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School of Law
Department of Law and Politics
English Legal System
LAW1102
Module Leaders: Bethany Shiner (Term 1) & Dr Amanda
Loumansky (Term 2)
Autumn 2018-2019
24 weeks
Document Version 1
ENGLISH LEGAL SYSTEM LAW 1102
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Online location of handbook
This handbook can also be accessed via My Learning at:
https://mdx.mrooms.net/course/view.php?id=14580
Other formats available
This handbook is available in a large print format. If you would like a large print copy or have
other requirements for the handbook, please contact the Disability Support Service
([email protected], +44 (0)20 8411 4945).
Disclaimer
The material in this handbook is as accurate as possible at the date of production. You will be
notified of any minor changes promptly. If there are any major changes to the module you
will be consulted prior to the changes being confirmed. Please check the version number on
the front page of this handbook to ensure that you are using the most accurate information.
Other documents
Your module handbook should be read and used alongside your programme handbook and
the information available to all students on My Learning, including the Academic Regulations.
Your programme handbook can be found on the My Learning programme page for your
course.
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Table of Contents
1. Welcome ............................................................................................................................. 5
2. The module teaching team ................................................................................................. 5
3. Communication with the teaching team ............................................................................ 7
Statement of student conduct……………………………………………………………………………………….….7
4. Module overview ................................................................................................................ 9
Module Narrative ..................................................................................................................... 9
Module Structure……………………………………………………………………………………………………….………9
5. Learning resources (readling list and other materials) ..................................................... 11
Logging onto myunihub……………………………………………………………………………………………….…13
6. Expectations of studying this module ............................................................................... 13
Attendance policy ................................................................................................................ 13
Lateness policy ..................................................................................................................... 13
Mobile phones...................................................................................................................... 13
Professional behaviour ......................................................................................................... 14
Academic misconduct .......................................................................................................... 14
OSCOLA quick referencing guide………………………………………………………………………..…………..17
Extenuating circumstances: ................................................................................................. 18
7. Assessment ....................................................................................................................... 18
Formative assessment .......................................................................................................... 20
Summative assessment ........................................................................................................ 20
Assessment Marking Rubic……………………………………………………………………………………………..21
7.1.1 Assessment 1 ............................................................................................................... 22
7.1.2 Assessment 2 ............................................................................................................... 24
7.1.3 Assessment 3 ............................................................................................................... 25
7.2 Feedback on your assignments ...................................................................................... 25
7.3 How is your assignment mark agreed? .......................................................................... 26
7.4 Available support ……………………………………………………………………………………………………..27
8. Learning Planner ............................................................................................................... 31
9. Necessary Skills…………………………………………………………………………………………………………..32
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10. 10 Elements of an effective, non-annoying email……………………………………………………….36
11. Sources of Law……………………………………………………………………………………………………………40
Week 1: Introduction to the English Legal System………………………………………………………………41
Week 2: Civil Process and law reform…………………………………………………………………………………55
Week 3: Alternative Dispute Resolution………………………………………………………………………………66
Week 4: The Judiciary………………………………………………………………………………………………………….74
Week 5: Legal Professionals………………………………………………………………………………..………………88
Week 6: Reading week………………………………………………………………………………………………..………95
Week 7: Human Rights in the English Legal System……………………………………………………………96
Week 8: Access to justice and paying for legal representation……………………………………………109
Week 9: The Family Courts and Process…………………………………………………………………………….121
Week 10: The Jury…………………………………………………………………………………………………………….134
Week 11: Guest Lecturer……………………………………………………………………………………………….…142
Week 12: Introduction to the Criminal Justice System………………………………………………….….146
Week 13: Guest Lecture…………………………………………………………………………………………………..153
Week 14: The Police (1)……………………………………………………………………………………………………155
Week 15: Police use of Lethal Force………………………………………………………………………………..162
Week 16: Police (2) Stephen Lawrence……………………………………………………………………………168
Week 17: Reading Week…………………………………………………………………………………………………174
Week 18:Miscarriages of Justice in the Criminal Courts……………………………………………....…175
Week 19: Reform of the Double Jeopardy Rule/Criminal Cases Review Commission………180
Week 20: Youth Crime and Youth Justice…………………………………………………………………………187
Week 21: Women and Criminal Justice……………………………………………………………………………194
Week 22: Guest Lecture………………………………………………………………………………………………….198
Week 23: Drop in Session During Lecture Slot…………………………………………………………………199
Week 24: Self-Directed Learning………………………………………………………………………………….…200
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1. Welcome
Welcome to English Legal System LAW1102!
This course is a core module because here you will learn the foundations of the English legal
System. This knowledge is fundamental and will ensure that you can progress onwards in your
legal studies with the necessary knowledge of how the legal system works in England and
Wales. Without this understanding, you may find yourself lost at times.
The module will examine the nature and function of legal institutions and the role of the legal
profession within the English legal system. It will explore the provision of legal services and
examine alternative dispute resolution. You will become familiar with and be able to use,
legal skills and knowledge, in respect of issues and problems involving the English legal system.
Note: THIS HANDBOOK IS NOT A SUBSTITUTE FOR TEXTBOOK READING – IT IS ONLY A GUIDE!
Bethany Shiner and Amanda Loumansky
2. The module teaching team
Please see below details of the teaching team for this module.
Module leader: Bethany Shiner (Term 1)
Room number: WG35 Email: [email protected] Telephone number:
0208 411 5814
Office hours: Monday 4:30pm - 6:30pm
Module leader: Amanda Loumansky (Term 2)
Room number: WG14 Email: [email protected] Telephone number:
0208 411 8411
Office hours: Thursday 2.00-4.00pm term 1
Seminar tutor: Dr Marie Burton
Room number: WG35 Email: [email protected] Telephone number:
0208 411 5888
Office hours: Please refer to office door
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Seminar tutor: Dr Michelle Coleman
Room number: WG12 Email: [email protected] Telephone number:
0208 411 6344
Office hours: Tuesday 10am-12pm
Seminar tutor: Manjida Ahamed
Room number: Contact Manjida by email Email: [email protected] Telephone number:
Contact Manjida by email
Office hours: Email to make an appointment
Seminar tutor: Eliza Watt
Room number: WG11 Email: [email protected] Telephone number:
Contact Eliza by email
Office hours: Please refer to office door
Graduate Academic Assistant: Jemma Scott
Room number: WG36a Email: [email protected] Telephone number:
0208 411 5909
Office hours: Available on MyLearning
Graduate Academic Assistant: Matilda Sodiya
Room number: WG36a Email: [email protected] Telephone number:
0208 411 4253
Office hours: Available on MyLearning
Graduate Academic Assistant: Christina Christodoulou
Room number: WG36a Email: [email protected] Telephone number:
0208 411 4254
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Office hours:
Available on MyLearning
Law Liaison Librarian: Alan Wheeler
Room number: 2nd floor Sheppard Library
Email: [email protected] Telephone number:
0208 411 5766 For more information: http://libguides.mdx.ac.uk/prf.php?account_id=8 3525
Senior Lecturer in Academic Writing and Language: Alexandra Pitt
Room number: For drop ins Monday to Friday 12 Noon - 2pm Room S108, 1st floor Sheppard Library
Email: [email protected] Telephone number:
0208 411 6128 For more information: https://unihub.mdx.ac.uk/study/writing- numeracy/who-we-are/academic-writing-and- language/school-of-law
Employability Business Partner, MDX WORKS: Elizabeth Forbes
Room number: CG07 Email: [email protected] Telephone number:
0208 411 6430
3. Communication with the teaching team
In addition to all of the materials that will be available on mylearning, module leaders and
seminar tutors will send you emails when necessary to confirm details about lessons,
assessments and any changes to the timetable.
The module leader and other module tutors are likely to send urgent and/or individual
messages about the module to you by email, so it is important that you read your University
email regularly. If there is a problem with your email or with accessing myunihub, it is your
responsibility to resolve this problem as soon as possible by contacting myunihelp or CCSS.
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It is not necessary to book an appointment to see the tutor during the above office hours;
you just need to drop in. In the first instance problems should be dealt with by talking to
your lecturer after the lecture.
Any overall module and course feedback can also be given to the student voice leader (who
will be elected from the class) for their programme which will be included in programme
feedback sessions with lecturers.
Statement of student conduct
As a student of the university, you are expected to conduct yourself at all times in a manner which demonstrates respect for the university, your fellow students and its staff. You are an ambassador for the university, and you are expected to behave in a way that enhances the reputation of the university and all of its students and graduates, and that is sensitive to our culturally diverse environment. You are encouraged, with the support of the university, to engage actively in the learning process, fully commit to your studies and be determined to succeed. POLICY ON EXPECTED BEHAVIOUR IN LECTURES AND SEMINARS Mobile phones – Please switch them off or put them on silent! The use of mobile phones is not permitted in the buildings, especially in any teaching rooms or halls. Their use in lectures and seminars is reported to the Dean of Students, and is punishable by the university. Lateness policy Students are not allowed to enter lectures after they have started, unless the lecturer permits them to do so, e.g. during an agreed break period. Attendance/ participation and risk of being withdrawn from studies You are expected to attend lectures, seminars and workshops. Seminar attendance is monitored and a register will be taken. An explanation for any absence is expected. University records show that there is often a direct link between low/fail grades and poor attendance at seminars, lectures and workshops. There are consequences of repeated non-attendance, please refer to Middlesex University’s attendance regulations that state:
C2.4 Where a student’s attendance falls below the required minimum as a result of personal extenuating circumstances, and these are supported by relevant documentation (e.g. medical certificates), a Director of Programmes/ Module Leader/Assessment Board may decide to allow a student to be assessed. C2.6 Where a student fails to attend all sessions within a programme for a consecutive period of 4 weeks or longer, without good reason (as in C2.4), the University may
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deem the student to be withdrawn from study on that programme, and cease to be an enrolled student of the University.
STUDY EXPECTATIONS Regular and timely attendance at lectures, seminars and workshops. As preparation for each seminar you will usually be required to engage in independent study that will involve reading a case, or a series of texts and answering questions based on that reading. Your seminar tutor will often give an indication as to the correct range of approaches that could have been taken to answer each question and will summarise the issues at the end of the class. By now you will have begun to realise just how disadvantaged you will be if you do not attempt to do the independent study. You are spoiling your own chances of success by failing to adequately discipline yourself and organise your time. There will be no time in the seminars to do the reading, you will be lost, miss the points and fall behind in your understanding of what is being taught. Seminar tutors do not have the time during the seminar to assist students who have not undertaken the work. The seminar is an active not a passive environment. Therefore if you do not do the work you will find that you are unable to fully participate in the debates and discussions – and this will affect your ability to perform well on the course.
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4. Module overview
Aims
The module will examine the nature and function of legal institutions and the role of the
legal profession within the English legal system. It will explore the provision of legal services
and examine alternative dispute resolution. Students will become familiar with and be able
to use, legal skills and knowledge, in respect of issues and problems involving the English
legal system.
Learning Outcomes: Knowledge
On completion of the module a student will be able to
1. Demonstrate a knowledge and understanding of the English legal system.
2. Demonstrate an understanding of key issues facing the legal profession, the
provision of legal services and the development of alternative dispute resolution.
Learning Outcomes: Skills
This module will call for the successful student to demonstrate
3. The ability to collect information from electronic websites including Westlaw and
Lexis.
4. The ability to solve problems through factual and legal analysis.
5. The ability to organise and manage learning, including the ability to reflect on the
quality of their learning.
6. The ability to communicate effectively in writing.
Module Structure
The Module will be delivered in two parts. Teaching starts in the week beginning 1 October
2018.
The module will be delivered through:
a one and a half hour lecture every week
a one-hour seminar every week
one-hour workshops throughout the year (following the lectures after a short break)
Lectures
This handbook contains lecture materials for each topic. They are intended to serve as an
introduction and basis for your own reading and research and are not meant to be a substitute
for your own reading. It is essential therefore that you prepare each topic by reading these
materials before the lecture. Each lecture outline includes review or activity questions. Once
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you have completed the required reading for each topic, you should attempt these question(s)
in order to assess how well you have understood the topic.
Attendance at lectures is expected. It is within the discretion of the module leader/lecturer
to set aside times within the lecture period for students to ask questions on the subject matter
of the lecture. The lectures will start punctually. Students are asked to attend on time out of
courtesy to others and so that we are able to cover the required material. Students arriving
late may be excluded from the lecture by the lecturer or may be asked not to enter the lecture
hall until a suitable break, so that other students are not disturbed and so that the lecturer is
not distracted.
Mobile phones must be turned off during lectures. Infringement of this rule may lead to
exclusion from a lecture or lectures.
STUDENTS TALKING DURING LECTURES WILL BE ASKED TO LEAVE, THERE AND THEN.
Seminars
The seminar questions can be found at the end of each unit of the handbook. There will be
weekly assigned reading for each seminar and a number of questions will be set. Preparation
should be undertaken in advance of each seminar. All students will be expected to participate
in group discussions and/or give short presentations to the rest of the group.
Attendance at seminars is required. Failure to attend may result in your withdrawal from
studies: ensure you attend at least 80% of the seminars.
From time to time seminar questions may be supplemented by further instructions in the
lecture, in particular by past exam questions.
Workshops
Workshops are scheduled on a weekly basis during the course of the year. These sessions will provide an opportunity for any questions arising from the course to be raised and a forum for discussing contentious aspects of the law. The emphasis of the workshops, however, will be on developing necessary legal skills such as critical thinking, problem solving, employment skills, how to read judgments and assistance in writing. They will also provide opportunities for formative assessment.
Learning Materials
An online reading list for the module will be accessible through the My Learning area of
UniHub. This reading list will highlight essential and recommended reading for each topic
covered. Presentations from lectures, handouts from seminars and workshops will also be
available on UniHub in addition to other learning resources, including audio-visual materials.
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5. Learning resources
Your Reading list is available at : https://rl.talis.com/3/mdx/lists/808B4787-5F60-81BA-
0392-25449557EA53.html
Core Textbooks
• C. Elliott and F. Quinn: English Legal System Pearson, 19th edn (Pearson, 2018)
• G. Slapper and D. Kelly: The English Legal System 18th edn (Routledge, 2017/18)
• M. Partington: An introduction to the English legal system, 13th edn (OUP,
2018/19)
• A good legal dictionary is also necessary to have with you at all times: Black’s Law
Dictionary is recommended
Web-Based Module Materials Core supplementary reading to support your learning for English Legal Systems (including a copy of this module handbook) is available on UniHub. This includes weekly seminar reading which are necessary to complete the seminar questions and ensure participation. Check the UniHub site on a daily basis (minimum weekly basis) for the relevant reading in each unit. Other recommended reading and resources Use the library catalogue and the journal databases to search for academic articles on Westlaw or LexisNexis. The librarians, particularly, Alan Wheeler will be able to show you how to conduct effective legal research. Such research and reading is imperative to gain a first- class. Websites For cases, go to BAILII: www.bailii.org Ministry of Justice and the former Department of Constitutional Affairs: www.justice.gov.uk Courts: https://www.judiciary.gov.uk/you-and-the-judiciary/going-to-court/family-law- courts/ Ombudsman: www.ombudsman.org.uk House of Commons/House of Lords: www.parliament.uk Law reports (summaries): http://www.iclr.co.uk/ The Supreme Court: www.supremecourt.uk The European Court of Human Rights: www.echr.coe.int/echr The Constitution Unit: www.ucl.ac.uk/constitution-unit/ UK Criminal Law Blog: http://ukcriminallawblog.com/ Criminal Law and Justice Weekly: https://www.criminallawandjustice.co.uk/Type/Blog Head of Legal, a general law blog: http://www.headoflegal.com/cases/ Obiter, a general law blog: http://obiterj.blogspot.co.uk/ UK Human Rights Blog: https://ukhumanrightsblog.com/ Pink Tape, family law blog: http://www.pinktape.co.uk/about/ The Guardian Family Law page: https://www.theguardian.com/law/family-law Family Law Week blog: http://www.familylawweek.co.uk/site.aspx?i=ho0
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Children’s Commissioner: http://www.childrenscommissioner.gov.uk/learn-more Resolution (6,500-strong association which represents solicitors, barristers and other professionals involved in family law): http://www.resolution.org.uk/ It is important to read widely (including broadsheet newspapers) to keep up to date with contemporary developments The Incorporated Council of Law Reporting: http://www.iclr.co.uk/ The Times: https://www.thetimes.co.uk/article/welcome-to-the-new-times-law-pages- r0xvlmwqvfn The Guardian: http://www.theguardian.com/law The Law Society Gazette: https://www.lawgazette.co.uk/ The Law Society Gazette, Law Reports: https://www.lawgazette.co.uk/law/law-reports The Telegraph: http://www.telegraph.co.uk/news/newstopics/lawreports/ New Law Journal: https://www.newlawjournal.co.uk/ Socialist Lawyer: http://www.haldane.org/socialist-lawyer/ Law Reports and Academic Journals Please note that the nature of the subject requires you to read other books and journals. Major journals include Public Law, Law Quarterly Review, Criminal Law Review, Modern Law Review and New Law Journal – do not limit yourself to these journals alone. To achieve the highest grades you must read law reports and academic journals – these resources are critical to developing a deeper understanding of the law. Recommended Databases You have access through the University’s Learning Resources to a wide range of databases, including Westlaw, the Lexis Library and Hein Online. You will find it useful to look up cases and articles on Westlaw and on the other databases to which you have access.
How to access - Log in to Myunihub (see below) - Scroll down to the ‘My Library’ box at the bottom and click on ‘Databases’ - Click on ‘Hendon Databases’ - Use the alphabetical key to find LexisNexis or Westlaw - Once you’ve clicked on the specific database, a new window will open up - Search within the database referring to key words, legislation, the name of a
author or article title - Use the boxes on the right hand side to apply more filters to narrow down the
search or the button on the top right to order the search results by date OR
- Instead of clicking onto ‘Databases’, if you know the particular journal you want to look at, click on ‘’E-Journals’’
- Search for the specific journal you want and when that window opens up, begin your research.
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Logging onto myunihub MyUnihub is the University's virtual learning environment; it contains online learning components and additional materials for your modules. MyUniHub is a web site and therefore can be accessed from anywhere. LOGGING ONTO MYUNIHUB 1. Start up a web browser - either Internet Explorer or Firefox 2. Navigate to UniHub 3. Select the tab entitled MyUniHub 4. Enter your Username and Password Your MyUniHub Username is your user ID, which is on your student card. It will consist of two letters followed by either three or four digits. NOTE: MyUniHub is case sensitive WEB BROWSER The browser that you use is important. MyUniHub requires a browser that has both Java and JavaScript enabled. This option needs to be set in your browser. For the best results use Firefox or Internet Explorer. PROBLEMS LOGGING ON? If you cannot gain access, please contact the Learning Resources Computing Helpdesk in person or via the telephone. If you cannot visit your campus helpdesk, please use the Learning Resources Web Based Helpdesk: http://webhelpdesk.mdx.ac.uk/ More advice on using MyUniHub is available on the intranet known as UniHub.
6. Expectations of studying this module
Attendance policy
Students are expected to attend both lectures and seminars/workshops. Attendance is
monitored in lectures and entered onto the system. However, we do also note attendance in
seminars as an indication of student engagement.
Lateness policy
Being punctual is your responsibility and for your benefit. Disruption due to lateness will not
be tolerated because it is unfair on other students. You can enter the room if you are late
but always sit in the nearest available seat and try to avoid asking students to move seats to
accommodate you – this will be very annoying.
Mobile phones
All mobile phones must be switched to silent whilst in class sessions unless directed by your
tutor to do otherwise. Calls and texts cannot be made or received whilst in class unless
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agreed with the tutor prior to the session starting. Mobile phones cause disruption to both
other students and teachers. If you are observed using your mobile phone you can be asked
to leave the session.
Professional behaviour
The programme of study you are undertaking is underpinned by developing professional
behaviour and attitude. You are expected to behave in a professional, supportive manner to
your peers and teachers. You must come to sessions prepared and ready to contribute where
appropriate. Please remember that your University ID should be carried with you always and
you must be able to identify yourself if asked to do so. Please conduct your email
communication with fellow students, tutors and all relevant staff in a formal and courteous
manner.
Academic misconduct
Students who attempt to gain unfair advantage over others through academic misconduct
(contravening examination room rules, plagiarism, collusion, etc.) will be penalised by
sanctions, according to the severity of the offence, which can include exclusion from the
University. Links to the relevant University regulations and additional support resources can
be found here:
Section F: Infringement of Assessment Regulations/Academic Misconduct:
http://www.mdx.ac.uk/__data/assets/pdf_file/0027/424179/Section-F.pdf
Referencing & Plagiarism: Suspected of plagiarism?:
http://libguides.mdx.ac.uk/c.php?g=322119&p=2155601
Referencing and avoiding plagiarism:
http://unihub.mdx.ac.uk/your-study/learning-enhancement-team/online-
resources/referencing-and-avoiding-plagiarism
The MDXSU Advice Service offers free and independent support face-to-face in
making an appeal, complaint or responding to any allegations of academic or non-
academic misconduct.
https://www.mdxsu.com/advice
The University Regulations (Section F) detail procedures in relation to Academic Misconduct. Academic Misconduct includes:
- Collusion - Plagiarism
Collusion In relation to collusion on coursework, please note that Turnitin on UniHub shows what percentage of students’ work is the same as that of other named students. The work presented for assessment must be the student’s own.
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Plagiarism What is plagiarism?
Plagiarism is the presentation of someone else's work as if it were your own. This includes the work, whether in printed form, from an internet site or otherwise of any other person, including another student. Put simply, plagiarism is stealing.
Examples of plagiarism may include:
· verbatim copying of another's work – without acknowledgement · the close paraphrasing of another's work - without acknowledgement · unacknowledged quotation of phrases from another's work · the deliberate and detailed presentation of another's ideas as one's own
All cases of suspected plagiarism are reported to the Registry, who will apply a penalty if a finding of academic dishonesty is made.
Plagiarism is easy to avoid. The standard method which is accepted in all academic institutions is to acknowledge your sources. This can be done in the following ways:
1. Separate all direct quotations from your own work by using quotation marks (and if using long quotations, separate by indenting the quoted section).
2. Quote the precise source of the quotation either in a footnote or in a note in brackets within the main text, including the page number on which it appears in the edition quoted.
3. List all sources used in preparing the coursework in a clear and detailed bibliography at the end of your work.
4. Even if you are not deliberately copying someone else’s work, it is still plagiarism if you are paraphrasing someone else’s argument. You should note the original source in the same way as for a direct quotation, except that here quotation marks should not be used. Instead, you need to make it clear that you are presenting someone else’s ideas by using phrases such as ‘According to Jones…’ or ‘Smith argues …’
5. If you reproduce material from books, journals, internet sources etc, you should always clearly indicate that it is a quotation, in addition to acknowledging the source.
Academic misconduct and plagiarism includes copying and pasting material from the web into your own work – it does not matter if you cited the source if you have copied in large chunks of information and not inserted them in quotation marks or integrated it into your own work!
If in doubt about how to acknowledge sources, consult your module leader or the programme leader. Information on the correct way of acknowledging work from other sources is also available from the learning resource centre.
If in doubt about how to acknowledge sources, consult your module leader or the programme leader.
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Information on the correct way of acknowledging work from other sources is also available from the Learning Enhancement Team (http://unihub.mdx.ac.uk/let) and the library (http://unihub.mdx.ac.uk/study/library/help/advice/index.aspx).
More information about plagiarism can also be obtained here: http://libguides.mdx.ac.uk/c.php?g=322119&p=2155037
Middlesex Law Department uses Oxford University Standard for the Citation of Legal Authorities (OSCOLA) citation style which you must conform to in your assessments – this is the method of citing your work. See the link below to the OSCOLA fourth edition guide and the quick guide below. https://www.law.ox.ac.uk/sites/files/oxlaw/oscola_4th_edn_hart_2012.pdf
There will be a workshop on academic misconduct and plagiarism – make sure you attend. Remember: if you can find it, so can we!
UNIVERSITY REGULATIONS
Where a student is suspected of academic dishonesty the University Guide and Regulations
section F on infringement of assessment regulations on Academic Misconduct will be followed.
An appeal is a request from a student that a decision of an Assessment Board or Campus
Progression Committee should be reviewed because it is believed that an injustice has
occurred. There is no right of appeal against academic judgment. Students wishing to appeal
against a decision of an assessment board should refer to the University Guide and
Regulations section G on Appeal regulations and procedures.
The Law School uses e-mail and intranet to communicate all important information to
students. It is recommended that students access their university e-mail at least once each
day. Failure to access your e-mail, or failure to check UniHub, could result in you missing
vital information which is essential for successful study at Middlesex University Law School.
Below is a quick guide to the referencing style you are expected to use throughout your legal
studies. It is called Oxford University Standard for the Citation of Legal Authorities known as
OSCOLA. DO NOT rely on the quick guide below only – use the detailed and complete guide
https://www.law.ox.ac.uk/sites/files/oxlaw/oscola_4th_edn_hart_2012.pdf
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Extenuating circumstances:
There may be difficult circumstances in your life that affect your ability to meet an
assessment deadline or affect your performance in an assessment. These are known as
extenuating circumstances or ‘ECs’. Extenuating circumstances are exceptional, seriously
adverse and outside of your control.
As a student it is your responsibility to let the University know about any extenuating
circumstances that have affected your work. Where appropriate, these circumstances can
be taken into account by the Assessment Board when making its decision, or you can
request a short extension, or a deferral of assessment to the next assessment period.
Extenuating Circumstances can only be requested for summative assessment, not for
formative assessment i.e. only for assessment that counts towards your overall module
grade.
If you make a claim for extenuating circumstances you must submit a completed
extenuating circumstances form (located within the forms and letters section of MyUniHub
at the following link) with supporting evidence.
Claims for Extenuating Circumstances must be made by the submission deadline for the
assessed component.
Please see link for further information and guidelines:
https://unihub.mdx.ac.uk/your-study/assessment-and-regulations/extenuating-
circumstances
7. Assessment
The assessment is 100% coursework and consists of three separate components. The first is a 1,000 word essay worth 45% of your total mark. The second assessment is a 1,000 word essay worth a further 45% of your total mark. The third assessment is a study and research skills audit that is worth 10% of your total mark. All three assessments must be completed. All assessments must be submitted online through Turnitin only. The module leader and/or your tutor have no authority to grant deferrals. ALL COURSEWORK MUST BE SUBMITTED BY 12 NOON GMT. The coursework must be a maximum of 1,000 words and typed on white, A4 paper, in 12 point font and submitted in a Word document. A bibliography should be included at the end of the coursework. Cases must be cited correctly, but the full citation may be contained in footnotes. Please note that work which is not properly referenced will not achieve a good grade. Word count must be recorded. You must fully attribute any judicial quotations or
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passages taken from articles or textbooks. Failure to do so may result in your work being referred to the Academic Registry for plagiarism. Submission of coursework Coursework must be submitted by 12 noon GMT on the due date electronically on Turnitin via the module site on MyUnihub, where it will be checked for possible plagiarism, collusion and word counts using the appropriate software. Failure to submit on Turnitin will result in the award of 0%. The work must be submitted without the title and without setting out the question in order for the word count to be checked. Please remember to state your word count excluding the title, question, footnotes and bibliography. The bibliography is to be submitted with your answer. Please do not submit hard copies in this module – submit only on Turnitin. The deadline is fixed and missing the deadline will result in the award of 0%. Extensions cannot be granted. Where you can demonstrate a good reason to defer, you may apply for a deferral. If you are granted a deferral, you must take the new assessment at the next opportunity. You must take care to upload your final answer by the deadline as once the deadline is passed you will not be able to submit another version. The responsibility for timely submission is yours, and except for proven failures of University systems, reasons for late submission relating to your computer malfunction will not be accepted. If you are having problems uploading your final assessments and it coming up to the final deadline, email the assessment to your tutor or the module leader before the 12 noon GMT deadline. You must retain a copy of your work. Students may submit their coursework to the electronic system, Turnitin, as many times as they like prior to the deadline. Each time they will receive an Originality Report giving them the opportunity to address plagiarism/poor referencing, etc. issues up until the deadline date. Students will be required to submit a final copy by the deadline date. Please note that the marks given for coursework during the academic year will be provisional only and will be confirmed on publication of the final results at the end of the academic year. Word Limits
a) All coursework must state the word count.
b) The word count excludes the bibliography and footnotes. Footnotes must contain citations only and not text. Any text contained in the footnotes will not be marked.
c) All work which exceeds the word limit fails to state the word count or states the word
count incorrectly will be subject to penalties.
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21 ENGLISH LEGAL SYSTEM HANDBOOK 2018-2019
d) Coursework which fails to state the word count or states the word count incorrectly will be penalised by the deduction of 2%.
e) Coursework which exceeds the word limit will be penalised by the deduction of 1% for
every 2% that the word limit is exceeded. Please note: If you do not reference your coursework properly, you cannot gain a First or a 2.1. If you have any concerns, please consult your tutor or GTA.
Formative assessment: Formative assessment is completed during your year of study and
provides the opportunity to evaluate your progress with your learning. Classroom assessment
is one of the most common formative assessment techniques although other activities and
tasks may be used. Formative assessments help show you and us that you are learning and
understanding the material covered in this course and allow us to monitor your progress
towards achieving the learning outcomes for module. Although formative assessments do not
directly contribute to the overall module mark they do provide an important opportunity to
receive feedback on your learning.
Formative assessment
Deadline Feedback
Coursework 1 12 noon GMT, 19th December 2018
10th January 2019
Coursework 2 12 noon GMT, 14th February 2019
7th March 2019
Coursework 3 12 noon GMT, 14th February 2019
7th March 2019
Summative assessment: Summative assessment is used to check the level of learning at the
end of the course. It is summative because it is based on accumulated learning during the
course. The point is to ensure that students have met the learning outcomes for the course
and are at the appropriate level. It is the summative assessment that determines the grade
that you are awarded for the module.
There are three assessment components in this module, all coursework
The table below specifies the associated deadlines:
Summative assessment
Weighting Deadline Feedback
Coursework 1 45% 12 noon GMT, 14th January 2019
4th February 2019
Coursework 2 45% 12 noon GMT, 28th March 2019
18th April 2019
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Coursework 3 10% 12 noon GMT, 28th March 2019
18th April 2019
In order to pass this module, you need to pass all assessment tasks with a minimum mark
of 40.
Before you submit your work for final grading, please ensure that you have accurately
referenced the work. It is your responsibility to check the spelling and grammar. If you have
submitted a formative or draft assessment, you will receive feedback but no grade. The
comments should inform you about how well you have done or tell you about the areas for
improvement. All assignments should be submitted online unless specified in assessment
briefs.
We now look at each component of assessment for this module in detail. Each of the following
tables provides an overview of the requirements for each component. The support provided
for each component along with the feedback arrangements, is also detailed below.
Assessment Marking Rubic
LAW1102 is assessed in accordance with the Assessment Criteria in the University Regulations: http://www.mdx.ac.uk/Assets/Grade%20Criteria%20Guide.pdf. This rubic is used when marking all of the assessments in LAW1102.
First Class Upper Second Lower Second Third Fail
MU Grade Level 1-4 5-8 9-12 13-16 17-20
Description Understanding and coverage of a number of aspects of the topic, showing relation and integration of the aspects into a coherent whole, and drawing on aspects of relevant knowledge outside of the topic in question.
Understanding and coverage of a number of aspects of the topic, showing relation or integration of the aspects.
Understanding and coverage of a number of aspects of the topic but there is little relation or integration between aspects.
Knowledge of some basic ideas and facts, an acceptable number of elements of the topic are understood.
Irrelevant or incorrect learning; fundamental misunderstandings.
Student is able to use what they have learned in order to construct their own understanding, to reflect on their own practice, and evaluate their decisions made in terms of theory.
Student can apply what they have learned to novel situations and can recognise good or poor applications of principle student understands, in that course content is used as a theory that drives action.
Student understands declaratively, in that they can discuss content meaningfully, they know about a
reasonable amount of
content, but don’t transfer
or apply it easily.
Student can identify and describe the main concept.
Student has not been able to construct sufficient meaningful learning.
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Characteristics High level of abstract
thinking original ideas
understanding is
generalised and applied to
new contexts ideas drawn
to conclusions highly
reflective sharply
perceived generalised
from personal experience
shows metacognitive
understanding goes
beyond what has been given the whole is conceptualised at a higher level of abstraction than in purely relational terms.
Ideas coherent
student demonstrates
selectivity and judgement
uses the appropriate
language of the discipline
explanation or
application rather than a list – trees become the wood aspects are seen as making sense in relation to the whole a qualitative change in learning has occurred.
Several, or many,
elements of the topic are
understood, but are not
drawn into a coherent
whole often forming a list
(knowledge telling =
snowing with many facts) student sees the trees but not the wood – a necessary but insufficient preliminary to full understanding.
The work meets
one part of the task,
but misses other
important attributes
little evidence of
moving from the
specific to the general often focuses on terminology sparse understandings, or some higher level understanding offset by some misunderstandings.
Responses may
simply miss the
point or may use
tautology to cover
lack of
understanding
(sometimes can
use elaborate tautology).
Verbs to describe
performance.
The student
can...
Generate, theorise, generalise, hypothesise, reflect, evidence of significant personal engagement with the topic and effort to go beyond the given.
Integrate, compare, contrast, explain causes and effects, analyse relate, apply evidence of involvement or engagement with ideas, genuine effort to make sense of the subject.
Classify, enumerate, describe, list, combine, carry out algorithms, evidence of effort and involvement in acquisition of taught content.
Identify correctly, carry out simple procedure, pick out main concept, evidence of some effort in the acquisition of terminology.
Student misses the point; significant lack of effort/involvement in the unit.
For Reference: SOLO levels to which descriptors relate
EXTENDED ABSTACT The relevant elements are integrated into a structure, and the whole is generalised to a related domain of knowledge.
RELATIONAL
The relevant elements are integrated into a structure, but without drawing significantly on relevant knowledge beyond the subject.
MULTI- STRUCTURAL
Several relevant elements are present but are largely independent of each other.
UNI- STRUCTURAL
One correct and relevant element is present.
PRE-STRUCTURAL
No correct elements are present.
7.1.1 Assessment 1: Coursework 1
The following table provides an overview of the assessment requirements.
Assessment Brief Presentation
Module code LAW 1102
Module title ENGLISH LEGAL SYSTEM
Submission date, time
14th January 2019, 12 noon GMT via Turnitin
Feedback type & date
Feedback available on myunihub and then face-to-face with your seminar tutors during their office hours.
Word count 1000 Assignment type
Written Coursework
Assignment structure, format and details
The assessment must be formatted in a neat, clear and professional way. This may include headings, it must include consist font style and size and it should also include evenly spaced paragraphs. You may use headings to help structure your writing. Your word count must always be included otherwise marks will be deducted. You must cite your authorities and use the OSCOLA referencing style to do this. You must include
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footnotes and a bibliography. The footnotes count towards your word count but the bibliography does not.
Assessed learning outcome (s)
Learning outcomes 1, 2, 3, 5 and 6 will be assessed in this coursework.
1.Demonstrate a knowledge and understanding of the English legal system. 2.Demonstrate an understanding of key issues facing the legal profession, the provision of legal services and the development of alternative dispute resolution. 3.The ability to collect information from electronic websites including Westlaw and Lexis. 5.The ability to solve problems through factual and legal analysis. 6.The ability to communicate effectively in writing.
Assessment weighting %
45%.
Key reading and learning resources
The assessment will be asking you to demonstrate understanding and knowledge of a particular area that we have covered in the lectures and seminars, so the recommended reading related to that topic, as set out in this handbook, should be used. Further research can be done on WestLaw and Lexis Nexis. DO NOT USE AND CITE WEBSITES LIKE LAW TEACHER!
7.1.2 Assessment 2: Coursework 2
The following table provides an overview of the assessment requirements.
Assignment brief essay, and or report, and or literature review and or equivalent
Module code LAW1102
Module title ENGLISH LEGAL SYSTEM
Submission date, time
28th March 2019, 12 noon GMT via Turnitin
Feedback type & date
Feedback available on myunihub and then face-to-face with your seminar tutors during their office hours.
Word count 1000 Assignment type
Written Coursework
Assignment structure and format
The assessment must be formatted in a neat, clear and professional way. This may include headings, it must include consist font style and size and it should also include evenly spaced paragraphs. You may use headings to help structure your writing. Your word count must always be included otherwise marks will be deducted. You must cite your authorities and use the OSCOLA referencing style to do this. You must include footnotes and a bibliography. The footnotes count towards your word count but the bibliography does not.
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Assessed learning outcome (s)
Learning outcomes 1, 2, 3, 5 and 6 will be assessed in this coursework.
1.Demonstrate a knowledge and understanding of the English legal system. 2.Demonstrate an understanding of key issues facing the legal profession, the provision of legal services and the development of alternative dispute resolution. 3.The ability to collect information from electronic websites including Westlaw and Lexis. 5.The ability to solve problems through factual and legal analysis. 6.The ability to communicate effectively in writing.
Module weighting %
45%
Key reading and learning resources
The assessment will be asking you to demonstrate understanding and knowledge of a particular area that we have covered in the lectures and seminars, so the recommended reading related to that topic, as set out in this handbook, should be used. Further research can be done on WestLaw and Lexis Nexis. DO NOT USE AND CITE WEBSITES LIKE LAW TEACHER!
7.1.3 Assessment 3: Coursework 3
The following table provides an overview of the assessment requirements.
Assignment brief reflective report, critcial commentary / reflection
Module code LAW1102
Module title ENGLISH LEGAL SYSTEM
Submission date, time
28th March 2019, 12 noon GMT via Turnitin
Feedback type & date
Feedback available on myunihub and then face-to-face with your seminar tutors during their office hours.
Word count 750 Assignment type
This assignment is in the form of a letter in response to an advertisement
(fictional) for the position of assistant to a judge
Assignment structure and format
The letter must be written in a neat and professional way. The letter is reflective and should not contain any references, however if it does then OSCOLA must be used. Please also include any additional details that are necessary.
Assessed learning outcome (s)
Learning outcomes 1, 2, 4 and 6 will be assessed in this coursework. 1.Demonstrate a knowledge and understanding of the English legal system. 2.Demonstrate an understanding of key issues facing the legal profession, the provision of legal services and the development of alternative dispute resolution. 4. The ability to organise and manage learning, including the ability to reflect on the quality of their learning. 6.The ability to communicate effectively in writing.
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26 ENGLISH LEGAL SYSTEM HANDBOOK 2018-2019
Module weighting %
10%
Key reading and learning resources
You should not need to reference anything as this is a letter but if you feel you need to, please follow the OSCOLA format. This letter is reflective of your own skills.
The following table details the support you will be receiving for this assignment and the
feedback opportunities you will have.
Support and draft feedback sessions for all assessments
Coursework briefing For assignments 2 and 3 a workshop will be devoted to each assessment.
Sample Assignments Sample assignments will be provided from previous students and available on myunihub. Sample assignments will be made available for assessments 2 and 3 at the beginning of term.
Draft feedback opportunities There is an opportunity to submit all formative courseworks. This will provide feedback on your work and give you the opportunity to improve on you work for the final deadline.
