Els Aqa A Level Law

The nature of law and the E
Revision booklet
Rongo AQA A-level Law

Contents page
Contents
Contents page.......................................................................................................................................2
Paper 1..................................................................................................................................................5
15 mark question outline......................................................................................................................8
Paper 1 nature of law example.............................................................................................................9
The nature of law............................................................................................................................11
Law making: statutory interpretation..............................................................................................12
Judicial precedent...........................................................................................................................18
Criminal courts...............................................................................................................................22
Lay people: lay magistrates............................................................................................................26
Lay people: juries...........................................................................................................................27
Sentencing.......................................................................................................................................29
Legal personnel...............................................................................................................................32
The judiciary - Paper 1 focus is criminal courts.............................................................................35
Access to justice and funding (Paper 1 in criminal cases)..............................................................37
Paper 2................................................................................................................................................40
The nature of law............................................................................................................................44
Parliamentary law making..............................................................................................................45
Law reform.....................................................................................................................................50
Civil courts......................................................................................................................................53
The judiciary - Paper 2 focus in civil courts...................................................................................56
Access to justice and funding (in Paper 2 civil cases)....................................................................58
Paper 3................................................................................................................................................61
The nature of law............................................................................................................................65
The rule of law................................................................................................................................67
Delegated legislation......................................................................................................................69
The European Union.......................................................................................................................72
The judiciary Paper 3 – focus is criminal courts............................................................................75
Access to justice and funding (in Paper 3 criminal cases)..............................................................78
2
Frequently asked questions about the English legal system
How many questions can I get on the nature of law and the English legal system?
Each paper is the same. There will be 25 out of 100 marks of questions asked on the nature of law and the English legal
system. Usually only one question will be asked for the nature of law, and the rest of the questions will relate to the
English legal system.
What’s the difference between the nature of law and the English legal system?
The nature of law: explains different theories for what the purpose of law is in society. What is law meant to achieve?
This topic is a lot like philosophy asking questions about the meaning and purpose of law. Usually you will only get one
question on the nature of law in each paper.
The English legal system: explains how the legal system works, how laws and made, how the courts work to enforce
those laws and different jobs in law. Usually you will get several questions on the English legal system in each paper.
How do I revise the nature of law?
Using the Nature of law student guide given to you in class. The Nature of law student guide has writing guides and
example questions you can complete as revision.
How do I revise the English legal system?
Using this revision guide. Revise each topic in the English legal system using this approach:
1 = You have prepared revision notes

2 = You have prepared mind-maps from memory (80% accuracy)
3 = You answer some past questions from each topic in this revision guide
4 = Check your answer against your notes and write down with a different colour anything you forgot
What kind of questions can I get on the nature of law and the English legal system?
You can be asked multiple choice questions, short essay, moderate essay or as one part of the final long essay.
Breakdown of nature of law and English legal system topics
Paper 1 Paper 2 Paper 3

The nature of law and the The nature of law and the The nature of law and the
English legal system English legal system English legal system
(25 marks out of 100) (25 marks out of 100) (25 marks out of 100)
Criminal law Tort Human rights
(75 marks out of 100) (75 marks out of 100) (75 marks out of 100)
3
Outline of questions you can be asked
Questions 1-5: the multiple choice questions will focus on the law of that paper and the English legal system
Question 6: will ask you to “explain” something from the English legal system
Question 9: will ask you to discuss one topic from the nature of law or the theory from that paper in relation to one law
from that paper’s content. The question will ask you to “Examine the meaning” which means you must briefly
describe the topic. It will also ask you to “Discuss” which means you must also provide evaluation (strengths and
weaknesses).
Question 11: the final long essay will include one issue from either the English legal system, the nature of law or the
theory of that paper. This question will ask you to “assess” which means you must also provide evaluation (strengths
and weaknesses).
Please note that 7 out of 30 marks are available here for the English legal system, nature of law or theory part.
multi-choice
“explain”
“examine the
meaning” and
“discuss”
“assess”
“explain” You must give factual knowledge with examples only
“examine the meaning” and You must give factual knowledge with examples
“discuss You must evaluate (discuss strengths and weaknesses)
“assess” You must give factual knowledge with examples

You must evaluate (discuss strengths and weaknesses)
4
Paper 1
The nature of law and the English legal system
5
Paper 1 revision checklist
The nature of law and the English legal

system
Paper 1 list of nature of law topics (philosophy)
 Fault
 Justice
Paper 1 list of ELS topics
• The nature of law
• Law making: statutory interpretation
• Law making: judicial precedent
• The legal system: the criminal courts and lay people
• Sentencing
• Legal personnel – roles of barristers, solicitors and legal executives; regulation.
• The judiciary: types of judge. Role of judges in criminal courts.
• Access to justice and funding
6
Paper 1 the nature of law
 Fault
 Justice
Assessed in:
 Question 09 or
 Question 11 (if the nature of law topic comes up here then theory will replace it in Question
09)
Usually one question per paper will be on the nature of law
Example question:
09
In the defence of loss of control to a charge of murder, special rules apply where the loss of control
may be related to sexual infidelity.
Examine the meaning of ‘justice’ and discuss the extent to which application of the special rules on
sexual infidelity in the loss of control defence may achieve justice.
[15 marks]
7
15 mark question outline
Question 09
9 15 Moderate Either:
essay  Nature of law or
 Theory in law from that paper
A nature of law example question from Paper 1:
09
Examine the relationship between law and justice. Discuss the extent to which the partial defence of
loss of control to a charge of murder achieves justice.
[15 marks]
A theory example question from Paper 1:
09
The use of principles to guide the development of legal rules enables law to play an important role
in society.
Examine the principle of fair labelling and the principle of correspondence. Discuss the extent to
which any one of the non-fatal offences against the person satisfies one of these principles.
[15 marks]
Both types of question above follow the same structure:
Basic structure you should follow in Question 09
1. Describe and evaluate the nature of law topic (10 marks)
2. Describe and evaluate the law given in the question (5 marks)
3. Reach a balanced conclusion
8
Paper 1 nature of law example
“examine the
relationship” in Paper 1:
“examine the relationship”
means you must explain Fault or Justice
and evaluate the theory
10 marks available
09
Examine the relationship between law and justice. Discuss the extent to which the partial defence of
loss of control to a charge of murder achieves justice.
[15 marks]
“discuss the extent” means

you must evaluate strengths
and weaknesses
5 marks available
Rules of criminal law
General elements of liability
Strict liability
“discuss the extent”
Fatal offences against the person
 Murder could link to any one

 Voluntary manslaughter
 Involuntary manslaughter
topic from that Paper
Non-fatal offences against the person e.g. here Paper 1
Property offences
Preliminary offences (attempts)
Defences (capacity defences)
Defences (necessity defences)
9
Paper 1 nature of law topics
 Fault
 Justice
10
The nature of law
What you need to know in Paper 1

The nature of law
Basic understanding of the distinction between enforceable legal rules and principles and other rules and norms of
behaviour.
Basic understanding of the differences between criminal and civil law and between different sources of law including
custom, statute law and the common law.
Nature of law: legal and other rules
 Enforceable legal rules and principles are created by Acts of Parliament and case law, for
example the criminal law of murder
 These laws must be followed or a sanction will follow, of being sued for money in a civil
wrong or being arrested by the police for a criminal wrong
 Other rules and norms of behaviour, that are created by society, for example holding the
door open for the person behind you
 Norms of behaviour are not punished apart from those around you might socially not like
you if you sneeze in their face without turning away for example
The differences between criminal and civil law
 Purpose
 person starting the case
 courts
 outcome of case
 Burden and standard of proof in civil cases: “on the balance of probabilities” rests on
claimant, a lower standard because the consequence is money
 Burden and standard of proof in criminal cases: “beyond reasonable doubt” rests of
prosecution, a higher standard because the consequence could be loss of liberty
Sources of law
 Custom - a custom is a rule or behaviour that develops in a community over time without
being deliberately invented, example: saying thank you when someone gives you a sweet
 Statute law – an Act of Parliament that has been passed by both House of Parliament and
received Royal Assent, example: Occupiers’ Liability Acts 1957 and 1984
 Common law – law developed by judicial decisions of the courts, example: murder
Question 06 examples
Explain two sources of law in the English legal system. [5 marks]

Explain three differences between civil and criminal law. [5 marks]
Explain the difference between legal rules and norms of behaviour. [5 marks]
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Law making: statutory interpretation

 The rules of statutory interpretation: literal, golden and mischief rules the purposive
approach
 Internal (intrinsic) and external (extrinsic) aids
 The impact of European Union law and of the Human Rights Act 1998 on statutory
interpretation
 The advantages and disadvantages of the different approaches to statutory interpretation
The literal rule

