legaleasy

7 December, 2007

Revision!

Filed under: A2-Level,AS-Level — legaleasy @ 10:59 am

From Now Until January!

You should be revising in earnest for your exams. There are still outstanding items of homework from some of you. If you want feedback on your work you need to hand it in.

A2 – remember with Module 3 you need to look at both sentencing and damages to be able to answer fully. Please refer to your revision guides. If you are unsure come and see me. With Module 4 you need to able to comment on the reforms to the OAPA – both fatal and non fatal. This is worth significant proportion of your mark for your paper.

In class we will revise topics that you are having problems with. Please come to lessons with an inkling of what you are struggling with!

We will practise exam technique and writing answers under exam conditions.

There is however, no substitute for hard work!

Take your mock exam in the last week of term seriously please. If you have missed lessons please come and see me for any missing handouts.

Merry Christmas!

P.S Good luck.

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30 November, 2007

Judicial Precedent

Filed under: additional reading,AS-Level,domestic law — legaleasy @ 10:17 am

W/E 30th November 2007 

This week we started to look at the idea of judicial precedent. Judicial precedent is otherwise known as case law and is a major source of law in our legal system. It is based on the concept of stare decisis. Stare decisis means “stand by what has been decided and do not unsettle the established”. It provides certainty and fairness.

To provide a precedent – you need to know the legal reasoning behind a decision. This appears in the judgement given by the judge and is known as ratio decidendi (the reason for deciding). Judges follow this in later cases.

Anything else mentioned in a judgement, including the judgements of dissenting judges is obiter dicta (other things said).

The idea of precedent can be further separated into 3 rough categories:

1. Binding precedent – this is precedent from earlier case which must be followed even if the judge does not agree with the legal principle. To create a binding precedent the facts of the later case must be sufficiently similar to the earlier case.

2. Original precedent – where a point of law has never arisen before. Analogy is used to help decide the case.

3. Persuasive precedent – as the name suggests, this is not binding but is persuasive upon the judges. It can arise from a number of sources such as decisions of cases of courts in other countries e.g. Scotland; or obiter dicta comments in earlier cases.

Additional Reading 

Please see the General Resource List.
Please read the following cases:

Hunter & Others v Canary Wharf Ltd and London Docklands Development Corporation (1995)
R v R (1991)
The Wagon Mound (No.1) (1961)
R v Howe (1987)
R v Gotts (1992)

23 November, 2007

Judicial Precedent

Filed under: additional reading,AS-Level,domestic law — legaleasy @ 10:24 am

W/E 23rd November

This week we looked at precendent and hierarchy of the courts. There is a very rigid doctrine of precedent which means that courts are bound by the courts above it and in turn bind those below.

When studying the hierarchies DO NOT confuse the civil and criminal systems. Make sure that you know which courts bind which.

Civil Courts

Criminal Courts

European Court of Justice

European Court of Justice

House of Lords

House of Lords

Court of Appeal (Civil Div.)

Court of Appeal (Crim. Div.)

Divisional Courts

Queen’s Bench Divisional Court

High Court

Crown Court

County Court

Magistrates’ Court

Magistrates’ Court

 

We also looked at the House of Lords and judicial precedent in a little more detail focussing on the important 1966 Practice Statement.

Additional Reading

If you have not done so already, I would suggest that you start going back through your folders and making notes in readiness for the January exam.

16 November, 2007

Statutory Interpretation – The Rules of Language, Aids and Presumptions

Filed under: additional reading,AS-Level,domestic law — legaleasy @ 2:46 pm

W/E 16th November 2007

This week we looked at our final topic within Statutory Interpretation – Finding Parliament’s Intention.

We looked at the rules of language and the presumptions governing statutory interpretation. Even the Literal Rule does not take words in isolation, but applies rules to help with the interpretation. The rules of language all have Latin names.

1. ‘Ejusdem Generis’– Where there is a list of words followed by general words, then the general words are limited to the same kind of articles as the specific words. See Powell v Kempton Park Racecourse (1899)

2. ‘Expressio unius exclusio alterius’– The mention of one thing excludes the others. Where there is a list of specific words but no general words then it must be on the list for the Act to apply. See Tempest v Kilner (1846)

3. ‘Noscitur a sociis’ – A word is known by the company it keeps. See Inland Commissioners v Frere (1965)

Presumptions are made by certain assumptions made by the Courts. They are used only as a starting point. If they are disparoved then it is said the presumption is rebutted. There are 4 main presumptions (amongst many). They are:

1. A presumption that the Crown is not bound by any statute unless it expressly says so;
2, A presumption that legislation does not apply retrospectively;
3. A presumption against a change in the Common Law; see Leach v R
4. A presumption that mens rea is required in criminal cases – Sweet v Parsley (1970)

A court will attempt to uncover Parliament’s intentions by using a variety of aids – these are either ‘intrinsic’ or ‘extrinsic’.

