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GCE MARKING SCHEME

LAW
AS/Advanced

JANUARY 2011

INTRODUCTION

The marking schemes which follow were those used by WJEC for the January 2011
examination in GCE LAW. They were finalised after detailed discussion at examiners'
conferences by all the examiners involved in the assessment. The conferences were held
shortly after the papers were taken so that reference could be made to the full range of
candidates' responses, with photocopied scripts forming the basis of discussion. The aim of
the conferences was to ensure that the marking schemes were interpreted and applied in the
same way by all examiners.

It is hoped that this information will be of assistance to centres but it is recognised at the
same time that, without the benefit of participation in the examiners' conferences, teachers
may have different views on certain matters of detail or interpretation.

WJEC regrets that it cannot enter into any discussion or correspondence about these
marking schemes.

Page

LA1 (AS) 1
LA2 (AS) 13
LA3 (A2) - Option 1 24

LAW - LA 1
UNDERSTANDING LEGAL VALUES, STRUCTURES & PROCESSES

Q.1 (a) Explain the importance of the rule of law in England and Wales [14]
Credit reference to:
• The approach of Dicey. He held that there were three elements that
created the rule of law namely an absence of arbitrary power on the part
of the State; equality before the law; supremacy of ordinary law.
• Note the view of Hayek and also those of Raz.
• The Constitutional Reform Act 2005 recognised the rule of law and the
importance of the independence of the judiciary.
• The principles of natural justice should be observed such as requiring an
open and fair hearing with all parties being given the opportunity to put
their case.
• Rule of law within a wider context with overseas examples.

Marks AO3
Presents effective communication using appropriate legal
terminology. Nonetheless, there may be several errors in
1
grammar, punctuation and spelling, although not enough to
detract from communication of meaning.
Fails to communicate and present logical argument, including
inadequate use of legal terminology. There are significant
0
errors of grammar, punctuation and spelling which detract from
communication of meaning.

AO1
Marks
Knowledge and Understanding
Candidates display a sound knowledge and understanding of
the subject content relevant to the question and a good
perception of the concepts and principles underlying that subject
11-13
content. They display a sound understanding of the practical
application of the law and are aware of current debate and
criticism including the major proposals for reform.
Candidates display an adequate knowledge and understanding
of the subject content relevant to the question and have a
perception of some of the concepts and principles underlying
7-10
that subject content. They display a general understanding of
the practical application of the law and are aware of aspects of
current debate and criticism.
Candidates display a limited knowledge and understanding of
the subject content relevant to the question with limited insight
into some of the concepts and principles underlying that subject
3-6
content. They display a limited understanding the practical
application of the law and are aware in general terms of some of
the current criticisms.
Candidates display a basic knowledge and understanding of the
subject content relevant to the question and/or identify some of
the relevant principles. They demonstrate occasional basic
0-2
insights into some of the concepts and principles underlying the
subject content. They display a basic understanding of the
practical application of the law.

1

(b) Discuss the impact of the Human Rights Act 1998 on the legal system of
England and Wales. [11]

• The Human Rights Act 1998 and the European Convention on Human
Rights.
• The role of human rights and precedent and also statutory interpretation
and also trials.
• The impact of the role of human rights within a modern legal system.
• Human rights affecting the principles of sentencing.
• Judicial appointment and the need to ensure that at least the length of
appointments provides a guarantee of independence of the judiciary from
the Government.
• The relationship between the rule of law, human rights and morality as
pervasive concepts in the development of a modern legal system.

Marks AO3
Presents a wholly logical and coherent argument and provides
clear application using appropriate legal terminology. This
2
does not mean that there are no errors in grammar,
punctuation and spelling but these will only be occasional.
Presents a mostly logical and coherent argument and provides
a reasonably adequate application using appropriate legal
1 terminology. Whilst there may be errors in grammar,
punctuation and spelling, these are not enough to detract from
a most effective communication of meaning.

AO2
Marks
Skills
Candidates demonstrate a sound evaluation of how the law
operates, or an accurate and well-substantiated application of
the law to a given fact situation. This is achieved through their
8-9
selection of legal authorities, by appropriate methodologies and
by their ability to apply the law to a given question. They
support their conclusions by citation, analysis and analogy.
Candidates demonstrate an adequate evaluation of how the
law operates, or a generally accurate and substantiated
application of the law to a given fact situation. This is achieved
6-7
through their selection of legal authorities, by appropriate
methodologies and by their ability to apply the law to a given
question and support their conclusions by citation.
Candidates demonstrate a limited evaluation of some of the
points of how the law operates, or apply the law to a given fact
situation in a partly accurate and occasionally unsubstantiated
4-5
way. This is achieved through a limited selection of legal
authorities and limited ability to apply the law to a given
question.
Candidates demonstrate a basic evaluation of one of the
simpler points of how the law operates or apply the law to a
given factual situation in a generally inaccurate and
0-3
unsubstantiated way. There will be little or no reference to
legal authorities and points will not be developed. There will be
very limited evidence of structure in the candidate’s response.

2

Q.2 (a) Explain the sources of funding available to access justice in England and
Wales. [14]

• Community Legal Service.
• Criminal Defence Service and Public Defender Service.
• The various advice schemes.
• Alternative methods of funding.
• Conditional fee arrangements.
• The role of the Legal Services Commission.

Marks AO3
1
inadequate use of legal terminology. There are significant errors
0
of grammar, punctuation and spelling which detract from

AO1
Marks
Candidates display a sound knowledge and understanding of the
subject content relevant to the question and a good perception of
the concepts and principles underlying that subject content. They
11-13
display a sound understanding of the practical application of the
law and are aware of current debate and criticism including the
major proposals for reform.
Candidates display an adequate knowledge and understanding of
the subject content relevant to the question and have a perception
of some of the concepts and principles underlying that subject
7-10
content. They display a general understanding of the practical
application of the law and are aware of aspects of current debate
and criticism.
Candidates display a limited knowledge and understanding of the
subject content relevant to the question with limited insight into
some of the concepts and principles underlying that subject
3-6
0-2

3

(b) Discuss the extent to which there are unmet legal needs in England and
Wales. [11]

• The problems of advice deserts was considered by the Constitutional
Affairs Select Committee in 2004. There is plenty of evidence of the
dilemma of rurality and indeed this is one of the major issues being
addressed in the allocation of legal aid.
• The establishment of Community Legal Service which seeks to develop a
joined up approach to legal services.
• The significance of the third sector.
• The bringing together of consortia under one bidding process and the
importance of efficiency.

Marks AO3
clear application using appropriate legal terminology. This does
2
not mean that there are no errors in grammar, punctuation and
spelling but these will only be occasional.
Presents a mostly logical and coherent argument and provides a
reasonably adequate application using appropriate legal
1 terminology. Whilst there may be errors in grammar, punctuation
and spelling, these are not enough to detract from a most
effective communication of meaning.

AO2
Marks
Skills
8-9
by their ability to apply the law to a given question. They support
their conclusions by citation, analysis and analogy.
Candidates demonstrate an adequate evaluation of how the law
operates, or a generally accurate and substantiated application
of the law to a given fact situation. This is achieved through their
6-7
by their ability to apply the law to a given question and support
their conclusions by citation.
4-5 situation in a partly accurate and occasionally unsubstantiated
authorities and limited ability to apply the law to a given question.
Candidates demonstrate a basic evaluation of one of the simpler
points of how the law operates or apply the law to a given factual
situation in a generally inaccurate and unsubstantiated way.
0-3
There will be little or no reference to legal authorities and points
will not be developed. There will be very limited evidence of
structure in the candidate’s response.

4

Q.3 (a) Explain the role of the institutions of the European Union. [14]
• The emphasis is on presenting cases “on paper”. Lawyers are required to
present their arguments in a written form and there is far less reliance on
oral presentation of a case.
• The difficulty of operating a European court where there is a wide range of
languages involved though French is the traditional language of the court.
• The use of the Advocate General. The independent lawyer is not used in
English law. However in the European Court of Justice the Advocate
General will present his findings on the law after the parties have made
their submissions.
• The deliberations of the judges are secret and where necessary the
decision will be made by a majority vote. However when the judgement is
delivered again in written form it is signed by all the judges who formed
part of the panel so that it is not known if any judges disagreed with the
majority. This contrasts strongly with the English system.
• The European Court of Justice is not bound by its own previous decisions.
• The court has wide rights to study extrinsic material when deciding the
meaning of provisions and may study preparatory documents.

Marks AO3
1
0

AO1
Marks
11-13
7-10
and criticism.
3-6
0-2

5

(b) Evaluate the role of the European Court of Justice in the development of
European law. [11]

• Structure, member ship and powers of the Parliament Commission
Council
• The court sits in Luxembourg and has 27 judges one from each member
state
• The function of the ECJ as set out in Article 19 of TEU.
• The court sits in Luxembourg and has 27 judges one from each member
state. The court is assisted by 9 advocates general.
• The court’s task is to ensure that the law is applied uniformly in all
member states. For an early example of whether a member state has
failed to fulfil its obligations in respect of the United Kingdom see, for
example, Re Tachographs (1979).
• Preliminary rulings and Article 234 (TFEU).
• Discretionary referrals, for example, Bulmer v Bollinger (1974).

Marks AO3
2
Presents a mostly logical and coherent argument and provides
a reasonably adequate application using appropriate legal
1 terminology. Whilst there may be errors in grammar,
punctuation and spelling, these are not enough to detract from a
most effective communication of meaning.

AO2
Marks
Skills
8-9
by their ability to apply the law to a given question. They
support their conclusions by citation, analysis and analogy.
of the law to a given fact situation. This is achieved through
6-7
their selection of legal authorities, by appropriate methodologies
and by their ability to apply the law to a given question and
support their conclusions by citation.
4-5
authorities and limited ability to apply the law to a given
question.
Candidates demonstrate a basic evaluation of one of the
simpler points of how the law operates or apply the law to a
given factual situation in a generally inaccurate and
0-3
unsubstantiated way. There will be little or no reference to legal
authorities and points will not be developed. There will be very
limited evidence of structure in the candidate’s response.

6

Q.4 (a) Explain the powers available to grant bail. [14]
• Police powers to grant bail – Section 38 of PACE as amended by the
Criminal Justice and Public Order Act 1994.
• Conditional bail – the types of conditions include asking the suspect to
surrender his passport, report at regular intervals to the police station or get
another person to stand surety for him.
• Where the police do not grant bail they must bring the defendant in front of
the Magistrates Court at the first possible opportunity. Bail can be granted
by the Magistrates Court and also by the Crown Court.
• The Bail Act 1976 whether it is a presumption in favour of bail so long as
there is no significant risk of further offending or where there are
exceptional circumstances taking into account the nature of the offence
such as murder or manslaughter or rape.
• In all cases bail can be refused if there are reasonable grounds for
believing that the defendant would fail to surrender or would commit further
offences or would interfere with witnesses.
• Some of those in prison are awaiting trial and could have been given bail
and there is a problem of balancing this against the need to protect the
public.

