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A level law

Terms in this set (178)

Name the regulatory body for barristers, where it can refer cases to, and available sanctions
The independent Bar Standards Board was set up and regulates the profession of barristers. It sets out training and entry standards; a code of conduct which barristers should comply with. It investigates any alleged breach of the code of conduct; it can discipline any barrister who is in breach of the code - if the matter is serious it will be referred to an independent Disciplinary TribuName the regulatory body for solicitors, where it can refer cases to, and available sanctions
Name the 4 approaches
Literal rule, Golden rule, Mischief rule and Purposive approach.
Define the literal rule
Judges give words in statutes their ordinary natural dictionary meaning.
Give 3 advantages of the literal rule
It respects the supremacy of Parliament and leaves law making to those elected for the job. It encourages certainty in the law and the predictable result makes it easier for people to know what the law is and how judges will apply it.
Give 3 disadvantages of the literal rule
It sometimes leads to an absurd conclusion, words often don't have one plain ordinary meaning, or meanings change over time and its favoured by judges who are reluctant to use external aids; yet external aids could have cleared up any uncertainty over the interpretation of the Act.
Define the golden rule
A modification of the literal rule and may be used if the judge considers that the literal rule would lead to an absurd outcome.
How do the narrow and wider versions of the golden rule differ
The narrow version is used where words are capable of more than one meaning, the meaning that is least absurd should be used and the wider way is used to modify clear words in a statute to avoid an absurdity
Give some advantages of the golden rule
Judges can use it to prevent the absurdity and injustice caused by the literal rule, the judges put into practice what Parliament really means.
Give 3 disadvantages of the golden rule
Different judges may have different views on when a literal interpretation produces an 'absurd' result which can lead to uncertainty in the law and the unelected judges are beginning to make law so it is said to be undemocratic. its limited in its use so its only used on rare occasions.
Define the purposive approach
It requires the court to work out the general purpose of Parliament in passing the Act to fulfil that purpose, the courts look at the wording in the Act but are also willing to look outside the Act for meaning.
Give 2 advantages of the purposive approach
Its more likely to respect the wishes of Parliament since it seeks to find and fulfil the general purpose of parliament, it promotes flexibility in the interpretation of legislation and enables the law to be kept up to date by the judges filling in the laws.
Give 2 disadvantages of the purposive approach
It leads to uncertainty in the law - its impossible to know when judges will use this approach or what result it might lead to. its less suited to the more precise and detailed structure of English legislation.
Give 2 advantages of the mischief rule
It attempts to follow the will of Parliament rather than the exact words written by parliament and it promotes flexibility in the interpretation of legislation.
Give 2 disadvantages of the mischief rule
It increases the law making power of the unelected judges at the expense of Parliament and it dates back to Heydons case in the 16th century when there were far fewer statutes and those that were passed would have been less complex and thus easier to work out Parliaments intentions - this makes the rule less suited to the quantity and complexity of modern legislation.
Give 2 illustrations of the literal rule
Whitely Vee Chappell (1868) - D was charged under statute which made it an offence to impersonate any person 'entitled to vote'. D pretended to be a person whose name was on the voters list but who had died so was found not guilty since a dead person , in the literal meaning, is not 'entitled to vote'.
Fisher Vee Bell (1960) - D was a shopkeeper who displayed a flick knife with a price in his shop window. he was charged under the statute for making an 'offer for sale' of the flick knife. from contract law, putting an article in a window is not an offer to sell. the court used the literal rule and applied the technical legal meaning from contract law of 'offer for sale' so D was not guilty of making an 'offer for sale'.
Illustrate the wider version of the golden rule
Re Sigsworth (1935) - son murdered mother, mother hadn't made a will so normally her estate would be inherited by her next of kin according to rules set out in a statute. there was no ambiguity in the words of the act but it would not be in the publics interest to let a murderer benefit from his crime so by using the golden rule in a wider way the court modified the wording of the Act to prevent the son inheriting the estate.
Illustrate the narrow version of the golden rule
Alder Vee George (1964) - D was caught inside an RAF base where he was staging a protest. he was accused under a statute with obstructing a member of the armed forces 'in the vicinity of' the base. his defence was as he was inside the RAF base he couldn't be 'in the vicinity'. the court held that 'in the vicinity' could mean 'near to' or 'near to and within' and chose the second meaning to secure a conviction.
Define the mischief rule with the case
It was laid down in Heydon's case (1584) and provides that judges should consider 'what was the common law before the statute'; 'what problem, or 'mischief' was the statute trying to remedy'; 'what was the remedy proposed by Parliament'; 'what was the true reason for that remedy' when interpreting a statute.
Give 2 illustrations of the mischief rule
Smith Vee Hughes (1960) - it was used to interpret the offence of a prostitute soliciting 'in a street or public place', the court considered appeals by two women. one had been attracting male customers form a balcony and the other had been at a window of a ground floor room. the court decided they had been rightly convicted by magistrates because the mischief aimed at by the statute was to enable people to walk along the streets without being harassed by prostitutes. thus the statute was interpreted to stop this 'mischief' it didn't matter that they weren't literally on the street.
Royal college of Nursing Vee DHSS (1981) - there was a statute which provided that a lawful abortion could be carried out by a 'medical practitioner'. this clearly covered doctors but not nurses. advances in medical science meant form the early 1970's surgical abortions by doctors were largely replaced with abortions using drugs by nurses without a doctor present. on appeal, a majority of judges interpreted the relevant statute to stop the mischief of illegal abortions where no medical care was available and allow nurses to carry out abortions in hospital.
