Back to top
Article

Book reviews

10 December 12

Reviews of Discrimination (Rubenstein); Misuse of Drugs and Drug Trafficking Offences (Fortson)

by Steve Briggs, Daniel Gorry, Alastair Brown

Discrimination – A Guide to the Relevant Case Law

25th edition

Michael Rubenstein

PUBLISHER: MICHAEL RUBENSTEIN PUBLISHING LTD
PRICE: £95
ISBN: 9780955822445

As the tribunals and practitioners become more familiar with the impact of the Equality Act 2010, discrimination remains a key jurisdiction which generates a remarkable number of intriguing and challenging cases.

The 25th edition of Michael Rubenstein’s Discrimination: A Guide to the Relevant Case Law brings all of the relevant authorities in this fascinating area of law into a single volume. Compared with the previous edition, the guide has been overhauled to reflect the structure of discrimination law under the Equality Act, and a considerable number of case entries have been removed where they don’t sufficiently reflect the language and principles of the 2010 Act.

This volume covers cases reported in the Industrial Relations Law Reports and the Equal Opportunities Review up to the end of 2011. It is organised in a manner which enables quick access to whichever facet of discrimination law the reader needs to study.

There are sections covering each type of discrimination claim that can be made (i.e. direct and indirect discrimination, victimisation, and harassment), as well as chapters dedicated to preliminary issues and the remedies available to successful claimants.

Each of the “protected characteristics” under the 2010 Act (e.g. sex, race and disability) is afforded its own section with cases specific to that characteristic. Helpfully, each chapter is also preceded by an extract from the relevant legislation underpinning each area.

The case reports span judgments drawn from the employment appeal tribunal, the Court of Appeal, the Court of Session, the House of Lords, and the European Court of Justice, and include judgments handed down by 14 different judges. Each case summary focuses on the key principles covered, enabling the reader to identify quickly those authorities worthy of more detailed review.

This guide’s coverage of discrimination law is without parallel, and it is an invaluable reference work for practitioners and advisers who need to master an area of law rapidly.

As the founding editor of the Industrial Relations Law Reports, the Equality Law Reports, and the Equal Opportunities Review, Rubenstein himself is in danger of becoming an employment law institution in in his own right.

Steve Briggs and Daniel Gorry, Law At Work Ltd

                                                                                         

Misuse of Drugs and Drug Trafficking Offences

6th edition

Rudi Fortson QC

PUBLISHER: SWEET & MAXWELL
ISBN: 9780414045170
PRICE: £125

Prof Rudi Fortson’s monograph on Misuse of Drugs and Drug Trafficking Offences has been gathering plaudits since the first edition was published in 1988. Lord Justice Hooper opens his foreword to the new (6th) edition by describing it as “a very wide ranging book which should be an indispensable guide to the many organisations and individuals concerned with the misuse of drugs”. He goes on to say that “this comprehensive and scholarly book provides a detailed exposition of the substance of those laws and the approach of the courts to them”. I respectfully agree.

The book is wide ranging. Its 1,045 pages begin with a chapter which outlines the history of the drug problem and the framework of the legislation, including its international law context (it is often forgotten that the UK’s freedom of action in this area is constrained by the international obligations which it has chosen to accept; they include an obligation to criminalise the possession of cannabis). The increasing importance of the EU in shaping and implementing a pan-European drug strategy is also noted. The final chapters provide a guide to drug misuse and information about “legal highs”.

In between, the reader will find a comprehensive account of the whole law relevant to misuse of drugs, beginning with importation and exportation, moving through possession to the various drug trafficking offences, and going on to manufacture and production and to drug activities on premises. There is detailed consideration of s 28 of the Misuse of Drugs Act 1971.

As one might expect of a book written by an English QC, most of the material cited by the work comes from the English courts. Since the 1971 Act is a UK statute, that is hardly a disadvantage. What one might not expect is the very substantial use which is made throughout the book of Scottish material and the clear effort which is also made to state the Scots law position on any issue on which it appears to diverge from understandings elsewhere in the UK. (Similar respect is accorded to the law of Jersey.)

For example, in discussing the s 28 defence, Professor Fortson provides a detailed analysis of both Salmon v HM Advocate 1999 JC 67 and Henvey v HM Advocate 2005 SLT 384, which he treats as authorities which might be cited in English courts rather than as mere Caledonian curiosities. To be sure, he is less complimentary about Kerr v HM Advocate 1986 JC 41 on the scope of s 4(3)(b) of the 1971 Act and the need or otherwise for the Crown to prove an actual supply. He concludes that “the Scottish courts have done precisely what Parliament has not done, namely, to enact an offence of ‘dealing’”. He might well be right. He accords this the dignity of its own subheading: “The Scottish law complication”. Although some of us might treat it as an achievement to be regarded as a complication by a distinguished English commentator, it seems reasonably clear that Prof Fortson does not intend it as a compliment.

More seriously, perhaps, what he does not consider is whether English law, in its extensive use of conspiracy charges, even where there is proof of a completed crime, does not reach a result which is at least as wide as Kerr but by different means.

As Lord Justice Hooper says, the exposition is detailed. The practitioner will find the work extremely useful in dealing with “ordinary” drugs cases; but it comes into its own in the case which is not standard. Consider the case of a cannabis “gardener” from rural China who claims to think that he is looking after culinary herbs and to be unable to recognise the plants as cannabis because he has neither heard of it nor seen pictures of it. He explains, through an interpreter, that the enforcement of drug laws in China is emphatic and that information is simply not available. Can he claim the s 28(3) defence that he had no reason to suspect the existence of a fact which the Crown must prove (namely, that the plants were a drug)? The answer is not clear and is likely to be highly fact-sensitive; but the advocate who has to deal with the question will wonder whether the defence is subjective or objective and might well find help in Rice, an unreported Court of Appeal decision discussed by Professor Fortson in his chapter on s 28. Many other examples could be found.

Professor Fortson is to be congratulated on the production of a new edition which remains indispensable. It is commended to the reader without reservation.

Sheriff Alastair N Brown

 

Have your say