Examination Questions for AS Law

 

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The English Legal System

 The below questions are all taken from past OCR exam papers.

[Guide: Always do a brief plan - Answer the Question]

 

Timing: 30 minutes each question (make use of the Planning/Writing frames).

 

Recent OCR exam papers (with mark schemes) can be found via http://www.sociologyblog.co.uk/pub/?p=3751

 

ELS1 (Section A OCR May 2010)

(a) Describe the qualifications and training of both barristers and solicitors. [18]

(b) Discuss the problems associated with training for both barristers and solicitors. [12]

 

ELS2 (Section A OCR May 2010)

(a) Describe the roles of judges in civil cases both at first instance and in appeal courts. [18]

(b) Discuss the advantages and disadvantages of replacing all lay magistrates with district judges. [12]

 

ELS3 (Section A OCR May 2010)

(a) Describe the different methods of Alternative Dispute Resolution available to deal with civil cases. [18]

(b) Discuss the advantages and disadvantages of using arbitration rather than using the courts. [12]

 

ELS4 (Section A OCR May 2010)

(a) Describe the aims of sentencing and the factors that are taken into account when sentencing an individual. [18]

(b) Discuss which sentences would be most appropriate when the main ain of sentencing is the prevention of crime. [12]

 

ELS5 (Section A OCR May 2010)

(a) Describe the qualifications and selection procedure for choosing a jury. [18]

(b) Discuss the arguments for and against keeping the secrecy of the jury room. [12]

 

ELS6 (Section B OCR May 2010)

(a) Describe how it is decided whether or not to grant bail to a person awaiting trial. [18]

(b) Kelly is suspected of having committed a robbery. She has several previous convictions for theft and credit card fraud. She lives with her three children and has complied with bail conditions in the past. Explain which factors and conditions are likely to be considered when making a decision regarding bail for Kelly. [12]

 

ELS7 (Section B OCR May 2010)

(a) Describe the rights of a person who is suspected of committing a serious offence, whilst detained, interviewed and searched at the police station. [18]

(b) Matilda is arrested on suspicion of burglary. She is taken to the police station and given an intimate search by a female police officer to search for stolen credit cards. Fingerprints and a sample of blood are taken from Matilda by force. She is detained for 30 hours before she is allowed access to legal advice. Explain whether Matilda's treatment at the police station was lawful. [12]

 

ELS8 (Section A OCR January 2010)

(a) Describe the jurisdiction of both the High Court and the County Court in civil cases including the track system. [18]

(b) Discuss the advantages and disadvantages of the small claims track. [12]

 

ELS9 (Section A OCR January 2010)

(a) Describe the various types of publicly funded advice and representation available in criminal cases. [18]

(b) Discuss the problems associated with the funding of criminal cases. [12]

 

ELS10 (Section A OCR January 2010)

(a) Describe the qualifications, selection and training of judges. [18]

(b) Discuss whether or not the changes to the selection of judges is leading to a wider cross section of people becoming judges. [12]

 

ELS11 (Section A OCR January 2010)

(a) Describe the various roles lay magistrates play in both criminal and civil cases. [18]

(b) Discuss the advantages of having lay magistrates in the English legal system. [12]

 

ELS12 (Section A OCR January 2010)

(a) Describe the powers of the police to stop and search a person on the street. [18]

(b) Discuss whether the balance of interests between crime prevention and individual rights is maintained by the current rules on stop and search on the street. [12]

 

ELS13 (Section B OCR January 2010)

(a) Describe how it is decided in which court a criminal trial of an adult offender will be heard. [18]

(b) Pedro is pleading not guilty to a charge of the theft of a wallet from his colleague's desk at work. Theft is a triable either way offence. Discuss the matters Pedro should consider when choosing in which court to be tried. [12]

 

ELS14 (Section B OCR January 2010)

(a) Describe the custodial and community sentences available for adult offenders convicted in both the Magistrates' Court and the Crown Court. [18]

(b) Dimitri, who has two previous convictions for minor assaults, broke a shop window whilst drunk and has been convicted of criminal damage in the Magistrates' Court. Explain which aims of sentencing are likely to be considered when deciding the sentence for Dimitri and suggest possible sentences. [12]

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ELS15 (Section A OCR June 2009)

(a) Describe and explain the various types of publicly funded advice and representation available in criminal cases. [18]

(b) Discuss the problems of publicly funded advice and representation in criminal cases. [12]

 

ELS16 (Section A OCR June 2009)

(a) Describe both the training of solicitors and how complaints about solicitors are made and dealt with. [18]

(b) Discuss the extent to which recent developments have lessened the differences between barristers and solicitors. [12]

 

ELS17 (Section A OCR June 2009)

(a) Describe both the selection and the training of lay magistrates. [18]

(b) Discuss the disadvantages of using lay magistrates to deal with criminal cases. [12]

 

ELS18 (Section A OCR June 2009)

(a) Describe both the training of judges and their role in the criminal courts, including first trial and appeal courts. [18]

(b) Discuss the extent to which the training of judges adequately prepares them for the work they undertake. [12]

 

ELS19 (Section A OCR June 2009)

(a) Describe the custodial, community and other sentences available for young offenders. [18]

(b) Discuss which sentences are most likely to prevent a young offender from further offending. [12]

 

ELS20 (Section B OCR June 2009)

(a) Describe the rights during detention at a police station of an individual suspected of a serious offence. [18]

(b) Hamish (aged 25) has been arrested and taken to the police station on suspicion of taking part in a bank robbery. He has been given the usual rights during interviews and searches. Discuss whether these rights are adequate to protect Hamish. [12]

 

ELS21 (Section A OCR June 2009)

(a) Describe the process of deciding in which court a criminal trial will be heard. Include all categories of offence. [18]