Give 2 illustrations of the purposive approach
Coltman Vee Bibby Tankers (1978) - A statute imposed liability on an employer for the death of an employee caused by defective equipment supplied by that employer. C died when a ship he was working on capsized because it had a defective hull and the court had to decide whether a ship was 'equipment', but this didn't refer to a ship. Despite this oversight by Parliament, the judges held that 'equipment' could include the ship. The company was liable for harm caused by defects in anything provided by the employer.
R Vee Registrar-General, Ex Parte Smith (1990) - D was a violent murdered who had mental health problems. having found out that he was adopted, Smith tried to find out the identity of his natural mother which he was entitled to know under the Adoption Act 1979. the registrar general refused; despite the fact that Smith was entitled to this information under the wording of the statute , the court held that it would go against the general purpose of the statute to provide information to someone who might, at some age, use it to cause harm.
Outline 4 intrinsic aids
the short and long title of the statute, definition sections, schedules towards the end of the statute which give extra detail required by earlier parts of the statute and the preamble which is the introduction to the statute.
What are intrinsic aids
clues within the statute itself that may help to make its meaning clearer
What are extrinsic aids
Materials which are outside a statute which the judges may use, together with the various approaches to interpretation to help them interpret a statute.
Outline the extrinsic aids and the 'rule' they may be used with
An authorised dictionary of the year the statute was passed (useful for literal rule), a law reform report on which the statute is based (useful for mischief rule), the INTERPRETATIONT 1978 if the word is covered by the 1978 act, hansard (the official record of what is said in Parliament) can be consulted where the word or phrase being interpreted was discussed in a parliamentary debate (useful for purposive approach) and an international treaty entered into by the UK if the word is defined there.
Give 2 examples of law reports
All England Law Reports and LexisNexis
What are Law reports and why are they necessary
Law reports are needed to publicise a judgment and to ensure that there is an accurate and authorised record of the reasons for decisions.
What is a binding precedent
A statement of law from an earlier case which must be followed even if the judge in the current case doesn't agree with the law. It's only created when the facts of the second case are sufficiently similar to the precedent and the decision was made by a court which is senior to the court hearing the current case.
What is a persuasive precedent
One which the court will considered and may be persuaded by but which does not have to be followed
What is a ratio decidendi and give it's status
The principles of law the judge is using to decide why a particular party won. It's the vital reason for deciding and it creates a binding precedent for judges to follow in later cases.
Give an example of a ratio decidendi
R Vee Howe(1987) that duress could not be a defence to the crime of murder because the law should not allow one person to decide that their life is more important than another's
What is an obiter dicta and give it's status
All the other points of law in the judgment which are not ratio. These comments are not vital to the outcome of the case and are often discussions of hypothetical situations. It's a persuasive precedent
Give an example of an obiter dicta
The comment in R Vee Howe(1987) that duress could not be a defence to the crime of attempted murder
Give two types of persuasive precedent other than an obiter dicta
Courts lower in the hierarchy than the court hearing the appeal and a dissenting judgment - a minority of judges that disagree with the majority of judges in a case.
Explain what overruling is
Where a precedent set by a lower court is said by a higher court hearing a separate case to have been wrong. The earlier case ceases to be a precedent for any point of law. Also some appellate courts can overrule their own precedents in certain circumstances.
Explain what distinguishing is
It occurs when a court of any level finds a difference in the material facts between the case it is hearing and a precedent. As a result the court may refuse to follow the precedent. It's a major factor in allowing precedent to remain flexible and allow case law to develop.
Give an example of distinguishing
Balfour Vee Balfour(1919) - Mr B agreed to pay living expenses to his wife while she was ill in the country and he was forced to work abroad. They separated and he stopped the payments. It was decided by the Court of Appeal that a claim by the wife for breach of contract should not succeed because there was no intention to create a legally binding agreement. Merit Vee Merrit (1971) also involved a wife suing her husband for breach of contract, but this time the wife was successful before the Court of Appeal because the material facts of the two cases were sufficiently different. Firstly, the agreement to pay maintenance had been made after the couple has separated. Secondly. The agreement in Merrit was made in writing. This distinguished the case from Balfour; the agreement in Merrit was a contract because there was an intention to create a legally binding agreement.
Which courts can overrule which other courts
Supreme court is the highest in the hierarchy so can overrule all of the other courts and itself, then the court of appeal is below it, then the high court is below that. Below the high court is the crown court in the criminal division and the county court in the civil division; below these are the magistrates in the criminal division and the tribunals in the civil division
What allows the Supreme Court to overrule itself
It can overrule its own precedents' when it appears right to do so', as provided for in THE PRACTISE STATEMENT OF 1966.
Give one example of the Supreme Court overruling itself with reasons
In Herrington Vee British Railways Board (1972) a boy trespassed on a railway line and was severely injured. He had been able to get on to the railway line because the Railways Board had not maintained the fencing properly. An earlier case of Addie Vee Dumbreck (1929), involving a child killed by machinery in a coal mine, had decided that there was no duty of care to maintain fencing where the trespasser was a child. In Herrington the Supreme Court used the practise statement to overrule their 1929 precedent because of the changed attitude of society towards child trespassers. The Railways board owed a duty of care to child trespassers and was liable.
Explain when the Court of Appeal can overrule itself and where these rules are found
They can use the exceptions from Young's Case and can also refuse to follow a precedent of its own if the judges in that earlier case have 'misapplied or misunderstood' the law and if liberty is involved : R Vee Taylor (1950)
Give a general description of how precedent works with the court hierarchy
Courts are bound by the ratio decidendi set by courts on the same level as them and above them, however aren't bound to follow the precedents set by courts below them but may be persuaded to follow them
Give 2 benefits of judicial precedent
It creates certainty in the law and as decisions are based on real cases it makes it easier to understand the law and apply it to future cases.
