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Dredz- no it wouldn't matter all that much but they might ask you at the interview why you dropped it, if you wanted to pursue it, though if you had a good answer (which you do) then it probably wouldn't peanalise you; i've just written in the legal career section that you don't necesarily need an A Level in Law to study it at university level but you dhould definately check the sites of all the unis you want to apply to it for to see thier grade requirements because they differ.
Just to be sure, the notes given were what we were given as general guidance on how to asnwer the questions; they don't consist of all the facts, figures, quotes you need to know, so i don't know how useful it will be to everyone! Just be careful of that when revising from it.
I'm starting to put up examples of essay quesrions on precedent.
A typical part A question could be:
1. Desrcibe the doctrine of precedent/ Describe the system of precedent, etc (or anything to that effect.)
What you need to include:
Definition- Precedent is the past decisions of judges for future judges to follow; it is also known as case law/ common law. It was in 1250 that common law was established across the whole country.
Stare Decisis- ('stand by the decision'); this embraces 2 principles:
1. Like cases should be treated alike; 2. Higher courts bind lower courts.
Example of how precedent works: E.g in the case of Donoghue and Stevenson, Lord Atkin developed the famous 'neighbour principle' - the principle that the end consumer of a product can sue in the law of tort if they are injured by the product; this created a precedent which was followed in the case of Daniels v White.
Precedent depends upon a relaible system of law reporting: Most common reports = All England Law Reports; judges find the case by looking at the citation
Reports include:
Facts of the case, and the judges decision, called judgement.
Most important part if judgement = the ratio decidendi (reasons for the decision) because this is the bit that creates the precedent; Rupert Cross referred to it as the 'core of the judgement' ; all other things said are 'obiter dictra.'
There are three types of precedent:
1. Orginial ,(explain what it is)
Case example, e.g Hunter and Others.
2. Binding (Explain what it is, and that a case is only binding if the cases are alike and the precedent was created by a higher court- due to principles of stare decisis) also add the case of Holley because it's recent and will impress examiners (i've explained it in a previous post i think)
3. Persuasive (explain what it is); different types of persuasive precedent:
1. decisions of lower courts - e.g R v R (C.O.A decision, followed by H.O.L)
2. Obita dicta; e.g comments made obiter in R vBrown were later followed in R v Wilson.
3. Decisions made in other countries, e.g Australian case of Falconer.
4. Dissenting judements (explain what it is) - e.g Lord Denning has made many.
Note that you can change the cases to whichever ones the textbook give... i've just included them to remind you, always back up your points with a case.
Just to be sure, the notes given were what we were given as general guidance on how to asnwer the questions; they don't consist of all the facts, figures, quotes you need to know, so i don't know how useful it will be to everyone! Just be careful of that when revising from it.
I'm starting to put up examples of essay quesrions on precedent.
A typical part A question could be:
1. Desrcibe the doctrine of precedent/ Describe the system of precedent, etc (or anything to that effect.)
What you need to include:
Definition- Precedent is the past decisions of judges for future judges to follow; it is also known as case law/ common law. It was in 1250 that common law was established across the whole country.
Stare Decisis- ('stand by the decision'); this embraces 2 principles:
1. Like cases should be treated alike; 2. Higher courts bind lower courts.
Example of how precedent works: E.g in the case of Donoghue and Stevenson, Lord Atkin developed the famous 'neighbour principle' - the principle that the end consumer of a product can sue in the law of tort if they are injured by the product; this created a precedent which was followed in the case of Daniels v White.
Precedent depends upon a relaible system of law reporting: Most common reports = All England Law Reports; judges find the case by looking at the citation
Reports include:
Facts of the case, and the judges decision, called judgement.
Most important part if judgement = the ratio decidendi (reasons for the decision) because this is the bit that creates the precedent; Rupert Cross referred to it as the 'core of the judgement' ; all other things said are 'obiter dictra.'
There are three types of precedent:
1. Orginial ,(explain what it is)
Case example, e.g Hunter and Others.
2. Binding (Explain what it is, and that a case is only binding if the cases are alike and the precedent was created by a higher court- due to principles of stare decisis) also add the case of Holley because it's recent and will impress examiners (i've explained it in a previous post i think)
3. Persuasive (explain what it is); different types of persuasive precedent:
1. decisions of lower courts - e.g R v R (C.O.A decision, followed by H.O.L)
2. Obita dicta; e.g comments made obiter in R vBrown were later followed in R v Wilson.
3. Decisions made in other countries, e.g Australian case of Falconer.
4. Dissenting judements (explain what it is) - e.g Lord Denning has made many.
Note that you can change the cases to whichever ones the textbook give... i've just included them to remind you, always back up your points with a case.
Another popular part a question on precedent (thry could even ask it in part a of a paper 3 application, in faact even if you dont have to describe it, when youre applying any q on precedent, you'll have to know this):
Describe how judges can avoid an awkward precedent
Briefly define precedent (past decisions of judges for future judges to follow), and outline briefly stare decisis, to illustrate that generally, decisions should be followed.
Three methods of avoidance:
1. Distinguishing (explain what it is- when the facts of a case are sufficiently dissimilar to the one which set the precedent; stare decisis commands the like cases should be treated alike; distingushing proves that the cases aren't alike and therefore the precedent can be avoided)
Case examples: I did Blafour v Balfour and Merrit v Merrit
2. Overruling- Where a higher court (or the same court if its the H.O.L using Practice Statement, or Court of Appeal using one of the exceptions in Young v Bristol Aeroplane, then the same court) 'destroys' a precedent created by a lower court, thus rendering it invalid and replacing it with a new precedent.
e.g H.o.L used Practice Statement in Herrington v BRB to overrule its own past decision in Addie v Dumbreck, on the issue of occupier's liability to tresspassers.
3. Reversing- where one case goes to appeal, and the appeal court 'throws out' i. e reverses the old decision, as in the caseof Cutter v Eagle Star.
- Also, the Court of Appeal can overrule one of its own past decisions in 3 situations, as set out in Young v Bristol Aeroplance:
1. Where there are two conflicting decisions of the C.O.A, the C.O.A may choose which to follow and which not to
2. Where a later H.O.L decision conflicts with a previous C.O.A decision, the C.O.A must follow the House of Lords (due to stare decicis; higher courts bind lower courts)
3. Where a decision was made 'per incurium' - ' in error' - i.e w/o referring to a relevant statute.
The Criminal Divison of the Court of Appeal has one further exception, srt out in R V Spencer- this is where a person's life or liberty is at stake (i'm sorry, forgot this bit when explaining this for guidance on application, don't forget to copy and paste it there.)
Describe how judges can avoid an awkward precedent
Briefly define precedent (past decisions of judges for future judges to follow), and outline briefly stare decisis, to illustrate that generally, decisions should be followed.
Three methods of avoidance:
1. Distinguishing (explain what it is- when the facts of a case are sufficiently dissimilar to the one which set the precedent; stare decisis commands the like cases should be treated alike; distingushing proves that the cases aren't alike and therefore the precedent can be avoided)
Case examples: I did Blafour v Balfour and Merrit v Merrit
2. Overruling- Where a higher court (or the same court if its the H.O.L using Practice Statement, or Court of Appeal using one of the exceptions in Young v Bristol Aeroplane, then the same court) 'destroys' a precedent created by a lower court, thus rendering it invalid and replacing it with a new precedent.
e.g H.o.L used Practice Statement in Herrington v BRB to overrule its own past decision in Addie v Dumbreck, on the issue of occupier's liability to tresspassers.
3. Reversing- where one case goes to appeal, and the appeal court 'throws out' i. e reverses the old decision, as in the caseof Cutter v Eagle Star.
- Also, the Court of Appeal can overrule one of its own past decisions in 3 situations, as set out in Young v Bristol Aeroplance:
1. Where there are two conflicting decisions of the C.O.A, the C.O.A may choose which to follow and which not to
2. Where a later H.O.L decision conflicts with a previous C.O.A decision, the C.O.A must follow the House of Lords (due to stare decicis; higher courts bind lower courts)
3. Where a decision was made 'per incurium' - ' in error' - i.e w/o referring to a relevant statute.
The Criminal Divison of the Court of Appeal has one further exception, srt out in R V Spencer- this is where a person's life or liberty is at stake (i'm sorry, forgot this bit when explaining this for guidance on application, don't forget to copy and paste it there.)
A part b question could be:
" To what extent does precedent create judicial creativity?"
1. Description of precedent (definition, mention of stare decisis)
- The biggest curb on judicial creativity is stare decisis becvause this dictates the following 2 principles: (state them)
2/ However, precedent does not always curb judicial creativity; there are exceptions:
1. Practice Statement, 1966- allows H.O.L to depart from its own decisions 'when it is right to do so' (explain this)
2. Court of Appeal 3 exceptions in Young v Bristol Aeroplane, and 1 in R V Spencer (explain these, as above!)
3. There are also methods of avoidance judges can use; these are
state the three, as described in above part a question, make sure you explain and give examples)
Therefore, precedent does not curb judicial creativity fully as methods of avoidance allows a degree of flexibility.