Additional support LET general workshops SLA’s/GAA’s – You can contact the ELS SLA’s for support. In addition to the SLA’s, the GAA’s are also available. Their details are located on page 6.
7.2 Feedback on your assignments
You will be provided with feedback on all coursework that is helpful and informative,
consistent with aiding the learning and development process. The nature of the feedback
shall be determined at programme level but may take a variety of forms including: written
comments; individual and group tutorial feedback; peer feedback; or other forms of
effective and efficient feedback.
Feedback will normally be provided within 15 WORKING DAYS of the published coursework
component submission date as stated in the programme handbook.
How will you receive feedback in this module? This module requires students to develop and enhance their ability to comprehend, criticise, evaluate, discuss and debate aspects of the English Legal System with additional emphasis on human rights and related issues like women and the criminal justice system.
Weekly verbal feedback
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27 ENGLISH LEGAL SYSTEM HANDBOOK 2018-2019
Students will receive verbal feedback each week on the seminar questions and materials that they prepare for the weekly seminars. The weekly seminars will involve a variety of learning activities including problem based learning, quizzes, legal debates and short oral presentations.
Summative feedback
Feedback on all summative assessments will be provided in writing indicating strengths, weaknesses and areas for improvement. Following the publication of the final results for the module, feedback sessions will be held in order to provide you with an opportunity to obtain individual oral feedback on your examination paper. Opportunities for individual oral feedback on the different components of assessment will also be scheduled in the course of the academic year.
How to view the feedback on Turnitin
Access your paper on Turnitin submission inbox after it has been marked. Open it up and click on GradeMark on the left-hand side. Then click on the image below on the bottom right-hand side. This should produce a text comment box. Hover over any coloured bubbles on the text to see additional comments. Any problems, meet with one of the SLA’s or GAA’s.
GENERAL POINTS TO NOTE
1. Module leader or module tutor will not look at draft coursework. Students should not send draft coursework to their module leader or module tutor. The reason for this is to achieve fairness between students.
2. The module leader or module tutor reserves the right to refuse to answer questions which relate too closely to the coursework question. The same reason applies that this is to achieve fairness between students.
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7.3 How is your assignment mark agreed?
The following diagram provides an overview of the marking process for your module
assessment. Details of the programme external examiner can be found in the programme
handbook.
7.4 Available support
Learner Development Unit The Learner Development Unit (LDU) is a team of specialists who work with students at the university on different aspects of academic study and developing these essential skills. We offer face to face help through:
o Academic Writing & Language o Maths, Statistics & Numeracy o Dyslexia & various SpLDs o Student Learning Assistants [SLAs] o The Learning Lounge
Academic Writing and Language (AWL) The AWL is a team of lecturers whose role is to support and guide students to excel in their academic communication. They run sessions on degree programmes to help students to write top quality assignments and they also offer free AWL Open Workshops, courses and one-to- one tutorials. They work with all students at Middlesex (Home, International and those on Distance Education programmes) at every stage of their degree. They help students to make the most of their studies and to succeed in developing their knowledge, skills and literacy’s, so that they can communicate effectively at university and beyond. The Co-ordinator for Academic Writing and Language for the School of Law is Alexandra Pitt. Alexandra can be contacted directly at [email protected].
1 • You submit your assignment
2
• The first marker grades the work and provides feedback; this could be completed anonymously depending on the assessment type.
3
• A moderator or second marker reviews a sample of the work to quality assure the grades and feedback, to ensure they are accurate. A final mark for the work is agreed between the first marker and the moderator or second marker.
4 • Your final grades are submitted to the subject assessment board.
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29 ENGLISH LEGAL SYSTEM HANDBOOK 2018-2019
They help you develop effective academic communication in 4 main ways:
1. Embedded sessions: run these in collaboration with lecturers and they are programmed into your modules.
2. Workshops: These are FREE classes. To book a place visit UniHelp in the Sheppard Library. Check out the schedule here: http://wgfp- prrw02.mdx.ac.uk:8001/Appointment/WebsiteStudentAppointment.aspx?xpIeJU oGTSRbKfz8Oh81sA
3. Online resources: Online tutorials, activities and factsheets are available at http://unihub.mdx.ac.uk/study/ldu/onlineresources/index.aspx
4. Tutorials: 30-minute one-to-one meetings with one of our lecturers. AWL tutorials are confidential and FREE! To book a tutorial, go to the weblink in point 2 aboveor visit UniHelp in the Sheppard Library.
A note on proofreading: AWL does NOT offer a proofreading service. This means AWL will not find and correct every ‘error’ in a piece of work. Instead, AWL will read your work, identify aspects for you to work on, and help you understand how to make your own improvements.
Dyslexia / Specific Learning Difficulty Support [SpLD] Dyslexia/SpLD Support provide an extensive range of services for students, including:
1:1 specialist tutorial support for students with Dyslexia and other Specific Learning Difficulties (SpLD) such as Dyspraxia, AD(H)D.
Initial Dyslexia/SpLD Screenings
Diagnostic Assessments
Guidance and support through the Disabled Students Allowance (DSA) application process.
Workshops and embedded support for students on topics such as: Dyslexia and other SpLDs, DSA procedures, Exam preparation, Employability/job application advice, etc.
For further information regarding Dyslexia/SpLD Support please visit UniHelp in the Sheppard Library. You can also email [email protected] or phone 020 8411 6073. Mathematics, Statistics and Numeracy Support AWL offer friendly, confidential and free support for all students in the form of on-to-one tutorials, group workshops or embedded sessions.
You can book a one-to-one tutorial here: http://tiny.cc/ldubookingor visit Unihelp in the Sheppard Library
You can also drop in to the Learning Lounge (Basement of the Sheppard Library) where you can find resources or have an informal chat with one of the Student Learning Assistants.
Or you can e-mailing numeracy co-ordinator at [email protected]
Student Learning Assistants [SLAs] SLAs are students who have been recommended by lecturers to work with you in small groups or one-to-one. They can share their experiences of academic success and adapting to university life, and help you succeed too. They also guide discussions, provide tips on effective study habits and time management, help you with brainstorming coursework ideas, and
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provide tips on exam and revision techniques when exams get close. You may see them helping out in tutorials, labs or seminars as well as in the Learning Lounge. Learning Lounge The Learning Lounge is located in the basement of the Sheppard Library, across from Costa Coffee. In the Lounge you will find resources such as handouts on academic writing, reading and exam practice, grammar books, or academic language and study skills software. We also offer drop-in sessions to help you prepare for exams, improve your presentation or use your time effectively. All our sessions are facilitated by SLAs - experienced students who work with and provide peer support to other students. They “have been there before”, so they know the typical academic issues students face in their studies, and they are eager to help! Student welfare support Pastoral support is also available to all students, confidentially. The Counselling & Mental Health team is made up of counsellors and psychological therapists. They offer:
One-to-one counselling/psychological therapy
Mental health support and casework
Same-day mini appointments
Group workshops, addressing such issues as starting university, stress management, overcoming procrastination and psychological blocks to study
Referral to other services where appropriate Go to: http://unihub.mdx.ac.uk/your-support-services/counselling-and-mental-health Are you a parent? If so childcare is available on campus. The nursery at Middlesex University provides early year’s education and full day-care for children aged six weeks to five years. Note, that there are associated fees. Go to: http://unihub.mdx.ac.uk/your-support- services/childcare Furthermore, students can ask tutors whether their children can sit in on classes if the only other alternative if for student parents to miss classes. This will be at the discretion of the tutor who can reasonably ask any disruptive children to leave the classroom so that other students can concentrate. The Student welfare advice team are available for any financial, legal or practical advice: http://wgfp- prrw02.mdx.ac.uk:8001/Appointment/WebsiteStudentAppointment.aspx?2JeUYZsJ5iss For more information on all the available support for students, go to: http://unihub.mdx.ac.uk/your-support-services/make-an-appointment
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8. Learning Planner
Date Week Lecture
Thursdays 2-
3:30pm
Workshop
Thursdays 3:30-
4:30pm
Seminar
Check your own
timetables
Assessments
4 Oct
2018
1 Introduction to
the English Legal
System
Extended
introduction
None
11 Oct
2018
2 Civil Process and
law reform
The morality of the
law
Does the law
always produce a
just and fair
outcome?
18 Oct
2018
3 Alternative
Dispute
Resolution
How to read
judgments
A critical overview
of the English civil
legal system
25 Oct
2018
4 The Judiciary Law skills The cost of
litigating and ADR
1 Oct
2018
5 Legal
Professionals
Research skills
ahead of the
assessment
Can you read
judgments?
8 Nov
2018
6 Reading week Reading week Reading week
15 Nov
2018
7 Human Rights in
the English Legal
System
Reading skills and
introduction to
answering
The morality of law
activity and judicial
bias
Coursework 1
Formative due
19th November
12 noon
22 Nov
2018
8 Access to justice
and paying for
legal
representation
Learning the law,
critically
Issues within the
legal profession
29 Nov
2018
9 The Family Courts
and Process
The power of
communication
Progress review
6 Dec
2018
10 The Jury Plagiarism and
citations: How to
avoid academic
misconduct
The ECtHR and
domestic law
13 Dec
2018
11 Guest Lecturer Peer review of
assessment 1
Paying for legal
services and access
to justice
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Festive Break
10 Jan
2019
12 Introduction to
the Criminal
Justice System
Feedback on
formative
assessments
State intervention
into the family: the
role of the law
Coursework 1
Summative due
14 January 12
noon
17 Jan
2019
13 Guest lecture Student led The Jury
24 Jan
2019
14 The Police (1) Student led
31 Jan
2019
15 Police use of
Lethal Force
Student led The Police (1)
7 Feb
2019
16 Police (2) Stephen
Lawrence
Student led Police Use of Lethal
Force
14 Feb
2019
17 Reading Week Reading Week Reading Week Coursework 2&3 Formative
due 14th
February 2019
12 noon due
21 Feb
2019
18 Miscarriages of
Justice in the
Criminal Courts
Student led Progress Review
28 Feb
2019
19 Reform of the
Double Jeopardy
Rule and the work
of the Criminal
Cases Review
Commission
Student led Miscarriages of
Justice in the
Criminal Courts
7 Mar
2019
20 Youth Crime and
Youth Justice
Student led Reform of the
Double Jeopardy
Rule/Work of the
Criminal Cases
Review
14 Mar
2019
21 Women and
Criminal Justice
Student led Youth Crime and
Youth Justice
21 Mar
2019
22 Guest Lecture Student led Women and
Criminal Justice
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28 Mar
2019
23 Drop in session
during the Lecture
slot
Student Led Class discussion on
guest lecture
Coursework
2&3 Summative
due 28th March
2019 12 noon
4 Apr
2019
24 Self-Directed
Learning
9. Necessary Skills
Research skills – the ability to effectively search for, locate and utilise information including judgments, law reports, legislation academic research and factual information. Narrowing down your search using key terms and learning how to search within search results on LexisNexis and Westlaw. The capacity to dismiss irrelevant search results and identify relevant search results.
Judgment reading – being able to digest the key information in a legal judgment, understanding how legal precedent works and beginning to distinguish between ratio decidendi (the principle of law in one case that forms precedent in future cases) and obiter dictum(any part of the judgment that does not form part of the ratio), understanding the judgment structure in order to quickly locate specific information (factual background, the applicable legal framework, the deciding reasoning, the dissenting judgment etc).
Note taking – First think about how you will take your notes, and then think about how you will organise them? Laptop, handwritten onto sheets of paper or lecture slides. If typing, learn to type faster, and if writing use shorthand (even just your own made-up version!). DO NOT SURF THE WEB DURING CLASS. This is a waste of your time, disrespectful to your teachers who spend hours preparing and distracting to your class-mates. Take down the main points – don’t try to write everything down. How will you know what the main points are? Anything that is repeated or emphasised. Most importantly, after each lecture, spend 5/10 minutes reviewing your notes, clarifying or identifying anything you did not understand to research to ask about and synthesize the contents of that lecture with the other lectures (i.e.: work out how they relate) so that you develop a deeper and broader knowledge. There are several different note taking styles (not just writing a verbatim of what your lecturer says!): Cornell method, Outline method & T-notes – see the links below or do your own research and decide which one you prefer. For more tips see: http://www.artofmanliness.com/2012/01/27/write-this-down- note-taking-strategies-for-academic-success/
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https://www.fastcompany.com/3046058/how-to-master-the-art-of-taking-better- notes http://www.educatorstechnology.com/2014/04/the-6-note-taking-skills-every- student.html
Reading–There is lot to read when studying law and there are NO SHORTCUTS. You HAVE to read to achieve good grades. But, this does not mean reading every word or understanding every paragraph. You will absorb information even when you do not think you understand it. Furthermore, there are ways to read faster whilst improving content retention.
Critical thinking and legal reasoning– critical thinking is the objective analysis and evaluation of an issue in order to form a judgement. Thinking may happen naturally but much of our thinking, left to it, is biased, distorted, partial, uninformed, or downright prejudiced. Critical thinking is a mode of thinking in which the thinker improves the quality of his or her thinking by analysing, assessing, and reconstructing it. It includes the capacity to read and listen critically, questioning and analysing what they hear, read, see and think. Critical thought needs to be cultivated systematically and as such is mainly self-directed, self-disciplined, self-monitored, and self-corrective. The skills associated include: inference, analysis, explanation, open-mindedness, awareness of own biases, self-regulation and evaluation. Basically, critical thinking is thinking about your thinking while you’re thinking in order to make your thinking better! Get it?!
To help you understand it more there will be workshops on critical thinking which will help you improve as lawyers. Furthermore, the capacity to think critically should benefit you in every area of your life as it improves decision making. There is a distinction between subjective reactions and reasoning. Arguing something on the basis of evidence and good reasons is a specific and necessary skill that all lawyers require. Critical thinking requires you to examine your own reasoning.
To prompt your critical thinking skills – which take practice – when reading textbooks, articles or watching or listening to the news or your tutors, and especially your own thoughts, ask yourself these types of questions:
o What is the purpose for the book/article/news report/lecture? o What is the author/speaker trying to accomplish? o What issues or problems are raised? o What data, what experiences, what evidence are given? o What concepts are used to organize this data, these experiences? o How is the author/speaker thinking about the world? o Is her thinking justified as far as we can see from our perspective? o And how does she justify it from her perspective? o How can we enter her perspective to appreciate what she has to say?
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Or more general questions like:
o What do we already know about...? o What are the principles of …? o How does ... tie in with what we learned before? o What will happen if …? o What does ... mean? o What would happen if…? o What is a new example of…? o How could … be used to...? o What is the counterargument for...? o Why is ... important? o What is the difference between… and…? o What are the implications of...? o Explain why / Explain how? o What is ... analogous to? o How are ... and ... similar? o How does ... affect...? o Why is ... happening? o What is the best ... and why? o Do you agree or disagree with the statement...? What evidence is there to
support your answer? o What are the strengths and weakness of? o What is the nature of…? o What is the solution to the problem of...? o What do you think causes...? Why? o What is another way to look at...?
For more inspiration and information read Linda Elder in the Times Higher Education: https://www.timeshighereducation.com/features/reason-to-live/410393.article, https://www.timeshighereducation.com/features/achieving-critical-mass/414351.article and https://www.timeshighereducation.com/features/i-think-critically-therefore-i- am/407700.article.
Reason mapping –read this to understand the importance of relying on evidence to support your reasoning and how that differs from relying on biases or assumptions to justify your reasoning:
“A majority of people cannot, even when prompted, reliably exhibit basic skills of general reasoning and argumentation. For example, most people, when asked, have an opinion on a topic such as why some kids stay away from school. A typical opinion would be something such as, “Some kids stay away from school because their parents do not provide discipline.” When asked to justify their opinion, however—to provide some evidence to back it up—more than half of the population flounder. They have plenty of responses to the request for evidence, but what they say is not evidence (let alone good evidence). Such people are not incapable of reason. They can easily follow, or produce, elementary inferences such as, “You don’t have a ticket, therefore you can’t go in to the theatre.” The problem is that they do not have a general grasp of
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the notion of evidence and what would properly count as providing evidence in support of their view on a nontrivial issue such as truancy.”
Source: Gelder, T v. (2010). Teaching Critical Thinking: Some Lessons from Cognitive Science. College Teaching, 53, 1, 41-48.
But what is reason mapping? Put simply, it is being able to transfer your argument and the evidence supporting your argument into a simple visual diagram. This simple task has been shown to improve critical thinking as it encourages students to focus their attention on critical thinking rather than trying to understand the reasoning t text you are reading. Once the reasoning can be seen any assumptions or other flaws in the reasoning can be identified.
Take this as an example: “How much is your life worth to you? On the face of it, that’s an idiotic question. No amount of money could compensate you for the loss of your life, for the simple reason that the money would be no good to you if you were dead.”This can be translated into the following diagram:
Source: (Holt 2004) in Gelder (above).
Legal writing- legal writing does not mean excessive wordiness, the use of unnecessary complex or flowery words and it does not mean that the reader is left feeling a bit confused about what they have just read.
Number one tip: PROOF-READ your work before submission Number two tip: If your writing could be stronger, make an appointment to see the LET team, taking a draft essay with you. Number three tip: Spell-check your word. Consider Grammarly which has a basic free service and a fee-paying premium service. Number four tip: Structure your writing according to your argument and reasoning. Structuring your essay like an upside triangle is a good idea – so start with the broadest issue and make your way down, one argument at a time or point by point, and finish with the most specific point you have to make before finishing with the conclusion. Number five tip: Use plain-English! Do not use legalese/legal jargon. Keep your sentences short. Number six tip: Edit ruthlessly. If it’s not brilliant, get rid of it and replace it with writing or content that is of a better standard. Number seven tip: Make sure your arguments are clear and concise.
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For a list of common legal writing mistakes, see: http://www.lawsociety.org.uk/news/blog/7-legal-writing-mistakes-to- avoid/
Consider reading some of the books available on legal writing, such as Garner, B, A: Legal Writing in Plain English
Below is an extract from an article reflecting on a lecture given by Lord Neuberger about legal writing. The two different extracts of a judgment demonstrate the desirability of clear and concise legal writing:
“…To illustrate the importance of clear writing, he gave an example from a study by the American law professor Joe Kimble. As part of the study, The Straight Skinny on Better Judicial Opinions, Professor Kimble sent two versions of the same judgment to 700 lawyers. Version A was the original judgment, picked as an average sample, not an especially bad one (though Lord Neuberger described it as having ‘Proustian length sentences without Proust’s literary merit’). Version B had been rewritten in plainer language. Here’s the opening paragraph of version A: ‘Plaintiff Robert Wills filed a declaratory judgment against defendant State Farm Insurance Company to determine whether defendant has a duty to pay benefits under the uninsured motorist provisions found in plaintiff’s policy with defendant. Pursuant to the parties’ stipulated statement of facts, the trial court granted summary disposition in plaintiff’s favour upon finding coverage where gunshots fired from an unidentified automobile passing plaintiff’s vehicle caused plaintiff to drive off the road and suffer injuries. Defendant appeals as of right. We reverse and remand. And here’s the opening paragraph of version B: ‘Robert Wills was injured when someone drove by him and fired shots toward his car, causing him to swerve into a tree. He filed a declaratory-judgment action to determine whether State Farm had to pay him uninsured-motorist benefits. The issue is whether there was a ‘substantial physical nexus’ between the unidentified car and Will’s car. The trial court answered yes and granted a summary disposition for Wills. We disagree and reverse. We do not find a substantial physical nexus between the two cars, because the bullets were not projected by the unidentified car itself.’”
Source: Lord Neuberger’s advice on clearer legal writing, http://writing-skills.com/lord-neubergers- advice-on-clearer-legal-writing
10. 10 ELEMENTS OF AN EFFECTIVE, NON-ANNOYING EMAIL - use this template for
emailing potential employers, people offering you work experience or advice
Here’s a template you can follow in constructing your email to a professor. Each element is
explained further below.
Dear [1] Professor/Dr [2] Last-Name [3],
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This is a line that recognizes our common humanity [4].
I’m in your Class Name, Section Number that meets on This Day [5]. This is the question I have or the
help I need [6]. I’ve looked in the syllabus and at my notes from class and online and I asked someone
else from the class [7], and I think this is The Answer [8], but I’m still not sure. This is the action I would
like you to take [9].
Signing off with a Thank You is always a good idea [10],
Favourite Student
Element #1: Salutation
Right off the bat, here’s where you can establish that you view your relationship with your professor
as a professional one. Use “Dear,” or if that feels horrifically formal to you, you can use “Hello” or “Hi.”
(“Hi” is pushing it. See note about exceptions below.)
Element #2: Honorific
This is where a lot of students unwittingly poke right at their professor’s sensitive ego and sense of
justice in the world. You didn’t think this little word was a super big deal, but it actually is to them. An
honorific is a title used to communicate respect for a person’s position. Whether or not you, as a
student, actually respect your professor’s authority or position, it’s a good idea to act like you do. The
simplest way to do this is to address them as “Professor.” If they have a PhD, you can technically call
them “Dr.” but you’re safer with “Professor.” Not all instructors have PhDs (and many won’t even have
the word professor in their official job title), but if they are teaching a college class they are inhabiting
the role of Professor and can be addressed as such. The bonus of “Professor” and “Dr.” is that they
don’t require you to know anything about your professor’s gender identity or marital status. If you call
you’re Professor “Mrs.” or “Miss,” lord help you.
Element #3: Name
You might be surprised at how frequently students get their professor’s name wrong. This is not
difficult information to look up, people. It’s on your syllabus, it’s on the department website, and it’s
probably Google-able too. Use their last name. Spell out the whole thing. Spell it correctly. If there’s a
hyphen in it, use both names and the hyphen (this really falls under spelling out the whole thing and
spelling it correctly, but I get it, it’s a special case and it causes a lot of confusion for some reason even
though it is 2016).
Exceptions to #1–3 (do not attempt until you have levelled up to pro mailer status)
You may use a less formal salutation, and address your professor by something other than Professor
Last-Name in your email, if, and only if, you have received an email from them where they use an
informal salutation and sign it with something other than Professor Last-Name. For example, when I
was a college professor, I would often sign off on my emails “Prof. P-S” because I knew my last name
was long and confusing for people. I then rather liked it when people sent me emails addressed to
“Prof. P-S.” But don’t deviate from what they call themselves. NEVER try to use a first name unless
you have been given explicit permission to do so. If the Professor cryptically signs their emails with
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only initials, best to stick to Professor Last-Name. Do not under any circumstances begin an email with
“Hey” because some people get real huffy about that.
Element #4: Meaningless Nicety
It never hurts to say something like “I hope you’re enjoying the beautiful weather today,” or “I hope
you had a relaxing weekend,” to start off. It shows that you see your professor as a person who has
some kind of life. Professors like it when you see them as people who have lives outside of their
classroom (however remotely this may resemble the truth). It doesn’t really matter what you say here,
it’s more the ritual of polite interest that counts. If you can make it come off like you genuinely mean
it, bonus points for you.
Element #5: Reminder of how they know you
This one is key; especially if it’s the first time you are contacting your professor. You can’t count on
them to remember your name from their rosters or to be able to put your face with your name. If
there’s something distinctive about you that would jog their memory and make them look upon you
fondly, include that. For instance, “I stayed after class to ask you about the reading that one time,” or
“I sit in the front row and have blue hair,” whatever. If you haven’t met them yet, explain your desired
relationship to them, such as “I am interested in enrolling in your class next semester.” If you’re fairly
certain they will know you by name, you can leave this out. But some Professors are very bad at
remembering names, so you might as well throw them a bone here. (If you are lucky, those Professors
will be self-aware and empathetic enough not to make you memorize any names for exams in their
classes.) ALWAYS INCLUDE YOUR STUDENT NUMBER (you can put this at the end of the email, see
Element #10 below)!
Element #6: The real reason for your email
This is the whole reason you’re sending the email, so make it good. The important thing here is to get
in and get out, while remaining courteous. Concisely state what it is you need from the professor
without offering a bunch of excuses or going into excessive detail or sounding like you are making
demands. If you can’t explain why you’re emailing in a sentence or two, consider making an
appointment to meet with the professor in person, in which case your line here will be “I was hoping
we could meet to talk about X. What would be a good time for that?” If they can’t meet and just want
to discuss it over email, they’ll let you know.
Elements #7 and 8: This is where you prove you’re a wonderful person
There is a t-shirt for sale on the internet that says, “It’s in the syllabus.” Think for a second about why
there is a market for this product. A vast number of emails sent to professors by students are seeking
information that has already been communicated by the professor. Before even sending the email,
you should actually check the syllabus and your notes (and the class website if there is one) to see if
your question has indeed been answered there. It doesn’t hurt to ask someone else from the class
too — this is why you should try to get a least one classmate’s phone number or email address during
the first week. If you’ve actually done all these things and you still have a question, then your
contacting the professor will actually provide helpful information to them that they might not have
been clear about something.
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If you can try to answer your own question, and you turn out to be right, that saves them a little bit of
time in their response. For instance, if you are writing to set up a meeting, you could say, “It says on
the syllabus that your office hours are Tuesdays at 3pm. Could I come this Tuesday at 3:15?” This also
shows that you thought about the whole thing for more than two seconds before deciding to take up
their email-reading time.
Element #9: Super polite restatement of your request
If you’re asking a question you need an answer to, you can say something like “If you could let me
know at your earliest convenience, I’d really appreciate it.” If you need them to fill out a form, or
contact someone on your behalf, or do something that requires more action than just answering your
email, state that very clearly here. This helps them put it on their to-do list and get it done.
Element #10: Sign-off ALWAYS INCLUDE YOUR STUDENT NUMBER
If you’re not sure how to sign off an email, “Thank you” is nearly always appropriate. You can do “Best,”
or “All the best,” or “Sincerely,” or whatever, but some form of thanks here does double duty as both
sign-off and expression of gratitude. If you have not included your student number in the main body
of the email, insert it after your name.
The hidden Element #11: The follow-up
If your professor hasn’t responded to your email, and social cues tell you they probably meant to by
now, you can send a gentle follow-up. You can format the follow-up using all the elements here, but
you can add in “Just following up on my previous email,” right before you get to Element #6. You don’t
have to rub it in that they forgot to email you back, they will get the point (and if they genuinely forgot,
they might feel bad). If they were not emailing you back on purpose, you probably already annoyed
them the first time around, and you might as well be as polite as possible with the follow-up. When is
it safe to send a follow-up reminder? You have to gauge this based on how quickly they usually
respond to things and how dire your need for a response truly is. If it can wait a week, let it wait a
week (or until you see them in person).
Why any of this matters
Learning how to craft professional emails is a skill you can take with you into the so-called real world.
A courteous and thoughtfully constructed request is much more likely to receive the kind of response
you want. And, let’s face it; professors are humans with feelings who just want to be treated as such.
Source: Portwood-Stacer, L: How to Email Your Professor (without being annoying AF), Medium, 26 April 2016 https://medium.com/@lportwoodstacer/how-to-email-your-professor-without-being-annoying-af- cf64ae0e4087
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11. Sources of Law
Source: Slapper and Kelly, The English legal System online resources http://routledgetextbooks.com/textbooks/_author/slapper-9780415639989/lecturers.php
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LECTURE 1: INTRODUCTION TO THE ENGLISH LEGAL SYSTEM
Objectives
During this lecture you will meet your lecturer and other support staff.
You will be given your handbook for Law 1102 and the structure of the course will be
discussed together with the assessment criteria. Refer to pages 17, 23 – 24 of the
handbook.
Understand the basic structure of the civil legal system
You will be required to think critically about the foundations of law.
You will understand the difference between the civil and criminal legal system and
understand basic information about how the civil legal system works.
Essential reading:
Chapter 2 ‘Law and Society: the purposes and functions of law’ and chapter 3 ‘LAW-Making:
authority and process’ in Partington, M (2018-19) Introduction to English Legal System, 13th
edn
Part 6 ‘Concepts of Law’ including chapters 27-29 in Elliott, C and Quinn, F (2018-19) English
Legal System, 19th edn
Chapter 1 ‘Law and Legal Study’ in Slapper, G and Kelly, D (2017) English Legal System, 18th
edn
Further reading:
R v. Dudley & Stephens 1884 http://iclr.co.uk/assets/media/vote/1865-1914/Dudley_qbd-14-
273.pdf
Dworkin, R. (1977) Taking Rights Seriously, London: Duckworth
Hart, H. L. A. (1963) Law, Liberty and Morality, Oxford: OUP
Mill, J. S. (1859) On Liberty, London: J. W. Parker
Pound, R. (1968) Social Control Through Law, Hamden: Archon Books
Rawls, J. (1971) A Theory of Justice, Oxford: OUP
Raz, J. (1979) The authority of law: Essays on law and Morality, Oxford: OUP
WEEK 1
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Foundations of law: law and morality
Think about how moral attitudes change over time. At one point it was thought unthinkable
to live as an unmarried couple, especially with a child. It was not only unthinkable but a huge
moral judgement would be applied to those couples that did live like this. Think also about
how moral attitudes are reflected in law. For example, homosexuality, until the introduction
of the Sexual Offences Act 1967, was illegal in the UK and continues to be illegal in 74
countries.1 Further, the state would coercively separate the children of single unmarried
women from their mothers and put them up for adoption, sometimes without the full consent
or knowledge of the mother. Which of these are moral issues?
Murder
Incest
o Incest between two related individuals who share love
Theft
o Theft from a dishonest and corrupt person or corporation
o Theft out of desperation
o Theft due to a mental health condition or mental impairment
Euthanasia
o Euthanasia to save the cost of caring for the elderly
o Euthanasia at the wish of someone terminally ill who wants to die with dignity
o What is euthanasia becomes a lucrative business model?
Sex outside of marriage
Bearing children outside of marriage
Abortions
o Abortion at 8 weeks
o Abortion at 20 weeks
o Abortion at 32 weeks
o Abortion because the child is unwanted
o Abortion after rape
o Abortion to protect the mother from physical or mental health implications
On this topic, see the recent Northern Ireland Human Rights
Commission Supreme Court case where the Court refused to make a
declaration of incompatibility in relation to the law in Northern Ireland
that criminalises abortions except in very limited circumstances:
https://www.supremecourt.uk/cases/docs/uksc-2017-0131-
judgment.pdf
Pornography
Rape within marriage
1 International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) http://ilga.org/what-we- do/maps-sexual-orientation-laws/
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o Can a husband have sex with his wife whenever he wants?
Sterilising people with mental health problems
Access to welfare for migrants
Adultery
Exploitation
o Wearing clothes made by children
o Wearing clothes made by exploited workers
o Employing a maid smuggled by human traffickers
Squatting
o Squatting to prevent homelessness
o Squatting to gain property rights over the owner
Which of those examples should the law have anything to say about?
What about these statements:
• An unjust law is no law at all.
• Justice delayed is no justice at all.
• An injustice anywhere threatens justice everywhere.
• Any law that uplifts human personality is just; any law that degrades human
personality is unjust.
What about the role of the law maker? John Griffith in The Politics of the Judiciary (1977)
argued that the judiciary cannot act neutrally and can never be fully objective.
Justice: Is the law always fair and just?
Justice is referred to as being one of the most basis aims of the law and an effective legal
system. But, are laws always just? Examples of injustice include the conviction of an innocent
person or institutionalised discrimination.
There are different approaches and views on the relationship between law and justice. When
reading think:
o What did Aristotle mean by distributive justice and corrective justice?
o Are these distinctions helpful in thinking about how justice works and who it
works for? Are these ideas still relevant today?
o About the idea of natural law – is it helpful to think that good law is in line with
God’s will (or what we know may be God’s will – does it matter which God?)
o Are there any circumstances in which law will not be just or fair if it operates
on a “greatest good for the greatest number” approach?
o What are the criticisms of the economic analysis of law?
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o What do you think of John Rawl’s veil of ignorance, which is that decisions
about society are made by people who are unaware of their own socio-
economic status, gender, race, ethnicity, religion, age etc so that only the ideas
that best benefit everyone is society are adopted?
o Are laws necessary to protect human beings from the violence and injustice
inflicted upon other human beings?
o Should the laws main priority be to distribute wealth or to protect rights to
property first and foremost? Or neither or both? Is it possible to do both?
o What about Marx’s view that a capitalist society can never be just because its
main purpose is to uphold the main interests of the ruling class at the expense
of everyone else?
o Can law be separated from justice? Should laws be obeyed even if they are
immoral? Can you think of any immoral laws that have been obeyed in the past
or present, in any part of the world?
Is the law just a set of rules?
The law can be described as a set of rules but if some rules are not laws (university rules or
the rules of football) is that an accurate description?
What is the law for?
Do all laws seek to protect the interests of fairness and justice or can it sometimes be used to
pursue the interests of Government’s and other powerful influences? A large part of the legal
system is ensuring business and trade runs smoothly. Therefore, law fuels and drives
capitalism. Some see capitalism as being destructive whilst others acknowledge the role the
law must play in maintaining economic good health.
Do laws maintain social cohesion? Do they keep the tendency for human beings to act
immorally and commit atrocious acts against one another in check? Is law effective in trying
to do that? War, murder and rape still happen but are looking at examples of when human
beings behave badly the right way to measure the value of law?
Why obey anyway?
Read page 706 under heading “Why are laws obeyed?” of Elliott and Quinn and think about
why you obey law and/or in what circumstances you have not obeyed the law or would not
obey the law.
Civil disobedience has been used as a successful tool by civil rights activists throughout history,
from opposing apartheid to the civil rights movement in the USA, to the women’s liberations
movement, the suffragettes and climate change activists. Whether disobeying the law can
ever be justified, no matter the circumstances, may depend on your view of the law.
Depending on the theoretical explanation for the law adopted, civil disobedience is moral and
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necessary (Marxism, natural law) or that obedience of the law is necessary to maintain social
cohesion and order (Durkheim and Weber).
Does fear play a factor in explaining why we, in the main, obey the law – or at least most laws?
And if so, is it just the possibility of being caught and punished that we are afraid of?
Characteristics of civil law
Individual v individual: How individuals act with one another in situations where an individual
could bring a court case against them
Regulates disputes between individuals, companies and/or public bodies. Civil law is the legal
mechanism through which individuals can assert claims against others and have those rights
adjudicated and enforced. The purpose of the civil law is to settle disputes between
individuals and provide remedies – not necessarily to punish as with criminal law. The role of
the state in civil law is to establish the general framework of legal rules (the laws) and to
provide the legal institutions (the courts and tribunals for example) to operate those rights
but the activation of the civil law is strictly a matter for the citizen who becomes a claimant
when they initiate action in County Court or High Court. Examples of civil law include private
family law, tort, contract and property.
The aim with civil law is generally to compensate for loss or harm caused, for example, a road
traffic accident may result of the permanent disfigurement of a passenger riding in the
innocent car – the driver responsible for the crash may be liable (or rather that persons insurer
– that’s why we need insurance!) to pay compensation to the injured party to compensate in
monetary form for the significant harm caused and losses associated.
Standard of proof? - Balance of probabilities. This standard of proof contrasts with the
criminal legal standard of proof which is beyond reasonable doubt. Do not get standard of
proof confused with burden of proof.
Examples of civil law: negligence, battery (as well as criminal), nuisance, assault, trespass and
defamation plus matrimonial law, contract law and other property.
Characteristics of criminal law
State v individual(s): The state brings the person before a criminal court to answer the charge
through institutions such as the Police service, the Crown Prosecution Service and the Courts
and Prison service.
Criminal law is distinct from civil law in that it allows the state to regulate behaviour and apply
punishments for breaking the criminal law. It is central to the relationship between law and
society as it seeks to regulate behaviour and apply sanctions against law breakers. However,
in the criminal law system there must always be a balance between the rights of victims and
the necessity to reduce crime whilst also preserving the rights of the accused and the rights
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of those found guilty. Human rights do not fly of the window for the guilty person, let alone
the accused. Criminal law is subject to same rate of change as other areas of the law, recall
for example the recent criminalisation of driving and texting or the criminalisation of intimate
image abuse (revenge porn). Why is it necessary to have sanctions? Do criminal punishments
deter people from breaking law enough? Is the criminal law administered fairly – think about
sentencing for lower level street crime like theft with ‘white-collar’ crime like multi-million
pound fraud or environmental damage by corporations.
Be aware of:
o The variety of sanctions available for individuals found guilty: Murder – between 30-
15 years, rape – between 15-5 years, aggravated burglary – between 1-15 years.
o How the criminal law can change for example by making smoking in public places
illegal or making sexual violence illegal.
o That the Crown Prosecution Service (CPS) prosecutes in criminal cases that have been
investigated by the police.
Differences between civil and criminal law
When civil and criminal law interlock, case study
It is critical to understand that there is often an interlocking between civil and criminal law.
For example, in a road traffic accident the driver who caused the crash could be guilty of
reckless or dangerous driving (a crime) as well as responsible for causing damage and harm
to one of the passengers (a civil liability). REMEMBER there are different standards of proof
so to criminally prosecute the driver the CPS must be able to prove that the defendant is guilty
beyond reasonable doubt – this requires EVIDENCE. But, in the civil process the standard of
proof is much lower so it only needs to be shown that, on the balance of probabilities, the
driver caused the harm to the passenger and is liable to pay compensation (or rather the
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insurance company does). So, the driver could be found criminally guilty and liable in the civil
proceedings or not guilty but still liable.
The interaction between civil and criminal processes is complex. This is well demonstrated
when considering family law (unit 8). The criminal justice system is adversarial (where two
advocates represent their parties' positions, defence and prosecution, before an impartial
person or group of people, usually a jury or judge, who attempt to determine the truth of the
case), the family system is more inquisitorial (the court is actively involved in investigating the
facts of the case, as opposed to an adversarial system where the role of the court is primarily
that of an impartial referee between the prosecution and the defence). Furthermore, whilst
the family justice system has the welfare of the child as its paramount consideration (see unit
8 for what this means), the criminal justice system has to accommodate concepts of public
policy and the need to guarantee a fair trial to a defendant as well as recognising welfare
issues. These two forms of proceedings can run concurrently or sometimes one will wait for
the outcome of the other, usually the criminal will proceed before the civil, if it is possible to
stay (pause) the proceedings.
There are also hybrid offences where the court awards a civil remedy but any further breaches
of the peace attach a criminal punishment such as harassment which has been used against
demonstrators even though it was designed to protect individuals from the likes of stalkers.
Due Process
The term due process refers to the ideal that a citizen’s fair treatment must be guaranteed
within the rules of the legal system. For example, a culpable individual must be given notice
of the charge made against them. Further, a hearing must before an impartial judge. These
somewhat simple mechanisms help maintain a fair system.
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Seminars are one week behind lectures. First seminar is in learning week 2.
SEMINAR 1: DOES THE LAW ALWAYS PRODUCE A JUST AND FAIR OUTCOME?
At the beginning of the seminar you will be asked to introduce yourself to your tutor and
colleagues.