Give 2 problems with judicial precedent
Its too rigid so that bad decisions are difficult to change and the law slow to develop and its often seen as undemocratic as many argue that only Parliament, with MP's representing and accountable to the electorate, should create law with judges merely applying it.
Define 'stare decisis'
Stand by the decisions of past cases
What does judicial precedent refer to
The source of law where the past decisions of judges create law for future judges to follow in similar cases. This source of law is known as case law or common law. Its bases on the latin saying 'stare decisis', this supports the idea of fairness and provides certainty in the law.
Which two courts hear criminal trials
Magristrates' courts(where the trial is before three lay judges) and the crown court(where the trial is before judge and jury)
What are the three categories of offence and which courts are they heard in
Summary offences, which can only be tried at the Magistrates court; indictable offences which can only be tried at the crown court and either way offences which may be tried at either court
What are the criminal trial (first instance) courts?
Magistrates or crown court
What is the maximum sentence available in the Magistrates court
6 months per offence but if you are charged with two summary offences the maximum sentence is 12 months
What is the purpose of the sentencing council
They issue the sentencing guidelines and set out the starting point and the range of sentencing options for an offence and the kind of factors the court should consider. They may suggest a 'tariff' which is the sentence appropriate for the average example of the offence
Give an explanation of the mandatory life sentence of murder
The sentence lasts until you die but the judge is allowed to state the minimum number of years imprisonment that the offender must serve before being eligible for release on licence.
Give an explanation of the discretionary life sentence with one relevant offence
Its a life sentence where the maximum sentence is life imprisonment, but the court can give any lesser sentence where appropriate. Robbery carries a discretionary life sentence.
Give an explanation of a suspended sentence
A judicial punishment which is not enforced unless a further crime is committed during a specified period.
Give an explanation of the two financial sentences
Financial sentences can include a fine which is paid to the state and/or a compensation order paid to the victim.
What are the four common requirements of a community order
An unpaid work requirement (where the offender has to carry out unpaid work between 40 - 300 hours over a year on a project organised by the probation service), an alcohol/drug treatment requirement, a supervision requirement (where the offender is placed under the regular supervision of a probation officer for a period of up to 3 years), a curfew requirement (where the offender must remain at a fixed address for between 2-16 hours a day in a 24 hour period. This can be for a maximum of 6 months and the offender is usually electronically tagged.)
What are discharges
The least serious sentences and are usually imposed on first time minor offenders in the Magistrates' court.
Name and explain the two types of discharge
A conditional discharge (where if the offender commits a further offence in the stated period, then they can be resentenced for the original offence); or an absolute discharge (where no real penalty is imposed as the offender is technically guilty but not morally blameless.)
What is the aim of punishment/retribution
The idea that if someone has broken the criminal law they should be punished and get their 'just deserts' - receive the sentence their degree of fault deserves. to an extent, all sentences involve retribution
Explain both types of deterrence
An important way of sentencing is to punish in such a way as to reduce offending. One way of doing this is to impose severe sentences for crimes so that offenders are deterred from reoffending for fear of the consequences - known as individual deterrence and/or other people are deterred from offending because they don't want the same fate - known as general deterrence.
Explain incapacitation (protection of the public)
To achieve the aim of incapacitation the offender is given a sentence that makes them incapable of committing further crime. A long custodial sentence or community order with a curfew requirement are typically used to achieve this aim. Dangerous drivers are disqualified from driving.
Explain the aim of rehabilitation
It usually involves help (e.g. with anger management or drug addiction) to alter the offenders behaviour so that he will not reoffend. This sentence should take into account the personal circumstances of the offender and look to his future. Offenders will usually be given a community order with various requirements aimed at rehabilitating them.
Explain the aim of reparation
The making of reparation to victims is an increasingly important aim of sentencing. Its where the sentence tries to ensure that the offender makes amends. It might be achieved through a compensation order.
Give 4 factors in sentencing other than the usual aims
The maximum sentencing powers of the court, the maximum prison sentence allowed by court, the offender's background and any mitigating or aggravating factors.
What is the usual appeal route from the Magistrates' Court against conviction, and what are the possible outcomes
The case will be taken to the crown court with a judge and two magristrates where they will quash confirm or vary the conviction.
What is the appeal route from the Magistrates' Court against sentence, and what are the possible outcomes
The case will be sent to the crown court where there will be a judge and two magristrates and if the sentence is challenged as 'unduly harsh' the court will confirm it, decrease it or increase it up to the magristrates maximum.
Give details of the appeal route from the Magistrates JUST against conviction on a point of law and the possible outcomes
There will be a case stated appeal on the point of law to the Divisional court of Queens bench. The QBDC can confirm, vary or remit the case to the Magristrates Court to implement the decision on the law. They can also quash the conviction.
Describe the appeal route against conviction from the Crown Court and the possible outcomes
Leave is required and the case is sent to the court of appeal (criminal division) and they can order a re-trial at the crown court, quash the conviction, vary it or confirm it.
What are the two reasons why a defendant may be given permission (leave) to appeal from the Crown Court
The point of law or if new evidence is discovered
Describe the appeal route against sentence from the crown court and the possible outcomes
If the sentence is challenged as 'unduly harsh' it will be sent to the court of appeal (criminal division) where they will decrease it or confirm it.
Give the reason why permission (leave) will be given for an appeal to the Supreme Court
The case must involve a point of law of general public importance.