3. Give EVIDENCE / CASES that judges HAVE made major developments to the law- this acts as proof that precedent does not always curb judicial creativity (Remember, majority of your answer should be analysis; leave eough time for this bit and give lots of cases, e.g)
Case law responsible for areas of:
1. Negligence: E.g case of Mcloughin v O'Brien - nervous shock created by judges; extended by judges in case of Alcock
2. Contract- e.g Denning established 'promissory estoppel' in case of High Trees.
3. Criminal law:
e.g Law of murder
Shaw v DPP- new offence (conspiracy to corrupt public morals) created by judges; so obviously precedent didn'y curb judicial creativity.
Judges have been resonsible for many landmarks in case law: e.g Cases of Gillick and R v G (check these out, or use alternative cases that you prefer)
However, examples of where judges refused to change the law:
1. C v DPP; judges didnt get rid of 'doli incapax' saying that Parliament should do it instead- so this was a curb on judicial creativity.
Finally, conclude by addressing the question; to what extent does precedent curb judicial creativity? - your conclusion may be different to someone else's but that's ok so long a your reasoning and legal knowlesge is impressive.
" To what extent does precedent create judicial creativity?"
1. Description of precedent (definition, mention of stare decisis)
- The biggest curb on judicial creativity is stare decisis becvause this dictates the following 2 principles: (state them)
2/ However, precedent does not always curb judicial creativity; there are exceptions:
1. Practice Statement, 1966- allows H.O.L to depart from its own decisions 'when it is right to do so' (explain this)
2. Court of Appeal 3 exceptions in Young v Bristol Aeroplane, and 1 in R V Spencer (explain these, as above!)
3. There are also methods of avoidance judges can use; these are
state the three, as described in above part a question, make sure you explain and give examples)Therefore, precedent does not curb judicial creativity fully as methods of avoidance allows a degree of flexibility.
3. Give EVIDENCE / CASES that judges HAVE made major developments to the law- this acts as proof that precedent does not always curb judicial creativity (Remember, majority of your answer should be analysis; leave eough time for this bit and give lots of cases, e.g)
Case law responsible for areas of:
1. Negligence: E.g case of Mcloughin v O'Brien - nervous shock created by judges; extended by judges in case of Alcock
2. Contract- e.g Denning established 'promissory estoppel' in case of High Trees.
3. Criminal law:
e.g Law of murder
Shaw v DPP- new offence (conspiracy to corrupt public morals) created by judges; so obviously precedent didn'y curb judicial creativity.
Judges have been resonsible for many landmarks in case law: e.g Cases of Gillick and R v G (check these out, or use alternative cases that you prefer)
However, examples of where judges refused to change the law:
1. C v DPP; judges didnt get rid of 'doli incapax' saying that Parliament should do it instead- so this was a curb on judicial creativity.
Finally, conclude by addressing the question; to what extent does precedent curb judicial creativity? - your conclusion may be different to someone else's but that's ok so long a your reasoning and legal knowlesge is impressive.
Still a slightly more challenging part b question on precedent to cover, and a part a question about the House of Lords and Precedent, but I'm feeling very sleepy and aim to get through Legal Funding before midnight, so I'll try do them tomorrow.
I'll give you the qs in case i never do them:
part a- 'Outline the House of Lords' approach to precedent?'
part b- 'To what extent does precedent uphold the constitutional position of judges?'
Man, imagine if NONE of these came up, now that would be a bummer! Hope one of them does! Note... this aint ALL the possible questions that could come up, they seem to be the most popular though. Take care all, happy revising!
(Now there's an oxymoron... night all)
I'll give you the qs in case i never do them:
part a- 'Outline the House of Lords' approach to precedent?'
part b- 'To what extent does precedent uphold the constitutional position of judges?'
Man, imagine if NONE of these came up, now that would be a bummer! Hope one of them does! Note... this aint ALL the possible questions that could come up, they seem to be the most popular though. Take care all, happy revising!
(Now there's an oxymoron... night all)
[QUOTE=. Is there any extra book or anything you got or just the pack? Did you revise it all from the pack?
?
Hey, well we had to buy the 'English Legal textbook' 7th Edition at the start of the year but other than we never really had any other textbooks we just relied on the packs and the textbook itself.
The revision packs we recieved had many past papers in them! Can't you email your law teacher and possibly ask for some? Even though time is pretty tight now untill the exam.
Just do your best, make a list of the topics you find the most difficult and spend more time over them, but even we have been told to at least learn 'Statutory Interpretation' inside out because most likely that will come up
!
I find it more annoying when you have to learn the advantages and the disadvatages !
and who knows you might just get a question asking for the advantages and disadvantages of 'Judicial Precedent' or 'Delegated Legislation' but there is no point in complaining i guess, just do your best! Good luck guys!
?
Hey, well we had to buy the 'English Legal textbook' 7th Edition at the start of the year but other than we never really had any other textbooks we just relied on the packs and the textbook itself.
The revision packs we recieved had many past papers in them! Can't you email your law teacher and possibly ask for some? Even though time is pretty tight now untill the exam.
Just do your best, make a list of the topics you find the most difficult and spend more time over them, but even we have been told to at least learn 'Statutory Interpretation' inside out because most likely that will come up
!I find it more annoying when you have to learn the advantages and the disadvatages !
and who knows you might just get a question asking for the advantages and disadvantages of 'Judicial Precedent' or 'Delegated Legislation' but there is no point in complaining i guess, just do your best! Good luck guys! Okay so I have a law exam on monday too, the only thing is in our last law lesson our teacher announced that he was going away from last week until after our exam. WHAT?! So if we had any problems we wouldn't be able to reach him by email or anything. Personally I feel that's a bit harsh but whatever. What I came here to ask is Stressed Chick would you mind at all if I kindof pinshed the "checklist" off you. Our teacher gave us NO notes at all, only a textbook and basically said "read it." Great. 
So yeah you would be my official saviour as I'm totally stressed out about monday!
So yeah you would be my official saviour as I'm totally stressed out about monday! Erin Haf:
Nah I don't mind at all, take the checklist, it was given to us by our teacher ,all i did was type it up and add a few things in brackets- you said you had a Law exam on Monday, not which board, i presume it is the WJEC one since that's the thread its on but just in case, remember the checklist is only for WJEC- NOT AQA, OCR- those, and other boards will have additional info you need to know, e.g they do some criminal law in the first year, WJEC don't.
Aw well we had good teachers but I'm still stressing over Law on Monday! So I'm feeling your pain, too. I've just had a thought, what topics is everyone the most stressed about? I wanted to cover S.I, EU and Precedent since they're the 3 major ones that usually come up in paper 3 and can also come up in paper 2, which effectively kills 2 birds with 1 stone but if anyone is stuck on something else...? Also, the notes i've put up, they're just for the most popular questions, it is NOT everything so pleaaaaaase don't blame me if they don't come up in the exam, and something else does! Try and make sure you know everything in the checklist Take care all, am in the process of finding my other essay notes on Precedent...
Nah I don't mind at all, take the checklist, it was given to us by our teacher ,all i did was type it up and add a few things in brackets- you said you had a Law exam on Monday, not which board, i presume it is the WJEC one since that's the thread its on but just in case, remember the checklist is only for WJEC- NOT AQA, OCR- those, and other boards will have additional info you need to know, e.g they do some criminal law in the first year, WJEC don't.
Aw well we had good teachers but I'm still stressing over Law on Monday! So I'm feeling your pain, too. I've just had a thought, what topics is everyone the most stressed about? I wanted to cover S.I, EU and Precedent since they're the 3 major ones that usually come up in paper 3 and can also come up in paper 2, which effectively kills 2 birds with 1 stone but if anyone is stuck on something else...? Also, the notes i've put up, they're just for the most popular questions, it is NOT everything so pleaaaaaase don't blame me if they don't come up in the exam, and something else does! Try and make sure you know everything in the checklist
Take care all, am in the process of finding my other essay notes on Precedent...A part a(or b) question could be:
'outline the H.O.L's approach to precedent' / 'to what extent is the House of Lords bound by its own previous decisions?' or something along those lines:
Content of answer: (you'd have to slightly adapt to suit slightly different qs)
- . Before 1898- H.O.L adopted a v. flexible approach to precedent, however in 1898, after the case of London Street Tramways v London CC, it was decided that the House of Lords was bound by its own precedents, unless the decision was made 'per incurium' (you'd need to explain this, ive done it in previous poasts.)