(b) Tim has been charged with criminal damage to the value of £10,000 at a children's playground. Identify in which courts Tim could be tried and discuss the advantages and disadvantages there are to him to be tried in each court. [12]

 

ELS22 (Section A OCR January 2009)

(a) Describe both publicly funded legal representation in civil cases and conditional fee agreements. [18]

(b) Discuss the problems of providing access to justice to all those who need a remedy in civil cases. [9]

 

ELS23 (Section A OCR January 2009)

(a) Describe both the training of barristers and how complaints about barristers are made and dealt with. [18]

(b) Discuss the advantages and disadvantages of the current system of training barristers. [9]

 

ELS24 (Section A OCR January 2009)

(a) Describe the different methods of Alternative Dispute Resolution (ADR) available to deal with civil cases. [18]

(b) Discuss the advantages and disadvantages of using mediation and conciliation rather than using the courts. [9]

 

ELS25 (Section A OCR January 2009)

(a) Describe both the qualifications required for jurors and the procedures for selecting a jury. [18]

(b) Discuss the arguments for retaining juries. [9]

 

ELS26 (Section A OCR January 2009)

(a) Describe the powers of the police to arrest a person on the street. [18]

(b) Discuss the extent to which the rights of the individual are adequately protected during arrest on the street. [9]

 

ELS27 (Section B OCR January 2009)

(a) Describe how it is decided whether or not to grant bail to a person awaiting trial. [18]

(b) Damien is charged with the serious offence of robbery. He is alleged to have used a knife. He has two previous convictions of theft. He has kept to previous bail conditions. He lives locally with his wife and two children. Explain which factors and conditions are likely to be considered when making a decision whether or not to grant bail to Damien. [9]

 

ELS28 (Section B OCR January 2009)

(a) Describe both the aims of sentencing and the factors which are taken into account when sentencing an individual. [18]

(b) Bethan (aged 16) has been convicted of the serious offence of robbery. She has several convictions for theft and has previously been goved a Supervision Order and an Attendance Centre Order.Explain which would be the main aims and factors likely to be used when deciding the appropriate sentence for Bethan. [9]

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ELS29 (Section A OCR June 2008)

(a) Describe the different methods of Alternative Dispute Resolution available to deal with civil cases. [18]

(b) Discuss the advantages and disadvantages of using arbitration rather than using the courts. [9]

 

ELS30 (Section A OCR June 2008)

(a) Describe the role of juries in both criminal and civil cases. [18]

(b) Discuss the arguments for retaining juries. [9]

 

ELS31 (Section A OCR June 2008)

(a) Describe the theory of the separation of powers using examples to illustrate your answer. [18]

(b) Discuss why the theory of the separation of powers is important to judicial independence. [9]

 

ELS32 (Section A OCR June 2008)

(a) Describe the custodial, community and other sentences available for adult offenders convicted in the Crown Court. [18]

(b) Discuss which types of sentence would be most appropriate where the main aims of sentencing are rehabilitation and reform. [9]

 

ELS33 (Section A OCR June 2008)

(a) Describe the ways in which a client can make a complaint about their solicitor or barrister or otherwise claim compensation. [18]

(b) Discuss whether the current system for clients to make such complaints is satisfactory. [9]

 

ELS34 (Section B OCR June 2008)

(a) Describe the powers of the police to stop and search a person on the street. [18]

(b) Luke is running through a park, where an anti-war protest is taking place. He is trying to get to a football match on time. He is carrying a sports bag. Two police officers stop him and ask to search him and his bag.Explain to Luke whether the police have the power to stop and search him in this situation. [9]

 

ELS35 (Section B OCR June 2008)

(a) Describe the different appeal routes available to the defence from both the Magistrates' Court and the Crown Court. [18]

(b) Brian has been convicted in the Crown Court of the theft of a laptop computer worth £2000 and sentenced to 2 years imprisonment. He wishes to appeal against the conviction because a new witness has come forward. He also wishes to appeal against the sentence which he considers too harsh. Advise Brian in this situation. [9]

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ELS36 (Section A OCR January 2008)

(a) Describe the various roles lay magistrates play in both criminal and civil cases. [18]

(b) Discuss the disavantages of using lay magistrates to make decisions in criminal matters. [9]

 

ELS37 (Section A OCR January 2008)

(a) Describe the civil appeals system from both the County Court and the High Court. [18]

(b) Discuss the problems of using the court system to solve civil disputes. [9]

 

ELS38 (Section A OCR January 2008)

(a) Describe the selection and tenure of different types of judges. [18]

(b) Discuss whether or not the changes to the selection of judges should lead to a wider cross section of people becoming judges. [9]

 

ELS39 (Section A OCR January 2008)

(a) Describe the various sources of legal advice available for civil matters. [18]

(b) Discuss the problems associated with the availability of legal advice in civil cases. [9]

 

ELS40 (Section A OCR January 2008)

(a) Describe the training of both barristers and solicitors. [18]

(b) Discuss the problems associated with training for both barristers and solicitors. [9]

 

ELS41 (Section B OCR January 2008)

(a) Describe the rights during detenion at the police station, of a person suspected of a serious offence. [18]

(b) Jack is arrested on suspicion of robbery. He is taken to the police station and given an intimate search by a police officer to search for stolen property. Fingerprints and samples of hair and blood are taken from Jack by force. Explain to Jack whether his treatment at the police station was lawful. [9]

 

ELS42 (Section B OCR January 2008)

(a) Describe the custodial, community and other types of sentence available to young offenders. [18]

(b) Hannah, aged 18, has pleaded guilty to a charge of burglary. She has two previous convicions, one for theft and one for burglary, both when she was 15 years old. She had previously been given a supervision order and an attendance centre order. Discuss the likely sentences which would be considered for Hannah in light of the above factors. [9]

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SOURCES of LAW

The below questions are all taken from OCR past exam papers.

