paper 1: criminal

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Give the three rules of interpretation

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1

Give the three rules of interpretation

The literal rule, the golden rule, the mischief rule

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2

Explain the literal rule

The LR is used as the starting point for interpreting any legislation

Under the LR, the judge will read the statute as a whole, putting the words into context. In doings so, words are given their natural or ordinary meaning regardless of the outcome, without the judge seeking to put a gloss on the words or to make sense of the statute

In Whiteley v Chappell, the court held no offence had been committed when D cast a vote using the identity of a deceased person since a dead person is not, in the literal meaning of the words 'entitled to vote'; using the literal rule here made the law absurd

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Explain the meaning of the golden rule

The GR is an extension of the LR, where words will be given their literal meaning unless the result would be absurd

There are two views as to how far the GR should be used; under the narrow view, where a word has two possible meanings but one would lead to an absurd outcome, the court may choose between them; e.g. in Allen, the court held that the word 'marry' should be interpreted as 'to go through a marriage ceremony' rather than to become legally married to another so D was found guilty of the offence of bigamy based on this second meaning

Under the wide view, where the words have only one clear meaning but that meaning would lead to a repugnant situation, the court will use the GR to modify the words of this statute in order to resolve this problem; e.g. in Re Sigsworth, the GR was used to prevent the repugnant situation of the son benefiting from the fruits of his crime i.e. murdering his mother to inherit her estate

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Explain the meaning of the mischief rule

Originating from Heydon's Case, the MR does not just rely on the literal meanings of the words

Rather, it is a contextual method of interpreting statutes where the court look back at the gap in the law which Parliament felt necessary to correct + then interprets the Act in such a way as to cover the gap

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Explain the purposive approach

The PA allows judges to take account of Parliament's purpose in passing the statute

This is an extension of the MR as the court is not just looking to see what the gap was in the old law but deciding what they believe Parliament meant to achieve with the new law + therefore provides scope for judicial law-making

E.g. in R v Registar-General, ex parte Smith, in spite of the applicant's seemingly absolute right to his birth records provided by the Adoption Act 1976, he was denied access on grounds of public policy; the positive purpose of the Act was to create closer family relationships + Parliament could not have intended to put the natural mother at risk

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6

Explain what is meant by internal (intrinsic) aids

Internal aids are those contained in the statute itself e.g. the long title + other sections

Older statutes usually have a preamble i.e. an intro which sets out Parliament's purpose in enacting that statute whilst modern statutes either do not not contain one or contain a very brief one e.g. the Theft Act 1968 begins by stating its purpose 'as to modernise the law of theft'

All acts are accompanied by explanatory notes e.g. the explanatory notes in the Climate Change Act 2006, set out very specifically the purpose of the Act + identify how they are to be achieved

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Explain what is meant by external (extrinsic) aids

External aids are those contained outside the statue in question

Following Pepper v Hart, judges are permitted to refer to Hansard, i.e. the official record of Parliamentary debates, but only where the words of the Act are ambiguous, obscure or absurd + if there was a clear statement by the minister introducing the legislation, which might clarify Parliament’s intention in legislating + therefore the meaning of the words in context

Previous statutes can be used, as in Wheatley; this case involved the Explosive Substances Act 1883 + because the long title stated it amended the Explosives Act 1875, the Court of Appeal considered the earlier Act too

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8

Explain the impact of EU law on statutory interpretation

The PA is the approach adopted by the CJEU in interpreting EU law given that the law in Europe sets out the general aim/purpose to be achieved; this European preference for the PA has impacted the English courts

Where the law to be interpreted is based on EU law, English Courts must interpret it in the light + purpose of the EU law; in Marleasing, it was held that this extended to interpreting national law

This means that if UK law and EU law conflict, UK law must be interpreted in such a way that the European ruling is applied; this challenges the notion of parliamentary sovereignty as it appears to suggest that Parliament’s intention can be subordinated to the EU’s, i.e. that Parliament is not necessarily supreme

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9

Explain the impact of human rights on statutory interpretation

The HRA 1998 has brought about some modifications in the interpretation of English law; s3 states that so far as it is possible to do so, legislation must be compatible with the rights in ECHR; this applies to any case where one of the rights is concerned, but it does not apply where there is no involvement of human rights

E.g. in Mendoza v Ghaidan, English law had to be interpreted in a way that respected the rights of same-sex couples with respect to property equally with those of heterosexual couples to comply with Article 14 of the HRA

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10

Explain what is meant by judicial precedent

JP refers to the source of law where past decisions of judges create law for future judges to follow

Stare decisis, meaning to stand by the decision, is the fundamental principle of precedent; essentially, it refers to the idea that a point of law in an earlier case must be applied in all subsequent cases containing the same material facts; this concept of treating similar cases in the same way promotes fairness + certainty in the law

E.g. in Shaw v DPP, it was held that a crime of conspiracy to corrupt public morals existed + this was followed in Knuller v DPP even though the HOL doubted the correctness of the decision in Shaw but declined to depart from it

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Explain the meaning of ratio decidendi

The legal principle set out in a case decision is known as the ratio decidendi; this is the reason for the decision + forms the precedent for future cases

All points of law from substantive law are the ratio decidendi e.g. that words can prevent an action from being an assault can be found in the ratio decidendi of Tuberville v Savage

It can be difficult to establish the ratio decidendi of a previous case e.g. in multi-judge courts, each judge may reach the same conclusion by different or even conflicting means, so there can be no single ratio of the whole court despite a majority decision, as in Esso v Customs and Excise

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Explain what is meant by obiter dicta

Obiter dicta comprises the rest of the judgement apart from the ratio decidendi, which do not relate exactly to the point of the case; judges in future cases do not have to follow it, but it can give very useful guidance

E.g. in Howe, the HOL held that the defence of duress was not available to murder; this was the ratio decidendi of the case

The HOL went on to state obiter dicta that the defence of duress should not be available to attempted murder

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Explain what is meant by original precedent

Original precedent is created where the point of law in a case have never been decided before, whatever the judge decides will form a new precedent for future cases to follow

The judge may look at cases which are closest in principle + use similar rules; in Aldred's Case, the judge compared the loss of a TV signal with loss of a view to help him decide

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Explain what is meant by binding precedent

Binding precedent is a decision in an earlier case which must be followed even if the judge in the later case does not agree with the legal principle

Binding precedent is only created where the facts of the future case are sufficiently similar to the original + the decision was made a higher court or in some cases the same level as the court hearing the later case

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Explain what is meant by persuasive precedent