- However, in 1966, the Practice Statement was issued, effectively allowing the H.O.L to overrule past decisions 'when itwas right to do so'
(I've Copied and pasted a text of the Practice Statement below since i keep talking about it, you would never need to memories it, however if paper 3 is on precedent they might give you the text of the Practice Statement! This is the text of the Practice Statement:
"Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore, to modify their present practice and, while treating formal decisions of this house as normally binding, to depart from a previous decision when it appears to be right to do so. In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlement of property, and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law. This announcement is not intended to affect the use of precedent elsewhere than in this House." [From: http://en.wikipedia.org/wiki/Practice_Statement ]
You woudln't write the whole Statement in your answer, you'd carry on as follows:
The P.S points out that 4 areas of law need certainty (list them, i've put them in bold in the text)
2. Examples of incidents in which P.S has been used- Whatever cases you give, you MUST also cite the case it OVERRULED of you know it.
A few examples:
First ever use of P.S was in 1968 in Conway v Rimmer but it was just on a small technicality re:the discovery of documents, so
the first major use: In Herrington v British Railway Board (BRB) which overruled Addie v Dumbreck on the issue of occupier's liability to tresspassers.
First criminal use (remember the 'especial' need for certainty in criminal law)
was in 'R v Shivpuri (1986) which overruled Anderton v Ryan on criminal attempts of the impossible.
Those are the major cases; you'd need to cite a few more; i know the following cases - Murphy v Brentwood District Council, overruled Anns v Merton London Borough on the test of negligence in tort, and a few others, you guys use what's in your textbooks/ notes.
BUT (giving the other side)
Often H.O.L has refused to make major changes to the law using the P.S, as in C v DPP where they refused to abolish the presumption of 'doli incapax' _________________________________________________________________
They could also ask you a similar q about the Court of Appeal, i.e to what extent is it bound by its own decisions/ decisions of the H.O.L; You'd say generally bwecause of stare decisis, decisions are binding, but there are 3 exceptions in Yonug v Bristol Aeroplane Company (as given in another post), and the further exception for the criminal division, set out in R V Spencer (as also given in another post)
You then talk mention quotes etc from various people who think this is good or bad, e.g Lord Denning thinks the Court of Appeal should be able to depart from both its own decisions and decisions of the H.O.L, e.g in Gallie v Lee, he said (referring to 3 exceptions in Young) 'It was a self-imposed limitation and we who imposed it can also remove it' ; also, in Dasvis v Johnson he referred to Hansard though previous precedent was that you could not ... etc etc.
Davis v Johnson is an important case here, i think coz it shows Denning breaking a precedent, and later the House of Lords criticised this- it would be really good if you could find the quotes from the case.
also, in the past, Lord Denning has refused to follow H.O.L#s precedents in the following cases:
1. Brookes v Barnard
2. Schorsh Meier and Miliangos (refused to follow Havana Railways)
Note that eventually, Miliangos did appeal to H.O.L, and the precedent in Havana Railways WAS oveturned but the House of Lords said that the Court of Appeal did not have the power to ignore a H.O.L decision
Finally, if its a part b question, give reasons why the C.O.A should be able to depart from decisions and why it shouldn't
e.g
Should:
Few cases reach H.O.L; appeals are expensive; court of appeal should do it, likr Miliangos had to appeal all the weay to the Lords when the Court of Appeal could've just overturned the precedet, wudda been much quicker and easier.
Should not:
- Need for certainty in the law.
Note that this is a lot of info, what you ACTUALLY include depends on the question- e.g if they ask about Court of Appeal and its OWN past decisions, dont talk about the House of Lords, and vice versa. You need to be able to adapt this question to suit whatever angle they ask it from.
b- Precedent and constitutional position of judiciary: (this could be asked in lots of different ways, e.g 'to what extent does precedent uphold the constitutional position of the judges)
1. DEFINE/OUTLINE what the constitutional position of the judiciary IS (Dredz, this is an examle of a question where you shouldn't answer the q wthiout a definition of the constitutional position- coz otherwise how else are you going to assess it?)
- For those of you who don't know:
According to French political theorist, Montesquieu, the constitutional role of judges is to APPLY the law; common law /precedent is where judges MAKE the law, so it doesn't keep to thier constitutional position (everyone check up Montesquieu and separation of powers for this)
- Give case examples of areas where judges have clearly not stuck to thier constitutional role, i.e examples of major developments in the law, brought about by judges. These include largely the same as the cases i have given in 'to what extent does precedent curb judicial creativity'
You'd do it in same format,i.e give cases where judges DID make law
(one of the important ones is R v R 1991 in which judges finally recognised marital rape as an offence
....
and then, cases where judges DIDN'T:
I gave to C v DPP as above, but also, R v Clegg; judges refused to create a new offence of 'excessive force.'
... and then conclude... you could say in your conclusion , answering if precedent DOES uphold the constitutional role of the judiciary; you could even say in your conclusion whether you think it is a good thing that they do or do not- e.g where would we be without case law? Case law adapts more quickly to a chasnging society, imagine if we still; had to wait for Parliament to update statutes.... marital rape might still be legal!
Which brings us onto another question:
'Should judges ever make law?'
According to Montesquieu, NO (explain why.. if you haven't, check up this theory, re. 3 arms of state and separation of powers)
Note that Lord Devlin separates law making into 2 ttpyes, dynamic and activist, according to him, judges should not take part in dynamic lawmaking which includes making a decision on controversial issues, but they can make activist law, which involves issues on which society have reached a consensus. Give examples of where judges have made these decisions; the benefits for citizens, the disadvantages of leaving it to Parliament (time; statutes can go out of dated; common law reflects public opinion better etc etc), but also state that judges are not elected, so it is undemocratic that they make law; only Parliament, who the public have elected, have the mandate to do so, etc etc.
Try and find soem good quotes from judges, both arguing that judges should, and that they should not, make law.
Finally, conclude- answer the question- SHOULD judges ever make law? / IS it ever OK for them to make law?
Finally, another question (part b normally) could de a standard 'what are the advantages and disadvantages of precedent? '
This should be straightforward as most textbooks give you enough good and bad points; note that A LOT of what is above, re. constitutional position of judges and whether they make law, could be adapted to answer this question too, i.e 'a disadvantage is that it is undemocratic as judges aren't elected to make law..' etc but don't spend TOO much time doing that, concentrat on the following points:
Good:
Predecent:
1. promotes certainty, 2, promotes consistency and fairness (i.e its right that everyone should be given the same verdict for the same case; i. e that like cases should be treated alike which is a principle of stare decisis); 3, case law is based on real life events, 4. flexibility- changes better with society's views, more so than Parliament's statutues.... etc there's loads more!
Disadvantages:
1. Complexity, volume
2. Rigidity- e.g Court of Appeal bound; e.g Miliangos and Davis v Johnsno
3. Retrospective effect (led to case of SW v UK, following R v R; he argued that when he actually raped his wife, it was not an offence so he sohludn't be found guilty for it; this claim was rejected)
4. Undemocratic- as explained above.
So, thats a BRIEF coverage of popular precedent questions. Remember, they may not word it exactly the same; you have to be able t change and adapt the anwers, also the answers are BRIEF please make sure you can expand, after revising, to get higher marks.
'outline the H.O.L's approach to precedent' / 'to what extent is the House of Lords bound by its own previous decisions?' or something along those lines:
Content of answer: (you'd have to slightly adapt to suit slightly different qs)
- . Before 1898- H.O.L adopted a v. flexible approach to precedent, however in 1898, after the case of London Street Tramways v London CC, it was decided that the House of Lords was bound by its own precedents, unless the decision was made 'per incurium' (you'd need to explain this, ive done it in previous poasts.)
- However, in 1966, the Practice Statement was issued, effectively allowing the H.O.L to overrule past decisions 'when itwas right to do so'
(I've Copied and pasted a text of the Practice Statement below since i keep talking about it, you would never need to memories it, however if paper 3 is on precedent they might give you the text of the Practice Statement! This is the text of the Practice Statement:
"Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore, to modify their present practice and, while treating formal decisions of this house as normally binding, to depart from a previous decision when it appears to be right to do so. In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlement of property, and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law. This announcement is not intended to affect the use of precedent elsewhere than in this House." [From: http://en.wikipedia.org/wiki/Practice_Statement ]
You woudln't write the whole Statement in your answer, you'd carry on as follows:
The P.S points out that 4 areas of law need certainty (list them, i've put them in bold in the text)
2. Examples of incidents in which P.S has been used- Whatever cases you give, you MUST also cite the case it OVERRULED of you know it.
A few examples:
First ever use of P.S was in 1968 in Conway v Rimmer but it was just on a small technicality re:the discovery of documents, so
the first major use: In Herrington v British Railway Board (BRB) which overruled Addie v Dumbreck on the issue of occupier's liability to tresspassers.