[Guide: A minute a mark. Always do a plan - Answer the Question]

Students are advised to print off the Source materials.

 

SOL1. Delegated Legislation (OCR June 2010)

Source

Delegated legislation is the description given to the vast body of orders in council, statutory instruments and bylaws created by subordinate bodies under specific powers delegated to those bodies by Parliament. The need for delegated legislation is that it enablies regulations to be made and altered quickly. The powers delegated are frequently defined in the widest terms. An example is the Human Rights Act which empowers a minister to make such amendments to legislation, or subordinate legislation, as he considers appropriate in order to remove incompatibility with the European Convention on Human Rights.

The powers to delegate are subject to the control of Parliament but, where the legislative power is conferred on a minister, this may not be an effectice control. Delegated legislation is valid if the right to make it is conferred by Parliament (intra vires - inside the powers). If it is not it is said to be ultra vires by a judgment in an action in the coruts, it must be treated as part of the law and enforced accordingly. The courts treat delegated legislation differently from primary legislation. Unlike an Act of Parliament, delegated legislation can be declared invalid, because it is ultra vires.

Adapted from 'Walker & Walker's English Legal System', R. Ward 8th Edition, Butterworths.

Examination Question - Answer all parts.

(a) Describe the need for delegated legislation using the Source and your knowledge of delegated legislation. [15]

(b) Identify and explain the most suitable type of delegated legislation to implement law in the following situations:

(i) To implement a European Union Directive quickly when Parliament is not sitting. [5]

(ii) To allow a government department to issue regulations on education. [5]

(iii) For a train company (a public corporation) to implement a ban on the use of mobile phones by passengers. [5]

(c) With reference to theSource and your knowledge of delegated legislation.

(i) Describe the controls on delegated legislation. [15]

(ii) Discuss the effectiveness of the controls on delegated legislation. [15]

[Total marks 60]

………………………………………………..

 

SOL2. Delegated Legislation (OCR June 2010)

Source A

The House of Lords has the power to overrule its own past decisions using the 1966 Practice Statement. The use of the Practice Statement is illustrated in the case of A v Hoare (2008). In this case the defendant was convicted of rape in 1989 and sent to prison. In 2004 he was released on licence and then won £7 million on the lottery. The claimant then sought to claim damages for the rape. Under the precedent decided in Stubbings v Webb (1993) the claimant would not be entitled to compensation because she had not started her claim in time. The House of Lords used the Practice Statement overruling Stubbings v Webb so as to give courts flexibility in allowing cases to proceed in such circumstances.

The House of Lords decision to overrule Stubbings does not come as a great surprise, the decision having been described as unbalanced by the Law Commission when reviewing this area in 2001. It recommended a number of changes in this area. No steps were ever taken to implement any further legislation, perhaps as Lord Hoffman suggests in the Hoare judgment, because the Commission's recommendations were not confined to the Stubbings inconsistency but proposed a completely new law. This has been a common problem for the Law Commission and its recommendations.

Extract adapted from: http://www.bevanbrittan.com/metis/article/claims/col30/col30c_rick1.asp

Source B

The Law Commission was established in 1965 with the duty to keep the law under review. It has five full-time commissioners all of whom are lawyers, and are appointed by the Lord Chancellor. The Law Commission has made a significant impact on the development of the law but it has encountered many problems. One major issue involves the inconsistent implementation by Parliament of the Law Commission's proposals.

Examination Question - Answer all parts.

(a) With reference to Source A and other cases.

Describe the use of the Practice Statement. [15]

(b) Explain the power of the House of Lords in the following situations:

(i) A case similar to A v Hoare is about to be heard by the House of Lords. [5]

(ii) The House of Lords is hearing an appeal in 1965. There is a previous precedent on this issue from the House of Lords in 1960. [5]

(iii) A case comes before the House of Lords. There is a previous decision by the Privy Council which conflicts with an earlier decision of the House of Lords. [5]

(c) With reference to Source A and Source B and your knowledge.

(i) Describe the role of the Law Commission. [15]

(ii) Discuss the problems encountered by the Law Commission in fulfilling its role. [15]

[Total marks 60]

………………………………………………..

 

SOL1. European Union (EU) Law (OCR June 2009)

Source A: Gibson v East Riding of Yorkshire (1999)

Gibson, a swimming pool instructor, employed by her local authority, was paid an hourly rate and was not paid during school holidays. Gibson was entitled to four weeks' paid annual leave under the Working TIme Directive (93/104/EC) which was directly enforceable by her.

Gibson had appealed against a decision of an employment tribnual on the grounds that it had erred in law in failing to apply Article 7 of the Directive which provided that every worker was entitled to paid leave of at least four weeks and which was directly enforceable by the applicant against the local authority as a emanation of the state.

Mr Justice Morison stated that, although directives had direct effect, they did so only in relation to employees of an emanation of the state. That was because the Directive itself was a provision directed to national governments and the state.

Source B

It is the European Court of Justice (ECJ), perhaps more than any other European body, which has made the EU what it is today: not simply a loosely connected trade bloc, but a close knit international legal structure which exercises vital influence upon our policy and economy. The Treaty of Rome refers only in passing to the role of the Court. Few could have anticipated the imagination and determination which would be brought to bear by the Court in ensuring that EU law is observed. Despite the limitations of the European Commission, the Court has created a system by which each and every individual beneficiary of EU legal rights can enforce those rights in the courts of his or her own domestic legal system.

Adapted from: The case for the European Court, Lord Irvine of Lairg LC, The Times, 28 April 1998

Examination Question - Answer all parts.

(a) Source A refers to directives.