ACTIVITY 1: LETTER FROM A BIRMINGHAM JAIL
Throughout the module you will be asked whether you think that the system provides a just
and fair outcome for those that use it. In order to have a ‘benchmark’ of what justice means
please read the abridged version of the ‘Letter from a Birmingham Jail’ written by Martin
Luther King, below, and come to your seminar having prepared answers to the following
questions and also to discuss what being just means to you. The full version of the letter is
on Myunihub. The letter by Martin Luther King is more like an article or an essay in its careful
tone and constructed arguments. The theme of the letter focuses on the idea of just society
based on the notions of rights, freedoms, liberties and equality for all.
In groups of three or four please discuss the following questions:
1. Outline the argument presented by Dr King in his letter of April 16th.
2. How does Dr King answer the question that he poses himself: “How can you advocate
breaking some laws and obeying others?
3. According to Dr King what is the difference between a just law and an unjust law? Do
you agree with him?
Martin Luther King Letter from Birmingham Jail (1963) [Abridged]
April 16, 1963
My Dear Fellow Clergymen,
While confined here in the Birmingham City Jail, I came across your recent statement calling
our present activities “unwise and untimely.” Seldom, if ever, do I pause to answer criticism
of my work and ideas … But since I feel that you are men of genuine good will and your
criticisms are sincerely set forth, I would like to answer your statement in what I hope will be
patient and reasonable terms.
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I think I should give the reason for my being in Birmingham, since you have been influenced
by the argument of “outsiders coming in.” I have the honor of serving as president of the
Southern Christian Leadership Conference, an organization operating in every Southern state
with headquarters in Atlanta, Georgia. We have some 85 affiliate organizations all across the
South … Several months ago our local affiliate here in Birmingham invited us to be on call to
engage in a nonviolent direct action program if such were deemed necessary. We readily
consented…
But more basically, I am in Birmingham because injustice is here. Just as the prophets of the
eighth century B.C. left their villages and carried their “thus saith the Lord” far beyond the
boundaries of their home towns, and just as the Apostle Paul left his village of Tarsus and
carried the gospel of Jesus Christ to the far corners of the Greco-Roman world, so am I.
compelled to carry the gospel of freedom beyond my own home town. Like Paul, I must
constantly respond to the Macedonian call for aid.
Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit
idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice
anywhere is a threat to justice everywhere. We are caught in an inescapable network of
mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all
indirectly. Never again can we afford to live with the narrow, provincial “outside agitator”
idea. Anyone who lives inside the United States can never be considered an outsider
anywhere within its bounds…
In any nonviolent campaign there are four basic steps: 1) collection of the facts to determine
whether injustices are alive; 2) negotiation; 3) self-purification; and 4) direct action. We have
gone through all of these steps in Birmingham … Birmingham is probably the most thoroughly
segregated city in the United States. Its ugly record of police brutality is known in every
section of the country. Its unjust treatment of Negroes in the courts is a notorious reality.
There have been more unsolved bombings of Negro homes and churches in Birmingham than
in any city in this nation. These are the hard, brutal, and unbelievable facts. On the basis of
these conditions Negro leaders sought to negotiate with the city fathers. But the political
leaders consistently refused to engage in good faith negotiation.
Then came the opportunity last September to talk with some of the leaders of the economic
community. In these negotiating sessions certain promises were made by the merchants—
such as the promise to remove the humiliating racial signs from the stores. On the basis of
these promises Reverend Shuttlesworth and the leaders of the Alabama Christian Movement
for Human Rights agreed to call a moratorium on any type of demonstrations. As the weeks
and months unfolded we realized that we were the victims of a broken promise. The signs
remained. As in so many experiences in the past, we were confronted with blasted hopes,
and the dark shadow of a deep disappointment settled upon us. So we had no alternative
except that of preparing for direct action, whereby we would present our very bodies as a
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means of laying our case before the conscience of the local and national community. We were
not unmindful of the difficulties involved. So we decided to go through the process of self-
purification. We started having workshops on nonviolence and repeatedly asked ourselves
the questions “are you able to accept the blows without retaliating?” “Are you able to endure
the ordeals of jail?” …
You may well ask, “Why direct action? Why sit-ins, marches, etc.? Isn’t negotiation a better
path?” You are exactly right in your call for negotiation. Indeed, this is the purpose of direct
action. Nonviolent direct action seeks to create such a crisis and establish such creative
tension that a community that has constantly refused to negotiate is forced to confront the
issue. … Just as Socrates felt that it was necessary to create a tension in the mind so that
individuals could rise from the bondage of myths and half-truths to the unfettered realm of
creative analysis and objective appraisal, we must we see the need for nonviolent gadflies to
create the kind of tension in society that will help men rise from the dark depths of prejudice
and racism to the majestic heights of understanding and brotherhood. …
My friends, I must say to you that we have not made a single gain in civil rights without legal
and nonviolent pressure. History is the long and tragic story of the fact that privileged groups
seldom give up their privileges voluntarily. Individuals may see the moral light and give up
their unjust posture; but as Reinhold Niebuhr has reminded us, groups are more immoral than
individuals.
We know through painful experience that freedom is never voluntarily given by the oppressor;
it must be demanded by the oppressed. Frankly I have never yet engaged in a direct action
movement that was “well timed,” according to the timetable of those who have not suffered
unduly from the disease of segregation. For years now I have heard the word “Wait!” It rings
in the ear of every Negro with a piercing familiarity. This “wait” has almost always meant
“never.” It has been tranquilizing Thalidomide, relieving the emotional stress for a moment,
only to give birth to an ill formed infant of frustration. We must come to see with the
distinguished jurist of yesterday that “justice too long delayed is justice denied.” We have
waited for more than 340 years for our constitutional and God-given rights. The nations of
Asia and Africa are moving with jet like speed toward the goal of political independence, and
we still creep at horse and buggy pace toward the gaining of a cup of coffee at a lunch counter.
Perhaps it is easy for those who have never felt the stinging darts of segregation to say wait.
But when you have seen vicious mobs lynch your mothers and fathers at will and drown your
sisters and brothers at whim; when you have seen hate-filled policemen curse, kick, brutalize,
and even kill your black brothers and sisters with impunity; when you see the vast majority of
your 20 million Negro brothers smothering in an airtight cage of poverty in the midst of an
affluent society; when you suddenly find your tongue twisted and your speech stammering
as you seek to explain to your six-year-old daughter why she can’t go to the public amusement
park that has just been advertised on television, and see the tears welling up in her little eyes
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when she is told that Funtown is closed to colored children, and see the depressing clouds of
inferiority begin to form in her little mental sky, and see her begin to distort her little
personality by unconsciously developing a bitterness toward white people; when you have to
concoct an answer for a five-year-old son who is asking in agonizing pathos: “Daddy, why do
white people treat colored people so mean?” when you take a cross country drive and find it
necessary to sleep night after night in the uncomfortable corners of your automobile because
no motel will accept you; when you are humiliated day in and day out by nagging signs reading
“white” men and “colored” when your first name becomes “nigger” and your middle name
becomes “boy” (however old you are) and your last name becomes “John,” and when your
wife and mother are never given the respected title of “Mrs.” when you are harried by day
and haunted by night by the fact that you are a Negro, living constantly at tip-toe stance,
never quite knowing what to expect next, and plagued with inner fears and outer resentments;
when you are forever fighting a degenerating sense of “nobodiness”—then you will
understand why we find it difficult to wait. There comes a time when the cup of endurance
runs over, and men are no longer willing to be plunged into an abyss of injustice where they
experience the bleakness of corroding despair. I hope, sirs, you can understand our legitimate
and unavoidable impatience.
You express a great deal of anxiety over our willingness to break laws. This is certainly a
legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision
of 1954 outlawing segregation in the public schools, at first glance it may seem rather
paradoxical for us consciously to break laws. One may won ask: “How can you advocate
breaking some laws and obeying others?” The answer lies in the fact that there fire two types
of laws: just and unjust. I would be the Brat to advocate obeying just laws. One has not only
a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility
to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”
Now, what is the difference between the two? How does one determine whether a law is just
or unjust? A just law is a man-made code that squares with the moral law or the law of God.
An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St.
Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural
law. Any law that uplifts human personality is just. Any law that degrades human personality
is unjust. All segregation statutes are unjust because segregation distort the soul and damages
the personality. It gives the segregator a false sense of superiority and the segregated a false
sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin
Buber, substitutes an “I-it” relationship for an “I-thou” relationship and ends up relegating
persons to the status of things. Hence segregation is not only politically, economically and
sociologically unsound, it is morally wrong and awful…
I hope you are able to ace the distinction I am trying to point out. In no sense do I advocate
evading or defying the law, as would the rabid segregationist. That would lead to anarchy.
One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept
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the penalty. I submit that an individual who breaks a law that conscience tells him is unjust
and who willingly accepts the penalty of imprisonment in order to arouse the conscience of
the community over its injustice, is in reality expressing the highest respect for law.
Of course, there is nothing new about this kind of civil disobedience. It was evidenced
sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of
Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced
superbly by the early Christians, who were willing to face hungry lions and the excruciating
pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a
degree, academic freedom is a reality today because Socrates practiced civil disobedience. In
our own nation, the Boston Tea Party represented a massive act of civil disobedience.
We should never forget that everything Adolf Hitler did in Germany was “legal” and
everything the Hungarian freedom fighters did in Hungary was “illegal.” It was “illegal” to aid
and comfort a Jew in Hitler’s Germany. Even so, I am sure that, had I lived in German at the
time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist
country where certain principles dear to the Christian faith are suppressed, I would openly
advocate disobeying that country’s antireligious laws.
I must make two honest confessions to you, my Christian and Jewish brothers. First, I must
confess that over the last few years I have been gravely disappointed with the white moderate.
I have almost reached the regrettable conclusion that the Negro’s great stumbling block in
the stride toward freedom is not the White citizens’ “Councilor” or the Ku Klux Klanner, but
the white moderate who is more devoted to “order” than to justice; who prefers a negative
peace which is the absence of tension to a positive peace which is the presence of justice;
who constantly says “I agree with you in the goal you seek, but I can’t agree with your
methods of direst action” who paternistically feels that he can set the timetable for another
man’s freedom; who lives by the myth of time and who constantly advises the Negro to wait
until a “more convenient season.” Shallow understanding from people of good will is more
frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is
much more bewildering than outright rejection. …
You spoke of our activity in Birmingham as extreme. At first I was rather disappointed that
fellow clergymen would see my nonviolent efforts as those of an extremist. I started thinking
about the fact that I stand in the middle of two opposing forces in the Negro community. One
is a force of complacency made up of Negroes who, as a result of long years of oppression,
have been so completely drained of self-respect and a sense of “somebodiness” that they
have adjusted to segregation, and a few Negroes in the middle class who, because of a degree
of academic and economic security, and at points they profit from segregation, have
unconsciously become insensitive to the problems of the masses. The other force is one of
bitterness and hatred and comes perilously close to advocating violence. It is expressed in the
various black nationalist groups that are springing up over the nation, the largest and best
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known being Elijah Muhammad’s Muslim movement. This movement is nourished by the
contemporary frustration over the continued existence of racial discrimination. It is made up
of people who have lost faith in America, who have absolutely repudiated Christianity, and
who have concluded that the white man in an incurable “devil.” …
The Negro has many pent-up resentments and latent frustrations. He has to get them out. So
let him march sometime; let him have his prayer pilgrimages to the city hall; understand why
he must have sit-ins and freedom rides. If his repressed emotions do not come out in these
nonviolent ways, they will come out in ominous expressions of violence. This is not a threat;
it is a fact of history. So I have not said to my people, “Get rid of your discontent.” But I have
tried to say that this normal and healthy discontent can be channeled through the creative
outlet of nonviolent direct action. …
In spite of my shattered dreams of the past, I came to Birmingham with the hope that the
white religious leadership in the community would see the justice of our cause and, with deep
moral concern, serve as the channel through which our just grievances could get to the power
structure. I had hoped that each of you would understand. But again I have been disappointed.
I have heard numerous religious leaders of the South call upon their worshippers to comply
with a desegregation decision because it is the law, but I have longed to hear white ministers
declare: “Follow this decree because integration is morally right and the Negro is your
brother.” In the midst of blatant injustices inflicted upon the Negro, I have watched white
churchmen stand on the sideline and merely mouth pious irrelevancies and sanctimonious
trivialities. In the midst of a mighty struggle to rid our nation of racial and economic injustice,
I have heard so many ministers say, “Those are social issues with which the Gospel has no real
concern,” and I have watched so many churches commit themselves to a completely other-
worldly religion which made a strange distinction between body and soul, the sacred and the
secular. …
I hope this letter finds you strong in the faith. I also hope that circumstances will soon make
it possible for me to meet each of you, not as an integrationist or a civil rights leader, but as
a fellow clergyman and a Christian brother. Let us all hope that the dark clouds of racial
prejudice will soon pass away and the deep fog of misunderstanding will be lifted from our
fear-drenched communities and in some not too distant tomorrow the radiant stars of love
and brotherhood will shine over our great nation with all of their scintillating beauty.
Yours for the cause of Peace and Brotherhood,
M. L. King, Jr.
Source: TeachingAmericanHistory.org a project of the Ashbrook Center at Ashland University
http://teachingamericanhistory.org/library/document/letter-from-birmingham-city-jail/
ACTIVITY 2: MORAL DILEMMA
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Read these moral dilemma BEFORE the seminar or else you will be left behind and be
prepared to talk about what you think is the right thing to do. You must explain your reasoning.
There are no right or wrong answers – the emphasis is on thinking, reasoning and discussion.
To help you identify how you might be naturally reasoning, here are some things to ask
yourself:
Do the variables and stakes in the scenarios influence your decision? Are you consistent? Is
this challenging, if so why? Do you deal in absolutes or are there grey areas? How do you
resolve the tensions? What are the nuances? What are you thinking about to help you answer
this? Case law, your own experiences, your own moral compass (or bias!), philosophy,
Google?! Has this process changed your thinking?
1. The Overcrowded Lifeboat
In 1842, a ship struck an iceberg and more than 30 survivors were crowded into a lifeboat
intended to hold 7. As a storm threatened, it became obvious that the lifeboat would have to
be lightened if anyone were to survive. The captain reasoned that the right thing to do in this
situation was to force some individuals to go over the side and drown. Such an action, he
reasoned, was not unjust to those thrown overboard, for they would have drowned anyway.
If he did nothing, however, he would be responsible for the deaths of those whom he could
have saved. Some people opposed the captain’s decision. They claimed that if nothing were
done and everyone died as a result, no one would be responsible for these deaths. On the
other hand, if the captain attempted to save some, he could do so only by killing others and
their deaths would be his responsibility; this would be worse than doing nothing and letting
all die. The captain rejected this reasoning. Since the only possibility for rescue required great
efforts of rowing, the captain decided that the weakest would have to be sacrificed. In this
situation it would be absurd, he thought, to decide by drawing lots who should be thrown
overboard. As it turned out, after days of hard rowing, the survivors were rescued and the
captain was tried for his action. If you had been on the jury, how would you have decided?
2. A Father’s Agonizing Choice
You are an inmate in a concentration camp. A sadistic guard is about to hang your son who
tried to escape and wants you to pull the chair from underneath him. He says that if you don’t
he will not only kill your son but some other innocent inmate as well. You don’t have any
doubt that he means what he says. What should you do?
3. Sophie’s Choice
In the novel Sophie’s Choice, by William Styron (Vintage Books, 1976 — the 1982 movie
starred Meryl Streep & Kevin Kline), a Polish woman, Sophie Zawistowska, is arrested by the
Nazis and sent to the Auschwitz death camp. On arrival, she is “honored” for not being a Jew
by being allowed a choice: One of her children will be spared the gas chamber if she chooses
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which one. In an agony of indecision, as both children are being taken away, she suddenly
does choose. They can take her daughter, who is younger and smaller. Sophie hopes that her
older and stronger son will be better able to survive, but she loses track of him and never
does learn of his fate. Did she do the right thing? Years later, haunted by the guilt of having
chosen between her children, Sophie commits suicide. Should she have felt guilty?
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LECTURE 2: CIVIL PROCESS AND LAW REFORM
Objectives
Having successfully completed this unit you should be able to:
Understand the reforms that have taken place and their historical context
Appreciate the demands placed upon the civil process system
Understand the ongoing debate about reform
Critically evaluate how the civil legal system works
Essential reading: Chapter 7 ‘The Civil Process’ and paragraph 17.10 in chapter 17 ‘The Funding of Legal Services’
in Slapper and Kelly
Part 5 ‘The Civil Justice System’ and chapter 9 ‘Law Reform’ in Elliott and Quinn
Chapter 11 ‘The transformation of the English legal system: pressures and challenges’ in
Martin Partington
Additional reading:
Part 1 “Sources of Law” (chapters 1-8) in Elliott and Quinn
Chapter 8 ‘The Civil and Commercial justice systems’ in Martin Partington
The Law Society, ‘A Review of Civil Litigation Costs’, 2009
Chapter 1 ‘Crisis in Civil Justice’ English Civil Justice after the Woolf and Jackson Reforms A
Critical Analysisby John Sorabji, March 2016
Department for Constitutional Affairs, ‘The management of civil cases: the courts and post-
Woolf landscape’, November 2005
http://webarchive.nationalarchives.gov.uk/+/http:/www.dca.gov.uk/research/2005/9_2005
_full.pdf
Citizens Advice Bureau, ’No win, No fee, No chance’ report, 2004
Introduction
WEEK 2
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The civil justice system is designed to sort out disputes arising between two individuals,
usually in the circumstance of one individual (claimant) suing another (defendant) for money
they claimed is owed (debt recovery), for compensation for a harm caused (road traffic
accident, damage to business reputation etc). Civil law is not limited to these types of
scenarios, as you will learn. There is no state involvement in civil litigation other than the state
having to provide the systems and processes necessary for individuals to engage in such
proceedings, such as an effective legal system and a fair system of costs. The courts are seen
as institutions that promote dispute resolution but how effective can the all or nothing
adversarial approach of adjudication be? What happens in practice? Report after report
found that the civil process is nowhere near as efficient as it might possibly be. This might
have been because there was no systematic development of the civil legal system; it has
developed bit by bit over hundreds of years and often to serve specific issues that were more
prevalent such as property and land disputes or probate disputes. In recent years, a swath of
reform after reform of the civil legal system has ensued. We will examine some of these
reforms and consider the effectiveness of them whilst critically examining the civil legal
system as a whole.
England and Wales Court system
“Our courts system is complicated and – in places – confusing, because it has developed over 1,000 years rather than being designed from scratch.
Different types of case are dealt with in specific courts: for example, all criminal cases will start in the magistrates’ court, but the more serious criminal matters are committed (or sent) to the Crown Court. Appeals from the Crown Court will go to the High Court, and potentially to the Court of Appeal or even the Supreme Court.
Civil cases will sometimes be dealt with by magistrates, but may well go to a county court. Again, appeals will go to the High Court and then to the Court of Appeal – although to different divisions of those courts.
The tribunals system has its own structure for dealing with cases and appeals, but decisions from different chambers of the Upper Tribunal, and the Employment Appeals Tribunal, may also go to the Court of Appeal.
The courts structure covers England and Wales; the tribunals system covers England, Wales, and in some cases Northern Ireland and Scotland. The diagram below shows the routes taken by different cases as they go through the courts system.”
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Source: Court and Tribunals Judiciary website: https://www.judiciary.gov.uk/about-the-judiciary/the-justice- system/court-structure/
The Civil Process – Pre Woolf
The civil legal system was based on orality, the oral presentation and examination of evidence
in court. It was an adversarial system where judges intervened to deliver judgment. The
English civil system remains mostly adversarial but some legal processes are more inquisitorial,
such as family law proceedings. The dominance of orality and the adversarial principle
resulted in unchallenging pre-trial procedures in the civil courts. With the increasing amount
of public money being spent on the justice system after the introduction of legal aid in 1949
the delay and high cost attached to resolving disputes at law increasingly became a political
issue. Consequently reforms of pre-trial procedures were initiated from the early 1950’s with
a view to minimising the length of time before cases reached court and the length of trials
once they did.2
Report of the Winn Committee on Personal Injuries Litigation 19683
The Winn Committee described the English civil procedure as trial by ambush, where the
parties deliberately kept their adversaries ignorant of the strength and weaknesses of their
positions so as to derive profit in the courtroom from the element of surprise. Such a tradition
encouraged parties to keep the issues as wide as possible so as to avoid hinting at the
2 For example, the Civil Justice Review (1988, Cm 394) introduced exchange of witness statements and pre-trial reviews in an attempt to increase efficiency. 3 1968, cm 3691
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arguments upon which they intended to rely. The Winn report did open the door to reform
by recommending that medical evidence intended to be used in proceedings be subject to
pre-trial exchange between the parties and that evidence not so exchanged could not be
relied upon in the court proceedings.
Civil Justice Review 19864
The terms of reference were: “Improve the machinery of civil justice in England and Wales by
means of reform in jurisdiction, procedure and court administration and in particular to
reduce delay, costs and complexity.”It reported in 1988 and identified three main faults:
Costs - These were found to be disproportionate to the amount of the claim equal to
98% of the average damages awarded in the county court and to 26.5% of those in the
high court. This was considered to be a deterrent to court use.
Delay - Substantial delays in bringing an action and getting the case to court were
considered to have detrimental effects on evidence and witnesses. Compensation
often came too late. Delay was seen as legitimising legal inefficiency and was sapping
the public confidence in justice.
Complexity- too many cases were tried at too high a level – cases that involved
relatively simple points of law were tying up the time and resources of the high court.
Proposed Solution = The solution to these problems was seen as a question of improving the
management of the courts and balancing cost and efficiency. Many of its recommendations
were implemented in the Courts and Legal Services Act 1990 which introduced changes in the
allocation of cases to particular courts.
Further Reform
Changes introduced by the Civil Justice Review of 1988 and the ensuing Courts and Legal
Services Act 1990 reformed the legal profession. It also introduced Conditional Fee
Agreements (CFA) and Alternative Dispute Resolution (ADR). The above reforms had little
impact and in 1994 Lord Woolf was commissioned to undertake another wide ranging review
of civil process – at the time referred to as the biggest shake up since the Act of Settlement
in 1701! An interim report was delivered in 1995 and the final report published in July 1996.
The Woolf Reforms
Woolf’s recommendations can be summarised as:
Litigation will be avoided wherever possible;
Litigation will be less adversarial and more co-operative;
Litigation will be less complex;
4 1988, cm 394
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The timescale of litigation will be shorter and more certain;
The cost of litigation will be more affordable, more predictable and more in proportion
to the value and complexity of individual cases.
Case management was a critical feature. Three tracks were created. Each track determines
which court will deal with the claim and which track a claim goes into depends on the cost
value of the claim and the subject-matter – for example, a road-traffic accident claim where
the claimant has a received a minor injury would be categorised as a personal injury claim of
a value under £10,000 so it would probably be a fast-track. Consult the text books for more
about the small claims, fast track and multi-track options.
Woolf argued that any system of civil justice must respect certain principles in order to ensure
access to justice. These were:
Just outcomes
Equality of opportunity for all
Costs proportionate to the issues involved
Be understandable to those who use it
Be effective, adequately resourced and organised
Many of these principles were integrated into the Civil Procedure Rules.5 However, although
the principles seem to be very valid they did not actually improve the system. One important
criticism of the Woolf reforms is that by introducing proportionality via an explicit overriding
objective into the Civil Procedure Rules the court's historic commitment to achieving
substantive justice or justice on the merits was downgraded.6
Conditional Fee Agreements – NOT available for criminal and family cases
Introduced by the Courts and Legal Services Act 1990 and the Access to Justice Act 1999,
conditional fee arrangements (CFAs) refer to a ‘no win, no fee’ (or ‘no win, law fee’) contract
between a private client and a solicitor. The private client agreed to pay a success fee to the
solicitor if they win – but this would be paid for by the loser of the case. The success fee is
also known as uplift and the solicitor and barrister can determine the rate of that fee. It meant
that if a private client was successful in the litigation would usually have the costs for bringing
the litigation paid for by the losing party and on top of that, the losing party would also have
to pay the solicitor’s and barrister’s success fee which has been known to be an extra 95% or
even 100% of the total legal fees. The CFA was introduced as a way to enable less wealthy
individuals to pursue litigation but the success fee which is associated with the CFA has been
used in circumstances where the private client is actually incredibly wealthy and fully able to
pay the legal fees without a CFA. In these circumstances the losing party would have to pay
5 Part 1, the overriding objective is the most infamous Woolf reform, https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part01 6 John Sorabji English Civil Justice after the Woolf and Jackson Reforms A Critical Analysis, March 2016
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the legal fees plus the success fees. Read Elliott and Quinn’s coverage of MGN Ltd v UK (2011)
on page 340 plus the case summary on Westlaw or LexisNexis. The problem was that those
who lost the case would argue that the solicitors were charging unreasonably high success
fees – obviously this was a way to reduce the legal bull that they are liable for as a result of
losing! See House of Lords judgment in Callery v Gray [2002] UKHL 28
Note however that since 1 April 2013 successful client using a CFA has been obliged to pay
any success fee and After the Event insurance under sections 44 and 46 Legal Aid,
Sentencing and Punishment of Offenders Act 2012
The Civil Justice Council commissioned research in 2003 on how to calculate the
reasonableness of a success fee and in 2005, the CFA became subject to new regulations. As
such, this case was a reflection on the changing seas in regards to CFAs and ATE in civil
litigation. This did not solve the problem however as many argued that the Woolf reforms
increased, rather than reduce, costs by introducing CFAs which enabled lawyers to add costs
that at times exceeded the compensation received. 7 The courts also did not necessary
implement the efficiency saving ideas Woolf came up with such as applying a fixed cost for all
disputes worth up to £15,000 and instead costs were being argued out in detail at the end of
the litigation in court which wasted time and money. See:
Baigent v Random House Group [2007] EWCA Civ 247
Douglas v Hello! [2007] UKHL 21
Multiplex Constructions UK Ltd v Cleveland Bridge UK Ltd [2008] EWHC 2220 (TCC)
MGN v UK (39401/04) [2011]
Times Newspapers Ltd v Flood [2017] UKSC 33
The topic of CFAs will be looked at in more detail during unit 7.
The Jackson Review of Civil Litigation Costs: Final Report 20098
Following the Woolf reforms which sought to make litigation more cost effective but failed to
do by creating ways in which costs could be driven up, Lord Justice Jackson was asked to
conduct an independent review of civil litigation costs. The aim was to reduce the costs of
litigation to no more than what is proportionate.
Main findings
Emphasised the need for proportionality.
7 The Woolf Network Questionnaire, The Law Society, 2002 and http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/civil/reform/ffreform.htm&Citize ns Advice Bureau, ’No win, No fee, No chance’ report, 2004&Jon Robins, Heads you lose, tails you lose in ‘no win, no fee’, The Guardian, London, 23 May 2004 accessed www.theguardian.com/money/2004/may/23/scamsandfraud.observercashsection 8https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Reports/jackson-final-report-140110.pdf
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Success fees should cease to become recoverable by the winner from the loser in no
win no fee cases.
Should be qualified one way costs shifting – claimants will only make a small
contribution to defendant’s costs if a claim is unsuccessful. Removes the need for
after the event insurance.
ADR should be seriously promoted but not compulsory.
Cost management to be included in continuing professional development training for
lawyers and judges.
Jackson’s view was that the right to access to justice required costs to be proportionate to
the value of the case. Essentially, his view that not knowing what the costs would be and who
would play them until the end of the litigation was not effective or financially sensible. As
such some judicial control should be exercised at the case management stage of litigation.
One key recommendation was to reduce the use of CFAs by recommending that private
individuals have to pay their own lawyers’ success fees. The Government accepted his key
recommendations and relevant provisions were contained in the Legal Aid, Sentencing and
Punishment of Offenders Act 2012.
The principle that costs must be reasonable and only proportionate and reasonable costs can
be recovered from the losing party was established. This is to prevent parties, or their advisers,
from engaging in work that is disproportionate to the ‘value, complexity and importance’ of
the claim. However, what is disproportionate is unclear. What is clear however is that recent
case law has created serious discontent amongst the legal profession and has created a strict
and at times burdensome requirement to always be mindful of costs and to be able to justify
all costs to the Court?
Consider Mitchell v News Group Newspapers [2013] EWCA Civ 1537. The CPR stipulates that
parties must complete and file their costs budget seven days before the date of the hearing.
Following the Jackson reforms compliance with CPR was emphasised as being critically
important and failure to do so could attract costs penalties. In Mitchell, the claimant solicitors’
were late in submitting the costs budget and as a sanction; the High Court ruled that the
claimant could recover only his court fees as costs, and not the fees of his lawyers. This meant
that the claimant had to pay for the vast majority of his legal fees, which amounted to
£590,000 in total.
Civil Procedure Rules (CPR)
The CPRs are THE litigation rule book and not following the rules can lead to solicitors and
claimants being scrutinised and penalised by the court. Associated with the rules are Practice
Directions which are just as important. The CPR and Practice Directions provide rules as to the
processes and procedures that must be followed. For example, when a claimant puts defendant
on notice that an action is being brought against them and on what basis (pre-action protocols).
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They also give guidance for specific types of claims like debt recovery and intellectual property
claims.
Check out the Department of Justice website to get a feel for the CPRs because if you practiced
as a lawyer, you’d have to know them inside out!
https://www.justice.gov.uk/courts/procedure-rules/civil
https://www.justice.gov.uk/courts/procedure-rules/civil/rules
https://www.justice.gov.uk/courts/procedure-rules/civil/protocol
Current reforms
Criticisms of the civil legal system will be considered in the lecture. For now, be aware that
further reforms have been suggested:
Civil Courts Structure Review (2016) - The Briggs Review has recommended setting up
an online court for claims up to £25,000, which litigants could access without lawyers.
Reforming Civil Litigation (2013) - The Bar Council has suggested that pre-action
protocols should be abolished on the basis that it adds to the length and expense of
proceedings.
Moving to an inquisitorial system where there is less emphasis on legal tactics, one of
which is delay which increases costs – this is unlikely although many European legal
systems are inquisitorial.
Problems with the civil justice system: spotlight on Domestic Violence
The article below highlights several important points: 1. The inconsistencies between the
criminal and civil system, 2. The risk of anomalies arising, like violent ex-partners being able
to cross examine former partners in court, which not only undermine a legal system meant
to protect victims but can also operate to put those survivors of abuse at risk of further abuse,
and 3. How reform of the justice system happens by way of legislation and pressure from civil
society.
Violent abusers to be prevented from cross-examining ex-partners in court by Jamie
Doward in the Observer.
Domestic violence victims will no longer face the threat of being interrogated by their
former partners in court under proposed legislation.
The Ministry of Justice has also confirmed that it is considering measures to restrict
references to the sexual histories of rape complainants when they give evidence. The
moves follow a campaign by women’s rights and victim support groups, which say change
is long overdue on both fronts.
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Violent abusers are not allowed to cross-examine their former partners in criminal cases.
But they are still allowed to in family courts, where thousands of women each year can be
potentially subject to cross-examination by a violent ex-partner. Last month the justice
secretary, Liz Truss, ordered an emergency review into the practice, which she branded
“humiliating and appalling”.
Under the prisons and courts bill, due out later this month, family court judges will be
given new powers to stop abusers from being able to torment their victims in court.
Judges already have discretion to conduct a cross-examination themselves if a former
partner is not represented by a lawyer. But the change, which requires primary legislation,
will allow judges to go further and appoint a legal aid lawyer to prevent abusive men from
being able to question their former partners.
“This is a humiliating and appalling practice which must be banned as quickly as possible,”
Truss said. “It cannot be right that anyone who has found the courage to escape their
abusive or violent partner should be subjected to the stress and torment of being
confronted and interrogated by them in any court.”
Research by charity Women’s Aid suggests a quarter of women in family court
proceedings have been cross-examined by an abusive former partner.
Sir James Munby, president of the family division of the high court, has also called for a
change in the law. In December a spokesman for Munby said: “He has made clear his view
that the family justice system lags woefully behind the criminal justice system. He has
expressed particular concern about the fact that alleged perpetrators are able to cross-
examine their alleged victims, something that, as family judges have been pointing out for
many years, would not be permitted in a criminal court. Reform is required as a matter of
priority.”
Separately, under plans being rolled out this year, vulnerable victims and witnesses will
no longer have to appear in court. Instead their cross-examination will be recorded and
played during the trial – a move that the justice ministry says will spare victims and
witnesses the stress of reliving traumatic events in open court.
This follows three successful pilots which showed that victims felt less pressure giving
evidence pre-trial and that witnesses were better able to recall events. Almost three-
quarters of the cases in the pilot programmes, run in Liverpool, Leeds and Kingston-upon-
Thames crown courts, involved sexual offences.
The ministry has also confirmed that it is looking at amending the criteria under which a
rape complainant’s sexual history can be admitted as evidence. Although it believes that
the bar for the disclosure of a complainant’s sexual history is high, and at the discretion
of judges, it says it has listened to concerns raised and is now looking at how the law works
in practice.
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Last week Plaid Cymru’s justice and home affairs spokesperson, Liz Saville Roberts,
introduced a 10-minute rule bill in parliament which proposed a new law to prevent a
rape victim’s sexual history being disclosed. The Observer reported that in one study,
conducted in Northumbria, a third of rape cases saw the complainant’s sexual history
discussed in court.
Truss recently held a summit for victims’ groups to discuss strengthening support for rape
victims, to ensure they have the confidence needed to come forward with their complaint.
Last year, 35,798 complaints of rape were made to the police. But there were only 2,689
convictions, partly, campaign groups contend, because some complainants withdrew
their allegations, fearing humiliation in court.
Harry Fletcher, director of the campaign group Voice4Victims, said: “The impact of cross-
examining a person about their sexual history and the direct questioning of victims by
domestic abuse perpetrators is intended to undermine the credibility of the victim and
humiliate them. This is neither just nor fair and does not happen in other trials. It’s
welcome that the government is looking to change the law in these areas.”
Source: https://www.theguardian.com/law/2017/feb/12/domestic-violence-victims-get-help-in-
prisons-bill
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SEMINAR 2: A CRITICAL OVERVIEW OF THE ENGLISH CIVIL LEGAL SYSTEM
READ: Genn, H (2012) What Is Civil Justice For? Reform, ADR, and Access to Justice Yale Journal
of Law & the Humanities, 24, 1, 18
COME TO SEMINAR WITH YOUR ATTEMPTED ANSWERS TO THESE QUESTIONS:
1. What have been the major ‘crisis’ in the civil justice system? 2. What does Genn say was the motivation for the Government to review and change
the civil legal system? 3. What was Alternative Dispute Resolution (ADR) meant to do? 4. What is Genn’s criticism of Alternative Dispute Resolution (also referred to as
mediation which is a specific form of ADR)? 5. What is Genn’s criticism of the Woolf reforms and other reforms of the civil legal
system? 6. Based on your own assessment of the information shared with you during the lecture
and your own reading/research including Genn’s article, critically evaluate whether the Woolf reforms were effective.
a. What is your reasoning? What evidence are you relying on? That can be statistics, the views of experts, your own experiences etc).
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LECTURE 3: ALTERNATIVE DISPUTE RESOLUTION
Objectives
Having successfully completed this unit you should be able to:
Know what Alternative Dispute Resolution (ADR) is, what it aims to do and how
Understand why ADR was introduced into the civil legal system
Critically evaluate its usefulness and understand criticisms of the recent emphasis on
ADR
Essential reading: Chapter 25 ‘Alternative methods of dispute resolution’ in Elliott and Quinn
Chapter 15 ‘Arbitration, Tribunal Adjudication and Alternative Dispute Resolution’ in Slapper
and Kelly
Additional reading:
A continuing evaluation of the Civil Justice Reforms, August 2002
http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/civil/reform/ffreform.
htm
Sir Rupert Jackson, ‘Civil Justice Reform and Alternative Dispute Resolution lecture’ 20
September 2016 https://www.judiciary.gov.uk/wp-content/uploads/2013/03/lj-jackson-
cjreform-adr.pdf
The Ministry of Justice, ‘Twisting arms: court referred and court linked mediation under
judicial pressure’, May 2007 https://www.ucl.ac.uk/laws/judicial-
institute/files/Twisting_arms_mediation_report_Genn_et_al_1.pdf
What is ADR?
Alternative dispute resolution (ADR) refers to ways of resolving disputes between two parties
that does not involve going to court. This type of dispute resolution can include mediation,
where an independent third party helps the disputing parties arrive at a mutually acceptable
solution, conciliation which is similar to mediation but the independent third party is more
interventionist in his/her engagement with the disputing parties and in introducing solutions,
and arbitration, where an independent third party considers the facts and takes a decision
that is often binding on one or both of the parties. Arbitration is different from mediation in
WEEK 3
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that it is governed by the legal framework contained in the Arbitration Act 1996. Mediation is
not necessarily based on legal arguments to resolve the dispute, unlike arbitration, and it is a
voluntary process which is not binding until the parties have reached an agreement. It is not
based on a legal framework either. The main form of regulation of mediation is the Mediation
Directive 2008/52/EC, implemented by the Cross‐Border Mediation (EU Directive)
Regulations 2011/1133 and provisions in the Civil Procedure Rules encouraging mediation.
See Pre‐Action Protocols and CPR r. 14(2) (e). Mediation is more popular form of ADR and was
described by Lord Woolf as such:
“Mediation is offered by a number of private and voluntary organisations. Unlike other
forms of ADR it does not result in a determinative adjudication, but is perhaps best
described as a form of facilitated negotiation, where a neutral third party guides the
parties to their own solution. Mediation can be used in a wide range of disputes, and
in many cases produces an outcome which would not have been possible through the
strict application of the law.”9
ADR is encouraged by the Government and the Courts. It can be used in numerous types of
disputes including divorce, business and trading, telecoms and financial services. ADR is opted
as an alternative to going to court because it can be cheaper, less stressful, quicker and its
avoid the costs penalties that can be applied by the court if the matter does go to trial without
ADR having first been attempted. See chapter 25 in Elliott and Quinn for more details. The
objective of Alternative Dispute Resolution (ADR) is to find a solution that each party can
agree before having to go to court to battle it out in front of a judge. This objective is written
into the Civil Procedure Rules meaning the Courts must take an active role in encouraging the
use of ADR. Civil Procedure Rule 1.4 requires the court to undertake case management which
is stated to include:
(2)(e) Encouraging the parties to use an ADR procedure if the Court considers that
appropriate and facilitating the use of such procedure;
(2)(f) Helping the parties to settle the whole or part of the case.
In addition, Civil Procedure Rule 26.4 allows the court to grant a stay for settlement by ADR
or other means either when one or all the entire parties request this, or when the court
considers this would be appropriate. Crucially, if a party fails to use ADR where the court
thinks this would have been appropriate, then it can be penalised through a costs order (Civil
Procedure Rule 44.5).Therefore. ADR can almost be imposed on litigants even if they do not
want to settle the matter in this way. However, recent case law has tried to locate the limits
of such incentivisation of ADR. It has been established that Courts cannot force litigants to
engage in ADR as to do so would be a breach of an individual’s article 6 European Convention
9 Chapter 18, paragraph 11 of Lord Woolf’s Interim Report was entitled ‘Alternative Approaches to Dispensing Justice’ and contained a review of all the available forms of ADR.