Usually in the form of obiter dicta, persuasive precedent is a decision which may be followed by a judge in a later case if they decide it is the correct principle but is not binding; however, a reason for deciding not to follow it must be given

Persuasive precedents can come from: a) Lower courts e.g. in R v R, where the HOL followed the COA's decision that a man could be guilty of raping his wife b) Courts that do not bind e.g. the Judicial Committee of the Privy Council as many of its judges also sit in the SC so its decisions are highly respected + often followed

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Explain the hierarchy of the courts - basic rule, superior courts & CJEU (1)

The basic rule is that a court is bound to follow decisions from higher courts, but not from lower ones + in general, appellate courts are bound by their own past decisions

At the upper end of the hierarchy are the appellate courts who do have the power to make precedent + in some cases depart from it

The most senior national court is the SC, replacing the HOL in 2009 but exercising the same jurisdiction in that its decisions bind all lower courts in the ELS; it has not been bound by its own past decisions since a Practice Statement in 1966, although it generally will follow them

The COA is bound to follow all decisions of the SC + their own past decisions, subject to the exceptions set out in Young v Bristol Aeroplane although the Criminal Division is prepared to be flexible where doing so would cause injustice, whilst Divisional Courts of the HC are bound by decisions of the SC + COA + their own past decisions, subject to the same exceptions

The CJEU does not recognise the doctrine of precedent + is free to depart from its own previous decisions; its decisions on EU law matters only are binding on all courts in E&W

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17

Explain the hierarchy of the courts - inferior courts (2)

At the lower end of the hierarchy, the MC, CRC + CNTC are bound to follow decisions by all higher courts + generally cannot create precedents, given far too many cases go through them + they do not publish judgements that could be used

The exception is that a ruling on a point of law in the CC technically creates precedent for the MC, although there is little practical effect as they are rarely recorded in the law reports

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18

Explain the Practice Statement 1966 (1)

At one time, the HOL, predecessor of the SC, were absolutely bound by their own previous decisions; in London Street Tramways, it was decided that certainty was more important than individual injustice

The 1966 Practice Statement changed this, stating that although certainty in the law remained very important, the HOL would now depart from a previous decision when it is right to do so

When the SC replaced the HOL in 2009, the Constitutional Reform Act 2005 transferred these powers

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Explain the Practice Statement 1966 (2)

Despite this, whilst willingness to use the PC has increased, with one significant use shown in 1993 in Pepper v Hart to overrule a previous ban on the use of Hansard in statutory interpretation, it is still used sparingly in order to maintain consistency + stability within the system of precedent

In considering whether to make use of it, the SC needs to be mindful of the retrospective effect of their decisions; in Cunningham, HOL refused to overrule the previous decision of Vickers because of the retrospective effect it would have on those convicted of murder + had been subject to the death penalty

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20

Explain the meaning of law reporting

To operate properly, precedent needs an accurate record of what those decisions were for judges to refer back to; these records are called LRs + effectively underpin the whole principle of precedent

LRs have existed since the 13th century, albeit the early reports lacked reliability + accuracy; in 1865, the Incorporated Council of Law Reporting was set up to ensure accuracy, with judgements noted down, word-for-word + then published according to the court that the case took place in i.e. case references abbreviated to EWHC refers to the HC

The highest ranking form of Law Report are those found in publications e.g. the All England Series + Weekly Law Reports; they can also be in the Law sections of broadsheet newspapers + in legal journals, both online + in print form

All HC, COA + SC cases are now reported on the internet with some websites giving full reports + others providing summaries or an index of cases

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21

Explain how appellate courts can avoid precedent

Judges in the appellate courts have a number of options when faced with precedent set in an earlier case; the precedent can be:

Followed; this is where the court applies the same legal principle to the current case e.g. in Shaw v DPP, it was held that a crime of conspiracy to corrupt public morals existed + this was followed in Knuller v DPP

Overruled; this is where the court in a later case states that the earlier decision is wrong; the previous decision is no longer binding e.g. the use of a Practice Statement in Pepper v Hart to overrule a previous ban on the use of Hansard in statutory interpretation

Distinguished; this is where the facts of the case are deemed sufficiently different so that the previous case is no longer binding e.g. despite a similar issue arising in Merrit v Merrit, the judge was not bound by Balfour because the agreement was in writing + the couple had separated compared to being made in a social + domestic context

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22

Explain the general facts and statistics on lay magistrates

LMs are trained volunteers, selected from the local community, who sit as PT judges in the Magistrates' Courts + deal with a wide range of criminal + civil proceedings; they are not legally qualified

Over 12,000 lay magistrates; also knows as Justices of the Peace

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23

Explain the qualifications of magistrates

Whilst no special qualifications in law are needed to become a M, there are a number of formal requirements as to age, residence + commitment that make up the selection criteria

These include being aged at least 18 on appointment with a statutory retirement age set at 75 (The Senior Presiding Judge will not generally appoint anyone over 70, as there is a general expectation that magistrates will be able to sit for at least five years before retirement), able to sit for 26 half days per year + expected to either work or live within reasonable travelling distance of their court

In 1998, the LC laid down six core qualities as to the character of candidates, consisting of good character, understanding + communication, social awareness, maturity + sound temperament, sound judgment, commitment + reliability

It is particularly important they have certain judicial qualities e.g. the ability to assimilate factual info + make a reasoned decision upon it

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Explain the restrictions on appointment of magistrates

Subject to the LC's discretion, a number of activities + occupations may give cause for concern in relation to the perceived impartiality of the bench + corresponding risk to the right to a fair trial

E.g. a candidate will not normally be eligible if their work is incompatible with sitting as a M e.g. police officers due to potential conflicts of interest or if they are an undischarged bankrupt, as it is unlikely that they would command the confidence of the public

When considering candidates who have been subject to a court order, civil or criminal, various factors incl. the nature + seriousness of the offence will be considered e.g. whilst minor motoring offences are not usually an issue, serious motoring offences/persistent offending might disqualify them

There may also be circumstances where there is no disqualification but rather conditions are attached to their appointment e.g. close relatives will not be appointed to the same bench

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Explain the appointments & selection process of magistrates

Approximately 700 new LMs are appointed each year

Vacancies are advertised on the radio, local papers + newspapers aimed at particular ethnic groups to encourage as wide a range of potential candidate as possible; the intention is to create a panel that reflects the local community i.e. representation in terms of age, gender + ethnicity

There is usually a two-stage interview process with the LAC (including a mixture of magistrates + non-magistrates)

The first involves the interview panel trying to find out more about the candidate's personal attributes, in particular, if they possess the required 6 key qualities + exploring the candidate's attitudes on various criminal justice issues e.g. drink driving + youth crime

