legaleasy

30 November, 2007

Links To Module 6

W/E 30th November 2007

 This week we had a brief look at how the concepts we studied in Module 4 could relate to Module 6.

 As you aware, Module 6 is a synoptic unit. This means you will have to illustrate your exam answers with examples from the whole of your AS and A2 studies. 

One way of trying to think about links is to consider an individual case such as Stone v Dobinson. Write down the facts of the case and the legal principle it demonstrates. Then consider the the areas studied under Module 6 i.e Morals, Justice, Fault, Conflicting Interests and Judicial Creativity. Does this case raise any questions in this area. For example the mens rea required for the offences, is an omission criminally liable, how do we balance the conflicting interests of a defendant and the victim / and or society at large.

 I appreciate this is hard to do, but the ealier you start to consider such connections the easier you will find Module 6.

Additional Reading

You should now be revising in earnest for your Module 3 and 4 exams in January.

Please see me with any questions regarding revision.

Advertisements

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

Defences – Consent and Self Defence

Filed under: A2-Level,additional reading,domestic law,Fatal Offences — legaleasy @ 7:07 pm

W/E 16th November 2007

This week we finished Module 4 by looking at the defences of consent and self defence.

Self Defence

Under the common law a person can use reasonable force to defend themselves, another person or property. It is a complete defence and leads to acquittal.

The jury need to look at the facts of a case to ascertain whether a defendant has used reasonable force or not. If a defendant uses excessive force the defence will fail as in Clegg and Martin.

It is not necessary for the defendant to be attacked first for the defence of self defence to be successful.

If you make a mistake about needing to protect yourself then you are judged on what you honestly believed the facts to be. However, there is no defence as to drunken defence.

Consent

The general rule is that you cannot consent to actual bodily harm or worse being inflicted upon you.

There are recognised exceptions. You will need to know these for the exam. These are;

1. properly conducted games and sports;

2. lawful chastisement;

3. reasonable surgical interference;

4. dangerous exhibitions etc.

The courts will also take into account public interest – as in the case of Brown.

The consent must also be real.

Additional Reading

Please refer to your revision guides. You need to know the case examples for the exam. Again I would urge you to read a good quality newspaper and keep up to date with the news.

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

Non-Fatal Offences Against the Person

Filed under: A2-Level,additional reading,domestic law,Non Fatal Offences — legaleasy @ 1:03 pm

W/E 2nd November 2007

This week we recapped on the five non-fatal offences against the person. These are; common law assault, common law battery, s47 ABH, s20 GBH or malicious wounding and s18 GBH or malicious wounding.

The relevants Acts are – The Offences Against The Person Act 1861 and the Criminal Justice Act 1988.

To be guilty of most criminal offences, it is necessary to show two things – the actus
and the mens rea. Each crime has its own actus and mens rea.

The actus reus is the physical element of the crime. The mens rea is the mental element of the crime – what was the defendant thinking or not thinking about before or during the committing of the crime.

The actus reus can be:-

  • An act;
  • A failure to act (an omission);
  • A state of affairs or strict liability issue.

The actus reus must be a voluntary act – not a reflex action. If there is an absence of fault in an action then a person is generally not liable. The criminal law is usually concerned with fault of the defendant.

There are however, exceptions to these rules – these are known as state of affair cases or strict liability cases. Please refer to your revision guides and class notes for more details.

The normal rule is that an omission or failure to act is not an actus reus. However, there are exceptions to this rule. These are:-

  • Where the defendant has a contractual duty
  • Where there is a duty because of a relationship – between parent and child for example
  • Where a duty has been taken on voluntarily
  • Where there is a duty because of the defendant’s official position – e.g. a policeman
  • Where a duty arises because the defendant has set in motion a chain of events

Mens rea has different levels. The “highest” form of mens rea is intent where the defendant decides deliberately to commit an offence (see Mohan). There is also indirect intent. To prove this you need to show that the defendant was aware of the risks they were taking and that the defendant undertook a voluntary act which you could be virtually certain would lead to serious bodily harm or death (see Nedrick). Finally, there is recklessness – where a defendant knowingly takes an unjustifiable risk. The test for this was set out in Cunningham.

Causation

Causation is the direct link from the defendant’s conduct to the consequence to the victim. There are two types of causation; factual and legal causation.

The test for factual causation is set out in R v White (1910) – the “but for” test.

The test for legal causation is set out in Smith (1959) – is the defendant the “substantial and operating cause”.

The chain of causation can be broken if there is an intervening act (novus actus interveniens). This act has to be significant and sufficiently separate from the defendant’s actions.