The literal rule interprets the words of an Act by their ordinary and natural meaning. This is
democratic as judges should interpret the law, not make it as this is Parliament’s role. Judges should
use the Oxford English Dictionary from the time (year) of the Act and apply the meaning. Words
are given the same meaning throughout on Act. This may lead to an absurd result.
In the case Whiteley v Chappell an Act stated it was an offence to “impersonate any person
entitled to vote”. In the case a defendant pretended to be a dead person to vote again. He was held
not guilty, because, literally, a dead person is not entitled to vote.
Advantages of the literal rule
 Judges are applying the will of parliament which is democratic as unelected judges are not making law,
merely applying law passed by Parliament.
 The literal rule creates certainty in the law, and enables lawyers to advise clients. The result is certain so
lawyers can advise their clients on the likely outcome and there is likely to be less litigation (court action).
The Crown Prosecution Service can be clear when they have the correct evidence to charge someone with a
crime; saving public time and money.
Disadvantages of the literal rule
 A disadvantage of the literal rule is that it is very rigid. This is a weakness because some criminals who
appear to have completed the main parts of a crime can be acquitted (go free). This does not give justice to
victims in those cases.
 Another disadvantage is that the literal rule assumes Acts are perfectly written but the English language is
often ambiguous and unclear.
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The golden rule
The golden rule can only be used if the literal rule creates an absurd result. It can therefore only be
used as an exception. The judge uses an alternative meaning from the dictionary that doesn’t create
an absurd result. Or, if there is no suitable alternative meaning the judge modifies the meaning of
the word to make it make sense.
The case of Re Sigsworth the defendant killed his mother to inherit her estate. The Act of
Parliament said her children (“issue”) would inherit. There was no alternative meaning for “issue”
in the dictionary that would create a just outcome. So, instead, the judge created a new meaning that
said you can only inherit under a will when you haven’t killed the deceased person.
Advantages of the golden rule
 By using the golden rule, fewer absurd and unjust results are made. This is a strength of the
golden rule because the right outcome can be applied in a case, despite any problems with the
interpretation of the words of the Act.
 Another advantage is that Parliament will not have intended to pass laws that produce unfair
results. Therefore, the golden rule removes the unfairness of the literal rule by applying the most
sensible meaning to the words of the Act.
Disadvantages of the golden rule
 A disadvantage of the golden rule is that it depends on each individual judge to decide what an
absurdity is or a repugnant result is. However, the judges cannot be sure what Parliament intended
and deciding on an absurd outcome would depend on your moral values. This means different
judges may reach different conclusions (in cases with the same facts). This creates uncertainty in
the law and makes it difficult for lawyers to advise their clients.
 It is also unclear when the rule should be used as an exception to the literal rule. Most cases will
not have a simple choice between different meanings in the dictionary that can avoid an absurd
outcome. Also, it is unclear when the broad approach should be used as it effectively means judges
are making up the law (by giving words new meanings).
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The mischief rule
The mischief rule looks at the gap (mischief) in the law that the Act being interpreted was trying to
solve when it was made. It looks at the intention of the Act and applies it to the case. It tries to find
the “remedy” that Parliament made in the act to stop the mischief, and then applies that remedy in
the current case. It does not look at dictionary definitions and only looks at the meaning of the Act
from the time it was made. The mischief rule interprets the Act in a way that covers the gap.
For example in the case of Smith v Hughes, prostitutes called to men on the street from balconies
and inside windows. The offence was to solicit in a public place. If the offence was interpreted
literally to solicit in the street, the D would be found not guilty as it was from the balcony of a
house. Whereas the mischief rule looked at the problem the act was trying to solve which were men
on the street being pestered by female prostitutes. The D was clearly pestering men on the street and
therefore was found guilty giving a fair verdict.
Advantages of the mischief rule
 An advantage of the mischief rule is that it avoids absurd outcomes of the literal rule. In Smith v Hughes
it would be absurd to acquit the women who had solicited to customers on the street. This allows for just and
correct outcomes to be reached in individual cases. The women needed to be convicted to advance the
remedy here and protect the public from solicitation.
 Another advantage is flexibility, can be used to extend the meaning of an act to fit new situations. This is
a strength because the Act can be updated to fit with the new development in technology.
Disadvantages of the mischief rule
 One disadvantage of the approach is that it allows judicial law making. This is a weakness because judges
are not elected therefore should not go beyond the meaning of the words used by Parliament in the Act.
 Also, the fact that it is difficult to find the problem that parliament was trying to resolve when they passed
the act. For example, the judges were not present in the House of Commons when the Act was debated and
introduced. This is a problem because the judge may make a mistake about what the “gap” was and then
incorrectly decide on the case in front of them
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The purposive approach
This rule involves looking at the positive reasons Parliament created the Act and interpreting the
Act to meet that purpose. It is regarded as forward looking and is not concerned with the meaning
of words but is concerned with what Parliaments aims with the Act were rather than the meaning of
specific words. It is the most commonly used rule today.
The approach allows judges to look at the intentions of law to meet parliament’s current intentions.
For example in the case of R v Registrar General – Ex Parte Smith (1990), the D was criminally
insane and had murdered twice. He had been adopted and claimed due to the Adoption Act of 1976,
he had a right to his birth records. However, using the purposive approach, the aim of the act in
question was deemed to be to create closer family relationships. Therefore, as the judge said that
gaining access to the records would put the natural mother at risk, he was denied access to them as
it would not have brought about the purpose of the Act.
Advantages of the purposive approach
 Another advantage is that it is a flexible approach. This gives judges the freedom to make the right
decision in the case by interpreting the law in a flexible way.
 Also an advantage is the fact that it allows judges to cope with situations unforeseen by parliament. In the
Registrar General ex parte Smith parliament would not have foreseen that allowing a birth certificate
could lead to risk of death to the biological parents. This is an advantage because the mother was protected
from harm and there was a real danger from the son.
Disadvantages of the purposive approach
 One disadvantage of this approach is that it gives judges too much power to develop the law. In Registrar
General ex parte Smith they went beyond the meaning of “shall supply”. This is a weakness because judges
are not elected so have no right to decide whether adopted children can access their birth records.
 Another disadvantage is that allowing reference to Hansard may lead to prolonged examination of
irrelevant material by lawyers which adds to costs and the length of litigation. This is a weakness because it
could make court too expensive for people with a legal complaint. This could lead to people not going to
court and not getting justice.
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Internal (intrinsic) aids
and
external (extrinsic) aids
Internal Aids (used to interpret an Act of Parliament)
Intrinsic (internal) and extrinsic (external) aids provide guidance to a judge as to the meaning
of words or phrases used in an Act. The short title is an intrinsic aid that will just be the name
of the Act (e.g. the Hunting Act 2004). The long title exists for some acts and gives an
explanation of what the Act is trying to achieve (e.g. an Act to prohibit the hunting of wild
mammals with dogs).
Another internal aid is the use of interpretation sections in the act. This is a part of the act
that helps to understand the meaning of the act. For example, in the Hunting Act 2004 the
interpretation section clarifies that a “wild mammal” is not kept in captivity. This explains that
you cannot hunt an animal escaped from the zoo.
External Aids (used to interpret an Act of Parliament)
The courts have increasingly allowed the use of Hansard, the official record of parliamentary
debates, as an external aid to interpreting an act. In 1993, the House of Lords declared that
Hansard could be used as an external aid for the purposive approach — in Pepper v Hart
(1993). However, House of Lords only allowed use of Hansard in limited way. Firstly, Hansard
must clarify ambiguous words or phrases in an Act, secondly it can only where words of the
Act are ambiguous or obscure or lead to an absurdity and finally Hansard can only be used if
there was a clear statement by the Minister introducing the legislation.
Another external aid is the Authorised English Dictionary from the time the Act was made,
as this is the meaning the words would have when parliament debated the law. In the case of
Cheeseman the judge used the literal interpretation of the word “passenger” and the OED
from the time the Act was made, 1847, to establish that this word meant foot passenger and
passerby. As the police officers were stationed in the public toilet and not “passing by” C was
not guilty of indecently exposing himself to a passenger, in the literal sense, and therefore
found not guilty.
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Statutory interpretation Paper 1 exam questions
06
The literal rule is a method used by judges to interpret the language used in Acts of Parliament.
Using any example, explain the literal rule.
[5 marks]
06
The golden rule is a method used by judges to interpret the language used in Acts of Parliament.
Using any example, explain the golden rule.
[5 marks]
06
The mischief rule is a method used by judges to interpret the language used in Acts of Parliament.
Using any example, explain the mischief rule.
[5 marks]
06
The purposive approach is a method used by judges to interpret the language used in Acts of
Parliament. Using any example, explain the purposive approach.
[5 marks]
06
To assist with statutory interpretation a judge may use intrinsic (internal) and extrinsic (external)
aids. Using any two examples, explain intrinsic aids to interpretation.
[5 marks]
06
To assist with statutory interpretation a judge may use intrinsic (internal) and extrinsic (external)
aids. Using any two examples, explain extrinsic aids to interpretation.
[5 marks]
17
Judicial precedent

• The hierarchy of the courts including the Supreme Court
• Stare decisis, ratio decidendi and obiter dicta; law reporting in outline and the reasons for
it
• The operation of judicial precedent: following, overruling and distinguishing
• Evaluation: the advantages and disadvantages of the doctrine of judicial precedent and the
operation of precedent.
The hierarchy of the courts including the Supreme Court
The hierarchy of courts
• Every court is bound to follow the decisions made by courts above it in the hierarchy
• The Supreme Court & the Court of Appeal (the appeal courts) bind themselves (they are
bound by their own past decisions)
Only these appeal courts can make precedent. This is important so that only the most experienced
judges make binding precedent that other courts must follow, ensuring certainty and consistency
across similar cases.
The Supreme Court
• Was called the House of Lords before 2009

• The highest court in the UK for English law
• Only the European Court of Justice stands above it (and only on matters of EU law)
• Binds all lower courts and itself
• Permission must be asked for the right to appeal and is only granted where the case involves
a matter of general public importance
• Has the power to distinguish a precedent where facts of the cases are materially different
• Has the power of the Practice Statement 1966
The Practice Statement 1966: the Supreme Court can overrule its own precedents but only when “it
is right to do so” under the Practice Statement 1966. This allows the Supreme Court to develop the
law to the changing needs of society. No other courts can overrule their own precedent as they don’t
have the power to do so and the Supreme Court judges are the most experienced.
A civil case example: in the case of British Railways Board v Herrington (1972) the House of
Lords (pre 2009) departed from their previous decision using the Practice Statement and held that
the defendant railway company did owe a duty of common humanity to trespassers. The boy who
had been electrocuted on the railway track was entitled to damages as the BRB knew about the gap
in the fence and failed to fix it.
A criminal case example: in the case of R v Shivpuri (1986) overruled a precedent from the House
of Lords (the same court) and held that a person could be liable for attempting an impossible crime
following the Criminal Attempts Act 1981.
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The Court of Appeal
It is important that the Court of Appeal (“COA”) has some power to avoid binding precedent
because it is the final appeal court for most cases (as they aren't important so would be refused
permission to appeal or cost too much to go to the Supreme Court). The COA cannot overrule its
own precedent because it has no practice statement (only the Supreme Court can).
The COA is bound by its own precedents and usually must follow them.
The COA only has three exceptions where it can decide not to follow its own precedent. It can
never decide to not follow a precedent of the Supreme Court. First: If faced with two conflicting
precedents, the COA can choose which it will follow. Second: COA can refuse to follow a decision
on its own which conflicts with a decision of the House of Lords/Supreme Court. Third: COA will
not follow a decision of its own if it was given per incuriam, (by mistake) e.g. where an Act of
Parliament was not applied.
Stare decisis, ratio decidendi and obiter dicta; law reporting in outline and the reasons for it
Stare decisis: means stand by what’s been decided. This is the system of precedent, where a court
hears a case, and a similar case was decided by the Court of Appeal or the Supreme Court, who
made a decision, this precedent must be applied in the current case.
Ratio decidendi: is the legal reason for the decision; it is the part of the judgment that is binding. It
will bind cases with similar material facts. This can be difficult to find as the judgment is long and
there are no headings. For example, in the case of Donoghue v Stevenson the ratio decidendi was
that manufacturers should have a duty of care, “to be careful”, to consumers, because their
negligence could cause harm.
Obiter dicta: means “things said by the way” and is anything else said by the judges in their
judgment. This is not binding but it can be persuasive precedent in future cases.
The system of law reporting: Judges write the outcome of the case up in a judgment. This is not
usually published. Because precedent requires judges in the future to be able to find and read all
court judgments, a system of law reporting was introduced. Law reports are published reports of
cases that include the judgments of every judge involved in a case. Law reports are checked by
judges and barristers before publication. This is essential for precedent as judges will need to read
all judgments from past cases to know which precedents they need to follow (because the cases are
materially similar) and which precedents they should not follow (because the cases have material
differences).
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The operation of judicial precedent: following, overruling and distinguishing
Following where a court follows the decision of a court above it. Or where an appeal court (the
Court of Appeal or the Supreme Court) follows a previous decision made by their own court.
Overruling means a precedent is removed and replaced by a new one. A higher court can overrule
a decision made in an earlier case by a lower court (and then appealed) i.e. the Court of Appeal can
overrule an earlier High Court decision. The Supreme Court can overrule its own past decision
using the Practice Statement 1966 where “it appears right to do so”.
Distinguishing any court can avoid following a binding precedent by distinguishing, if the case’s
material facts differ from those of the binding precedent.
Evaluation --- The advantages and disadvantages of the doctrine of judicial precedent and the
operation of precedent.
Advantages of the doctrine of precedent
😊 One advantage is that precedent is flexible. I know this because precedents do not always have to
be followed, there are rules that allow exceptions to be made (for example the Practice Statement
1966). This allows the law to change and can help remove out-of-date rules. In the case of British
Railways Board v Herrington land owners were held to owe a duty of care to trespassers for the
first time, allowing the law to change to reflect moral values, that we should be careful towards
other people in society.
😊 Another advantage of precedent is that the decisions from superior courts are authoritative. I
know this because judges in the Court of Appeal and Supreme Court are highly experienced, and
therefore by only allowing these courts to create binding precedent it gives authority to precedent.
Arguably only the Supreme Court (the House of Lords at the time) had the experience to decide that
all “occupiers” in England should now owe a duty to trespassers. This law was followed by
Parliament who made the Occupiers Liability Act 1984 a few years later.
Disadvantages of the doctrine of precedent
☹ A disadvantage is that precedent is too rigid. Judges in future cases must follow the old precedent.
However, the precedent could become out of date as moral values change in society, and this
precedent may become unfair over time. For example, manufacturers had no duty of care, and no
responsibility for faulty products, until Mrs Donoghue appealed her case in 1936. It’s likely some
people were injured by products before 1936 but didn’t have any authority to claim, which creates
injustice.
☹ Another disadvantage is that new precedent can only be made by the higher courts, mainly the
Court of Appeal and the Supreme Court. Most cases will not reach these courts as the parties
involved will not be able to afford the extremely expensive legal fees, or can’t get legal aid,
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required to appeal a case. These cases won’t reach the Supreme Court and get the chance to change
the precedent.
21
Judicial precedent Paper 1 exam questions
06
Explain any two features that are essential to the operation of judicial precedent.
[5 marks]
06
The 1966 Practice Statement is a method used by the Supreme Court to avoid a binding precedent.
Using any example, explain the 1966 Practice Statement.
[5 marks]
06
Explain two reasons why the ratio decidendi of a case may sometimes be difficult to establish. Use
an example from civil or criminal law to illustrate one of your suggested reasons.
[5 marks]
11
Daryl joined a gang which was well known in the area for stealing from local stores. Daryl was
ordered to steal a laptop computer. When he refused, the leader of the gang told Daryl that if he did
not do this, Daryl’s young son would end up in hospital very soon.
Fran went to collect a laptop and mobile phone that she had ordered from a local store. Daryl
followed her into the store and watched as Fran was handed a laptop and a mobile phone. She put
the mobile phone straight into her bag and held the laptop as she paid the shopkeeper. When Fran
left the shop, Daryl followed her and, remembering the earlier threat about his son, pushed her hard
against the wall, snatched the laptop and ran down the street.
Later that evening, when Fran switched on the mobile phone, she realised that it was not the one she
had ordered but a more expensive model, and so she decided to keep it.
Consider Daryl and Fran’s criminal liability for property offences in relation to the laptop computer
and the mobile phone.
Assess the role of precedent in the development of the rules of law that you have applied in
considering Daryl and Fran’s criminal liability for property offences in relation to the laptop
computer and the mobile phone.
[30 marks]
22
Criminal courts
 a basic understanding of the criminal courts
 a basic understanding of the classification of offences
 a basic understanding of appeals in criminal cases
The Magistrates’ Court The Crown Court
 Judge: 3 lay magistrates (decide verdict and  Judge: Crown Court judge (decides
sentence) law/sentence)
 Sentencing power:  Jury: decides facts (verdict –
 guilty/innocent)
 All cases start here – trials for summary  Trials for some triable either way
offences and some triable either way offences and all indictable offences take
offences take place here place here
 All criminal cases start here for a
preliminary hearing (to enter plea, decide
bail and funding).
Sentencing powers are limited: Sentencing power: unlimited power