First criminal use (remember the 'especial' need for certainty in criminal law)
was in 'R v Shivpuri (1986) which overruled Anderton v Ryan on criminal attempts of the impossible.
Those are the major cases; you'd need to cite a few more; i know the following cases - Murphy v Brentwood District Council, overruled Anns v Merton London Borough on the test of negligence in tort, and a few others, you guys use what's in your textbooks/ notes.
BUT (giving the other side)
Often H.O.L has refused to make major changes to the law using the P.S, as in C v DPP where they refused to abolish the presumption of 'doli incapax' _________________________________________________________________
They could also ask you a similar q about the Court of Appeal, i.e to what extent is it bound by its own decisions/ decisions of the H.O.L; You'd say generally bwecause of stare decisis, decisions are binding, but there are 3 exceptions in Yonug v Bristol Aeroplane Company (as given in another post), and the further exception for the criminal division, set out in R V Spencer (as also given in another post)
You then talk mention quotes etc from various people who think this is good or bad, e.g Lord Denning thinks the Court of Appeal should be able to depart from both its own decisions and decisions of the H.O.L, e.g in Gallie v Lee, he said (referring to 3 exceptions in Young) 'It was a self-imposed limitation and we who imposed it can also remove it' ; also, in Dasvis v Johnson he referred to Hansard though previous precedent was that you could not ... etc etc.
Davis v Johnson is an important case here, i think coz it shows Denning breaking a precedent, and later the House of Lords criticised this- it would be really good if you could find the quotes from the case.
also, in the past, Lord Denning has refused to follow H.O.L#s precedents in the following cases:
1. Brookes v Barnard
2. Schorsh Meier and Miliangos (refused to follow Havana Railways)
Note that eventually, Miliangos did appeal to H.O.L, and the precedent in Havana Railways WAS oveturned but the House of Lords said that the Court of Appeal did not have the power to ignore a H.O.L decision
Finally, if its a part b question, give reasons why the C.O.A should be able to depart from decisions and why it shouldn't
e.g
Should:
Few cases reach H.O.L; appeals are expensive; court of appeal should do it, likr Miliangos had to appeal all the weay to the Lords when the Court of Appeal could've just overturned the precedet, wudda been much quicker and easier.
Should not:
- Need for certainty in the law.
Note that this is a lot of info, what you ACTUALLY include depends on the question- e.g if they ask about Court of Appeal and its OWN past decisions, dont talk about the House of Lords, and vice versa. You need to be able to adapt this question to suit whatever angle they ask it from.
b- Precedent and constitutional position of judiciary: (this could be asked in lots of different ways, e.g 'to what extent does precedent uphold the constitutional position of the judges)
1. DEFINE/OUTLINE what the constitutional position of the judiciary IS (Dredz, this is an examle of a question where you shouldn't answer the q wthiout a definition of the constitutional position- coz otherwise how else are you going to assess it?)
- For those of you who don't know:
According to French political theorist, Montesquieu, the constitutional role of judges is to APPLY the law; common law /precedent is where judges MAKE the law, so it doesn't keep to thier constitutional position (everyone check up Montesquieu and separation of powers for this)
- Give case examples of areas where judges have clearly not stuck to thier constitutional role, i.e examples of major developments in the law, brought about by judges. These include largely the same as the cases i have given in 'to what extent does precedent curb judicial creativity'
You'd do it in same format,i.e give cases where judges DID make law
(one of the important ones is R v R 1991 in which judges finally recognised marital rape as an offence
....
and then, cases where judges DIDN'T:
I gave to C v DPP as above, but also, R v Clegg; judges refused to create a new offence of 'excessive force.'
... and then conclude... you could say in your conclusion , answering if precedent DOES uphold the constitutional role of the judiciary; you could even say in your conclusion whether you think it is a good thing that they do or do not- e.g where would we be without case law? Case law adapts more quickly to a chasnging society, imagine if we still; had to wait for Parliament to update statutes.... marital rape might still be legal!
Which brings us onto another question:
'Should judges ever make law?'
According to Montesquieu, NO (explain why.. if you haven't, check up this theory, re. 3 arms of state and separation of powers)
Note that Lord Devlin separates law making into 2 ttpyes, dynamic and activist, according to him, judges should not take part in dynamic lawmaking which includes making a decision on controversial issues, but they can make activist law, which involves issues on which society have reached a consensus. Give examples of where judges have made these decisions; the benefits for citizens, the disadvantages of leaving it to Parliament (time; statutes can go out of dated; common law reflects public opinion better etc etc), but also state that judges are not elected, so it is undemocratic that they make law; only Parliament, who the public have elected, have the mandate to do so, etc etc.
Try and find soem good quotes from judges, both arguing that judges should, and that they should not, make law.
Finally, conclude- answer the question- SHOULD judges ever make law? / IS it ever OK for them to make law?
Finally, another question (part b normally) could de a standard 'what are the advantages and disadvantages of precedent? '
This should be straightforward as most textbooks give you enough good and bad points; note that A LOT of what is above, re. constitutional position of judges and whether they make law, could be adapted to answer this question too, i.e 'a disadvantage is that it is undemocratic as judges aren't elected to make law..' etc but don't spend TOO much time doing that, concentrat on the following points:
Good:
Predecent:
1. promotes certainty, 2, promotes consistency and fairness (i.e its right that everyone should be given the same verdict for the same case; i. e that like cases should be treated alike which is a principle of stare decisis); 3, case law is based on real life events, 4. flexibility- changes better with society's views, more so than Parliament's statutues.... etc there's loads more!
Disadvantages:
1. Complexity, volume
2. Rigidity- e.g Court of Appeal bound; e.g Miliangos and Davis v Johnsno
3. Retrospective effect (led to case of SW v UK, following R v R; he argued that when he actually raped his wife, it was not an offence so he sohludn't be found guilty for it; this claim was rejected)
4. Undemocratic- as explained above.
So, thats a BRIEF coverage of popular precedent questions. Remember, they may not word it exactly the same; you have to be able t change and adapt the anwers, also the answers are BRIEF please make sure you can expand, after revising, to get higher marks.
Sorry, yeah it is WJEC. It sounds like you know your stuff aswell! You've obviously been very lucky to have such a committed teacher. Oh and Dreadz I think you should deffinatley speak to someone about what happened to you! That's just not on at all.
Stressed Chick: The topics I'm stressing about most at the moment is Bail and EU law as we didn't cover it until the very last lessons and it was a bit rushed. I'm kinda putting all my hopes on precedent or equity cominng up. Thanks a lot for the checklist by the way. It's really helping!
Stressed Chick: The topics I'm stressing about most at the moment is Bail and EU law as we didn't cover it until the very last lessons and it was a bit rushed. I'm kinda putting all my hopes on precedent or equity cominng up. Thanks a lot for the checklist by the way. It's really helping!
European Law:
The EU is a group of powerful Western countries that have drawn closer to each other by a set of agreements called treaties. These agreements cover important areas such as the economic, trade and military issues. The cement that holds these countries together is European Law.
The EU currently comprises 27 Western European countries; the 5 most powerful are:
1.United Kingdom
2. France
3. Germany
4. Italy
5. Spain
Countries that have joint very recently include Bulgaria and Romania.
Why was the Union created?
The union was not originally about being an integrated state but was based on economics. The idea was to join together to manage major commodities such as coal and steel. The idea was one of a ‘common market’, which promoted the free movement of labour, people, capital and goods between member states.
The union began life as The European Economic Community (EEC) and the treaty that created it was the Treaty of Rome 1957.
The EEC was created with the aims of furthering economic development within member states by establishing a common market and bringing each country’s economic policies together.
The UK joined the ECC on the 1st January 1973 by passing the European Communities Act 1972.
In 1992, the Treaty on the European Union (TEU or Maastricht Treaty) was signed; this eventually completed the common market and changed the name to the European Union, to give it a more ‘human face.’
The Institutions of the EU:
1. The Commission
2. The Council
3. The European Parliament
4. The European Court of Justice.
Their role is to implement the aims of the Treaty of Rome 1957.
1. The Commission:
Composition:
o Consists of 30 Commissioners; these act independently of their own country and in the best interests of the Union; each Commissioner has a 5 year term.
o The commissioner for the UK is Peter Mandelson
What it does:
o It draws proposals for new laws for the Council to consider, hence ‘The Commission proposes, the Council disposes.’
o It is responsible for the Union’s budget.
o It is the ‘guardian of the treaties.’ – This means that it ensures that EU laws are properly implemented in member states, and if a member state fails to implement EU law, then the Commission has a duty to intervene and even take them to court (ECJ); therefore, it is kind of like a police force of the Union.