When can the prosecution appeal to the Court of Appeal
If the trial judge in the Crown Court gives a ruling on a point of law which effectively stops the case against D, the prosecution can appeal to the Court of Appeal against that ruling: CJA 2003. This right makes sure an error of law by the trial judge doesn't lead to an acquittal.
When can the prosecution appeal against a jury acquittal - CJA 2003
When the acquittal was the result of the jury being 'nobbled' (where one or more jurors are bribed or threatened by D's friend) and when there's a new and compelling evidence of the acquitted D's guilt and it is known in the public interest for D to be retried. This is known as double jeopardy, since D is being tried twice for the same offence. It's only available for very serious crimes, including murder, rape and terrorism offences.
What is the procedure for dealing with sentences that the prosecution does not think are severe enough
The Attorney-General can refer an unduly lenient sentence to the Court of Appeal for re-sentencing.
Describe the procedure if the prosecution believes D has been acquitted by a jury because of a mistake in law by the judge
Where the trial judge may have made an error in explaining the law to the jury, the prosecution have the right to refer that point of law to the Court of Appeal if D is acquitted. The decision by the Court of Appeal on the point of law does not affect the acquittal, but creates a precedent. Such appeals are referred to as Attorney-General's References.
What are cases that must be heard and sentenced by Magistrates
Cases involving summary offences such as assault
What are cases that can be heard and sentenced by Magistrates
Cases involving summary offences such as assault and either way offences such as theft
What is the maximum sentence available to Magistrates
6 months for one criminal offence, 12 months for two criminal offences and/or an unlimited fine
What is the role of Magistrates in relation to indictable offences
They deal with the first hearing of all indictable offences then transfer those cases to the Crown Court
What work do magistrates do in relation to police procedure and power
They can issue an arrest warrant and/or issue a search warrant to the police; they can extend the period of detention of a suspect at a police station and they decide whether D should be granted bail or remanded in custody between court appearances.
What do magistrates do with defendants aged 10 - 17 years old
Specially trained magistrates sit in the Youth Court to hear criminal charges against those aged 10 - 17 years old.
What civil work do Magistrates carry out
Specially trained magistrates sit in the Family Court to hear cases on family issues, such as parental disputes over the contact and residence of their children.
What is the role of Magistrates in a guilty plea to an either way offence
The magistrates must decide whether their sentencing powers are sufficient to sentence D or if the case should be committed to the Crown Court for sentence.
What is the appeal role of Magistrates
Magistrates will sit in the Crown Court with a judge where a case is on appeal from the Magistrates Court against conviction and/or sentence.
Give the full allocation hearing procedure for either way not guilty pleas
If D pleads not guilty, the magistrates must work out the most appropriate court to allocate the case for trial. They will hear arguments from the prosecution and defence, together with any relevant previous convictions. Generally, either way offences should be tried in Magistrates Court unless its likely that the court's sentencing powers will be insufficient. If the magistrates feel the case is not suitable for trial by a Magistrates Court, they will allocate it to Crown Court for trial. if the magistrates are prepared to hear the case, D is given a choice of trial court. An indication of the likely sentence will be given to help him or her decide.
How do Magistrates find out the correct law
Every bench of Magistrates is assisted by a legal advisor to guide them on points of law and procedure.
What criminal cases are heard by a jury
Juries try indictable offences and either way offences heard in a crown court
What are the four parts of a trial that a jury must listen to
The arguments and evidence presented by the prosecution and defence, any cross examination of witnesses by the defence and prosecution to try to show that the evidence of that witness is not reliable, the closing speeches of the prosecution and defence, the judges summing up of the evidence and directions of the relevant law
What is the juries role when the trial has finished
The jury will retire to the jury room to have a secret discussion and decide what the facts of the case are and then apply the law to those facts to decide on guilt or innocence - the verdict
What is the unanimity requirement and any exceptions of this
The jury has at least 2 hours to reach a unanimous verdict. Where this isn't possible, a majority verdict is allowed. Where there is a full jury of 12, the verdict can be 10-2 or 11-1 either for guilty or not guilty. If the jury has fallen below 12 for any reason then only one juror can disagree with the verdict. If there are only 9 jurors, the verdict must be unanimous. A jury cannot go below nine.
Describe the announcement of the verdict decided by the jury
There will be a public announcement of their verdict by the foreman in open court, though no reasons for the verdict have to be given.
What are the three basic jury qualification requirements
They have to meet the lower and upper age limits of between 18 and 75 years old, on the day they start jury service and they must be on the electoral register and they have to have lived in the UK for the necessary period of time - any period of at least 5 years since they were 13 years old.
What are the three categories of people disqualified from jury service
A person is disqualified if they are currently on bail, or if they have recent or serious convictions - a person who has been sentenced to a term of 5 or more years imprisonment is disqualified for life or if they are mentally disordered
When can a person be excused or have their jury service deferred for 'good reason'
If they are serving in the armed forces or experiencing serious ill health. Jurors aren't allowed to sit on cases where they know the victim, D or any witnesses. A judge at the court may discharge a person from being a juror for lack of capacity to cope with the trial - for example if they don't understand English
Give a point in favour of juries and a counter point
A point in favour is due to the secrecy of what is said in the jury room, the jury are free from pressure in their discussion, this allows juries to bring in verdicts that may be unpopular with the general public, as well as allowing jurors the freedom to ignore the strict letter of the law. However, as the jury's decision is reached in secret it is unpredictable, the reason for the decision is not known, so there is no way of knowing if the jury did understand the case and came to the decision for the right reasons.