 6 months prison sentence (custody)  Unlimited prison sentence (custody)
 Fine  Unlimited fine
 Community order
 Ban (e.g. from driving)
Categories of offence
• Summary offences: less serious offences that can only be tried in the Magistrates’ Court.
Maximum sentence 6 months prison.
Example: assault and battery
• Triable-either way offences: can be tried in either the Magistrates’ Court or the Crown
Court. Where they go depends on the seriousness of the facts and defendant may have a
choice.
Example: ABH because it can be less serious (like one bruise on an adult) or go right up
near to GBH in seriousness (like multiple bruises on a baby)
• Indictable offences: the most serious offence. Can only be tried in the Crown Court before
a jury and judge. Still have the first hearing at the Magistrates’ Court.
Example: murder
Preliminary hearing at the Magistrates’ Court
23
All crimes have a first preliminary hearing at the Magistrates’ Court. In this hearing the judge will
ask the defendant about (1) to enter their plea (guilty or not guilty); (2) to give them another chance
to apply for state funding and (3) to give them another chance to apply for bail.
24
After this hearing:
If they pled guilty: there will be a sentencing hearing (just before judges no jury needed)
 And the magistrates will not ask them to choose a court for trial (because no trial will take
place)
If they pled not guilty: there will be a trial either at the Magistrates’ Court or the Crown Court
 And the magistrates will ask them to choose one of these courts for the trial (this is called
“election” of venue)
 The magistrates can still refuse their choice (for example if they think the sentence will be
custody over 12 months they would still send the case to the Crown Court for trial regardless
of what the defendant chooses)
Grounds (reasons) for appeal in criminal cases
An appeal is a challenge made by the Prosecution or Defence to another court on either:
(1) Point of law appeals – where either side thinks the law has been incorrectly applied in a case
(2) Appeals against sentence – where either side feel the sentence is too harsh or too lenient
(3) Appeal against conviction – where either side believe the defendant is guilty or innocent (so
that the outcome of the trial is wrong)
Appeals from the Magistrates’ Court
The defendant has a right (so does not need to ask for permission she just needs to complete a form
requesting the appeal) to appeal to the Crown Court from a decision in the Magistrates’ Court. The
defendant can appeal against (2) sentence or (3) conviction. In the Crown Court 2 magistrates and a
judge sit here on appeals. The appeal takes place as a full rehearing of the original trial.
Case stated appeal: The Queen’s Bench Division of the High court hears appeals by both
prosecution and defence from the Magistrates’ Court on (1) points of law. The court also deals with
appeals by the prosecution on jury nobbling (tampering) from a Crown Court trial.
Appeals from the Crown Court
The Court of Appeal (Criminal Division) hears appeals on all 3 grounds for appeal (1-3) from trial
in the Crown Court. An appeal against sentence (2) is only allowed if the conviction is unsafe (for
example a new witness comes forward proving someone else carried out the crime). The
prosecution can only appeal on a sentence being unduly lenient or on a point of law (they can never
appeal against a verdict made by a jury).
The Supreme Court only hears (1) appeals on points of law of general public interest by
prosecution and defence from either the Queen’s Bench Division (trial in Magistrates) or The Court
of Appeal (trial in Crown Court).
25
Criminal appeals Paper 1 exam questions
06
Explain the possible grounds for appeal and routes of appeal for a defendant who has been
convicted in the Magistrates’ Court.
[5 marks]
06
Explain the possible grounds for appeal and routes of appeal for a defendant who has been
convicted in the Crown Court.
[5 marks]
26
Lay people: lay magistrates
 The role of lay people: the role and powers of magistrates in criminal courts
Work of lay magistrates in the courtroom
Three magistrates (one is the chair person) deal with all summary offences and some triable either
way offences in the Magistrates’ Court. They hear all evidence and the chair person gives the
verdict and sentence with an explanation. The verdict is a majority decision and magistrates will
receive legal advice from the legal clerk. The legal clerk is legally trained and advises the
magistrates on court procedure and admissibility of evidence, and what legal points they need to
consider in their judgment.
If a case appeals from the Magistrates’ Court then two lay magistrates sit along with a qualified
judge in the Crown Court to hear the appeal.
Before trials
 Every crime case has a pre-trial hearing at the Magistrates’ court

 This is short and just helps the court to organise proceedings:
o The defendant is asked to enter a plea (guilty or not guilty)
o The defendant is again offered a chance to apply for bail (they had their first chance
to apply for bail at the police station)
o The defendant is offered a chance to apply for legal aid (public money to pay for
funding of the case)
During trials:
 Remember there is no jury

 So, the three lay magistrates decide the law (i.e. what the crimes are and what sentences
should be handed down) and the facts (i.e. did he do it – is he guilty)
Powers of lay magistrates
Magistrates follow sentencing procedures when deciding the sentence. They look for mitigating and
aggravating factors from the offence e.g. D’s number of previous offences. They deduct a third off
the sentence for an early guilty plea. They can sentence to:
 6 months imprisonment
 Fine
 Community order
 Ban
They are also responsible for issuing the police with search or arrest warrants and are responsible
for deciding if a suspect can be held in police custody for longer than 36 hours for a maximum of 96
hours.
27
Lay people: juries
 The role of lay people: the role of juries in criminal courts.
 The advantages and disadvantages of using juries in criminal courts.
The role of juries in criminal courts
In the Crown Court the judge decides the law and the jury decides the facts (guilt or innocence).
The jury’s function is to weigh up the evidence and decide on a verdict in a Crown Court trial. They
then make either “guilty” or “not guilty” verdict as to whether the defendant (“D”) has committed
the offence. The jury must decide a verdict. The judge gives them time to reach a unanimous verdict
first. If the jury cannot agree one verdict between all 12 of them then, after 2 hours, the judge can
accept a majority verdict. A majority verdict is either a 10 out of 12 or 11 out of 12 verdict.
Jurors must be sworn in which means they take a holy oath (with their hand on a holy book) or they
affirm (a non-religious promise to tell the truth). The jury then retire to the jury room and elect a
foreperson to speak to the court on their behalf. Disclosure of what happens in the jury room a
criminal offence so no discussion of how the final decision is reached or what was discussed can be
mentioned to anyone outside the jury. It is also an offence for a juror to research the case
independently using the internet, or to write anything about the case on social media.
Advantages of lay people: juries
😊 An advantage is jury fairness. The jury don’t have to give a reason for their decision so should
reach a fair decision.
😊 Another advantage of juries is public confidence. Because they are chosen randomly, the panel
of 12 jury members should represent a cross section of society. The public believe the jury can give
a fair decision.
Disadvantages of lay people: juries
☹ A weakness of juries is secrecy in the jury room. There is no way of knowing if the jury
understood the case and came to the right decision for the right reasons.
28
☹ Another weakness of juries is the risk of media influence. In high-profile cases, where there’s
been a lot of publicity about the police investigation it will difficult for jurors to avoid seeing the
news reports or on social media.
29
Lay people Paper 1 exam questions
06
Explain the role and powers of the lay magistrates when hearing a summary offence.
[5 marks]
06
Explain the role of juries in a criminal case before the Crown Court.
[5 marks]
11
Rav’s bicycle was stolen from his back garden. Two months later, Rav was walking through a park
when Sam rode past him on a bicycle which he then placed against the wall of a café whilst going
inside to buy a drink. The bicycle was of a different colour from Rav’s and had a different saddle
but Rav was convinced that it was his bicycle. Rav was just starting to ride off on it when Sam
came out of the café and tried to stop him. Rav said that he would punch Sam if he did not get out
of the way. Sam stepped back and Rav rode off.
When he was well clear of the area, Rav stopped and examined the bicycle more carefully and
realised to his horror that it was not his. He hastily dumped the bicycle on some waste land and
hurried off. On his way home, he bought some food from a local shop. He gave the shopkeeper a
£10 note but it did not occur to him until he got home that he had been given change from a £20
note. He decided to say nothing to the shopkeeper when he next saw him.
Consider Rav’s criminal liability for property offences in relation to Sam’s bicycle, and in relation
to the excess change that he was given by the shopkeeper.
Assess the value of jury trial in determining Rav’s criminal liability.
[30 marks]
30
Sentencing
 Criminal court powers and sentencing of adult offenders
 The aims of sentencing
 Types of criminal sentence
Be careful with the wording of the question in the exam, I’ve seen lots of questions where the
student has given a different answer to what’s been asked
Question command What you should discuss

word
“aims” The aims in sentencing --- you could have to apply these to a problem scenario
“types” or “powers” Different types of sentence available --- you could be asked to choose and justify a suitable
sentence for a problem scenario
“factors” Discuss the different factors that the court will take into account when its sentencing an
adult offender --- you could be asked to discuss this in the context of a problem scenario
Aims of sentencing
Aim Explanation
Punishment Is about punishing the offender normally through a prison sentence or

heavy fine; and is proportionate punishment “an eye for an eye”. It is about
revenge and it doesn’t try to reduce crime or change the offender. This aim
is best served by harsh sentences (such as long prison sentences).
Deterrence Is about putting people off committing crimes. It can be general