Marks AO3
terminology. Nonetheless, there may be several errors in grammar,
1
punctuation and spelling, although not enough to detract from
inadequate use of legal terminology. There are significant errors of
0
grammar, punctuation and spelling which detract from

AO1
Marks
11-13
display a sound understanding of the practical application of the law
and are aware of current debate and criticism including the major
proposals for reform.
the subject content relevant to the question and have a perception of
7-10 some of the concepts and principles underlying that subject content.
They display a general understanding of the practical application of
the law and are aware of aspects of current debate and criticism.
They display a limited understanding the practical application of the
law and are aware in general terms of some of the current criticisms.
subject content relevant to the question and/or identify some of the
relevant principles. They demonstrate occasional basic insights into
0-2
some of the concepts and principles underlying the subject content.
They display a basic understanding of the practical application of the
law.

7

(b) Discuss the role of the Crown Prosecution Service within the English and
Welsh legal system. [11]

• Deciding on what offences should be charged.
• Reviewing all cases passed to them by the police.
• Being responsible for the case as it has been passed to them by the
police.
• Conducting the prosecution of cases in the Magistrates Court.
• Conducting cases in the Crown Court – this can be done either by
instructing an independent lawyer to act as Prosecuting Council of the
Court or a Crown Prosecutor with the appropriate advocacy qualification.
• Discontinuation of cases by reference to the evidential test and the public
interest test.

Marks AO3
2

AO2
Marks
Skills
operates, or an accurate and well-substantiated application of the
law to a given fact situation. This is achieved through their
8-9
operates, or a generally accurate and substantiated application of
6-7
0-3

8

Q.5 (a) Explain the civil appeal process [14]
• The main Appellate Courts are the Divisional Courts, the Court of Appeal and
the House of Lords.
• The Divisional Courts, the QBD which has two main functions to hear appeals
by way of case stated from the criminal cases; it also has supervisory prowess
over inferior courts and tribunals and also over the actions and decisions of
public bodies and Government Ministers through judicial review; the Chancery
Division Court; the Family Division Court.
• The Court of Appeal Civil Division was set up by the Judicature Act 1873 and
was initially intended to be the final Court of Appeal. However the position of
the House of Lords and the final Appellate Court was reinstated by the
Appellate Jurisdiction Act 1876. Today the Court of Appeal has two Divisions,
Civil and Criminal. The Civil Division is the main Appellate Court for civil
cases and is headed by the Master of the Rolls. The Court of Appeal mainly
hears appeals from the following courts – all three Divisions of the High Court;
the County Court for multi-track cases; the upper tier tribunal.
• The Supreme Court is the final Court of Appeal in England and Wales. Prior
to 2009 the final Court of Appeal was the House of Lords.
• The mechanisms available in terms of permission to appeal and the appeal
routes in civil cases.

Marks AO3
Presents effective communication using appropriate legal terminology.
Nonetheless, there may be several errors in grammar, punctuation
1
and spelling, although not enough to detract from communication of
meaning.
0
grammar, punctuation and spelling which detract from communication
of meaning.

AO1
Marks
subject content relevant to the question and a good perception of the
concepts and principles underlying that subject content. They display
11-13
a sound understanding of the practical application of the law and are
aware of current debate and criticism including the major proposals
for reform.
Candidates display an adequate knowledge and understanding of the
subject content relevant to the question and have a perception of
They display a general understanding of the practical application of
the law and are aware of aspects of current debate and criticism.
subject content relevant to the question with limited insight into some
3-6 of the concepts and principles underlying that subject content. They
display a limited understanding the practical application of the law
and are aware in general terms of some of the current criticisms.
0-2
law.

9

(b) Discuss the nature of Equitable Remedies available to the courts in England
and Wales. [11]

• These are remedies which have been developed by equity and the key
fact of such remedies is that they are not given automatically. The court
has discretion in deciding whether or not an Equitable remedy should be
granted.
• Injunctions including interlocutory injunctions.
• Specific performance.
• Rescission.
• Rectification.
• Credit shall be given for appropriate citation.

Marks AO3
2

AO2
Marks
Skills
8-9
6-7
0-3

10

Q.6 (a) Explain the different types of jury trial available in England and Wales. [14]

• Criminal and civil juries including coroner’s courts.
• Candidates will be rewarded for relevant citation.

Marks AO3
1
grammar, punctuation and spelling, although not enough to detract
from communication of meaning.
0

AO1
Marks
11-13
7-10
and criticism.
3-6
0-2

11

(b) To what extent is trial by jury reliable? [11]

• The role of juries particularly in complex matters, for example, involving fraud.
• The selection and composition of the jury. Occasional evidence emerges
which supports the contention that verdicts are reached on inappropriate
criteria.
• Candidates will be rewarded for citation of appropriate legal research.
• Candidates will be rewarded for discussion on measures proposed to limit
jury trial, for example, the Roscoe Committee on Fraud Trails; the Diplock
Courts and Northern Ireland.

Marks AO3
2

AO2
Marks
Skills
8-9
6-7
0-3

12

LAW - LA2

UNDERSTANDING LEGAL REASONING, PERSONNEL AND METHODS

Q.1 Study the text below and answer the questions based on it

Appointments to the High Court

00351: High Court 2008
Stage of Gender % Ethnic Background % Disabled Professional Background %
Exercise %
Men 79 BME * 5 Disabled Solicitor
Eligible 40
Pool Women 21 Not Disabled Barrister
/Incomplete 60
Men 39 87 White 45 100 Disabled 1 2
Women 6 13 BME * 0 0 Not Disabled 44 98 Solicitor 1 2
/Incomplete
Incomplete 0 0 Any Other 0 0 Barrister 39 87
Incomplete 0 0 Salaried Judicial Post 2 4
Holder – former
Shortlisting Barrister
Salaried Judicial Post 2 4
Holder – former Solicitor
Holder – no single legal
background
Other/Unknown 0 0
Men 17 77 White 22 100 Disabled 1 5 Solicitor 0 0
Women 5 23 BME* 0 0 Not Disabled 21 95 Barrister 20 91
/Incomplete
Incomplete 0 0 Any Other 0 0 Salaried Judicial Post 1 5
Holder – former
Selections Barrister
made Incomplete 0 0 Salaried Judicial Post 1 5
Holder – former Solicitor
Holder – no single legal
background
Other/Unknown 0 0

* = BME – Black, Minority , Ethnic
Source: Judicial Statistics (2009) Extract

13

(a) Explain the appointment of High Court Judges. [14]

• CRA 2005
• Judicial Appointment Commission
• Jurisdiction

Marks AO3
1
0

AO1
Marks
11-13
7-10
and criticism.
3-6
relevant principles. They demonstrate occasional basic insights
0-2
into some of the concepts and principles underlying the subject
content. They display a basic understanding of the practical
application of the law.

14

(b) To what extent are High Court Judges representative of society? [11]

• High Court judges are by legislation restricted to Solicitors and Barristers.
• Unrepresentative of sectors of society notably women and racial minorities.
• The role of judges in interpreting the law and the impact of
representativeness of society as being part of the legitimacy of the legal
system.
• The impact of failure to ensure that judges are not a statistical cross
section of society – the nature of the restrictions placed upon the
appointment process in terms of the essential competencies for High
Court judicial appointments.

The role of the
• There are around 115 High Court judges sitting in the three divisions of the
High Court. Many try cases in London but in addition at each major court
centre throughout the country there will be two or three High Court judges
trying criminal, civil and family law cases in that area.
• The role of the circuit system and the hierarchy of judges particularly when
High Court judges visit the regions.
• The implications of the circuit system and the fact that judges very often stay
in lodgings.
• The role of the High Court in the system of precedent.

Marks AO3
Presents a wholly logical and coherent argument and provides clear
application using appropriate legal terminology. This does not mean
2
that there are no errors in grammar, punctuation and spelling but
these will only be occasional.
and spelling, these are not enough to detract from a most effective

AO2
Marks
Skills
law to a given fact situation. This is achieved through their selection
8-9
of legal authorities, by appropriate methodologies and by their ability
to apply the law to a given question. They support their conclusions
by citation, analysis and analogy.
6-7
selection of legal authorities, by appropriate methodologies and by
their ability to apply the law to a given question and support their
conclusions by citation.
Candidates demonstrate a limited evaluation of some of the points
of how the law operates, or apply the law to a given fact situation in
4-5 a partly accurate and occasionally unsubstantiated way. This is
achieved through a limited selection of legal authorities and limited
ability to apply the law to a given question.
situation in a generally inaccurate and unsubstantiated way. There
0-3
will be little or no reference to legal authorities and points will not be
developed. There will be very limited evidence of structure in the
candidate’s response.
15

Q.2 Study the text and answer the questions based on it.
“Pressure groups are an important element in promoting the reform of English and
Welsh law. They are organisations of people who all believe in the same cause.
Whether it is a sectional group, campaigning for personal gain, or a cause group,
working towards a specific cause, they all possess strongly held views and wish to
influence some aspect of society. They use many methods to influence including the
use of traditional media such as newspapers but more commonly nowadays through
the use of electronic media such as the internet. Other than these, the most common
methods they tend to use involve carrying out petitions, distributing leaflets whilst
some pressure groups employ professional lobbyists to speak to MPs on the group’s
behalf.”
Source – unattributed

(a) Explain with examples the role of pressure groups in promoting law reform.
[14]
• Distinguishing between groups campaigning for personal gain and groups
working towards a specific cause. Examples could include the Firearms
(Amendment) Act of 1997 which arose out of the Dunblane gun massacre
in March 1996.
• The Anti-Terrorism, Crime and Security Act 2001 arose out of the terrorist
attack on the Twin Towers in New York in September 2001. One of the
provisions of this Act was to allow the detention without charge of non UK
citizens where the Home Secretary believes that the person’s presence in
the UK is a risk to National Security. This provision was held to be a
breach of Human Rights in 2005.
• Pressure groups may also cause the Government to reconsider the law
on certain areas, for example, the Disability Discrimination Act; the Civil
Partnership Act 2004 which gave the right to same sex couples to register
their partnership and have a civil ceremony. This was the result of
changing attitudes to same sex partnerships.

Marks AO3
1
0

16

AO1
Marks
11-13
7-10
and criticism.
3-6
0-2

17

(b) Evaluate the role of the Law Commission in the law reform process in
England and Wales. [11]
• The mission of the Law Commission is to make the law simpler, fairer,
cheaper to use. This is anticipated in the legislation establishing the Law
Commission in 1966.
• The appropriateness of the Law Commission in the context of the devolved
settlement – there are separate Law Commissions for Scotland, Northern
Ireland but there is a combined Law Commission for England and Wales.
• Reform projects are included in the Programme of Works submitted to
Parliament – identification of the examples of the work of the Law
Commission.
• Identification of the process involved in the Law Commission cycle, for
example, the publication of a Consultation Paper following research and
analysis of case law, legislation and academic and profession opinion.
• Credit should be given to references from the data available on the
effectiveness of the Law Commission as a reforming mechanism in English
law.

Marks AO3
application using appropriate legal terminology. This does not
2
mean that there are no errors in grammar, punctuation and spelling
but these will only be occasional.