Describe how directives become law in Member States. [15]

(b) Consider whether any of the following individuals could succeed in an action against their employers for failure to comply with an unimplemented directive.

(i) Carlos, an employee of a privatised (formerly state owned) gas company. [5]

(ii) Wu, an employee of a hospital. [5]

(iii) Kelvin, an employee of a car manufacturer. [5]

(c) With reference to Source B and your knowledge of European Union law:

(i) Describe and illustrate the role of both the European Commission and the European Court of Justice (ECJ). [15]

(ii) Discuss the effect of the decisions of the ECJ on the enforcement of EU legal rights. [15]

[Total marks 60]

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SOL2. Judicial Precedent and Law Reform (OCR June 2009)

Source A

Their Lordships ... recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law ... they propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from previous decisions when it is right to do so.

In this connection they will bear in mind ... the especial need for certainty in the criminal law. This announcement is not intended to affect the use of precedent elsewhere than in this House.

Extract adapted from:'The House of Lords Practice Statement 1966'

Source B

R v R and G (2003) UKHL 50

Two young boys set fire to some newspapers in a shop yard. After they left, the fire spread to the shop itself and to other shops. They were charged with arson under the Criminal Damage Act 1971. The court had to decide the meaning of the word 'reckless' in the Act. Prior to the passing of the Act there had been a report by the Law Commission. However, in Metropolitan Police Commissioner v Caldwell (1981), the House of Lords had refused to look at the report but instead gave an objective meaning of recklessness (i.e. that a defendant would be guilty if an ordinary adult would have realised the risk). In R v R and G the court consulted the report and using the Practice Statement overruled Caldwell.

Extract adapted from: Key Cases English Legal System, Martin & Turner, Hodder.

Examination Question - Answer all parts.

(a) Source B refers to the Law Commission.

Describe the role of the Law Commission. [15]

(b) Explain the power of the House of Lords in the following situations.

(i) A case similar to R v R and G comes before the House of Lords. [5]

(ii) The House of Lords is hearing an appeal from the Court of Appeal. The Court of Appeal refused to follow the House of Lords precedent. [5]

(iii) A case comes before the House of Lords. There is a previous House of Lords decision but it conflicts with a decision of the European Court of Justice. [5]

(c) Source A and Source B both refer to the Practice Statement.

(i) Describe the use of the Practice Statement using the Sources and other cases. [15]

(ii) Discuss the advantages and disadvantages of the Practice Statement being limited to the House of Lords. [15]

[Total marks 60]

………………………………………………..

 

SOL3. Statutory Interpretation (OCR January 2009)

Source: R v Deegan [1998]

Section 139 Criminal Justice Act 1988 states that it is an offence to have a 'bladed article in a public place' but that this does not include a 'folding pocket knife'.

The defendant had a folding pocket knife. However, when it was opened, it could be locked into the open position and could not be folded again until a button had been pressed: it was not foldable at all times. He was charged with the offence of having 'a bladed article in a public place' contrary to section 139 Criminal Justice Act 1988.

The court had to decide whether or not this sort of knife came within tthe definition of a 'folding pocket knife'. If it did the defendant would be found not guilty.

The court looked at Hansard to try to discover the intention of Parliament (commonly used with the purposive approach). Having read the debates, Lord Justice Waller held that the statements of the Ministers were not clear in the sense that Pepper v Hart required, because the phrase 'locking pocket knives' was an ambigous phrase. If the court attempted to define the phrase it would go beyond its proper function. It would no longer be interpreting the intention of Parliament; it would be writing the legislation it thought was reasonable. In these circumstances the court did not think that the conditions in Pepper v Hart were fulfilled and that it was legitimate to take into account the statements reported in Hansard.

The knife was held not to be a 'folding pocket knife' and the defendant's appeal against conviction was dismissed.

Examination Question - Answer all parts.

(a) The Source refers to Hansard.

Describe the court's use of Hansard, using the Source and other cases to illustrate your answer. [15]

(b) Explain whether or not the following defendants would be guilty of an offence under section 139 Criminal Justice Act 1988 of having a 'bladed arrticle in a public place'. using the Source and your knowledge of statutory interpretation.

(i) Mark, a trainee chef, is carrying kitchen knives on his way to work. [5]

(ii) Shadap is going on a camping trip and has a folding pocket knife which could be locked in the open position. [5]

(iii) Marcus is taking a box to a charity shop. He is not aware that the box contains a number of bladed articles. [5]

(c) (i) The Source refers to the courts trying to the purposive approach:

Describe the purposive approach using the Source and decided cases to illustrate your answer. [15]

(ii) The Source refers to the courts trying to find the intention of Parliament:

Discuss, with reference to the Source, the difficulties associated with finding Parliament's intention when interpreting an Act.  [15]

[Total marks 60]

………………………………………………..

 

SOL4. Exercise on Delegated Legislation and Law Reform (OCR January 2009)

Source A

The Legislative and Regulatory Reform Act (2006) sets out the procedure for the making of statutory instruments which are aimed at repealing an existing law. Under section 13 of the Act, the Minister making the statutory instrument must consult various people and organisations. These include:

Orders made under this power of this Act must be laid before Parliament. There are three possible procedures:

Source B

Delegated legislation can be challenged through the courts. The questioning of the validity of delegated legislation may be made through judicial review procedure, or it may arise in a civil claim between two parties, or on appeal.

Adapted from: The English legal System. J. Martin 5th Edition, Hodder.

Examination Question - Answer all parts.

(a) Source A refers to the Law Commission. Describe the role of the Law Commission. [15]

(b) Explain in the following situations if there would be a successful judicial review.