An intrinsic aid is one that is from inside the Act of Parliament itself which make it easier to interpret. These are:

1. Long title
2. Short title
3. Preamble
4. Section headings and marginal notes

An extrinsic aid is one that is from outside the Act of Parliament itself which makes it easier to interpret. The uncontroversial ones are:

1. Previous Acts on the same topic
2. Historical setting
3. Earlier case law
4. Dictionaries at the time

There used to be very strict rules on other aids – they could not be used. Attitudes have changed though. These are:

1. Hansard

This is the official report of what was said in Parliament when the Act was debated. Until 1992 a court was not allowed to look at what was said in Parliament. Pepper v Hart (1993)– H of L relaxed the rule and accepted that Hansard can be used in a limited way where is ambiguity, absurdity or obscure;and there is a clear statement introducing the legislation. Wider use is permitted where the court is considering an Act that introduced an international convention or European Directive into English Law; see Three Rivers District Council and others v Bank of England (No 2) (1996). There are problems though – Since 1992 Hansard has been referred to in a number of cases – but has to added up to 25% to the cost of the bill; and Hansard has not always proven useful as the Minister’s statements have often been confusing and misleading.

2. Reports of Law Reform bodies

It used to be the case that courts could not look at Law Commission Reports but this was changed in the Black Clawson Case 1975. It is now accepted that a report could be looked at to discover the mischief which the legislation based on the report is trying to remedy.

3. International Conventions which have been implemented in English Law

Fothergill v Monarch Airlines Ltd 1980 H of L decided that the original convention should be considered as it was possible the original meaning might be lost.

4. Explanatory Notes

Since 1998 explanatory notes have been produced alongside bills. These usually explain the background to any proposed law, summarise its main points and where a point is complicated give a worked example. These notes are updated as the bill goes through Parliament.

5. European Law

Where the law to be interpreted is based on Law the courts must interpret it in light of the wording and purpose of European Law. This is because of the Treaty of Rome.
“take all appropriate measures…to ensure fulfilment of the obligations”. See Marleasing Case 1992 and Diocese of Hallam Trustee v Connaughton 1996.

6. European Convention on Human Rights

s3 – HRA 1998 – legislation must be read in such a way as to be compatible with HRA. It applies to any case where rights are involved. See R v Offen 2001;

We finished off our look at Statutory Interpretation by examining R v Registrar-General ex parte Smith 1990. This case neatly illistrates the basic problem that it is up to each individual judge to decide whether they follow the Literal or Purposive Approach to interpretation.

Additional Reading

Take the time to look up these cases in the Resource Centre

Brock v DPP (1993)

Royal College of Nursing v DHSS (1981)

Cheeseman v DPP (1990)

Bulmer Ltd v Bollinger SA (1974)

R v Judge of the City of London Court (1892)

Whiteley v Chappell (1868)

London & North Eastern Railway Co Ltd v Berriman (1946)

Jones v DPP (1962)

R v Allen (1872)

Re Sigsworth (1935)

Heydon’s Case (1584)

Smith v Hughes (1960)

Eastbourne Borough Council v Stirling (2000)

Magor ans St Mellons v Newport Corporation (1950)

9 November, 2007

Statutory Interpretation

Filed under: additional reading,AS-Level,domestic law — legaleasy @ 8:07 pm

W/E 9th November 2007

This week we looked at how and why judges interpret legislation.  There are three main rules – literal, golden and mischief.

The literal rule is where judges apply the plain and literal meaning of the word even if the result is not sensible or fair – see R v Judge of the City of London Court (1892); Whiteley v Chappell (1868) and London & North Eastern Railway Co v Berriman (1946).

The golden rule is a modification or extension of the literal rule. It can be applied in either a narrow sense or a wider sense. When applied narrowly, the court will look at and apply a different meaning of a word in an Act in order to avoid an absurd situation arising – see Jones v DPP (1962), and R v Allen (1872). When applied in the wider sense the court will read in words into an Act as necessary to avoid a repugnant situation arising – see Re Sigsworth (1935).  

The mischief rule has been around since Heydon’s Case (1584).  It gives judges wider discretion than the other two rules as it looks at the law and at the mischief the Act is trying to remedy – see Smith v Hughes (1960) and Royal College of Nursing v DHSS (1981).

Judges broadly either take the Literal Approach or the Purposive Approach. Sir Rupert Cross wrote there was a unified approach called the Integrated Approach but this is based on the Literal Approach.

We also looked at the advantages and disadvantages of the three rules and the influence Europe has had on statutory interpretation.

Additional Reading

Brock v DPP (1993)

Royal College of Nursing v DHSS (1981)

Cheeseman v DPP (1990)

Bulmer Ltd v Bollinger SA (1974)

R v Judge of the City of London Court (1892)

Whiteley v Chappell (1868)

London & North Eastern Railway Co Ltd v Berriman (1946)

Jones v DPP (1962)

R v Allen (1872)

Re Sigsworth (1935)

Heydon’s Case (1584)

Smith v Hughes (1960)

Eastbourne Borough Council v Stirling (2000)

Magor ans St Mellons v Newport Corporation (1950)

2 November, 2007

Influences on Law Reform

Filed under: additional reading,AS-Level,domestic law — legaleasy @ 8:50 pm

W/E 2nd November 2007

We looked at the various influences on law reform in the UK – including pressure groups, domestic and world event as well as political motivation. We commented on the various reasons why law reform is necessary.

