justice Stephens had said (at p.44) "the only sorts of fraud which so far destroy the effect of a woman's consent as to convert a connection consented to in fact into a rape are frauds as to the nature of the act itself, or as to the identity of the person who does the act. She brands the prosecution as an abuse of power by the state to interfere with personal relations. In R v Emmett (unreported, 18 June 1999), as part of their consensual sexual activity, the woman allowed her partner to cover her head with a plastic bag, tying it tightly at the neck. On this Wikipedia the language links are at the top of the page across from the article title. Judge LJ. It was not therefore necessary to show ongoing dishonesty at the date when a notice of intervention was served. Some of our partners may process your data as a part of their legitimate business interest without asking for consent. THE COURT'S jurisdiction to refuse to grant an injunction where there had been a violation of a right and instead to grant damages was good in principle for both negative and positive obligations. Continue with Recommended Cookies, The defendant appealed against conviction after being involved in sexual activity which he said was not intended to cause harm, and were said to be consensual, but clearly did risk harm. In the wake of the judgment, the Law Commission, the body that advises the government on law reform, published two papers on consent and offences against the person, both suggesting a more liberal approach. After that, 5 ml of APTES was added and the system was refluxed at 80 C for 24 hours under a nitrogen atmosphere. For sado-masochism, R v Boyea (1992) 156 JPR 505 was another application of the ratio decidendi in Donovan that even if she had actually consented to injury by allowing the defendant to put his hand into her vagina and twist it, causing internal and external injuries to her vagina and bruising on her pubis, the woman's consent (if any) would have been irrelevant. On August 28, 1955, while visiting family in Money, Mississippi, 14-year-old Emmett Till, an African American from Chicago, is brutally murdered for allegedly flirting with a white woman four. The disagreement over whether the case was about violence or sex, led to the 3:2 split between the judges. In other words, the court distinguished between "willingly running the risk of transmission" and "willingly consenting to the risk of transmission.". The judge said he was bound to convict because precedent suggested that such an infliction was not negatived by consent. ALTHOUGH R v Brown [1993] 2 All ER 75 was not authority in all circumstances for the proposition that consent did not form a basis for a defence in cases of sado-masochistic prac-tices, nevertheless when the realistic risk was of more than transient injury the issue of consent became immaterial. He said it had not . In this work, a surface cationized inorganic-organic hybrid foam was produced from porous geopolymer (GP) and cellulose nanocrystals (CNCs). On the second, she suffered burns, which became infected. The victim had died through strangulation during a sexual assault by the defendant. Close The pH of the BC solution was measured by filtering the suspension of 0.1 g BC: 20 mL Milli-Q water with 4-h end-over-end rotation (30 rpm) and centrifugation (4000 rpm, 10 min) [19]. Lord Templeman said public policy meant the law should protect people from the unpredictably dangerous and degrading practices that involved genital torture and violence to the buttocks, anus, penis, testicles and nipples. Their BrunauerEmmett-Teller (BET) surface area is 584 and 672 m 2 g 1, respectively, with corresponding pore volume of 0.33 cm 3 g 1 and 0.38 cm 3 g 1. R v Brown Commentary Pankti Vadalia To explore the development of the Criminal Law in the field of non-fatal sexual offences using the landmark English case of R v Brown [1994] 1 AC 212. Thus, the consent in licensed boxing events is to intentional harm within the rules and a blow struck between rounds would be an assault. JUSTICE WRIGHT: ON 29TH JANUARY 1999, IN THE CROWN COURT AT NORWICH, THE HIS HONOUR JUDGE DOWNES AND A LADY WHO IS THE SUBJECT OF THESE TWO COUNTS LADY WAS ENVELOPED LORDS IN LORDS, BY A MAJORITY OF 3 TO 2 UPHELD THE JUDGMENT OF THIS COURT, LORD JAUNCEY AND LORD LOWRY IN THEIR SPEECHES BOTH EXPRESSED THE VIEW LORD JAUNCEY OBSERVED: