legaleasy

27 March, 2007

Module 3 – The Concept of Liability – An Introduction to Criminal Liability

Today we started Module 3 – The Concept of Liability. We began with an introduction to Criminal Liability.

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 Nedrik). Finally, there is recklessness – where a defendant knowingly takes an unjustifiable risk. The test for this was set out in Cunningham.

Please refer to your revision guides and the notes from class for more on these points.

We will revisit these concepts many times throughout this module when we start to look at the individual offences against the person. It is important that you understand these as you will need to apply the law to various scenarios as part of your exam.

Additional Reading

Please look at the revision guides on this topic

Please refer to the books in the Resource Centre

  • Hill v Baxter
  • Airedale NHS Trust v Bland
  • Pittwood Dytham
  • R v Gibbons & Proctor
  • R v Stone & Dobinson
  • Miller
  • DPP v Santana-Bermudez

Please remember to hand in your essay on the legal profession after the Easter Holidays.

Please remember the arranged revision day for 10 April 2007

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22 March, 2007

The Legal Profession

Filed under: additional reading,domestic law,homework — legaleasy @ 11:08 pm

20.03.07 and 22.03.07

This week we looked at the Legal Profession. This is the last topic in Module 2. We looked at the education, training, supervision, role and discipline of solicitors, barristers and legal executives.

The diagram below sums up the training and role of solicitors and barristers.

Diagram of Solicitors and Barristers

Legal Executives 

To become a Fellow of the Institutes for Legal Executives, you need to be over 25, have passed all the ILEX exams and worked in a solicitor’s office for at least 5 years. FILEXs tend to specialise in one area of law and deal with the most straightforward of cases. They have limited rights of audience.

We also discussed fusion. There are arguments for and against fusion of the two main branches of the legal profession to create a “super lawyer”. The debate has slowed down over the last few years due to the introduction of the Access to Justice Act 1999.

Discipline of Solicitors and Barristers

Many commentators have been critical of the self regulation of the legal profession. This led to the Clementi Report in 2004. This has led to both legal professions changing their complaints procedures and regulations. There are now lay members involved in all complaints panels.

Suing a Solicitor or Barrister

It is possible to sue a solicitor for breach of contract as there is a contract between solicitor and client. However, there is no such contract between a client and barrister. It is possible to sue a solicitor or a barrister for negligence in and out of court.

Homework – please hand in your essay on the legal profession on the first lesson back after the Easter Hols! 

Additional Reading

  • Please refer to your revision guides
  • Please refer to the text books in the Resource Centre
  • Clementi Report 2004
  • White v Jones (1995)
  • Hall v Simons (2000)

13 March, 2007

The Judiciary

Filed under: additional reading,dispute solving,domestic law,homework — legaleasy @ 9:32 pm

Today we finished off looking at the judiciary by examining their independence.

 We discussed Montesquieu’s theory on separation of powers.  We discovered that the Lord Chancellor (prior to the reforms in the Constitutional Reform Act 2005) occupied a role in all three arms of state. 

It is vitally important that we have an independent judiciary that is free from influence by politicians or the media in order that they may carry out their duties in an impartial and unbiased manner.  As early as the Act of Settlement 1700, this has been recognised.  This act set out, amongst other things, that the judiciary should be paid for by the state.  It also provided judges with security of tenure. 

Security of tenure means that a judge can carry out his or her duties without fear of being removed from office as a result of an unpopular decision.  They can only be removed from office through resignation, retirement, or dismissal on the grounds of misconduct or incapacity. 

Further, judges have immunity from suit. 

“Judicial immunity from suit means that a judge of a superior court (such as the High Court) cannot be sued for damages for acts done in his judicial capacity in good faith, even though he has acted mistakenly or in ignorance of his powers. Immunity from suit enables a judge to perform his duties with complete independence and freedom from fear of repercussions. Although he cannot succeed in a civil action for damages, the hapless litigant who is damaged in some way at the hands of the judiciary is not totally without remedy. He may, for example, appeal against the judge’s decision to a higher court or seek to have it set aside by [the process of judicial review] ….. Such a judge is only liable in a civil action for damages if he was not acting judicially, knowing that he had no jurisdiction to do what he did …. Prior to 1991, magistrates, as judges of inferior courts, had a more limited form of immunity from suit under the Justices of the Peace Act 1979 … The opportunity was taken in the Courts and Legal Services Act 1990 to amend the 1979 Act so as to give the magistrates the same immunity from suit as that enjoyed by judges of superior courts.”