AO2
Marks
Skills
law to a given fact situation. This is achieved through their selection
8-9
of legal authorities, by appropriate methodologies and by their ability
to apply the law to a given question. They support their conclusions
by citation, analysis and analogy.
6-7
Candidates demonstrate a limited evaluation of some of the points of
how the law operates, or apply the law to a given fact situation in a
4-5 partly accurate and occasionally unsubstantiated way. This is
0-3
will be little or no reference to legal authorities and points will not be

18

“Cases do not necessarily stay as good law for ever. Case law constantly evolves
and cases may be overruled at a later date. In order to determine whether it is
possible for a lawyer to rely on a case as authority the knowledge of the history of the
case will be important. For the purposes of binding precedent a case can have direct
as well as an indirect history. The direct history of a case refers to other court
decisions on the same case. Indirect history of a case refers to how the case has
been affected by other cases.

A number of events may apply to a case in its history, for example, whether the case
is applied; considered; doubted; distinguished; explained; not followed; overruled.
Electronic sources of law such as Westlaw or Lawtel or LexisNexis will provide the
history of a case. The current law case citatory will also provide similar information.”
[Source: The English Legal System, Legal Skills Guide web site (Routledge and Cavendish]

(a) Explain with appropriate examples, how judges avoid awkward precedents.
[14]
• Applied is where a subsequent court has used the same principle with a
new set of facts
• Considered is where the decision in the original case was discussed but
not actually applied, followed or distinguished.
• Doubted is where a subsequent court doubted the decision of the original
case but had no authority to overrule it.
• Distinguished is where a subsequent court chooses not to follow the
original decision by demonstrating that there are significant differences
between the two cases even though the subsequent court is otherwise
bound by the doctrine of binding precedent.
• Explained is where a subsequent court further elaborates on what was
meant in the original decision.
• Not followed is where a decision is not followed by a court of co-ordinate
jurisdiction.
• Overruled is where a superior court subsequently declares that the
decision in the original case is wrong.
• Credit will be given for relevant citation.

Marks AO3
1
inadequate use of legal terminology. There are significant
0
errors of grammar, punctuation and spelling which detract from

19

AO1
Marks
11-13
the subject content relevant to the question and have a
perception of some of the concepts and principles underlying that
7-10
subject content. They display a general understanding of the
practical application of the law and are aware of aspects of
current debate and criticism.
3-6
0-2

20

(b) Evaluate the advantages and disadvantages of the doctrine of precedent in
English and Welsh law. [11]

• The main advantages are certainty, consistency and fairness in the law;
precision; flexibility; time saving.
• The main disadvantages are rigidity; complexity; illogical distinctions;
slowness of growth.
• Credit reference shall be given for relevant citation.

Marks AO3
2

AO2
Marks
Skills
8-9
6-7
0-3

21


House of Commons Written Answer June 2010

Lisa Nandy: To ask the Secretary of State for Business, Innovation and Skills whether he
plans to seek any amendment to the EU Agency Workers Directive. [1659]
Mr Davey: The agency workers directive was proposed by the European Commission in
2002, it was finally adopted by the European Council of Ministers in June 2008 and by the
European Parliament in October 2008.
The final version of the directive was published in December 2008 and has to be
implemented by all member states into national law by December 2011. Therefore we do
not intend to seek any amendment as the directive has already been finalised.
The directive does foresee a review by the European Commission in December 2013 in
consultation with member states and social partners at European level to review the
application of the directive. This may result in proposals for amendments. This is normal
practice for similar directives.
Source: Parliament website (June 14 2010)

(a) Explain the role of European directives in English and Welsh law. [14]

• Not directly applicable (Article 288).
• Have a vertical direct effect if give individual rights and are clear (the Marshall
case).
• No horizontal direct effect (Duke v GEC Reliance).
• Individual can claim against State for loss cause by failure to implement (the
Francovich case).

Marks AO3
1 Nonetheless, there may be several errors in grammar, punctuation and
spelling, although not enough to detract from communication of meaning.
Fails to communicate and present logical argument, including inadequate
0 use of legal terminology. There are significant errors of grammar,
punctuation and spelling which detract from communication of meaning.

AO1
Marks
Candidates display a sound knowledge and understanding of the subject
content relevant to the question and a good perception of the concepts
11-13 and principles underlying that subject content. They display a sound
understanding of the practical application of the law and are aware of
current debate and criticism including the major proposals for reform.
subject content relevant to the question and have a perception of some
display a general understanding of the practical application of the law
and are aware of aspects of current debate and criticism.
Candidates display a limited knowledge and understanding of the subject
content relevant to the question with limited insight into some of the
3-6 concepts and principles underlying that subject content. They display a
limited understanding the practical application of the law and are aware
in general terms of some of the current criticisms.
Candidates display a basic knowledge and understanding of the subject
content relevant to the question and/or identify some of the relevant
0-2 principles. They demonstrate occasional basic insights into some of the
concepts and principles underlying the subject content. They display a
basic understanding of the practical application of the law.

22

(b) Evaluate the primary and secondary sources of European law. [11]

• The primary sources are mainly the treaties, the most important of which is the
Treaty of Rome.
• The effect of the European Communities Act 1972, Section 2 (1) which states
that treaties are without further enforcement to be given legal effect within the
UK. Relevant cases here could be Van Duyn v Home Office (1974); Macarthys
Limited v Smith (1980).
• The growing influence of European law is shown in that British courts are now
prepared to apply European law directly rather than wait for the European Court
of Justice to make ruling on a point, for example, the Connaughton case (1996).
• Secondary sources of legislation are those passed by the Institutions of the
Union under Article 288. This secondary legislation is of three types:
regulations, directives, and decisions.
• Regulations – the relevant provisions relate to Article 288 (TFEU).
• As with the regulations it is Article 288 (TFEU) that gives the power to the Union
to issue directives. Note difference from the regulations in that Article 288 says
that such directives bind any Member of State to which they are addressed as to
the result to be achieved, while leaving the domestic agencies competence as
to form and to means. Credit reference to appropriate directives such as the
working time directive.
• Decisions, for example, decisions issued under the power of Article 288 by the
European Court of Justice.

Marks AO3
application using appropriate legal terminology. This does not mean that
2
there are no errors in grammar, punctuation and spelling but these will only
be occasional.
reasonably adequate application using appropriate legal terminology.
1
Whilst there may be errors in grammar, punctuation and spelling, these are
not enough to detract from a most effective communication of meaning.

AO2
Marks
Skills
Candidates demonstrate a sound evaluation of how the law operates, or
an accurate and well-substantiated application of the law to a given fact
8-9 situation. This is achieved through their selection of legal authorities, by
appropriate methodologies and by their ability to apply the law to a given
question. They support their conclusions by citation, analysis and analogy.
Candidates demonstrate an adequate evaluation of how the law operates,
or a generally accurate and substantiated application of the law to a given
6-7 fact situation. This is achieved through their selection of legal authorities,
by appropriate methodologies and by their ability to apply the law to a
given question and support their conclusions by citation.
Candidates demonstrate a limited evaluation of some of the points of how
the law operates, or apply the law to a given fact situation in a partly
4-5 accurate and occasionally unsubstantiated way. This is achieved through
a limited selection of legal authorities and limited ability to apply the law to
a given question.
Candidates demonstrate a basic evaluation of one of the simpler points of
how the law operates or apply the law to a given factual situation in a
0-3 generally inaccurate and unsubstantiated way. There will be little or no
reference to legal authorities and points will not be developed. There will
be very limited evidence of structure in the candidate’s response.

23

LAW - LA3

UNDERSTANDING SUBSTANTIVE LAW

OPTION 1 - CONTRACT AND CONSUMER LAW

Answer two questions.


Charlie is a promoter and owns the Wales Exhibition Centre. He also collects coal
sculptures and despite having no formal training considers himself an authority in
respect of such sculptures. Whilst looking around Dave’s “Great Welsh Coal” Art
Gallery he sees a sculpture entitled “Nutty Slack” and thinking it to be a Robert
Bando, a famous sculptor of the school, buys it for £30,000.

Charlie plans to exhibit the sculpture in the Wales Exhibition Centre and receives
£15,000 in advance ticket sales and a separate £45,000 from the Cambrian Museum
which wants to borrow the sculpture for an exhibition. The Wales Exhibition Centre is
destroyed by fire the night before the exhibition begins along with the sculpture.
Additionally, when the sculpture remains were examined by the insurers it was
discovered that the sculpture was made of much lower grade coal, that it had been
mass produced in a souvenir shop in Yorkshire and was worth only £2.50.

Charlie is now being pursued by members of the public for the return of the money
from the advance ticket sales and also by the Cambrian Museum for the £45,000
paid to him.

(a) In the light of reported case law and other sources of law, advise Charlie. [14]

• Frustration.
• Common mistake.
• The nature of frustrating events.
• Impossibility.
• Discussions on the doctrine of frustration including common assumption;
contract becoming more onerous; event provided for; self induced
frustration; supervening event foreseeable.

Marks AO3
1
0

24

AO2
Marks
Skills
11-13
7-10
0-2

25

(b) Explain the importance of legislation and the approach taken by judges in the
interpretation of statutes in the above scenario. [11]
• Section 6 Sale of Goods Act 1979.
• Section 7 Sale of Goods Act 1979.
• The approach of the Sale of Goods Act as codifying precedent and the
application of case law in interpretation.
• Law Reform (Frustrated Contracts) Act 1943.
• Candidates will be rewarded for appropriate citation.

Marks AO3
2
and spelling, these are not enough to detract from a mostly effective

AO1
Marks
the concepts and principles underlying that subject content making
an entirely convincing synoptic connection with elements of
8-9 knowledge gained in understanding legal reasoning and methods
and understanding legal structures and processes. They display a
sound understanding of the practical application of the law and are
for reform.
content making a convincing synoptic connection with elements of
6-7
knowledge gained in understanding legal reasoning and methods
general understanding of the practical application of the law and are
aware of aspects of current debate and criticism.
some of the concepts and principles underlying that subject content
making a limited synoptic connection with elements of knowledge
3-5
gained in understanding legal reasoning and methods and
understanding legal structures and processes. They display a
limited understanding the practical application of the law and are
aware in general terms of some of the current criticisms.
0-2
content making a limited synoptic connection with basic elements of

26

Q.2 Study the text below and answer the questions based on it.
John is the tenant of “The Moon” public house in Tewkville. The terms of the lease
agreement provided that John should pay Philip, the landlord, £2,000 per month for a
period of 8 years from January 1st 2010. Payment was due in advance on the first working
day of each month.
One year after starting the tenancy another pub opened in the locality and John suffered a
slump in business. He informed Philip that he could not pay full rent of £2,000 per month.
It was agreed that the rent be reduced to £1,000 per month “until things improved”. For the
next six months John paid the revised amount of £1,000 on the first day of the month by
bank transfer.
On July 1st 2010 payment was not received by Philip because for technical reasons the
Bank could not transfer the money. In fact the Bank was able to transfer money on July 2nd
2010 and this was credited to Philip’s account on July 3rd 2010. Having not received the
money on July 1st, Philip telephoned John and said that he was now reverting to the
original agreement and that John should also pay him £6,000 being the amount owed to
him.
(a) In the light of reported case law and other sources of law advise John. [14]
• Doctrine of promissory estoppel.
• Estoppel of where this is a shield and not a sword
• Past consideration.
Marks AO3
Nonetheless, there may be several errors in grammar, punctuation and
1
spelling, although not enough to detract from communication of
meaning.
0
grammar, punctuation and spelling which detract from communication of
meaning.
AO2
Marks
Skills
Candidates demonstrate a sound evaluation of how the law operates,
or an accurate and well-substantiated application of the law to a given
fact situation. This is achieved through their selection of legal
11-13
authorities, by appropriate methodologies and by their ability to apply
the law to a given question. They support their conclusions by citation,
analysis and analogy.
operates, or a generally accurate and substantiated application of the
law to a given fact situation. This is achieved through their selection of
7-10
legal authorities, by appropriate methodologies and by their ability to
apply the law to a given question and support their conclusions by
citation.
Candidates demonstrate a basic evaluation of one of the simpler points
of how the law operates or apply the law to a given factual situation in
a generally inaccurate and unsubstantiated way. There will be little or
0-2
no reference to legal authorities and points will not be developed.
There will be very limited evidence of structure in the candidate’s
response.

27

(b) Explain the significance of doctrine of precedent in the above scenario. [11]

• The Doctrine of promissory estoppel is a creature of precedent.
• Development of the Doctrine of promissory estoppel within the context of
case law should be fully discussed.
• The nature of what is a binding decision and the hierarchy of courts.

Marks AO3
clear application using appropriate legal terminology. This does not
2
mean that there are no errors in grammar, punctuation and spelling
but these will only be occasional.
and spelling, these are not enough to detract from a mostly

AO1
Marks
the concepts and principles underlying that subject content making
an entirely convincing synoptic connection with elements of
8-9 knowledge gained in understanding legal reasoning and methods
sound understanding of the practical application of the law and are
for reform.
6-7
general understanding of the practical application of the law and
are aware of aspects of current debate and criticism.
content making a limited synoptic connection with elements of
3-5
limited understanding the practical application of the law and are
0-2 content making a limited synoptic connection with basic elements
of knowledge gained in understanding legal reasoning and
methods and understanding legal structures and processes. They
display a basic understanding of the practical application of the
law.

28

Bobby wanted to sell a Highland Terrier pup. He put the following advertisement into
the Dog Monthly Magazine.
“For sale, 3 month old, thoroughbred Highland Terrier pup, £150.”
Margaret, a mother of three young children, came to see the dog. In answer to her
questions, Bobby confirmed that the pup was sweet-tempered, house-trained and
ideal for small children. Margaret decided to buy the pup.
When she returned home the dog became very vicious and the dog bit her children, it
also became obvious that the dog was not house-trained. When Margaret took the
dog to the vet he confirmed that it was a cross-breed between a Highland Terrier and
a Bull-Dog.

(a) In the light of reported case law and other sources of law, advise Margaret. [14]
• Nature of the advertisement as a representation.
• Innocent, negligent, fraudulent misrepresentation.
• Limits to the rights of rescission.

Marks AO3
1
0

AO2
Marks
Skills
11-13
7-10
0-2
29

(b) Explain the available sources of assistance for Margaret in funding litigation.
[11]
• Analysis of the financial position and discussion of the Community Legal
• Service fund.
• Private means.
• Conditional fees.
• The significance of legal insurance.

Marks AO3
2
and spelling, these are not enough to detract from a mostly

AO1
Marks
the concepts and principles underlying that subject content
making an entirely convincing synoptic connection with elements
8-9 of knowledge gained in understanding legal reasoning and
methods and understanding legal structures and processes.
They display a sound understanding of the practical application of
the law and are aware of current debate and criticism including
the major proposals for reform.
6-7
and understanding legal structures and processes. They display
a general understanding of the practical application of the law and
are aware of aspects of current debate and criticism.
content making a limited synoptic connection with elements of
3-5
and understanding legal structures and processes. They display
a limited understanding the practical application of the law and
are aware in general terms of some of the current criticisms.
0-2 subject content making a limited synoptic connection with basic
elements of knowledge gained in understanding legal reasoning
and methods and understanding legal structures and processes.
They display a basic understanding of the practical application of
the law.

30

Francis shops at Cheap Supermarkets Ltd. Last August, he went and did his family
shopping and selected most of the items from the shelves. However, the meat was
cut and weighed and given to him from the meat counter in the store. He also bought
6 bottles of wine at a special price of £4 each.
At the cash desk Francis did not notice that the cashier had rung up £5 for each of
the bottles of wine. Whilst the other items were being rung up he changed his mind
about buying the meat and left it to one side. When the total was added up Francis
paid by credit card. When he checked the bill on the way out of the store he
discovered the discrepancy in the price charged for the wine. He was so angry that
he now wishes to reject all the shopping.
(a) In the light of important case law and other sources of lawm, advise Francis.
[14]
• Offer and acceptance.
• Supermarket scenario and case law.
• Acceptance of goods and unilateral offer.
• Section 75 Consumer Credit Act 1974 and financial limits.

Marks AO3
1
0

AO2
Marks
Skills
11-13
their ability to apply the law to a given question. They support their
conclusions by citation, analysis and analogy.
7-10
Candidates demonstrate a limited evaluation of some of the points
of how the law operates, or apply the law to a given fact situation in
3-6 a partly accurate and occasionally unsubstantiated way. This is
0-2
will be little or no reference to legal authorities and points will not
be developed. There will be very limited evidence of structure in
the candidate’s response.

31

(b) Explain the mechanisms available outside of litigation in resolving this dispute.
[11]

• The civil procedure rules and pre-action protocols.
• Alternative dispute resolution mechanisms.
• Codes of practice adopted voluntarily by certain Trade Associations.
• Informal mechanisms.
• Trading standards.
• Candidates will be rewarded for appropriate citation.

Marks AO3
2
1 Whilst there may be errors in grammar, punctuation and spelling,
these are not enough to detract from a mostly effective

AO1
Marks
concepts and principles underlying that subject content making an
entirely convincing synoptic connection with elements of knowledge
8-9
understanding legal structures and processes. They display a sound
the subject content relevant to the question and have a perception of
some of the concepts and principles underlying that subject content
making a convincing synoptic connection with elements of knowledge
6-7
understanding legal structures and processes. They display a
general understanding of the practical application of the law and are
of the concepts and principles underlying that subject content making
a limited synoptic connection with elements of knowledge gained in
3-5
understanding legal reasoning and methods and understanding legal
structures and processes. They display a limited understanding the
practical application of the law and are aware in general terms of
some of the current criticisms.
some of the concepts and principles underlying the subject content
0-2
making a limited synoptic connection with basic elements of

32

LAW - LA3


OPTION 02 – CRIMINAL LAW & JUSTICE

Q.1 Liam caught his girlfriend kissing Noel. Liam became angry and hit Noel with a
baseball bat. Noel suffered a fractured skull, and spent a month in hospital. One day
he was told by his doctor, Shelagh, that he could be discharged the next day as his
injury had almost completely healed, although he would need to take painkillers for
several more weeks. On the day of his leaving hospital Noel was given his painkillers
by Rodney, the hospital pharmacist. Rodney had wrongly calculated the dose, and
each painkiller contained four times the recommended dose. The next day Noel took
one of the painkillers and collapsed. Two days later Noel died.

(a) In the light of reported case law and other sources of law, consider whether
Liam may be criminally liable for Noel’s death. [14]

(b) Explain the avenues of appeal available to Liam if he is convicted by the
Crown Court. [11]
Part (a)
• Elements of murder and manslaughter.
• Mens rea of murder: intention to kill or cause grievous bodily harm. Case
law, e.g., Cunningham, Maloney.
• Actus reus of murder and manslaughter: common law definition.
• Causation: causation in fact – the “but-for” test (e.g., White, Dalloway);
causation in law and the de minimis principle.
• Case law on causation where it is alleged that medical negligence has
contributed to the death of the victim: Smith, Jordan, Cheshire.
• Discussion of whether chain of causation is broken on the facts of the
problem.
• Manslaughter: voluntary and involuntary.
• Voluntary manslaughter: defences to murder; provocation/loss of control;
diminished responsibility.
• Involuntary manslaughter: unlawful act manslaughter; manslaughter by
gross negligence (Adomoko).
Part (b)
• Appeal from the Crown Court to the Court of Appeal (Criminal Division).
• Appeal may be against conviction, sentence or both.
• Criminal Appeal Act 1995 – appeal against conviction – a defendant must
obtain either a certificate from the trial judge stating that the case is fit for
appeal, or leave from the Court of Appeal (Criminal Division).
• Admission of fresh evidence – the CA may admit new evidence, provided
it seems capable of belief, it may afford a ground of appeal, and there is a
reasonable explanation why it was not called at the trial before the Crown
Court.
• The Court of Appeal (Criminal Division) will allow the appeal if they
consider that the conviction was “unsafe”.
• An appeal against sentence will only be allowed if the sentence was
wrong in principle.
• Further appeal to the Supreme Court only on a point of law of public
importance: leave is required.

33

Q.2 Harriet was arrested after the police found a bag containing Class A drugs in her
garden shed. She was taken to the police station, where she had her fingerprints and
a DNA sample taken. Harriet asked if she could let her mother know of her arrest,
and speak to a solicitor. Both requests were refused. Harriet was then questioned for
twelve hours without a break. Throughout the interview she continually denied any
knowledge of the bag, until one of the officers told her that her fingerprints had been
found on the bag. This was completely untrue, but by this time Harriet was so
distressed that she agreed to sign a confession.

(a) In the light of reported case law and other sources of law, consider the legality
of the actions of the police. [14]

(b) Explain the factors which the Crown Prosecution Service would consider
when deciding whether to prosecute Harriet. [11]


Part (a)
• Police and Criminal Evidence Act 1984 (PACE), and the Codes of
Practice.
• Arrest – s.24 as amended; s.28; s.30; Code G.
• Role of custody officer; written notice to be given to the suspect of his/her
rights and entitlements.
• Fingerprints – may be taken without authorisation or consent under s.61
as amended by the CJA 2003; may be retained under Criminal Justice
and Police Act 2001, s.82, whether or not the suspect is charged with
any offence.
• DNA samples – may be taken without consent if taken as a non-intimate
sample under s.65, and may be retained under CJPA 2001, s.82.
• Right of suspect to have someone informed of arrest: s.56.
• Right of suspect to free legal advice: s.58.
• Circumstances where the above rights may be delayed for up to 36 hours.
• Interviews – must be recorded: s.60, and the suspect cautioned before the
interview begins. Code C governs the conduct of interviews, including the
length of time for which suspects may be questioned without a break and
their entitlement to rest periods.
• Confession evidence may be excluded at trial if obtained by oppression:
s.76(2)(a), or in circumstances which make it unreliable: s.76(2)(b) – e.g.,
failure to provide access to legal advice (Samuel, Chung) or failure to
comply with Code C, such as failure to caution before interview (Doolan).
• Any evidence including a confession may be excluded under s.78 on the
ground that it would adversely affect the fairness of the trial, e.g., serious
and substantial breaches of PACE or the Codes.

34

Part (b)
• Code for Crown Prosecutors issued under the Prosecution of Offences
Act 1985.
• The Full Code test – two parts, both of which must be satisfied in order to
bring a prosecution.
• The Evidential Test – whether the evidence is substantial and reliable;
whether it was obtained in circumstances which would make it admissible
in court; whether on the evidence there is a realistic prospect of
conviction. If this test is not passed, then the case should not proceed.
• The Public Interest Test – whether it is in the public interest for a
prosecution to be brought in this particular case. Matters which should be
considered, e.g., the seriousness of the offence; the likelihood of a
substantial sentence; the prevalence of such offences; the nature of the
victim; whether the offence was against a police officer or someone
serving the public; the characteristics of the defendant (whether old, very
young, whether the prosecution might have harmful effects on his/her
physical or mental health, etc.).

35

Q.3 Kyle, Jordan and Ciaren went to their end of term prom. After all three had drunk a
considerable quantity of alcohol, Kyle accidentally spilt a glass of wine on Jordan’s
dress. Jordan thought Kyle had done this on purpose, and aimed a blow at Kyle, but
missed and hit Ciaren instead. Ciaren stumbled backwards and broke his elbow.
Jordan went to help Ciaren, but Kyle thought Jordan was going to hit him again, and
rugby-tackled Jordan to the floor with such force that she suffered serious internal
injuries. Kyle was later arrested by the police.

Jordan and Kyle have committed any offences, taking account of any
defences which might be available to them. [14]

(b) Explain the powers of the police to grant Kyle bail and impose conditions
upon him. [11]


Part (a)
• Assault and battery at common law; Criminal Justice Act 1988, s.39.
• More serious offences of assault and battery under the Offences Against
the Person Act 1861 – s.47: causing actual bodily harm; s.20: malicious
wounding/inflicting grievous bodily harm; s.18: causing grievous bodily
harm with intent.
• Elements of these offences and application to the scenario, with reference
to case law.
• Transferred malice, e.g., Latimer.
• Possible defences –
• Private defence; reasonable force in the prevention of crime under
Criminal Law Act 1967, s.3. The need for the force used to have been
reasonable in the circumstances as the defendant believed them to be:
case law on private defence and mistaken belief in the necessity for
private defence.
• Effects of intoxication upon criminal liability; distinction between offences
of basic and specific intent; case of Majewski.

Part (b)
• Power of custody officer to grant bail: Police and Criminal Evidence Act
1984, s.38, as amended by the Criminal Justice and Public Order Act
1994.
• The general presumption of a right to bail under the Bail Act 1976, s.4.
• Circumstances in which bail need not be granted: where the name and
address of the suspect cannot be ascertained or is believed to be false;
where the suspect may commit further offences; where the suspect may
cause harm to others or to him/herself; where there is a need to keep the
suspect in custody for his/her own protection; where the suspect may
interfere with witnesses or evidence.
• If bail is not granted by the police, the suspect must be brought before the
magistrates as soon as possible.
• Conditions which may be attached to bail; examples of bail conditions.

36

Q.4 Chris is a diabetic who often ignores his doctor’s advice to ensure that he takes his
insulin and eats regularly. One day he drove into town without bothering to take his
insulin first. This caused him to lose concentration and drive too close to a tree,
disturbing a nest of bees. The angry bees swarmed into the car through the open
sunroof and began to sting Chris, causing him to lose control of the car and crash
into a shop window. Chris was not injured, but Jane, a customer in the shop, was cut
by flying glass.

any possible defences might be available to Chris if he were charged with a
criminal offence. [14]

(b) Explain what sources of legal funding may be available to Jane if she decides
to sue Chris. [11]


Part (a)
• Defence of automatism – absence of voluntary control over bodily
movements: A-G’s Reference (No.2 of 1992).
• Examples, e.g., concussion or the swarm of bees example given in Hill v
Baxter.
• Self-induced automatism – the distinction between offences of specific
and basic intent recognised in Bailey - held by the CA that the defendant
will not be convicted of an offence of specific intent.
• Held further in Bailey that the defendant can be convicted of an offence of
basic intent if he was reckless in the sense of appreciating before he did
the act which caused him to become an automaton that it would have
this effect, but deliberately ran the risk of endangering others by
becoming aggressive or uncontrollable.
• Relationship between insane and non-insane automatism – the distinction
between external causes and internal causes – cases such as
Henessey, Sullivan, Quick.

Part (b)
• Access to civil legal aid – reformed by the Access to Justice Act 1999 –
the Legal Services Commission now controls the Community Legal
Service Fund and makes contracts with solicitors and other agencies to
provide legal services.
• Exclusion of personal injury cases from the above.
• Alternatives – the conditional fee scheme, introduced in 1995 under the
Courts and Legal Services Act 1990, allows solicitors to take personal
injury cases on the basis that if they win they can charge the normal fee.
(This can be uplifted to 25% of the damages awarded through the
recovery of costs from the other side).
• The Law Society’s “Accident Help Line” deals with personal injury cases
under the conditional fee scheme and covers both legal advice and
representation on a “no win, no fee” basis.

37

LAW - LA3


OPTION 03 - FREEDOM OF THE INDIVIDUAL AND THE PROTECTION OF HUMAN
RIGHTS

Q.1 Rhoda has learning difficulties. She was seen by PC Will and PC Hay wandering
down the High Street offering £5 notes to passers-by. PC Will and PC Hay
approached Rhoda and asked what she was doing, but could not understand her
response. PC Will held Rhoda’s arms behind her back while PC Hay searched her
pockets and found a number of £5 notes. The two officers took Rhoda to the police
station. On arriving, PC Will said to the custody officer: “You won’t get any sense out
of this one. Just chuck her in a cell and we’ll sort her out later.” Rhoda was kept in a
cell for 16 hours. During that time she was subjected to an intimate search by PC
Hay. Rhoda was released after 25 hours when the care home which looks after her
reported her missing.

(a) In the light of reported case law and other sources of law, consider the legality
of the actions of the police. [14]

(b) Explain what legal advice and assistance is available to Rhoda if she wishes
to sue the police in the civil courts. [11]


Part (a)
Police and Criminal Evidence Act 1984.
Stop and search powers, PACE ss.1-3 and Code A.
Arrest: PACE s.24 as amended by SOCAPA 2005.
Duties of custody officer under PACE and Code C.
Rights of persons in detention: right to have someone informed of arrest
(s.56); right to legal advice (s.58).
Intimate search: PACE s.65 – authorisation; grounds (to recover something
capable of causing injury, or a Class A drug); normally must be carried out by
doctor or nurse: drug search only to be carried out on medical premises by
doctor or nurse; search for something capable of causing injury may be
carried out by officer of same sex if authorising officer considers it
impracticable.
Time limits on detention: PACE s.41 as amended.
Detention review: PACE s.41.

Part (b)
• Access to Justice Act 1999.
• Legal Services Commission.
• Community Legal Service Fund; fixed budget.
• Community Legal Service provision.
• Eligibility: means test and merits test.

38

Q.2 John was on his way home from work one evening when he was caught up in an
anti-war demonstration that was taking place. As he tried to push his way through the
large group of protesters, he heard a police officer shout through a loud-hailer that
everyone was to stay where they were and that nobody was to leave. The police then
proceeded to put up a cordon around the group to stop them from moving. John tried
to speak to one of the police officers to explain that he was not involved in the
demonstration and was on his way home. The officer told him to shut up and said
they were all being detained for breach of the peace. When John continued to argue,
the officer arrested him.

(a) In the light of reported case law and other sources of law, consider
whether the police were acting within their powers [14]

(b) Explain to John the powers of the police to grant bail. [11]


Part (a)
• Breach of the peace: power of police to detain or arrest.
• Actual and anticipated breach: Moss v McLachlan.
• Human Rights Act 1998, art.10 of the ECHR – freedom of
expression; art.11 – freedom of assembly.
• Need to take account of whether the response of police is
proportionate and necessary to prevent a breach – Steel v UK,
Laporte.
• Austin – police can justify the actions as an exercise of the powers
under s.12 and s.14 of the Public Order Act 1986 even if they did
not have these powers in mind.

Part (b)
• Power of custody officer to grant bail under the Police and Criminal
Evidence Act 1984, s.38.
• Circumstances when bail need not be granted – name and
address of suspect cannot be ascertained or believed to be false;
reasonable belief that suspect will re-offend, interfere with
witnesses, be a danger to others or him/herself; necessary to keep
suspect in custody for his/her own protection.
• If suspect is not given bail, must be brought before magistrates as
soon as possible.
• Conditions which may be attached to bail: examples.
• Street bail.

39

Q.3 Preston Past, a famous footballer, went to a nightclub to celebrate the birth of his first
child and drank several bottles of champagne. He was approached by a female fan,
who asked him for his autograph. Preston signed the fan’s autograph book, gave her
a kiss on the cheek, and posed with his arm around her while her friend took a
photograph of them with a mobile phone. The fan sent a copy of the photograph to a
national newspaper, the Daily Slur. The next week the Daily Slur ran the headline:
“Cheating Past Scores At Last”, and claimed that a drunken Past had cheated on his
wife with a fan while she was in hospital recovering from giving birth.

Preston Past has any legal redress against the fan or the Daily Slur. [14]

(b) Explain the role of juries in civil cases. [11]


Part (a)
• Action for defamation; libel and slander.
• What constitutes defamation: the statement must have a tendency to
lower the person in the eyes of right-thinking persons: Sim v Stretch,
Byrne v Dean.
• Elements of defamation: statement must refer to the claimant; must be
published; must be defamatory.
• Need to take whole article into account and not just a photo or headline:
Charlesworth v NGN.
• Possible defences: justification; fair comment on a matter of public
interest; absolute privilege; qualified privilege; offer of amends and
payment of damages.
• Matters connected with bringing an action for defamation: cost; amount of
damages; trial by jury; fast-track procedure.

Part (b)
• Limited use of juries to try civil cases in the Queen’s Bench Division of the
High Court. Use of civil juries is now very unusual.
• Cases where juries still used: defamation, malicious prosecution, false
imprisonment, fraud.
• Jury trial may be refused by the judge if the case is likely to be extremely
long or complex, or involve a lot of scientific or documentary evidence.
• Role of jury: to hear the evidence and reach a decision in favour of the
claimant or defendant; to recommend the level of damages.

40

Q.4 Martha Mutton, the editor of the Daily Digger, was given a sensational story that a
Member of Parliament, Davina White, had been taking illegal drugs. Martha Mutton
was aware that Davina White was due to appear in the Crown Court in two weeks’
time on charges connected with fraudulent expense claims. Martha Mutton printed
the story about the illegal drugs on the front page of the Sunday edition just a few
days before Davina White’s trial started.

Martha Mutton and the Daily Digger may have committed contempt of court.
[14]

(b) Explain the ways in which the Government is made subject to the Rule of
Law. [11]


Part (a)
• The offence of contempt of court; proceedings usually brought by
Attorney-General.
• Contempt of Court Act 1981.
• Strict liability rule: s.1.
• Proceedings must be “active”: s.2.
• When proceedings are active (schedule 1).
• The publication must create a substantial risk of serious prejudice: s.2.
• “Substantial” relates to proximity of the risk – whether close in time to the
trial - A-G v NGN (Ian Botham case); A-G v ITN; A-G v BBC (the Have I
got News for You? Case); whether publication widespread or restricted.
• Serious prejudice – prejudging the outcome of a case; turning the jury
against a party, etc.
• Not necessary to imply that a defendant is guilty of the crime for which
he/she is being tried (e.g., the Michael Fagan case; the Dr Leonard Arthur
trial).

Part (b)
• Meaning of the rule of law.
• Reference to Dicey and possibly other theorists such as Joseph Raz.
• Aspects of the Rule of Law ideal which impinge on government, e.g.,
government not exempt from the requirement to conform with the law;
members of the government and Parliament are bound to obey the law in
the same way as ordinary citizens; no arbitrary powers; government only
has powers which are created in accordance with normal constitutional
procedures such as by Parliament or through common law; government
bound by principles of natural justice, etc.

41

LAW - LA4


OPTION 1 - CONTRACT AND CONSUMER LAW

Answer two questions from Section A and one question from Section B.

SECTION A

Q.1 Evaluate the civil remedies available for a consumer under the general law of
contract for breach of a contractual term. [25]
• Specific performance and the limits to specific performance. See, for example,
Section 52 of the Sale of Goods Act 1979.
• Rescission for misrepresentation; perishing of goods; exercising a contractual or
statutory right of cancellation.
• Distinction between warranty and conditions of a contract – see Section 61 (1) of
the 1979 Sale of Goods Act; compare Section 11 (3) of the Sales of Goods Act
1979.
• Slight breaches – Section 15A Sale of Goods Act 1979.
• Loss of right to reject – for example, Section 11 (4) Sale of Goods Act 1979.
Note where a contract is severable.
• What is acceptance – Section 35 Sales of Goods Act 1979.
• Rules of remoteness in respect of compensation and duty of mitigation. General
principles of compensation.
• Candidates will be rewarded for appropriate citation of legal authorities.

AO1
Marks
concepts and principles underlying that subject content. They display
8-9
a sound understanding of the practical application of the law and are
aware of current debate and criticism including the major proposals for
reform.
subject content relevant to the question and have a perception of
They display a general understanding of the practical application of the
law and are aware of aspects of current debate and criticism.
display a limited understanding of the practical application of the law
and are aware in general terms of some of the current criticisms.
0-2
law.

42

AO2
Marks
Skills
11-13
7-10
citation.
situation in a generally inaccurate and unsubstantiated way. There will
0-2
be little or no reference to legal authorities and points will not be

Marks AO3
3
that there are no errors in grammar, punctuation and spelling but these
will only be occasional.
2 Whilst there may be errors in grammar, punctuation and spelling,
these are not enough to detract from a mostly effective communication
of meaning.
Nonetheless, there may be several errors in grammar, punctuation
1
and spelling, although not enough to detract from communication of
meaning.
0
of meaning.

43

Q.2 Critically examine the role of Ombudsmen in protecting consumers. [25]

• Background of Ombudsman schemes can be found in the Nordic countries. In
the United Kingdom most of the schemes have been set up by statute. The most
recent example of this can be seen in the Financial Services Ombudsman and
also the role of the Ombudsman now under the Consumer Credit Act 2006.
• The largest scheme by far is the Financial Ombudsman Service created by the
Financial Services and Markets Act 2000. Most Ombudsmen are now creatures
of statute with voluntary schemes becoming fewer – the Ombudsman for Estate
Agents is a continuing example.
• Jurisdiction and powers and procedures of Ombudsman.
• Remedies available for Ombudsman.
• Sanctions. Every Ombudsman publishes an annual report which would normally
give examples of complaints made in the previous year and statistics on the
number and type of complaints.

AO1
Marks
content relevant to the question and a good perception of the concepts and
8-9 principles underlying that subject content. They display a sound
subject content relevant to the question and have a perception of some of
6-7 the concepts and principles underlying that subject content. They display
a general understanding of the practical application of the law and are
limited understanding of the practical application of the law and are aware

44

AO2
Marks
Skills
situation. This is achieved through their selection of legal authorities, by
11-13
question. They support their conclusions by citation, analysis and
analogy.
operates, or a generally accurate and substantiated application of the law
7-10 to a given fact situation. This is achieved through their selection of legal
authorities, by appropriate methodologies and by their ability to apply the
law to a given question and support their conclusions by citation.
3-6 accurate and occasionally unsubstantiated way. This is achieved
through a limited selection of legal authorities and limited ability to apply
the law to a given question.
of how the law operates or apply the law to a given factual situation in a

Marks AO3
3
there are no errors in grammar, punctuation and spelling but these will
only be occasional.
2 Whilst there may be error in grammar, punctuation and spelling, these
are not enough to detract from a mostly effective communication of
meaning.

45

Q.3 Evaluate the cancellation rights of consumers in a case where a consumer may be
pressurised by a doorstep salesman to sign an agreement. [25]

• Cancellation provisions in Section 67-73 of the Consumer Credit Act 1974.
Consumer will also have cancellation rights in cases covered by the Cancellation
of Contracts made in a Consumer’s Home or Place of Work Regulations 2008
and also under the Distance Selling Regulations.
• A regulated consumer credit or hire agreement is cancellable if two conditions are
satisfied namely a) order representations are made by or on behalf of the
negotiator in the presence of the debtor or hirer and b) the unexecuted
agreement was not signed by the debtor or hirer at premises where the business
was carried on.
• The copy provisions are set out in Sections 62 and 63. The OFT can grant
exemption from the duty to send a cancellation notice in certain specified cases.
• The time of cancellation starts when the debtor or hirer signs the unexecuted
agreement and ends 5 days after the debtor or hirer receives the statutory
second copy or notice.
• Section 69 sets out how the cancellation is effected. Subject to exceptions the
general effect of cancellation is to treat the agreement and most linked
transactions as if it had never been made – see Section 69 (4) of the Consumer
Credit Act 1974.
• The duty to return goods. Section 73 deals with the part exchange allowance.

AO1
Marks
subject content relevant to the question and have a perception of some
display a general understanding of the practical application of the law
and are aware of aspects of current debate and criticism.
limited understanding of the practical application of the law and are

46

AO2
Marks
Skills
11-13
7-10
citation.
3-6 partly accurate and occasionally unsubstantiated way. This is achieved
reference to legal authorities and points will not be developed. There
will be very limited evidence of structure in the candidate’s response.

Marks AO3
3
that there are no errors in grammar, punctuation and spelling but these
will only be occasional.
meaning.
1
meaning.
0
of meaning.

47

Q.4 To what extent can Section 75 of the Consumer Credit Act 1974 be considered a vital
provision for consumers where a supplier of goods or services refuses to meet its
obligations under the contract or becomes insolvent? [25]

• Section 75 (1) is a vital provision in that it provides that any claim against the
supplier in respect of a misrepresentation or breach of contact shall be also
available against a creditor who with the supplier be considered jointly and
severally liable.
• Section 75 (3) lays down two limitations.
• The effect of credit cards and particularly credit cards abroad. See Office of Fair
Trading v Lloyds TSB (2007) where the House of Lords unanimously affirmed the
decision of the Court of Appeal that Section 75 applies to overseas transactions.
• Section 75 can only be used by a consumer if the relevant credit agreement was
a regulated agreement.

AO1
Marks

48

AO2
Marks
Skills
situation. This is achieved through their selection of legal authorities, by
11-13
question. They support their conclusions by citation, analysis and
analogy.
operates, or a generally accurate and substantiated application of the law
7-10 to a given fact situation. This is achieved through their selection of legal
authorities, by appropriate methodologies and by their ability to apply the
law to a given question and support their conclusions by citation.
3-6 accurate and occasionally unsubstantiated way. This is achieved

Marks AO3
3
only be occasional.
meaning.

49

SECTION B
“Office of Fair Trading v Abbey National plc (2008) is concerned with terms imposing certain
bank charges and the Unfair Terms in Consumer Contracts Regulations 1999. It illustrates
two significant advances in consumer protection over the last decade or so, one cultural and
one legal. On the cultural front, it shows the power of the internet to galvanise consumer
activity, with many consumers being prompted to try to reclaim bank charges by the
information and form documents supplied by consumer advocates on the internet. On the
legal front, the foundation of those claims is basically the Regulations which provide for
terms in contracts between consumers and sellers or suppliers to be found unfair and not
binding on the consumer.”
Source: Macdonald (2008) Modern Law Review

(a) Explain the application of the Unfair Terms in Consumer Contracts Regulations
(1999) in promoting fairness of the standard terms encountered by consumers. [11]
• The test of unfairness in Regulation 5 (1) and the underlying test of good faith.
• The core provisions namely Regulation 6 (2) dealing with plain, intelligible
language and that the assessment of fairness of the term will not relate to the
definition of the main subject matter of the contract or to the adequacy of the
price.
• The term will be unfair if it is contrary to the requirement of good faith and causes
a significant imbalance in the party’s rights and obligations.
• The distinction between consumer contracts and business contracts.
Marks AO3
2
only be occasional.
1
Whilst there may be error in grammar, punctuation and spelling, these are
not enough to detract from a mostly effective communication of meaning.

AO1
Marks

50

(b) Evaluate the mechanisms available for promoting reform for the enforcement of
Consumer Law. [14]
• The role of pressure groups some of which may be cause related as in the
case of the bank charges example.
• The role of the OFT.
• Class actions.
• The role of EU particularly through regulations and directives.
• The role of the Law Commission.
• Candidates will be rewarded for accurate and relevant citation.

Marks AO3
1
meaning.
0
of meaning.

AO2
Marks
Skills
fact situation, making an entirely convincing synoptic connection with
elements of skills gained in understanding legal reasoning, personnel
11-13 and methods and understanding legal values, structures and
processes. This is achieved through their selection of legal authorities,
given question. They support their conclusions by citation, analysis
and analogy.
law to a given fact situation, making a convincing synoptic connection
with elements of skills gained in understanding legal reasoning,
7-10
personnel and methods and understanding legal values, structures and
processes. This is achieved through their selection of legal authorities,
given question and support their conclusions by citation.
partly accurate and occasionally unsubstantiated way, making a limited
synoptic connection with elements of skills gained in understanding
3-6
legal reasoning, personnel and methods and understanding legal
values, structures and processes. This is achieved through a limited
selection of legal authorities and limited ability to apply the law to a
given question.
of how the law operates or apply the law to a given factual situation in
a generally inaccurate and unsubstantiated way, making some basic
synoptic connection with elements of skills gained in understanding
0-2
legal reasoning, personnel and methods and understanding legal
values, structures and processes. There will be little or no reference to
legal authorities and points will not be developed. There will be very
limited evidence of structure in the candidate’s response.

51


“About 7,000 people in Great Britain die each year from accidents in the home, over
a tenth of them from fires. This is comparable to the number killed on the roads. In
addition over 100,000 receive hospital in-patient treatment for home accident injuries.
No central statistics are kept for those not admitted to hospital but it is estimated that
in England and Wales 650,000 receive out-patient care in hospitals and 500,000
attend their general practitioner for treatment.

Apart from the toll of human suffering which these figures represent, there are
substantial economic costs, both direct – through damage to property, as in the case
of the 50,000 or so fires in the home each year – and indirect – e.g. the cost of
medical treatment and hours lost from work.

This Consultative Document is concerned with ways of reducing the cost and
suffering caused by home accidents. It considers how information, publicity and
education on causes of home accidents and means of avoiding them can be
improved; and in particular it discusses how the law can best ensure that goods
which reach consumers are as safe to use as the public may reasonably expect.”

Source: Consumer Safety: A Consultative Document (Green Paper, Cmnd 6398, 1976)

(a) Explain the legal approaches taken to promote the safety of goods for
consumers in the law of England and Wales. [11]

• Consumer Safety Act 1978; Consumer Safety (Amendment) Act 1986 –
this legislation provides a historical context.
• Consumer Protection Act 1987 Part 2.
• General safety requirement.
• General Product Safety Regulations 2005. The role of the common law
and statutory implied terms.
• Candidates will be rewarded for accurate citation.