If successful, the second interview is aimed at testing candidates' potential judicial aptitude through a discussion of case studies, which are typical of those heard in Magistrates' Court i.e. deciding the type of sentence which should be imposed on specific case facts

The committee will then compile a shortlist of suitable names; since 2013, appointments are made by the LCJ who can delegate these powers; the current LCJ has delegated the function to the Senior Presiding Judge for E&W, who officially appoints new LM from this list on behalf of the monarch

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Explain the composition of the bench today

The traditional image of LMs is of older, white men; however, apart from the fact that the majority of Ms are within the 45-65 age range+ the appointment of those under 30 a rarity, in many respects, the bench is well balanced

The majority of Ms are female (57%); this is more than any other branch of the judiciary e.g. this proportion remains lower in senior court appointments with the figure standing at 30% for High Court + above

Ethnic minorities are also reasonably well represented, constituting 14% of all magistrates; again, this compares favourably to the professional judiciary where less than 5% are from ethnic minority backgrounds; this can be attributed to campaigns in recent years to attract a wider range of candidates + this recruitment effort has been supported by local newspapers + magazines i.e. targeting key groups that are less well-represented in the Caribbean Times + Asian Times, for example

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Explain the role & powers of magistrates in criminal cases

Almost all criminal court cases start in the MC, with 97% fully dealt there

Ms sit as a bench of three who have equal decision-making powers but only one, the presiding justice, will speak in court + preside over the proceedings; they are supported by a legal advisor who is legally qualified + advises on points of law, practice + procedure

They deal with all summary cases + some triable-either-way offences, where D chooses to be tried in the MC; this includes all the preliminary work in these cases incl. Early Administrative Hearings + bail applications

Where D pleads not guilty, Ms will hold a trial + decide on guilt, along with listening to + considering all evidence; where D pleads/is found guilty, they also decide the sentence; their wide sentencing powers include making community orders, imposing fines, ordering a conditional/absolute discharge + prison sentences of up to 12 months for a single offence

LMs deal with the first hearing of indictable offences but pass these more serious offences on to the Crown Court for a full trial; they also sit in the Crown Court to hear appeals from the MC; in these cases, two lay justices form a panel with a qualified judge

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Explain who solicitors are

Solicitors are usually a client's first point of contact with the legal profession

There are approx. 150k practicing solicitors in E&W + they are controlled by their own professional body, the Law Society

Most solicitors work in private practice i.e. law firms whilst others work in-house once they built have up some relevant industry-specific experience + therefore carry out legal work directly for their employer e.g. central/local government, CPS or in the legal departments of private businesses

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Explain the role of solicitors

The type of work done by a solicitor largely depends on the type of the firm they work in, what area of law they work in + whether their work is contentious (resolving disputes e.g. one company suing another) or non-contentious (dealing with a client’s personal or business needs e.g. dealing with company mergers)

Daily activities may include meeting clients to establish the firm’s suitability to provide the necessary advice + services, based on the firm’s specialism + likely cost, researching previous cases + relevant laws to ensure the accuracy of advice + drafting legal documents + contracts

Where it is necessary to go to court, solicitors may decide to brief a barrister to conduct the case

Solicitors may also consult barristers for an opinion on a complex case

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Explain the rights of advocacy for solicitors

All solicitors have always had the right to act as advocates in the Magistrates’ + County courts but their rights of audience in the higher courts used to be very limited

Following the Courts and Legal Services Act 1990, solicitors in private practice now have the right to apply for a certificate of advocacy, which enables them to exercise higher rights of audience i.e. appear in the higher courts, if they have existing experience of advocacy, take a short training course + pass exams on the rules of evidence

Such solicitors are then known as Solicitor Advocates + are eligible to be appointed as QC

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Explain the qualifications and training process of solicitors

Prospective solicitors usually study a qualifying law degree, which includes the seven foundation subjects of legal knowledge e.g. criminal + tort law

Students with a non-law degree may take the GDL conversion course

The next stage is completion of the LPC, the final educational stage for becoming a solicitor designed to provide a bridge between academic study + training in a law firm; it includes training in skills e.g. client interviewing, negotiation + advocacy

Students must then obtain a TC, typically of two years length, in which they work in a law firm + gain practical experience in different areas of the firm’s work

On successful completion, trainee solicitors will apply to the SRA and if successful, will be admitted to the Roll of Solicitors + become fully qualified

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Explain the new SQE qualifying route

In 2020, the SQE was introduced, designed to become the new centralised way of qualifying + eventually replacing the LPC + GDL

Prospective solicitors will require any undergraduate degree or equivalent experience e.g. a degree apprenticeship; there is no requirement for a qualifying law degree/GDL

The SQE is split into two parts – Stage 1 assesses general legal knowledge through multiple-choice questions whilst Stage 2 assesses practical skills e.g. client interviews

Undertaking wo years of qualifying work experience is still compulsory although this will not have to follow the traditional training contract format + can be taken at any point throughout the SQE; applicants will then apply to the SRA for qualification

At this stage, the SRA will check if the applicant satisfies their suitability + character requirements before deciding whether to grant qualified status

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Explain the role of the Law Society in regulating solicitors

The LS is the governing body of solicitors; all practicing solicitors must be members

It exists to support the interests of solicitors+ leads the debate on issues affecting them; in particular, it speaks to government + the public on a range of legal issues + works to influence policy + legislation to ensure that it protect its members, the public + the justice system

It also helps raise the profile of the profession through campaigns + networking + promotes the UK legal sector locally + globally

It used to be responsible for dealing with complaints about solicitors but due to conflict in its roles, as it was representing solicitors + also trying to help clients who complained, this power was passed to the SRA

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Explain the role of the SRA in regulating solicitors

Solicitors are regulated by the SRA, which sets standards for qualifying, monitors the quality of training + investigates complaints about the professional misconduct of solicitors

The SRA sets a code of conduct that solicitors must abide by regarding their clients + the public’s interest

If solicitors are found to be in breach of any of these principles, the regulatory board can step in + take action; evidence of serious misconduct will result in the case being put before the Solicitors’ Disciplinary Tribunal

If a complaint is upheld, the SRA can reprimand or fire a solicitor or in more serious cases, it can suspend or even strike off a solicitor from the Roll so that they are barred from practicing

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35

Explain who barristers are

Barristers are specialist advocates

Approx. 13000 barristers in E&W are self-employed in independent practice + a further 3000 employed by organisations e.g. local government, CPS, Civil Service

Barristers are collectively referred to as ‘the Bar’ + are controlled by their own professional body, the General Council of the Bar