The following incidents will not break the chain of causation in law:

  • Physical characteristics of the victim (Hayward)
  • Reasonable consequences of the defendant’s actions (Pagett)
  • Reasonable attempts to escape (Roberts)
  • Negligent medical treatment (Smith)
  • Refusal of medical treatment (Blaue)
  • The switching off of a life support machine (Malcherek)
  • The victim committing suicide (Dhaliwal)

With regards to medical treatment remember the exceptions laid out in cases such as Cheshire and Jordan.

Common Assault

Common assault is the lowest level of offence against the person. It is part of the common law which means it is not in any Act of Parliament but has been built up over centuries through cases and judge made law.

To commit an assault the defendant must intentionally or subjectively recklessly cause another person to fear immediate unlawful violence.

The actus reus requires some words or acts. An omission is not enough. There is no need for physical contact. Examples are: raising a fist; making a threat “I am going to punch you”; pointing a loaded gun at someone (even if it is a replica).

The mens rea for an assault is either the intention to cause another to fear immediate unlawful personal violence or recklessness as to whether such fear is caused. The test for recklessness is subjective.

Common Battery

This is beyond common assault where the defendant intentionally or subjectively recklessly applies unlawful force to another. Usually a battery follows an assault. You raise your fist, you commit an assault, and then hit the victim – this is the battery. You can have battery without assault – if you are hit from behind for example – you have no fear as you don’t see it coming.

The actus reus requires some force, however slight. It can be continuing (as in Fagan) or can be an indirect act such as laying a booby trap. Unlike assault, a battery can be committed by an omission – Santana-Bermudez.

The mens rea for battery is either the intention to apply unlawful physical force or recklessness that the force will be applied. Recklessness is subjective – the defendant must realise the risk and take the risk.

s47 offence

The actus reus for this offence is an assault or battery. There must be actual bodily harm inflicted on the victim. The mens rea for this offence is the same as that for assault or battery. There is no need to prove the defendant intended to injure the victim. All that is required is a simple causal link between the defendant’s actions and the victim suffering an injury (Roberts

s20 offence

The actus reus for this offence is a direct or indirect act or omission. There is no need to prove an assault. A wound is defined as a cutting of the whole skin. Grievous bodily harm means serious harm and can include psychiatric harm. The mens rea is the intention or subjective recklessness as to causing some injury (although this does not need to be serious). (Savage and Parameter)

s18 offence 

The actus reus for this offence is a direct or indirect act or omission which causes an injury to the victim. The injury must be a wound as defined or grievous bodily harm. The mens rea is that the defendant has the specific intention to wound or to cause grievous bodily harm  or to resist or prevent arrest. The CPS have a criteria that they use to suggest evidence of intent – for example a repeated or planned attack; selection of a weapon etc.

Remember – be aware of the CPS charging standards. Ask yourself – can I identify the offence from the injuries sustained to by the victim? You need to be able to do this for the exam.

Additional Reading

Please see my comments previously about keeping up to date with the news. This will help you identify the offences in the exam. Remember if you are not sure if it is a common assault / battery or ABH in the exam DISCUSS BOTH OPTIONS! The examiner knows you are not a CPS lawyer – but does want evidence of your knowledge of the subject.

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

Fatal Offences Against The Person – Involuntary Manslaughter

Filed under: A2-Level,additional reading,domestic law,Fatal Offences — legaleasy @ 12:17 pm

W/E 19th October 2007

This week we looked at the second type of involuntary manslaughter – gross negligence manslaughter.  This arises where the defendant owes a duty of care to the victim and breaches that duty of care.

Adamako is the main case in this area. It was decided in by the House of Lords that a defendant could be convicted of involuntary gross negligence manslaughter by a breach of duty if;

1. the defendant was in breach of a duty of care towards the victim;

2. the breach of duty caused the death if the victim; and

3. the breach of duty was such as to be thought of as gross negligence and therefore a crime.

Breach of Duty

In AdomakoLord Makay stated that the ordinary principles of the law of negligence apply to decide whether the defendant owed the victim a duty of care. Refer to the case of Caparo v Dickman for the principles to establish a duty of care. A defendant will be in breach of duty of care by falling below the standard of care of the ordinary reasonable person.

Causing Death

The “but for” test from White can be used to establish factual causation. If there is a possibility of a novus actus interveniens then the usual rules on legal causation apply.

Gross Negligence

The jury must decide whether the actions were so grossly negligent that they should be classed as a crime, rather than a civil matter. They need to decide whether a reasonable person would have foreseen a serious and obvious risk of death.  Was the conduct so bad in all circumstances to amount to a criminal act or omission.

Additional Reading

Please refer to your revision guides. Have a look at the BBC Website and research stories where defendants have been found guilty of gross negligence manslaughter. What sort of circumstances are they? If you have a better appreciation of how the law works in practice, you will understand the theory better.

Next Page »

Create a free website or blog at WordPress.com.