Marks AO3
2
1 terminology. Whilst there may be error in grammar, punctuation and
spelling, these are not enough to detract from a mostly effective

52

AO1
Marks
8-9
6-7
and criticism.
3-5
content. They display a limited understanding of the practical
0-2

(b) Evaluate the role of Regulations and Directives in promoting the safety of
goods to consumers. [14]

• Regulations are directly applicable. They have direct effect both vertically
and horizontal if give individual rights and are clear – Article 288 (TFEU)
• Directives are not directly applicable but they have vertical direct effect if
give individual rights and are clear. They have no horizontal direct effect.
However an individual can claim against the state for loss caused by
failure to implement.
• The significance of the EU General Products Safety Directive 2001/95.
• The problem of overlap between the general safety requirement and the
specific EU or UK rules. Primacy of EU law.
• Neither EU directives nor UK legislation extend beyond the safety of
goods to cover services too. See however the European Commission
Consultation Paper, Safety of Services.

Marks AO3
1
0

53

AO2
Marks
Skills
the law to a given fact situation, making an entirely convincing
synoptic connection with elements of skills gained in
understanding legal reasoning, personnel and methods and
11-13
understanding legal values, structures and processes. This is
achieved through their selection of legal authorities, by
appropriate methodologies and by their ability to apply the law to
a given question. They support their conclusions by citation,
of the law to a given fact situation, making a convincing synoptic
connection with elements of skills gained in understanding legal
7-10 reasoning, personnel and methods and understanding legal
values, structures and processes. This is achieved through their
way, making a limited synoptic connection with elements of skills
3-6
gained in understanding legal reasoning, personnel and methods
and understanding legal values, structures and processes. This
is achieved through a limited selection of legal authorities and
limited ability to apply the law to a given question.
situation in a generally inaccurate and unsubstantiated way,
making some basic synoptic connection with elements of skills
0-2 gained in understanding legal reasoning, personnel and methods
and understanding legal values, structures and processes.

54

LAW - LA4

UNDERSTANDING LAW IN CONTEXT

OPTION 02 - CRIMINAL LAW & JUSTICE

SECTION A

Answer two questions from this section.

Q.1 “Consent is rarely a defence to a crime.” Critically evaluate this statement. [25]
• Appreciation of the difference between situations where absence of consent is a
positive ingredient of an offence (e.g., taking without consent) and cases where
consent is a defence to an action which would otherwise be criminal.
• Significance of consent as a defence mainly confined to offences against the
person.
• Common assault or battery is not committed where the victim has given valid
consent. In cases of actual bodily harm or worse, whether or not consent can be
a defence is the subject of a large body of case law, and answers should
demonstrate some knowledge of this.
• In A-G’s Reference (No.6 of 1980) the CA stated that consent was irrelevant if
actual bodily harm was intended and/or caused, except in certain accepted
situations where the conduct is regarded as lawful provided the victim has
consented.
• Situations where consent can be a defence – properly conducted games or
sports; reasonable surgical intervention; tattooing and piercing; horseplay;
dangerous exhibitions. Examples of case law, e.g., Jones, Aitken, Brown.
• Requirement of valid consent – must not be vitiated by force, deception or
incapacity. Cases such as Richardson, Dica, Bolduc and Bird, Burrell v Harmer,
etc.
• Public policy considerations – Brown, Wilson.

Q.2 Consider whether the powers of the courts to grant bail contain sufficient safeguards
to protect the public. [25]
Credit reference to –
• Bail Act 1976, s.4 – presumption of entitlement to bail.
• Circumstances in which bail need not be granted: Bail Act 1976 Schedule 1 (e.g.,
defendant is likely to fail to surrender, commit further offences or interfere with
witnesses).
• Factors to be taken into account when considering grant of bail.
• Modifications of the general presumption of entitlement to bail – bail only granted
in exceptional circumstances where defendant charged with murder,
manslaughter, rape, or where previously charged with a specified serious
offence, or where the offence was committed while already on bail (under the
Criminal Justice and Public Order Act 1994 as amended by the Crime and
Disorder Act 1998).
• Right of the CPS to appeal against the grant of bail.
• Problems of offences committed while on bail; powers of police to arrest for
breach of bail conditions.
• Power of courts to impose conditions on bail, with examples.
• Evaluation of whether safeguards are sufficient to protect the public.

55

Q.3 To what extent can diminished responsibility be a defence to a criminal charge? [25]
• Homicide Act 1957, s.2 – diminished responsibility only a defence to murder; has
the effect of reducing murder to manslaughter.
• Definition of diminished responsibility, as amended by the Coroners and Justice
Act 2008.
• Meaning of abnormal mental condition – Byrne – covers impairment of self
control (“irresistible impulse”) as well as impairment of rational judgement.
• Defence covers common mental illness such as depression, e.g., Seers.
• Uses of the defence in practice – a plea of guilty to manslaughter on grounds of
diminished responsibility is commonly accepted by the courts in cases such as
battered woman syndrome, mercy killing, etc.

Q.4
Consider whether the Crown Prosecution Service has changed the criminal justice
system in England and Wales for the better. [25]

• Background to and reasons for the establishment of the Crown Prosecution
Service (e.g., Phillips Commission, Justice Report).
• Prosecution of Offences Act 1985.
• Role of the CPS in the criminal justice system – the decision whether to
prosecute; advising the police; conducting prosecutions in the magistrates’ court
and Crown Court.
• Early problems and proposals for reform: Glidewell Report, Narey Report.
• Major reforms: the Narey fast-track system; the establishment of CPS units within
police stations; closer working between CPS and police.
• Present structure of the CPS.
• Recent reforms, e.g., extension of advocacy rights, CPS has taken over charging
from police in all but minor cases, establishment of CPS Direct.
• Evaluation: importance of an independent prosecution service; whether the CPS
is now too closely involved with the police, etc.

56

SECTION B

Answer one question from this section.

“In addition to the statutory provisions, a court sentencing a young offender must be
aware of obligations under a range of international conventions which emphasise the
importance of avoiding “criminalisation” of young people whilst ensuring that they are
held responsible for their actions and, where possible, take part in repairing the
damage that they have caused. This includes recognition of the damage caused to
the victims and understanding by the young person that the deed was not
acceptable. Within a system that provides for both the acknowledgement of guilt and
sanction which rehabilitate, the intention is to establish responsibility and, at the
same time, to promote re-integration rather than to impose retribution.”
The Sentencing Guidelines Council
Overarching Principles – Sentencing Youths: The Definitive Guide 2009 p.3.
(a) Describe the general principles behind the sentencing of young offenders.[11]
(b) Evaluate the advantages and disadvantages of trial by jury in the criminal
justice system in England and Wales. [14]
Part (a)
• General principles of punishment: retribution, deterrence, denunciation,
reform and rehabilitation.
• Particular considerations that apply to young offenders – may be more
likely to offend due to immaturity and lack of understanding; greater
potential for reform and rehabilitation, etc.
• Need to have regard to international conventions, e.g., the International
Convention on the Rights of the Child; the approach of the ECtHR in
cases such as Venables and Thompson v UK.
• Crime and Disorder Act 1998, s.37 – the principal aim of the youth justice
system shall be to prevent offending by children and young persons.
• Current emphasis on prevention and rehabilitation.

Part (b)
• Arguments in favour of jury trial – generally popular, considered to be a
bulwark of citizens’ liberties, juries considered to be good at judging the
credibility of witnesses and defendants, enables the public to participate in
the legal process, counteracts the remoteness of the law.
• Arguments against – trial by jury is more expensive, tends to take longer,
juries more ready to acquit or tender perverse verdicts, juries more likely
to be swayed by good advocacy, juries tend to be influenced by the
media, there are no formal tests to exclude people who may be
unintelligent, illiterate or prejudiced, juries may not understand the law,
juries are more vulnerable to intimidation, many people are reluctant to
serve on juries.
• Difficulty of assessing arguments – the Contempt of Court Act 1981
prevents finding out how juries actually decide cases.
• Juries gradually falling into disuse – very limited in civil cases, and
increasingly so in criminal cases as the right to jury trial has been
removed in relation to many offences.

57

“...[W]henever a section is silent as to mens rea there is a presumption that, in order
to give effect to the will of Parliament, we must read in words appropriate to require
mens rea ... it is firmly established by a host of authorities that mens rea is an
essential ingredient of every offence unless some reason can be found for holding
that it is not necessary ... In the absence of a clear indication in the Act that an
offence is intended to be an absolute offence, it is necessary to go outside the Act
and examine all relevant circumstances in order to establish that this must have been
the intention of Parliament. I say ‘must have been’ because it is a universal principle
that if a penal provision is reasonably capable of two interpretations, that
interpretation which is most favourable to the accused must be adopted.”

Lord Reid in Sweet v Parsley [1970] A.C.132, 148H

(a) Describe the principles used by the courts when deciding whether an
offence is one of strict liability. [11]

(b) Evaluate the extent to which the courts can refer to extrinsic aids when
interpreting statutes. [14]

Part (a)
• Nature of strict liability.
• General presumption that mens rea is required: Sweet v Parsley, A-G for
Hong Kong v Gammon.
• The principles set out in Gammon as to when the presumption of
mens rea can be displaced.
• Examples of case law, e.g., Callow v Tillstone, Sweet v Parsley, DPP v
B(A minor), Smedleys v Breed, Shah, Storkwain, Alphacell v Woodward.
Part (b)
• Problems of determining Parliament’s intention – old statutes, changes in
the meaning of words, situations not anticipated when the statute was
passed, etc.
• Pepper v Hart - reference to Hansard is permitted where the legislation is
ambiguous or obscure or leads to an absurd result, where a statement
has been made in Parliament by a minister or the promoter of the Bill, and
where the statement to be used is clear in its meaning.
• Other extrinsic materials which may be used – the Oxford English
Dictionary, other statutes, cases, Law Commission Reports.
• Human Rights Act 1998, sections 2, 3 and 6.

58

LAW - LA4

FREEDOM OF THE INDIVIDUAL AND PROTECTION OF HUMAN RIGHTS

OPTION -3 - UNDERSTANDING LAW IN CONTEXT

SECTION A

Answer two questions

Q.1 To what extent does the law of England and Wales protect different religions? [25]
• Art.9 of the European Convention on Human Rights – the right to freedom of
thought, conscience and religion.
• Art.9(2) - qualifies the right to manifest one’s religion or beliefs by permitting
restrictions in the interests of public safety, prevention of disorder or crime,
protection of health or morals, or protection of the rights and freedoms of others.
• Human Rights Act 1998 – Section 13 requires a court to have “particular regard”
to the importance of the right under Art.9 where the court’s determination of a
question under the HRA 1998 may affect the exercise of this right by a religious
organisation.
• Human Rights Act 1998 - Section 14 prohibits discrimination in the exercise of
Convention rights on grounds of religion.
• Protection from discrimination on grounds of religion – Equality Act 2010.
• Blasphemy – abolished by the Criminal Justice and Immigration Act 2008, s.79.
• Religiously aggravated offences.
• Offences relating to religious hatred - Racial and Religious Hatred Act 2006 adds
Part IIIA to the Public Order Act 1986.
• Public Order Act 1986, s.29J provides that nothing in Part IIIA prohibits or
restricts discussion, criticism, expressions of antipathy or dislike, ridicule, insult or
abuse of particular religions.

