legaleasy

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

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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.

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

Fatal Offences Against the Person – Involuntary Manslaughter

Filed under: A2-Level,additional reading,domestic law,Fatal Offences — legaleasy @ 10:26 am

W/E 12th October 2007

This week we started to look at the first type of involuntary manslaughter – unlawful act manslaughter. This is where the defendant did not have the malice aforethought required for murder. It is also known as constructive act manslaughter. This is because the defendant’s actions “construct” to bring about the death of the victim.

4 elements must be established for constructive act manslaughter. These are;

1. an unlawful act;

2. the act must be dangerous;

3. the act must be substantial cause of death;

4. the defendant must have the required mens rea.

Unlawful Act

A criminal act is required. A tort is not sufficient. The unlawful act can be an offence against a person or property. Remember, if there is no unlawful act then there is no unlawful act manslaughter.

The Act Must Be Dangerous

The act is dangerous if a reasonable person would realise that the act could cause some physical harm to another.

Substantial Cause of Death

The unlawful act must be the substantial cause of death. This particularly relevant in cases where the defendant supplies the victim with illegal drugs for example. See the cases of Dalby.

Remember the normal rules of causation apply and there can be no novus actus interviens.

And finally,

Mens Rea

The mens rea required for unlawful act manslaughter is the mens rea required for the unlawful act itself. The prosecution does not have to prove that the defendant was at some risk of causing harm.

Additional Reading

Please refer to your revision guides and the books in the resource centre for further information.

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

Voluntary Manslaughter – Suicide Pact

Filed under: A2-Level,additional reading,domestic law,Fatal Offences — legaleasy @ 5:19 pm

W/E 5th October 2007

This week we finished off looking at special defences by considering the rarest of the defences – suicide pact.

Suicide Pact

This is under s4(1) of the Homicide Act 1957.

“it shall be manslaughter and shall not be murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or be a party to the other being killed by a third party.”

I would refer  you to your handout on this topic for more information. Take note of the subtle difference between a suicide pact and the offence of assisting suicide.

We also looked at the various problems with the current law of murder. One of the main problems is that if a defendant is convicted of  murder they are given a life sentence – there is no discretion. The special defences do go some way to redressing the balance however many critics  (including the Law Commission) do not think they go far enough.

There is also a significant overlap between the defences of diminished responsibility and provocation. Be aware of this in the exam.

Additional Reading

I have in the last few weeks provided you with lots of additional materials. Use them please. The deeper your knowledge, the greater your understanding – the better your result. Promise!

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

Voluntary Manslaughter – Provocation

Filed under: A2-Level,additional reading,domestic law,Fatal Offences — legaleasy @ 5:08 pm

W/E 28th September 2007

This week we continued looking at the special defences – this time concentrating on provocation.

Provocation

For the defence of provocation to work, the defendant must prove that the requirements of s3 of the Homicide Act 1957 have been satisfied. This means the defendant has to show that he was provoked  (whether by things done or by things said or by both together) to lose control.

The loss of self control must be sudden and temporary. It need not be immediate as is demonstrated by the phenomenon of “slow burn” – often demonstrated by victims of domestic violence. A time lapse may be enough to disprove the defence.

It is an objective test. The jury must decide whether in the circumstances a reasonable man would lose their temper. Although the jury can take into account the characteristics of the defendant.

This means that there is a fundamental contradiction at the heart of this defence as would a truly “reasonable” person ever be provoked?

Additional Reading

Please take the time to go back through the case studies looked at in class. You need to know not only the facts of these cases but also the legal principles they demonstrate. Test yourself. It is never too early to start revising!

21 September, 2007

Domestic Legislative Processes

Filed under: additional reading,AS-Level,domestic law — legaleasy @ 8:29 pm

W/E 21st September 2007

This week we started to look at Domestic Legislative Processes and Procedures. We discovered that the legislature is in three parts; the House of Commons, the House of Lords and the Crown in Parliament (represented by the Queen). We looked briefly at the make up of the House of Commons and the House of Lords. We also talked about the State Opening of Parliament and the Queen’s Speech.

We examined pre-parliamentary procedures such as where legislation comes from – manifesto pledges, the Law Commission, pressure groups etc; and also pre-legislative procedures like Green Papers and White Papers. We then discussed the importance of consultation by examining the example of the Dangerous Dogs Act 1991. 

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.

Additional Reading

Voluntary Manslaughter

Filed under: A2-Level,additional reading,domestic law,Fatal Offences — legaleasy @ 4:55 pm

W/E 21st September 2007 

This week we started to look at one of the other fatal offences against the person – Voluntary Manslaughter. This arises when a person has been charged with murder but their defence is successful in proving that there was mitigating circumstances – otherwise known as a special defence –  and the murder charge is reduced to one of voluntary manslaughter. The main advantage of this is that it allows a judge flexibility in dealing with the defendant who is responsible for the death of another but under special circumstances.

There are three special defences – these are;

1. diminished responsibility;

2. provocation;

3. suicide pact

Diminished Responsibility

For diminished responsibility the defence must show that the requirements of s2(1) of the Homicide Act 1957 have been satisfied.

This means that they need to show that the defendant was suffering from;

1. an abnormality of mind;

2. this was caused by arrested or retarded development of mind, an inherent cause, disease or injury; and

3. the abnormality of mind substantially impaired his mental responsibility for the killing.

Additional Reading

Please refer to your handouts and revision guides for further information. Read the real life cases provided in the newspaper special. You should become familiar with the types of real life scenarios that amount to diminished responsibility cases. This will help you spot them in the exam.

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