Give a point in favour of juries and a counter point
The jury is independent and so can decide cases on their idea of 'fairness' rather than strictly applying the law, this is referred to as jury equity, in PONTING'S CASE (1984) a civil servant leaked information on the sinking of an enemy ship in the Falkland's war and at his trial he argued that he acted in the public interest so the jury acquitted him even though he had no defence in law. However, the fact that the jury can ignore the strict letter of the law may lead to perverse verdicts that are not justified, in R Vee POTTLE (1991) the D's were charged with helping the Soviet spy George Blake to escape from prison, their prosecution did not occur until 25 years after the escape, when they wrote about what they had done. The jury acquitted the D's, ignoring a clear direction from the judge to convict.
Give 3 advantages of a jury
D is tried by his or her peers and their is no public coincidence in the use of juries, the jury is considered as one of the fundamentals of a democratic society. it prevents the state randomly punishing citizens. The use of the jury makes the legal system more open, justice is seen to be done. trial by jury also helps to keep the law clearer as points have to be explained to the jury, enabling D to understand the case more easily. A jury should be impartial as it is not connected to anyone in the case. The process of random selection - by computer at the Jury Central Summoning Bureau - should result in a cross-section of society and an impartial jury. jurors will have different prejudices and so should cancel out each other's biases. a jury is also not case-hardened (dispassionate), as jurors usually only do two weeks of jury service.
Give 3 disadvantages of a jury
The use of a jury makes a case longer and more expensive, jury service can be a strain, especially where there is horrific evidence. Also the compulsory nature of jury service is unpopular with some. jurors may rush their verdict in order to leave as quickly as possible. In some cases the jury has used unreliable means of coming to a decision - in R Vee Young (1995) D was charged with murder, the jury had to stay overnight in a hotel and used an Ouija board to try to contact the victims. The jury convicted. The Court of Appeal ordered a retrial. Media coverage may influence a jury's verdict, especially in high profile cases. In R Vee West (1996) Rosemary West was convicted of 10 murders. On appeal she argued that the intense media coverage had made it impossible for her to receive a fait trial. The Court of Appeal dismissed the appeal because the trial judge had given adequate warning to the jury to consider only the evidence they heard in court.
What are the three types of lawyers in England and Wales
in England and wales there are two types of lawyers - barristers and solicitors, jointly referred to as the legal profession.
Explain barristers employment arrangements and where they work
about 12,700 barristers are self employed but usually work from a set of chambers sharing administrative expenses and the services of a clerk with a small number of other barristers. The majority of barristers will concentrate on advocacy - presenting cases in court.
what is the role of the barristers clerk
the clerk allocates work to the barristers and negotiates fees
Give examples of where employed barristers or solicitors might work
Self employed barristers usually work from a set of chambers, solicitors might work in private practice or they might work for the local government the civil service the CPS or a private business
Where do the majority of solicitors work
About 90000 are in private practice in a solicitors firm
What is the difference between a large city solicitors firm and a small high street firm
A small high street firm will usually be a general practice, advising clients on a range of topics such as consumer problems, housing and business matters and family problems. A large city firm on the other hand will concentrate largely on commercial and tax work.
Where do legal executives work
About 2000 legal executives are employed in solicitors firms as assistants
What is the main difference between the work of solicitors and barristers
The majority of barristers will concentrate on advocacy, presenting cases in court whereas a solicitor will largely do paperwork which includes conveyancing and drawing up wills and contracts as well as giving legal advice.
Explain 'direct access' in relation to both solicitors and barristers
It is no longer necessary to go to a solicitor first in order to instruct a barrister for civil cases, although in the majority of cases this will still happen. Direct access is still not allowed for criminal cases or family work. To do direct access work, a barrister must do additional training
What are the different rights or audience for barristers and solicitors
Barristers have full rights of audience, they can present cases in any court in England and Wales on behalf of another person. However some barristers specialise in areas of law which rarely require attendance at court like tax and company law. Solicitors have rights of audience in the Magistrates court and court. Those with sufficient experience of advocacy can obtain a higher courts advocacy qualification after passing various assessments
Give an explanation of 'Queens Counsel'
After at least 10 years as a junior barrister it is possible to apply to be a queens counsel. About 10% of barristers are QC's and they usually take on more complicated and high profile cases than junior barristers, and they command higher fees for their recognised expertise.
Who are the partners in a solicitors firm
...
What are the implications of the Legal Services Act 2007
It allows Legal Disciplinary Practices where up to 25% or partners in a firm can be non lawyers. Barristers can also work alongside solicitors in LDPs. It also allows Alternative Business Structures so instead of having a partnership, solicitors can form companies. Such companies don't have to be owned by solicitors like the Co-op, a national retailer, owns a company of solicitors.
Name the regulatory body for barristers, where they can refer cases to and available sanctions
The Bar Standards Board was set up and regulates the profession of barristers. It sets out training and entry standards; a code of conduct which barristers should comply with. It investigates any alleged breach of the code of conduct; it can discipline any barrister who is in breach of the code. If the matter is serious it will be referred to an independent Disciplinary Tribunal.
Name the regulatory body for solicitors, where it can refer cases to and available sanctions
The independent Solicitors Regulation Authority was set up and it sets out a code of conduct and deals with complaints about professional misconduct of solicitors. The SRA will investigate the matter; if there's evidence of serious professional misconduct it can put the case before the Solicitors Disciplinary Tribunal.