Q.2 To what extent does the law of England and Wales provide the individual with
effective protection against unjustifiable intrusion by the media? [25]
• European Convention on Human Rights, Art.8: Right to Private and Family Life.
• Human Rights Act 1998 incorporates Art.8 – otherwise, no specific right to
privacy: Kaye v Robertson.
• Protection against physical intrusion: trespass, private nuisance (Bernstein v
Skyviews).
• Breach of confidence: impact of HRA 1998; use of injunction to prevent
disclosure by the media, e.g., Douglas v Hello! Ltd; Venables v News Group
Newspapers; Campbell v Mirror Group Newspapers; X v O’Brian (Mary Bell
case); A v B and C, etc.
• Potential conflict between Art.8 and Art.10; importance of freedom of the press;
question of whether publication is in the public interest; whether people in the
public eye are entitled to less protection than private persons.
• Press Complaints Council and Code of Practice – standards of voluntary self-
regulation can be relevant to whether newspaper can rely on s.12 of the HRA
1998: Douglas v Hello!.
• Proposals for reform; failure to implement Calcutt Report; left to the courts to
develop remedy.

59

Q.3 By what means, and to what extent, does the law provide for control and
accountability over the use of secret surveillance by the police? [25]

• Regulation of Investigatory Powers Act 2000 (RIPA).
• RIPA Part II – three types of surveillance: directed surveillance, intrusive
surveillance, and use of covert human intelligence sources (s.26). Directed
surveillance is covert but not intrusive surveillance undertaken for the purposes of
a specific investigation and likely to result in obtaining private information about a
person. Surveillance is intrusive if it involves surveillance of what goes in
residential premises or a private vehicle and involves either the presence of an
individual or is carried out by means of a surveillance device.
• Authorisation – directed surveillance or surveillance involving a human source
can be authorised by a superintendent or an inspector in cases of urgency.
Intrusive surveillance requires authorisation from the Home Secretary or the chief
constable.
• Grounds – the authorising officer believes that the action is necessary because it
will be of substantial value in the prevention of detection of crime (not necessarily
serious crime), and that the action is proportionate to what is being sought to be
achieved. (Also includes grounds of national security, economic well-being of the
UK, public safety, public health and tax collection – very wide.) In the case of
intrusive surveillance the grounds are more limited – national security, economic
well-being of the UK and “serious” crime.
• “Serious crime” – same as for interception of communications under RIPA –
either involves the use of violence, results in substantial financial gain, or is
conduct by a large number of persons in pursuit of a common purpose, or the
offence is one for which a person at least 21 years old with no previous
convictions could reasonably be expected to be imprisoned for three years or
more.
• Authorisation must be approved by a Surveillance Commissioner. Lasts for 3
months and can be renewed indefinitely.
• RIPA Tribunal is the only route of complaint against use of surveillance. Problems
– people don’t know they are under surveillance; the Tribunal ousts the
jurisdiction of the ordinary courts and is the only recourse of someone who is a
“victim” under s.7 of the HRA 1998; proceedings are secretive and no reasons
given for decision.

60

Q.4 Discuss whether the United Kingdom would benefit from a Bill of Rights. [25]

• Arguments in favour of a Bill of Rights -
• Britain has no written constitution setting out the rights of citizens.
• Almost all developed Western nations have a Bill of Rights.
• The Human Rights Act 1998 is a piece of ordinary legislation which could be
repealed by any government.
• The HRA 1998 is based on the ECHR, which is not adequate to a modern
society. It is half a century old, and does not provide for social, economic or
political rights. It does not reflect the specific needs of the UK. Many of the ECHR
rights are qualified in ways that allow them to be effectively overridden by a UK
government. The UK government is not prevented from passing legislation which
infringes human and civil rights.
• The HRA 1998 depends for its effectiveness on the willingness of the judiciary to
uphold human and civil rights.
• A Bill of Rights could include rights which meet the needs of the UK.
• A Bill of Rights would be entrenched.
• A Bill of Rights would set permanent limits on the actions of the executive.
• A Bill of Rights would make governments more accountable for their actions.
• Arguments against a Bill of Rights –
• A Bill of Rights would further increase the powers of the judiciary, who are not
elected, as against the elected Parliament.
• A Bill of Rights would be difficult to alter if needs change, and can be a block to
reform, e.g., the problem of gun control in the USA.
• A Bill of Rights is just as liable to be interpreted in light of political considerations
as any other document, e.g., the USA struggle for civil rights for African-
Americans and other minorities.

61

SECTION B

Answer one question.


“What are Human Rights?

Human rights are the basic rights and freedoms that belong to every person in the
world.

Ideas about human rights have evolved over many centuries. But they achieved
strong international support following the Holocaust and World War II. To protect
future generations from a repeat of these horrors, the United Nations adopted the
Universal Declaration of Human Rights in 1948.

For the first time, the Universal Declaration set out the fundamental rights and
freedoms shared by all human beings. These rights and freedoms – based on core
principles like dignity, equality and respect – inspired a range of international and
regional human rights treaties. For example, they formed the basis for the European
Convention on Human Rights in 1950. The European Convention protects the human
rights of people in countries that belong to the Council of Europe. This includes the
United Kingdom”.
Source: Equality and Human Rights Commission homepage.

(a) Explain what is meant by a declaration of incompatibility. [11]

(b) Evaluate the extent to which the European Convention on Human Rights
protects human rights within the United Kingdom. [14]

Part (a)
• Human Rights Act 1998 s.3 imposes a duty on courts to read and give
effect to primary and subordinate legislation in a way which is compatible
with Convention rights “so far as is possible to do so”.
• Legislation which cannot be interpreted in a way which is compatible with
Convention rights must nevertheless be enforced, except where the
legislation is subordinate legislation and the primary legislation under
which it was made does not require it to be framed in a way which is
incompatible with Convention rights.
• HRA 1998, s.4 – power of judges of High Court and above to issue a
declaration of incompatibility where it is not possible to interpret legislation
in a way which is compatible with Convention rights.
• A declaration of incompatibility may be overturned on appeal to a higher
court, e.g., Alconbury, Wilson v First County Trust Ltd.
• Effect of a declaration of incompatibility – the courts must continue to give
effect to the legislation until it is changed by Parliament.
• HRA 1998 s.10 and schedule 2 creates a fast-track procedure whereby a
Minister may amend primary or subordinate legislation so as to remove
the incompatibility by means of an order approved by both Houses of
Parliament.
• Examples of case law where declarations have been made, e.g., H v
North and East Region Mental Health Review Tribunal; R(M) v Secretary
of State for Health; International Transport GmbH Roth v Secretary of
State for the Home Department; R(Anderson) v Secretary of State for the
Home Department; A v Secretary of State for the Home Department, etc.

62

Part (b)
• Nature and background of European Convention on Human Rights –
general information about how the ECHR is enforced.
• Content of the ECHR: outline of Articles and the rights which are
protected; absolute and qualified rights.
• Outline of how UK citizens can bring cases before the European Court of
Human Rights: examples of cases, e.g., Tyrer v UK, Malone v UK,
Goodwin v UK.
• Protection of human rights via the Human Rights Act 1998: incorporation
of Convention Articles; duty imposed by s.6 on all public authorities to act
in a way which is compatible with Convention rights; s.3 requirement that
UK law should be interpreted in a way which is compatible with
Convention Articles; s.19 requirement that legislation should include a
statement of compatibility or statement that the Government wishes to
proceed with the legislation anyway.
• Examples of protection of human rights in the UK.


Claims accepted by Employment Tribunals 1 April 2007 to 31 March 2008

Nature of Claim 2005/6 2006/7 2007/8
Sex discrimination 14,250 28,153 26,907
Disability discrimination 4,585 5,533 5,833
Equal pay 17,268 44,013 62,706
Race discrimination 4,103 3,780 4,130
Discrimination on grounds of Religion or Belief 486 648 709
Discrimination on grounds of Sexual Orientation 395 470 582
Age discrimination n/a 972 2,949
Source: Tribunals Service: Employment Tribunal and EAT Statistics (GB).

(a) Explain the difference between direct discrimination and indirect
discrimination. [11]

(b) Evaluate the work of tribunals. [14]

Part (a)
• Context – the terms come from the Sex Discrimination Act 1975 and the
Race Relations Act 1976, which define three types of discrimination:
direct, indirect, and victimisation.
• Direct and indirect discrimination were redefined by the Equality Act 2010.
The language of the definitions is simpler, but the substance is still very
similar. Also, the EA 2010 only came into force on October 1 2010.
Candidates who refer to the pre-Equality Act definitions should be credited
for this knowledge.
• Direct discrimination is defined in s.13 of the Equality Act 2010. It occurs
when a person is treated less favourably than another person would have
been because of a protected characteristic - their sex, race, disability,
marital status or civil partnership, sexual orientation, gender
reassignment, religion or age.

63

• Indirect discrimination is defined in s.19 of the Equality Act 2010. It occurs
where a policy which is applied equally to everyone has an effect which is
particularly disadvantageous to people with a protected characteristic, and
cannot be shown to be a proportionate means of achieving a legitimate
aim. Indirect discrimination can also occur where a policy would put a
person at a disadvantage if it were applied, e.g., put someone off applying
for a job or using a service.
• Examples of case law on direct and indirect discrimination.

Part (b)
• Nature of tribunals – part of the civil process; decide disputes either
between a party and an official body or state organisation, or between
parties, but without the formality and expense of going to the civil courts.
Cases usually heard by a panel of three, with a legally qualified
chairperson and two lay experts reflecting each side of the dispute (e.g.,
trade union representative and employers’ representative).
• Kinds of tribunal – domestic tribunals are used by the professions and
certain other occupations to determine issues involving the professional
conduct of members of the profession; staffed by senior members of the
profession; usually have power to fine, suspend or prevent a member
from practising the occupation in question. Administrative tribunals have a
more general jurisdiction covering matters such as employment, welfare
entitlement, taxation, and the like. They are usually set up individually by
specific legislation.
• Advantages of tribunals – faster than courts; staffed by experts; cheaper
than taking a case to court, as parties can present their own case (only
funding to cover legal advice and not representation is available);
generally less formal procedure.
• Problems with tribunals: Leggatt Report 2001 – tribunals system found to
be haphazard, problems over appeals – some tribunals had appeal route,
while others could only be appealed by way of judicial review – many
delays, stressful for lay users, tendency towards increasing use of legal
representation by stronger party, e.g., employers; some tribunals
unnecessarily formal and court-like in their procedures; lack of clear
independence from state organisations in case of tribunals dealing with
matters such as tax, immigration, social security, education, housing, etc.
• Tribunals Courts and Enforcement Act 2007 – sets up a single unified
system of tribunals, divided into Divisions. First layer tribunals hear most
cases, but not all, and second layer tribunals hear appeals and cases in
certain specialist areas.
• Presidents of second layer tribunals are now judges: senior president is a
senior judge – tribunals starting to look more like a second judicial system
adapted to specialist kinds of dispute.

GCE Law MS - January 2011

64

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