 Terence Ingman, The English Legal Process

This too means that judges can act independently and without fear. 

Please remember your homework is due Tuesday 20th of March.

Additional Reading:- please see previous entry.

8 February, 2007

The Arrangements For Next Term

Filed under: dispute solving,homework — legaleasy @ 8:06 pm

Today we finished off the Criminal Court system by carrying out research on the role and function of the Criminal Cases Review Commission. We also spent some time comparing a summary trial and a trial by indictment. You need to know the differences, for example, in venue, decision makers, appeals routes, costs and timing.

We also discussed the arrangements for next term. You will need to work through the pack of tasks during the first two weeks. I will be in touch with arrangements for the following two weeks. 

Week One – ADR 

We have looked at how using the courts to resolve civil disputes can be costly, time consuming and very complex. A court case may not provide you with the outcome you are looking for. Further, courts are usually open to the public, so there is nothing to stop all the details of your dispute appearing in the national or local press. It is not surprising that many people and businesses are looking to resolve their dispute in an alternative way. This is known as Alternative Dispute Resolution (ADR) and is any method used other than courts to solve a dispute.

First Task 

Read through the article “The Civil Court and Alternative Dispute Resolution” and attached information sheets. Answer all the questions as fully as you can. Complete the crossword and the table on p121. I will be taking in all your work to mark. 

Second Task 

Read through chapter 2 of the revision guide (p11 onwards) and summarise the information in whatever way suits your own style of learning. Create lists, bullet point notes, mind maps, spider diagrams, posters, story boards, talk it through with a classmate or tape yourself reading aloud. It is up to you! Remember, if you miss this out, you will harm your grade. Take responsibility for your learning!  

Third Task

Plan an answer to the following question. Remember, the better the plan, the easier it is to write an answer. 

1 (a)     Alternative Dispute Resolution (ADR) can be used instead of the civil courts in order to settle a dispute. Describe any three forms of ADR (20 marks);

   (b)    Discuss the advantages of ADR as a form of dispute resolution. (10 marks) 

Once you have completed your plan as fully as possible, open the envelope provided. This contains a suggested plan to the essay. Compare your plan with this. Can your plan be improved? Have you missed anything out? Can my plan be improved? 

Fourth Task 

Now that you have your plan – write your answer. Try to write your answer in one go and not spend longer than 30 minutes on it. Think of this as exam preparation. ADR is another area that usually turns up in the exam. It is quite a narrow area with a limited number of questions. I will collect in your essays and your plans to mark.

Week Two – Lay People in the Legal Process 

There is a tradition of using non legally qualified persons in the decision making process of our court systems (lay people). There are generally two types of lay persons used today – magistrates and juries. We will look at both in this topic.

Fifth Task  

Read through the Information Sheets and Worksheets provided. Answer all the questions as fully as you can. Where the information sheet asks you to look at a website – LOOK AT THE WEBSITE! This will improve your understanding of the topic. As I have mentioned many times before, reading around the topic you are looking at will increase your understanding and improve your grade. I will be taking in all your work to mark.

Sixth Task 

Read through Chapter 6 of the revision guides (p35 onwards) and summarise the information in whatever way best suits your style of learning. Create lists, bullet point notes, mind maps, spider diagrams, posters, story boards, talk it through with a classmate or tape yourself reading aloud. It is up to you! Remember, if you miss this out, you will harm your grade. Take responsibility for your learning!

Seventh Task 

Plan an answer to the following question. Remember, the better the plan, the easier it is to write an answer.

2 (a)     Explain how jurors may or may not qualify for jury service, and describe how jurors are chosen to serve on a jury.  (15 marks)

   (b)    Identify and discuss the advantages and disadvantages of trial by jury. (15 marks) 
Once you have completed your plan as fully as possible, open the envelope provided. This contains a suggested plan to the essay. Compare your plan with this. Can your plan be improved? Have you missed anything out? Can my plan be improved?  

Eighth Task

Now that you have your plan – write your answer. Try to write your answer in one go and not spend longer than 30 minutes on it. Think of this as exam preparation. Lay People is another area that usually turns up in the exam. It is quite a narrow area with a limited number of questions. I will collect in your essays and your plans to mark. 

