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Some employers provide advice and guidance for their staff, usually in absence of any formal training, that they should use their "common-sense" (initiative) in situations that they are likely to experience as part of their employed role. In addition I have heard, as I am sure many of you have, of employed staff being advised by their employer that they can use their "common law rights" in making citizens arrests or in going to the defence of staff who are being assaulted. The problem is however, is that little or no information is forthcoming on what exactly "common law" is, and what the difference is between a 'Statute Act of Parliament' and a 'Common Law Right'.
Statute law is law enacted by a legislative body. It is a written law, an act of a legislature, that is constructed under constitutional authority, which is aimed at governing conduct within its scope. They are enacted to prescribe conduct, define crimes, create interior government bodies, appropriate public monies, and in general promote the public welfare. Such 'Acts' are often based on recommendations either by The European Union, or by UK bodies such as Government Departments, Commissions of Enquiry and reform bodies like the Law Commission. The recommendations are then debated at length by the House of Commons and the House of Lords, before being submitted for Royal Assent. The Human Rights Act 1998 is one example of a statute Act of Parliament as is The Criminal Law Act 1967, The Children's Act 1989 and the Mental Health Act 1983.
The primary aim of Statute is to provide a general protection for society by laying down laws aimed at governing behaviour.
Common law on the other hand is the law built from the decisions of the Judges in the Courts and is based on the doctrine of judicial precedents. Common law is a legal system based on judge-made English law with case-law precedents deriving from the decisions of judges rather than Acts of Parliament. Common law came into existence to afford any individual who is attacked, or indeed threatened with a serious attack, the legal liberty to prevent, repel or terminate the attack, in order to preserve and comply with an individuals common law right to safety. Common law therefore, is primarily concerned with the basic right to life and personal safety. This is an 'ancient right' afforded to individuals of England in days before organised policing such things as the carrying of weapons was commonplace.
An example of where statute and common law co-exist can be found in Section 3(1) of the Criminal Law Act 1967.
Section 3(1) of the Criminal Law Act 1967 states that:
"Any person may use such force as is reasonable in the circumstances in preventing a crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."
Therefore, the legal right for citizens of the UK to defend themselves and make arrests is contained within the defined wording of the Act. However, the statutory definition provides the rider that any force that a citizen may use must be "reasonable", and this word is not further defined by the statute itself. Therefore to find out what "reasonable" means we need to look at previous case-law decisions made by judges in previous cases.
The 'statute Act' therefore, provides the general rule, but the aspect of whether the force used was 'reasonable' or not (in this example) will depend on the judges ruling on how a person has exerted their common law rights with regard to the application of force in the particular circumstances. Therefore, the common law has an integral place within how judges interpret statute, especially and particularly with regard to the use of physical force.
In addition to the above we also have to consider that today's modern society, that is relatively well regulated and well policed, should provide a general protection - but it cannot guarantee protection all of the time. As such the Criminal Law (and other Statute Acts of Parliament) have to respect the individual autonomy (the right of the individual to act independently - to self-govern themselves and their behaviour) when society cannot provide immediate protection.
As a result every citizen of the United Kingdom has the right (based on individual autonomy) to defend themselves, their home, their family and their property, should they be exposed to an imminent or sudden attack.
This also becomes more predominant the less likely it is that the protection offered by society (the Police for example) is likely to be available or provide protection either immediately or within a reasonable period of time.
What employers and other advising agencies need to be aware of therefore is that by promoting that staff can use 'common law', particularly in lieu or absence of any formal training, they are actually authorising and encouraging their staff to use their individual autonomy when confronted with situations of impending risk whilst at work.
It is therefore perverse for the very same employer to then expose staff to internal disciplinary procedures or prosecution for gross misconduct when a member of staff's actions are challenged, leaving them in the frame for prosecution or an internal disciplinary action if injury or harm occurs to the person they used force upon. In short the very employer who has tried to disseminate their responsibility to staff and others by authorising staff to use their 'ancient common-law rights' then disciplines them for doing so.
This is not only not right, it is very possibly illegal. |