They must be a member of one of the four Inns of Court, all based near the Royal Courts of Justice in London i.e. Lincoln’s, Gray’s, Inner Temple + Middle Temple

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Explain the role of barristers

Barristers practicing at the Bar are self-employed but usually work out of chambers, where they share admin expenses with other barristers, + contribute to the collective running + management of chambers, particularly with the recruitment of pupils + other tenants

They will employ a clerk as a practice administrator, booking in cases + negotiating fees, as well as other support staff

With the exception of specially trained Solicitor Advocates, barristers are the only people who have full rights of audience i.e. able to present cases in any court + this is where the majority of their work takes place

As well as advocacy, they will complete paperwork, write opinions on cases + draft complex documents for use in court though there are some barristers who specialise in areas e.g. commercial law + so will rarely appear in court + instead spend more time undertaking drafting + advisory work

Barristers follow the ‘cab rank’ rule meaning if they are free, they must accept any case within their area of specialism for which a suitable fee is offered, no matter how unpalatable the case – without it, unpopular people would not get legal representation

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Explain direct access in the context of barristers

Originally, barristers could not be briefed directly + so it was necessary for anybody who wished to instruct a barrister to go to a solicitor first + then the solicitor would decide whether a barrister a needed

However, this was thought to create unnecessary expenses for clients, as it meant they had to consult + pay for two lawyers

Since 2004, under the Direct Access Scheme, members of the public can now instruct barristers directly for civil cases, although direct access is still not allowed for criminal or family cases

This means barristers will also undertake preparatory work in cases e.g. interviewing clients + negotiating with opposing parties, which previously only solicitors could do

Barristers who wish to engage in direct access work must undergo additional training

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38

Explain the qualifications and training process of barristers (1)

Entry to the Bar is normally degree based – students with a non-law degree must take the GDL, a conversion course designed as an intense programme covering the core areas of law

All student barristers must complete the vocational component of Bar training, which is satisfied by being a member of one of the four Inns of Court + passing the Bar Professional Training Course, which includes modules e.g. conference skills (i.e. interviewing clients), advocacy, drafting

During this component, students must also attend twelve qualifying sessions with their Inn; these are professional development events of an educational + collegiate nature

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Explain the qualifications and training process of barristers (2)

On completion of these requirements, they are then ‘called to the Bar’ although they are not allowed to practice until completing the work-based learning component i.e. a pupillage

A pupillage is a period of on-the-job training which effectively involves shadowing an experienced barrister + is divided into two parts – a non-practicing period, usually of six months, spent observing cases + assisting barristers with research + a practicing period, usually of six months, where pupil barristers start to undertake their own simple cases under supervision

On completing a pupillage, successful candidates will hope to obtain tenancy, meaning a permanent place in a Barristers’ Chambers

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40

Explain the role of the Bar Council in regulating barristers

The Bar Council acts like a trade union for barristers, representing their interests + making the Bar’s views on issues e.g. legal aid payment rates known to the government

It promotes the Bar’s high-quality specialist advocacy + advisory services

It also promotes fair access to justice for all, the highest standards of ethics, equality + diversity across the profession + the development of business opportunities for barristers at home + abroad

It used to be responsible for disciplining barristers but due to conflict in its roles, the Bar Standards Board was created as an independent regulator

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41

Explain the role of the Bar Standards Board in regulating barristers

Barristers are regulated by the Bar Standards Board, which oversees training + entry standards + deals with disciplinary matters

It also sets out a Code of Conduct which barristers must comply with; the Board investigates any alleged breaches + can discipline any barristers who is in breach of the Code

Serious breaches will be referred to the Disciplinary Tribunal arranged by an independent Bar Tribunals + Adjudication service

Sanctions may include a reprimand, further professional training, a fine of up to 50k, suspension of up to 12 months or disbarring in the most extreme cases

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42

Explain what the Queen’s Counsel is

Barristers or solicitor advocates with at least ten years experience can apply to become a QC; becoming a QC is also known as ‘taking silk’

Approximately 10% of barristers practicing at the Bar are QCs

To be awarded the status is a recognition of excellence in advocacy; QCs are often seen as leaders in their area of law

They typically command higher fees for their expertise + take on fewer cases than junior barristers – these cases tend to be more complex + require a high level of specialist expertise

QCs will often have a junior barrister to assist with cases

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43

Explain who legal executives are

Qualified lawyers who are usually highly specialised in a particular area of law + carry out reserved legal work alongside solicitors

There are over 20k practicing legal executives + they are governed by their own professional body, CILEX

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44

Explain the role of legal executives

The day-to-day work they carry out is very similar in nature to that of a solicitor e.g. advising clients + explaining complex legal matters to them + preparing documentation on the legal aspects of a company formation

They also have some rights of audience e.g. chambers hearings in the County + Family Courts

Since 2008, legal execs have been able to undertake additional training in advocacy + obtain wider rights of audience in civil, criminal + family proceedings + this allows them to deal with matters e.g. making an application for bail or dealing with cases in the Youth Court

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45

Explain the qualifications and training process of legal executives

Legal Executives typically complete training on a part-time basis whilst working for a law firm; they study a wide range of academic law topics, but undertake narrower vocational training than solicitors which is suited to the area they will practise in.

It is necessary to pass the Professional Diploma in Law + the Professional Higher Diploma Law, as well as five years work experience in a law firm or other legal organisation e.g. CPS

When all the qualifications have been achieved, they achieve the status of Fellow

Legal execs can go onto become solicitors by completing further legal study + the LPC or SQE – they are exempt from the two year training contract/recognised training

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46

Explain the role of CILEX in regulating legal executives

All legal execs must be members of Chartered Institute of Legal Executives (CILEX)

They aim to promote + secure professional standards of conduct among its members

They also provide education, training + professional development for legal execs + work to protect their status + interests

CILEX publishes a code of conduct + guides to good practice but regulation of members is done by the CILEX Regulation Board

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47

Explain the role of the CILEX Regulation Board in regulating legal executives

The CILEX Regulation Board is the the independent regulator of CILEX members + investigates complaints about legal execs

When an investigation is complete, the Board produces a summary report + the matter is put to the Professional Conduct Panel for consideration, who will decide if there has been misconduct

Misconduct may lead to a reprimand or warning; serious matters will be referred to the Disciplinary Tribunal who has the power to exclude a person from membership + order a fine of up to 3k plus costs

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48

Explain the role of the Legal Ombudsman

Set up by the Office for Legal Complaints to deal with complaints against the legal profession