(i) A government minister wishes to repeal an old law. He has not cosulted relevant bodies, which are affected by the proposals, before introducing new regulations. [5]

(ii) A government minister is given power to make regulations concerning legal funding. He has now introduced a regulation on immigration. [5]

(iii) A government minister has made regulations which are argued to be unreasonable. [5]

(c) (i) Source A refers to statutory instruments:

Describe statutory instruments and two other types of delegated legislation using the Source and other examples. [15]

Source A and Source B refer to a number of controls.

(ii) Discuss the effectiveness of Parliamentary and judicial controls over delegated legislation. [15]

Total Marks [60]

............................................

 

SOL5 European Union Law - (OCR June 2008)

Source A

Marshall v Southampton Area Health Authority (1986)

Miss Marshall, a dietician, was compulsorily retired by the Health Authority from her job when she was 62, although she wished to continue to 65, the State retirement age for men. It was the Authority's policy that the normal retiring age for its employees was the age at which State retirement pensions became payable: for women this was 60, though the Authority had waived the rule for two years in Miss Marshall's case. She claimed that the Authority was discriminating against her by adopting a policy that employees should retire at state pension age, hence requiring women to retire before men. The national court made reference to the European Court of Justice (ECJ) asking for directions on the meaning of the Equal Treatment Directive. The ECJ found that there was a conflict with the UK law, and the UK changed its legislation to conform.

Source B

Directives may have vertical direct effect but not horizontal direct effect. This means that they impose obligations on Member States and not on individuals.

The ECJ has found a number of ways to widen access where the principle of vertical direct effect applies. First, it has defined 'the State' very broadly to include all public bodies, including local authorities and nationalised industries. This meant in Marshall v Southampton AHA the claimant could rely on the Directive even though she was not suing the Government itself, because her employer was considered part of the State.


Source A and B adapted from: English Legal System, Elliot & Quinn, Longman.


Answer all parts.

(a) Source A at lines 7-10 refers to the European Court of Justice (ECJ).
Describe the role and composition of the European Court of Justice. [12]

(b) Using Source B, consider whether any of the following have a claim against their employers for a failure to comply with a directive.

(i) Bert is a midwife working for a private hospital. [5]
(ii) Winston is an accountant working for a company which was owned by the Government twenty years ago. [5]
(iii) Letitia is a dog warden working for a local council. [5]

(c) With reference to Source A and Source B:

(i) Using the sources and other examples, describe directives and how they become law in Member States. [15]

(ii) 'Directives can never have horizontal direct effect.'

Discuss the problems which are caused by this. [12]

QWC [6 marks]
[Total marks 60]

............................................

 

SOL6 Delegated Legislation - (OCR June 2008)

Source A

Steve Thoburn, the market trader convicted in Sunderland Magistrates' Court this week for selling fruit in pounds and ounces alone, rather than along with metric measures, was not prosecuted under the law as it is usually understood - a statute passed after deliberation by MPs and Peers. He was prosecuted under 'delegated legislation'. The case was brought under the Units of Measurement Regulations 1994 - which came into effect in 2000.

Parliament passed 3,412 similar regulations last year. MPs have only been back at work a few days after the Christmas break and already they have passed 60 of them. While Parliament gets to "see" them, few have even the remotest chance of being debated, let alone defeated.

There is nothing new about government's use of statutory instruments or SIs - the annual average has been rising in recent years. (Annual records began in 1895).


From Edward Page, Whitehall's bread and butter, 19 January 2001

(C) Guardian News & Media Ltd 2001

Source B

There are a variety of controls of delegated legislation. Judicial controls include procedural ultra vires (where the correct procedures have not been followed) and substantive ultra vires (where the Minister has gone beyond the powers given to him). The courts are also concerned with reasonableness and decisions that are not considered valid where no reasonable person would have made them. Parliamentary controls include negative and affirmative resolutions. It is argued that the controls on delegated legislation are not sufficient and need improving.


Adapted from Terence Ingman, The English Legal Process.


Answer all parts.

(a) Source A refers to statutory instruments.
Describe and illustrate statutory instruments and two other types of delegated legislation. [12]

(b) Discuss whether the delegated legislation could be successfully challenged in the courts, in the following situations.

(i) A Local Authority creates a byelaw banning singing near houses. It is designed to stop carol singers. [5]
(ii) A Minister has been given power to make delegated legislation in legal funding. He introduces regulations concerning health care. [5]
(iii) A Minister brings a statutory instrument into force without consulting all the parties specified in the Enabling Act. [5]

(c) (i) Describe the need for delegated legislation. [15]

(ii) Discuss the disadvantages of delegated legislation. [12]

QWC [6 marks]
[Total marks 60]

............................................

 

SOL7 Judicial Precedent - (OCR January 2008)

Source

While there are complex rules regarding when courts can avoid their own past precedent, one aspect of the doctrine of precedent is quite simple. A court in England or Wales is strictly bound to follow the decisions of a court of equal to or higher than it in the hierarchy of the courts, subject to well defined exceptions.

In the important case of R v Holley (2005), the Privy Council, hearing an appeal from the court of appeal in Jersey, decided that the House of Lords was wrong in R V Smith ( Morgan James) (2000). Smith has been unpopular with both judges and academics. However, as we know, Holley is at best persuasive precedent. In fact, the Privy Council had already decided in previous cases, that where a case before it was in effect bound be English law, then it should follow it. On this basis the result of Holley should have been clear; the Privy Council should have followed Smith.

In a more recent case, R V James and Karimi (2006), the Court of Appeal (Criminal Division) had to consider whether to apply Smith or whether it had, in fact, been overruled by the Privy Council in Holley. The Court of Appeal chose the latter view and held that, in exceptional circumstances, a decision of the Privy Council can take precedence over a decision of the House of Lords. What the Court of Appeal did in James and Karimi was, in effect, to overrule the precedent of a higher court.