Name the regulatory body for legal executives, where it can refer cases to and available sanctions
The Chartered Institute of Legal Executives represents the interests of legal executives. It sets out a code of conduct but regulation is done by the CILEx regulation board which is an independent regulator and investigates complaints about legal executives. When an investigation is complete a summary of the issues is prepared and the matter is put to the Professional Conduct Panel for consideration. The panel will decide if there has been misconduct and if there has been misconduct it may reprimand or warn legal executive. It will refer serious matters to the Disciplinary Tribunal.
What is the purpose of the Legal Services Ombudsman
It deals with complaints against the handling of complaints by the BSB, SRA and CILEx Regulation Board.
Explain the powers of the Legal Services Obudsman
It can order the legal professional who was complained about to apologise to the client, give back any documents that the client might need, put things right if more work can correct what went wrong, refund or reduce the legal fees or pay compensation of up to £30,000.
Who are superior judges
Judges who sit in the Supreme Court, the Court of Appeal and the High Court. The Supreme Court, the Court of Appeal and the Queens Bench Divisional Court all here criminal appeals. The superior judges in these appellate courts are: the justices of the Supreme Court, the Lord Justices of Appeal in the Court of Appeal, High Court Judges in the Queens Bench Divisional Court. The head of the judiciary is the Lord Chief Justice.
What are cases heard by the judges in the Supreme Court
Appeals from the lower courts; they can be in civil or criminal cases. A case can only be appealed to the Supreme Court if it involves a point of law of general public importance and permission to appeal is given. Any decision the Supreme Court makes on a point of law becomes a precedent for all lower courts to follow in later similar cases. The justices of the Supreme Court hear about 100 cases each year.
Give names of Judges in the Supreme Court, the number of posts and the number that sit in a case
The Justices of the Supreme Court must sit as an uneven panel to hear an appeal (minimum of 3 judges, with the most important cases involving 9) there are 12 positions: one President (Lady Hale was appointed the first female President in 2017), one deputy president and 10 justices.
Give the number of posts in the Court of Appeal, and the number that sit in an appeal
Court of Appeal judges usually sit as a panel of three to hear appeals. On rare occasions in important cases there may be a panel of 5. Decisions by the Court of Appeal on points of law become precedents for all lower courts to follow in later similar cases. As of 2017, there are 38 judges on the court: 29 Lord Justices of Appeal and 9 Lady Justices of Appeal.
What are the two exceptions to the coincidence principle with authorities
Where the actus reus is part of some larger transaction, it will be sufficient that D forms men's rea at some point during that transaction - Church (1966). Where D has voluntarily been drinking and then goes on to commit a crime that can be committed recklessly, his intoxication is not a defence. D is seen as reckless in getting intoxicated in the first place so had the men's rea for the later offence - DPP Vee MAJEWSKI (1976)
How did the coincidence principle apply in FAGAN
In FAGAN Vee MPC (1969) - D was told by a police officer to park his car by the kerb. In doing this D drove on to the officers foot without realising he had done so. The officer repeatedly asked him to move off his foot but D delayed doing so. The court held that once D knew the car was on the officers foot he had the required mens rea. As the actus reus was still continuing the two elements of the crime were present together.
What is the principle of transferred malice with authority
Where D's mens rea is directed at one person, but D harms someone else, he can still be guilty. In such cases D's state of mind is transferred to the actual victim. Either intention or recklessness can be transferred. LATIMER (1886)
What is the general rule regarding actus reus and omissions
A statute may require D to act and omitting to do so will satisfy the actus reus, for example a motorist who drives without insurance under the Road Traffic Act 1988 commits an offence. Also, the common law may require D to act and omitting to do so will satisfy the actus reus.
What is the principle from PITTWOOD
D may be under a contractual duty to act. In PITTWOOD (1902) a railway crossing keeper omitted to shut the gates so that a person crossing the line was struck and killed by a train; the keeper was guilty of manslaughter because of the duty arising from his contract of employment.
What is the principle from SANTANA-BERMUDEZ/MILLER
D may be under a duty to take reasonable steps to prevent harm resulting a dangerous situation he has created. In DPP Vee SANTANA-BERMUDEZ (2004) a police officer wanted to search D's pockets. She asked him whether he had any sharp objects and he said no. In carrying out the search she was cut by a syringe he had in his pocket. D was liable for ABH because he had a duty to prevent the harm to the police officer by warning her about the needle and had to do so.
What is the principle from GIBBINS and PROCTOR
D may be under a family duty to act. In GIBBINS AND PROCTOR (1918) a father deliberately starved his child to death. His failure to feed his own child wad an omission which made him satisfy the actus reus of murder.
What is the principal from STONE and DOBINSON
D may be under a duty to act because he has voluntarily promised to care for V. In STONE and DOBINSON (1977) Stone's elderly sister came to live with the D's. She became ill. due to the incompetence and forgetfulness, both Ds failed to care for her or summon her help when she became helpless. V dies. Both Ds were convicted of manslaughter. By allowing V to come and live with them they had promised to care for her and then omitted to do so.
What is the principal from DYTHAM?
D may be under a duty to act through his official position. In DYTHAM (1979) a police officer saw a violent attack on V, but took no steps to intervene or summon help; instead he drove away from the scene. the officer was guilty of neglecting to perform his duty as an officer of justice.
Explain factual causation with authority
D will be a factual cause of a consequence, if the consequence would not have happened 'but for' D's conduct. In PAGETT (1983) D used his pregnant girlfriend as a shield while he shot at armed police officers. The police fired back and the girlfriend was killed. D was convicted for her manslaughter. She would not have died 'but for' him using her as a shield in a shoot out.