Complainants unhappy with the decisions or handling of complaints by the regulatory bodies i.e. the SRA, the BSB + the CILEX Regulatory Board, can appeal to the Legal Ombudsman

The main complaints include excessive costs, failure to follow instructions + failure to keep those involved informed about the progress of the case

Their powers include ordering the legal professional who was complained about to apologise, to refund or reduce legal fees or to pay compensation of up to 30k

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49

Explain access to justice

ATJ involves both an open + system of justice + being able to fund the costs of a case

One of central beliefs of the ELS is idea that there must be equality before the law; this can be problematic as legal advice + rep. is expensive; the cost of civil cases in the High Court can run into hundreds of thousands of pounds + the loser may be faced with having to pay winner’s costs

There is also the additional risk in civil cases that the loser has to pay the winner’s costs

In criminal law, a person’s liberty is at stake so access to high quality legal advice vital in order to defend themselves properly

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50

Explain legal aid

Some government funding, known as legal aid, is available for civil + criminal cases to pay the legal fees of those who could not otherwise afford it

This is under the control of the Ministry of Justice following the LAPSO 2012

Legal aid is available where the case is serious, the person cannot afford to pay legal fees + the case is eligible e.g. it is available for domestic violence cases but no longer available for medical negligence

A person’s ability to pay is means tested; as this includes both income + property, many people who own their home are not eligible even though in reality they have no spare money

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51

Explain legal aid in criminal cases where D is in custody

The Head of Criminal Casework supervises criminal legal aid and oversees all applications for legal aid

Under s13 LAPSO 2013, initial advice + assistance are to be available to an individual who is arrested + held in custody at a police station or other premises if the Head of Criminal Casework determines that the individual qualifies

Such advice would normally be provided by a duty solicitor from a law firm that the Legal Aid Agency has made a contract with to provide such assistance

When deciding if the individual qualifies the Head of Criminal Casework must have regard for the ‘interests of justice’

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52

Explain legal aid in criminal cases for legal proceedings

Under s15 LAPSO 2013, advice and assistance is available before, during + after legal proceedings (incl. courts cases + tribunals) + legal representation is available for those who qualify

When deciding whether an individual qualifies for aid in legal proceedings, the Head of Criminal Casework will consider if the individual is likely to lose their liberty or loss of reputation, whether the individual is able to understand or present their case on their own + whether the proceedings concern an important question of law

These services would be provided only by organisations which have a contract with the Legal Aid Agency e.g. solicitors in private practice, law centres + some Citizens Advice Bureaux

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53

Give two sources of legal advice

The Citizens Advice Bureaux is network of independent charities, with 2.5k locations across the country + a bureau existing in most towns; they give free general advice to anyone on a variety of issues, mostly connected to social welfare problems + debt but also on some legal matters

They can provide info on which local solicitors do legal aid work or give free initial interviews; many have arrangements under which solicitors will attend the bureau weekly to give more qualified advice on a pro-bono basis; in 2020-21, they provided over 2.4m people with one-to-one advice + their online self-help advice received over 60m views

Law Centres have existed since 1970; they offer free, non means-tested legal advice to people in their area + they aim to provide free legal advice in areas where access to the legal system is limited - they specialise in social welfare issues

Law centres have been historically underfunded by the MOJ + this has led to many closures; however, some centres have received funds from the National Lottery fund, where the law centre is part of a community project

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54

Explain the classification of offences

The MC + CC are the two main criminal courts; other courts dealing with criminal cases are known as appeal courts + these may deal with both civil + criminal cases

Summary offences are the least serious offences + can only be tried in the MC; they include nearly all motoring offences + common assault

Triable-either-way offences are middle range offences which can be tried in either the MC or CC; examples include drug offences e.g. possession of drugs with intent to supply + s47 ABH

In these cases, where D pleads guilty, the case is heard by the magistrate; where D pleads not guilty, they have the right to to take their trial in front of a jury in the CC; if the case is too serious for them to deal with + if their sentencing powers are insufficient, the magistrates can decide to send the case to the CCC

Indictable offences are the most serious crimes + include rape, murder + manslaughter; the first preliminary hearing for such an offence will be heard at the MC but the case is then transferred to the CC

All indictable offences must be tried at the CC by a judge + jury

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55

Explain the work of the Magistrates' Court

There are approximately 240 MCs in E&W; cases are heard by a bench of 3 Ms, who are either legally qualified DJs or unqualified lay justices; there is also a legally qualified clerk attached to each court to assist them

97% of all criminal cases are heard in the MC, amounting to 1.5m cases per year; they hear cases at first instance + try all summary offences, as well as triable-either-way offences, where Ms are prepared to accept jurisdiction + where D agrees to a summary trial by the Ms

They also deal with the first preliminary hearing of all indictable offences + side matters connected to criminal cases (e.g. issuing warrants for arrest + deciding bail applications); specially trained Ms also try cases in the Youth Court where Ds are aged 10-17

The maximum sentence that magistrates can usually pass is 12 month’s imprisonment, a £5000 fine or both; LAPSO 2012 allows magistrates to issue unlimited fines for specified level five offences e.g. the sale of alcohol to children

Magistrates’ Courts also deal with civil matters e.g. enforcing Council Tax demands + proceedings concerning the welfare of children under the Children Act 1989

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56

Explain the work of the Crown Court

The CC sits in 92 locations around E&W, dealing with 80k cases per year; for trials in the CC, the case is heard by a judge + jury of 12; the judge presides over the case, deciding on points of law + if D is found guilty, the appropriate sentence, whilst the jury decides on the facts + verdict

They deal with triable-either-way offences where D has elected to be tried in the CC or where the Ms have decided the case is too serious, all indictable offences + appeals from the MC

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57

Explain appeals to the Crown Court

If D or in more unusual circumstances P is not happy with the decision in a case, there may be an appeal; part of this depends on whether the appeal is only on a point of law or for other reasons

The CC hears appeals from the MC; this route is available to the defence; D has an automatic right to appeal + the case is completely reheard by a judge + two LMs

They can confirm, revise or vary the conviction; where the appeal is against sentence, the CC can confirm it or increase/decrease it in line with Ms sentencing powers

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58

Explain case stated appeals

The Administrative Court in the QBD deals with some criminal appeal cases where a point of law is questioned; it can be made direct from the MC or following an appeal to the CC + is available to both the P+D

The Ms or CC are asked to state the case by setting out their findings of fact + their decision; the appeal is then argued on the basis of what the law is on those facts; although the appeal is made to the Administrative Court, the case can be sent to be heard by a panel of two HC judges

They can confirm, vary or reverse the decision, or the case can be sent back to the MC for the Ms to implement the decision on the law