Adapted from, ‘A –Level Law Review Vol 2, No1’, Chris turner, Philip Allan updates.


Answer all parts.

(a) The Source (at line 8) refers to ‘persuasive precedent’.
Using the Source and other cases, describe how persuasive precedent works [12]

(b) Consider each of the following situations and explain how the doctrine of precedent will apply.

(i) A case comes before the House of Lords in 2008. There is a previous precedent decided by the House of Lords in 1951. [5]
(ii) A case comes before the Court of Appeal (Civil Division) in 2008. There is a previous decision by the House of Lords in 1980. [5]
(iii) A case comes before the Court of Appeal (Civil Division). There are two past conflicting precedents, one from the House of Lords in 1995 and the second from the Privy Council decided in 1999. [5]

(c) The Source (at lines 16 and 17) describes how lower courts can avoid past decisions of higher courts in exceptional circumstances.

(i) Using the Source and other cases, explain how lower courts can avoid the doctrine of precedent [15]

(ii) Discuss the advantages and disadvantages of giving the lower courts more flexibility in avoiding the doctrine of precedent. [12]

QWC [6 marks]
[Total marks 60]

............................................

 

SOL8 Statutory Interpretation (OCR January 2008)

Source

The claimant had been demonstrating in Parliament Square since June 2001. The view of the claimant was that the language of the Serious Organised Crime and Police Act 2005 was clear and unambiguous. It provides that any person who organised, took part in or carried on a demonstration was guilty of an offence if ‘when the demonstration starts’ authorisation had not been given. He argued that the Act applied only to demonstrations which started after the act came into force and did not apply to him because his demonstration had started before that date.

It was argued by the defendant that the statutory purpose of the Act was to regulate all demonstrations in the vicinity of Parliament and that no rational basis had been suggested as to why Parliament should have intended entirely to exclude demonstrations which had begun before the Act had come into force.

The judges held that the purpose (purposive approach) of the Act was important. The words need not be interpreted literally. Their lordships concluded that the Parliamentary intention was clear. It was to regulate all demonstrations within the designated area, whenever they began. It appeared to their Lordships that when the Act was construed in this context, and having regard to the plain intention of Parliament, it included demonstrations actually starting before the Act came into force. Those starting before, like the claimant’s, were held to have started when the Act came into force; and in such cases the words ‘when the demonstration starts’ referred to that time.

Adapted from a summary of the case R (Haw) V Secretary of State for the Home Department and another [2006] EWCA civ 532 as prepared by Isobel Collins, for ICLR

Answer all parts

(a) The Source at lines 8 and 12 refers to the ‘purpose of the Act’.
Using the Source and other cases, explain the purposive approach. [12]

(b) In the following situations, use the Source and your knowledge of the rules of statutory interpretation. Explain whether or not the defendant would be guilty under the Serious and Organised Crime and Police Act 2005 as any person who organised, took part in or carried on a demonstration if, ‘when the demonstration starts’, authorisation had not been given under the Act.

(i) Mark has organised an anti-war demonstration in January 2008 close to Parliament. He did not seek authorisation and was arrested during the demonstration. [5]

(ii) Sunny is going to a music concert January 2008, at a hall close to Parliament. He notices a group of people walking in the direction of the concert and joins them. The group are in fact anti-fur trade campaigners involved in an unauthorised demonstration. [5]

(iii) Shirley has held regular demonstrations against animal cruelty for twenty years close to Parliament. She believes the Act does not apply to her as she started her demonstration before the Act came into force. [5]

(c) (i) Using the Source and other examples, describe how the courts use the literal rule. [15]

(ii) Using the Source and other examples, discuss the difficulties of judges trying to find Parliamentary intention when interpreting Acts. [12]

QWC [6 marks]
[Total marks 60]

............................................

 

SOL9 Legislation and Delegated Legislation (OCR June 2007)

Source A

Parliament consists of three distincts elements: the House of Commons, the House of Lords and the Queen. Before any Bill can become an Act of Parliament, it must proceed through and be approved by both Houses of Parliament and must receive Royal Assent.

Source B

In order to reduce pressure on parliamentary time, some Acts of Parliament often known as enabling (parent) Acts, give government ministers or other authorities the power to regulate administrative details by means of 'delegated' or secondary legislation.

Delegated legislation mostly takes the form of Orders in Council, Statutory Instruments (SIs) and also Bylaws made by local authorities for local issues.

These are as much the law of the land as are Acts of Parliament. SIs are normally drafted by the legal department of the ministry concerned and may be subject, when in draft, to consultations with interested parties. About 3,000 SIs are issued each year.

To minimise any risk that delegating powers to Government bodies (e.g. Ministers and local authorities) might undermine the authority of Parliament, such powers are normally only delegated to authorities directly accountable to Parliament.

The enabling Acts concerned, sometimes provide for some measure of direct parliamentary control over proposed delegated legislation, by giving Parliament the opportunity to affirm or annul it.

Parliament always has the right to consider whether the SI is made in accordance with the powers that it delegated.

The courts can also control delegated legislation through the process of judicial review.

Adapted from www.news.bbc.co.uk

Answer all parts

(a) Source A at lines 2-3 refers to making an Act of Parliament.

Describe how an Act of Parliament is created. [12]

(b) Identify and explain the most suitable type of delegated legislation to implement law in the following situations.