2. The Council:
o Consists of a representative of the government of each nation – normally the Foreign Minister, but membership will change according to the topic being discussed.
o Membership States take it in turn to provide the President for six months each.
o It is assisted by the Coreper – The Committee of Permanent Representatives who assist with the day to day running (usually senior civil servants)
o It is the most powerful body as it is the law making body.
3. The European Parliament (The Assembly)
o Sits in Strasbourg & Brussels.
o Consists of 624 MEPS, elected by the people of the member states
o Has supervisory power over the Commission- can say who should and who should not be a member of the Commission.
o Has some control over EU budget.
o Its assent is required before international agreements can be entered into.
o Has no real law making power- is mainly a discussion arena for the proposals put forward by the Commission.
4. The European Court of Justice:
o Under Article 220 it’s function is ‘to ensure that the interpretation and application of the Treaty law is observed.’ (Article 220)
o Sits in Luxembourg.
o Consists of 25 judges and is assisted by 9 Advocate Generals.
The ECJ carries out its role under Article 220 by performing 2 key roles:
1. Judicial Role
This involves hearing cases that involve disputers against both member states and other EU institutions.
2. Supervisory Role
The ECJ ensures that courts in member states interpret EU law correctly.
1. The Judicial Role:
If the government of a Member State is seen as breaching EU law, either the Commission or other member states can bring it before EU law:
Re Tacographs: the Commission v UK
An EU regulation required that certain lorries should be fitted with tacographs; checking tacographs allows police/other authorities to stop drivers working over a certain number of hours on safety grounds. In Britain, the government was reluctant to implement this law, regarding it as an excessive burden on business.
The Commission brought a complaint against the British government to the ECJ for failing to implement the regulation; the ECJ ruled in favour of the Commission.
Levi V Tesco (2001)
Tesco had been selling cut-price Levi jeans. Levi was keen to see this stop and took the supermarket to court on a brand-name issue. The ECJ ruled in faviour of Levi and ordered Tesco to stop selling the ‘quality’ jeans at reduced prices.
2. The Supervisory Role:
It is the job of the ECJ to ensure that courts in Member States interpret EU law correctly.
When a case comes before a national court, and EU law is an issue, under Article 234 of the Treaty of Rome, the case can be referred to the ECJ for a preliminary ruling; the ECJ is asked to rule on the point of law affecting the case. The judge hearing the case in the national court must take this ruling into account when reaching a verdict.
When should a national court make a reference?
Article 234 states when a reference should be made. It makes a difference between must courts and may courts:
- Must courts: If a national court dealing with an issue of EU law is a court from which there is no further route of appeal, that court must make a reference.
- May Courts: If, however, the court is one from which there is further route of appeal, then the court may make a reference but it does not have to- they have discretion.
The case of Bulmer v Bollinger provides guidance to help the may court decide whether to make a reference or not. Lord Denning said that a court must consider all the circumstances of the case but that a discretionary referral need not be made if:
1. It would not be conclusive of the case
2. There has been a previous ruling on the same point.
3. The point of law is clear and free from doubt- the acte clair doctrine.
The first British case to make a reference was Van Duyn v Home Office:
Van Duyn v Home Office:
The home Office banned Miss Van Duyn from the UK because she was a member of the Church of Scientology; she felt this went against her rights under the treaty provisions which allowed free movement of European workers. A directive 64/221 specified however, that the UK Govt. had a right to ban her if they felt her personal conduct was inappropriate.
When the ECJ gave their ruling, the Home Office won the case.
Sources of European Law:
Sources of EU law can be divided into 2 categories:
1. Primary sources
2. Secondary sources.
1. Primary Sources: - Treaties
These are the treaties: agreements signed by the Heads of State of all member states; they set out the main principles and goals of the EU.
e.g:
1. Treaty of Rome 1957- created the EEC
2. Treaty on the European Union (TEU) / Maastricht Treaty 1992- changed the name to the EU.
2. Secondary Sources: - legislation passed by instituitions of EU
This is legislation passed by the institutions of the EU:
1. Regulations
2. Directives
3. Decisions
4. Recommendations.
What all these types of law have in common is that they are all laws aimed at putting the general principles set out in treaties into practice. Unlike treaties, they do not require the signatures of Heads of States; they are proposed by the European Commission and approved by the Council and European Parliament.
1. Regulations:
Are detailed laws that apply to all member states; they are the nearest that EU law comes to an Act of Parliament because they are the most detailed.
A case involving a regulation that the UK ignored- Re: Tacographs.
2. Directives:
Are statements outlining the kind of national laws that member states are required to pass in order to meet the requirements of the treaties. They are goals to be achieved; general directions to member states; it is left to each member state how they achieve the goals. These states are usually given a date by which they must have passed laws meeting those goals- date for implementation.
3. Decisions.
Normally directed at a particular Member State/ individual (person/ company)
4. Recommendations and Opinions:
Important statements/views held by a EU institution on a particular matter, but not binding.
Effects of EU Law- Important Concepts:
1. Direct Applicability
Some UK laws apply automatically- they are automatically a part of a member state’s national law, the state does not have to do anything to make it part of their law.
It can be enforced in the national courts in the same way as national law can as soon as it is passed; such laws are said to have direct applicability.
Treaties and regulations are directly applicable. The case of Re Tacographs illustrates this point.
Directives are not directly applicable because they do not automatically apply, as they have to be implemented in some way before they become valid law in each country.
2. Direct Effect:
If a EU law creates rights for individuals that can be enforced in national courts, that law is said to have direct effect.
Regulations, and Treaties have direct effect- this means that citizens of the UK are entitled to rely on the rights in the Treaty of Rome and other treaties, even though those rights may not have been specifically enacted in English law.
The case of Van Gend en Loos first established that treaties have direct effect.
Van Gend en Loos:
The Government of the Netherlands attempted to introduce new custom duties. A ruling by the EFJ prevented this from happening, and in doing so established the supremacy of EU law over national law.
Macarthys Ltd v Smith illustrates the direct effect of treaties:
In this case, Wendy Smith’s employers paid her less than her male predecessor for the same job; there was no breach of English law as they weren’t employed at the same time.
However, Wendy Smith was able to claim that the company which employed her was in breach of Article 141 of the Treaty of Rome over equal pay of men & women; this claim was confirmed by the ECJ.
However, a source of law will only have direct effect if:
1. Individuals are given rights
2. Those rights are clear and unconditional.
3. & 4: Horizontal and Vertical direct effect:
1. Horizontal Direct Effect:
Means that these rights can only be enforced against a private individual (person/company)
2. Vertical Direct Effect:
Means that rights can only be enforced against the state/ part of the state.
Treaties and regulations have direct effect; they have both vertical and direct effect. So an individual can sue the state and an individual if rights under a treaty or regulation have been ignored or denied under national law.
Directives have direct effect, but:
1. They ONLY have VERTICAL direct effect.
2. And ONLY once the date for implementation has passed.
This allows individuals to bring an action against the state or part of the state if a directive has not been implemented by the due date or has not been implemented properly by the due date. Am individual cannot bring an action against a private individual though.
Cases that illustrate the difference between vertical and direct effect:
1. Macarthys:
Wendy could sue her employer under T.O.R because treaties have horizontal effect.
2. Gibson V East Riding of Yorkshire Council (1999)
Mrs. Gibson did not get paid during holidays; An Employment Appeal Tribunal held that under the Working Time Directive, she was entitled to 4 weeks paid holiday from Nov.1996; Her employers were an ‘emancipation of the state’ and so couldn’t rely on the lack of domestic legislation to defeat her claim.
3. Marshall V SSWAHA
Miss Marshall could rely on the Equal Treatment Directive as it had not been fully implemented on the UK, but the ECJ ruled that it was sufficiently clear and imposed obligations on the member state; the ruling allowed Miss Marshall to succeed in her claim against her employers as they were an ‘arm of the state’. The directive had vertical effect, allowing her to rely on it and take action against them.
4. Duke v GEC Reliance Ltd.
Mrs. Duke, unlike Miss Marshall, was unable to rely on the Equal Treatment Directive because her employer was a private company; this illustrates that directives don’t have horizontal direct effect, as confirmed by Italian case, Paola.
5. Francovich Damages:
The distinction between the types of direct effect means that some people can enforce their rights under a directive whereas others can’t; this is unfair, so the ECJ developed Francovich Damages as another strategy to get around this problem:
An individual may bring an action to claim damages against the Member State which has failed to implement the directive. This was developed in the case of Francovich v Italian Republic, hence its name.
BUT: There are three conditions to be met before Francovich damages can be claimed:
1. The purpose of the directive must have been to give individuals rights.
2. Those rights must be clearly identifiable in the directive.
3. There must be a causal link between the state’s failure to implement a directive and the individual’s loss.
However, no damages were granted in the case of R v HM Treasury, ex parte British Telecommunications plc:
In this case, the ECJ held that although a directive on telecommunications had been incorrectly implemented in English law, compensation was not payable as the breach of Community law was not sufficiently serious.