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59

Explain appeals from the Crown Court

The COA (Criminal Division) hears appeals from CC; D may wish to appeal against conviction or sentence or in rare circumstances, P can also appeal in rare e.g. if they believe the jury or witnesses have been bribed/intimidated

In all cases, D must get leave to appeal + the application will be considered by a single judge of the COA in private; the idea is that cases without merit are filtered out + the court's time saved

The COA can confirm, quash, dismiss the appeal, vary the conviction or order a retrial of the case in front of a new jury; they can also confirm/decrease the sentence given

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60

Explain further appeals to the Supreme Court

There is a possibility of a further appeal to the Supreme Court from either the P/D where a point of law of general public importance is involved

There are a very small number of cases like this each year, e.g. R v Gnango

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61

Identify the aims of sentencing

Retribution, deterrence, reform & rehabilitation, public protection, reparation

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62

Explain what is meant by retribution

Retribution is based in the idea of revenge or punishment i.e. that an offender deserve punishment for their acts

It does not seek to reduce crime or alter the offender's future behaviour; rather, a judge using this aim is only concerned with the offence committed + ensuring a proportionate sentence is handed

In practice today, retribution is based more on the idea that each offence should have a certain tariff or level of sentencing; The Sentencing Council produces guidelines + judges should ensure that they do not give lower sentences than the minimum set out

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63

Explain what is meant by deterrence

Deterrence is aimed at giving a punishment to reduce future levels of crimes

It can be individual (intended to put off D from reoffending because of fear of punishment) or general (intended to prevent other potential offenders from convicting similar crimes)

Penalties can be imposed with the aim of deterring the individual offender e.g. prison sentence though it does not appear to deter as 55% of adults reoffend within two years of release

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64

Explain what is meant by reform & rehabilitation

The main aim of reform & rehabilitation is to try to 'cure' their criminal behaviour so that they will not conform to community norms + reoffend in the future

It is a forward-looking which hopes that the offenders' behaviour will be altered by the penalty + aims to reduce crime in this way; reforming is a particularly important element in the sentencing philosophy for young offenders

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65

Explain what is meant by public protection

The aim of public protection is to prevent dangerous offenders from harming the public; it applies particularly to crimes of a violent or sexual nature

For less serious offences, there are other methods in which the public can be protected e.g. including an exclusion order as a requirement in a community order; this will ban offenders from going to places where they are most likely to commit an offence

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66

Explain what is meant by reparation

The aim of reparation is to compensate the victim of the crime by ordering the offender to pay compensation or to make restitution e.g. by returning stolen property

The concepts also includes making reparation to society as a whole + this can be seen mainly in the use of an unpaid work requirement

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67

Explain the meaning of aggravating & mitigating factors

Aggravating factors are circumstances that make an offence more serious; these may make the judge pass a harsher sentence; Under the Criminal Justice Act 2003, factors considered aggravating include racial or religious hostility + previous convictions for offences of a similar nature

Mitigating factors are circumstances that make an offence less serious; these may make the judge pass a more lenient sentence e.g. if the offender co-operates with the police by helping identify others involves in the crime; for a guilty plea, particularly where ones made early in the proceedings, there will also be a reduction in sentence

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68

Explain what is meant by a custodial sentence

Custodial sentences are the most serious punishment that a court can impose where D is deprived of their freedom + should only be given if the court is of the opinion that nothing else (i.e. a fine alone/community sentence) is sufficient

They include mandatory + discretionary life sentences, fixed-term sentences + suspended sentences, given where the offence is so serious that an immediate custodial sentence would have been appropriate, but exceptional circumstances in the case justify the suspension)

The maximum term is set out in the relevant statute e.g. for s20 OAPA 1861, the maximum is 5 years imprisonment

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69

Explain what is meant by community orders

The Criminal Justice Act 2003 created one community order under which the court can combine any requirements they deem necessary + allow them to fit the restrictions + rehabilitation to the offender's needs

The full list of requirements is set out in s177 of the Criminal Justice Act 2003 + includes unpaid work requirements, which requires the offender to work on a suitable project organised by the probation service, and prohibited activity requirements, with the idea to try + prevent Ds from committing another crime of a similar nature

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70

Explain what is meant by fine

Fines are the most common way of disposing of a case in the MC; it must take into account Ds finances

In the CC, only a small percentage of offenders are dealt with by way of fine

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71

Explain the concept of justice in law: the meaning of justice (1)

Justice is a concept that can be described simply by a synonym e.g. fairness, equality or even-handedness; in a legal context, this links to the idea that the law is fair in how it seeks to punish wrongs + protect rights

Theorists from across the ages have attempted to pin down the meaning of justice; as such, a variety of opinions have emerged as to what justice means, or should mean, + its application

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72

Explain the concept of justice in law: Aristotle's theory of justice (2)

DJ is concerned with the fair allocation of the R,W+R of life in terms of both benefits + burdens so that people have the same access to justice

For Aristotle, justice was about distribution and proportionality. He believed that a just state should distribute based on merit, i.e. a person's contribution to society; this is a proportionate system where the worthiest are rewarded with the greatest share; to allocate resources on the basis of people's needs would be unjust, as it would reward the lazy as much as the hardworking

Today, this can be considered in the context of welfare spending i.e. paying for the care of the elderly or providing social security benefits to all without question

Critics argue that Aristotle fails to recognise the disparity of people's needs; therefore, for those who perhaps due to health-related reasons cannot contribute as much, they will get less distributed to them even though they may require more resources + this is unjust

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73

Explain the concept of justice in law: Marx's theory of justice (3)

In contrast, Marx developed a radically different model of DJ + this was embodied in his slogan 'from each according to his ability, to each according to his need’

He argued that a capitalist society could never be a just one as legal institutions exist only to serve the self-interests of the ruling class elites; this can be seen in property rights, which are much more securely established in law than the collective rights of trade unions, for example; only through a classless society, featuring the redistribution of wealth + absolute equality of outcome, irrespective of a individual's personal contribution to the production process, would justice be achieved

Critics of Marx point out that he unjustly rewards the least productive + ‘underserving’ members of society. Further, no country has so far been able to put into practice the just society envisaged by Marx although capitalist societies following principles of distributive justice closer to that of Aristotle's are also criticised for social injustice

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74

Explain the concept of justice in law: Bentham's theory of justice (3)

Bentham coined the idea of utilitarianism, a concept later developed by J.S Mill; for utilitarians, justice is concerned with promoting ‘the greatest happiness for the greatest number’. This clearly indicates that the law's purpose is to create a balance, but that the individual's good may be sacrificed in favour of the good of the whole