Explain legal causation with authority
D will be a legal cause of a consequence id D's conduct was more than a 'minimal' cause' of the consequence. thus others may contribute to the consequence. In BENGE (1865) D was a foreman charged with manslaughter when railway tracks were not re-laid in time and a train crashed as a result killing many people. D argued that although he was negligent, the flagman had not gone far enough up the track and the train driver had not been paying close enough attention. However, D was still a legal cause of the deaths as his conduct was more than a ' minimal cause'. Also there must be a direct link from D's conduct to the consequence; there musnt be an intervening act which breaks this chain of causation.
Explain the third party causation rule with authority
Where D's conduct causes reasonably foreseeable action by a third party the chain of causation will remain unbroken: PAGETT.
Explain the victim's actions causation rule with authority
V's own conduct is unlikely to break the chain of causation unless it is so daft that a reasonable person would not have foreseen V reacting in that way. In ROBERTS (1971) a girl jumped from a car in order to escape the sexual advances of D. The car was travelling at between 20 and 40 mph and the girl was injured through jumping from the car. D was held to be liable for her injuries as her reaction was reasonably foreseeable.
What are the two reasons why the chain of causation was broken in JORDAN
The medical treatment was 'palpably wrong' as V was taken to hospital (after being stabbed) where he was given anti-biotics after showing an allergic reaction to them and at the time of death his wounds were starting to heal. consequently the medical treatment broke the chain of causation and D had not caused the death and was not liable for it.
What is the main causation principle from CHESHIRE
The medical complications were a direct consequence of the shooting and D's act was still a significant cause of V's death. In CHESHIRE (1991) D had shot V who died later in hospital due to his windpipe becoming obstructed where surgery had been performed. The doctors negligently failed to spot the complications. Although the gunshot wounds were no longer life threatening at the time of death, D was liable for murder.
What is the main causation principle from SMITH
If at the time of death the original wound is still an operating cause and a substantial cause, the chain of causation is not broken by medical negligence. D will only avoid liability for the death if the medical negligence is so overwhelming as to make the original wound part of the history. In SMITH (1959) D, a soldier, got into a fight and stabbed another soldier. the injured soldier was taken to hospital; once there the medics failed to diagnose that his lung had been punctured. the soldier died of a punctured lung therefore D was convicted of murder and lost his appeal.
Give the full and correct explanation of the thin skull rule with authority
The chain of causation will not be broken if V has something about them which makes them more vulnerable like an inability to swim, a blood clotting disorder etc. D must take V as he finds him. In BLAUE (1975) D was held to have caused the death of a Jehovah's Witness whom he had stabbed, even though the young woman had refused a blood transfusion, on religious grounds, that would have probably saved her life. He had to take his victim as he found her.
Define direct intent with authority
D directly intends a result where it is his aim or purpose. D actually desires the result that occurs and sets out to achieve it: MOHAN (1976). For example where D deliberately punches V, she directly intends to use unlawful force on V.
Define oblique/ indirect intent with authority
A court may find that D indirectly intends a result where that result is virtually certain to occur and D knows this. In WOOLIN (1998) D 'lost his cool' when his baby started to choke and in a fit of frustration, threw him in the direction of his pram. The child missed his pram and fatally struck a wall. As a result, the House of Lords held on appeal that D should be guilty of manslaughter. The trial judge should have made it clear that D must know that the undesired result was virtually certain to occur, in order that the jury may find D indirectly intended the death.
Define recklessness with authority
D will have acted recklessly where he knows there was a risk of the result happening, but takes that risk. In CUNNINGHAM (1957) D tore a gas meter from the wall of an empty house in order to steal the money in it. This caused gas to seep into the house next door, making V ill. D was not liable since he did not know there was a risk of gas escaping into V's house. He has not intended to cause the harm, nor had he taken a risk he knew about.
Define negligence
D will have acted negligently if he is unaware of the risk, but ought to have been aware of it. i.e. D fell below the standards of a reasonable person.
define the principle of transferred malice with authority
Where D's mens rea is directed at one person, but D harms someone else , he can still be guilty. In such cases D's state of mind is transferred to the actual victim. Either intention or recklessness can be transferred. In LATIMER (1886) D aimed a blow with a belt at a man in a pub after that man had attacked him. The belt bounced off the man and struck a woman in the face. D was convicted of wounding the woman. His intention to harm the man was transferred to the actual victim. However, the principal of transferred malice is not available to make D guilty where D's mens rea is for a completely different type of offence. In PEMBLITON (1874) D threw a stone intending to hit people with whom he had been fighting. The stone missed them and smashed a pub window. He was not liable for the damage to the window because his intention to hit people could not be transferred to property.
define strict liability
An offence of strict liability means one where the prosecution need not prove mens rea for at least part of the actus reus. D must have committed the actus reus voluntarily, but does not have to be at fault. D can be liable for the offence even though he or she did not have a guilty mind at the time they committed the guilty act/
Give 2 illustrations of strict liability
In HARROW LONDON BOROUGH COUNCIL Vee SHAH (1999) the Ds owned a newsagent's shop. despite notices on display and relevant training, an employee sold a lottery ticket to a 13 year old boy. the employee mistakenly thought the boy was at least 16. the Ds were liable for selling a lottery ticket to a person under the age of 16 years. the offence didn't require any mens rea. the act of selling the ticket to someone who was actually under 16 was enough to make them guilty, even though they had done their best to prevent this happening in their shop. it was more important to try to deal with the problem of young people gambling than insist upon proof of mens rea. Also, in CALLOW Vee TILLSTONE (1900) D was a butcher who asked a vet to examine a carcass to check that it was fit for human consumption. when the vet recommended that it was fir, he offered it for sale. but the vet had been negligent and the meat was not fir. D was convicted of exposing unsound meat for sale, even though he was not at fault.
what are three justifications for strict liability
they help protect society - it makes sure that businesses are run properly; it is easier to enforce strict liability offences as there is no need for the prosecution to prove mans rea and it also saves court time as Ds are more likely to plead guilty so that no trial is required. The fact that D may not be blameworthy can be taken into account when sentencing.