6. Indirect effect/ interpretive obligation:
Another strategy the ECJ developed is that even if the Member State has not implemented a directive, they must still interpret their own law in light of the directive. This was pointed out in Von Colson
“National courts are required to interpret their own national law in light of the wording and the purpose of the directive.”
The Impact of EU law on National Law:
Before 1972, the UK had complete Parliamentary Sovereignty.
The theory of parliamentary sovereignty was put forward by A.V.Dicey; this was the idea that Parliament is the ultimate law making body.
“What Parliament doth, no power on earth can undo.” [Blackstone.]
“Parliament could make it illegal for French men to smoke on the street of Paris” [Sir Ivor Jennings.]
e.g Cheney v Conn- claimant told that Acts of Parliament could not be called into question because they’re supreme after the Finance Act was questioned as being illegal.
The justification for Parliament being supreme is that it leads to democratic law making; MPs are elected by their constituency and therefore once in Parliament, they’re acting on behalf of the voters and are representatives of the people.
However, this changed in 1972 by the UK joining the EU by passing the European Communities Act 1972. By passing the Act, the UK transferred some of its sovereignty over the EU and subsequently made the ECJ the most superior court on points of EU law.
In the event of conflict between National law and European law, European law will prevail; this was established in the case of Van Gend en Loos:
Van Gend en Loos:
The Government of the Netherlands attempted to introduce new custom duties. A ruling by the ECJ prevented this from happening, and in doing so established the supremacy of EU law over national law.
The Dutch government argued that the ECJ had no jurisdiction to decide whether European law should prevail over Dutch law; this was a matter for the Dutch courts to decide; however, the ECJ rejected this argument.
In Costa v ENEL, the ECJ said:
“The member states have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.”
The EU is a group of powerful Western countries that have drawn closer to each other by a set of agreements called treaties. These agreements cover important areas such as the economic, trade and military issues. The cement that holds these countries together is European Law.
The EU currently comprises 27 Western European countries; the 5 most powerful are:
1.United Kingdom
2. France
3. Germany
4. Italy
5. Spain
Countries that have joint very recently include Bulgaria and Romania.
Why was the Union created?
The union was not originally about being an integrated state but was based on economics. The idea was to join together to manage major commodities such as coal and steel. The idea was one of a ‘common market’, which promoted the free movement of labour, people, capital and goods between member states.
The union began life as The European Economic Community (EEC) and the treaty that created it was the Treaty of Rome 1957.
The EEC was created with the aims of furthering economic development within member states by establishing a common market and bringing each country’s economic policies together.
The UK joined the ECC on the 1st January 1973 by passing the European Communities Act 1972.
In 1992, the Treaty on the European Union (TEU or Maastricht Treaty) was signed; this eventually completed the common market and changed the name to the European Union, to give it a more ‘human face.’
The Institutions of the EU:
1. The Commission
2. The Council
3. The European Parliament
4. The European Court of Justice.
Their role is to implement the aims of the Treaty of Rome 1957.
1. The Commission:
Composition:
o Consists of 30 Commissioners; these act independently of their own country and in the best interests of the Union; each Commissioner has a 5 year term.
o The commissioner for the UK is Peter Mandelson
What it does:
o It draws proposals for new laws for the Council to consider, hence ‘The Commission proposes, the Council disposes.’
o It is responsible for the Union’s budget.
o It is the ‘guardian of the treaties.’ – This means that it ensures that EU laws are properly implemented in member states, and if a member state fails to implement EU law, then the Commission has a duty to intervene and even take them to court (ECJ); therefore, it is kind of like a police force of the Union.
2. The Council:
o Consists of a representative of the government of each nation – normally the Foreign Minister, but membership will change according to the topic being discussed.
o Membership States take it in turn to provide the President for six months each.
o It is assisted by the Coreper – The Committee of Permanent Representatives who assist with the day to day running (usually senior civil servants)
o It is the most powerful body as it is the law making body.
3. The European Parliament (The Assembly)
o Sits in Strasbourg & Brussels.
o Consists of 624 MEPS, elected by the people of the member states
o Has supervisory power over the Commission- can say who should and who should not be a member of the Commission.
o Has some control over EU budget.
o Its assent is required before international agreements can be entered into.
o Has no real law making power- is mainly a discussion arena for the proposals put forward by the Commission.
4. The European Court of Justice:
o Under Article 220 it’s function is ‘to ensure that the interpretation and application of the Treaty law is observed.’ (Article 220)
o Sits in Luxembourg.
o Consists of 25 judges and is assisted by 9 Advocate Generals.
The ECJ carries out its role under Article 220 by performing 2 key roles:
1. Judicial Role
This involves hearing cases that involve disputers against both member states and other EU institutions.
2. Supervisory Role
The ECJ ensures that courts in member states interpret EU law correctly.
1. The Judicial Role:
If the government of a Member State is seen as breaching EU law, either the Commission or other member states can bring it before EU law:
Re Tacographs: the Commission v UK
An EU regulation required that certain lorries should be fitted with tacographs; checking tacographs allows police/other authorities to stop drivers working over a certain number of hours on safety grounds. In Britain, the government was reluctant to implement this law, regarding it as an excessive burden on business.
The Commission brought a complaint against the British government to the ECJ for failing to implement the regulation; the ECJ ruled in favour of the Commission.
Levi V Tesco (2001)
Tesco had been selling cut-price Levi jeans. Levi was keen to see this stop and took the supermarket to court on a brand-name issue. The ECJ ruled in faviour of Levi and ordered Tesco to stop selling the ‘quality’ jeans at reduced prices.
2. The Supervisory Role:
It is the job of the ECJ to ensure that courts in Member States interpret EU law correctly.
When a case comes before a national court, and EU law is an issue, under Article 234 of the Treaty of Rome, the case can be referred to the ECJ for a preliminary ruling; the ECJ is asked to rule on the point of law affecting the case. The judge hearing the case in the national court must take this ruling into account when reaching a verdict.
When should a national court make a reference?
Article 234 states when a reference should be made. It makes a difference between must courts and may courts:
- Must courts: If a national court dealing with an issue of EU law is a court from which there is no further route of appeal, that court must make a reference.
- May Courts: If, however, the court is one from which there is further route of appeal, then the court may make a reference but it does not have to- they have discretion.
The case of Bulmer v Bollinger provides guidance to help the may court decide whether to make a reference or not. Lord Denning said that a court must consider all the circumstances of the case but that a discretionary referral need not be made if:
1. It would not be conclusive of the case
2. There has been a previous ruling on the same point.
3. The point of law is clear and free from doubt- the acte clair doctrine.
The first British case to make a reference was Van Duyn v Home Office:
Van Duyn v Home Office:
The home Office banned Miss Van Duyn from the UK because she was a member of the Church of Scientology; she felt this went against her rights under the treaty provisions which allowed free movement of European workers. A directive 64/221 specified however, that the UK Govt. had a right to ban her if they felt her personal conduct was inappropriate.
When the ECJ gave their ruling, the Home Office won the case.
Sources of European Law:
Sources of EU law can be divided into 2 categories:
1. Primary sources
2. Secondary sources.
1. Primary Sources: - Treaties
These are the treaties: agreements signed by the Heads of State of all member states; they set out the main principles and goals of the EU.
e.g:
1. Treaty of Rome 1957- created the EEC
2. Treaty on the European Union (TEU) / Maastricht Treaty 1992- changed the name to the EU.
2. Secondary Sources: - legislation passed by instituitions of EU
This is legislation passed by the institutions of the EU:
1. Regulations
2. Directives
3. Decisions
4. Recommendations.
What all these types of law have in common is that they are all laws aimed at putting the general principles set out in treaties into practice. Unlike treaties, they do not require the signatures of Heads of States; they are proposed by the European Commission and approved by the Council and European Parliament.
1. Regulations:
Are detailed laws that apply to all member states; they are the nearest that EU law comes to an Act of Parliament because they are the most detailed.
A case involving a regulation that the UK ignored- Re: Tacographs.
2. Directives:
Are statements outlining the kind of national laws that member states are required to pass in order to meet the requirements of the treaties. They are goals to be achieved; general directions to member states; it is left to each member state how they achieve the goals. These states are usually given a date by which they must have passed laws meeting those goals- date for implementation.
3. Decisions.
Normally directed at a particular Member State/ individual (person/ company)
4. Recommendations and Opinions:
Important statements/views held by a EU institution on a particular matter, but not binding.
Effects of EU Law- Important Concepts:
1. Direct Applicability
Some UK laws apply automatically- they are automatically a part of a member state’s national law, the state does not have to do anything to make it part of their law.