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on Human Rights right to a fair trial. As such the court can encourage ADR but not order for it
(by way of a court order that the parties must comply with). See Halsey v Milton Keynes
General NHS Trust [2004] EWCA Civ 576. However, costs sanctions may still apply to parties
who unreasonably refuse to engage in ADR. See PGF II SA v OMFS Co 1 Ltd [2013] EWCA Civ
1288. In this case the court endorsed the value of ADR and Lord Justice Briggs stated “the time
has now come for this court firmly to endorse the advice given in Chapter 11.56 of
the ADR Handbook, that silence in the face of an invitation to participate in ADR is, as a
general rule, of itself unreasonable…”10 The ADR Handbook referred to by Lord Justice Briggs
was developed following the recommendation from Lord Justice Jackson, who led major
recent civil justice reforms (discussed in unit 2), that an ADR Handbook be prepared.
Note that if ADR leads to an agreed solution, the dispute is over and usually both parties have
to sign a document stating that despite has been resolved and how. Once it has been settled
the matter cannot easily be re-opened, unless one of the disputing parties has not complied
with the solution like making a compensatory payment. If agreement is not reached, then the
parties will likely turn to litigation. Of course, there are some circumstances in which it is not
appropriate for ADR to be sued such as when a serious crime has been committed or an
appeal involving a public authority. Furthermore, what if ADR has no prospect of success? In
such a scenario it would be reasonable for the successful party to have not agreed to engage
in ADR and as such no costs penalties should be made against that party. This can be a bit of
grey area. In Earl of Malmesbury v Strutt and Parker the High Court found that “a party who
agrees to mediation but then causes the mediation to fail by reason of his unreasonable
position in the mediation is in reality in the same position as a party who unreasonably refuses
to mediate.”11 In Halsey v Milton Keynes NHS Trust the Court of Appeal set out some of the
criteria to determine when it is reasonable for a party to refuse to engage in ADR:
‐The nature of the dispute and its suitability for mediation, e.g. whether there is a need for a precedent on a point of law;
‐The strength of a party’s case;
‐Whether ADR has been tried and proven to be unsuccessful previously;
‐Whether the cost of mediation is disproportionate to the claim at stake;
‐Whether the mediation will lead to an unacceptable delay to the trial, and finally,
‐Whether mediation has no reasonable prospect of success.
Legal Requirements
10 You can access the judgment here: http://cases.iclr.co.uk/nxt/gateway.dll/WLR%20Dailies/WLRD%202011/wlrd2013- 405?f=templates&fn=document-frame.htm&vid=PoC:Sum 11[2008] EWHC 424 (QB) L. Jack.
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Many industries are now required in law to provide information about ADR and engage in the
process if a complaint is made. For example, ADR is used in the construction industry as well
as by business traders, private landlords and of course the government (see above). Two sets
of regulations have implemented the European Directive on alternative dispute resolution
(ADR) in the UK: the Alternative Dispute Resolution for Consumer Disputes (Amendment)
Regulations 2015 and the Alternative Dispute Resolution for Consumer Disputes (Competent
Authorities and Information) Regulations 2015.
Online Dispute Resolution
As so many of our transactions and interactions occur online, so can we formally resolve
disputes online too? To explain what ODR is:
“Online Dispute Resolution (ODR) is a set of dispute resolution techniques which use
information and communications technology for automating and speeding up
information processing and for overcoming distances through the use of remote
communications. This will usually involve an online platform on which documents
(evidence and legal argument, expert opinions, etc) are uploaded, stored, organised
and made accessible to the relevant parties and the neutral third party. It may also
involve distance communication through web‐conferencing facilities which mean that
the parties and neutral third party do not need to meet in person. In addition ODR
may use sophisticated knowledge management tools for legal information about the
specific case or expert and legal opinion.”
Source: Julia Hörnle and Pablo Cortes, ‘Legal Issues in Online Dispute Resolution’, June 2014
The European Regulation on Online Dispute Resolution No 524/2013 aims to provide a
European online dispute resolution platform to achieve an independent, impartial,
transparent, effective, fast and fair, out-of-court resolution of disputes between consumers
and online traders (Art. 1 Regulation).
ADR and costs
Although ADR can be ordered for, the CPR and the courts application of the CPR as well as
recent case law firmly encourages ADR in cases where it is appropriate. If ADR is appropriate
in a case but still comes before the court, the court will scrutinise why ADR was not pursued
and why it failed if it was. Consider the case of Burchell v Bullard [2005] EWCA Civ 358 which
was a dispute about construction work. The Bullard’s argued that the building work that
Burchell was contracted to complete was not and as such withheld the final payment. The
value of the dispute was actually only over about £5,000 worth of construction work. Yet,
despite the straightforward nature of the dispute the Bullard’s refused to mediate because of
the ‘complexity’ of the case, as was suggested by Burchell. The court held a strong view of the
final outcome:
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“In this comparatively small case where ultimately only about £5,000 will pass from
defendants to claimant, the claimant will have spent about £65,000 up to the end of
the trial and he will also have to pay the subcontractor's costs of £27,500. We were
told that the claimant might recover perhaps only 25% of his trial costs say £16,000,
because most of the contest centred on the counterclaim. The defendants' costs of
trial are estimated at about £70,000 and it was estimated the claimant would have to
pay about 85%, i.e. £59, 5000. Recovery of £5,000 will have cost him about £136,000.
On the other hand the defendants who lost in the sense that they have to pay the
claimant £5,000 are only a further £26,500 out of pocket in respect of costs. Then
there are the costs of the appeal - £13,500 for the appellant and over £9,000 for the
respondents. A judgment of £5000 will have been procured at a cost to the parties
of about £185,000. Is that not horrific?”12(Emphasis added)
As you can see from the court’s dramatic use of language, the court is clearly dismayed by the
conduct of the parties in choosing to pursue litigation rather than engage in ADR. It was this
type of practice that partly drove Jackson in his reforms and exposed the failure in Woolf’s by
endorsing such a system.
What are the criticisms?
Professor Dame Hazel Genn, published a favourable appraisal of mediation in the context of
county court disputes in 2001 after observing a pilot study. She noted that mediation was
capable of promoting settlement in a wide range of civil cases. However, it was necessary for
both parties to be willing to engage and for both parties to be of equal strength (e.g. two
individuals of equal wealth divorcing).13 In the converse, an imbalance of power between two
disputing parties could undermine the ADR scheme. Later, however, Professor Genn
identified the limitations of mediation and the risks of misuse.14 The most obvious problem
with ADR though is the law take-up rate particularly amongst divorcing couples who still opt
for settling matters through litigation.
12Burchell v Bullard [2005] EWCA Civ 358 [23] 13 Hazel Genn, ‘The Central London County Court pilot mediation scheme’,Arbitration,2001, 67(1), 109- 112 14 Hazel Genn, Judging Civil Justice 2010 CUP
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SEMINAR 3: THE COST OF LITIGATING AND ADR
READ: Refer to the essential and additional reading assigned for unit 3.
1. The high cost of litigation is held by some to make a positive contribution to the policy of keeping down the volume of litigation. High cost, it is believed, discourages unmeritorious claims, encourages litigants to settle, and promotes the search for Alternative Dispute Resolution methods, thus keeping many disputes out of the court system. Do you agree?
ACTIVTY1: an exercise in ADR. Read the above details in preparation for the seminar activity.
ART FOR ART’S SAKE, MONEY FOR GOD’S SAKE
MEDIATORS: TEAM MEMBERS 1 AND 2
PARTIES: Les (Male) / Leslie (Female) TEAM MEMBER 3
Robin (Male) / Robyn (Female) TEAM MEMBER 4
BACKGROUND
Les/Leslie is a fully qualified, experienced restorer of paintings, both oils and watercolours.
He/she is originally from Ohio in the U.S. but has lived in the UK for the past 30 years,
having married an English girl/man 20 years ago. Les/Leslie has been running his/her own
art restoration business for the past ten years or so out of a small village in the Cotswolds
and has been reasonably successful. He/she owns a small workshop and an adjoining
cottage free of mortgage. Art restoration is very much Les/Leslie’s life. He/she and his/her
wife/husband have no children. Their friends and neighbours regard them as ‘pillars of
the community’. Les/Leslie thoroughly enjoys his/her life and has no other desire but to
continue his/her work, growing the business where he/she can.
In the past few years, Les/Leslie has struck up a good, working relationship with
Robin/Robyn who owns a small antiques business in another village on the outskirts of
Evesham. Most of Robin/Robyn’s business comes from house clearances and other
contacts that he/she has in the antiques trade. Robin/Robyn doesn’t specialise in
paintings, but, if they have any age to them, he/she can usually turn a tidy profit on them,
particularly if we have a good summer and a few coach loads of American tourists can be
tempted out into the country, having spent a few hours in Stratford-in-Avon. When
he/she can Robin/Robyn likes to put a little business Les/Leslie’s way. Even though
Les/Leslie specialises in the restoration of paintings, he/she has a junior employee who
has done some good work for Robin/Robyn in the past year or so restoring antique
furniture. All in all, until the events that led to the present dispute had taken place,
Robin/Robyn valued Les/Leslie as an important contact and Les/Leslie valued
Robin/Robyn as a good source of business.
In May 2016, Robin/Robyn was approached by someone he/she had been at school with
many years earlier and who had a watercolour to sell. Robin/Robyn looked the artwork
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over. The painting had no discernible signature and no provenance, but it clearly had some
age to it. The old school friend claimed that it was by Charles Green, a well-known
Victorian illustrator who had ventured into the field of watercolours later in life. She said
that the painting had been in her grandmother’s family for many generations. She claimed
that her grandmother’s grandmother had been given the painting by Green himself. The
old school friend put Robin/Robyn in contact with an antiques dealer and art expert who
had a shop opposite the British Museum in London, who had seen the painting and who
had provided a written opinion on the authenticity of her claims. After speaking with this
dealer, Robin/Robyn agreed to purchase the painting for £10,000.
The painting needed a little restoration to it before it could be sold on the open market.
Robin/Robyn immediately thought of Les/Leslie. Robin/Robyn took the painting down to
Les/Leslie’s workshop. And, following a short conversation between the two of them,
Robin/Robyn agreed to restore the painting in accordance with Robin/Robyn’s requests
for the sum of £2,500, payable on completion. Les/Leslie informed Robin/Robyn that the
job would last six weeks. Robin/Robyn thereupon took some photographs of the painting
and left it with Les/Leslie.
Six weeks later Robin/Robyn called on Les/Leslie in order to pick up the painting. Les/Leslie
was a little evasive at first. And, Robin/Robyn could sense that something was wrong.
He/she noticed that Joe, Les/Leslie’s junior employee was nowhere to be seen. When
Robin/Robyn asked whether the work on the painting had been completed, Les/Leslie said
‘not quite’. When he/she asked to see the painting, Les/Leslie replied that it was with Joe,
who had taken it to a friend of his in Swindon who was also a restorer for a little advice.
Robin/Robyn asked when Joe would be back, but all Les/Leslie would say was ‘in a few
days’ time’. With this, Robin/Robyn replied that he/she would call again in 10 days’ time
and would pick up the painting in its fully restored condition.
When Robin/Robyn called on Les/Leslie 10 days later the painting was nowhere to be seen.
Les/Leslie was no longer evasive but immediately confessed that he/she had not seen
either the painting or Joe for the past three weeks. Robin/Robyn asked whether Les/Leslie
had called the police but Les/Leslie said no. He had attempted to find Joe but to no avail.
Robin/Robyn then asked Les/Leslie whether he/she was insured against theft. Les/Leslie
replied that he/she was, but not where the theft was committed by an employee. At this
point, Robin/Robyn became more and more exasperated and accused Les/Leslie of not
only ‘complacency’ but also ‘outright stupidity’. He/she demanded that Les/Leslie should
pay him/her the value of the painting and claimed that, in its restored condition, it would
fetch at least £40,000. Les/Leslie replied that the claim was nonsense and the painting
was not worth half that sum. At that point, Robin/Robyn left the premises, shouting at
Les/Leslie that he/she would be hearing from Robin/Robyn’s solicitor shortly.
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Several months later, Les/Leslie did hear from Robin/Robyn’s lawyers, He/she received a
letter demanding either the return of the painting or payment of £40,000 as damages for
its conversion within the next 28 days. Les/Leslie contacted his solicitor. And, to cut
matters short, the parties have now agreed that the dispute should be mediated in an
effort to see whether a solution might be achieved.
Despite the parties instructing their respective solicitors, it now seems that neither
Les/Leslie nor Robin/Robyn will be represented by their lawyers at the ensuing mediation.
Each has agreed to come to the mediation alone.
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LECTURE 4: THE JUDICIARY
Objectives
Having successfully completed this unit you should be able to:
To understand the role and function of the judiciary both historically and at
present.
To appreciate the issues relating to their background and selection.
To discuss the issue of judicial bias and its impact on the administration of
justice.
Essential reading:
Chapter 10 ‘The Judges’ in Elliott and Quinn
Chapter 12, ‘The Judiciary’ and chapter 13 ‘Judicial Reasoning and Politics’ Slapper and Kelly
Chapter 4 ‘Shaping the legal system: the role of government’ in Martin Partington
Additional reading:
Kennedy, H (1993) Eve was Framed: Women and the British Justice System, Vintage, London.
Griffiths, J. A. G (1997) The Politics of the Judiciary (Fontana Press, UK) 5thedn
Arvind, T.T. & Stirton, L, ‘Legal ideology, legal doctrine and the UK's top judges’ Public Law,
2016, 418-436
Blom-Cooper, L, ‘Bias: malfunction in judicial decision-making’, Public Law, 2009, 199-204
How independent and neutral are the judiciary in the UK?
https://www.youtube.com/watch?v=xWcaVvFuNro
Professor Conor Gearty, ‘On Fantasy Island: British politics, English judges and the European
Convention on Human Rights’ LSE Law and The Wyndham Trust Corbishley Lecture, Thursday
6 November 2014 http://www.lse.ac.uk/website-archive/publicEvents/pdf/2014-
MT/20141106-ConorGeartyTranscript.pdf
Introduction
WEEK 4
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The key claim made about judges is that they must not only be, but also seen to be,
independent. Judicial independence relates centrally to the constitutional function of judges
in interpreting and applying law outside the constraints of internal government.
Claims of corruption of those who hold judicial office – which would undermine judicial
independence – are not heard in England. But, there are other issues.
Source: Slapper and Kelly, The English legal System online resources
http://routledgetextbooks.com/textbooks/_author/slapper-9780415639989/lecturers.php
Role of the judiciary
There are various judges who operate at the various levels within the judicial hierarchy. There
are 40,000 judicial office holders in England and Wales including the tribunal and magistrates
judges.
• The constitutional role of the judiciary
• Supervise the conduct of a trial
• Sole arbiter of legal issues
• Civil cases decide the result
• Interpret and clarify the law
• Criminal cases sum up to the jury
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• Pass sentence on those who plead guilty or have been convicted
• Determine the meaning and effect of the law
• Pass sentence on defendants who plead guilty or who have been convicted by a jury
• Often involved in extra judicial work – heading inquiries and commissions
They are expected to deliver judgment in a completely impartial manner through a strict
application of the law without allowing their personal preference, or fear, or favour of any of
the parties to affect their decision in anyway. Decisions should be based on objective criteria
rather than on the basis of bias, prejudice or preferring the benefit to one person over another
for improper reasons.
This need for impartiality is reflected in the constitutional position of judges and the clear
separation of powers. Judges are not meant to socialise with the lawyers they once used to
once they enter the bench.
Individual judicial independence
Note we do not have an independent judiciary with a power equal to that of Parliament. But
we do protect the independence of individual judges in the following ways.
Security of tenure
High salaries
Cannot be an MP and should not engage in politics
Cannot be sued for remarks made in court
Parliament should not criticise judicial decisions
Politicians should refrain from criticising judges out of court
Freedom from interference with decision making
The rule against bias – to be discussed further in your seminar groups.
A politically independent appointments system
Since the Constitutional Reform Act 2005 the senior judiciary have undergone major reforms.
The House of Lords has been replaced by the Supreme Court as the highest court in the United
Kingdom and the way judges are appointed has changed too. Furthermore, the Constitutional
Reform Act 2005 made judicial independence subject to statutory protection – for the first
time! Section 3 Constitutional Reform Act 2005 establishes the Lord Chancellor’s
responsibility for continuing to uphold judicial independence. The Lord Chancellor and
ministers must not seek to influence particular judicial decisions. Read criticism of the
previous Lord Chancellor, Liz Truss, after she was reluctant to defend the judiciary after
tabloid newspapers called the judges who decided that the Executive did not have power to
trigger article 50 to initiate the Brexit proceedings without authority from parliament, the
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‘Enemy of the People’.15The significance being that it is the Lord Chancellor’s role to protect
the independence of the judiciary – which she was ever so slow to do.
Who can apply to be a judge?
Courts and Legal Services Act 1990 – based eligibility on rights of audience.
Tribunals, Courts and Enforcement Act 2007 – applicant must satisfy judicial
appointment eligibility condition. Wider pool of applicants.
Since 2010 includes legal executives.
Refer to page figure 12.1 on page 466 of Slapper and Kelly The English Legal System
(17thedn) for more about the appointment of judges.
Judicial conduct and discipline
The Judicial HR Committee of the Judges’ Council published the Guide to Judicial Conduct in
March 2013, updated July 2016.16
There must be an adherence to the Bangalore principles of judicial conduct 2002 17 that
establish standards of ethical conduct for judges and provide judges guidance which they can
reflect on in the performance of their judicial duties:
Independence
Impartiality
Integrity
Propriety
Equality
Competence and diligence
A recent example of the disciplinary exercise of the Judicial Conduct Investigations Office -
Society of Black Lawyers chair, Peter Herbert, who also sits as a recorder in the Crown Court
and in the immigration and employment tribunals, was disciplined in April 2017 after stating,
in an extra-judicial capacity, that racism was ‘alive and well…in the judiciary’. He was issued
formal advice by the Judicial Conduct Investigations Office as a result of his comments.
Of course one form of discipline is when higher courts set aside a conviction or reverse a
judgement on the grounds of the judges’ behaviour. This has happened in cases where the
appellant has argued that they did not receive a fair hearing or trial because for example the
judge threatened the jury, or fell asleep during the case.
15 https://www.lawgazette.co.uk/news/truss-urged-to-speak-out-amid-press-onslaught-on-brexit- judges/5058655.article 16https://www.judiciary.gov.uk/publications/guide-to-judicial-conduct/ 17http://www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.pdf
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The Judicial Conduct Investigation Office was established by the Constitutional Reform Act
2005 (previously the Office for Judicial Complaints until October 2013) and gives the Lord
Chancellor and Lord Chief Justice joint responsibility for dealing with complaints about
personal conduct of all judicial office holders. Previously, complaints about judges were a
responsibility for the Lord Chancellor alone. But, overall it is the judges who judge the judges
– there is not an independent body established to conduct this work.18 Furthermore, there is
not much transparency as to the nature of the misconduct. It is important to note that of
course, judicial decisions are outside its remit.
During 2015-216 there were 549 complaints of inappropriate behaviour or comments,
10complaints of discrimination, and 43complaints non-performance of a judicial duty. During
the same period there were approximately 3,200 members of the full and part time judiciary,
approximately 19,300 Magistrates and 5,600 Tribunal members. 43 cases resulted in formal
disciplinary action, 32 less than the previous reporting year. Disciplinary sanctions were issued
to less than 0.1% of judicial office holders. In 16 cases the offending member of the judiciary
was removed from office, in 15 cases formal advice was given, in 3 cases a warning was given
and in 9 the individual was reprimanded.19
For all Disciplinary Statements made by the Judicial Conduct Investigations Office see:
https://judicialconduct.judiciary.gov.uk/disciplinary-statements/2017/
Removal of any judge in the High Court or above
Resolutions in both House of Commons and House of Lords needed.
Section 108 Constitutional Reform Act 2005 gives Lord Chief Justice Powers to advise,
warn; or formally reprimand judicial office-holders.
May also suspend judges if criminal proceedings pending.
Judicial immunity from suit
In Sirros v Moore [1975] QB 118 a judge wrongly ordered a suspect’s detention. Although the
detention was unlawful, no action could be taken against the judge as he had acted in good
faith in his judicial capacity. Lord Denning considered the reach of judges’ immunity from suit:
“‘Ever since the year 1613, if not before, it has been accepted in our law that no action
is maintainable against a judge for anything said or done by him in the exercise of a
jurisdiction which belongs to him. The words which he speaks are protected by an
absolute privilege. The orders which he gives, and the sentences which he imposes,
cannot be made the subject of civil proceedings against him. No matter that the judge
was under some gross error or ignorance, or was actuated by envy, hatred and
18Rozenberg, J, ‘Who judges the judges?’, The Guardian, 25 March 2014, https://www.theguardian.com/law/2014/mar/25/who-judges-the-judges 19 Joint Conduct Investigations Office Annual Report 2015-16 https://s3-eu-west-2.amazonaws.com/jcio- prod-storage-1xuw6pgd2b1rf/uploads/2015/12/Flag-A-Annual-Report-2015-2016-2.pdf
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malice, and all uncharitableness, he is not liable to an action. The remedy of the party
aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a writ of
error or certiorari, or to take some such step to reverse his ruling. Of course, if the
judge has accepted bribes or been in the least degree corrupt, or has perverted the
course of justice, he can be punished in the criminal courts. That apart, however, a
judge is not liable to an action for damages. The reason is not because the judge has
any privilege to make mistakes or to do wrong. It is so that he should be able to do his
duty with complete independence and free from fear… These words apply not only to
the judges of the superior courts, but to judges of all ranks, high or low.”
It has been established that the doctrine of judicial immunity does not apply “if it be shown
that [a judge] was not acting judicially, knowing that he had no jurisdiction to do it.” This raises
the question of why should judges be at liberty to abuse their position of authority in a way
no other public servant can?
Judges cannot be subject to individual criticism in parliament debate unless they are being
removed.
“Judges have no authority to act maliciously or corruptly. It would be rational to hold
that such acts take them outside their jurisdiction and so do not attract judicial
immunity.”20
Politics of the Judiciary
The Lord Chancellor was the most senior judge in the English court structure as s/he sat in the
House of Lords and at the same time a party political appointment and a member of the
executive as they held a seat on cabinet. The Lord Chancellor was also the speaker for the
House of Lords in its general role as legislative forum. There were numerous problems with
the role of the Lord Chancellor as it was– the purely political problem was that there was no
requirement for the Lord Chancellor to have held any prior judicial office so there was an
impropriety of a member of the executive and a functioning member of the judiciary. The
Government set out to reform the role on the basis of introducing transparency, addressing
the obvious contradiction of the doctrine of separation of powers and that the role as it was
contrary to article 6 ECHR. The changes were introduced by the Constitutional Reform Act
2005. The Supreme Court replaced the House of Lords. Other changes included the significant
reduction in the role of the Lord Chancellor as that role has been limited to holding a senior
position on the cabinet, being the head of the Ministry of Justice as the Secretary of State.
After the Constitutional Reform Act 2010 the Lord Chief Justice became the head of the
judiciary and judicial appointments were within the remit of the newly created Judicial
Appointments Commission.
20 Judge Sedley, London Review of Books, 1994 in Slapper and Kelly
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Diversity
In April 2009 the then Lord Chancellor, Jack Straw, established an advisory panel on judicial
diversity and the panel observed that traditionally the judiciary was drawn from a well-
educated, middle-class, white group of barristers. 21 The panel suggested that under-
representation of well-qualified groups were women and ethnic minorities might be due to
factors other than merit. The report suggested that there had never been a coherent,
comprehensive strategy to promote diversity even though it has been accepted that there
should be greater diversity among the judiciary. The gender and ethnicity of the judiciary
should broadly reflect the gender and ethnicity of the population as a whole. There has been
considerable effort to move the judiciary away from their ‘white, male, upper middle class’
image.
The Judicial Diversity Statistics, published in July 2016, indicated that some progress has been
made:
The number of female court judges is 28% and female tribunal judges is 45% yet more
half of magistrates are female (54%)
The percentage of judges who identify as Black, Asian and Minority Ethnic (BAME) is
7% in courts and in tribunals 10%. 11& of magistrates identify as BAME.
A third of court judges and two thirds of tribunal judges are from non-barrister
backgrounds.
Most magistrates are over 50 (86%) with only 4% under 40 (most of whom were
female)
The conclusion that may be drawn from these findings is that some progress has been made
in the appointment of women as judges; but the numbers of BAME judges remain low.
In order to encourage applications, particularly from women and BAME candidates, the
Judges Council has established a Judicial Diversity Committee, which undertakes different
events and initiatives to encourage a wider range of candidates to apply for judicial
appointment. The Judicial Diversity Committee of the Judges’ Council Report on Progress and
Action Plan 2016-17.22
What is the impact of a lack of diversity in the judiciary?
21Report of the Advisory Panel on Judicial Diversity, 2010.Final Annual Report (2014), published June 2015,
available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/438207/judicial-
diversity-taskforce-annual-report-2014.pdf 22 https://www.judiciary.gov.uk/publications/judicial-diversity-committee-of-the-judges-council-report- on-progress-and-action-plan-2016-17/
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By diversity, we mean diversity of gender, socio-economic background, education, experience,
ethnicity, religion and race. What is the impact of a judiciary that comes from only one small
section of the population? Consider these judicial statements:
“It is well known that women in particular and small boys are liable to be untruthful and
invent stories.” Judge Sutcliffe, 1976. This quote comes from a case where a man broke into
a woman’s house, burgled her premises and raped her. The Judge had the task of explaining
to the jury that it could be dangerous to convict on the basis of uncorroborated evidence of
the woman but not in respect of the burglary. And the judicial warning to the jury was that
women can be untrustworthy. The judge’s direction to the jury has been reformulated putting
emphasis on the jury’s right to convict should they believe the woman’s evidence. Consider
this utterance from the judge in rape cases and the effect they have on denying the reality of
women who have been raped.
“Women who live more ordered lives don’t commit crime because with a husband
and children to look after they don’t have time.”
“It may not be necessary to send her to prison if she has a husband. He may tell her to
stop it.”
“If she’s a good mother we don’t want to take her away. If she’s not a good mother it
doesn’t really matter.”23
Note Lady Hale’s speech in Redmacher (formerly Granatino) v. Granatino [2010] UKSC 42
Further consider, ‘Attack of the Clones: Supreme Court keeps its white male first eleven’ in
UK Human Rights Blog https://ukhumanrightsblog.com/2013/02/27/attack-of-the-clones-
supreme-court-keeps-its-white-male-first-eleven/
Judicial impartiality, bias and decision-making
“If … ‘bias’ and ‘partiality’ be defined to mean the total absence of preconditions (in
the mind of the judge), then no-one has ever had a fair trial and no-one ever will.”
Source: Re JP LinahanInc, 138 F.2d 650 (1943) in Blom-Cooper, L, ‘Bias: malfunction in judicial decision-
making’, Public Law, 2009, 199-204
Judges, of course, recognise that as humans they can be subject to personal biases and those
procedural biases may also exist in the judiciary as an institution. However, it is argued that
structural principles within the judiciary eradicate the chances of bias overruling better
judgement. Those principles are:
1. Political neutrality – judges cannot campaign on behalf of any political party or openly
support a particular party. However, judges have been known to criticise Government
23 All quotes from Kennedy, H (1993) Eve was Framed: Women and the British Justice System, Vintage, London, 75
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policy as far as it impacts on the ability of the judiciary to administer justice, such as
in the case of the severe legal aid cuts.24
2. Anonymity – we as lawyers will learn who the most senior judges are and we may
become experienced enough to know their tendencies. But, the general public does
not tend to know who they are and they tend to keep out of the limelight. This
prevents pressure from being placed upon them as individuals, particularly by the
media. Which was why there was outrage and shock when after the Miller case tabloid
newspapers printed pictures and private information about the judges who decided
the case and described them as the ‘enemy of the people’.25
3. Legal justification – this is a legal principle that there must be a legal basis on which a
decision is made. The doctrine of precedent relates to this which you have learnt
about in Legal Method.
Of course there are different kinds of bias – procedural bias and biased beliefs or opinions
about others. Compare and consider three examples: 1. Lord Atkinson in Roberts v Hopwood
[1925] AC 578, 2. Lord Hoffman in R v Bow Street Metropolitan Stipendiary Magistrate, ex
parte Pinochet Ugarte (No 2) [1999] UKHL 52 and, 3. R v McIlkenny and Others [1992] 2 All ER
417.
Case study 1: Lord Atkinson in Roberts v Hopwood [1925] AC 578. Poplar Borough Council
decided to pay its workers a minimum wage, including the women who were paid the same
wages as men. This was following a requirement that a local council raise women’s wages to
be equal to their male counterparts meaning the workers were paid above the market rate.
The Metropolis Management Act 1855 did permit the council to pay such wages as it 'thought
fit' (i.e. at their discretion) but there was no requirement in law for pay to be equal according
to gender. The House of Lords upheld a challenge to the legality of the council's decision on
the grounds that it owed a fiduciary duty to the ratepayers whose rates were paying the
wages. The council's decision was also held to be unlawful because it had taken into account
irrelevant considerations such as the principle of ‘socialistic philanthropy’. The House of Lords
held that although the council had discretion to set the rate of pay, it had exceeded that
discretion by 1. Paying so much more than the market rate and 2. Paying men and women
equally. Carefully read this section from Lord Atkinson:
“The vanity of appearing as model employers of labour had not then, apparently,
taken possession of the council, nor had the council become such ardent feminists as
to bring about, at the expense of the ratepayers whose money they administered, sex
24 The right hon. the Lord Thomas of Cwmgiedd Lord Chief Justice of England and Wales speech as covered in
the Guardian https://www.theguardian.com/law/2015/sep/17/judges-engage-politics-preserve-rule-law-lord-
chief-justice & the full speech https://www.judiciary.gov.uk/wp-content/uploads/2015/09/speech-lcj-judicial-
independence-in-a-changing-constitutional-landscape.pdf 25 Slack, J ‘Enemies of the people’ The Daily Mail (3 November 2016, London)
http://www.dailymail.co.uk/news/article-3903436/Enemies-people-Fury-touch-judges-defied-17-4m-Brexit-
voters-trigger-constitutional-crisis.html
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equality in the labour market…The council would, in my view, fail in their duty if, in
administering funds which did not belong to their members alone, they put aside all
these aids to the ascertainment of what was just and reasonable remuneration to give
for the services rendered to them, and allowed themselves to be guided in preference
by some eccentric principles of socialistic philanthropy, or by a feminist ambition to
secure equality of the sexes in the matter of wages in the world of labour.”
Case study 2: Lord Hoffman in R v Bow Street Metropolitan Stipendiary Magistrate, ex parte
Pinochet Ugarte (No 2) [1999] UKHL 52, also known as the Pinochet case. Judges must be
completely impartial in their decision-making. Whether this is possible or not is another
matter but emphasis has always been placed on the necessity of the judiciary being seen to
be independent and impartial. In this case Augusto Pinochet who was president of Chile
between 1973-1990 and commander-in-chief of the Chilean Army from 1973-1998 oversaw
the bloody and repressive Junta of Chile between 1973 and 1981. There was no dispute as to
whether he was guilty of the things he was charged with: “there is no doubt that, during the
period of the Senator Pinochet regime, appalling acts of barbarism were committed in Chile
and elsewhere in the world: torture, murder and the unexplained disappearance of
individuals on a large scale.”26 However, the first case decided whether or not Pinochet should
be extradited during his visit to the UK for medical treatment in accordance with the wishes
of Spain who wanted to put him on trial for war crimes. So, the legal question was whether
Pinochet could enjoy diplomatic immunity which would shield him from extradition. The
House of Lords in the first case decided in favour of Spain’s request but Pinochet’s lawyers
appealed, citing bias. They requested that the previous judgment be set aside as one of the
lordships in the case, Lord Hoffman, was an unpaid director of Amnesty International
Charitable Trust and his wife worked for the organisation. That had been involved in the
campaign against Pinochet. The issue was not that as this role was no secret but that Amnesty
International had been given permission to intervene in the case. So, for the first time the
House of Lords was petitioned about a House of Lords decision. The House is unfettered in its
powers to correct an injustice it has created itself and so it engaged in a review of itself but
by a different selection of judges. The previous decision was set aside as on the basis that a
man cannot be a judge of his own cause. Lord Hoffman although not finically interested there
was an appearance of bias and that was enough. The original matter of Pinochet’s extradition
was to be heard and decided again by another new set of judges.
Case study 3: R v McIlkenny and Others [1992] 2 All ER 417 known as the Birmingham Six case.
The Birmingham Six were convicted in 1975 for the murder of 22 people after bombs went
off in two Birmingham pubs, planted there by the IRA in the context of the ongoing conflict in
Northern Ireland. In 1980 the Court of Appeal denied the Birmingham Six the right to sue the
police in civil proceedings. Lord Denning MR said about the possible innocence of the men
"This is such an appalling vista that every sensible person in the land would say: It cannot be
26[1992] 2 All ER 97 [100]Lord Browne-Wilkinson
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right that these actions should go any further"27. So, the men stayed in prison until 12 years
later in 1991 having already served 16 years in prison the Court of Appeal quashed all
convictions on the basis that the evidence relied on to support the convictions was fabricated
and unreliable. There had been a series of miscarriages of justice in this case where people
were found to be guilty and wrongly convicted and sentenced for serious crimes. Lord
Denning in 1988said, in relation to the Birmingham Six case, “hanging ought to be retained
for murder most foul” and “It is better that some innocent men remain in jail than that the
integrity of the English judicial system be impugned”. It became apparent as it should have
been to the Court of Appeal in 1980 that the men were completely innocent. Chris Mullin MP:
“Every sensible person in the land must now conclude that these deeply experienced judges
are deficient in precisely the powers of judgement that their lifetime of experience should
have sharpened and sensitised…Top judges are by definition highly intelligent, even brilliant
men. Intellectually they know the world is an imperfect place…There has been a terrible
mistake.”Together the miscarriages in the cases of the Guildford Four, the Maguire Seven and
the Birmingham Six were described by Lord Devlin as "the greatest disasters that have shaken
British justice in my time".28On the back of this case a unprecedented motion was presented
to the House of Commons which called for the sacking of the Lord Chief Justice at the time,
Lord Lane as a consequence of him dismissing the appeal where he said "The longer this case
has gone on, the more convinced this court has become that the verdict of the jury [at
Lancaster crown court in 1975] was correct."29Although others saw this as an attempt to
scapegoat him when there were much broader issues involved.
Consider this:
“It is not denied that judges differ systematically in their views on the law, and that
their judgments to some extent reflect views peculiar to them…The dominant view is,
nevertheless, that these differences lack institutional significance. The reason for this
appears to lie in a sense of judicial exceptionalism: because the judiciary is not political
in the way that other institutions or even other judiciaries are, matters such as judicial
appointments, bench-constitution procedures, and decision-making processes are not
an immediate concern…The purpose of this article is to argue that this complacent
acceptance of judicial exceptionalism is profoundly misconceived. The structure and
functioning of the UK’s judiciary pose the same sort of concerns in relation to
institutional design and institutional weaknesses as any other branch of the state,
even if judges are not "political", and neither can nor should be ignored.”
Source: Arvind, T.T. & Stirton, L, ‘Legal ideology, legal doctrine and the UK's top judges’ Public Law,
2016, 418-436, 418
27McIlkenny v Chief Constable of the West Midlands [1980] QB 283, at 323D 28 ‘The Conscience of the Jury’ LQR 1991 107398 29‘The final verdict on Lord Lane’ The Guardian (16 March 1991); D. Rose and J. McGhie ‘All-Party Campaign
to Oust Lord Lane’ The Observer, 17 March 1991.
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Judicial Exceptionalism
Judicial exceptionalism is the notion of a normalised or rooted extra-judicial authority within
the legal system.
“The neglect of institutional issues in judicial reform presents a striking contrast to the
reform of other institutions of the state, where issues of structure and design received
sustained attention. And it presents a puzzle. It is not denied that judges differ
systematically in their views on the law, and that their judgments to some extent
reflect views peculiar to them. Journals are filled with articles analysing the
jurisprudence developed by particular judges in the course of their career, or
discussing at length how leading judges differ in their approach to important legal
questions ranging from insolvency law to the boundary between private and public
law. Judges themselves acknowledge such differences and their impact upon cases.
The dominant view is, nevertheless, that these differences lack institutional
significance. The reason for this appears to lie in a sense of judicial exceptionalism:
because the judiciary is not political in the way that other institutions or even other
judiciaries are, matters such as judicial appointments, bench-constitution procedures,
and decision-making processes are not an immediate concern.
The purpose of this article is to argue that this complacent acceptance of judicial
exceptionalism is profoundly misconceived. The structure and functioning of the UK’s
judiciary pose the same sort of concerns in relation to institutional design and
institutional weaknesses as any other branch of the state, even if judges are not
‘political’, and neither can nor should be ignored.” (Original emphasis)
Source: T.T. Arvind & Lindsay Stirton, ‘Legal ideology, legal doctrine and the UK's top judges’ Public Law,
2016, 418-436, 419
Now consider this extract from a lecture by Conor Gearty:
“My first encounter with the fantasies that underpin English public law came in the
1980s. I had just starting teaching constitutional law and was taking my first year
students through Dicey: the independent rule of law; the availability of remedies to
all, without fear or favour; the common law’s marvellous protection of civil liberties;
how great we were, how terrible the continent; and all the rest of it. Outside the
classroom, striking miners were being routinely beaten up by the police, their
picketing disrupted by road blocks, their liberty eroded by mass bail conditions. The
Campaign for Nuclear Disarmament was having its marches banned and its protests
inhibited by ‘no-go’ areas arbitrarily erected by the police around American bases into
which it had been decided to move a new generation of nuclear weapons. Some of my
students were even beaten up themselves, on a march against education cuts in
London – much to their surprise given what I was teaching them.
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Far from confronting any of this from the perspective of principle, the courts were
happy to act as a benign legitimating force, their various rulings invariably serving to
throw the necessary constitutional camouflage over successive exercises of raw state
violence. Eventually the judges overreached themselves even by the standards of the
day: their absurd determination to prevent publication of a book (Spycatcher, by Peter
Wright) containing serious allegations of criminality against the security services fell
apart thanks partly to being published in the US under the protection of the first
amendment but mainly to the determination of a European Court of Human Rights to
take freedom of expression more seriously than had the supposed guardians of liberty
on the Strand. (More on this court later, of course.) The determined commitment of a
succession of senior judges to keep Irish prisoners in jail for serious terrorist offences
long after it was obvious to all that the men (and in some cases children) involved had
been victims of serious miscarriages of justice eventually brought the reckless
reactionary partisanship of the senior judiciary to centre stage where it could finally
be seen and understood by all: the true perspective of the Dennings, the Diplocks, the
Lanes, the Bridges, the Donaldsons was eventually exposed for all to see. By the early
nineties, the Dicey fantasy I had found on arrival in England was in ruins, believed by
almost no one, exposed as a construct founded on deceit.”