In the case of Re A, which involved a dilemma regarding two conjoined twins, a utilitarian would argue that because the aim of justice is to maximise happiness, sacrificing one child in favour of saving the life of another would best achieve this; the operation would achieve the greatest benefit because one twin would survive, whereas without it both would die; to some this case will be just but to others, such as followers of natural law, who believe the child that died had God-given rights which should be paramount, the opposite will be true

A key criticism is the focus on prioritising the interests of the majority, even where it may be detrimental to an individual's life e.g. wrongful convictions of murder where the community feels safer but does D a terrible injustice

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75

Explain the concept of justice in law: failures in achieving justice (5)

It is clear that one of the aims of the legal system is to achieve justice; although whether or not this is achieved is a subjective concept

E.g. the mandatory life sentence for murderers allows no judicial flexibility to recognise different levels of seriousness of offence; in Canning the trial judge described D’s sentence as ‘a classic example of injustice’

Even with a right of appeal, which in itself does achieve justice by ensuring that as far as possible, courts arrive at correct decisions, injustices still arise i.e. where people serve long prison sentences for crimes they have not committed; a notorious example is the case against the Guildford Four, who served 15 years in prison before being released following quashed convictions after it was discovered the police falsified their statement

Whilst it is the aim of the law to be a fair adjudicator + ensure a balance is struck between the two, this inherently serves to limit the justice the law can given

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76

Explain the concept off fault in law: the meaning of fault - fault in AR & MR (1)

Fault is the common thread which runs through English law + is a form of wrongdoing; it refers to the blameworthiness of D in relation to their crime; sometimes a person can be at fault even if the action carried out is termed ‘no fault’

In criminal law, there is a general presumption that liability is based on fault + this is consistent with our sense of justice i.e. a person should not be held liable for a crime unless they are to some extent blameworthy (at fault); this underpins the requirement for MR as it is what is in a person’s mind that distinguishes between an accident + a crime + so MR can therefore be seen as the main fault element of an offence

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77

Explain the concept off fault in law: fault in causation & strict liability (2)

Causation also illustrates how fault is a basic requirement of liability e.g. in White, the fact that D was not guilty of murdering his mother as she died from a heart attack rather than due to the poison he gave her shows that fault is seen as essential even where public opinion may not approve

However, the law provides a choice of offences to reflect D’s degree of fault, so in White, this could be rectified by the possibility of guilt of attempted murder

At face value, because strict liability offences impose liability even where D lacks MR, it can be argued a person is liable even where they are not at fault + have exercised all reasonable care

However, it can also be argued that the AR still has an element of fault in the sense that someone has responsibility for the event that occurred, e.g. in Harrow LBC v Shah where D was responsible for what was sold in their shop

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78

Explain the concept off fault in law: fault in civil law (3)

In negligence, one of the largest areas of civil law, to be found to have breached their DOC, D must be seen to have fallen the standards of the reasonable person in the circumstances; this an objective type of fault

Where D contributes to their own injury, the rules of contributory negligence will apply + this splits fault between the two parties

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79

Explain the voluntary element of AR

AR must be voluntary; if D has no control over their actions, they are not considered to have committed the AR

In the case of Hill v Baxter, the judge gave an example of an involuntary act as D losing control of his vehicle due to being attacked by a swarm of bees, in which case Ds conduct would not form an AR

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80

Explain the different types of AR

For conduct crimes, the prohibited behaviour itself forms the AR of the offence e.g. lying under oath represents the AR of perjury; it does not matter whether the lie had any effect on the outcome of the case, the AR of the crime is complete upon the conduct

For consequence/result crimes, the AR must result in a certain a certain outcome e.g. the AR for murder requires V to die; causation must be established in all result crimes; the conduct itself may not be criminal but the result of the conduct may be e.g. it is not a crime to throw a stone, but is if it hits a person

For state of affairs crimes, the AR consist of circumstances ‘being’ rather than doing’ e.g. being an illegal alien – Larsonneur; this is an exception to the voluntary act requirement which criminalises a D being found in a particular circumstance at a particular time, irrelevant of how they got there

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81

Explain the general rule on omissions

An omission is a failure to act; the general rule is that an omission cannot form the AR of an offence

However, there are exceptions to this rule, where a person can be liable for failing to act, where the law imposes a duty act

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82

Explain the exceptions to the general rule on omissions (1)

Gibbins & Proctor: a parent is under a duty to protect his young child from physical harm; their omission to look after the child (failure to feed) can form an AR

Stone & Dobinson: where D voluntarily assumes responsibility for the care of another, their omission to discharge this duty can form an AR

Pittwood: where D is under a contractual duty to act as part of his job, their omission to fulfil that contractual duty (breaching contract of employment by failing to shut gate at a level crossing) can form an AR

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83

Explain the exceptions to the general rule on omissions (2)

Dytham: where D has a public duty to act, omission to intervene e.g. when witnessing violent attack can form an AR

Miller: where D sets in motion a chain of events (creating a dangerous situation by falling asleep with lit cigarette + causing mattress to catch fire), their omission to stop the consequences occurring (failing to take steps to put fire out) can form an AR

Statutory duty to act: Ds duty to act can be imposed by statute e.g. due to s170 Road Traffic Act 1988, failing to stop at scene of road accident is a criminal offence; the omission to stop forms part of AR

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84

Explain factual causation

D will only be liable if the consequence would not have happened ‘but for’ their unlawful A/O; if the result would have happened anyway, D cannot be liable for the offence

White – It could not be said V would not have died ‘but for’ Ds conduct; D therefore not guilty (of murder) as the outcome (Vs death) would have happened away

Pagett – ‘but for’ D conduct (in using V as a shield in a shoot-out he instigated), the outcome (Vs death) would not have occurred

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85

Explain legal causation

Ds conduct need not be the sole/main cause of the outcome

Smith - D has caused the unlawful outcome if his conduct contributes to it in a more than minimal way

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86

Explain the general rule on novus actus interveniens (new intervening act)

A novus actus interveniens is a new intervening act which breaks the COC

There must be a direct link between Ds act + the result; for D to be guilty, the COC must not be broken

The COC is very hard to break; even where other events contribute to the result, D can remain liable as long as the chain is not broken

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87

Explain the circumstances that can lead to a break in the chain of causation (1)

  1. Act of a third party – Smith - Despite all the subsequent events (V being dropped, delay, treatment which made injuries worse), as the stab wound was the operating + substantial cause of Vs death + therefore a more than minimal cause, legal causation was present