It can be enforced in the national courts in the same way as national law can as soon as it is passed; such laws are said to have direct applicability.
Treaties and regulations are directly applicable. The case of Re Tacographs illustrates this point.
Directives are not directly applicable because they do not automatically apply, as they have to be implemented in some way before they become valid law in each country.
2. Direct Effect:
If a EU law creates rights for individuals that can be enforced in national courts, that law is said to have direct effect.
Regulations, and Treaties have direct effect- this means that citizens of the UK are entitled to rely on the rights in the Treaty of Rome and other treaties, even though those rights may not have been specifically enacted in English law.
The case of Van Gend en Loos first established that treaties have direct effect.
Van Gend en Loos:
The Government of the Netherlands attempted to introduce new custom duties. A ruling by the EFJ prevented this from happening, and in doing so established the supremacy of EU law over national law.
Macarthys Ltd v Smith illustrates the direct effect of treaties:
In this case, Wendy Smith’s employers paid her less than her male predecessor for the same job; there was no breach of English law as they weren’t employed at the same time.
However, Wendy Smith was able to claim that the company which employed her was in breach of Article 141 of the Treaty of Rome over equal pay of men & women; this claim was confirmed by the ECJ.
However, a source of law will only have direct effect if:
1. Individuals are given rights
2. Those rights are clear and unconditional.
3. & 4: Horizontal and Vertical direct effect:
1. Horizontal Direct Effect:
Means that these rights can only be enforced against a private individual (person/company)
2. Vertical Direct Effect:
Means that rights can only be enforced against the state/ part of the state.
Treaties and regulations have direct effect; they have both vertical and direct effect. So an individual can sue the state and an individual if rights under a treaty or regulation have been ignored or denied under national law.
Directives have direct effect, but:
1. They ONLY have VERTICAL direct effect.
2. And ONLY once the date for implementation has passed.
This allows individuals to bring an action against the state or part of the state if a directive has not been implemented by the due date or has not been implemented properly by the due date. Am individual cannot bring an action against a private individual though.
Cases that illustrate the difference between vertical and direct effect:
1. Macarthys:
Wendy could sue her employer under T.O.R because treaties have horizontal effect.
2. Gibson V East Riding of Yorkshire Council (1999)
Mrs. Gibson did not get paid during holidays; An Employment Appeal Tribunal held that under the Working Time Directive, she was entitled to 4 weeks paid holiday from Nov.1996; Her employers were an ‘emancipation of the state’ and so couldn’t rely on the lack of domestic legislation to defeat her claim.
3. Marshall V SSWAHA
Miss Marshall could rely on the Equal Treatment Directive as it had not been fully implemented on the UK, but the ECJ ruled that it was sufficiently clear and imposed obligations on the member state; the ruling allowed Miss Marshall to succeed in her claim against her employers as they were an ‘arm of the state’. The directive had vertical effect, allowing her to rely on it and take action against them.
4. Duke v GEC Reliance Ltd.
Mrs. Duke, unlike Miss Marshall, was unable to rely on the Equal Treatment Directive because her employer was a private company; this illustrates that directives don’t have horizontal direct effect, as confirmed by Italian case, Paola.
5. Francovich Damages:
The distinction between the types of direct effect means that some people can enforce their rights under a directive whereas others can’t; this is unfair, so the ECJ developed Francovich Damages as another strategy to get around this problem:
An individual may bring an action to claim damages against the Member State which has failed to implement the directive. This was developed in the case of Francovich v Italian Republic, hence its name.
BUT: There are three conditions to be met before Francovich damages can be claimed:
1. The purpose of the directive must have been to give individuals rights.
2. Those rights must be clearly identifiable in the directive.
3. There must be a causal link between the state’s failure to implement a directive and the individual’s loss.
However, no damages were granted in the case of R v HM Treasury, ex parte British Telecommunications plc:
In this case, the ECJ held that although a directive on telecommunications had been incorrectly implemented in English law, compensation was not payable as the breach of Community law was not sufficiently serious.
6. Indirect effect/ interpretive obligation:
Another strategy the ECJ developed is that even if the Member State has not implemented a directive, they must still interpret their own law in light of the directive. This was pointed out in Von Colson
“National courts are required to interpret their own national law in light of the wording and the purpose of the directive.”
The Impact of EU law on National Law:
Before 1972, the UK had complete Parliamentary Sovereignty.
The theory of parliamentary sovereignty was put forward by A.V.Dicey; this was the idea that Parliament is the ultimate law making body.
“What Parliament doth, no power on earth can undo.” [Blackstone.]
“Parliament could make it illegal for French men to smoke on the street of Paris” [Sir Ivor Jennings.]
e.g Cheney v Conn- claimant told that Acts of Parliament could not be called into question because they’re supreme after the Finance Act was questioned as being illegal.
The justification for Parliament being supreme is that it leads to democratic law making; MPs are elected by their constituency and therefore once in Parliament, they’re acting on behalf of the voters and are representatives of the people.
However, this changed in 1972 by the UK joining the EU by passing the European Communities Act 1972. By passing the Act, the UK transferred some of its sovereignty over the EU and subsequently made the ECJ the most superior court on points of EU law.
In the event of conflict between National law and European law, European law will prevail; this was established in the case of Van Gend en Loos:
Van Gend en Loos:
The Government of the Netherlands attempted to introduce new custom duties. A ruling by the ECJ prevented this from happening, and in doing so established the supremacy of EU law over national law.
The Dutch government argued that the ECJ had no jurisdiction to decide whether European law should prevail over Dutch law; this was a matter for the Dutch courts to decide; however, the ECJ rejected this argument.
In Costa v ENEL, the ECJ said:
“The member states have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.”
Bail coming up later, right now im trying to get through the whole of civil courts, which i HATE, when i get into criminal courts and i come to to bail, i'll copy and paste it onto here. Hope the EU stuff helps, though i can't imagine it'll be that much different from your textbook or own notes. Good luck all
Thank you SO much Stressed Chick!! You really are a complete life saver!! Erin Haf: Aw thank you, and you're very welcome. Trust me, I know how it feels to need your ass saved just before the exam! Glad to be of help.
For EU law, i also did a previous post on guidance for application (paper 3) questions on it, so you can check that out, too.
Am doing civil remedies now, hopefully wont be too long till i get onto bail! Good luck.
For EU law, i also did a previous post on guidance for application (paper 3) questions on it, so you can check that out, too.
Am doing civil remedies now, hopefully wont be too long till i get onto bail! Good luck.
Wel I've spent the last two hours doing statutory interpretation and precedent using the checklist that you gave me. It really helps! I've found that revising is a lot easier if you use some kind of plan like that. I'm beginning to feel a lot more confident about the exam, whereas I was a complete wreck earlier! I don't think it's healthy that they should put us through exams at such a tender age...haha! Yeah, well it kinda makes sense. 
Bail
Bail is a pre-trail matter. Once a defendant has been charged, s/he will have to wait some weeks before their trail is held; during this period, a decision must be made as to whether or not the defendant is to be given bail- bail would mean that they are free to go until the next stage in the process .Alternatively, it could be decided that they should be remanded in custody.
The police and magistrates make bail decisions; the decision as to police bail will be made by the Custody Officer, under s38 of The Police and Criminal Evidence Act 1984 (PACE).
Refusal of bail:
The police can refuse bail if:
1. The name and address of the suspect cannot be discovered.
2. They believe the name and address given is false.
If the police refuse bail after having charged a defendant, the defendant must go directly to the Magistrate’s Court, where the case will be heard, if it cannot be heard there and then, then the magistrates make a decision as to bail.
These are general principles as to when bail can be refused; further guidelines are contained in The Bail Act, 1976
The Bail Act 1976:
Under S4 of this Act, there is a presumption that bail should be granted; this is because there is a presumption that everyone is innocent until proven guilty; this is known as the golden thread of criminal law.
The act states that therefore states that bail can only be refused if:
1. It is felt that if the accused were released, she or he would not return.
2. It is felt that the accused might commit another offence whilst on bail.
3. It is felt that the defendant might interfere with witnesses or otherwise obstruct the course of justice. (e.g threaten witnesses/ return to scene of crime to conceal evidence)
4. It is in the defendant’s own interests that bail be refused.
Factors to consider when deciding whether to grant bail:
1. The nature and seriousness of offence
2. The character and previous record of the accused
3. Family and community ties of the defendant (e.g are they a single parent with young children dependant on them?)
4. Behaviour of defendant when on bail in the past.
5. Strength of the prosecution evidence.
Conditional Bail:
The Criminal Justice and Public Order Act 1994 provides that bail can be subject to conditions being imposed, e.g:
Tagging, curfew, surrendering passport, home arrest, staying in a bail hostel, request that the defendant signs in regularly at a police station.