Source: Professor Conor Gearty, ‘On Fantasy Island: British politics, English judges and the European
Convention on Human Rights’ LSE Law and The Wyndham Trust Corbishley Lecture, Thursday 6
November 2014 http://www.lse.ac.uk/website-archive/publicEvents/pdf/2014-MT/20141106-
ConorGeartyTranscript.pdf
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SEMINAR 4: CAN YOU READ JUDGMENTS?
READ: R (on the application of The Public Law Project) (Appellant) v Lord Chancellor
(Respondent) [2016] UKSC 39https://www.supremecourt.uk/cases/docs/uksc-2015-0255-
judgment.pdf
When reading the case, apply the methods and tips taught during the previous ‘How to
Read Judgments’ Workshop – highlight important parts, identify the law that the judges
relied on or the law that judges dismissed as irrelevant to the case and skim over the
relevant facts. Write short answers to the following questions in preparation for the
seminar.
1. What was the case about?
2. What were the facts of the case?
3. What were the main arguments from both parties?
4. What did the Supreme Court decide and why?
5. What did the Court of Appeal decide and why?
6. What did the High Court decide and why?
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LECTURE 5: LEGAL PROFESSIONALS
Objectives
Having successfully completed this unit you should be able to:
Appreciate recent changes to the profession and proposals for further reform
Understand the legal requirements to work in the profession
Understand the regulatory framework governing the profession
Understand the new Solicitors Qualifying Exam
Essential reading:
Chapter 9 ‘Delivering legal services: practitioners, adjudicators and legal scholars’ in Martin
Partington
Chapter 11 ‘The legal professionals’ in Elliott and Quinn
Additional reading:
Bar Council: http://www.barcouncil.org.uk/careers/
Eduardo Reyes, ‘Apprenticeships: entry leveller’, The Law Society Gazette, 6 March
2017https://www.lawgazette.co.uk/features/apprenticeships-entry-leveller/5060085.article
Education Council: http://www.studyin-uk.com/blog/2014/01/06/interested-in-law-but-
confused-by-choice-between-barrister-and-solicitor/
Law Society: https://www.lawsociety.org.uk/law-careers/becoming-a-
solicitor/file:///C:/Users/Lauren/Downloads/Preparing-for-the-profession--student-
toolkit.pdf
SRA: https://www.sra.org.uk/sra/consultations/solicitors-qualifying-examination.page
Introduction
We are not just going to just consider barristers and solicitors in this unit but also all of those
who provide legal services without necessarily having legal professional qualifications,
including lay advisers and advocates, law centre case workers, legal executives, NGO’s,
intellectual property attorneys, licensed conveyors, costs draftsmen, insolvency practitioners,
adjudicators and dispute resolvers and legal scholars.
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This alternative is important because there is a steadily growing body of opinion that the
present model for the delivery of legal services is not sustainable (usually lawyers working in
private practice). The legal market is also undergoing rapid legal change. These changes
include the introduction of legal aid, Conditional Fee Agreements and changes introduced by
the Courts and Legal Services Act 1990. In the 1950’s only a small number of people would go
to a lawyer for advice and assistance but these days many people do from small businesses,
huge corporations, governments and of course the ordinary individual in a personal capacity.
England and Wales is one of the only jurisdictions where lawyers are split into barristers or
solicitors. Barristers represent clients in courts and tribunals and the time they spend in court
will vary according to the area of practice. Being a barrister requires advocacy skills: you need
to be a clear and confident speaker to be compelling in order to defend your client.
Solicitors, in contrast, may go to court if they work in a dispute team or a specialist criminal
firm but they will be sat behind the barrister and won’t speak directly to the judge or jury.
Unless, the solicitor is a qualified solicitor-advocate in which case they can address the court
as a barrister would because they have gained rights of audience.30 This requires an additional
qualification but increasing numbers of solicitors are solicitor-advocates as it is efficient
money and expertise wise.
Barristers will tend only to be involved in contentious work. When something has gone wrong,
or is hired to give a second legal opinion on difficult matters. A lot of what solicitors do is non-
litigious work which is to prevent litigation. But if you’re more interested in the day-to-day
aspects of your chosen area of work, then with the exception of criminal law you will see a
greater range of work as a solicitor. Indeed, a solicitor will cover the whole process and all
types of work within their area of expertise. For example, commercial solicitors will draft
documents for all types of legal related matters: employment contracts, pension schemes,
mergers and acquisitions, tender bids, etc.
Being a barrister requires confidence, self-reliance and motivation. A student must have the
ability to assimilate large amounts of paper at short notice and be confident on their feet at
venues all over the country. It depends on the specialism, but it isn't unusual for a barrister
to be in court until 4pm, go back to the chambers to pick up their brief for the next day, work
on it that evening and then be on the road very early the next morning to a court many miles
away.
Being a solicitor, on the other hand, requires the ability to multi-task and you'll need to excel
in project work. Clarke adds that a barrister's work mainly comes in by reputation, so it may
be several years before you earn a good standard of living, whereas a solicitor can enjoy the
benefit of a steady income much earlier on.
30 Solicitor rights of audience was introduced by the Courts and Legal Services Act 1990
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A common view is that barristers are more qualified and make better lawyers. But, it's a
misconception that solicitors cannot provide the same or a better quality of work. Another
myth is that to be a barrister you must have been educated at private school and Oxbridge.
This is not true.
Barristers
Law graduates must have a qualifying law degree. Non law graduates have to pass the
Graduate Diploma in Law.
Both must complete the one year Bar Professional Training Course.
Must register as a student member of one of the Inns of Court
Gray’s Inn
Lincoln’s Inn
Inner Temple
Middle Temple
Student has to undergo an apprenticeship known as pupillage.
Pupils may practise and appear as an advocate in the second six months.
Over 50% of barristers work in London.
Regulated by the Bar Standards Board that sets training and entry standards and enforces the
Bar Code of Conduct.
The General Council of the Bar (known as “the Bar Council”) develops and promotes the work
of the Bar in the UK, EU and internationally. It also provides services for barristers such as
conferences and publications.
Types of barrister
Junior Counsel and Queen’s Counsel (“Silks”): Practising barristers are called junior
counsel unless they have been designated Queen’s Counsel (QC).
Treasury Counsel: Appear for the government in public law cases and for the prosecution
in top criminal cases.
Barrister’s clerk: Manages the set of chambers. Institute of Barristers’ Clerks represents
clerks’ interests.
Solicitors
NEW rules are currently being introduced by the Solicitors Regulation Authority (SRA)
following a public consultation. The new rules are that instead of needing a qualifying
law degree with non-law graduates having to pass the Graduate Diploma in Law,
anyone will be able to sit a Solicitors Qualifying Examination. This will be the new route
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to qualification….by 2020. So, you still all need to complete and pass this course to
gain a law degree!
To become a solicitor you then need to successfully complete the Legal Practice
Course. Consider that fees can be up to £3000 and the course in incredibly intensive,
lasting one year.
Student must then serve as a trainee in a firm of solicitors for two years. Their work is
supervised and assessed.
When the training contract has been completed admitted to the role of solicitors.
Regulated by the SRA whose purpose is to regulate the profession and protect the public by
ensuring standards are high.
The Law Society acts as solicitors’ trade union and promotes their interests. But, as the SRA is
within the Law Society there is a conflict at times – especially if a lawyer is being prosecuted
by the SRA for professional misconduct. The regulator and representative body are still
funded through the same process and they remain linked in other ways through the regime
installed by the 2007 Legal Services Act. However, note that there have been recent moves
to consider a split between the regulatory arm, the SRA, from the representative arm, the
Law Society.31
Legal executives
Legal executives are not formally qualified solicitors but provide a great deal of legal
service to the public.
Legal executives’ regulatory and examining body is the Institute of Legal Executives.
Exams and training programmes have to be completed and they are regulated by the
CILEX
Code of Professional Conduct applies
Paralegals
Institute of Paralegals estimates that in 2010 there were 250,000 employed in the UK.
6,000 paralegal firms set up since 1998.
National Association of Licensed Paralegals estimates 180,000.
Could progress from Para-legal to solicitor BUT don’t assume that a job as a Para-legal
will lead to a training contract – it might not.
If you have worked as a paralegal carrying out legal work, and you go on to secure a
training contract, you are permitted to apply to have your paralegal experience to be
31 John Hyde, ‘Society clashes with SRA over potential split’, The Law Society Gazette, 21 January 2016, https://www.lawgazette.co.uk/news/society-clashes-with-sra-over-potential-split/5053162.article
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recognised and count towards your time as a trainee solicitor. This is known as ’time
to count’.
Other professions that value a law degree
NGO’s – Amnesty International, Redress, Reprieve, Liberty
Banks
Companies
Charities – Shelter, Mind, etc
The Civil Service
A clerkship in the House of Commons or the House of Lords
HMRC
HEALTH WARNING!
Being a lawyer, whether as barrister or solicitor, can be a very demanding job. A light is being
to be shone on the mental and physical health implications of working in this profession.
Lawyers tend to work long hours and associated with such regular working habits is weight
gain, no exercise and not enough sleep.32
In terms of mental health, recently 1 in 3 junior barristers reported that they found it difficult
to control or stop worrying, 1 in 6 feels in law spirits most of the time and 2 in 3 felt that
showing stress was a weakness.33As one article written by an anonymous barrister who
sought therapy to help them manage these symptoms put it “the imbalance of power [that
pupils feel once they gain entry into a chamber] is compounded by the paradox that the bar
demands independent-minded, intelligent and self-motivated people, and then shoehorns
them into the bottom of a highly-structuralised environment where their independence,
intelligence and motivation might count for very little”.34 Others have observed that there
may be a link between depression and power, particularly social power that includes class,
gender, race, religion, ethnicity and all other forms of oppression that create the same sense
of ontological inferiority.35
32http://www.cba.org/Publications-Resources/CBA-Practice-Link/Work-Life-Balance/Health- Wellness/Coping-with-Stress-and-Avoiding-Burnout-Techniques & https://www.economist.com/blogs/freeexchange/2014/10/working-hours 33 The Bar Council, April 2016 http://www.barcouncil.org.uk/supporting-the-bar/wellbeing-at-the-bar/ 34‘Pupillage and the politics of mental ill-health’, Socialist Lawyer, June 2017, p 20. 35 Mark Fisher, Good for nothing, Occupied Times, March 2014 in ibid
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SEMINAR 5: THE MORALITY OF LAW AND JUDICIAL BIAS
READ: The concerning Charlie Gard: Great Ormond Street Hospital v Yates [2017] EWHC 1909
(Fam) https://www.judiciary.gov.uk/wp-content/uploads/2017/07/gosh-v-gard-
24072017.pdf (6 pages)
And, for the background details of the case read: Great Ormond Street Hospital v Yates [2017]
EWHC 972 (Fam) https://www.judiciary.gov.uk/wp-content/uploads/2017/05/gosh-v-yates-
and-gard-20170411-1.pdf (28 pages)
Lord Neuberger, ‘The Role of the Judge: Umpire in a Contest, Seeker of the Truth or Something
in Between?’ Singapore Panel on Judicial Ethics and Dilemmas on the Bench: Opening Remarks,
19 August 2016 https://www.supremecourt.uk/docs/speech-160819-04.pdf (10 pages)
Additional reading:
‘Law and Moral Order’ in Martin Partington (1 page)
B. Malik, ‘Moral truth and sense: questioning Dworkin's "one right answer"’ UCL Juris. Rev.
2008, 14, 142-173
You may also find the interaction between Joshua Rozenberg and Judge Scalia of interest:
http://www.telegraph.co.uk/news/uknews/1573187/Moral-judgments-have-no-place-in-
court.html (1 page)
Judges often have to make decisions where there is no previous case for them to rely on, or
where there is a tricky moral or ethical issue in hand. If you, as a newly qualified judge, were
asked to preside over the following two incidents what would you decided and why?
1. You are asked for permission to withdraw life-saving medical treatment from a
terminally ill man in for the hospital to remove his organs to save the lives of five
people on the transplant waiting list?
2. On what basis did the High Court judge, Mr Justice Francis, in the Great Ormond Street
Hospital v Yatesmake his decision that Charlie Grad should be able to die?
3. Note his discussion of the surrounding factors to this case and how he had to make
the decision. Do you think questions of morality should be answered in the court room?
4. What is Lord Neuberger’s point when he says “all fair-minded judges know that they
will sometimes believe a liar and disbelieve an honest person, and that they will
sometimes go wrong on an issue of law? Quite apart from this, any trial must be
conducted in accordance with defined principles, each of which is, or at least should
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be, justified on the ground that it supports the rule of law, but it is inevitable that, in
some cases, a particular principle will work against getting the right answer – e.g. the
exclusion of “without prejudice” negotiations, the restrictions on hearsay evidence.”
5. Lord Neuberger said that all human beings have preconceived ideas and notions, and
the “important thing is that judges are as aware as they can be of any biases or
prejudices they suffer from, and that they acknowledge and take into account those
biases and prejudices when evaluating witnesses and their evidence”. Is this enough
to eradicate the possibility of biases skewing an individual’s judgment in a case?
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WEEK 6: READING WEEK
THERE ARE NO LECTURES, SEMINARS OR WORKSHOP TAKING PLACE THIS
WEEK.
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LECTURE 6: HUMAN RIGHTS IN THE ENGLISH LEGAL SYSTEM Objectives Having successfully completed this unit you should be able to:
Understand the importance of the Human Rights Act 1998.
Demonstrate how human rights protections have developed.
Understand the method used by the courts to alert Parliament to any possible human
rights violations.
Be able to critique the political context of human rights in the UK and the argument
for a Bill of Rights.
Understand recent developments in human rights law
Essential reading: Chapter 2 ‘Rule of Law and Human Rights’ in Slapper and Kelly
Part 3 ‘Human Rights’ in Elliott and Quinn
The European Convention on Human Rights:
http://www.echr.coe.int/Documents/Convention_ENG.pdf
The European Charter on Fundamental Rights: http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A12012P%2FTXT
Dominic Grieve QC MP, ‘Can a Bill of Rights do better than the Human Rights Act?’ P.L. 2016, Apr, 223-234
Additional reading:
Masterman, R. (2005) 'Taking the Strasbourg Jurisprudence into account: developing a
'municipal law of human rights' under the Human Rights Act.', International and comparative
law quarterly, 54 (4) 907-931
Elena Butti, ‘The Roles and Relationship between the Two European Courts in Post-Lisbon EU
Human Rights Protection’, JURIST, 12 September 2013,
http://jurist.org/dateline/2013/09/elena-butti-lisbon-treaty.php
Sarah Dalzell, ‘Spot The Difference: The European Union or European Convention on Human
Rights?’ Rights info blog accessed https://rightsinfo.org/whats-difference-european-union-
european-convention-human-rights/
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Oliver Carter, The Justice Gap, http://thejusticegap.com/2014/10/rights-wish-discard/
Introduction: What are human rights?
“Human rights are rights inherent to all human beings, whatever our nationality, place
of residence, sex, national or ethnic origin, colour, religion, language, or any other
status. We are all equally entitled to our human rights without discrimination. These
rights are all interrelated, interdependent and indivisible” - The Universal Declaration
of Human Rights
The European Convention on the Protection of Human Rights and Fundamental Freedoms
– usually referred to as the European Convention on Human Rights
- Opened for signature in Rome November 1950
- Entered into force on 3 September 1953
- European Court of Human Rights started hearing cases in 1959
- UK has allowed individual right of application to the court since 1966 but domestic
courts did not recognise the ECHR as part of English law because it was not
incorporated.
- The Human Rights Act 1998 enabled all citizens to enforce their ECHR rights in
domestic courts without having to go to the European Court of Human Rights (ECtHR).
Citizens can still go to the ECtHR but only after all domestic remedies have been
exhausted.
The Scope of the Convention
Article 1: Contracting parties to secure for everyone within their jurisdiction the
rights and freedoms defined in the Convention.
Article 2: Everyone’s right to life shall be protected by law.
Article 3: No-one to be subject to torture or to inhuman or degrading treatment or
punishment.
Article 4: Freedom from slavery or forced labour.
Article 5: Right to liberty and security of person.
Article 6: Right to fair and public hearing of criminal charge.
Article 7: Prohibition on retrospective criminal legislation.
Article 8: Right to respect for private and family life, home and correspondence.
Article 9: Right to freedom of thought, conscience and religion.
Article 10: Right to freedom of expression.
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Article 11: Right to freedom of peaceful assembly and association.
Article 12: Right to marry and found a family.
Article 13: Right to effective remedy for violation of rights.
Article 14: Enjoyment of rights in the treaty free from discrimination.
Article 15: Right of states to derogate from obligations in time of war or public
emergency. No derogation from Art 2 except in respect of deaths resulting from lawful
acts of war or from Arts 3, 4 and 7.
Article 16: Restriction on the political activity of aliens.
Article 17: Prevents a person relying on a Convention right where his or her ultimate
aim is the destruction or limitation of Convention rights.
Article 18: The restrictions permitted under this Convention to the said rights and
freedoms shall not be applied for any purpose other than those for which they have
been prescribed.
There are in addition a number of Protocols which have added new rights to the main list,
such as Protocol 1, concerned to protect peaceful enjoyment of possessions, the right to free
elections and rights to education. Protocol 6 contains the right not to be subject to the death
penalty.
The rights contained in Articles 2,3,4,7,14 are absolute rights which means they can never be
derogated from (suspended, if you like) and they never be qualified (meaning there can be
no limitations to the rights or any circumstances in which the rights can be restricted or
limited by the state). Absolute rights include article 3, article 4(1) and article 7.
The rest of the Articles may be limited to some extent by the State but only in certain
circumstances and under strict conditions. These are known as qualified rights meaning that
any interference (limitation or restriction) of that right must be proportionate to the situation.
The State may well also be left a certain amount of discretion as to how and when to limit
these rights if they are of a sensitive nature or there are particular circumstances relevant to
that State. This is known as the Margin of Appreciation.
Within the ECHR are positive obligations – these are requirements on the state to do certain
things to protect or grant the rights, not just to not do things (not torture, not arrest people
without charge etc). Positive obligations include the obligation within article 2 and 3 ECHR to
investigate the circumstances surrounding any allegation of unlawful death or torture, or
inhumane and degrading treatment. This is positive because it requires the state to do
something, i.e. investigate. See Osman v UK (87/1997/871/1083).
Article 15 ECHR - Derogation in time of emergency
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“Article 15(1) In time of war or other public emergency threatening the life of the
nation any High Contracting Party may take measures derogating from its obligations
under this Convention to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with its other obligations under
international law.
(2) No derogation from Article 2, except in respect of deaths resulting from lawful acts
of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
(3) Any High Contracting Party availing itself of this right of derogation shall keep the
Secretary General of the Council of Europe fully informed of the measures which it has
taken and the reasons therefore. It shall also inform the Secretary General of the
Council of Europe when such measures have ceased to operate and the provisions of
the Convention are again being fully executed”.
When a State limits one or several Convention rights, it is derogation. The UK has on occasions
derogated with respect to anti-terrorism legislation. For example sections 21and 23 Anti-
Terrorism, Crime and Security Act 2001 allows for foreign nationals to be held without trial
if suspected of being involved with terrorist activities. The lawfulness of the practice and of
the derogation was challenged in A v Secretary of State for the Home Department [2004] UKHL
56 – this is a critical case. In that the case the House of Lords concluding, with a leading
judgment from Lord Bingham, that
“I would allow the appeals. There will be a quashing order in respect of the Human
Rights Act 1998 (Designated Derogation) Order 2001. There will also be a declaration
under section 4 of the Human Rights Act 1998 that section 23 of the Anti-terrorism,
Crime and Security Act 2001 is incompatible with articles 5 and 14 of the European
Convention insofar as it is disproportionate and permits detention of suspected
international terrorists in a way that discriminates on the ground of nationality or
immigration status. The Secretary of State must pay the appellants' costs in the House
and below.”36
Why was the derogation order quashed? (We will cover remedies briefly in the accompanying
lecture and your reading will also cover this area in more detail)
“Article 15 requires any derogating measures to go no further than is strictly required
by the exigencies of the situation and the prohibition of discrimination on grounds of
nationality or immigration status has not been the subject of derogation. Article 14
remains in full force. Any discriminatory measure inevitably affects a smaller rather
than a larger group, but cannot be justified on the ground that more people would be
adversely affected if the measure were applied generally. What has to be justified is
not the measure in issue but the difference in treatment between one person or group
36 [73] Lord Bingham
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and another. What cannot be justified here is the decision to detain one group of
suspected international terrorists, defined by nationality or immigration status, and
not another.”37
Recent trends
As you should all be aware, the Government has signalled its intention to derogate from the
Convention in all future conflicts to prevent legal actions being brought against the
Government for ill-treatment, unlawful detention or the violation of any other relevant rights.
As you will see from Article 15(2) above, “no derogation from Article 2, except in respect of
deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be
made under this provision.” Why the Government has announced such an intention as well
the effectiveness and legality of such derogation is currently being scrutinised by the Joint
Committee on Human Rights, a parliamentary committee made-up of cross-party MPs,
chaired by Harriet Harman MP.38
The influence of the Convention under English law prior to the Human Rights Act 1998
Note the Human Rights Act 1998 does not entrench the European Convention on Human
Rights into UK law. However, ECtHR Strasbourg has been hugely influential in the
development of human rights law in the UK.
Consider the following cases:
Ireland v United Kingdom [1978] 2 EHRR 25
R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696
Derbyshire County Council v Times Newspapers Ltd and Others [1992] UKHL 6
Malone v Commissioner for the Metropolitan Police (no 2) [1979] 2 All ER 620
What does the HRA do?
It gives certain provisions of the Convention and its Protocols a defined status in UK law.
For example:
37 [68] Lord Bingham 38 To read more about this go to: https://www.parliament.uk/business/committees/committees-a-z/joint-
select/human-rights-committee/inquiries/parliament-2015/government-proposed-echr-derogation-16-17/. For
correspondence form the JCHR to the Secretary of State for Defence who is proposing this course of action, see:
http://www.parliament.uk/documents/joint-committees/human-rights/correspondence/2016-
17/HH_to_MF_re_derogation.pdf
To read some of the submissions made as to the Government’s decision to derogate, see:
https://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-
committee/inquiries/parliament-2015/government-proposed-echr-derogation-16-17/publications/
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Section 2: A court or tribunal determining questions which arise in connection with a
Convention right must take into account the judgements, decisions, declarations or
opinion of the European Court of Human Rights and the Commission. This means that
the Strasbourg case law has a more influential role but is still not binding.
Section 3: So far as is possible to do so – both primary and delegated legislation are to
be read and given effect to in a way that is compatible with Convention rights
whenever enacted. This means that existing rights and obligations should be
interpreted in a way which is consistent with the Convention.
Section 4: Where a court decides that a legislative provision is incompatible with the
Convention a Declaration of Incompatibility may be made but it is then for Parliament
to decide whether the provision should be changed.
Section 6: Obliges all public bodies, including courts and tribunals to act in a manner
that is compatible with the ECHR. The fact that courts are bound by the Convention
means that even when adjudicating on private disputes they are obliged to uphold
human rights.
Section 7: Allows a victim of an act by a public authority to bring proceedings if it
infringes a Convention right.
Section 8: This section deals with remedies.
Section 19: When a Bill is introduced into Parliament the Minister in charge of the Bill
must before the second reading, make a statement to the effect that in their view the
provisions are compatible with Convention rights. This is called a Statement of
Compatibility. Or that if they are unable to make such a statement the government
still wishes to proceed.
The effects of Strasbourg case law
Domestic courts have a duty on the court to strive to find a possible interpretation compatible
with Convention rights (section 3 HRA) and the courts must take into account ECtHR decisions
as far as they are relevant to the case in hand – note that there is no duty to follow exactly
what the ECtHR decides. As such, there are some examples where the domestic courts have
actually departed from ECtHR jurisprudence but this is rare and only under “special
circumstances”. Lord Hoffmann provided an early example of “special circumstances” under
which a relevant Strasbourg decision might not be followed in Alconbury:
“The House [of Lords] is not bound by decisions of the European Court and, if I thought
that … they compelled a conclusion fundamentally at odds with the distribution of
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powers under the British constitution, I would have considerable doubt as to whether
they should be followed”39
Source: Roger Masterman, ‘Supreme, Submissive or Symbiotic? United Kingdom courts and the
European Court of Human Rights’, The Constitution Unit, 2015
R v A (Complainant’s Sexual History) [2001] UKHL 25: D was charged with rape. At his trial his
barrister asked the judge for permission to cross examine the victim about an alleged sexual
relationship between D and her in the three weeks leading up to the attack. Under S.41 of
the Youth Justice and Criminal Evidence Act 1999 (YJCEA) any such giving of evidence or cross
examination of a rape victim’s past sexual behaviour is only allowed under very strict
guidelines. The judge would not give permission as it would not add anything to the case and
he said it was being undertaken in order to cast doubt on the victim’s character.
D argued that S.41 stopped him having a fair trial because it stopped him putting forward
relevant evidence and therefore breached his rights under Article 6 of the Convention.
House of Lords discussed what was meant by a fair trial and they found that it meant
balancing the interests of the accused with the victim and with society as a whole.
The judges relied on section 3 HRA to allow section 41 of the YJCEA 1999 to be read as
permitting the admission of evidence or questioning relating to a relevant issue in the case
where it was considered necessary by the trial judge to make the trial fair. The test of
admissibility of evidence of previous sexual relations between an accused and a complainant
under S.41 of the 1999 Act was whether the evidence was so relevant to the issue of consent
that to exclude it would be to endanger the fairness of the trial under Article 6 of the ECHR.
Where the line is to be drawn is left to the judgement of trial judges.
Statement of Compatibility – Section 19
When legislation is introduced in Parliament for a second reading the Minister introducing
the Bill must either make a statement to the effect that in his or her view the legislation is
compatible with the Convention or make a statement to the effect that although the
legislation is not compatible with the Convention the government still wishes to introduce it.
Definition of a Public Authority
The HRA does not directly regulate dealings between individuals. Its purpose is to give the
UK court’s jurisdiction to hear complaints by victims that legislation or a decision by a public
authority is incompatible with one or more of the rights guaranteed by the Convention.
Under Section 6 of the HRA public authorities must act in a way that is compatible with the
39R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport
and the Regions [2001] UKHL 23, at [76]
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Convention – unless they could not have acted any differently because of primary legislation.
Public authorities include courts and tribunals.
Who is a Victim?
Under the HRA only a person who would have had standing to take his or her case to the ECHR
in Strasbourg – that is someone actually and directly affected or at risk of being affected by
the act or omission complained of. Parties not directly affected such as pressure groups or
special interest groups may support or fund a victim.
Declarations of Incompatibility
Where a court considers that legislation is incompatible with a Convention right it may make
a Declaration of Incompatibility. This provides no direct remedy but obliges the government
to consider amending the legislation in question.
Bellinger v Bellinger [2003] 2 WLR 1174: Mr and Mrs Bellinger went through a ceremony of
marriage on 2 May 1981. However Mrs Bellinger had been registered as a male at birth.
Section 11 of the Matrimonial Causes Act 1973 states that a marriage is void (i.e. does not
exist) unless the parties were male and female. Although Mrs Bellinger did not win her case,
the court did make a Declaration under the HRA that S.11 of the Matrimonial Causes Act was
incompatible with Articles 8 and 12 of the ECHR.
Parliament’s Response
1. Gender Recognition Act 2004
2. Civil Partnership Act 2005
3. Marriage (Same Sex Couples) Act 2013
Is Strasbourg law the law of England and Wales?
Strasbourg refers to the European Court of Human Rights.
Read:
Is Strasbourg law the law of England and Wales?
“R (o.t.a Minton Morrill Solicitors) v. The Lord Chancellor [2017] EWHC 612 (Admin) 24
March 2017, Kerr J
This exam-style question arose, in an attempt by solicitors to be paid by the Legal Aid
Agency for some work they had done on two applications to Strasbourg. The underlying
cases were housing, the first an attempt to stave off possession proceedings, and the
second the determination of whether an offer of “bricks and mortar” accommodation to
an Irish traveller was one of “suitable accommodation”. Both applications were declared
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inadmissible by the European Court of Human Rights, and thus could not benefit from that
Court’s own legal aid system.
The major question turned on whether the Human Rights Act had “incorporated” the
Convention. We all use this as a shorthand, but is it really so?
The key costs provisions, now in s.32 of LASPOA 2012, said that civil legal services do not
include services relating to any law other than the law of England and Wales, except where
such law is relevant for determining an issue relating to the law of England and Wales.
The solicitors argued that there were two ways in which they could be paid. (1) Work on
a Strasbourg application did relate to domestic law, and (2) even if it did not, it was on a
law that was relevant to determining a domestic law issue.
(1) Strasbourg law is English law
They argued that the Convention rights relied upon by their clients had been incorporated
into domestic law by the HRA; those rights are “directly enforceable in this country as part
of its domestic law” – see Wilson or Keyu for such statements. Just as the European
Communities Act 1972 had acted as a conduit pipe for the introduction of EU law (as per
Miller, the Brexit case, so the HRA did so for ECHR law.
But the Lord Chancellor had rather bigger guns up her sleeve, such as Lord Clyde in
Lambert at [135]
in approaching the problem of the retrospectively of the 1998 Act it is to be
remembered…that the Act did not incorporate the rights set out in the Convention
into the domestic laws of the United Kingdom
Or Lord Hoffmann – incorporation is a “misleading metaphor”; international treaties are
not self-executing in our domestic law
what the law has done is to create domestic rights expressed in the same terms as
those contained in the Convention. But these are domestic rights not international
rights. Their source is the statute, not the Convention. They are available against
specific public authorities, not the United Kingdom as a state Re McKerr at [63]
Hence the ECtHR applies the law of the Convention, not that of England and Wales. The
two legal systems are separate. Domestic courts must apply incompatible laws, if they
cannot be “read down” into compliance.
The EU conduit pipe metaphor is inapplicable. There is nothing actually coming down the
pipe from ECtHR. The HRA simply replicated the language of certain articles within the
Convention.
The judge, Kerr J, agreed with the Lord Chancellor’s contentions. The use of the word
“incorporate”
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does not provide a foundation for any suggestion that the HRA directly gives the
force of law in England and Wales to the autonomous law of the European
Convention, nor that the HRA has altered the principle that treaties are not self-
executing under our domestic law.
Even though UK Courts must take Strasbourg cases into account, they are not bound to
follow them; conversely, they may be bound not to follow them because of domestic
binding precedent. Hence, and from time to time, the law in our courts differs from that
applied in Strasbourg.
So Strasbourg law is not English law.
(2) Strasbourg law is relevant to determining any issue relating to the law of England and
Wales
The solicitors relied on the continuing relevance of Strasbourg law to domestic law
disputes about the meaning of rights derived from the Convention, and cited various
housing cases in which Strasbourg decisions repeatedly led to later courts departing from
House of Lords decisions.
The Lord Chancellor’s first argument was simple, and focussed on the use of the word “is”
in “is relevant”. By the time that the solicitors started working on the Strasbourg
applications, there were no English proceedings on foot, as they had been dismissed. This
is not surprising because you cannot go to Strasbourg without exhausting local remedies
– see the post here for what this means. So the applications to Strasbourg could not be
relevant to anything currently in a domestic court.
The judge was not initially inclined to accept this argument. Domestic human rights law is
inspired, shaped and influenced by the decisions of the Strasbourg Court. So the latter has
to be relevant to domestic law. Left to his own devices, he would have been sympathetic
to the solicitors’ arguments.
But he was persuaded that the provision was potentially ambiguous and therefore
recourse to Hansard was acceptable. When the predecessor to LASPO (Access to Justice
Bill 1999) was in the House of Lords, one saw where this exception to the ban on foreign
law came from.
Relatively commonly, the English Courts have to decide issues of foreign law as part of
deciding the cases before them, particularly when the events in question (the road
accident, the environmentally damaging activity) occurred abroad. In such cases, the
courts treat foreign law as an issue of fact to be pleaded and proved, by the calling of
experts – I myself gave evidence on issues of UK environmental law on deposition for a
US Court.
So, in response to a Law Lord pointing out that the 1999 Bill would not appear to allow
this, the then Lord Chancellor asserted that the bill was quite obviously not intended to
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exclude foreign law relevant to an existing UK case, but undertook to move an
amendment designed to make this clear. Hence, the exception now found in LASPO.
This was one of those relatively rare cases where the Parliamentary history did make the
genesis of a provision crystal clear. The Strasbourg law had to be relevant to a case
currently before the English courts – which of course it was not in these cases, where the
claims had been finally dismissed by the English courts.
Conclusion
A neat explanation from the judge as to why we must be wary of the metaphor of
incorporation when talking about the HRA and the ECHR. Incorporation could have been
carried very easily, by a provision stating that the Convention shall have force of law in
the UK. It did not say that, because a more nuanced scheme was arrived at, designed to
retain parliamentary sovereignty, whilst strongly steering law towards Convention
compliance.
So the solicitors did not get their money.”
Does the UK always comply with the ECtHR: A case study - Prisoner Votes?
Article 3 of Protocol 1 (A3P1) to the European Convention on Human Rights (right to free
elections):
“The High Contracting Parties undertake to hold free elections at reasonable intervals
by secret ballot, under conditions which will ensure the free expression of the opinion
of the people in the choice of the legislature.”
The ECtHR has interpreted this as guaranteeing all citizens a right to vote.
Hirst v United Kingdom (No 2) (Application No 74025/01) – The UK withholds the right to vote
from every prisoner- it is a blanket ban. The Court was concerned about the arbitrary
approach by the UK. The right enshrined in A3P1 is NOT absolute and therefore the court will
allow a margin of appreciation. However, A3P1, which enshrines the individual’s capacity to
influence the composition of the law-making power, does not therefore exclude that
restrictions on electoral rights could be imposed on an individual who has, for example,
seriously abused a public position or whose conduct threatened to undermine the rule of law
or democratic foundations. The severe measure of disenfranchisement is discernible and
there is not a sufficient link between the sanction (no right to vote) and the conduct and
circumstances of the individual concerned (severity of the crime or release date). As in other
contexts, an independent court, applying an adversarial procedure, provides a strong
safeguard against arbitrariness. As such the ECtHR ruled that the ban was unlawful and urged
the UK government to draw up new legislation that would comply with the A3P1 right. The
UK Government has repeatedly refused to do this. Jack Straw in his autobiography, Last Man
Standing, 2012, put it this way:
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“In my last ministerial post as Justice Secretary I’d made many decisions about many
things; but I’d also spent three years ensuring that the government took no decision
in response to a judgment by the European Court of Human Rights that the UK’s ban
on convicted prisoners being able to vote was unlawful. I’d kicked the issue into touch,
first with one inconclusive public consultation, then with a second.”
Would a Bill of Rights be threat human rights protections as we know them?
Human Rights Act 1998 makes the ECHR part of UK law. While the Convention had been part
of the international law that is recognised by the UK, it had never been integrated as part of
our domestic law. However, it does not provide a Bill of Rights in the sense that countries with
codified constitutions have Bills of Rights which are very difficult to amend or remove because
they are protected by special procedures. No such procedures protect the HRA so it can be
amended or repealed (removed from the statute book) just as easily – in a literal and practical
sense - as any other law. A Bill of Rights is the supreme authority on human rights in a country
and is entrenched, which means that it cannot be changed by legislation and amounts to a
significant limitation on the powers of the elected legislature. The Human Rights Act and the
European Convention are not entrenched in the UK, though there is some debate as to how
exactly the Human Rights Act could be repealed. Lord Justice Laws stated in Thoburn v
Sunderland City Council (2002) that the Human Rights Act was a constitutional Act which could
only be repealed by express provisions of an Act of Parliament (and not by implication).That
being said however, noting more has come of this judicial comment and as such it does not
necessarily carry much weight. In all likelihood the question of whether to replace the HRA
with a Bill of Rights will be politicised just as the use of the HRA has become politicised. The
question may be would a Bill of Rights protect citizens better, or in the current political climate,
would it afford the writers of a Bill of Rights the opportunity to remove certain rights that are
too ‘inconvenient’? Maybe, it just all depends on who is writing it?! Read: Dominic Grieve QC
MP, ‘Can a Bill of Rights do better than the Human Rights Act?’P.L. 2016, Apr, 223-234
Is the Human Rights Act effective? Try to answer this question yourself by engaging in
research on Westlaw and LexisNexis. Search for terms like ‘effectiveness of the HRA’
‘effectiveness of the ECHR’ ‘enforcement of convention rights’ etc.
SEMINAR 6: ISSUES WITHIN THE LEGAL PROFESSION – a research project
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RESEARCH to find answers to the following questions:
1. Why does the UK distinguish between solicitor and barrister?
2. What are the main criticisms of the new qualifying exam to become a solicitor?
3. What are some criticisms of the SRA and how it regulates solicitors?
4. How many law centres are there in the UK and how many did there used to be?
5. What types of cases are taken on by corporate firms in a pro bono capacity?
6. Which issues does the pro bono practice throw up?
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LECTURE 7: ACCESS TO JUSTICE AND PAYING FOR LEGAL REPRESENTATION
Objectives
To understand the various ways in which an individual can pay for legal representation
To acknowledge the principle of legal aid and recognise the effect of the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 (LASPO)
To critique CFAs and the impact of the legal aid cuts
Essential reading:
Chapter 15 ‘Paying for legal services’ in Elliott and Quinn
Chapter 17 ‘The Funding of Legal Services’ in Slapper and Kelly
Chapter 10 ‘Funding legal services’ in Martin Partington
Additional reading:
Hazel Genn, ‘Do-it-yourself law: access to justice and the challenge of self-representation’
C.J.Q. 2013, 32(4), 411-444
The Law Society, LASPO 4 years on: Law Society review, June 2017
www.lawsociety.org.uk/support-services/research-trends/laspo-4-years-on/
Amnesty International, Cuts that hurt: the impact of the legal aid cuts in England on access to
justice, 11 October 2016, Index number: EUR 45/4936/2016
www.amnesty.org/en/documents/eur45/4936/2016/en/
The Bach Commission interim report, November 2016 www.fabians.org.uk/wp-
content/uploads/2016/11/Access-to-Justice_final_web.pdf
Owen Boycott, ‘Legal aid cuts 'may have stopped Grenfell tenants pursuing safety concerns’',
The Guardian, 29 June 2017 accessed www.theguardian.com/uk-news/2017/jun/29/legal-
aid-cuts-may-have-stopped-grenfell-tenants-pursing-safety-concerns
Palmer, E, Cornford, T, Marique, Y and Guinchard, A. Access to Justice: Beyond the Policies
and Politics of Austerity (2016) Hart, London
Introduction
WEEK 8
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Every citizen is required to abide by the law so it follows that every citizen should have access
to the courts, access to justice. Just as every citizen is equally bound by the law, so should
every citizen be equally served and protected by the law. Of course, the reality is different. As
a satirical cartoon stated on its illustration of access to justice in the UK: “You have a pretty
good case, Mr Pitkin. How much justice can you afford?” It boils down to costs. Justice costs
money – but can a wealthy democracy justify not investing in its legal system to ensure that
every citizen does have access to justice? Leaving that question aside for you to think about,
costs are amongst the many reasons why there is an unmet legal need in the UK. Other
reasons include the necessity to be aware that there is a legal issue and that the individual
can resolve or address it by seeking legal advice or legal representation. Furthermore, even
the geographical location of the individual can have an impact on whether they can seek legal
assistance. Since the legal aid cuts what is known as ‘advice deserts’ have appeared – where
once there were law centres or law firms giving specialist advice, now there is no-one.