  2. Medical negligence: the general position is that medical negligence will not break the chain unless extraordinary + unusual

Cheshire – Despite poor medical treatment + original wounds no longer being life threatening at time of death, D was held liable; if the original injury/wound inflicted by D is a significant/even more than minimal cause of the outcome, D will be liable

Jordan – As the treatment here was palpably wrong + Vs wounds were almost healed, could not be said stab wound was a more than minimal cause of death

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88

Explain the circumstances that can lead to a break in the chain of causation (2)

  1. Victim’s own actions: If V contributes to the result or makes it worse by their actions, this only breaks chain if those actions are very unusual, unexpected or unreasonable

Roberts – D liable for the Vs injuries as it was a reasonably foreseeable consequence of his conduct

  1. Thin skull rule: D must take their victims as they find them

If V suffers more than expected, e.g. medical condition makes them a particularly vulnerable V, D is still held fully liable for the full extent of Vs injuries, even if ordinary person would not suffer such severe consequences

Blaue – the answer for what caused Vs death was the stab wound, the fact that V refused to stop this end coming about did not break chain; as D had to take victim as he found her, he was liable

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89

Explain the different levels of intention

Direct intent exists where D has the desire/aim/purpose to bring about the prohibited consequence; it does not matter whether D actually achieves it

Mohan – D had direct intent when he accelerated sharply as it was his aim/purpose to bring about the prohibited consequence (hit with car), although he did not succeed

Oblique intent exists where the prohibited consequence is a virtually certain outcome of Ds conduct + D realises this; it is established by a two-part test in Woollin

D had oblique intent as the prohibited consequence (serious harm to baby) was a virtually certainty outcome of Ds conduct + he must have realised this

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90

Explain the different levels of recklessness

Following G&R (2003), objective recklessness was abolished for reasons of fairness + so a subjective test established in Cunningham is applied to determine recklessness

Subjective recklessness exists where D realises there is an unjustifiable risk of the prohibited consequence happening + decides to take that risk anyway

Cunningham – D was not reckless as he did not realise the risk of the prohibited outcome occurring (risk of gas escaping + injuring another); it would be unfair to convict where D does not appreciate the risk of harming V

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91

Explain the general rule on transferred malice

Where D has the necessary MR to commit the crime but against an unintended V; the doctrine of TR will apply meaning

Latimer – Ds MR (aim to hit one with belt but wounding another instead) was transferred from intended V to the actual V and he was guilty of an offence against V

However, MR can only move between Vs of the same type of crime

Pembliton – the MR (of an offence against the person i.e. intention to hit people) could not be transferred to offence (property) as they are entirely different offences

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92

Explain the contemporaneity rule (1)

Generally, both the AR + MR must coincide i.e. be present at the same time for there to be criminal liability; this principle is known as the contemporaneity rule

However, the courts have been flexible with this rule in the interests of justice

Firstly, where the AR is present before the MR, the courts have dealt with the problem by considering the AR as a continuing act; this means it is sufficient D has the MR at some point during the continuing AR, even if not at the start

In Fagan v MPC, the AR did not end as soon as the car rolled onto the foot; rather it was a continuing act in progress all the time the force was being applied to the foot; therefore, D still had the AR when the subsequent MR arrived + so there was coincidence

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93

Explain the contemporaneity rule (2)

Secondly, where the MR is present before the AR, the courts have dealt with the problem by finding coincidence if both are part of the same series of events; if the AR + MR are both present at some time, then there is criminal liability

Thabo Meli - Ds conduct (in beating V + throwing him off the cliff) was all part of the same series of events following through a pre-conceived plan of action (plot to kill V + make it look like an accident) + therefore could not be seen as separate acts

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94

Explain the general elements of strict liability offences

A strict liability offence is one where D is guilty by doing the AR alone; there is no need to prove any MR in respect of some or all of the AR

Many driving offences are crimes of strict liability e.g. for speeding, it does not matter whether D intended or was reckless as to driving in excess of the speed limit, only that D committed the AR of the offence

Strict liability offences are primarily regulatory in nature rather than ‘truly criminal’ matters + these ‘quasi-crimes’ often concern breaches of regulations e.g. of health and safety regulations as in Alphacell v Woodward (pollution) and Callow v Tillstone (sale of unfit meat)

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95

Give an intro to assault

An assault is committed where D intentionally or recklessly causes V to apprehend immediate unlawful personal violence – Fagan v MPC

Due to the level of injury, the offence D may be liable for is assault, under common law + s.39 Criminal Justice Act 1988

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96

What is the AR of assault

The AR of assault is causing V to apprehend immediate unlawful violence

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97

Explain the first element of the AR of assault

Apprehend means V must be aware that they are about to be subjected to violence; D need not intend fear

In Lamb, as V did not believe the gun would go off, he did not AIUV + so there was no unlawful act as no assault had been committed

Here, when D stares at V through her window, it causes V to have a general awareness that some kind of violence might be done to her (Smith v Supt. of Woking), as she is frightened by his conduct + to fear what he might do next

V can have a general awareness of violence even if D is joking - Logdon v DPP

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98

Explain the second element of the AR of assault

Immediate means that V apprehends being subjected to violence within a reasonable time; in Smith v Supt. of Woking, it was held that 'immediate' force was not 'instant', but imminent (i.e. in the very near future)

Here, it did not matter that D was outside the house + no violence could be applied at that immediate moment; the violence does not actually need to be on the point of occurring so the fact that V apprehended violence could take place within a reasonable period of time is enough to be immediate

By contrast, if D were to shout threats from a passing vehicle, it is unlikely that D could be seen by V as able to carry out this violence within a reasonable time

Therefore, the requirement for immediacy has been satisfied

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99

Explain the third element of the AR of assault

Unlawful violence can be apprehended due to any type of conduct, including the use of words, gestures or other means; no force need actually be applied to V

Silent telephone calls can amount to an assault - Ireland In Constanza, words were an assault as V had interpreted them as clear threats + caused V to AIUV

Words can also nullify an assault i.e. where words indicate no violence will ensue, as in Tuberville v Savage; however, this will depend on all the circumstances

E.g. Light, the words in the circumstances were not enough to negate that fear

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100

Explain the MR of assault

The MR of assault is intention to cause another to AIUV or recklessness as to whether such fear is caused - Savage

Here, D has direct intent as he desires to cause V to AIUV; it does not matter whether D actually achieves it - Mohan

Here, D has oblique intent as causing V to AIUV is a virtually certain outcome of Ds conduct + D realises this - Woollin

Here, there is a risk that Ds conduct could cause V to AIUV + D realises this - Cunningham

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