One of the main bodies driving reform is the Law Commission. It is a full time body whose role is to keep the law under review. It looks at both consolidating and codifying the law.

We also examined the role of Royal Commissions. These are part time bodies set up (usually in reaction to an event) to look at a specific change in the law.  

Additional Reading

19 October, 2007

Delegated Legislation

Filed under: additional reading,AS-Level,domestic law — legaleasy @ 8:47 pm

W/E 19th October 2007

This week we looked at the control of delegated legislation.  There are three areas of control: the courts; parliament; and inquiry. Public inquiry tends only to be used in relation to planning matters.  The two main mechanisms of control are the courts and parliament itself. 

Parliament’s control is limited and is in the main exercised through the parent act, which sets out the provisions relating to the delegated legislation.  A small number of SI require an affirmative resolution, which means the SI will not become law unless specifically approved by parliament.  Otherwise SI are subject to negative resolutions, which means that the SI automatically becomes law unless it is rejected by parliament within forty days.  The other parliamentary control on DL is the scrutiny committee (formed in 1973).  It will refer DL back to parliament if:

  • it imposes a tax or charge,
  • it is retrospective,
  • goes beyond the power of the parent act,
  • it is unclear or defective.

The other main control of DL is by the courts.  DL can be challenged in the courts on the grounds that it is ultra vires.  This is done under the judicial review procedure. 

If DL is ruled to be ultra vires it is void and not effective (see R v Home Secretary ex parte Fire Brigade Union, 1995).  The courts presume that unless the parent act expressly allows it DL cannot :-

  • make unreasonable regulations
  • impose taxes
  • allow sub-delegation

(see Strictland v Hayes Burgh Council, 1896)

For further reading in this area, see Aylesbury Mushroom Case, 1972; and R v the Secretary of State ex parte National Union of Teachers, 2000.

Of course, SI can also be declared void if they conflict with EU legislation.

We also examined the various criticisms of delegated legislation, being that unelected civil servants can make law.

Additional Reading

12 October, 2007

Delegated Legislation

Filed under: additional reading,AS-Level,domestic law — legaleasy @ 8:44 pm

W/E 12th October 2007

This week we looked at delegated legislation and where it comes from. Delegated legislation is law made by some body or person other than parliament.  Parliament passes a parent act, which gives the right to create delegated legislation. 

There are three types of delegated legislation: Order and Council (made by Queen Privvy Council); Statutory instruments (made by government ministers); and Bylaws (made mostly by local authorities). 

We discussed why we need delegated legislation.  One reason is parliament does not have the expertise or technical knowledge to pass the detailed rules and regulations sometimes required by a modern and sophisticated legal system. 

Additional Reading

5 October, 2007

Domestic Legislative Process

Filed under: additional reading,AS-Level,domestic law — legaleasy @ 8:38 pm

W/E 5th October 2007

This week we looked at the stages a bill goes through to become law.

Bill is drafted
then
First Reading in the House of Commons
then
Second Reading in the House of Commons
then
Committee Stage
then
Report Stage
then
Third Reading in the House of Commons
then
Same Procedure in the House of Lords
then
Royal Assent

We also discovered the House of Lords power is limited by the Parliament Acts 1911 and 1949. These allow an act to become law even if the House of Lords reject it. It is rarely used.

An act either comes into force at midnight on the day it receives Royal Assent or more usually after a commencement order. Sometimes an act will never come into force.

We saw through an example that the language used in acts of Parliament is complex and not easily understood not just by lay people but lawyers too! The Renton Committee in 1975 produced a report on the problems with language used in legislation. It made a number of recommendations but only a few of these were implemented. The Hansard Society Commission 1992 also produced a report which underlined the principles for domestic law making.

Parliament law is sovereign over every other type of law. However, this has been restricted in recent years. The major restrictions on sovereignty are the EU law dimension and the Human Rights Act 1998. 

Additional Reading

28 September, 2007

Domestic Legislative Process

Filed under: additional reading,AS-Level,domestic law — legaleasy @ 8:35 pm

 W/E 28th September 2007

This week we looked at pre-legislative procedure. We examined the different types of bill (an act before it is passed is called a bill).

  • Government Bill – introduced by a Government minister. Usually becomes law.
  • Public Bill – a bill that concerns matters relating to the general public.
  • Private Bill – a bill that relates to individuals or a private body like a university.
  • Hybrid Bill – a mix of a public and private bill.

Private Members’ Bill – one which is introduced under by a backbench MP. There are three ways to do this:-

  1. by ballot
  2. Under standing order no.39
  3. the ten minute rule

Most bills are Government Bills.

Consolidation bill – brings together provisions of various acts in one place.

Additional Reading

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