Ultimately, however, without funding there is no legal system:
“If one views law and equity as the flesh and bones of the law, litigation funding would
probably be the lifeblood that nourishes them. This stream of lifeblood has been
running through the English system and those that are closely mirrored on it for
centuries. Such systems have however constantly suffered from a condition known as
the "English disease of costs". The chief symptoms of this disease include costs being
"unpredictable, disproportionate and unlimited." These in turn lead to costs which act
as a barrier to justice. It is not that English law failed to pay heed to the law of costs.
Rather, all the time and effort spent on the law of costs has failed to cure the disease:
it has in fact merely served as a constant reminder of the seriousness of the ailment.
Public outcry against the obscene legal costs of this system has echoed from the early
days of the common law to the present day. There has been no lack of reform
attempts. In fact, if one cares to look through the pages of history, reforms and
proposals promising to bring down the obscene costs in English law have come and
gone. Some achieve minor victories, while the vast majority have, on the whole, been
utter failures.
Against this historical backdrop, with the coming into force of the relevant provisions
of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the Jackson
reforms are the latest contender in a thousand-year English war against costs.” (Added
emphasis)
Source: WinkySo, ‘A brief history of the law of costs - lessons for the Jackson reforms and beyond’, Civil
Justice Quarterly, C.J.Q. 2013, 32(3), 333-348
There are numerous ways to fund a civil legal action.
Legal aid
Conditional Fee Agreement (CFA)
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Litigation funding agreements (a third party pays the solicitor fees like a trade union)
Damages-based agreements ‘contingency fee agreements’ LASPO introduced and
allows lawyers to take % of damages
Qualified one way costs shifting – in PI only, caps amount the claimant will have to pay
the defendant.
Legal expenses insurance - Before the event legal insurance – as part of your motor or
contents insurance will cover certain types of litigation.
Private funding
This unit will focus on legal aid, CFAs and contingency fees.
Access to Justice
Access to justice means that everyone can access legal services, no matter their personal
means. It’s about equality of arms which is why access to justice is inextricably linked to legal
aid.
“This is an offence against public justice, as it keeps alive strife and contention, and perverts
the remedial process of law into an engine of oppression.”
This was what William Blackstone said about maintenance by financial support or other
assistance in an ongoing legal suit in 1765.40
Fast forward to 1949 and the British state establishes public funding by way of The Legal Aid
and Advice Act 1949 which extended the welfare state so that those unable to pay for a
solicitor were able to access free legal help. Its precursor was the Poor Prisoners Defence Act
1930 which introduced criminal legal aid for appearances in magistrates’ courts. Described by
Lord Beecham as "one of the great pillars of the post war welfare state", its scope was
substantially reduced following the contested Legal Aid, Sentencing and Punishment of
Offenders Act 2012. British society has moved on since Blackstone’s comments but it is still
worth asking, why should the state provide such assistance? Surely, only those who can afford
to bring legal proceedings should be able to do so? After all, our legal system is the most
expensive in the world. THINK though these questions and statements whilst preparing for
the lecture. Is that completely accurate? What is the reasoning for providing legal aid?
Most current conversations around funding legal services are concerned about the limited
access to public funding available. This restriction prevents thousands of individuals from
being able to access legal advice, assistance and representation. Ensuring there is access to
justice is considered one of the most fundamental tenants of the legal system and access to
justice is about being able to receive expert advice and representation. Currently, there is an
unmet need for legal services in the UK which is largely as a consequence of the cuts to legal
aid introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).
40 Blackstone, Commentaries on the Law of England (1765)
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However, this unmet legal need existed before LASPO as documented by the Legal Services
Commission in 2004. The impact of unmet legal need has also been well-documented, take
the example of a family living in temporary accommodation being threatened with immediate
eviction and at risk of homelessness or the individual suffering from personal injury as a result
of someone else’s negligence and as a consequence they cannot work and are at risk of falling
into debt.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)
Ordinary people are finding it more difficult to access justice because of issues including legal
aid cuts, court closures and increased court fees, as well as changes to the rules regarding the
legal costs a client can recover. Organizations speaking out about concerns regarding access
to justice include the law society, charities like Access to Justice Foundation, Legal Action
Group and the Justice Gap. Britain’s most senior judge, Lord Thomas of Cwmgiedd, wrote at
the start of this year (2016) that “our justice system has become unaffordable to most”. We
must critically examine what impact this has on the health of the democracy in England and
Wales and the impact this has on the ordinary person’s capacity to hold the powerful to
account, let alone find a remedy for their legal problems.
LASPO was introduced by the then Lord Chancellor, Chris Grayling. Recall from previous units
that part of the Lord Chancellor’s role is to respect the rule of law, defend the independence
of the judiciary and “ensure the provision of resources for the efficient and effective support
of the courts”.41
A person’s entitlement to legal aid is determined by:
1. The merits of the claim including the likelihood of success and benefit to the client
as covered in full in Civil Legal Aid (Merits Criteria) Regulations 2013
2. The individual’s personal means - gross income cannot be more than £31,884 a year
(£2,657 a month) and disposable monthly income cannot be more than £733
3. The type of case –Part 2 Schedule 1 LASPO specifies which types of cases are in
scope and which types of cases are outside of scope such as family law (e.g. financial
support after marriage and disputes over children); debt problems (e.gif you are being
taken to court over debts); domestic violence; social security benefits; housing
(particularly evictions); employment; asylum and immigration; adoption disputes;
mental health; and personal injury (if the injury results from assault or abuse).42
41 The Lord Chancellor's oath, inserted into the Promissory Oaths Act 1868 by section 17(2) of the Constitutional Reform Act, is: "I, do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God." 42 See http://www.lawsociety.org.uk/for-the-public/paying-for-legal-services/legal-aid/#two
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Civil legal aid is available for certain civil actions in these categories, actions against the police,
clinical negligence, community care, consumer and general contract, debt, education,
employment, family, housing, immigration and asylum, mental health, public law and welfare
benefits.
The types of cases automatically excluded from qualifying for legal aid include legal services
provided in relation:
to personal injury or death
tort in respect of negligence
tort in respect of assault, battery or false imprisonment
tort in respect of trespass to goods or trespass to land
in relation to damage to property
making of wills
immigration except asylum
There are different types of legal aid certificates you can apply for, for different types of legal
assistance:
Legal Help – a solicitor can advise an individual and negotiate with the other party but cannot
represent at court.
Legal Representation – the solicitor can prepare your case and represent you in court or
arrange for a barrister to represent you in court.
Emergency funding – if the matter is urgent a maximum amount can be granted on an
expedited basis.
Exception case funding application
If a claimant does not satisfy the above 3-stage criteria set out above but their legal issue
engages their ECHR or any rights of the individual to the provision of legal services that are
enforceable EU rights, then an application for exception case funding (ECF) can be made. To
qualify for ECF, you must meet the ECF criteria as set out in LASPO and described in the Lord
Chancellor’s funding guidance. In assessing an application for ECF it must be considered
whether a failure to do so would be a breach of Convention rights or enforceable EU rights by
reference to the principles identified in this Guidance and in any relevant case law.43 The
applicant must also qualify for legal aid under the financial eligibility criteria and the merits
43R (Gudaviciene) v Director of Legal Aid Casework [2014] EWCA Civ 1622 at §31 and I.S. (by his litigation friend the Official Solicitor) v Director of Legal Aid Casework and the Lord Chancellor [2015] EWHC 1965 (Admin) a challenge to the refusal to grant Exceptional Case Funding to an incapacitated individual, and challenge the way in which the Exceptional Case Funding scheme was operating.
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criteria – i.e. the ECF replaces the scope element of the above three-stage criteria for legal
aid.
Legal action against LASPO and restrictions of access to justice
Since LASPO’s introduction by the Conservative-Liberal Democrat coalition government,
several legal challenges have been brought against it. Most of these challenges have been
successful which highlights the legal weakness of LASPO, the necessity of challenging such
laws and policies and the value of an independent judiciary able and willing to judge the
unlawfulness of government laws. As you will learn in public law primary legislation cannot
be challenged but secondary legislation can be.
These legal challenges were to the secondary legislation underpinning LAPSO which is primary
legislation.
12 months’ UK residence test requirement– R (on the application of The Public Law
Project) (Appellant) v Lord Chancellor (Respondent) [2016] UKSC 39
Funding for inquests - R (On the Application Of Letts) v The Lord Chancellor & Anon
[2015] EWHC 402 (Admin)
The rights of women - The Queen (on the application of rights of women) v Lord
Chancellor and Secretary of State for Justice [2016] EWCA Civ 91
Exception case funding - R (Gudaviciene) v Director of Legal Aid Casework [2014] EWCA
Civ 1622 and I.S. (by his litigation friend the Official Solicitor) v Director of Legal Aid
Casework and the Lord Chancellor [2015] EWHC 1965 (Admin)
Legal aid for prisoners - R (Howard League for Penal Reform and The Prisoners’ Advice
Service) v The Lord Chancellor [2017] EWCA Civ 244
LASPO is currently under review by the Bach Commission on Access to Justice that published
its interim report, ‘The Crisis in the Justice System in England and Wales’ on 7 December 2016.
The final report will be published at some point in 2017.
The interim report identified 6 key things wrong with the justice system:
1. Fewer people can access financial support for a legal case
2. Exceptional case funding has failed to deliver for those in need
3. Public legal education and legal advice are inadequate and disjointed
4. High court and tribunal fees are preventing people pursuing legal claims
5. Bureaucracy in the Legal Aid is costly and time-consuming
6. Out of date technologies keep the justice system wedded to the past
As such, the commission plans to make the following recommendations:
1. Establish a minimum standard for access to justice in Britain
2. Reform legal aid
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3. Transform legal education for the public
4. Increase the availability of legal advice
5. Increase technological innovation
There is often a complex interconnection between legal aid funding, criminal law, civil law
and different procedures (such as inquests, public inquiries, criminal cases etc). The
Hillsborough tragedy is an example of how complex and insufficient the law and legal
processes can be in getting to the truth and securing justice and accountability. It also shows
the necessity of legal aid. We will examine this case further in lectures.
Note, a link between human rights and EU rights and legal aid which can be summarised as;
access to justice entails a right of equal access to legal assistance for every citizen. Or to put
it another way without access to justice, what use are rights in the first place?
Problems with the legal aid system
- The rise in litigants in persons
- Access to justice
- Public defenders
- Small businesses
- Impact on accountability
- Poorer standards of work
- Unfair trials
Conditional Fee Arrangements (CFA)
“Access to the civil courts is open only to the very poor and the very rich…By extending
no-win no-fee arrangements justice becomes available to all.”44
A CFA is a no win, no fee contractual agreement between a private client and a solicitor which
includes agreements under which the client’s costs liability are capped or discounted costs in
any event with full costs being charged in the event that the claimant wins. If the client is
successful most of the costs can be recovered from the opponent. If the client is unsuccessful
the opponent is only liable for the clients legal costs to the limited extent agreed, as long the
client keeps to the terms of our agreement. So the client has to uphold the terms of the
contract and if a client does not then the contract terms have been breached which could
mean that the costs caps or other agreements made to assist the client do not apply.
44 Hansard 9 Dec 1997 (171209-10) http://www.publications.parliament.uk/pa/ld199798/ldhansrd/vo971209/text/71209-10.htm
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The concept of the CFA was introduced by the conservatives in 1990 in the Courts and Legal
Services Act. A CFA is defined in s58 Courts and Legal Services Act 1990 as amended by s27
(1) Access to Justice Act 1999 as:
“an agreement…which provides for…fees and expenses, or any part of them, to be
payable only in specified circumstances”.
Crucially the access to justice act set CFAs apart because it became principle that a case would
not be provided public funding if the case was appropriate where alternative funding is
available like CFAs. CFAs are NOT available in criminal or family proceedings due to specific
exclusion contained in paragraph 58A of the Courts and Legal Services Act 1990 as amended
by the Access to Justice Act 1999:
“58A. (1) The proceedings which cannot be the subject of an enforceable conditional
fee agreement are:
(a) criminal proceedings, apart from proceedings under section 82 of the
Environmental Protection Act 1990; and
(b) family proceedings”
Since 1990 there have been numerous additional pieces of legislation on CFAs including the
Conditional Fees Agreements Order and Regulations 1995, Access to Justice Act 1999 and
more recently sections 44, 46 and 48 Legal Aid, Sentencing and Punishment of Offenders Act
2012, articles 1-6 Conditional Fee Agreements Order 2013 and part 48.2 Civil Procedure Rules.
Conditional fees removed the hazard of the claimant having to pay their own solicitor if they
lose but the risk of paying the other party's fees remained. In August 1995, "after the event"
(ATE) legal insurance came on to the market, giving unsuccessful litigants cover against the
other side's legal costs and even against their own solicitor's out-of-pocket expenses. In 1999
the Access to Justice Act increased the incentive to use CFAs because it enabled judges to
decide who should cover the costs – most importantly, a judge could order for the losing side
to pay the successful party’s legal costs associated with the CFA. As legal aid for personal
injury was abolished, CFAs were the only option – hence all of the TV adverts of people
slipping on banana skins urged to call the nearest law firm for compensation. However, for
every case a law firm wins, they lose one – and get nothing. This risk though could be balanced
out with the success fee which enables solicitors charge a success fee which is double the
basic fee. At the time the Law Society recommended that the success fee should be not more
than 25% of a client's total compensation but this was not implemented and the cap remains
at 100% of the normal fee.
As part of the contractual agreement, the client tends to agree to pay a success fee to the
solicitor if they are successful in their claim – but this would be paid for by the unsuccessful
party. If successful, the lawyer can charge a success fee on top of the normal fees to
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compensate the solicitor for the risk they took in taking the case on the basis of a CFA. The
success fee is calculated according to a percentage of the normal fees and the level at which
the success fee is set reflects the risk involved. Regulations provide that the ‘uplift’ of the
success fee should be no more than 100% of the normal fee (or 25% in personal injury
cases).45 The law initially stated that the success fee was not recoverable from losing party.
But, section 27, Access to Justice Act 1999 amended the Courts and Legal Services Act 1990
to allow recovery from losing party. With a few exceptions, success fees and ATE premiums
are now be paid by the client, not the defendant – meaning that if a solicitors firm charges a
success fee that cost has to come from the claimants own pocket, or the compensation
awarded as a result of their successful claim. However, there have been reports that this can
severely disadvantage the claimant and act as a lucrative provision for the lawyers. For
example, the Society for Advanced Legal Studies warned in 2001 that the shift of greater
financial risk into lawyers and insurers could result in law firms’ cherry-picking the easiest or
most winnable cases for CFA’s thus rejecting the more difficult clients and cases. 46
Furthermore, the Citizens Advice Bureau noted that people with meritorious but low value
cases were left without a remedy.47On the other hand CFAs enabled credit crunch victims
who had been given negligent financial advice by banks bring claims which is a reminder of
the value of CFA which provide a flexible and viable route for people seeking legal remedies
but whom fall in the financial middle ground of not being extremely wealthy but are on a high
enough income to not be eligible for legal aid.48
CFAs are the obvious and most common alternative to legal aid funding even more so that
now many civil claims are excluded. Critics of the pre-April 2013 (when the new requirements
which apply to CFAs came into force) system argued that as the ‘no win, no fee’ arrangement
was riskless to the claimant, it indirectly spawned a ‘have a go’ culture in Britain. In turn this
was believed to have caused a rise in fraudulent claims – particularly in the arena of whiplash
following a road traffic accident. As the claimant was never responsible for paying solicitor
fees, their choice in legal representation was based on lawyer expertise, experience and
reputation. Cost didn’t come into it and so this allegedly led some solicitors to charge inflated
rates – which the claimant had no qualms with. And why would they? After all, the insurer
was always paying the bill. However, insurers were believed to be offsetting these legal fee
payouts by increasing yearly premiums for motor insurance, in the context of road traffic
accidents. And this is where the press picked up the story – blaming a wildfire of
extortionately high insurance quotes, on sparks ignited by ‘greedy’ solicitors. Engaging in a
45 Article 2 of the Conditional Fee Arrangement Order 213 46 The Ethics of Conditional Fee Arrangements, January 2001, http://sas- space.sas.ac.uk/4292/1/SALS_Ethics_of_Conditional_Fee_Arrangements.pdf 47 https://www.citizensadvice.org.uk/about-us/policy/policy-research-topics/justice-policy- research/access-to-justice-policy-research-and-consultation-responses/access-to-justice-consultation- responses/the-courts-small-claims-inquiry/ 48 Peter Smith, Professional Negligence Special Report: Event horizon, The Lawyer, 16 February 2009 https://www.thelawyer.com/issues/16-february-2009/professional-negligence-special-report-event- horizon/
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brief internet search may lead to the tens upon tens of newspaper articles with headlines
such “Lawyers use NHS as £100m cash cow” and “Lawyers get more than victims in NHS
compensation scandal” – why are such headlines run by these newspapers? The stories do
seem scandalous and hugely unfair for the victim. Remember though that newspapers have
a vested interest in reducing the costs associated with civil claims especially by way for CFAs
as that is the way in which many newspapers are sued for defamation! Whether or not there
is or was a compensation culture should not be assessed on perceptions only as these can be
manipulated by media stories created due to vested interests. Instead, empirical research and
statistics help us assess this. Consider this:
- The report by the Citizen’s Advice Bureau No Win, No Fee, No Chance (Dec 2004) found
that only 31% of people entitled to claim compensation actually do so
- The Institute of Actuaries, Working Party The Cost of a Compensation Culture
(December 2002) found that the estimated total compensation payout in 2001 is £10
billion, which amounts to 1% of the GDP. Of this 30% is swallowed up by legal costs
and administration expenses. This has increased at 15% per year recently; and is set
to continue rising at 15% per year.
- The Better Regulation Task Force, Better Routes to Redress (2004) found that the
majority of compensation claims are for small claims meaning they have a value of
£10,000 or less indicating that many claims are for more minor injuries.
- Trade Union Congress Figures (2005) NLJ 816 found that in the workplace, less than
1/10 people made ill or injured by their work receive any compensation with pay-outs
being an average of£10,000 each, with a half of this going on legal fees and costs.
- To further monitor compensation statistics and establish whether the figures have
been steady despite hysteria around a compensation culture or whether the figures
do indicate such a phenomenon go to the Government’s Compensation Recovery Unit:
https://www.gov.uk/government/collections/cru
LASPO was brought in to change the use of CFAs by ensuring that now the success fee is
always paid by the instructing client – even if they are successful in the litigation - and it is no
longer recoverable from the losing party except for in privacy, defamation and insolvency
cases. In personal injury cases the success fee has been capped at 25% of the lawyer’s usual
fee and 100% for all other cases. Contingency arrangements were introduced by LASPO and
are likely to replace CFAs somewhat.
Contingency fees
Under a contingency fee, also known as damages-based agreements, the lawyer receives a
portion of the instructing client’s compensation award. As such the lawyer is contingent on
their client being successful! This funding mechanism was recommended by Lord Justice
Jackson in his 2010 report following his review of civil litigation costs. Similarly to CFAs the
maximum amount a lawyer can receive is 25% of the instructing client’s personal injury
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compensation award, 35% in employment cases and 50% in all other cases. Note that if the
defendant loses they pay the claimants costs but if the claimant loses each side has to cover
their own costs – the defendant can no longer recover its costs against an unsuccessful
claimant. Does that seem fair? The rationale is that ATE is no longer necessary. There are also
no associated cost to the state with this arrangement and it encourages solicitors to perform
better as there is a financial incentive in winning (or carefully selecting which cases to take on
= cheery-picking is still an access to justice issue as not only the strongest cases are successful
and not all of the strongest cases are successful in the end).
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SEMINAR 7: PROGRESS REVIEW
This seminar will reflect on your progress – it is essential you attend. Think beforehand of
any issues you have encountered and any feedback, positive or critical, you’d like to give
about the course so far.
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LECTURE 8: THE FAMILY COURTS AND PROCESS
Objectives
Having successfully completed this unit you should be able to:
Critically consider the system relating to family law
Understand the role and function of the family courts
Recognise the difficulties individuals using the system.
Evaluate recent reforms
To assess the alternative means of resolving family law disputes.
Essential reading:
Chapter 8 ‘Family courts and process’ Slapper and Kelly
Chapter 7 ‘The family justice system’ in Martin Partington
Additional reading:
Alison Bull and Sara Hanna, ‘Putting your children first’ P.C.B. 2016, 6, 253-259
Introduction
There is a distinction between private cases (such as divorce) and cases in which the state
intervenes, known as public family law cases, such as taking custody of a child.
The principle functions of the law that relate to the family include:
Defining the rules for the validity of marriage
Setting the basis on which martial relationships may be brought to an end through
divorce or nullity
Dealing with the consequences of divorce and other relationships breakdown, in
particular questions of responsibility for children, financial support, and the division
of property rights
Providing a framework for the protection of children, including care and adoption
Creating a framework for dealing with issues of domestic violence
Recently, the family court system has undergone major reforms with moves to make them
more open, unify the family court system and limit the availability of legal aid.
WEEK 9
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Private family law mediation and litigation includes divorce, parental responsibility, and
financial contributions. Private family law cases are brought by individuals, usually family
members in the following circumstances:
• Divorce proceedings
• Parental responsibility orders
• Special guardianship orders
• Section 8 of the Children Act 1989 orders
• Prohibited steps orders
For more information about a key element of private family law, arbitration, read the Family
Law Arbitration Children Scheme Alison Bull and Sara Hanna, ‘Putting your children first’ P.C.B.
2016, 6, 253-259.
Public family law cases are brought by the local authority usually after a case file has been
compiled by a social worker. The types of cases that the local authority would bring to court
include child protection orders to remove the child from the care of its parents or guardians
for fostering and/or adoption. Only in extreme circumstances should the state be asking the
court to allow it to take a child into care. This qualifies as a state intervention into family life.
The circumstances usually include concerns about actual, or the risk of, child neglect or abuse.
It is important to note that children cannot be taken into care without the authority of the
court.
In children at risk cases, there can be a criminal case too. For example, if there is child abuse
present then a crime has or is being committed. Criminal cases can feed into the family law
cases in terms of evidence and usually the family law case will proceed first to urgently
remove the child from risk with the criminal case following up behind the family law
proceedings. Often, the interaction between the civil family law and the criminal case can be
complex – sometimes the criminal case can assist any ongoing family law proceedings.
Sometimes, even if a criminal charge was not brought the civil family law proceedings to
remove the child from risk can succeed - recall the difference in burden of proof: beyond
reasonable doubt v on the balance of probabilities.
State intervention
Consider, the all to frequent cases of a young child being tortured, beaten and killed by their
parents or other guardians. The public cries out: how did this happen? There must have been
warning signs to prevent this? The state should have protected that child from his/her abuses!
The public may also cry out: pesky social workers are always interfering! On what basis are
they asking me/him/her/they/us all of these questions about our own/that child?!
Furthermore, a child removed can be exposed to institutionalised abuse, neglect or a loveless
up-bringing. At the age of 18 they are no longer a child of the state and may have to face
destitution, homelessness or the struggle to financially support themselves. They may be left
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to deal with the emotional or psychological effects of being in care. Many children go into
care and do no experience these issues but for the sake of argument, let’s consider these
scenarios for they all beg the question – on what basis can and should the state intervene into
the life of a family? There is a big debate on this issue – research it!
There are different levels of state intervention including non-statutory intervention like family
support workers which tends to be less intrusive than statutory state intervention such as
applications for child in need (s.17 Children’s Act 1989), then care proceedings, then court. If
there is a severe risk then a social worker can apply for a court order granting emergency
removal from which ever family situation may harm the child.
Adoption is a method of last resort when nothing else has worked or is possible. In 2013 there
were 3,980 children adopted but in 2015 and 2016 there has been a decrease. Some think it
is because of a judgment in a case Re B-S [2013] EWCA Civ 1146 where the social worker was
criticised by the judge for not properly pursuing alternative adoption arrangements so that
the child could be kept in the family. Social workers were very confused by the scope and
application of this judgment and how it impacted on their interpretation of the relevant
statutory regime. Therefore, less adoption orders were sought from the courts in the
immediate period following the judgment. This led the President of the Family Division and
Head of Family Justice (and deciding judge in the case of Re B-S) Sir James Munby to issue a
practice direction to explain the effect of the judgment which was that it did not change the
law and took the opportunity to reiterate this in a following judgment, Re R (A Child) [2014]
EWCA Civ 1625. Essentially, that the test from Re B-S, that adoption without parental consent
is only permissible where ‘nothing else will do’, remains despite further cases on adoption. As
the law tells us in Re B (A Child) [2013] UKSC 33 and the principle in both the Children Act
1989 (see below) and the Adoption and Children Act 2002 that the courts are to adopt the
least interventionist approach when dealing with the upbringing of children. The severance
of the family in any form must be the last viable option for the court, especially in the matter
of adoption without the parents’ consent.
There has been a growing recognition over the last 20 years that the law must protect the
child and see the child as a separate entity from its parents and acknowledge that the child
has its own individual rights. The paramount principle and the rights of the child embody this
recognition. However, the executive, whether acting through the local authority, the home
office or the social worker, does not always adequately factor these principles and rights into
their decision making.
The Paramount Principle
Children Act 1989:
1(1) When a court determines any question with respect to:
(a) the upbringing of a child; or
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(b) the administration of a child’s property or the application of any income
arising from it,
The child’s welfare shall be the court’s paramount consideration.
The paramount principle is that the child's best interest and welfare is the first and paramount
consideration. The Children Act 1989 is the most important piece of child protection
legislation in the UK. It outlines the considerations a Judge must take into account when
making orders around care and protection of children. There are general Principles under the
Children Act 1989, Section 1 of the Act contains 3 general principles:
• The welfare of the child is paramount
• Delay is likely to prejudice the welfare of the child
• The court shall not make an order unless to do so would be better for the child than
making no order.
Children and families Act 2014
o gives greater protection to vulnerable children,
o better support for children whose parents are separating,
o a new system to help children with special educational needs and disabilities
o help for parents to balance work and family life
o
The Rights of the Child
• Universal Declaration of Human Rights 1948, Art. 16(3): “The family is the natural and
fundamental group unit of society and is entitled to protection by society and the
State.”
• ECHR 1950, Articles 8 and 12 (see unit 6)
• United Nations Convention on the Rights of the Child 1989
Case study: Article 12 ECHR, the right to marry
B & L v the United Kingdom [2005]
English law prevented a parent-in-law from marrying their child-in-law unless both had
reached the age of 21 and both their respective spouses had died.
B was L’s father-in-law, and they wished to marry. L’s son treated his grandfather, B, as ‘Dad’.
The court accepted the Government’s argument that the law had the valid aim of protecting
the family and any children of the couple. But it held that their right to marry had been
violated. The law was based primarily on tradition, and there was no legal reason why a couple
in this situation could not have a relationship. There had also been several cases where
couples in the same circumstances had obtained exemptions by personal Acts of Parliament
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(laws for the benefit of individuals). This showed that the objections to such marriages were
not absolute.
Legal aid and the family courts
Broadly, cuts by the Legal Aid, Sentencing and Punishment of Offenders Act which came into
effect in April 2013 have removed from eligibility (scope) all family law proceedings except:
Domestic violence cases concerning a person divorcing/separating from an abusive
partner;
Cases concerning a child at risk of abuse by a partner of the applicant
o Requirement: evidence of abuse to be produced prior to the granting of legal
aid
Exceptional Cases Funding Scheme allows for legal aid where failure to grant it would
result in breach of claimant’s ECHRrights.
Specifically legal aid is available for the following procedures:
family mediation to resolve disputes about children and finance on a relationship
breakdown
applications for a non-molestation order or occupation order
applications for a restraining order under the Protection from Harassment Act 1997
applications for a Child Arrangements Order, Prohibited Steps Order or Specific Issue
Order if an individual or their child have suffered or are at risk of violence or abuse
from the other party in the last 5 years. Note, after attempts to remove this
requirement were successful49 the government announced that it will remove the 5
year time limit so this is subject to change. The new rules will also mean that victims
who give pre-recorded video testimony of their ordeals in a criminal case can be
presented for use as evidence in the family courts. Before they had to deliver a fresh
account.
representation for children who are made party to private family law proceedings
applications for forced marriage protection orders
proceedings brought by the local authority for a care order or supervision order
cases where a child has been or is about to be taken out of the UK without your
consent
applications for post-adoption contact under section 51A Adoption and Children Act
2002 where there is evidence of domestic violence or child abuse or for a child who is
party to these proceedings
49 In Rights of Women v The Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 91, the court ruled that hat evidence requirements which have been operating to prevent survivors of domestic abuse
from getting legal aid for family cases are unlawful and that “Legal aid is one of the hallmarks of a civilised
society”.
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Impact of legal aid cuts
Unless individuals can demonstrate they are victims of domestic violence, courtroom
representation is no longer available under the LASPO Act 2012.
Advice “deserts”, areas where there are few agencies or solicitors able to give help,
have begun to emerge.
For poorer individuals who cannot afford a solicitor, the withdrawal of legal aid for
family courts has caused a surge in litigants in person, whose claims, if pursued, take
far longer to resolve, according to Resolution.
As many as 80% of all family law cases may now involve one party who is
unrepresented.
Litigant in person
A litigant in person is someone who has to represent themselves for the whole of the case or
engage legal advice as and when necessary. This is either because the person chooses to
represent themselves or they cannot afford legal representation and do not qualify for legal
aid.
The Ministry of Justice commissioned some research and the consequent report Litigants in
person in private family cases (2013) concluded that only a small minority were able to
represent themselves competently. Individuals without legal training, even if they are well-
educated, do not have the skills to deal with the huge volumes of paper produced by litigation,
do not know how to identify and succinctly explain to the court the most relevant and
authoritative body of law persuasively to help their own cause. They do not know or
understand the complex court proceedings associated with litigation.
There have been numerous judgments where the court has took the opportunity to make a
point about the difficulties faced by litigants in persons which then actually falls upon the
court’s shoulders – therefore no one any time or money! In Feltham v Commissioners for HM
Revenue and Customs (2011) the tax tribunal identified a legal argument that supported the
case of the litigant in person but had not been presented to the court. The tribunal considered
this issue on its own initiative, observing:
“Very often, particularly with litigants in person, the law is not understood and the
arguments which need to be pursued are either not made at all or are confused.
Flexibility and justice required the tribunal to deal with arguments omitted from the
grounds of appeal and those patent or latent in the appeal.”
The Civil Justice Council (2011) has produced a report looking at how the civil justice system
can adapt to cope with litigants in person. Critically, however, concluded that, there will still
be a denial of justice.
McKenzie Friends
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McKenzie friends assist self-represented litigants and the role came about following the case
of McKenzie v McKenzie [1970] 3 WLR 472 after which the term was named after – in that
case the McKenzie friend was a lay advisor. A McKenzie friend is NOT legally representing the
litigant as a lawyer or barrister would, as they are representing themselves, but they do
provide moral support, take notes in court, help with the case papers and give advice on any
aspect of the conduct of the case. A self-representing litigant may get sporadic advice of
specific elements of the proceedings rather than constant legal representation which usually
happens and is more costly for people not entitled to legal aid. Now, McKenzie friends, aren’t
just friends, they are often sole traders without legal qualifications or insurance - some are
larger businesses. This has led the Legal Aid Agency to suggest that those involved should be
required to invest in safeguards such as an accreditation scheme with a trade association and
insurance. They’re not free, or cheap, either! A typical hourly rate for a fee-charging McKenzie
friend is between £35 and £60 and day rates tended to be £150 and £200.The Legal Services
Consumer Panel (2014) noted that there are four types of McKenzie friends:
1. the family member or friend providing one-off assistance
2. the volunteer attached to an institution or charity
3. the fee-charging McKenzie friend offering support and advice, but not advocacy
4. the fee-charging McKenzie friend offering a wide range of services including advocacy
in court
Media reporting and the family courts
Due to the need to protect the identity of the children and perhaps the identity of vulnerable
individuals, there are often anonymised hearings and judgments where the parties may be
referred to as ‘X’. There are also clear restrictions on the ability of the press to report family
law cases. Only specific courts could be opened up to allow reporting of family matters. In
April 2009 all levels of the family courts were opened up but only to accredited members of
the media. Courts still able to restrict access to hearings and to what is reported if it is in the
best interest of the child. Why do you think it might it be in the best interests of the child to
restrict access?
The president of the family law division, Sir James Munby has advocated for greater
transparency within the family courts and he released draft practice guidance on
media reporting which was welcomed by the media.50 It recommends that decisions
of family courts should always be published unless there are compelling reasons not
to and some judgments should be published in anonymised form. The judgment has
to be published in public or authorised by the judge for publication and to do without
50 ‘Transparency in the family courts publication of judgments’, Practice Guidance, 16 January 2014, Sir James
Munby https://www.judiciary.gov.uk/wp-content/uploads/2014/01/transparency-in-the-family-courts-jan-2014-
1.pdf
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is contempt of court. Anonymity should not go beyond protecting the identity of the
parties.
Although more open courts are able to restrict reporting if in the interests of the child.
Concerns that the requirement that justice be open not being adhered to.
The family of children subject to social services legal action to remove them from the
care of the parents for instance, can go to the media to discuss the matter. The fact
the public does not have access to the evidence that informs the legal arguments
raises the question of whether the public would have a better understanding of the
court proceedings if they were open to the public. A balance needs to be achieved
between the public’s interest and the interests of the children in a case. This balance
has been highlighted where children have been taken into care by social services
following a suspicion of abuse and the family have claimed their innocence. While the
family are free to speak to the media and put their side of the case, the social services
have an obligation to respect the privacy of the children and fear the public are getting
a very one-sided perspective of the case. See below for an example of this.
Practice Guidance July 2013 presumption of publication includes:
o Cases brought by local authorities
o Orders relating to restraint of publication
o Recent issues of secrecy surrounding adults removed from their homes.
Case study: Ellie Butler
- Dec 2006 - Ellie Butler born
- Feb 2007 - Rushed to hospital with brain injuries indicating her having been shaken
- July 2007 - Interim care order made for Ellie to be taken away from Butler and Gray
- January 2008 - Initial family judge finds Butler had caused non-accidental injuries
- March 2009 - Butler convicted of causing grievous bodily harm at Croydon Crown
Court to Ellie and jailed for 18 months
- October 2009 - Butler released from prison on bail after he launches an appeal
- June 2010 - His conviction is quashed
- October 2012 - Mrs Justice Hogg makes court order exonerating Butler and Gray and
returning Ellie to their care
- November 2012 - Ellie returns to her parents with independent social workers
monitoring the situation
- March 2013 - Independent social workers cease contact with the family
- October 2013 - Ellie found dead. Butler is later charged with murder and Gray is
charged with cruelty and perverting the course of justice
- June 2016 - Butler is found guilty of murder and Gray of child cruelty. Both are jailed
Several issues are raised by this case – firstly, the standards for a criminal charge of GBH and
child abuse are different. There is an almost total lack of transparency in family courts: cases
are held in private, and witness evidence and judicial decisions are still, to all intents and
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purposes, secret. The intention is to safeguard individuals’ privacy at what is likely to be at
best an acutely embarrassing, and at worst, immensely painful time in their life. But a
shocking lack of public scrutiny and accountability has become the end result. The family
division has a reforming president, Sir James Munby. He is pushing at the barriers to
automatic publication of judgments in family courts, and he’s a powerful advocate of a
transparency that is long overdue.
Reform of the family courts
Consider the reforms brought about by the Ryder Report – have they gone far enough?
Provision of network of local family court centres.
Attempt to reduce delays
Cultivation of good practice.
Robust case management.
Facilitating the voice of the child
The role of ADR in family disputes
Mediation and Conciliation are the most common forms of ADR used in family cases
Used primarily in disputes relating to children
‘In court’ process moderated by Cafcass officers or a district judge.
Family Procedure Rules 2010: expectation that any applicant attends ‘Mediation
information and assessment meeting’ (MIAM)
Children and Families Act 2014: attendance at MIAM compulsory.
Legal Aid, Sentencing and Punishment of Offenders Act 2012: legal aid available to
financially eligible applicants for mediation and for legal assistance to support that
mediation.
Critical and upcoming issues in family law
- Not enough action to prevent inter-family abuse
- Watch out for the Domestic Violence and Abuse Bill which aims to “protect the victims
of domestic violence and abuse” by better protect victims and give the justice system
greater guidance and clarity about the devastating impact of domestic violence and
abuse on families. The main elements of the Bill will include:
o To establish a Domestic Violence and Abuse Commissioner, to stand up for
victims and survivors, raise public awareness, monitor the response of
statutory agencies and local authorities and hold the justice system to account
in tackling domestic abuse.
o To define domestic abuse in law to underpin all other measures in the Bill.
o To create a consolidated new domestic abuse civil prevention and protection
order regime.
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o To ensure that if abusive behaviour involves a child, then the court can hand
down a sentence that reflects the devastating life-long impact that abuse can
have on the child.
- Father’s continue to complain that the family legal system is stacked against men in
financial contributions and issues involving children. The difficulty in assessing these
complaints is that there is restricted reporting in family cases, as noted above, so it is
difficult to assess whether the family courts do treat men unfairly or if there are
justified reasons for restricted access to children, such as a history of violence.
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SEMINAR 8: THE ECtHR AND DOMESTIC LAW
READ: McDonald's Corporation v Steel & Morris [1997] EWHC QB 366 and Steel & Morris v
United Kingdom [2005] E.M.L.R 15 also known as the McLibel cases
Come prepared to discuss the case and answer these questions:
1. Why did McDonald’s sue Steel and Morris?
2. Which law(s) did McDonald’s rely on?
3. What was the costs order in the High Court?
4. Why were Steel and Morris litigants in persons?
5. On what basis did Steel and Morris bring proceedings against the UK before the ECtHR?
What were Steel and Morris’ main legal arguments before the ECtHR?
6. What did the ECtHR say about legal aid?
7. What decision did the ECtHR make and what was its reasoning?
8. Did the ECtHR award just satisfaction, for whom, and how much?
READ: “COMMENT (March 2005)
This judgment is yet another instance of the Strasbourg court leaping in to cure
perceived unfairness in a particular case whilst going against the grain of all its
previous rulings on the subject.
It is easy to see this litigation in terms of the plight of unfunded private individuals
versus a powerful corporate claimant, and indeed the Court frames it thus by noting
that the applicants did not choose to commence defamation proceedings, but acted
as defendants to protect their right to freedom of expression, a right accorded
considerable importance under the Convention. But the converse of this is also true:
McDonald's did not choose to have their commercial reputation compromised by the
distribution of leaflets containing a number of unfounded allegations about them, and
however insignificant the extent of the libel or the status of the libellers, they had the
right, as the Court acknowledged, to avail themselves of existing legal tools to defend
their reputation.