(i) A national emergency such as an outbreak of war involving the UK. [5]

(ii) Where an enabling Act authorizes the issuing of regulations concerning police powers. [5]

(iii) The local imposition of penalties for dogs fouling footpaths. [5]

(c) With reference to Source B:

(i) describe the controls on delegated legislation; [15]

(ii) discuss the effectiveness of the controls of delegated legislation. [12]

QWC [6] Total marks [60]

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SOL10 Judicial Precedent (OCR June 2007)

Source

Lord Denning carried on a one-man campaign to secure a change of practice in the Court of Appeal. The attack was on two fronts. First, he asserted that the Court of Appeal was no longer bound by the decisions of the House of Lords. Second, he claimed that the Court of Appeal was no longer bound to follow its own decisions as a general rule, and not just in the exceptional circumstances laid down in Young v Bristol Aeroplane [1944]. These exceptions are:

1) Where its own previous decisions conflict, the Court of Appeal must decide which to follow and which to reject.

2) The Court of Appeal must follow a later decisions of the House of Lords if its own previous decisions conflicts with it.

3) The Court of Appeal need not follow its own previous decisions if it were made per incuriam (in error).

Lord Denning's views were based on the Practice Statement itself, which, he alleged, had transformed the stare decisis (doctrine of precendent) principle in the Court of Appeal as well as the House of Lords. But this approach ignored the closing words of the Practice Statement that it was not intended to affect the use of precedent anywhere other than in the House of Lords.

Adapted from The English Legal Process, Terence Ingham

Examination Question - Answer all parts.

(a) Using the Source and other cases, describe the powers of the Court of Appeal. [12]

(b) Consider each of the following situations and explain whether or not the Court of Appeal can depart from the previous decision.

(i) A case concerning a death resulting from medical negligence was heard by the Court of Appeal (Civil Division). A year later, a similar issue is being heard by the Court of Appeal (Criminal Division). [5]

(ii) A case concerning breach of contract was decided by the Court of Appeal (Civil Division). Days later a similar issue is heard by the same court but the judges now feel that the decision should be different. [5]

(iii) A case concerning murder was decided by the House of Lords. The Court of Appeal (Criminal Division) believes the decision of the House of Lords is out of date. [5]

(c) (i) The Source at line 13 refers to stare decisis.

Describe the concept of stare decisis using the source and cases to illustrate your answer. [15]

(ii) Discuss whether or not the powers of the Court of Appeal within the doctrine of precedent, should be extended. [12]

QWC [6] Total mark [60]

................................................................................

 

SOL11 Statutory Interpretation (OCR January 2007)

Source A

Royal College of Nursing v DHSS [1981]

The wording of the Abortion Act 1967 provided that a pregnancy should be ‘terminated by a registered medical practitioner’. From 1967 it was the practice that only doctors (registered medical practitioners) carried out the operation. From 1972 onwards, improvements in medical techniques meant that a nurse, without a doctor present, could perform some of the procedures. The court had to decide if a nurse’s involvement was lawful under the Abortion Act. The case went to the House of Lords where the majority (three) of the judges held that it was lawful, whilst the other two said it was not lawful.

The three judges in the majority based their decision on the mischief rule, pointing out that the mischief Parliament was trying to remedy was the unsatisfactory state of the law before 1967 and the number of dangerous illegal abortions. The other two judges applied the literal rule and said that the words of the Act were clear and that only a registered medical practitioner could carry out terminations.

Adapted from The English Legal System, 4th Edition, J. Martin

Source B

The courts can, when they are trying to find Parliamentary intention, sometimes use intrinsic and extrinsic aids. Intrinsic aids are things inside the Act, for example, the preamble, the long and short title. Extrinsic aids are things outside the Act, for example, case law, Law Commission reports, previous Acts of Parliament, Hansard and dictionaries.

Examination Question - Answer all parts.

Source A refers to the literal rule.

(a) Explain the literal rule using Source A and cases to illustrate your answer. [12]

(b) Using Source B, identify and explain the most suitable extrinsic aid that could be used in the following situations.

(i) The House of Lords is considering an ambiguous word. The meaning of this word was discussed by Parliament during the passage on the Bill. [5]

(ii) The House of Lords is trying to cover a gap in the law left by an Act. This Act was based on the Law Commissioners recommendations. [5]

(iii) The House of Lords is trying to find the plain, ordinary, literal meaning of a word. The word is not defined in the Act. [5]

(c) Source A refers to the mischief rule.

(i) Using Source A and other cases, explain how this rule is applied. [15]

(ii) Discuss the strengths and weaknesses of the mischief rule. [12]

QWC [6 marks] Total Marks 60

………………………………………………..

 

SOL12 EC Law (OCR January 2007)

Source

Bulmer v Bollinger [1974]

Bollinger sought to prevent Bulmer describing Babycham as “champagne perry”,  and argued that Regulation 816/70 and 817/70 (governing the labelling of wine) should be referred to the European Court of Justice (ECJ) under Article 234. The judge declined to make such a reference and Lord Denning MR said the conditions for making a reference are.

In this case, the judge had not yet heard sufficient of the facts to know whether a reference would be necessary and so had been right to refuse.

‘The first and fundamental point of the Treaty concerns only those matters which have a European element. The Treaty does not touch any of the matters which concern solely the mainland of England and the people in it. These are still governed by English law. They are not affected by the Treaty. But when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back’.

English law has therefore been affected by the doctrines of European law, making it supreme.
Adapted from www.stbrn.ac.uk

Examination Question - Answer all parts.

(a) The Source refers to the EC Treaty. Briefly explain how the EC Treaty is part of UK law. [12]

(b) In the following situations, consider whether there is a need to make an Article 234 referral to the ECJ.

(i) Jacques, a French worker, has been denied entry to the UK. The House of Lords is considering his case. The case concerns free movement of workers under the EC Treaty. [5]

(ii) Pam is paid less than male employees for doing the same work. She has brought an equal treatment claim against her employer. An Employment Appeals Tribunal is deciding the case. A reference to the ECJ in Macarthys Ltd v Smith (1980) concerned a similar issue. [5]

(iii) Carla has brought a claim in an Employment Tribunal against her employer because they refuse to give her holiday entitlement as required under EC law. [5]

(c) Lord Denning in the Source discusses the effect of membership of the European Union on English Law.