Sureties:
The court and police can request a surety- this is someone who is prepared to pay the court a sum of money if the accused fails to return after having been granted bail. (The money is ONLY paid if the accused does NOT return, and is NOT paid in advance, as in the USA.)
Restrictions on Bail:
1. Anti-Terrorism Crime and Security Act 2001:
Allows foreign citizens who are suspected of terrorist activity to be detained without trial and with no right to bail.
2. Repeat serious offenders:
Where a person is charged with murder, attempted murder, manslaughter, rape, or attempted rape and has already served a custodial sentence for a similar offence, they will only be granted bail in exceptional circumstances.
3. Criminal Justice Act 2003:
Where a defendant aged 18 or over was already on bail when the present offence was committed, bail will not be granted unless the court is satisfied that there is no significant risk of further offences being committed.
4. Criminal Justice Act 2003:
Also places restrictions on bail for adult drug users who have committed drug-related or drug-motivated offences.
N.B: The Bail (Amendment) Act 1993 gives the prosecution rights to appeal against the granting of bail.
Critical Comment on bail:
Arguments AGAINST being REFUSED Bail:
1. Remanding a defendant who has not yet been found guilty id an unfair deprivation of liberty; The ‘Golden Thread’ of criminal law is that everyone is innocent until proven guilty; therefore everyone should be treated as innocent, be given their liberty.
2. Being remanded in custody has a severe effect on the life of the accused, e.g work, children, family, perhaps even if later acquitted.
3. Remand prisoners make up between 20-25 % of the prison population but account for more than 50% of suicides in prison.
4. Remand prisoners add to the already huge problem of prison overcrowding; furthermore, even if defendants are found guilty at the trial, 60% of those are given non-custodial sentences.
Case:
A woman killed her husband with an axe; she had spent 10 months in remand; at the trial, she pleaded a special defence and was convicted of manslaughter, and the judge said she had served her sentence.
Arguments FOR refusing bail:
1. Repeating serious offences
10 % of people re-offend whilst on bail (mostly petty offences.)
2. Protection of society, of a potentially dangerous situation.
3. Andrew Hagans example:
He was arrested for rape; he was given bail, and whilst ob bail, he raped and murdered 2 other people.
Courts must therefore look at all these arguments when deciding whether or not to refuse bail. They have to engage in a balancing act, known as ‘balancing conflicting interests.’ This involves balancing the need to protect society against the needs and rights of the accused.
Disclaimer- none of the notes put here are entirely my own, they are mostly from the notes our teachers gave us. Hope that's not plagarism.
There you go then, that's bail, i actually like bail you know. Good luck all of you, hope your revision is going well!
Bail is a pre-trail matter. Once a defendant has been charged, s/he will have to wait some weeks before their trail is held; during this period, a decision must be made as to whether or not the defendant is to be given bail- bail would mean that they are free to go until the next stage in the process .Alternatively, it could be decided that they should be remanded in custody.
The police and magistrates make bail decisions; the decision as to police bail will be made by the Custody Officer, under s38 of The Police and Criminal Evidence Act 1984 (PACE).
Refusal of bail:
The police can refuse bail if:
1. The name and address of the suspect cannot be discovered.
2. They believe the name and address given is false.
If the police refuse bail after having charged a defendant, the defendant must go directly to the Magistrate’s Court, where the case will be heard, if it cannot be heard there and then, then the magistrates make a decision as to bail.
These are general principles as to when bail can be refused; further guidelines are contained in The Bail Act, 1976
The Bail Act 1976:
Under S4 of this Act, there is a presumption that bail should be granted; this is because there is a presumption that everyone is innocent until proven guilty; this is known as the golden thread of criminal law.
The act states that therefore states that bail can only be refused if:
1. It is felt that if the accused were released, she or he would not return.
2. It is felt that the accused might commit another offence whilst on bail.
3. It is felt that the defendant might interfere with witnesses or otherwise obstruct the course of justice. (e.g threaten witnesses/ return to scene of crime to conceal evidence)
4. It is in the defendant’s own interests that bail be refused.
Factors to consider when deciding whether to grant bail:
1. The nature and seriousness of offence
2. The character and previous record of the accused
3. Family and community ties of the defendant (e.g are they a single parent with young children dependant on them?)
4. Behaviour of defendant when on bail in the past.
5. Strength of the prosecution evidence.
Conditional Bail:
The Criminal Justice and Public Order Act 1994 provides that bail can be subject to conditions being imposed, e.g:
Tagging, curfew, surrendering passport, home arrest, staying in a bail hostel, request that the defendant signs in regularly at a police station.
Sureties:
The court and police can request a surety- this is someone who is prepared to pay the court a sum of money if the accused fails to return after having been granted bail. (The money is ONLY paid if the accused does NOT return, and is NOT paid in advance, as in the USA.)
Restrictions on Bail:
1. Anti-Terrorism Crime and Security Act 2001:
Allows foreign citizens who are suspected of terrorist activity to be detained without trial and with no right to bail.
2. Repeat serious offenders:
Where a person is charged with murder, attempted murder, manslaughter, rape, or attempted rape and has already served a custodial sentence for a similar offence, they will only be granted bail in exceptional circumstances.
3. Criminal Justice Act 2003:
Where a defendant aged 18 or over was already on bail when the present offence was committed, bail will not be granted unless the court is satisfied that there is no significant risk of further offences being committed.
4. Criminal Justice Act 2003:
Also places restrictions on bail for adult drug users who have committed drug-related or drug-motivated offences.
N.B: The Bail (Amendment) Act 1993 gives the prosecution rights to appeal against the granting of bail.
Critical Comment on bail:
Arguments AGAINST being REFUSED Bail:
1. Remanding a defendant who has not yet been found guilty id an unfair deprivation of liberty; The ‘Golden Thread’ of criminal law is that everyone is innocent until proven guilty; therefore everyone should be treated as innocent, be given their liberty.
2. Being remanded in custody has a severe effect on the life of the accused, e.g work, children, family, perhaps even if later acquitted.
3. Remand prisoners make up between 20-25 % of the prison population but account for more than 50% of suicides in prison.
4. Remand prisoners add to the already huge problem of prison overcrowding; furthermore, even if defendants are found guilty at the trial, 60% of those are given non-custodial sentences.
Case:
A woman killed her husband with an axe; she had spent 10 months in remand; at the trial, she pleaded a special defence and was convicted of manslaughter, and the judge said she had served her sentence.
Arguments FOR refusing bail:
1. Repeating serious offences
10 % of people re-offend whilst on bail (mostly petty offences.)
2. Protection of society, of a potentially dangerous situation.
3. Andrew Hagans example:
He was arrested for rape; he was given bail, and whilst ob bail, he raped and murdered 2 other people.
Courts must therefore look at all these arguments when deciding whether or not to refuse bail. They have to engage in a balancing act, known as ‘balancing conflicting interests.’ This involves balancing the need to protect society against the needs and rights of the accused.
Disclaimer- none of the notes put here are entirely my own, they are mostly from the notes our teachers gave us. Hope that's not plagarism.
There you go then, that's bail, i actually like bail you know. Good luck all of you, hope your revision is going well!
Thank You!!
Erin Haf: first of all, you're very welcome
Secondly yeah i know what you mean about it being easier with a plan; that's how i'm doing it too. And as for the exams at a tender age, tell me about it, i hate exam time it's the time i get REALLY spotty and REALLY fat becuase of all the chocolate i eat, and then i spend all day feeling ugly and miserable! When exams over, I breathe a sigh of relief, and then it takes 2 weeks for the spots to clear!
I'm glad to know you're feeling more confident, i'm still a bit scared that i won't get through everything but hey we're all trying. Good luck everyone... make sure you all revise hard.
Secondly yeah i know what you mean about it being easier with a plan; that's how i'm doing it too. And as for the exams at a tender age, tell me about it, i hate exam time it's the time i get REALLY spotty and REALLY fat becuase of all the chocolate i eat, and then i spend all day feeling ugly and miserable! When exams over, I breathe a sigh of relief, and then it takes 2 weeks for the spots to clear!
I'm glad to know you're feeling more confident, i'm still a bit scared that i won't get through everything but hey we're all trying. Good luck everyone... make sure you all revise hard.
Alright, so I am as well doing AS Law, and with AQA. Which examining board are you all with?? *unsure look*
Innocence: We're all doing the WJEC board, not AQA... a lot of the stuff will be relevant but your questions are different and also, you do some criminal law.
Dredz: Common law and equity hasn't come up in a while so i'm hoping it does as well! I know that topic really well too. AS for advantages and disadvantages, i'll try post it up in a bit, good luck.
Dredz: Common law and equity hasn't come up in a while so i'm hoping it does as well! I know that topic really well too
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