(preventing other people from committing the same crime) or individual
(preventing the offender from re-offending). They are both aimed at
reducing crime. This is served best through harsh sentences and can be
unfair.
Rehabilitation Is about changing the offender so that they don’t re-offend. It is a forward-
looking aim and hopes that the offender will change their ways. This aim is
best served by community sentences such as unpaid work, electronic
tagging and curfew or a supervision order.
Protection of the Is about protecting society from dangerous criminals. For example, long
public prison sentences are given for murder and violent sexual offences. This can
also be done through driving bans and curfews.
Reparation Is intended to make the offender make some form of compensation for the
harm he has caused either through a fine, unpaid work of between 30-400
hours or through specific work done for the victim.
31
Types of criminal sentence for adult offenders
Type of Explanation
sentence
Fine Unlimited fines can be passed in both the Magistrates’ Court and the Crown
Court.
Fines are the most common sentence given in crime.
Custodial Custodial sentences should only be passed if the offence is so serious that there
is no alternative. The court follows Sentencing Guidelines to give the
appropriate sentence tariff. The seriousness of the offence will help the court
decide the appropriate term for Dan within the tariff.
Dan could be given a suspended sentence for up to two years. This means that
he does not have to serve the sentence unless he re-offends within the two
years.
Dan would serve half any custodial sentence in prison and the remaining half
on remand.
Community Under the Criminal Justice Act 2003, community sentences include:
order  unpaid work in the community e.g. cleaning graffiti. The number of
hours is from 40 to 300hrs over a period of time
 supervision order can last for 3 years. You are supervised by the
probation service that helps you get a job/house/send you on courses
etc and keep you on the straight and narrow
 curfew with electronic tagging which can last for up to 12 hours a day
Understand the factors courts take into consideration when sentencing an adult offender
Before deciding on an actual sentence, the court would look at the mitigating factors of Dan and the
offence, factors that can lessen Dan’s sentence. If Dan pleads guilty at the first opportunity the court
will reduce his sentence by one third. If Dan doesn’t have previous convictions of a similar type (to
GBH in this scenario) he is likely to receive a more lenient (lighter) sentence. Finally, if Dan co-
operates with the police and shows remorse this could also reduce the sentence he receives.
Aggravating factors increase Dan’s sentence and can include: previous convictions for similar
offences, being on bail at the time of the offence, resisting arrest, or showing no remorse. Dan
doesn’t appear to have any aggravating factors except that it was an unprovoked attack and lost his
temper. Dan may therefore get a community sentence including an anger management course to
ensure he is a reformed character.
32
Sentencing Paper 1 exam questions
11
Over the last few months Harry and Isobel’s relationship had become increasingly strained as
Harry’s behaviour had become unpredictable and often violent. One evening, Isobel read a message
on Harry’s phone from her sister. The message read ‘thank you for a wonderful evening, darling’.
Isobel confronted Harry and accused him of having an affair with her sister. Harry became
aggressive, smashing plates and taunting Isobel for being jealous. He shouted, “You’re a useless
wife. I wish I’d married your sister!”
Harry was tired but before he went to bed he told Isobel that he would beat her up in the morning.
About an hour later, when Harry was asleep, Isobel was furious about the events of the evening and
the threat he had made to her. She was also worrying about what would happen the next morning.
Isobel took a kitchen knife and stabbed Harry several times, before fleeing from the bedroom. Harry
died from blood loss.
Consider Isobel’s criminal liability for the murder of Harry.
Assuming that Isobel is found guilty, assess the sentencing powers available to the court.
[30 marks]
33
Legal personnel
• Basic understanding of the different roles of barristers, solicitors and legal executives.
 Basic understanding of the regulation of legal personnel.
Role of barristers
• Barristers are self-employed but usually work from a chambers (firm)

• A chambers will employ a clerk as a practice administrator (operating phone lines/email,
booking cases and negotiating fees) the cost is shared by all barristers working in the
chambers
• Barristers work focuses on advocacy, this means arguing legal cases at court
• Barristers have full rights of audience, which means they can advocate in any court in
England and Wales
• Barristers are usually instructed through a solicitor (so the client agrees with the solicitor
that she will pay for a barrister to represent her case at court)
• Direct access means some barristers can now be instructed by a client without a solicitor
Role of solicitors
• Solicitors work for: firms of solicitors; in-house (like Asda legal department); CPS or
government
• Work done: advising clients; negotiating on behalf of clients; writing letters on behalf of
clients; drafting contracts; drafting wills; conveyancing and instructing barristers
• Solicitors may specialise in one area of law; e.g. only working in employment law cases
• Conveyancing work can be done by solicitors
• Have rights of audience in County and Magistrates’ Court and can apply for certificate of
advocacy to advocate cases in higher courts
Role of legal executives
• Legal executives work in solicitors’ firms as assistants, and specialise in one area of law
• Similar work to solicitors but less complicated
• Work done: assist solicitors with cases; give legal advice to clients; research and prepare
cases; drafting legal documents like contracts or litigation claim forms; writing wills etc
• Have rights of audience in County Court for family matters and can apply for certificate of
advocacy to advocate cases in higher courts
34
Regulation of legal personnel
Barristers Solicitors Legal executives

Representative body General Council of Law Society Chartered Institute of
the Bar Legal Executives
Regulatory body Bar Standards Board Solicitors Regulatory Chartered Institute of
Authority Legal Executives
Regulation Board
Complaints Complaints about the decisions of the regulatory bodies go to the Legal
Ombudsman
Regulation of barristers:
• General Council of the Bar: like a trade union for barristers promoting interest of barristers
• Bar Standards Board: sets training and entry standards + sets code of conduct +
responsible for disciplining barristers who breach the code of conduct
Regulation of solicitors:
• Law Society: all practising solicitors must be members of the Law Society --- promotes
interests of solicitors
• Solicitors Regulatory Authority: investigates complaints against solicitors --- has power to
suspend/strike off solicitors from the Roll
Regulation of legal executives (“LEs”):
• Chartered Institute of Legal Executives: provides education and training for LEs +
publishes code of conduct
• Chartered Institute of Legal Executives Regulation Board: investigates complaints
against LEs
Legal Ombudsman
If a client is still unhappy with the investigation of the regulatory body they can bring their
complaint before the Legal Ombudsman. She has power to order: an apology; giving back
documents; refunds and payment of compensation.
35
Legal personnel Paper 1 exam questions
Question 06
Explain the role and regulation of barristers.
[5 marks]
Question 06
Explain the role and regulation of solicitors.
[5 marks]
Question 06
Explain the role and regulation of legal executives.
[5 marks]
36
The judiciary - Paper 1 focus is criminal courts
• The judiciary: types of judge
• The role of judges in criminal courts
Types of judge
Type of judge What courts do they sit in?

Superior judges Justices of the Supreme Court
Lord Justices of Appeal (in the Court of Appeal)
High Court Judges
Inferior judges Circuit Judges (sit in both Crown Court and County Court)
Recorders (part-time judges)
District Judges (sit in the County Court)
District Judges (trained judges in some London Magistrates’ Courts)
Tribunal judges (like the Employment Tribunal)
The role of judges: Justices of the Supreme Court
• Hear about 100 appeal cases a year --- in both civil and criminal cases
• A case is only given permission to appeal here if there’s a point of law of general public
importance involved in the case
• Sit in an uneven panel (from 3 to 11 Justices) and make a majority decision in their
judgment
• Make binding precedent for itself --- and all lower courts
The role of judges: Lords Justices of Appeal (in the Court of Appeal)
• Hear appeal cases only --- has a Criminal Division and a Civil Division
• Hear over 1,800 criminal appeals each year on point of law, sentence or conviction
• Only around 25% of criminal cases are given permission to appeal here
• Hear around 3,000 civil appeals each year on finding of liability and remedies (damages)
• Sit in a panel of 3 judges
The role of judges: High Court Judges
• Carry out the trial of cases --- known as trial at first instance (first time a court’s heard it)
• Hear evidence, decide the law, make decisions about winning/losing and decide amount of
damages --- Judges sit on their own for the trial
• The Queen’s Bench Division hears criminal appeals from the Mags that’re case stated
The role of judges: inferior judges
• Carry out the trial of cases, in civil and criminal cases

•
37
The judiciary Paper 1 exam questions
Question 06
Explain the role of Justices of the Supreme Court when hearing an appeal in criminal law.
[5 marks]
Question 06
Explain the role of a Crown Court judge when hearing a trial in criminal law.
[5 marks]
38
Access to justice and funding (Paper 1 in criminal cases)
 Basic understanding of alternative sources of legal advice: help lines, Citizens Advice
Bureau (CAB), law centres and trade unions.
 Private funding: own resources, insurance and conditional fee agreements
 Basic understanding of public funding: criminal state funding
Alternative sources of legal advice
Source How do they give legal advice?