Once set rolling, the juggernaut of this libel trial, lasting nearly three years with its
cargo of paperwork and personnel, cost both the claimant corporation and the
treasury unimaginable sums. It is noteworthy that McDonalds paid for the defendants
to be supplied with daily transcripts of the proceedings (at a cost of £750 per day) until
the defendants' refusal to undertake not use this material for their own publicity
purposes led to the cessation of this particular subsidy.
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At the end of the trial, Bell J waived the usual rule that costs follow the event and did
not order the applicants to pay the costs of the action. This was in spite of the fact
that, as the Court of Appeal observed, the judge had shown the applicants
"considerable latitude" in the manner in which they presented their case and in
particular in the extent to which they were often permitted to cross-examine
witnesses as great length. The trial judge moreover assisted the applicants by
reformulating questions for witnesses and did not insist on the usual procedural
formalities, such as limiting the case to that pleaded; the Court of Appeal took note in
its judgment of the need to safeguard the applicants from their lack of legal skill,
conducted its own research to supplement the submissions made by the applicants
and allowed them to introduce the defence of fair comment at the appeal stage, even
though it had not been raised at first instance. The damages award was not enforced
against the applicants, although at the time of the petition to Strasbourg it did remain
enforceable by leave of the court.
For these reasons the Court of Appeal was of the view that the applicants had been
treated fairly by the system, which does not accord legal aid to any parties in libel
actions, rich or poor. The Strasbourg Court itself has found nothing repugnant to
human rights in the lack of public funding for bringing or defending a libel claim; see
Winer v. the United Kingdom, no. 10871/84, Commission decision of 10 July 1986,
Decisions and Reports 48, p. 154, at p. 171, Munro v. the United Kingdom, no.
10594/83, Commission decision of 14 July 1987; H.S. and D.M. v. the United Kingdom,
no. 21325/93, Commission decision of 5 May 1993; Stewart-Brady v. the United
Kingdom, nos. 27436/95 and 28406/95, Commission decision of 2 July 1997; McVicar
v. the United Kingdom, no. 46311/99, ECHR 2002; and A. v. the United Kingdom, no.
35373/97, ECHR 2002).
So why has the Court suddenly decided that these libel defendants should have been
legally aided? The Court sought to distinguish this case from that of McVicar, where it
refused the application because it did not think it was necessary to force a state to
grant legal aid to a defamation defendant in the position of that particular applicant,
a "a well-educated and experienced journalist". This is a highly questionable form of
discrimination, suggesting that the availability of public funding in civil actions, to be
compatible with due process rights under the Convention, have to be education-
tested rather than means-tested, so those individuals who happen to be articulate and
well educated have no claim under Article 6 to legal representation because they are
seen to be on some sort of equal footing with the other party's barristers and QCs.
The Court also seems to regard the question of eligibility for legal aid as dependent on
the applicants' willingness or tendency to impede the administration of the legal
process, suggesting that the very length of the "McLibel" proceedings "was, to a
certain extent, a testament to the applicants' lack of skill and experience." Again, it
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would be a strange and inequitable system that rewarded obdurate and forceful
litigants with free legal representation for fear that otherwise the trial process will be
unduly protracted, leaving compliant individuals who have been caught up in the legal
system unrepresented and at risk of huge costs orders against them.
Rosalind English, 1 Crown Office Row”
9. What is the author’s main argument here?
10. Do you agree and on what basis?
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LECTURE 9: THE JURY
Objectives
Having successfully completed this unit you should be able to:
Understand the historical importance placed on juries.
Be able to evaluate the issues facing juries today.
Critically consider the value of the jury.
Essential reading:
Chapter 14 ‘The jury’ in Slapper and Kelly
Chapter 12 ‘The jury’ in Elliott and Quinn
Additional reading:
Paul Fitzpatrick, ‘The British jury: an argument for the reconstruction of the little parliament’
C.S.L.R. 2010, 6(1), 1-15
Helena Kennedy, Just Law, (2004), Chatto (the chapter on juries)
Introduction
Today’s systems of jury say nothing whilst in the court room. They retire into a secluded room
where they will discuss amongst themselves the facts of the case.
Once the jury go into the private room, they will have no communication with anyone outside
of that room, and any technology that may interfere with the secrecy of the jury, such as
telephones, laptops, will be removed until a decision is made, or they retire for the night.
Up until 2003, anyone that was connected to the law in some way, such as a practising
solicitor or barrister, was not permitted to serve on Jury service, due to their in depth
knowledge of the law that may influence the decision which should be made on the facts of
the case alone.
The Juries Act 1974 governs jury by trial. The value of the jury is contested, as you will see.
A Classic view of juries
“Each jury is a little parliament. The jury sense is the parliamentary sense. I cannot
see the one dying and the other surviving. The first object of any tyrant in Whitehall
would be to make Parliament utterly subservient to his will; and the next to overthrow
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or diminish trial by jury, for no tyrant could afford to leave a subject’s freedom in the
hands of twelve of his countrymen. So that trial by jury is more than an instrument of
justice and more than one wheel of the constitution: it is the lamp that shows that
freedom lives. To many of us the boundaries between Whitehall and Westminster are
uncertain and confused. We are anxious that government should be strong and yet
fearful lest the gathering momentum of executive power crush all else that is in our
State. We look for some landmark that we may say that so long as it stands, we are
safe; and if it is threatened, we must resist.”- Lord Devlin
Why is the jury described as the lamp that shows that freedom lives? Bushel’s case 1670
Early jurors often faced physical ordeals in carrying out their duties. They could be starved
into submission by being locked up without food or heat until they returned a guilty verdict.
Jurors who refused to convict could be punished by having their land and possessions seized
by the court.
Bushel’s case marked a major turning point in such practices. Twelve would not convict
William Penn and William Mead, who were Quakers, of seditious assembly and were locked
up for two nights without food, water, heat, tobacco and access to a toilet. When this failed
to force them to change their not guilty verdict to one of guilty they were fined and sent to
prison until their fines had been paid. Four of the jurors led by Bushel refused to pay the fine
and challenged their imprisonment. Eventually the Lord Chief Justice released them and in a
landmark decision established the independence of juries.
Now, the jury has complete power over the verdict and is not required to give any explanation
or justification….in theory – in 1060 the judge in R v McKenna[1960] CA threatened the jury
if they did not return with a verdict within 10 minutes they would be locked up all night. The
jury returned with a verdict of guilty but the defendant’s conviction was quashed on appeal
because of the judge’s interference.
Roy Amlot, previous Chairman of the Bar Association said:
“Parliament enacts and powerful Government with a strong whip may enact harsh
laws. But no jury can be forced to implement what it considers to be a harsh law. In
this way a jury plays a vital part in the democratic process…the spirit of trial by jury is
burnt into the consciousness of every Englishman – to such an extent that the jury’s
detractors might as well attempt to do away with Parliamentary democracy as trial by
jury.”51
Unlike in the US trial by jury is not entrenched in a constitution. The right is governed by an
ordinary statute which can be altered by an act of parliament. To the extent that it controls
51 Roy Amlot, ‘Leave the Jury Alone, in The Effectiveness of Juries and the Use of the Civil Courts in the
Control of Crime’, in Sally Lloyd-Bostock and Cheryl Thomas, ‘Decline of the “little parliament”: juries and
jury reform in England and Wales’ Law and Contemporary Problems, (1999) 622 7-40
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parliament the government of the day could radically change or abolish the right to jury trial.
However the political barriers to attacking the jury are considerable and changes have been
piecemeal rather than sweeping.
Features of juries
In UK no qualifications required – other than age and right to vote.
Deliberate in secret so accountable to no one.
Jurors (once sworn) cannot refuse to come to a decision.
In only 1% of criminal cases is there a trial by a judge and jury.
A defendant may appeal against conviction, but an appeal is not allowed on the
grounds that the jury got it wrong.
Verdicts are decided on a majority basis – for a verdict to be decided it does not have
to be unanimously agreed. That means in cases when a verdict is reached by a majority,
there will be juries discontent with that verdict but who cannot express that
discontent as they are bound by the Criminal Justice and Courts Act 2015 from
discussing anything said or done during deliberations – breach amounts to a criminal
offence.
Reduction of role of the jury
Trials are time consuming and costly. Defendants often elect for jury trial because of higher
acquittal rates in the Crown Court. Fraud trials are often long and complex and there is
concern that jurors struggle to understand the facts of the case.
Perverse Verdict - R v Ponting [1985] Crim LR 318
Jury acquitted Clive Ponting who broke the Official Secrets Act to correct public
misinformation surrounding the sinking of the Argentine ship General Belgrano during the
Falklands conflict.
There have always been controversy surrounding juries – for example in the late 18th and
early 19th centuries juries repeatedly undervalued stolen property in theft cases. This was
because theft of goods valued at more than 40 shillings (£2) carried the death penalty.
Section 8 Contempt of Court Act 1981
Prevents any research or other enquiry into jury deliberations. Makes it a criminal offence to
“…obtain, disclose or solicit any particulars of statements made, opinions expressed,
arguments advanced, or votes cast by members of a jury in the course of their deliberations.”
This section was inserted after the former Liberal leader Jeremy Thorpe was acquitted of
conspiracy to murder in a highly publicised trial by jury. One of the jurors gave an interview
to the New Statesman magazine explaining how the jury reached its decision.
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R v Young (Stephen) [1995] QB 324
Did Section 8 mean that the court could not, after a verdict has been given, inquire into what
passed between jurors during their deliberations in their retiring room also apply to what
might have happened during a jury’s accommodation in a hotel during their retirement? Their
Lordships took the view that the whole point of sending the jury to a hotel was to give them
a break from their deliberations. Their Lordships concluded that they were entitled to inquire
into what happened at the hotel but not what happened thereafter in the jury room.
Regina v. Connor and another and Regina v. Mirza [2004] UKHL 2
In this House of Lords case of R v Mirza (2004) which was to conjoined appeals attention was
drawn to the problem of jury secrecy. Where, after the trial, a juror writes to the court
expressing their concern with how the verdict was reached. Now that a majority verdict is
possible, a letter after verdict is often the only option open to a juror where a verdict has
been reached which they did not agree with. There was a suggestion in one of the cases being
considered in R v Mirza that some of the jurors were racist. The House of Lords took the view
that, due to the secrecy of the jury, it could not investigate what had happened in the jury
room. However, the trial court could make such an inquiry before a verdict was reached and,
if an appeal was launched, the Court of Appeal could ask a judge to provide a report about
the trial. A Practice Direction has now been issued stating that trial judges should ensure that
the jury is alerted to the need to bring any concerns about fellow jurors to the attention of
the judge immediately, and not to wait until the case is concluded. The point should be made
that, unless that is done while the case is continuing, it may be impossible to put matters right.
“These appeals raise the question whether evidence about the deliberations of a jury,
which reveal a lack of impartiality on the part of the jury, is always inadmissible under
the common law secrecy rule however compelling the evidence may be and however
grave the circumstances of the lack of impartiality may be. Two examples will illustrate
the point. A juror reveals after verdict that during the jury deliberations it emerged
that some members of the jury were associated with a Neo-Nazi group and that they
urged the conviction of the accused because he was a black immigrant. In the second
example a juror reveals after verdict that a majority of the jury refused to deliberate
and that the jury ultimately arrived at a verdict of guilty by spinning a coin. Nobody
would seriously contest that such guilty verdicts would be the result of perverse
processes by judicial tribunals. Neither example is fanciful or extreme: both were
suggested to me by decided cases. Moreover, anyone versed in criminal practice
would be able to match these hypothetical cases with other equally telling example.
It is inherent in the opinions of the majority delivered today that even in the
exceptional cases postulated the evidence must always be excluded and the
conviction upheld…It is to the effect that in the interests of maintaining the efficiency
of the jury system the risk of occasional miscarriages of justice may acceptably be
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tolerated. In other words one must accept some dubious verdicts, even in cases of the
utmost gravity, as the cost to be paid for protecting the jury system. While I
acknowledge that the problem is one of acute difficulty, I cannot assent to the austere
conclusion reached by the majority.”
Should the jury be shrouded in secrecy?
By secrecy, we mean that once the jury has heard the evidence and all of the arguments, plus
directions from the judge, they must retire to consider their verdict in one of the chamber
rooms within the court. They cannot communicate with anyone during their deliberations
other than the judge and an assigned court official until they have reached their verdict.
Reasons for secrecy include:
o it ensures freedom of discussion in the jury room
o it protects jurors from outside influences, and from harassment
o if the public knew how juries reached their verdict they might respect the
decision less
o without secrecy citizens would be reluctant to serve as jurors;
o it ensures the finality of the verdict
o it enables jurors to bring in unpopular verdicts
o it prevents unreliable disclosures by jurors and misunderstanding of verdicts
But, conversely, we must consider the disadvantages too. Those wishing to abolish the
secrecy element argue that:
o make juries more accountable
o make it easier to inquire into the reliability of convictions and rectify injustices
o show where reform is required
o educate the public
o ensure each juror’s freedom of expression
Are juries fair?
A 2010 Ministry of Justice report, Are Juries Fair?, has debunked some myths about juries,
including the idea that they discriminate against black defendants or do not easily or regularly
convict rapists, or that the police are unlikely to get convictions.
The study is based for the first time on interviews with more than 1,000 jurors after their
cases. It also undertakes a separate study of 68,000 jury verdicts to examine the sensitive
issue of how juries make their decisions.
The research included case simulations with 41 all-white juries at Winchester and Nottingham
crown courts which showed no tendency for them to convict a black or Asian defendant more
than a white one.
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In rape cases the study found that juries convict more often than they acquit, with a 55%
conviction rate in crown court rape trials.
It concludes that juries are not primarily responsible for the low conviction rate following rape
allegations and those juries are more reluctant to convict in cases of attempted murder and
grievous bodily harm than in rape cases.
"This research shows that juries in England and Wales were to be found to be fair,
effective and efficient – and should lay to rest any lingering concerns that racially-
balanced juries are needed to ensure fairness in trials with black and minority ethnic
defendants or racial evidence."52
BUT, is it possible to get a set of neutral, impartial and objective jurors, willing to discuss their
views and feelings only with their fellow jurors?
The value of juries
Advocates for the jury often rely on either research to support the achievements of jurors or
on principles – the jury as an ‘instrument of justice’. Yet, we must not be blind to the systemic
faults of the jury including: incompetence, bias, the prospect of irrelevant considerations
being taken into account and the impact of pre-trial publicity in the few high-profile cases.
“Trial by jury is more than an instrument of justice and more than one wheel of the
constitution; it is the lamp that shows that freedom live”
Source: Lord Devlin, 1956
“Juries are not random, not representative, but anti-democratic, irrational and
haphazard legislators, whose erratic and secret decisions run counter to the rule of
law.”
Source: Penny Darbyshire, ‘The lamp that shows that freedom lives – is it worth the candle?’Crim. L.R.
1991, Oct, 740-752
Reform, therefore, might be sensible. There have been suggestions for a judge only trial or a
lay judge system or a French model whereby there is a judicial presence in the jury room as it
deliberates. However, reform must be approached cautiously because the empirical evidence
does indicate that juries are useful and valuable but, how can we address its flaws?53
52 Ministry of Justice report, Are Juries Fair?,
https://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/are-juries-
fair-research.pdf and opinion from lawyer on why juries are best:
https://www.theguardian.com/commentisfree/2010/feb/21/juries-work-best-research
53 Paul Fitzpatrick, ‘The British jury: an argument for the reconstruction of the little parliament’ C.S.L.R. 2010,
6(1), 1-15
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SEMINAR 9: PAYING FOR LEGAL SERVICES AND ACCESS TO JUSTICE
READ: Shazia Choudhry & Jonathan Herring ‘A human right to legal aid? – The implications
of changes to the legal aid scheme for victims of domestic abuse’, Journal of Social Welfare
& Family Law, 2017, 39(2), 152-167.
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DURING THIS WEEKS SEMINAR YOU WILL BE HANDED MATERIALS TO READ AND THEN YOU
WILL COMPLETE ACTIVITIES ABOUT FUNDING FOR LEGAL REPRESENTATION.
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LECTURE 10: GUEST LECTURE
SEMINAR 10: STATE INTERVENTION INTO THE FAMILY - THE ROLE OF THE LAW
READ: Lady Hale’s dissenting opinion in Re B (A Child) [2013] UKSC 33 (paragraphs 143 – 224,
in particular paragraphs 143-145, 171-176, 194-198 and 223-224):
https://www.supremecourt.uk/decided-cases/docs/UKSC_2013_0022_Judgment.pdf
To get a feel for what the majority held and how the case was ultimately decided read this
family law week blog entitled ‘In the matter of B (A Child) [2013] UKSC 33’:
http://www.familylawweek.co.uk/site.aspx?i=ed114409or this brief ‘UK Supreme Court
Comment: Re B (a child) [2013] UKSC 33’: http://ukscblog.com/case-comment-in-the-matter-
of-b-a-child-2013-uksc-33/
AND: the following case comment entitled ‘Family Abuse, privacy and state intervention’. Do
not worry about any unfamiliarity you may have with the particular legal instruments referred
to in the case comment – instead get a feel for the problem raised in this case. Pay particular
attention to the questions posed by the author in the first and final paragraphs.
“THE President of the Family Division's short reserved judgment granting an injunction
barring unlawful conduct by a family member, DL, on the local authority's ex parte
application in A Local Authority v. DL, RL and ML [2010] EWHC 2675 (Fam) raises
important issues regarding the roles of state and individuals in managing abusive
relationships. What power does the state have to intervene against the wishes of
victims of alleged abuse, and what rights do victims have to resist such intervention in
their family life? The matters discussed here fall to be reconsidered by the court
hearing the inter partes application expected in spring 2011.
At the relevant time DL lived with his elderly parents, the Ls, in their home. Mrs L was
physically disabled and received daily visits from a carer. The local authority was
concerned about DL's alleged behaviour in recent years (on which no findings were
made): aggressive and physically violent behaviour, attempts to control the Ls'
activities and carers' visits, attempts to procure the transfer of ownership of the home
into his name and to move Mrs L to a care home against her wishes. Mrs L opposed
any legal action against DL for fear of losing contact with him or even of his possible
suicide, and Mr L was thought unlikely to support action taken against her wishes. Mr
and Mrs L were mentally competent to manage their own affairs and, in particular, to
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determine how their relationship with their son should progress and whether he
should continue to live with them. That being so, could the local authority seek
injunctive relief against DL to protect them?
The judgment stated, without explanation, (at [6]) that use of the criminal law had
been considered and rejected. There were grounds for prosecution of harassment at
least (Protection from Harassment Act 1997) which, like any criminal proceedings,
may be prosecuted without victim consent; it was unclear why state-initiated civil
proceedings should be thought more appropriate in such cases (cf. remarks at [28]).
Resort to the Court of Protection was also rejected, presumably because of the Ls'
mental capacity (Mental Capacity Act 2005, s. 2). So too was use of anti-social
behaviour orders: this requires that the respondent's conduct cause or be likely to
cause harassment, alarm or distress to persons not of his household (Crime and
Disorder Act 1998, s. 1).
Could the local authority instead apply for non-molestation or occupation orders
under the Family Law Act 1996, Part IV? No. Parliament enacted a power for such
applications to be permitted by secondary legislation (section 60), but no such
legislation has been made, following research into the pros and cons of such
applications (Burton (2003) 25 J.S.W.F.L. 137). Third parties have been empowered to
proceed in cases of suspected forced marriage (1996 Act, s. 63C). But outside that
special area, it was thought that third party applications would not solve the problems
faced by victims taking legal action (Ministry of Justice, CP 31/07, p. 20). Instead a
breach non-molestation order has been made a criminal offence (1996 Act, s. 42A), as
well as a contempt of the civil court which made the order.
This Family Law Act scheme thus achieves a particular balance of public and private
power which it is important to appreciate in considering the Ls' situation. Non-
molestation orders are made on some private initiative - either a direct application by
the victim or by the court's own motion when other “family proceedings” were
properly before it (1996 Act, ss. 42 and 63). But once made, whilst the victim may bring
less draconian contempt proceedings, enforcement potentially becomes a matter of
public concern vindicated through the criminal justice system instead. This in theory
ensures that victims control whether and when legal proceedings for injunctive relief
should be brought. But potential criminal enforcement may have contributed to the
sudden sharp decline (to some extent recovered) in applications for non-molestation
orders. While it is difficult yet to discern the reasons for that decline, there is concern
that the loss of victim control over enforcement may deter some from seeking
protection at all (Hester et al. Early evaluation of the Domestic Violence, Crime and
Victims Act 2004. MOJ Research Series 14/08). Meanwhile, Crime and Security Act
2010 provisions empowering police to issue so-called “go orders” and then seek a
follow-up court order await piloting; they may or may not be implemented.
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Absent legislation explicitly empowering third party action, the President's injunction
was made under the inherent jurisdiction (or, as a subsidiary argument, pursuant to
the Local Government Act 1988, s. 222). The President found a lacuna which the
inherent jurisdiction may properly fill: in short, because the Ls required protection and
the only mechanism to achieve it is action by the local authority (at [14]). But local
authority and court frustration at being unable to intervene does not necessarily mean
that there is a gap in the law. The lack of statutory third party power to act on behalf
of competent adults opposed to the proposed action and where no minors require
protection may reflect a proper determination that the balance of rights and interests
at stake here weighs in favour of victims' rights to respect for family and private life.
While the President noted the relevance of Article 8 ECHR, he did not analyse the Ls'
situation in those terms, nor did he expressly consider how far the state's positive
Convention obligations might reach: Opuz v. Turkey (2010) 50 E.H.R.R. 28. He
considered that jurisdiction could be taken following a forced marriage case pre-
dating the recent statutory reform in that area: Re SA (Vulnerable adult with capacity:
marriage) [2005] EWHC 2942, [2006] 1 F.L.R. 867. But the subject of those proceedings
was incapable of taking proceedings herself. The President acknowledged that Re SA
could accordingly be distinguished but, without explanation, concluded that the
injunction could nevertheless be made (at [20]), relying on inconclusive dicta from
another decision in which the subject lacked capacity (Local Authority X v. MM [2007]
EWHC 2003, [2009] 1 F.L.R. 443).
The situation of the Ls clearly demanded anxious attention from several agencies. But
the strategy adopted here is not necessarily the right one. That the injunction issued
against DL barred only unlawful behaviour - and so did not to that extent interfere
unduly with his liberty (at [31]) - does not lessen the interference in the Ls' family life
inherent in the state bringing civil legal proceedings against the wishes of all the
individuals concerned in relation to issues which, on the face of it, are matters for the
family members to litigate themselves, or not, as they wish. If it is thought that local
authorities and others should have power to intervene in these cases, which may or
may not be appropriate, Parliament should reconsider the Family Law Act 1996, s. 60,
and create a statutory framework within which the rights and interests of the relevant
parties can be balanced. These complex cases raise questions of principle which
should ideally be resolved after full consultation with key stakeholders, not by a court
at the instance of one local authority in one difficult case. For the time being, we await
the inter partes hearing in which these issues will be more fully ventilated than the ex
parte proceedings could inevitably allow.”
Source: Jo Miles, ‘Family abuse, privacy and state intervention’ C.L.J. 2011, 70(1), 31-34
Please come prepared to discuss the following questions:
1. Do you think an injunction was an appropriate solution in this case?
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2. Do you think it was justified for the social worker to peruse a court order to protect the L’s from their son, DL, even though they did not actually want any legal action to be taken again DL?
3. Is the social worker, acting on behalf of the state, justified in taking legal action to protect people even if they do not want that protection?
4. Recall, the recent case involving the life of Charlie Gard, should the law be able to intervene in the lives of families when children are ill and parents dispute or request a certain form of treatment?
5. What is the basis for secrecy in the family courts and should they be more open and transparent?
6. Do you see any sign that the policy of restricted media access will change and if so how?
7. What will the consequence of the change be? 8. What is the basis for a legal system that requires and facilitates the
intervention of the state into family life?
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LECTURE 11: INTRODUCTION TO THE CRIMINAL JUSTICE SYSTEM
Objectives
Having successfully completed this unit you should be able to:
Understand the difference between civil and criminal law
Begin to identify the various agencies that make up the criminal justice system and
how they interact with each other.
Essential reading:
Chapter 9 ‘The criminal courts’ in Slapper and Kelly
Chapter 19 ‘The Criminal trial process’ in Elliott and Quinn
Chpater 5 ‘The criminal justice system’ in Martin Partington
Additional reading:
The Lammy Review: An independent review into the treatment of, and outcomes for, Black,
Asian and Minority Ethnic individuals in the Criminal Justice system
www.gov.uk/government/uploads/system/uploads/attachment_data/file/643001/lammy-
review-final-report.pdf
Characteristics of criminal law
Society regulates individual behaviour through the criminal justice system
Criminal laws forbidding certain behaviour
Law enforcement agencies (police) with powers to restrain (arrest), detain and
investigate, prosecute (CPS)
Courts to decide truth of allegations: magistrates, crown courts, appeal courts
Correctional agencies: probation services, prisons.
Sources of criminal law
Basic principle is freedom of individual action:
Must be limits on state intervention.
State can only intervene where authorised i.e. offence
Nulla poena sine lege = no punishment without law.
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Must be recognised constitutional process to create offence
Offences exist: statutory basis through parliament – Acts of Parliament
Precedent – based on court’s decisions – common law
Principle of legality
Limits on state intervention?
But Parliament can make any conduct criminal?
But the Human Rights Act 1998 provides some limits
‘principle of legality’ provides theoretical but not real constraints: non-retroactivity,
specificity, strict construction.
Key characteristics of principle of legality
Ignored in authoritarian states.
Stretched, interpreted, manipulated to vanishing point in England and Wales:
Retroactivity
Shaw v DPP [1962] – Ladies Directory
R v R [1992] – spousal immunity in rape
Certainty
Concepts such as reasonableness or dishonestly are inherently difficult to
define with certainty.
Consider the width of anti-social behaviour
Strict Construction
Rarely applied in criminal cases – consider ‘appropriation’ in theft.
Principle of legality is now underlined by Human Rights Act 1998 – see
Article 7.
Presumption of innocence and the burden of proof
Standard of proof – beyond reasonable doubt
Accused is presumed innocent until proven guilty
See Woolmington v DPP [1935] AC 462
Concept of offence is central
provides legal authority for police to make legal arrest – offence must exist.
D is tried for specific offence – not for being a nasty person/well known thief.
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Authorises court to try and convict offenders.
Defines elements of offence for the trial court.
A crime involves action/thought of some kind
Entering premises is physical conduct
As a trespasser – not conduct but a circumstance in which the conduct takes place.
The conduct itself might not be criminal unless a consequence flows from it
Physical elements – the actus reus of a crime.
A crime involves action but also some thought by D.
A burglar must intend to steal.
A robber must intend to use force.
An act is not a crime unless the prosecution can prove the requisite mental attitude.
The mental element is the mens rea of a particular crime.
Key agencies of criminal justice system
Police
Crown Prosecution Service
Defence solicitors
Magistrates’ courts
Crown Courts
Probation Service
Youth Offending Teams
Prison Service
Home Office
Police Forces – responsible for law enforcement
Crime
Public order
Road traffic
Officers divided into 43 forces.
Under control of individual Chief Constables – accountable to?
Home Secretary
Police authorities
Courts
Police Decisions
Responsible for investigation of crime and identification of suspect.
Decide whether to investigate
Whether to arrest and detain
How to interrogate
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Powers of investigation governed by statute eg Police and Criminal
Evidence Act 1984; Regulation of Investigatory Powers Act 2000
Powers also affected by Human Rights Act 1998 – especially Article 5
European Convention on Human Rights.
Having investigated/arrested, police have discretion whether to:
Involve the CPS, caution but not prosecute, take no further action.
If suspect has been arrested, questioned and charged: can be released on bail or
remanded in custody – reviewable by the courts.
Crown Prosecution Service
Established in 1985 – Prosecution of Offences Act
Responsible for presenting cases to criminal courts on behalf of the State.
CPS can discontinue prosecution because of lack of evidence or not in the
public interest.
The trial
Pivotal aspect of whole process and involves:-
A single hearing
No prior judicial consideration of evidence
Decision based solely on evidence given in court
Lawyer led adversarial approach
Parties choose which witnesses to call
Parties examine and cross-examine
Consider erosion of the right to silence.
Magistrates Courts
Responsible for minor criminal and road traffic offences.
Cases heard by three justices of the peace.
JPs not legally trained, unpaid and are appointed for service to the
community.
Large cities have stipendiary magistrates – lawyers sitting alone in place of
JPs.
Each court has legally trained clerk who advises on law, procedure and
sentencing.
Crown Courts
Responsible for appeals from Magistrates Courts
Committal for sentence from magistrates.
Cases are heard by judge and jury.
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Appeal Courts
Right of appeal against conviction and sentence.
Supreme Court Right to a fair hearing
As a defendant you have been charged with a criminal offence – the court must decide whether you are guilty or not guilty.
You are entitled to the validity of that accusation being assessed fairly:
Common law principle of natural justice.
Article 6 European Convention on Human Rights
A fair hearing involves:
Know nature of charges
Disclosure of evidence against you
Legal advice and representation
Presumption of innocence
Burden of proof on prosecution
Right to silence
Public trial before neutral independent court
Right to test evidence by cross examination
Right to call and give evidence
Key element is presumption of innocence Miscarriages of justice?
Many factors:
Police malpractice
Planting evidence
Interrogation
Forensic science errors
Juries application of standard of proof
Court of appeal failures to recognise unsafe convictions
But consider Criminal Cases Review Commission
And is every unjustified acquittal miscarriage for the victim?
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SEMINAR 11: THE JURY
Please read the following which are available on myunihub.
Lord Devlin (1966) ‘The Decline of the Jury and Its Strength’ Trial by Jury, Chapter 6, Methuen
& Co Ltd
Helena Kennedy (2004) ‘You The Jury’ Just Law, Chatto & Windus
Cheryl Thomas, Ethnicity and the Fairness of Jury Trials in England and Wales 2006-2014,
[2017] Criminal Law Review, Issue 11, 860-876
Questions for discussion during the seminar.
1. Summarise the arguments put forward by Devlin and Kennedy. Are they the same or
do they have different opinions on the value of the jury?
2. In your opinion what are the five biggest advantages to a jury system? And the five
most significant disadvantages?
3. What do you think are the major challenges faced by those who sit on juries?
4. Prepare arguments for and against this motion: “The benefits of jury trial have been
vastly exaggerated.”
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LECTURE 12: GUEST LECTURE TO BE GIVEN BY SUPERINTENDENT PAUL BOURNE (Rtd) ON
HOW THE METROPOLITAN POLICE SERVICE CONDUCT MURDER INVESTIGATIONS
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SEMINAR 12
Please read
David Rose (1996) chapter 1, The Old Regime and its Passing, In the Name of the Law, David
Rose, Vantage.
Joshua Rozenberg (1994) Miscarriages of Justice, Chapter 4, contribution to Criminal Justice
Under Stress, edited by E. Stockdale and S. Casale, Blackstone Press.
1. Describe in your own words what you understand the term ‘miscarriage of
justice’ to mean, together with recent examples.
2. Herbert Packer comments that “due process…starts from the proposition
that it is better to let ten guilty men go free than to convict a single innocent
defendant..” (Rose, p.48) Can you give examples of how due process is, or
should be, adhered to in our criminal justice system.
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LECTURE 13: THE POLICE (1)
Objectives
Having successfully completed this unit you should be able to:
Understand the background of policing.
Critically understand some of the developments that have taken place in policing.
All cases are stories – a set of events is reconstructed into a legal case. The prosecution
process is the subtle transformation of a story into a prosecution case. Remember in a
trial events are often contested. Consider the following which took place during a trial in
New York where the defendant was charged with rape. The victim was asked why she
didn’t use physical force to try and stop the defendant from raping her? She replied “He
tried to strangle me.”
When the defendant was giving evidence and he was asked why he tried to strangle the
victim he replied. “I didn’t try to strangle her, I was stroking her neck.”
Historical development of the police force
“The primary object of an efficient police is the prevention of crime: the next that of
detection and punishment of offenders if crime is committed. To these ends all the efforts
of police must be directed. The protection of life and property, the preservation of public
tranquillity, and the absence of crime, will alone prove whether those efforts have been
successful and whether the objects for which the police were appointed have been
attained.” Sir Richard Mayne 1829
Role of the Police?
For what purpose do the police exist?
Controlling crime?
Does increasing the number of patrol officers reduce crime?
Discretion?
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“A superficial look at police work is enough to show that any patrolling police officer ignores
a large number of offences or potential offences on every working day…far from enforcing
the law in a straightforward way, every police officer must constantly make decisions about
which particular offences he should do something about.” (Smith and Gray, 1985)
“The police are the social equivalent of the AA or RAC patrolman, who intervene when things
go unpredictably wrong and secure a provisional solution.” (Waddington, 1983)
Traditionally police forces have been local as opposed to one national force. The rationale is
for the police to have strong links and knowledge about the communities they are working
with. However all police forces are subject to the same legislation.
Last 50 years think how much society has changed. Increase speed in communications,
movement of people more difficult to control, growth of laws and crime, huge growth in
traffic.
Significant events leading to the introduction of the Police and Criminal Evidence Act 1984
Time line of the murder of Maxwell Confait in 1972
The fire brigade were called to a house fire at 27 Dogett Road in South London. Once the
fire had been put out the body of Maxwell Confait was found. He had been strangled.
Three suspects were arrested.
Colin Latimore (18) had mental health issues, could not read or write – charged with
arson and murder.
Ronald Leighton (15) was of low intelligence and could barely read or write –
charged with arson and murder.
Ahmet Salih (14) English was his second language – charged with arson.
After a trial
Colin Latimore – convicted of manslaughter and ordered to be detained at a special
hospital indefinitely.
Ronald Leighton – convicted of murder and received a life sentence.
Ahmet Salih – convicted of arson.
Three years after conviction in June 1975 the case was referred back to the Court of
Appeal
Conviction was quashed.
Confessions said Confait had been murdered minutes before the house had been set
on fire.
Forensic evidence said that Confait had died before 11.30pm.
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Latimore who was convicted of the actual murder had a water tight alibi until after
11.30pm.
Forensic evidence found that the murder and arson did not take place at the same
time.
Why had the issue of timing not been raised at the original trial?
Part of our adversarial system.
Inequality of arms – the police are in charge of the case. They believe they have got
the right people and don’t look for evidence to dispute their case.
Inquiry conducted by Sir Henry Fisher who was critical of the fact that:
The two younger men were interviewed in the absence of their parents.
None of the accused had been made aware of their right to a solicitor or the right to
inform someone of their arrest.
Lattimore’s questioning had been leading – the police were aware of his disability
but chose to disregard it.
Lattimore accused the police of assaulting him during the questioning.
Two years later the three were exonerated by the confession of separate individuals to
the murder of Maxwell Confait.
After this case there was growing concern about the way police used their powers.
Riots in Grosvenor Square (1968)
Bristol (1981)
Brixton (1985)
Brixton (1990)
Riots in Brixton April 1981
Over the weekend of the 10-12 April 1981 there were riots in a number of parts of
London.
Police attacked with stone, bricks, iron bars and petrol bombs.
On the Saturday night 279 police officers were injured as were 45 members of the
public.
Buildings and cars were damaged and destroyed by fire – as were police cars and
ambulances.
Although national recession unemployment in Brixton was particularly high –
especially amongst black youths where it was estimated at 55%.
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Lord Scarman was asked to conduct an inquiry into what had happened in Brixton. His
terms of reference were:
“…to inquire urgently into the serious disorder in Brixton on 10-12 April 1981 and to report,
with the power to make recommendations.” Scarman, Lord J. (1981) The Brixton Disorders,
10-12 April (1981) London: HMSO
Evidence given to inquiry by:
Commissioner of Police
Lambeth Council
Brixton Council
Brixton local community groups and clubs
Commission for Racial Equality
What did Scarman find?
Riots had not been planned but were in response to complex, political, social and
economic factors that had created a disposition towards violent protest.
He found a loss of confidence and mistrust of the methods the police used.
For example liaison arrangements between the police, local community and local
authority had already collapsed before the riots.
He recommended that much more effort should be made to recruit more ethnic
minority police officers. Not only this but there should be changes in the way that
they are trained and the way that the law is enforced.
Said the government must tackle inner city decline if this wasn’t to happen again.
He found evidence of racial disadvantage and discrimination but no institutional
racism.
Scarman warned the government that “urgent action was needed to prevent racial
disadvantage becoming an endemic ineradicable disease threatening the very survival of our
society.”
What did he recommend?
Emphasise on improving community relations and handling of public disorder.
Identify and deal with police racial prejudice.
Closer supervision of front line officers.
Recruit more officers from ethnic backgrounds.
Criticisms of Scarman
Failed to understand black anger against the police was rooted in oppressive policing
methods.
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Failed to address the problem of police powers – ie stop and search.
Failed to address problems of investigations of complaints against the police.
Failed to address lack of police accountability.
Post Scarman – 1985
Riots in Handsworth, Birmingham and Broadwater Farm, London.
Killing of PC Keith Blakelock.
Scarman Report reprinted.
Report recommended social and environmental improvements – unemployment,
housing, welfare provisions – not carried out. The situation was worse.
PACE 1984 and the Codes of Conduct
Sets out the way police officers are to carry out their duties.
Specific codes of practice for police procedures. For example in the Confait
case Lattimore was interviewed on his own. Under PACE if a person is
mentally disordered or otherwise mentally vulnerable they can only be
interviewed in the presence of an appropriate adult who is defined as: either
a parent or guardian or other carer. Someone experienced in dealing with
the mentally disordered/vulnerable. Some other responsible adult who is not
an officer of, nor employed by, the police.
Established the rights of people detained by the police.
Accountability and Police Complaints:
Central to police accountability is the mechanism for investigating complaints: If
citizens are to have confidence in the police service as a whole, they must feel that
when they complain about individual instances of police misconduct their allegations
will be investigated thoroughly and impartially.”
IPCC Independent body created to investigate the police on 1 April 2004.
Replaced the Police Complaints Authority.
Investigative staff of the IPCC should comprise at least 75% civilians with no
more than 25% seconded or ex-police officers.
Role of HM Inspectorate of Constabulary:
Reports on the efficiency and effectiveness of each force area in England and
Wales.
Independent of the government and the police.
Crown appointed – not employees of the police or government.
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Reports to Parliament.
Powers to seek information from police forces and to access their premises.
“Through inspecting, monitoring and advising to promote and advance improvements in
the efficiency and effectiveness of policing. We will do this independently, professionally
and fairly, always championing the public interest, and we will explain what we do and
why.”
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SEMINAR 13 THE POLICE (1)
Please read the following cases and come to the seminar prepared to discuss your answers
to the following questions.
• Hill v Chief Constable of West Yorkshire [1989] AC 53
• Osman v United Kingdom (23465/83) ECHR 2000
• Van Colle & Another v Chief Constable of the Hertfordshire Police [2008] UKHL 50
1. In each of the cases summarise the facts and the specific allegation made by the
individuals bringing the action?
2. In each of the cases what was the defence that the Police relied upon?
3. Who did the judge decide in favour of?
4. What arguments do the judges offer and are they convincing?
5. In the Van Colle case give examples of evidence disregarded by the Court and explain
why this evidence was disregarded.