(i) Describe the effect of European membership on English law using cases to illustrate. [15]

(ii) Discuss the benefits of European membership to English law. [12]

QWC [6 marks] Total marks [60]

………………………………………………..

 

SOL13 EU Law and Delegated Legislation - (OCR Specimen Assessment Materials and Mark Scheme)

Source A

In many ways the most important type of legislation is delegated legislation. This describes legislation made by a subordinate body (a body other than parliament) authorised to make law by an Act of Parliament. The Health and Safety at Work Act 1974, for example, authorised a government minister to make new safety laws by issuing regulations (see Source B below). Safety laws have to be complex and may need frequent up dating. It would be impractical to put every complex change in the law through the full stages of parliamentary procedure. Technically, regulations of this kind are known as statutory instruments.

 Adapted from: ‘A Level Law’, AM Dugdale, MP Furmston, SP Jones, CH Sherrin, Butterworths.

Source B

(This statutory instrument was introduced to implement EU Directive. In Marshall v Southampton and South West Hampshire Area Health Authority (1986) it was stated that Directives only have vertical direct effect, not horizontal direct effect. If Mrs Marshall had been employed by a private company she would have had no remedy.)

The Health and Safety (Display Screen Equipment) Regulations 1992:

Some important definitions:
. Display Screen Equipment used at workstations includes computer monitors. Screens showing mainly TV or film picture are not covered.
. Users Uses the display screen equipment more or less daily and for continuous spells of an hour or more at a time.

The Regulations:

Regulation 1: requires every employer to perform a suitable and sufficient assessment of workstations to assess any health and safety risks and to take action to reduce those risks to the lowest extent possible.

Regulation 2: Requires employers to plan the activities of those using workstations so that daily work is periodically interrupted by breaks or activity changes. These could be informal breaks away from the screen for a short period each hour.

Regulation 3: gives users the opportunity to have an appropriate eye and eyesight test as soon as practicable after requesting one and at regular intervals thereafter. The costs will be met by the employer.  Adapted from the Regulations.

Examination Question - Answer all parts.

(a) With reference to Source B. Briefly explain with examples the term ‘vertical direct effect’ and  ‘horizontal direct effect’. [12]

(b) Apply the content of the Health and Safety (Display Screen Equipment) Regulations 1992, in Source B, to each of the situations described below:

(i) Mario is about to start anew job as librarian in a small school. The job will require occasional use of a computer monitor. The Deputy Head is also the school Health and Safety Officer and is anxious to comply with all relevant legislation. [5]

(ii) Amir works as a telephone-sales representative. His regular daily work requires long periods of sustained concentration as he transfers information from customers onto a computer system. He is finding it difficult to sustain his concentration. [5]

(iii) Julie works a as a receptionist in a busy office, Her daily work involves monitoring a TV screen (fed from security cameras) and constant use of a computer monitor to perform a variety of functions. She has started to suffer with blurred vision. [5]

(c)

(i) Source A refers to ‘statutory instruments’. Describe with examples the nature of statutory instruments and the process of bringing them into force. [15]

(ii) Using Source A and other examples discuss the advantages and disadvantages of delegated legislation. [12]

QWC [6 marks] Total Marks [60]

………………………………………………..

 

SOL14 Statutory Interpretation - (OCR Specimen Assessment Materials and Mark Scheme)

Source A

A knife was displayed in a shop window with a price ticket attached to it. The shopkeeper was charged with offering for sale a flick knife contrary to s1 (1) of the Restriction of Offensive Weapons Act 1959 which provides:

 Any person who manufactures, sells or hires or offers for sale or hire, or lends or gives to any other person:
Any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, sometimes known as a ‘flick knife’ …..shall be guilty of an offence.

The court had to decide whether the shopkeeper was guilty of ‘offering the knife for sale’ (he had not actually sold any). Applying the literal rule to the facts of the case, the court held that the display of the knife in the shop window was not ‘offering for sale’  – merely an invitation to treat. Hence the shopkeeper was not guilty of the offence. Fisher v Bell (1960) 1 QB 394.

Source B

‘Some may say…. That judges should not pay attention to what is said in parliament. They should grope around in the dark for the meaning of an Act without switching on the light. I do not agree with this ‘view’.
Adapted from the judgement of Lord Denning in Davis v Johnson [1979] AC 264.

Examination Question - Answer all parts.

(a) Source B refers to Lord Denning’s dissatisfaction with the ban on the use of the external aid Hansard prior to 1993.

Explain what Hansard is and the circumstances in which courts may make a reference to it. [12]

(b) Read Source A lines 4 -8. Using your knowledge of statutory interpretation consider whether any of the following ‘sells or hires or offers for sale or hire or gives to any other person –any knife which has a blade which opens automatically by hand pressure applied to a button spring or other device in or attached to the handle of the knife’ and therefore commits an offence under s1 (1) of the Restriction of Offensive Weapons Act 1959:

(i) Jane, a youth worker confiscates a flick knife from a member of her youth club and gives it to her supervisor. [5]

(ii) Tony, an antique dealer, displays an old military knife with a spring opening device in his shop window with a price ticket attached to it. [5]

(iii) Fola buys a ‘job lot’ box of kitchen utensils from a car boot sale. Without examining the contents closely she donates the box to a charity shop. The box is found to contain a flick knife. [5]

(c)

(i) Explain the literal rule of statutory interpretation using case examples and with reference to Source A. [15]

(ii) Using the sources and other cases discuss the advantages and disadvantages of this approach to statutory interpretation. [12]

Total Marks [60]

………………………………………………..