Helplines Online or by telephone a trained adviser can help people.
E.g. Shelter advising about homelessness or housing rights.
Citizens Free legal advice based in offices in most town centres. Can advise people in
Advice person, by telephone or email. E.g. advise people about their entitlement to
Bureau benefits.
Law centres Free legal advice from solicitors in some towns.
Trade Specific legal advice on employment issues given to members.

unions
Legal advice: spoken or written legal advice from a trained professional, usually a solicitor, that
advises the client about their legal problem
Legal representation: if the client’s case goes to court, they will need a trained professional,
usually a barrister, to stand up in court and advocate (argue) their case for them
What if the client can’t afford legal advice or representation? They can apply for legal aid. But
legal aid is only available in criminal cases and not in any of the civil claims that we study on the
course.
What happens if the defendant is acquitted in a criminal case? If the defendant has paid for any
legal expenses they can claim some of the costs back from the state, up to a limited amount.
What happens if the defendant is convicted in a criminal case? The defendant could be ordered
to pay for some of their legal costs that were provided by legal aid for the case.
Private funding Private funding is where the citizen pays for their legal advice with their own
savings.
The Legal Aid Agency decides applications for legal aid in civil and criminal cases.
What’s legal aid? Legal aid is government welfare funding that is used to help people on low
incomes get access to justice
39
Basic understanding of legal aid in criminal cases
 The defendant must show that her getting legal aid would be in the interests of justice
 Interests of justice ---- e.g. she could lose liberty or reputation
Magistrates’ Court means testing

 Means test is either in or out
 “in” = they have a low income and pass the means test & get legal aid
 “out” = they have an income over the means test & don’t get legal aid
Crown Court means testing
 Most defendants can get legal aid --- because sentencing powers are unlimited the defendant
is more at risk of losing substantial liberty
 If the defendant has a higher income, they will pay a contribution to their legal costs
 If the defendant has disposable income over £37,500 will get no legal aid
Funding in criminal cases Rongo’s answer

Emily is charged with robbery of Adam’s Monster Beats by Dr Dre headphones. Assuming that
Emily has a small income and no savings, assess the options that may be open to her to receive legal
advice and representation in her case.
[final part of Question 11]
Emily could ring Citizens Advice to get free legal advice about her case.
Emily will get a free phone call at the police station from the Duty Solicitor Scheme which is paid
for by legal aid. This phone call will help Emily understand how to enter her plea, about her right to
bail and how she can apply for legal aid for court representation.
Emily could represent herself at court but the case will be complicated and she has more chance of
losing if she does this. Emily should apply for legal aid so the government would pay for a barrister
to represent her and advocate her case at court.
To get legal aid Emily must pass two tests. First the interest of justice test; it must be shown that
Emily could lose her liberty unless they are helped. She is likely to pass this test as the charge
carried a custody/prison sentence. Second the means test. Emily must show she is on an average to
low salary so needs the public funding afford representation. As the scenario states Emily has a
small income she should pass the means test and therefore get legal aid.
When her trial finishes her legal aid will be looked at by the judge. If she is found guilty the judge
will order Emily to pay back some money for the legal aid she received. If she is found not guilty
the judge will not order Emily to pay back the legal aid help she got.
40
Access to justice and funding Paper 1 exam questions
11
Daryl joined a gang which was well known in the area for stealing from local stores. Daryl was
ordered to steal a laptop computer. When he refused, the leader of the gang told Daryl that if he did
not do this, Daryl’s young son would end up in hospital very soon.
Fran went to collect a laptop and mobile phone that she had ordered from a local store. Daryl
followed her into the store and watched as Fran was handed a laptop and a mobile phone. She put
the mobile phone straight into her bag and held the laptop as she paid the shopkeeper. When Fran
left the shop, Daryl followed her and, remembering the earlier threat about his son, pushed her hard
against the wall, snatched the laptop and ran down the street.
Later that evening, when Fran switched on the mobile phone, she realised that it was not the one she
had ordered but a more expensive model, and so she decided to keep it.
Consider Daryl and Fran’s criminal liability for property offences in relation to the laptop computer
and the mobile phone.
Assess the ways in which Daryl and Fran may obtain legal advice about their cases before trial.
[30 marks]
41
Paper 2
42

system
 Fault
 Morals
 The nature of law
 Law making: parliamentary law making
 Law making: law reform
 The civil courts and other forms of dispute resolution
 The judiciary: types of judges and role of judges in civil cases
 Access to justice and funding in civil system
43
 Fault
 Morals
Assessed in:
 Question 09 (most likely in Paper 2 this question is nature of law – fault or morals)
 Question 11 (most likely in Paper 2 theory is the final 7 mark “bit” here)
Usually one question per paper will be on the nature of law
Example question:
09
Examine the relationship between legal rules and moral rules. Discuss the extent to which rules on
negligence reflects rules of morality.
[15 marks]
44
Paper 2 nature of law topics
 Fault
 Morals
Paper 2 topics
Rules of tort law
Negligence
Psychiatric injury “HASPS”

“discuss the extent”
Pure economic loss “SACKD”
Occupiers’ liability
could link to any one
Private nuisance “TESSA”
topic from Paper 2
Rylands v Fletcher “BEEF”
Vicarious liability
Defences – contributory
negligence
Remedies
45
The nature of law

The nature of law
behaviour.
 Purpose
 courts
 outcome of case
Sources of law

46
Parliamentary law making
 Green and White papers
 The formal legislative process
 The influences on parliament
 The doctrine of parliamentary supremacy and limitations on it
 Evaluation: the advantages and disadvantages of influences on parliamentary law making
Introducing an Act of Parliament: Green and White papers
Green Papers are consultation documents produced by the Government. The aim of this document
is to allow people both inside and outside Parliament to give the department feedback on its policy
or legislative proposals.
White papers are policy documents produced by the Government that set out their proposals for
future legislation. White Papers may include a draft version of a Bill that is being planned. This
provides a basis for further consultation and discussion with interested or affected groups and
allows final changes to be made before a Bill is formally presented to Parliament.
The formal legislative process
Types of Bill
Type Explanation
Public Bill Public Bills are introduced by a minister to bring forward government-
supported legislation. This Bill involves a matter of public policy which will
affect either the whole country or a large section of it. Public Bills are the
most common Bill.
Private Bill sponsored by individual MPs.

Members’ Bill  Ballot: Each parliamentary session allows a ballot in which 20 private
members can present a Bill for debate. Limited time allowed for
debate. Few Bills become law.
 Ten minute rule: Any MP can make a speech for 10 minutes to support
new legislation. These Bills are rarely successful unless there is
widespread support for the Bill amongst MPs.
Private Bill Not covering the whole country and introduced in the House of Lords. A
small number of Bills designed to affect individual people or companies. Do
not affect the whole community.
The formal legislative process
Stage Explanation
FIRST READING Formal procedure where the name and main aims of the Bill are read out. Usually
no discussion takes place.
47
SECOND READING Main debate on the principles of the Bill. The debate focuses on the general
principles of the Bill rather than small details. At the end a vote is taken and a
majority in favour is needed before the Bill can progress any further.
COMMITTEE STAGE Detailed examination of each clause of the Bill undertaken by 16-50 MPs. Usually
done by a Standing Committee who are chosen specifically for that Bill (with a
specialism in that area). Opposition and minority parties are represented
proportionately to their number of seats in the House of Commons.
REPORT STAGE The amendments made in the Committee Stage are reported back to the House of
Commons, debated and voted on. Only when the House is satisfied with the bill
will it go to the Third Reading.
THIRD READING The final debate and vote. The Bill is unlikely to fail at this stage as it has passed
all previous stages. There is no final debate unless in the House of Commons
more than 6 MPs must request one.
HOUSE OF LORDS It is then sent to the other House where the same stages are gone through. The
(THE OTHER same 5 stages must be completed.
HOUSE)
PING PONG Amendments may be sent back and forth between the Houses. If the other House
makes amendments these need to be agreed by both houses, so this is why they
will be sent back and forth.
PARLIAMENT ACTS The Parliament Acts 1911 and 1949 – a Bill may be forced into legislation against
1911 AND 1949 the wishes of the House of Lords. The principle is that the House of Lords are not
elected so its role is to refine and add to law rather than oppose it. It has only been
used 4 times since 1949 – famously for the Hunting Act 2004.
ROYAL ASSENT A mere formality nowadays, the Monarch does not have the text of the Bill, only
the short title, and the last Bill refused assent by a Monarch was in 1707. The Bill
becomes an Act of Parliament.
48
The influences on Parliament
Influence Explanation Advantage  Disadvantage 

Political When a new government is formed  The government  No Parliament can
influences it sets out a programme of reforms has a majority in the bind it successor
(government it wants to carry out. These are House of Commons therefore the next
manifesto based on the party manifesto, on so it should have the government to take
pledges) the strength of which it asked political power to power could remove
people to vote for it in the General bring its manifesto the laws that the
Election. At the start of each pledges into law. previous government
parliamentary session, the Queen’s passed.
Speech states the government’s
announcements of the particular
laws it intends to introduce during
that session.
Public Specific events may play a part in  Like in the  Parliament might
opinion and formulating new laws, for example Dunblane massacre a be influenced to
the media after the massacre in Dunblane specific event can create a poorly
1996 of 16 children leading to the bring about pressure drafted “knee-jerk”
Firearms (Amendment) Act 1997. for a new law that can reaction law like the
TV and newspapers can bring avoid tragedy for Dangerous Dogs Act
issues to the attention of the public. other schools in the 1991 which failed to
UK. protect people from
attacks by certain
breeds of dog.
Pressure Sectional pressure groups represent  Pressure groups  Two pressure
groups a certain section of people, for often raise important groups can have
example the Law Society that issues that help the conflicting interests,
represents solicitors’ interest. government be more like the Countryside
Cause pressure groups promote a aware of an issue that Alliance that wanted
particular cause. needs a new law. to continue fox
The League Against Cruel Sports hunting, making it
successfully influenced Parliament difficult for MPs to
(along with other pressure groups) know which cause to
to enact the Hunting Act 2004. support.
Lobbying is where pressure groups
try to support individual MPs to
support their cause.
Law reform The Law Commission researches  The Law  Parliament does
bodies (the area of law that it feels need Commission uses not always create the
Law reform and puts proposals for legal experts to new laws suggested
Commission) change to Parliament. Many research new law by the Law
reports are ignored but some are proposals for periods Commission because
enacted by Parliament to become of four years or more. they do not have
new Acts of Parliament: enough time.
Law Commission report Murder,
Manslaughter and Infanticide 2006
49
The doctrine of parliamentary supremacy
Definition of parliamentary supremacy
Parliament can • Parliament can make any law they choose

legislate on any • They could even vote to remove human rights
subject matter • Parliament Acts 1911 and 1949 The House of Lords have
limited power to delay legislation from the House of Commons
They can only delay by one year
They can never delay Bills agreed in the manifesto
Parliament cannot • Each new Parliament is free to make or change what laws it
bind any successor wishes
• For example a new government could rejoin the EU
Cannot be overruled • The Supreme Court cannot overrule an Act of Parliament

by others • Even when there has been a human rights violation
Limitations on parliamentary supremacy
The effect of the • The Supreme Court cannot overrule an Act of Parliament
Human Rights Act • Even when there has been a human rights violation
1998 • However, the Supreme Court does have a moral authority
• For example, when the court criticised prisoners not having the
vote, it did not force government to change the law, but put
moral pressure on them that they should
Devolution • Certain powers have been devolved to Scotland and Wales

• Parliamentary supremacy has been lost in some areas, like free
prescriptions and no university fees in Scotland
EU membership • We left the EU so the EU has no power over our government

• However, when we were part of the EU they could force us to
change law if we failed to follow EU rules, like on fishing
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Parliamentary law making Paper 2 exam questions
Question 06
A Bill is brought to the House of Commons for passage through Parliament.