General Comments

  • Miss O’Shea will to collect the work due from you.
  • The first and fourth tasks are due at the end of the first week back after Half Term, that is by Friday 23rd February 2007.
  • The fifth and eighth tasks are due by Friday 2nd March 2007.
  • There are no excuses.
  • The tasks I have set you should take the entire class time we are missing together with a little homework.
  • Speak to Miss O’Shea if you have any problems.

1 February, 2007

Introduction To The Criminal Court System

Filed under: additional reading,dispute solving,homework — legaleasy @ 9:45 pm

1.02.07

Today we started to look at the Criminal Court System. We concentrated primarily on the role of the Crown Prosecution Service. Prior to 1986, all prosecutions were brought by the police. Now, the CPS is responsible for the vast majority of prosecutions in England and Wales. However, large shops and organisations such as the RSPCA can also bring private prosecutions against individuals.

The CPS is headed up by the Director of Public Prosecutions. The DPP answers to the Attorney General. The CPS is responsible for reviewing all cases and advising the police as to the validity of evidence. It is up to the CPS to decide whether to prosecute. There is a code of practice to assist the prosecutors with their decision. Before the CPS will prosecute they have to decide whether:-

1. The Evidential Test can be passed, i.e is the evidence gathered of sufficient quality and quantity to result in a conviction. Is the evidence admissable in court?

2. The Public Interest Test can be passed, ie is it in the public interest to bring a prosecution against an individual.

Each case is looked at on its merits.

Homework was set for Tuesday 6th February. This must be done – no excuses!

Additional Reading

See previous entries – look at the books available to you in the Resource Centre. Remember to have a look at  www.lawcom.gov.uk – its your chance to change the law!

18 January, 2007

Civil Court Structure

Filed under: Civil Court Structure,dispute solving,homework — legaleasy @ 9:49 pm

Today we carried on with our examination of the civil court structure and possible routes of appeal. Homework was set on the Woolf Reforms which gave us our present civil court structure. If you did not receive a copy of the homework, please come and see me. This is due Tuesday 23.01.07. You will be expected to comment on the Woolf Reforms in your exam – this is important!

31 October, 2006

Work for Thursday 2nd November 2006

Filed under: domestic law,homework — legaleasy @ 11:55 pm

Answer one of the following questions. Answer both parts of the question.

1(a) Explain, and illustrate with decided cases, the various judicial approaches to interpreting an Act of Parliament. (20 marks)

  (b) Discuss the advantages and disadvantages of any two of these approaches (or rules). (10 marks)

AQA June 2001

 – OR –

2(a) Describe the various rules and other aids available to a judge when interpreting an Act of Parliament. (20 marks)

  (b) Choose any two of these various rules or aids described in your answer to 2(a). Consider the advantages of their use. (10 marks)

AQA June 2004

Your answers need to be handed in Tuesday 7th November 2006.
 

12 October, 2006

Essay Question Model Answer

Filed under: european law,homework — legaleasy @ 9:01 pm

Today we looked at an essay question previously answered on comparing and contrasting the roles of the Commission and the Council of Ministers. We looked at a “model answer” and redrafted our essays taking into account the model answer and our individual targets. Please complete this re-draft for Tuesday 17th October 2006.

The redraft of the delegated legislation essay is due on 19th October 2006.

10 October, 2006

Group Presentations on the Domestic Process

Filed under: domestic law,homework — legaleasy @ 8:56 pm

This lesson saw three groups deliver their lessons on The Domestic Legislative Process.

Group 1’s presentation was on “Introducing an Act of Parliament”. We saw that the pressure for new laws comes from a variety of sources. The main ones are: Government policy; EU Law; Law Commission Reports; reports by other commissions or committees; and pressure groups.

We also looked at 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

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

Group 2’s presentation was on “The Process in Parliament”. We looked at the stages a bill goes through:

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.

Group 3’s presentation was on “Criticisms and Problems with Sovereignty”.

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.

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

  • see previous post
  • The Renton Committee Report 1975
  • The Hansard Society Commission 1992

5 October, 2006

Essay Question

Filed under: domestic law,homework — legaleasy @ 3:43 pm

Essay question: “Discuss the advantages and disadvantages of deligated legislation”.  Answers to this question are due Tuesday 10th October, 2006.

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