What is the main argument against strict liability
It makes people who are not blameworthy guilty. even those who have taken all possible care will be found guilty and can be punished. This happened in HARROW LBC Vee SHAH where the Ds were guilty even though they had done their best to prevent sales of lottery tickets to anyone under the age of 16.
What is the principle from GAMMON
Where there is uncertainty, the case of GAMMON (1985) means that the courts will start by presuming that the prosecution must prove mens rea. This presumption will usually only be set aside and strict liability imposed where the statute involves an issue of social concern.
What are 'regulatory offences'
they are not thought of as being truly criminal matters. this includes offences regulating food safety (as in CALLOW Vee TILLSTONE) and the sale of alcohol and gaming tickets (as in HARROW Vee SHAH), the prevention of pollution and the safe use of vehicles.
What is the actus reus of an assault
Where by an act or words D causes V to apprehend immediate and unlawful force
What is the men's rea of an assault
It must be either causing intention or recklessness as to causing V to apprehend immediate and unlawful force : VENNA (1976)
What is the principle from CONSTANZA
The court held that letters could be an assault - written words can be an assault
What is the principle from IRELAND
It was held that silent phone calls could be an assault. There is no need for any physical contact
What is the principle from LOGDEN
It is necessary that V 'apprehends' unlawful force. To 'apprehend' something means to be aware of it. V does not have to be scared, nor does V have to be in danger.
What is the principle from SMITH Vee WPS
Immediate can mean imminent - it is sufficient if D does something that makes V aware that there would be unlawful force at some unpredictable moment in the near future
What is the principle from TUBERVILLE
Words indicating that there will be no immediate and unlawful force can prevent an act from being an assault.
What is the actus reus of battery
Where D's act or omission applies unlawful force to V.
What is the principle from COLLINS Vee WILCOX
Force can include the slightest touching, but not the ordinary 'jostling' of everyday life.
What is the principle from THOMAS
The unlawful force does not have to be applied to V's body; touching his or her clothes may be enough, even if V feels nothing.
What is the principle from HAYSTEAD
Unlawful force may be applied through an indirect act such as a booby trap. In this situation D causes force to be applied, even though he does not personally touch V.
What is the men's rea of battery with authority
The mens rea of battery must be either intention or recklessness as to applying unlawful force to V: VENNA (1976)
What is the first element of s.47 actus reus
There must be an actus reus of an assault or a battery
What is the basis of the three capacity defences and their names
The capacity defences mean that for whatever reason the mens rea is negated. The three capacity defences are the defence of insanity, the defence of intoxication and the defence of automatism.
What is the mens rea of s.47 with authority
Intention or recklessness as to an assault or battery : SAVAGE (1991)
What is the actus reus of s.20 with authority
it requires D to have inflicted GBH on V or to have wounded V.
What are the principles from BURSTOW and DICA
There appears to be very little difference between the two words 'inflict' and 'cause' : BURSTOW (1998). An example of GBH can be a serious disease like contracting HIV after sexual intercourse: DICA (2004)
What is the principle of BOLLAM
In deciding whether injuries amount to GBH, it is necessary to take into account V's age and health.
What is the principle of BROWN & STRATTON
A single minor injury to V, when added to other minor injuries inflicted on V can amount to GBH.
Give the definition of wound with authority
Wounding requires a breaking of the whole skin. The injury must be deep enough to break the inner skin.
What is the mens rea of s.20 with authority
Is defined by the word 'maliciously'. this means there must be an intention or recklessness that V might suffer some harm: MOWATT (1968)
What is the mens rea of s.18
its more serious than that for s.20. D must intend to do some GBH. D must directly intend to do some GBH or indirectly intend to do some GBH.
What is the relationship between the actus reus for s.20 and s.18
The actus reus of s.18 is similar to the offence of s.20 and like that offence requires proof of GBH or wounding. There appears to be very little difference between the two words 'inflict' and 'cause' : BURSTOW
What are the three states that can amount to automatism
No conscious control due to a spasm a reflex action or is not conscious of what he is doing
What is the principle from BAILEY
If D has been reckless in getting into an automatic state, self induced automatism cannot be a defence
What are the M'NAGHTEN insanity rules
Where D wants to rely on the defence, three elements have to be proved by D on a balance of possibilities: that at the time of committing the act D had a defect of reason and this defect of reason was the result of a disease of the mind and this defect of reason caused D not to know the nature and quality of his act, or not to know he was doing wrong
What is the principle from CLARKE
A defect of reason means that D was unable to reason at the time he acted. Temporary absent-mindedness or confusion is not enough
For any state to be automatism what must it have
D's automatic state must be caused by an external factor
What is the degree of impairment of conscious control needed for automatism, with authority
A total degree of impairment of conscious control- D must have no voluntary control over his actions - ATTORNEY-GENERAL'S REFERENCE (No.2 of 1992)(1993)
What is the ratio decidendi and the obiter dicta from SULLIVAN
The ratio decidendi is epilepsy was a disease of the mind and the obiter dicta is the disease can be a mental disease such as schizophrenia, paranoia and manic depression.
Define the second element of s.47 actus reus with authority
this must cause 'actual bodily harm'. the word 'actual' means the injury ' should not be so trivial as to be wholly insignificant': CHAN-FOOK (1994)
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