Explain how the House of Lords may be able to delay passage of the Bill but cannot finally stop it
from becoming an Act of Parliament.
[5 marks]
Question 06
Explain the doctrine of parliamentary supremacy and the limitations on parliamentary supremacy.
[5 marks]
Question 06
Explain any two influences on Parliamentary law-making.
[5 marks]
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Law reform
 The work of the Law Commission: reform, codification, consolidation and repeal
 The advantages and disadvantages of reform through the Law Commission
The Law Commission is a full-time body of one Chairman and four other Law Commissioners, who
each lead a team of researchers and support staff. Together they are responsible for researching
areas of law in need of reform and bringing proposed reforms before Parliament.
Reform
 The Law Commission considers areas of law in need of reform (chosen by either the Law
Commission or Parliament)
 It researches the area of law by analysing legal problems and collecting statistics
 Issues a consultation paper seeking views on possible reform from experts in the field
 Produces a final report of recommended changes with a draft Bill that Parliament could
introduce
 Around 2/3 of law reform reports are implemented by the government
Codification
 Codification creates an Act of Parliament that sets out a code for the law in one area
 For example, some non-fatal offences are defined in the common law (assault and battery)
this means the definitions are not organised, not democratic and not easy for the public to
find
 For example: the Draft Criminal Code 1989 was an idea to code all the criminal offence
definitions into one Act of Parliament
 The Code was so large that Parliament did not have time to deal with all of it
 By 2008 the Law Commission finally abandoned the project of having a complete criminal
Code
Consolidation
 Consolidation is the process of bringing lots of different laws together into one Act of
Parliament
 This makes the law easier to understand and easier for the public to find out what the law is
 For example: the laws of sentencing were consolidated (but later broken up again by
Parliament in later law)
Repeal
 Repeal is where a law is removed by Parliament

 Usually this happens because the law has become out-of-date & makes the law more
accessible
 For example, the defence of provocation was repealed by Parliament in the Coroners and
Justice Act 2009 because the Law Commission had highlighted the danger to women by
allowing partners to receive a partial defence for killing in response to sexual infidelity
52
The Role of the Law Commission in the legislative process. Lord Justice Etherton
https://www.youtube.com/watch?v=w6ZQkMa8lP4
Advantages of law reform
😊 An advantage of law reform is that the Law Commission has legal experts that research the
reform proposals for new law. The Chairman and the four Law Commissioners are experienced
judges, solicitors or barristers. The Commissioners are supported by a team of 20 Government
Legal Service experts with further research assistants (who are often law graduates). This is a
strength because the Law Commission has depth of legal knowledge, and can accurately research
the law reforms that are needed and make appropriate recommendations. Their proposals should be
fit for purpose and judges will be able to understand and apply them in real cases.
😊 Another advantage is that the Law Commission consults the public and publishes its reports in
the media. They encourage feedback from any person in society and will consider all the views that
they receive. This is a strength because the reform proposal then has more democratic legitimacy,
and Parliament will have to carefully consider the reforms proposed.
Disadvantages of law reform
☹ A weakness of law reform is that Parliament fails to implement reforms in around 1/3 of
cases. I know this because Parliament is slow to bring in reforms and sometimes does not change
the law as advised by the Law Commission at all. For example the Non-fatal Offences Against the
Person Report 2015 was rejected by the government because they said it would cost too much to
train the police and judges to understand the new law. This is a weakness because reforms that are
research by the Law Commission as being needed for our country are often ignored by the
government and the law can stay out-of-date or leave injustice in the law. For example the proposed
reform of ABH to intentional or reckless injury would require mens rea and prevent the current
injustice of convicting a person for ABH when they have no mens rea for “some harm”. But as the
government have ignored the proposal this injustice remains.
☹ Another weakness is the lack of parliamentary time to consider the proposals of the Law
Commission. Parliament doesn’t have enough time to consider reform proposals because their time
is filled with important decisions about policy areas like tax and health. This is a weakness because
Parliament may not have time to consider the reforms and can cause delays in implementing the
reforms once agreed.
53
Law reform Paper 2 exam questions
Question 06
Explain two aspects of the work of the Law Commission in reforming the law. Give an example of
an area of law that the Law Commission has looked at.
[5 marks]
Question 11
Glenda owned a book shop in the centre of town. She had recently asked Hank, the brother of a
friend of hers, to install some new shelves along one of the walls.
Ivan was a customer in the book shop, and he wanted to look at a book on the top row of the new
shelves. Ivan stood on a small stool provided for the use of customers to reach the book. Despite the
fact that he could see that the top shelves were loose and coming away from the wall, he held onto
the top shelves to reach the book. The shelves collapsed and Ivan fell to the floor suffering a broken
arm.
At the back of Glenda’s book shop was a storeroom with a door out onto the next street. Customers
frequently went through the storeroom when they left the shop as it provided a convenient short cut.
Glenda was concerned because some wiring had come loose in the storeroom. Glenda therefore put
up a notice on the door to the storeroom saying, ‘Strictly no admittance’. Jaima saw the notice, but
she was late for an appointment with her bank and decided to use the short cut anyway. Jaima
brushed against the loose wiring and received a severe electric shock. She suffered bad burns and
her mobile phone was smashed when she fell to the floor.
Consider the rights and remedies of Ivan and of Jaima against Glenda in relation to their injuries
and losses.
Any of these parties might take the view that the rules of law which apply need reforming. Assess
the role of the Law Commission in any reform process.
[30 marks]
54
Civil courts
A basic understanding of the civil courts:
 The County Court
 The High Court
 And explain the types of civil case heard in each court (the track system)
A basic understanding of appeals in civil cases:
 Appeals from the County Court
 Appeals from the High Court
Explain other forms of dispute resolution:
 Explain the role of tribunals
 Negotiation
 Mediation
The County Court The High Court

Judge: District Judge Judge: High Court Judge or Circuit Judge
Hears small claims track and fast track cases Hears multi-track cases only
Can hear some multi-track cases but only
where the case is not complex
The track system
The Small Claims Track hears claims worth under £10,000 at the County Court. The claims will
be simple. A district judge hears the claim and it is more informal than the other tracks. Legal costs
are not recoverable so parties often represent themselves (without a lawyer).
The Fast Track hears claims worth between £10,000 and £25,000. The cases can be more complex.
They are heard in the County Court before either a district judge (simple cases) or circuit judge (if
more complex). There is a strict timetable that brings trial within 30 weeks and the trial itself can be
no longer than 1 day. Only 1 expert is allowed.
The Multi-Track is for more complex cases of over £25,000. Cases that are less complex can be
heard in the County Court. Cases that are more complex, or higher in value (usually £50,000 or
over) are heard in the High Court. Cases are heard by a circuit judge. Trials can be long and
multiple experts may be required.
The standard and burden of proof

The burden of proof in civil cases rests on the claimant. This means the claimant must prove
(using evidence) that the defendant is liable in her claim.
The standard of proof in civil cases is on the balance of probabilities. This means that the claimant
must prove that (in the case of contract) it is more likely than not that the defendant breached the
contract.
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Appeals in civil cases
Appeals from the County Court
The route of appeal depends on what track the case was in the County Court:
 Small claims track the appeal is made to a Circuit Judge in the County Court
 Fast track the appeal is made to a Circuit Judge in the County Court
 Multi-track the appeal is made to the Court of Appeal
Second appeals to the Court of Appeal (Civil Division) are only allowed in exceptional cases. The
appeal must raise an important point. Or there must be some other compelling reason
Appeals from the High Court
Appeals from the High Court are heard in the Court of Appeal (Civil Division). Further appeals
from the Court of Appeal to the Supreme Court are extremely rare. The Supreme Court must give
permission to appeal, and the case must involve a point of law of general public importance.
Example British Railways Board v Herrington (1972) the issue of all “occupiers” in England
potentially owing a duty of care to any trespassers was held to be of public importance.
Other forms of dispute resolution
Tribunals
• The First-tier Tribunal hear the case at first instance. For example, the Employment Tribunal
hears claims from people who think they’ve been unlawfully treated at work for example by
wrongful dismissal.
• The Upper Tribunal hears appeals, for example the Employment Appeal Tribunal.
• Second appeals to the Court of Appeal (Civil Division) are only allowed in exceptional
cases. The appeal must raise an important point. Or there must be some other compelling
reason
Negotiation is private and also a quicker method of settling disputes. The claimant and defendant
try and agree a deal without going to court.
Mediation is when a neutral mediator (a person trained to help the parties reach a decision) that
helps the parties reach a compromise solution. Mediation is only suitable if there is some hope that
the claimant and defendant can cooperate.
56
Civil courts Paper 2 exam questions
Question 06
Explain three differences between the resolution of civil law disputes in courts on the one hand,
and through alternative dispute resolution mechanisms on the other.
[5 marks]
Question 06
Explain, using examples, the role of tribunals in the English legal system.
[5 marks]
Question 06
Explain three aspects of the role of a mediator.

[5 marks]
Question 11
Leroy owned an antique table. He asked Movers, a local firm of auctioneers, to value the table.
Movers sent Nickie to visit Leroy. Nickie worked part-time for Movers, and they often asked her to
visit customers who needed advice on antique furniture. A paragraph in Nickie’s contract with
Movers stated that she should only advise customers on furniture.
While Nickie was at Leroy’s house, Leroy asked her to value a diamond necklace. Nickie stated that
the necklace was a fake and had no value. Leroy gave the necklace to a local charity shop. Leroy
later discovered that the necklace was genuine and that its value was £50 000.
Consider the rights and remedies of Leroy against Nickie and of Leroy against Movers in relation to
his loss.
In relation to the disagreement between Leroy and Movers, assess the different methods of dispute
resolution available, both in and out of court.
[30 marks]
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The judiciary - Paper 2 focus in civil courts

• The role of judges in civil courts
Types of judge

High Court Judges
judgment

•
58
Question 06
Explain any three aspects of the role of a High Court judge when hearing a negligence case.
[5 marks]
Question 06
Explain the role of Justices of the Supreme Court when hearing an appeal.
[5 marks]
59
Access to justice and funding (in Paper 2 civil cases)
 Basic understanding of public funding: civil state funding

Bureau benefits.

unions
course.
What happens if the claimant wins a civil case (tort)? The defendant will pay damages and will
pay for the cost of the claimant’s legal expenses (in addition to paying for their own legal
expenses).
What happens if the claimant loses a civil case (tort)? The claimant will pay their own legal
expenses and will be ordered to pay the defendant’s legal costs also.
savings.
Insurance The citizen could have house or car insurance that will pay for the legal advice.
“before the event” insurance: a policy is taken out in case the person/business ever gets sued
“after the event” insurance: the person/business is being sued already but takes out a policy that will
pay the other sides legal costs in the event that they lose the case
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Conditional fee agreements (“CFAs”)
 The client only pays legal fees for their advice and representation if they win the case
 The payment is deducted from any compensation they receive and a “success fee”
 The maximum the solicitor can deduct is up to 25% of the compensation
 The client might have to pay for after the event insurance to protect them against the risk of
losing
Basic understanding of legal aid in civil cases
LEGAL AID IS NOT AVAILABLE IN ANY CLAIMS