6. By reference to case law, explain when the common law places a duty of care upon A
to prevent harm occurring to B through the actions of a third party.
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LECTURE 14: POLICE USE OF LETHAL FORCE
Objectives
Having successfully completed this unit you should be able to
• Understand the operational issues facing the police.
• Evaluate the response when things go wrong.
Police use of lethal force
“There are always certain rights which are non-negotiable. There are some – for example
the right to life, the prohibition on torture, the presumption of innocence, the right to a fair
trial – where we cannot compromise on the principles.” David Blunkett, Home Secretary,
2004.
“I accepted by necessity we have to have prevention under a new category which is to
intervene before the act is committed, rather than to do so by due process afterwards.”
David Blunkett, Home Secretary, 2004.
Force used must be reasonable:
“When police are required to use force to achieve a lawful objective (eg making a lawful
arrest, acting in self-defence or protecting others) all force used must be reasonable in the
circumstances. If the force used is not reasonable and proportionate, the officer is open to
criminal or misconduct proceedings. It may also constitute a violation of the human rights of
the person against whom the force was used.”
• Governed by the Criminal Law Act 1967 (section 3).
• Legal requirement that force used must be reasonable in the circumstances to
prevent crime or arrest criminals.
UN basic principles:
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“…law enforcement officials, in carrying out their duty, shall as far as possible, apply
nonviolent means before resorting to the use of force and firearms. The intended result of
police action must be a lawful objective. Therefore police officers must only resort to the use
of force or firearms if other means remain ineffective or there is no realistic prospect of
achieving the lawful objective without exposing police officers or anyone whom it is their
duty to protect to a real risk of harm or injury.”
Influencing factors:
• Their observation and assessment of the situation.
• Their perception of any imminent threat.
• Their understanding of the wider police operation.
• Information or intelligence that has been communicated to them.
• Any direction or authorisation given to them.
Operation Kratos
• March 2002 policy to defend against threat of suicide terrorism is set up.
“Owing to the extreme nature of the risk to the public, a very robust command structure has
been designed and implemented.” (MPA)
The shooting of Jean Charles De Menezes
“We thought we had killed a suicide bomber – it turned out we had killed an innocent man.”
The background
• 7 July 2005 four bombs explode on the London transport network.
• 21 July 2005 four failed attacks on the London transport network.
• 22 July 2005 Jean Charles de Menezes shot and killed by police officers at Stockwell
Underground Station.
“This is a scary time to be Londoner. Travelling on the Underground is nerve-racking. I
notice every police siren; all day I log on to news Web sites to check what’s happening. At
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home in the evening I am an avid news watcher. But, when I still the nerves, there is a lot to
engage my legal mind. Foremost is the shooting of Jean Charles de Menezes. Many were
appalled that the police could operate a policy that would allow them to shoot someone in
the head.” James Welch, Former Director of Liberty
Scotia Road:
• De Menezes lived at 17 Scotia Road.
• Suspects (Omar and Osman) lived at 21 Scotia Road.
• Both addresses in a block of flats accessed by a communal front door.
• On the day he was shot the address was being watched by a soldier on attachment
to Special Branch.
Keystone cops?
• 9.33 de Menezes comes out of main entrance.
• Soldier was relieving himself in a bottle.
• Camera was not running to save film and battery.
• Soldier couldn’t switch the camera on as he was holding a phone and the bottle with
the other hand.
• Initially to be ignored but then soldier says worth someone else having a look.
• 6 minute walk to bus stop.
• No officers close enough to discount or positively identify him.
• For rest of his journey (30 mins) never positively identified or not.
• No order to stop him getting on a bus.
• De Menezes and officer get on bus. He was sitting near the front – just wearing a t
shirt. No bulky clothing.
• 5 mins later gets off the bus to go into Brixton tube station.
• Station is closed – gets back on the bus.
• Gets of the bus at Stockwell where station is open.
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• 3 surveillance officers and 6 specialist firearms officers at station.
• Firearms officer thought that de Menezes had been positively identified.
• Thought he was the suicide bomber from the day before.
• No order to detain him at entrance to the station.
• Officers descended into the tube.
• Their radios didn’t work underground.
• Officer follows de Menezes on to the train – but hasn’t positively identified him.
• Sees armed officers running down the platform and thinks they must have identified
him as one of the bombers.
• Officer points to de Menezes and said ‘that’s him’.
• Firearm officer thought he was confirming identity of bomber.
• Officer held de Menezes while firearms officers shot him 9 times.
After the shooting:
• Explosives officer searches the body – no explosives found.
• Suspected of being linked to the incidents.
• Tried to evade arrest.
• Wore a thick jacket.
• Assistant Commissioner Hayman informs Commissioner someone has been shot
dead in Stockwell and he believed it was one of the bombers.
Two days later:
• He did not run away.
• Shot dead by mistake.
• Not challenged.
• Not wearing a bulky jacket.
• Not correctly identified.
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Why did firearms officers then say that they shouted ‘Armed Police’ and only shot de
Menezes after he failed to stop?
17 civilians in carriage – all said no warning was given.
• IPCC Stockwell 1 – no officers should be disciplined.
• Stockwell 2 – very critical of the police.
• July 2006 – CPS say insufficient evidence to prosecute officers.
• Family challenges decision not to bring criminal charges against any individuals in
connection with the killing.
• December 2006 – High Court dismisses challenge.
Health and Safety Prosecution
• Office of the Metropolitan Police Commissioner prosecuted and convicted of
breaches under the Health and Safety At Work Act (1974) over the death of Mr
Menezes.
• Prosecution alleged 19 failings.
• Failure to identify the victim.
• Police allowed suspected suicide bomber to board a packed bus (twice) and a train.
• Confusion as to agreed outcome.
• MPS pleaded not guilty.
• Jury said they “attach no personal culpability to Commander Dick.
• Judge said officers acted with ‘exemplary bravery.’
• December 2008 – inquest recorded open verdict.
“We are all human; we all make mistakes, big and small; we are all sympathetic to the
enormous dangers faced by police officers. But they must stand up and be counted when it
goes wrong, just as much as when it goes right. The current approach of institutional
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reticence and denial which permeates the culture of the police has to be admitted and
transformed.” Michael Mansfield
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SEMINAR 14 POLICE USE OF LETHAL FORCE
Please read the following:-
• Kennison P and Loumansky A. (2007) Shoot to kill: Understanding police use of force
in combating suicide terrorism. Journal of Crime, Law and Social Change, 47: 151-168,
Kluwer Publication.
• Squires P and Kennison P, (2010) Shooting to Kill? Policing, Firearms and Armed
Response, Chapter 2, The Shooting of Jean Charles de Menezes and ‘Operation Kratos’
1. Under what circumstances would you advocate the routine arming of police officers?
2. If you had to formulate a policy for the use of lethal force by the police what
safeguards would it contain and against whom could it be used?
3. Explain to someone who is not a lawyer the mechanism to be used if they wished to make
a complaint about a police officer.
4. Should the police be investigating their own complaints? Is the IPCC part of the police
force?
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LECTURE 15: THE POLICE AND STEPHEN LAWRENCE
Objectives:
Having successfully completed this unit you should be able to:
Understand the finding of the institutional racism and the impact that this has had
on policing.
The murder of Stephen Lawrence 22 April 1993
The Stephen Lawrence case sent shock waves through the criminal justice system.
According to Helena Kennedy the case has become a key indicator of the law’s failure
replacing the Irish miscarriages of justice cases as the gauge of police and legal ineptitude.
Stephen Lawrence and Dwayne Brooks were subjected to an unprovoked attack by five or
six white youths while waiting for a bus in south east London. Stephen was stabbed twice
and died from his wounds.
10.43 - 999 call made.
10.50 - police arrive at the scene. No first aid given. Police also failed to notice that he had
been stabbed twice.
10.54 – ambulance arrives. They find no pulse and Stephen is not breathing. Only when he
is moved on to the stretcher is it apparent that he has been stabbed twice.
11.06 – ambulance arrives at the hospital. A trauma team try and save Stephen but it is too
late.
Doreen Lawrence: “Already, despite the shock and grief I was feeling, it seemed strange to
me that when we turned up at the hospital on Thursday night the police must have seen us
coming in – especially when Neville recognised Dwayne and went up to him – and yet no
police officer there said anything to us. No one offered to take us home after we were told
Stephen was dead. No one took our address or any other details. I was too upset to think
much about it at the time, but it felt as though we were completely isolated and that our
wonderful young man’s death was of little concern to anyone in authority.”
Initial investigation
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The next day police are given information naming Neil and Jamie Acourt as members
of the gang that attacked Stephen.
Letter naming Neil and Jamie Acourt, David Norris and Gary Dobson left in a phone
box.
“There is a group of youths on the Kidbrooke estate who always carry large knives
and threaten people, they may have been involved in last night’s stabbing, two of
them are Neil Acourt and David Norris – both of 102 Burns Brook Close, Kidbrooke
Estate.”
Information mentioned a knife – coverage of the murder so far had not mentioned
that Stephen had been stabbed by a large knife.
Imran Khan becomes the family solicitor – a graduate of University of East London,
only qualified for a couple of years.
26 April 1993 – four days after the murder the suspect’s homes are put under
surveillance.
Four days later police obtain evidence placing the Acourt brothers at the site of the
murder.
Doreen Lawrence: “One of the reasons that the surveillance took so long to organise,
we learned much later – as we learned so much only when it was too late – was that
the proper surveillance team was booked on the Monday after Stephen’s death to
observe another criminal. This was a young black man suspected of ‘theft from the
person.’ The black thief took priority over the white murderers. Even in my darkest
moments I would not have believed this possible, and in some ways it is merciful that
I did not know it at the time.”
4 May 1993 – Neville Lawrence “Nothing has been done. There have been no arrests
and the police won’t tell us what is happening.”
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6 May 1993 – the Lawrence’s met Nelson Mandela who said “…the Lawrence’s
tragedy is our tragedy. I am deeply touched by the brutality of the murder…brutality
that we are all used to in South Africa where black life’s are cheap.”
Doreen Lawrence “I’m sure they know who these people are and they haven’t
arrested them. They are walking, eating and drinking and my son is lying on some
slab.” She went on to say “The police are patronising us and when they do that to
me I get very angry. Why is it the leader of a foreign country shows us sympathy
while our own government has expressed no interest at all.”
The next day police arrest the Acourt brothers and Gary Dobson.
Three days later on 10 May 1993 Luke Knight is arrested.
13 May Neil Acourt picked out in identity parade.
3 June Luke Knight picked out in identity parade.
29 July Doreen Lawrence: “the CPS had dropped the charges against the accused
boys because in their assessment there was insufficient evidence to provide a realistic
prospect of a conviction. I went to my room devastated and unable to speak.”
Family initiate a private prosecution against three men suspected of the murder:
Prosecution fails for lack of evidence. Case relied on identification evidence of Mr Brooks.
He was unable to say whether there had been 4 or 6 attackers and had on occasion not
been able to correctly pick them out in an identity parade. There were other discrepancies
in his evidence. The trial judge said “Where recognition or identification is concerned
[Brooks] simply does not know whether he is on his head or his heels…Adding one injustice to
another does not cure the first injustice done to the Lawrence family.”
1997 – Police Complaints Authority carries out investigation into the case. Report
found that the police operation was well organised and effective. There was no
evidence of racist conduct on behalf of the police.
March 1998 – Home Secretary announces a public inquiry. The public inquiry is to
be headed by Sir W. Macpherson, The Stephen Lawrence Inquiry: Report of an
Inquiry by Sir William Macpherson of Cluny, Cm 4262-1 (1999) (HMSO, London)
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June 1998 – Assistant Police Commissioner apologises for letting the Lawrence’s
down.
October 1998 – Commissioner of Police apologises for the police failure.
The five men originally arrested must give evidence – if they refuse they will be
prosecuted.
Terms of reference
“On 31 July 1997 the Home Secretary announced in Parliament that the terms of reference of
this Inquiry would be:-
“To inquire into the matters arising from the death of Stephen Lawrence on 22 April 1993 to
date in order particularly to identify the lessons to be learned for the investigation and
prosecution of racially motivated crimes.”
Macpherson found:
Fundamental flaws in police investigation.
Professional incompetence.
Institutional racism.
Failure of leadership by senior officers.
Lack of direction, imagination and organisation.
Insensitive and unsympathetic treatment of potential witnesses and Stephen’s
parents.
Macpherson identified:
Absence of confidence and trust in police amongst ethnic minority communities.
Failure to deal with racist violence.
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Concern about stop and search powers, deaths in custody, racial discrimination and
lack of openness and accountability.
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The report concluded
“The conclusions to be drawn from all the evidence in connection with the investigation of
Stephen Lawrence’s racist murder are clear. There is no doubt but that there were
fundamental errors. The investigation was marred by a combination of professional
incompetence, institutional racism and a failure of leadership by senior officers. A flawed
MPS review failed to expose these inadequacies. The second investigation could not
salvage the faults of the first investigation.”
The Stephen Lawrence Inquiry Report available at www.archive.official-
documents.co.uk/document/cm42/4262/
On the day the report was released to the public the following comments were made:-
“This society has stood by and allowed my son’s killers to make a mockery of the law.”
Doreen Lawrence, Mother of Stephen Lawrence
“I want this report to serve as a watershed in our attitudes to racism. I want it to act as a
catalyst for permanent and irrevocable change, not just across our public services but
across the whole of our society. There was only one reason for his murder. Stephen was
black.” Home Secretary, Jack Straw
“The test of our sincerity as law makers is not how well we can express sympathy…but the
implementation of recommendations to make sure this type of thing never happens in our
country again.” Prime Minister Tony Blair
Macpherson recommended the removal of the rule against double jeopardy.
S.75-79 Criminal Justice Act 2003.
R v Dobson (Gary) [2011] EWCA Crim 1256
New and compelling evidence.
Whether re-trial in the interests of justice.
R v Norris [2013] EWCA Crim J0510-1
Challenge to the trial.
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WEEK 17: READING WEEK – THERE ARE NO LECTURES OR
SEMINARS THIS WEEK
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LECTURE 17: MISCARRIAGES OF JUSTICE IN THE CRIMINAL COURTS
Objectives:
Having successfully completed this unit you should be able to:
Appreciate the problems faced by those who are wrongfully convicted.
Evaluate how accountable the judiciary are when things go wrong.
“We must not regard political consequences; however formidable so ever they may be; if
rebellion was the certain consequence, we are bound to say ‘fiat justitia, ruat caelum.”
(fiat justi tia, ruat caelum - Though the heavens fall, let justice be done.’)
Lord Mansfield in R v Wilkes (1770) 98 ER 327
What does the above quote mean? What Lord Mansfield was saying is that the judge must
do justice whatever may be the consequences of doing so. He was writing in the 18th
century and for a long time most of the legal establishment thought that the English system
was the best in the world for dispensing justice. Most lawyers don’t think that any more.
Since the 1980’s it is well known that a lot of innocent people have been jailed wrongly.
They had to fight for years to get the courts to reconsider the prosecution evidence on
which they had been convicted. Even when they had overcome all the hurdles that the
system threw at them before they were allowed to present their arguments, the courts at
first insisted that the system and its representatives could not possibly have done anything
wrong – and therefore the innocents must be guilty.
Timeline of a miscarriage of justice – the Birmingham 6
14 November 1974 James McDade, a member of the IRA blows himself up. IRA
organises funeral.
21 November 1974 Billy Power, Gerry Hunter, John Walker, Richard McIlkenny and
Paddy Hill decided to go to Belfast to McDade’s funeral. Meet
at station at 7pm. Hughie Callaghan sees them off. Leave on
7.55 Heysham train.
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8.17pm – bombs explode in Mulberry Bush and Tavern in the
Town. 21 killed and 162 injured.
Five men arrested at Heysham and taken to Morecombe
police station.
“The men alleged that they had had their confessions beaten out of them. You have to
remember that in the climate of the times everybody believed the men were guilty. This
would have affected their defence case – it seemed like their solicitors were just going
through the motions. They got two newly qualified solicitors of 24 and 25 with very little
experience who had been called to the police station in Birmingham as they had been every
morning in search of assorted shoplifters and drunks and ended up representing people
accused of what was then the biggest murder in British history. They later admitted that
they should have passed the case on to someone with more experience.” Chris Mullin
22 November 1974 Dr Skuse carries out “Griess tests” at Morecombe police
station. Concludes that Power and Hill have handled nitro-
glycerine. Power signs confession.
23 November 1974 McIlkenny, Walker and Callaghan confess.
24 November 1974 Men seen by solicitors in court cells. Brought into Magistrates
Court. Remanded to Winston Green Prison where they were
badly beaten.
9 June 1975 Trial opens: 6 men each charged with 21 counts of murder.
15 June 1975 Jury finds men guilty. Mr Justice Bridge comments: “you stand
convicted on each of 21 counts, on the clearest and most
overwhelming evidence I have ever heard, of the crime of
murder.”
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30 March 1976 Court of Appeal refuses leave to appeal.
June-July 1976 14 prison warders put on trial for beating up Birmingham 6.
Found not guilty.
November 1977 Birmingham 6 bring an action against the police and prison
service for their injuries.
November 1978 High Court says action can proceed.
January 1980 Lord Denning in Court of Appeal rules that case cannot
proceed. He comments: “if the six men win, it will mean that
the police were guilty of perjury, that they were guilty of
violence and threats, that the confessions were involuntary
and were improperly admitted in evidence and that the
convictions were erroneous…This is such an appalling vista
that every sensible person in the land would say; it cannot be
right these actions should go any further.”
November 1981 House of Lords uphold Lord Denning’s judgment.
May 1985 World in Action programme commissions two forensic
scientists to check Griess test – find that nitrocellulose gives
positive readings.
October 1986 Tom Clarke, former West Midlands policeman, alleges
Birmingham 6 assaulted in police custody.
20 January 1987 Home Secretary, Douglas Hurd, refers case back to Court of
Appeal.
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Autumn 1987 to
January 1988 Court of Appeal hears new evidence. Disbelieve police and
prison warders who say men assaulted by police. Find
problems with Griess test – but GCMS test reliable. Lord Lane
comments: “The longer this hearing has gone on, the more
convinced this court has become that the verdict of the jury
was correct.”
1990 Home Office order further investigations. Find some brands of
soap give positive Griess results. GCMS reading unreliable.
ESDA tests of police notebooks show that police lied about
contemporaneous notes. Case referred back to Court of
Appeal.
25 February 1991 Director of Public Prosecutions decides not to resist appeals.
14 March 1991 Court of Appeal (after hearing fresh evidence) quashes
convictions. The same day Home Secretary announces the
establishment of a Royal Commission on Criminal Justice. Lord
Justice Lloyd comments: “no human system can expect to be
perfect.”
7 October 1993 Charges against three police officers dropped.
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SEMINAR 17: MISCARRIAGES OF JUSTICE IN THE CRIMINAL COURTS
Please research and bring to your seminar one of the cases concerning the above men. Be
prepared to discuss why you have chosen that particular decision. What the material facts
and legal issues were and the outcome.
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LECTURE 18: REFORM OF THE DOUBLE JEOPARDY RULE AND THE ROLE OF THE CRIMINAL
CASES REVIEW COMMISSION
Objectives
Having successfully completed this unit you should be able to:
Understand how miscarriages of justice have occurred
Critically evaluate the mechanisms in place to stop them happening again.
What is the double jeopardy rule?
General principle of English law going back some 800 years.
“No one shall be tried for a second time for an offence of which he or she has already been
either convicted or acquitted.” Connelly v DPP [1964] AC 1254
For over 800 years a basic principle of law was that a person could not be tried twice for the
same offence. Part of the reason was that there had to be a finality to proceedings but also
it was considered wrong that the state could use its power to oppress a defendant by
repeated prosecutions.
Could not be tried again even if:
They admitted their guilt.
8 cases where this happened in last two years before law changed.
Fresh witnesses appeared.
New evidence turns up.
Technology.
Arguments against the change:
Certainty.
Weak evidence.
Fair trial? Is a second fair trial possible? Jury assumptions?
Rule discourages rotten policing? Knowing there is a second chance may make
police and CPS less rigorous. If acquitted may be unfairly targeted by the police.
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One MP said that concern arises not from some liberal adherence to the rights of the
defendants, but from the fact that the double jeopardy rule is the primary rule that
discourages rotten policing.
Arguments in favour of change:
Guilty should be convicted.
Introduction of DNA.
Miscarriages of justice work both ways.
Law should evolve and not stagnate.
Recent developments:
In more recent years this principle has been called into question. The development of
forensic techniques, particularly DNA made the government question whether justice was
better served by providing a power to reopen acquittals where there was overwhelming
new evidence that the defendant had indeed committed the offence rather than simply to
accept the acquittal.
Recent developments
Pressure for change in the light of the murder of Stephen Lawrence.
Home Secretary asks Law Commission to consider the law in this area.
Law Commission report (2001) recommends removal of rule in murder cases if
compelling new evidence available. There must be new evidence or a new way of
testing evidence not available at the first trial.
Auld Report 2001 – agreed with the Law Commission but felt too cautious in limiting
to murder. Said should have included violent rape, kidnap, armed robber who
shoots victim and drug importers.
Home Affairs Committee of the House of Commons – recommended retrial in certain
circumstances.
Part 10 of the Criminal Justice Act 2003 – example of retrospective legislation.
Effect of ss75-79 CJA 2003
S.75 – cases that may be retried.
S.76 – Court of Appeal may quash acquittal and consider retrial.
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S.78 – must be new and compelling evidence.
(a) is it reliable?
(b) is it substantial and
(c) in the context of the outstanding issues, it appears highly probative of the case
against the acquitted person.
S.79 – must be in the interests of justice for defendant to be retried. Also covers
acquittals abroad.
Whether a fair trial would now be unlikely?
Whether the prosecutor had failed to act with due diligence and expedition?
Prosecutor can apply to the Court of Appeal to have an acquittal set aside – but only
one application is allowed.
Reaction to changes?
The Bar Council and the Criminal Bar Association said “There is a real risk of harassment
from the state and press where both believe the acquitted defendant should be
retried…there is a real risk that disappointed investigators, particularly in high profile cases
may well wish immediately to recommence investigations after an acquittal, particularly if
there is pressure from the media, victims or politicians. Those with previous convictions
known to the investigating officer would also be a target. Officers with a personal dislike of
someone might wish to pursue him despite an acquittal.”
First case was that of William Dunlop who was convicted of the murder of Julie Hogg.
Julie Hogg was murdered in a sex attack in her home – 1989. Her body was found hidden
behind a bath panel in her home. Former boyfriend was tried for her murder but acquitted
in 1991. Dunlop told people he had killed Julie. The rule on double jeopardy meant that he
could not be tried again for that offence and so he was charged with committing perjury and
sentenced to 6 years in prison in April 2000. Julie’s mother became a strong campaigner to
end the law on double jeopardy in the hope that Dunlop could be tried and sentenced for
the murder.
When the DPP’s application came before the Court of Appeal Dunlop argued that an order
under s.77 to quash the acquittal and order a retrial would not be in the interests of justice
– a condition required by section 79.
Knowledge the jury would have of the history of the matter would mean he could not have
a fair trial, that the delay was so great as to render a retrial contrary to the interests of
justice and that it would not be fair to rely on his confession and plea to perjury as these
were made by him on the understanding that he could not be tried again for murder.
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The court looked at these reasons,
Guilty to perjury as this was an admission that he had lied on oath when he denied the
murder and using s.74.3 PACE Dunlop would be taken to have committed that offence
unless the contrary is proved.
As for the argument that Dunlop would not have made the admissions to the police that he
did if he had thought he might be retried – the court pointed out that he had made the
admissions to many people other than the police but that when he was interviewed under
caution he was aware of the Law Commission preparing its report on double jeopardy and
that he made the admissions to get psychiatric help for his violence. The court considered
that the issue was not so much whether it was fair that he should be exposed to the
jeopardy of another trial but whether it was fair having particular regard to the fact that he
had set out to put the record straight and pay the considerable penalty for perjury that he
should be exposed to further punishment for murder. The court addressed this issue by
quoting from the Law Commissions report
“There is the spectre of public disquiet, even revulsion, when someone is acquitted of the
most serious crimes and new material, such as that person’s own admission, points strongly
or conclusively to their guilt. Such cases may undermine public confidence in the criminal
justice system as much as manifestly wrongful convictions. The erosion of that confidence
caused by the demonstrable failure of the system to deliver accurate outcomes in very
serious cases is at least as important as the failure itself.”
In granting the application the court said that the public would be outraged if a retrial was
not ordered simply on the basis that Dunlop would not have made the confessions that he
did, had he appreciated that it might lead to his retrial. Dunlop subsequently entered a plea
of guilty at his arraignment in September 2006 and he was sentenced to the mandatory life
imprisonment with a minimum term of 17 years.
Case of Richard Miell – 1996 acquitted of the murder of Stephen Burton
Whilst in prison for unrelated offences he admitted to the murder on a number of
occasions. He made a confession to that effect. He was charged with perjury and received a
custodial sentence.
2007 – Miell arrested and interviewed by the police but now denied the murder saying that
he only admitted the murder to gain attention and in the hope this would help him get an
early release from prison.
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As in the case of Dunlop the DPP applied to the Court of Appeal to have the acquittal
quashed and a retrial ordered. The court had to decide whether Miell’s confession fulfilled
the criteria in s.78 of being reliable, substantial and highly probative. –Miell’s counsel
pointed out that the confession gave details of the murder which were at odds with the
known circumstances of the offence. The court considered Miells various admissions and
contradictions and said it found it very difficult to know what to make of all this and, were
there a retrial ,we think the jury would be in the same position.
Criminal Cases Review Commission
Until 1997 the Home Secretary dealt with applications by people claiming to be victims of a
miscarriage of justice. Criticism of the Home Secretary’s failure to refer cases back to the
Court of Appeal.
The Home Secretary would only refer cases back to the Court of Appeal when new evidence
or new considerations of substance cast doubt on a conviction.
1991 Royal Commission on Criminal Justice set up and it reports in 1993. It recommended
the establishment of an independent body to:
Consider suspected miscarriages of justice.
Arrange for an investigation where appropriate.
Refer cases to the Court of Appeal where matters need further clarification.
Statutory role and responsibilities
Criminal Appeal Act 1995 enabled Criminal Cases Review Commission to be set up in
January 1997.
Has jurisdiction over criminal cases at any Magistrates’ or Crown Court in England,
Wales and Northern Ireland.
Reviewing
Investigating
Consideration of the exercise of Her Majesty’s prerogative of mercy.
Has jurisdiction over criminal cases at any Magistrates or Crown Court in England,
Wales and Northern Ireland.
Not civil cases.
Committee of at least 3 members must decide.
Set up in January 1997 – started hearing cases from 31 March 1997.
Around 1,000 applications a year.
Approx 60% fall at first hurdle – haven’t appealed, outside jurisdiction.
3% applications end up at Court of Appeal – 70% of those referred are successful.
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40% sex offences
15% murder or manslaughter
15% violence against the person.
15% drugs offences.
What the CCRC cannot do?
Overturn a conviction.
Change a sentence.
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SEMINAR 18: REFORM OF THE DOUBLE JEOPARDY RULE AND THE ROLE OF THE CRIMINAL
CASES REVIEW COMMISSION
Before the seminar read the case of R v Bentley (Deceased) [2001] 1 Cr. App. R. 21 and
prepare written answers to the following questions.
1. Outline the facts of the case.
2. What was the main thrust of the prosecution case at the original trial?
3. What was Bentley’s appeal based on?
4. In what way were the police officers accounts different to Bentleys?
5. What was the outcome of the appeal?
Discuss the effect of the requirement that the Court of Appeal “judge the safety of the
conviction according to the standards which would now apply.
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LECTURE 19: YOUTH CRIME AND YOUTH JUSTICE
Objective:
Having successfully completed this unit you should be able to
Understand the historical development of the welfare model and the shift to a
justice model.
Be able to evaluate government responses to youth offending.
Young people as offenders
“Parents urged to talk more to their babies as part of a £4m police drive to cut youth crime.
The £4 million project aims to improve infants’ emotional development and cut the risk of
them growing up with behavioural problems that could cause them to drift into crime.
Scotland Yard officers will first identify families with potentially vulnerable children and pass
on details to health workers. Commander Rod Jarman said: ‘In some situations where a
baby is not in contact with many people there is poor socialisation later on and a propensity
to violence. Early intervention can make a big difference.” 20 August 2008
Contrast the following views:-
“And when they have wandered abroad till that be spent, what can they do then else but
steal, and then justly pardy be hanged, or else go about a begging and yet then also they be
cast in prison as vagabonds, because they go about and work not: whom no man will set to
work, though they never so willing proffer themselves thereto.” Thomas Moore in 16th
century England
“When it comes to youth offending, society should ‘condemn a little more and understand a
little less.” John Major, Prime Minister, 21 February 1993
Welfare v Punishment?
Welfare model:
• Move away from harsh physical punishment.
• Potential for rehabilitation.
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• Youth offending understood within the context of youth welfare.
• Young offenders to be seen as children first.
Punishment model:
Youth crime given increased public profile generated by the media.
Political attempts to harness public concern with parties vying to establish
themselves as custodians of law and order.
Punitive decision making encouraged and enforced.
Historical overview
Youthful Offenders Act 1854
Introduced Reformatories for the ‘dangerous classes.’
Children between 7 – 14 convicted of vagrancy sent to Industrial schools.
Children Act 1908
• Acceptance that children should be treated differently from adults.
• Marked a clearer separation from adult criminal justice.
• Separate juvenile courts.
• Borstals created for 16 – 21 year olds.
• Under 14’s barred from prisons.
Children and Young Persons Act 1933
• If you could fix the family you could stop the child offending.
• Highlighted need to protect children from bad company, moral danger and neglect.
• Strengthened the legal powers to remove children from their families.
• Prohibited capital punishment for those under 18.
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• Introduction of Approved Schools and Remand Homes.
Children and Young Persons Act 1963
• Age of criminal responsibility raised to 10.
Children and Young Persons Act 1969
• Often described as the ‘heyday of welfarism.’
• Young offenders relocated from the criminal justice system to welfare agencies.
• Decriminalisation of childhood.
• Introduction of Care Orders.
• Abolished system of Approved Schools and Remand Homes and replaced them with
Community Homes.
Punishment, Custody and the Community, 1988 Green Paper
“Most offenders grow out of crime as they become more mature and responsible. They need
encouragement and help to become law abiding. Even a short period of custody is quite
likely to confirm them as criminals, particularly as they acquire new criminal skills from the
more sophisticated offenders. They see themselves labelled as criminals and behave
accordingly.” (Home Office, 1988: paras 2.17-2.19).
Criminal Justice Act 1991
• Attempt to control behaviour of young offenders whilst keeping them out of prison.
• Power for courts to bind over parents who “failed to take proper care and exercise
proper control over the child.” (CJA, 1991/58)
• Changed name of juvenile court to youth court.
• Extended jurisdiction to include 17 year olds.
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• Emphasised the importance of inter-agency working.
The murder of James Bulger – often referred to as a defining moment in the youth justice
debate
• 12 February 1993 CCTV camera in shopping centre records 2 year old boy being led
away.
• Two ten year old boys charged with his murder.
• 38 Witnesses claimed they saw two boys kicking and beating James – no-one
intervened.
• 14 February 1993 police recover body from railway line. James Bulger had been hit
with bricks and iron bars. His body laid across a railway line to make it look like he
had been hit by a train.
• November 1993 – Robert Thompson and Jon Venables tried in an adult criminal
court.
• Sentenced to 8 years detention.
But consider the following:
• R v Secretary of State for the Home Department, Ex parte Venables; R v Same, Ex
parte Thompson (1997) published 13 June 1997, The Times
• V v United Kingdom (App no: 24888/94) [1999] ECHR 24888/94
Criminal Justice and Public Order Act 1994
• Increased maximum sentence from one year to two years in a Youth Offending
Institution for 15 – 17 year olds.
• Introduction of secure training orders aimed at persistent offenders.
• Custodial sentences for children aged 12.
No More Excuses – A New Approach to Tackling Youth Crime in England and Wales
(Home Office White Paper, Cm 3809, 1997)
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“Within our youth justice system, punishment is important to signal society’s disapproval of
criminal acts and to deter offending. It is the appropriate response to children and young
people who wilfully break the law...an excuse culture has developed within the youth justice
system. It excuses itself for its inefficiency and too often excuses the young offenders before
it, implying that they cannot help their behaviour because of their social circumstances...we
must stop making excuses for youth crime.” (Home Office, 1997, preface).
The White paper found:
“Confusion about the purpose of the youth justice system and the principles that should
govern the way in which young people are dealt with by youth justice agencies. Concerns
about the welfare of young people have too often been seen as in conflict with the aims of
protecting the public, punishing offences and preventing offending. The Government does
not accept that there is any conflict between protecting the welfare of a young offender and
preventing that individual from offending again. Preventing offending promotes the welfare
of the individual young offender and protects the public.” (Home Office, 1997: para.2.1-2)
Crime and Disorder Act 1998
(s.37) ‘It shall be the principal aim of the youth justice system to prevent offending
by children and young people.’
Strategy to prevent offending and reoffending.
Offenders and their parents to face up to offending behaviour and take responsibility
for it.
Early intervention.
Partnership between all youth justice agencies so that they are more effective.
Establishment of Youth Justice Board (s.41)
Creation of local authority Youth Offending Teams
Abolition of doli incapax. (s.34)
Abolition of doli incapax (‘incapable of evil’)
Consider R v T (Child: Doli incapax) [2008] EWCA Crim 815
Establishment of the Youth Justice Board
“The YJB oversees the youth justice system in England and Wales. We work to prevent
offending and reoffending by children and young people under the age of 18, and to ensure
that custody for them is safe, secure, and addresses the causes of their offending behaviour.
We base all our work on evidence where this exists. Our vision is of an effective youth justice
system where: more offenders are caught, held to account for their actions and stop
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offending. Children and young people receive the support they need to lead crime-free lives.
Victims are better supported and the public has more confidence in the youth justice system”
www.yjb.gov.uk
Is Restorative Justice the way forward?
For example Family group conferencing
“Ensuring that children are prevented from offending at the earliest possible opportunity is
key priority for the Youth Justice Board and Youth Offending Teams. Family group
conferencing is an important restorative justice technique to ensure that families understand
the risks that their children might pose to themselves, others and the wider community. It
encourages families to support their child, so that they are more likely to lead a law-abiding
life.” Youth Justice Board
FGC’s can produce tailor made plans that will directly support young offenders.
FGC’s seek to work with families encouraging them to be creative in designing
solutions.
FGC is not backed by any statutory sanctions.
No coercion on families to attend.
Families make decisions about their children.
Role for professionals as gatekeepers of resources.
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SEMINAR 19: YOUTH CRIME AND YOUTH JUSTICE
Please read the following two articles available on myunihub and come to the seminar
prepared to discuss what you believe the law’s response should be to children who kill.
Criminal Responsibility and Children: a new defence required to
acknowledge the absence of capacity and choice. C. Elliott, Journal of
Criminal Law, 2011 and
Sentencing Children Who Kill: One Giant Leap for the US Supreme Court,
One Small Step for International Human Rights Law, B. Malkani, HR Law
Review, 2012.
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LECTURE 20: WOMEN AND CRIMINAL JUSTICE
Objective
Having successfully completed this unit you should be able to:
Understand the different approaches taken to male and female offending.
Evaluate some of the key contemporary issues in the debate around gender and
crime.
Consider the following:
Women are sent to prison for less serious crimes.
Women make up a very small proportion of the overall prison population.
The most common offence for which women are sent to prison is theft.
Historical background:
Paternalistic in nature – in the middle ages women were seen as being under the head of
the household and were deemed to be his property.
Role of the Ecclesiastical Court – as communities grew in size and the nature of the state
changed, legal proceedings become more formalised. Records of previous decisions of the
court were used to declare the law. This body of cases and the principles that were inferred
from them became the common law. The church had a very low opinion of women – in this
court women were tried as witches – trials eventually taken over by the assizes – the
ordinary criminal courts. If convicted they were executed. Important to remember that
until comparatively recently women played no role in the enactment of legislation. It wasn’t
until they had the vote and were able to enter Parliament that this was achieved. They
could not initiate a legal action or own property as this would indicate they were a separate
legal entity.
What affects the decision to send a woman to prison? Judges decide…
“Women who live more ordered lives don’t commit crime because with a husband and
children to look after they don’t have time.”
“It may not be necessary to send her to prison if she has a husband. He may tell her to stop
it.”
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“Women with steady husbands don’t commit crime – they are kept occupied.”
“If she’s a good mother we don’t want to take her away. If she’s not a good mother it
doesn’t really matter.”
“If you discover that a woman has no children it clears the way to send her to prison. If she
has children but they are in care then I take the view that she is footloose and fancy free and
I treat her as a single woman.”
“If they have left their husbands and their children are already in care it may seem a very
good idea to send them to prison for three months.”
Increase in female prisoners:
1,811 in 1994
4,371 in 2004
Currently 3,906 – contrast with 81,735 men in prison.
Should these women be in prison?
Less than 29% violent offences.
35% have no previous convictions – more than double the figure for men.
Women often receive a short sentence but this can mean they lose their homes and
jobs.
64% of female prisoners reoffend within 2 years of their release.
No national statistics on how many children are taken into care because their
mothers have been imprisoned. Lack of information on what happens to babies who
are born in prison and then removed when they are older.
66% of female prisoners were held on remand.
42% go on to receive a custodial sentence.
20% acquitted.
Lack of suitable bail accommodation.
Equal treatment of offenders?
Evidence of favouring prison over community sentence.
Sent to prison earlier.
Punished by prison for less serious crimes.
Lack of child friendly visiting hours – visiting times are often during school times.
Visiting times remain at the discretion of the individual governor.
Lack of grace period of time for nonviolent offenders – a grace period would enable
a mother to be accompanied home to make the necessary arrangements for her
children’s care.
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Women offenders and provocation
1957 introduction of two statutory defences to murder which reduced the offence to
manslaughter.
Provocation and diminished responsibility.
The case of Ruth Ellis – the last woman to be hanged in the UK
Counsel for the prosecution: “When you fired that revolver at close range into the body of
David Blakely, what did you intend to do?”
The Defendant: “It is obvious that when I shot him, intended to kill him.”
Consider the case of R v Ahluwlia [1992] 4 All ER 889
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SEMINAR 20: WOMEN AND CRIMINAL JUSTICE
Please read the chapter from Eve Was Framed entitled Man-Slaughter on MyLearning and
come to the seminar prepared to discuss the following:
1. Outline Kennedy’s argument. Do you agree/disagree with her view of the way
women are treated in the criminal justice system?
2. Explain the relevance of the partial defence of provocation to the case of Ruth Ellis.
3. What criticisms does Kennedy make of the Counsel who represented Ruth Ellis at her
trial?
4. What are the problems encountered by women when adopting the standard of the
reasonable man?
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LECTURE 21: GUEST LECTURE
WEEK 22
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WEEK 23 – DROP IN SESSION DURING LECTURE SLOT
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WEEK 24 – SELF-LEARNING