THAT WE STUDY
 Legal aid is only available in limited cases in civil law (none that we study)
This is the most common mistake with

funding:
When students don’t understand that legal

aid is not available in any civil case that we
study
In a problem question you must be clear the

person suing or being sued will not get any
legal aid to help pay for the legal costs of
the claim
Note to self: ignore legal aid

when doing Paper 2
Don’t mention it at all
Ever
We don’t talk about Bruno
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Paper 2 access to justice and funding
Funding in civil cases
Jed, Ryan’s neighbour, is suing Ryan over his constant noisy parties in his garden in private
nuisance. Assuming that Jed has a small income and no savings, assess the options that may be
open to him to pursue legal action against Ryan.
Jed could ring Citizens Advice, a free helpline that would give him advice about how the civil claim
will work and how he can go about starting the claim.
Jed could use his private funding to pay for his advice. He could pay for legal advice about his
options to sue Ryan or legal representation for a barrister to represent him in any court case.
However, this would be expensive because legal fees are high so therefore he may not be able to
afford it.
Jed could take out after the event insurance to protect him against the risk of losing the case and
having to pay Ryan’s legal fees. However, Jed would need a large sum of money to pay for the
insurance premium which would need to be paid before he’d get the advice. This could be too
expensive for him.
Jed could take out a conditional fee agreement. This would mean he wouldn’t pay any legal costs
unless he won the case, and they would be limited to 25% of the total damages he’s awarded. This
could be the best option for Jed because a large up-front payment isn’t required to start his claim.
Jed could therefore bring the claim straight away, and only if he wins the case will he have to pay
legal fees for the advice that he’s received.
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Paper 3
63

system
 Balancing
 Justice
 Morals
• The nature of law
• The rule of law
• Law making: delegated legislation
• Law making: the European Union
• The judiciary: types of judge. Role of judges in criminal courts (human rights).
• Independence of the judiciary.
• Access to justice and funding in criminal system (human rights)
64
 Balancing
 Justice
 Morals Paper 3 is the only Paper

where you can get two
nature of law questions in
Assessed in: the same paper
 Question 09 and/or
 Question 11 (if the nature of law topic comes up here then theory will replace it in Question
09)
Example question:
09
From a human rights perspective, it is important that both the right to freedom of expression and the
right to respect for a person’s reputation should be preserved.
Examine the role of law in balancing conflicting interests. Discuss the extent to which the English
law of defamation can achieve a satisfactory balance between freedom of expression and protection
of reputation.
[15 marks]
65
 Balancing
 Justice
 Morals
Paper 3 topics
Rules in human rights law
Human rights in international law
Human rights in the UK before and after the

Human Rights Act 1998 “discuss the extent”
Article 2 the right to life
could link to any one
Article 5 the right to liberty and security
topic from Paper 3
Article 8 the right to a private and family life
Article 10 the right to freedom of expression
Article 11 the right to freedom of peaceful

assembly and association
Enforcement
Reform
66
The nature of law

The nature of law
behaviour.
 Purpose
 courts
 outcome of case
Sources of law

67
The nature of law Paper 3 exam questions
Question 06
Explain two characteristics of the common law as a source of law and provide an example to
illustrate one of those characteristics.
[5 marks]
Question 11
Jack is now 22 years old. Completely unknown to him, he is the son of Karl, a convicted murderer
who has been in prison for 21 years. Karl had shot and killed two unarmed and defenceless police
officers as he made his escape following a robbery at a jewellery shop. By chance, Lucy, a reporter
for The Clarion, a national newspaper, discovered Jack’s true identity and offered him money if he
would consent to a published interview. When Jack refused, Lucy wrote a sensationalised story
about Jack, naming him as Karl’s son.
In consequence, Jack suffered persecution at work causing him to react violently and lose his job.
He also became the victim of much unpleasant and threatening comment on social media, forcing
him to move home and change his identity. On a number of occasions, he was stopped and searched
by police officers when there was no obvious reason for them to do so.
Taking a human rights perspective, consider what rights and remedies Jack may have against Lucy
and The Clarion, and against the police, arising out of the incidents described.
Assess the contribution of different sources of law to the rules which you have explained and
applied in considering Jack’s rights and remedies.
[30 marks]
68
The rule of law

The rule of law
Basic understanding of the constitutional doctrine of the rule of law and its application to law making, the legal
system and substantive law:
• no person shall be sanctioned except in accordance with the law
• equality before the law
• fairness and clarity.
In its simplest form, the rule of law means that “no one is above the law.” For the rule of law to be
effective, there must be equality under the law, transparency of law, an independent judiciary and
access to legal remedy.
The rule of law
Principle of the rule Explanation

of law
no person shall be The belief that no person should be punished except for a breach of the law.
sanctioned except in No person is above the law so government officials are accountable for their
accordance with the actions (enforced by judicial review)
law
equality before the With disputes resolved in the courts. People of any class, gender or race are
law universally subject to one law administered by the courts.
fairness and clarity The law should be fair to all people equally and clarity means the law should
be clear to the people
The application of the rule of law:
 The rule of law and law making: discuss the law making process in delegated legislation
o No-one is above the law as the authority making the delegated legislation is
accountable for their actions and the MPs in Parliament are accountable for giving
the authority the power to make the delegated law in the first place
 The rule of law and the legal system: discuss legal aid funding in civil and criminal cases
o Equality before the law is achieved in criminal law because some legal aid is
available on a means tested basis, meaning most people will get advice and
representation
 The rule of law and substantive law: discuss the law in Article 8 of the European
Convention on Human Rights, the right to a private family life
o Fairness and clarity, the rights in Article 8 mean most citizens will know the police
can’t put them under surveillance without evidence they are involved in a crime
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The rule of law Paper 3 exam questions
Question 06
Explain the constitutional doctrine of the rule of law.

[5 marks]
Question 06
Explain the application of the rule of law and law making. Give one example to support your
answer
[5 marks]
Question 06
Explain the application of the rule of law and the legal system. Give one example to support your
answer
[5 marks]
Question 06
Explain the application of the rule of law and substantive law. Give one example from the
substantive law in Article 2 of the European Convention on Human Rights to support your answer.
[5 marks]
70
Delegated legislation
• Types of delegated legislation: orders in council, statutory instruments, by-laws (from
local authorities and public bodies)
• Parliamentary and judicial controls on delegated legislation
• The reasons for the use of delegated legislation
• Evaluation: The advantages and disadvantages of delegated legislation
Types of delegated legislation

Type of Explanation
delegated
legislation
ORDERS IN Made by Queen and Privy Council for example transferring responsibility
COUNCIL between government departments.
STATUTORY Government departments and ministers are given some authority under an
INSTRUMENT Enabling Act to make regulations (secondary legislation) for areas under their
S (“SI”) control. For example, Department of Work & Pensions updating national
minimum wage each year.
BY-LAWS Made by local authorities to cover areas within their control, for example
Newcastle City Council banning parking on the Great North Road.
Control of delegated legislation

Parliament must control delegated legislation (“DL”) to maintain Parliamentary sovereignty. The
Enabling Act controls DL because it states exactly what DL the government department can make
and whether it can apply to only one town or the whole country. Parliament can repeal the
Enabling Act at any time. There is a Delegated Powers Scrutiny Committee in the House of Lords
that scrutinises (checks) any Bills that will become Enabling Acts, it reports its findings to the
House, who can then suggest amendments if necessary. This ensures the right amount of power is
given to the government departments.
Affirmative resolutions mean the statutory instrument will not become law until approved by
Parliament. Negative resolutions mean the statutory instrument will become law unless rejected by
Parliament within 40 days. Questioning of government ministers by MPs can hold them to
account over their use of DL. Scrutiny committee reviews statutory instruments and can refer them
to the House of Commons if they are technically incorrect (in how the government department has
exercised its power).
The Legislative and Regulatory Reform Act 2006: creates a procedure to make statutory
instruments that repeal an existing law to remove a “burden” (like financial cost). This Act gives
ministers a wide power to amend Acts of Parliament by three methods. First, a negative resolution
procedure is where a minister requests it, waits 30 days, puts the DL before Parliament, and there
are no objections for 40 days. Second, an affirmative resolution procedure requires both Houses
to approve the order. Third, a super-affirmative resolution procedure (which can be requested by
71
Parliament), the minister must consider representations, resolutions of the Houses and
recommendations of committees of the Houses.
Control by the courts is where the court is asked to challenge a DL law because it’s ultra vires
(made outside the power of the government department). If the court rules the DL ultra vires its
void. If the government department makes an unreasonable DL the court may find it ultra vires (in
Strickland the DL banned signing in private by mistake and the court held it ultra vires). Or if the
government department doesn’t follow the correct procedure the court may find the law ultra vires
(in National Union of Teachers the DL changed teachers pay conditions with only 4 days
consultation and the court held this ultra vires).
The reasons for the use of delegated legislation

Need for detailed law means that Parliament doesn’t have the time to make the large number of
regulations needed for government departments to run effectively, for example, changes to national
minimum wages. Need for expert knowledge means Parliament doesn’t have the expertise that the
government departments hold over their areas of law, so Parliament should rely on them. Need for
local knowledge means local councils know where, for example, parking charges are necessary.
Need for consultation means the DL in some areas, for example policing, must be consulted with
experts in that area, so the regulations should be more appropriate for the specialist area.
Advantages of delegated legislation
😊 Delegated legislation saves parliamentary time. I know this because the government
departments make the regulations independently, freeing up Parliament to focus on wider issues
of policy. This is a strength because Parliament has limited time so it’s better for Parliament to
focus on issues that affect the whole country and leave the details of smaller matters to secondary
bodies like local councils.
😊 Delegated legislation is easy to amend. I know this because the Department for Work and
Pensions updates the national minimum wage every year without requiring a full debate in
Parliament. This is a strength because Ministers can respond quickly to changes in society without
needing to go through the slower law making process with a Bill.
Disadvantages of delegated legislation
☹ Delegated legislation is undemocratic. I know this because the DL decisions are made by non-
elected government departments. This is a weakness because MPs in the Commons are elected
and should debate and vote new law, they may also lack sufficient control of DL, meaning the DL is
not adequately protected by MPs who were voted in to make law.
☹ Delegated legislation is high in volume and not as public as Acts of Parliament.

I know this because thousands of statutory instruments are made every year. They are not
debated and shown on TV like in the House of Commons. This is a weakness because the law is
more difficult to find and understand for citizens and makes the law less transparent.
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73
Delegated legislation Paper 3 exam questions
Question 06
Explain two reasons why a large amount of law is made by delegated legislation. Use an example to
illustrate one of your reasons.
[5 marks]
Question 11
Residents in a street in Longtown became angry about chaotic car parking by non-residents going
into the town centre to work or shop. With Mark as their leader, many wanted a ‘residents-only’
parking system but a small number strongly opposed it and the local council did not approve of the
suggestion. Without informing the police, Mark organised a protest by residents, who marched
down the street, holding up traffic, and placed stickers on the windscreens of some cars stating,
“Warning! Don’t come back”. During this time, a group of three residents opposed to the action
argued with the marchers and some scuffles broke out. The police were called and pushed the group
of three into a corner of the street where they were kept for an hour until the march could be broken
up. Meanwhile, the police disrupted the march and moved the marchers away.
The residents then decided on further action. Jess and Karl frequently followed local council
officials, or waited for them outside the council building, shouting and complaining about the
parking issue. Mark notified the police of the intention to hold a further march and demonstration in
the street. The police responded by instructing Mark that the march would have to take place
through a largely uninhabited area one mile away and finish with speeches in a small area of a large
park.
Referring both to English law and to the law of the European Convention on Human Rights,
consider the rights, duties and remedies arising out of the events concerning the car parking issues.
The law applied in connection with the events above includes legislation supported by delegated
legislation. Assess the general significance of delegated legislation as a source of law.
[30 marks]
74
The European Union
 The institutions of the European Union: the Council, the Commission, the Parliament and
the Court of Justice of the European Union and their functions.
 The different sources of European Union law: treaties, regulations and directives.
 The impact of European Union law on the law of England and Wales.
The Council
 Main decision making body of the EU

 Representative from each country, dependent on the topic of discussion. Usually the foreign
minister but, for example, if agriculture is the main topic minister for agriculture would be
sent and the same is true for other topic areas
 Twice a year a summit is held where the prime minister and foreign minister attend to set
out the agenda for the next six months
 Each country takes a turn at being President of the Council and chairs the meetings for six
months
The Commission
 Each commissioner is appointed for a five year term and they can only be removed by the
European Parliament. Each Commissioner heads a department, e.g. transport or agriculture
and has special responsibility for that area of Union policy
 Functions of the Commission: Proposes policies and presents draft legislation to the
Council: ‘the Commission proposes and the Council disposes’
European Parliament
 Sit according to political affiliations rather than in country blocks

 No direct law making authority. It discusses proposals made by the Commission and makes
recommendations to the Council
 Has some control over the budget and can veto a Commissioner’s appointment
The Court of Justice of the European Union
 Judicial role of the court – hear cases (usually brought by the Commission) to decide if
member states have fulfilled their obligations
 11 sit for full court, otherwise 5 or 3 judges
 They are not bound by precedent – even their own decisions
 They are allowed to use any extrinsic material unlike the British courts
75
The different sources of European Union law: treaties, regulations and directives:
Source of How does this law apply to Member States and their citizens?
EU law
Treaties • Directly applicable and directly effective.
• Treaty provisions can be treated as part of national law and have precedence
over any national law which conflicts with them – they are directly applicable.
• An individual can sue the state for breach of EU Law.
• It can also sue another private corporation/ individual.
Regulation • Regulations, like treaty provisions, also have direct effect

s • An individual can sue directly against the State or individual/businesses
directly to enforce their rights under a Regulation
• Regulations are automatically law in all Member States
Directives • An individual cannot sue to enforce a directive until the time limit set for
achieving the result has expired
• Only the government can be sued for failure to implement a directive
• As it was their fault that the directive was not passed in the time limit and a
citizen has lost out as a result.
The impact of European Union law on the law of England and Wales
On 31 January 2020 the UK left the EU. The law of the EU only has effect in England and Wales in
cases that happened before this date.
EU law takes precedence over national law (again only before 2020). For example in the
Factortame case where the ECJ held that the UK couldn’t enforce the Merchant Shipping Act 1988
against EU nationals. The UK (and other Member States) transferred some sovereign rights to the
EU, for example fishing quotas (like in Factortame).
76
European Union Paper 3 exam questions
A question on the EU is unlikely now we’ve left the EU
We teachers think so on Facebook anyway!
Question 06
Explain the differences between any two institutions of the European Union.
[5 marks]
Question 06
Explain two different sources of European Union law. Use an example from civil or criminal law to
illustrate one of your suggested sources.
[5 marks]
Question 06
Explain the impact of European Union law on the law of England and Wales. Use a case to
illustrate your explanation.
[5 marks]
77
The judiciary Paper 3 – focus is criminal courts
• The role of judges in criminal courts
• The independence of the judiciary: security of tenure, immunity from suit, independence
from the Executive
• Evaluation: reasons for and advantages of judicial independence and the methods by
which it is achieved
Types of judge

High Court Judges
judgment
78
•
79
The independence of the judiciary
Feature of Explanation
independence of the
judiciary
Security of tenure Superior judges (Supreme Court and COA) have security of tenure which means
they cannot be fired by government unless they fail to show good behaviour (not
defined but once used for criminal activity)
The King/Queen would have to make a petition to remove to Parliament
Inferior judges don’t have security of tenure and can be fired by the Lord
Chancellor for incapacity or misbehaviour
Immunity from suit Judges are immune from prosecution for any acts they carry out in performance of
their judicial function (this means they can’t be charged with a crime for doing their
job)
Judges are also immune from being sued in a civil court for doing their job
Independence from the  Superior judges cannot be fired by government (unless fail to show good
Executive behaviour)
 Therefore, can make decisions that upset government
the executive is cabinet, so at time of  Government ministers must uphold independence of judges
writing, the Conservatives who hold a
majority in the House of Commons  Lord Chancellor mustn’t influence judicial decisions
 Independent appointment of superior judges removes government
influence
Evaluation --- what’re the reasons for an independent judiciary?
Protects the liberty of individuals from abuse of power by the government. Because judges will hear
cases where the actions of government are challenged by individuals (which could include human
rights abuses) the judges must feel able to disagree with the actions of government. Judges can
challenge government because they cannot be fired, so can’t face consequences for decisions they
make in court. Judges must be free to decide cases only on the evidence heard by the court and must
therefore be free from outside pressures.
Advantages of judicial independence
😊 Judges are independent from government and therefore make decisions based only on the
evidence presented in the case before them because of their security of tenure.
😊 Judges can protect members of the public against unlawful acts by the government because they
have security of tenure and immunity from suit.
😊 The public have confidence in our judges because they know they are impartial and independent.
Notice that this topic

independence of the judiciary
only appears in Paper 3
80
Question 06
Explain two elements that can be considered to be aspects of ‘the rule of law’. Briefly explain why
the independence of the judiciary is important in relation to the rule of law.
[5 marks]
Question 06
Explain two ways in which the law tries to ensure the independence of the judges.
[5 marks]
Question 06
Explain two features of the independence of the judiciary.
[5 marks]
Because the judiciary topic in Paper 3 has this

special independence of the judiciary bit
That doesn’t appear in the other papers
When the judiciary comes up in Paper 3 you

can make a safe bet that it will be an
independence question like above
81
Access to justice and funding (in Paper 3 criminal cases)
 Basic understanding of public funding: criminal state funding
In Paper 3 if you are asked about

access to justice and funding
You must talk about funding in

criminal cases
82

Bureau benefits.

unions
course.
What happens if the defendant is acquitted in a criminal case? If the defendant has paid for any
legal expenses they can claim some of the costs back from the state, up to a limited amount.
What happens if the defendant is convicted in a criminal case? The defendant could be ordered
to pay for some of their legal costs that were provided by legal aid for the case.
savings.
83
Basic understanding of legal aid in criminal cases
 The defendant must show that her getting legal aid would be in the interests of justice
 Interests of justice ---- e.g. she could lose liberty or reputation
Magistrates’ Court means testing

 Means test is either in or out
 “in” = they have a low income and pass the means test & get legal aid
 “out” = they have an income over the means test & don’t get legal aid
Crown Court means testing

 Most defendants can get legal aid --- because sentencing powers are unlimited the defendant
is more at risk of losing substantial liberty
 If the defendant has a higher income, they will pay a contribution to their legal costs
 If the defendant has disposable income over £37,500 will get no legal aid
Funding in criminal cases Rongo’s answer

Emily is charged with robbery of Adam’s Monster Beats by Dr Dre headphones. Assuming that
Emily has a small income and no savings, assess the options that may be open to her to receive legal
advice and representation in her case.
Emily could ring Citizens Advice to get free legal advice about her case.
Emily will get a free phone call at the police station from the Duty Solicitor Scheme which is paid
for by legal aid. This phone call will help Emily understand how to enter her plea, about her right to
bail and how she can apply for legal aid for court representation.
Emily could represent herself at court but the case will be complicated and she has more chance of
losing if she does this. Emily should apply for legal aid so the government would pay for a barrister
to represent her and advocate her case at court.
To get legal aid Emily must pass two tests. First the interest of justice test; it must be shown that
Emily could lose her liberty unless they are helped. She is likely to pass this test as the charge
carried a custody/prison sentence. Second the means test. Emily must show she is on an average to
low salary so needs the public funding afford representation. As the scenario states Emily has a
small income she should pass the means test and therefore get legal aid.
When her trial finishes her legal aid will be looked at by the judge. If she is found guilty the judge
will order Emily to pay back some money for the legal aid she received. If she is found not guilty
the judge will not order Emily to pay back the legal aid help she got.
84
Access to justice and funding Paper 3 exam questions
Question 11
Two different housing areas bordered a park. Members of rival gangs from the housing areas
sometimes fought each other in the park, where drug dealing was also rumoured to take place.
Following complaints about noise and violence late one night, police officers went to the park and
stopped and searched gang members, including Lucas. The police officers did not identify
themselves or make a record of the search. The police officers found nothing on Lucas. Later, Lucas
was furious about the way he had been treated.
The police officers then instructed members of one of the gangs to leave the park and deliberately
escorted them to their housing area by a long route which took about an hour. All members of the
gang were compelled to stay in the group and not allowed to stop. Throughout the walk to the
housing area, Nathan protested, truthfully, that he had nothing to do with the gang and had merely
been passing through the park when one of the police officers had forced him into the group. Police
officers ignored his protests. Nathan finally lost patience and tried to force his way back out of the
group. He was arrested and charged with assaulting a police constable in the execution of her duty.
Taking a human rights perspective, consider the rights, duties, liability and remedies of Lucas and
Nathan, and of the police officers where relevant.
In relation to any trial of Nathan for the offence of assaulting a police constable, assess what options
are open to Nathan to pay for any legal representation that he may need for the court case.
[30 marks]
85
86

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The nature of law and the E

Rongo AQA A-level Law

How do I revise the nature of law?

How do I revise the English legal system?

1 = You have prepared revision notes

Breakdown of nature of law and English legal system topics

Paper 1 Paper 2 Paper 3

“explain” You must give factual knowledge with examples only

“assess” You must give factual knowledge with examples

The nature of law and the English legal

Paper 1 list of ELS topics

• The nature of law

• Law making: statutory interpretation

• Law making: judicial precedent

• The legal system: the criminal courts and lay people

• Legal personnel – roles of barristers, solicitors and legal executives; regulation.

• The judiciary: types of judge. Role of judges in criminal courts.

• Access to justice and funding

Paper 1 list of nature of law topics (philosophy)

Usually one question per paper will be on the nature of law

A nature of law example question from Paper 1:

A theory example question from Paper 1:

Both types of question above follow the same structure:

Basic structure you should follow in Question 09

1. Describe and evaluate the nature of law topic (10 marks)

2. Describe and evaluate the law given in the question (5 marks)

3. Reach a balanced conclusion

“discuss the extent” means

Rules of criminal law

General elements of liability

 Murder could link to any one

Preliminary offences (attempts)

Defences (capacity defences)

Defences (necessity defences)

What you need to know in Paper 1

Nature of law: legal and other rules

The differences between criminal and civil law

Explain two sources of law in the English legal system. [5 marks]

What you need to know in Paper 1

The literal rule

Advantages of the literal rule

Disadvantages of the literal rule

Advantages of the golden rule

Disadvantages of the golden rule

Advantages of the mischief rule

Disadvantages of the mischief rule

Advantages of the purposive approach

Disadvantages of the purposive approach

External Aids (used to interpret an Act of Parliament)

What you need to know in Paper 1

The hierarchy of the courts including the Supreme Court

The hierarchy of courts

The Supreme Court

• Was called the House of Lords before 2009

Advantages of the doctrine of precedent

Disadvantages of the doctrine of precedent

Using any example, explain the 1966 Practice Statement.

The Magistrates’ Court The Crown Court