examenvragen-common-law.pdf

lOMoARcPSD|1081162 lOMoARcPSD|1081162 examenvragen common law GOLDEN RULE (+ LINK MET BIGAMY OF ADLER V GEORGE) → The rule essentially requires a court to look at the words in their context if the literal rule leads to an absurd result. “The grammatical and ordinary sense of the words is to be ad...

lOMoARcPSD|1081162 lOMoARcPSD|1081162 examenvragen common law GOLDEN RULE (+ LINK MET BIGAMY OF ADLER V GEORGE) → The rule essentially requires a court to look at the words in their context if the literal rule leads to an absurd result. “The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no farther.” - R v Allen (1872) Section 57 of the Offences Against the Person Act 1861 defined Bigamy as being married more than once. If you are already married, you cannot lawfully marry again so you cannot commit the offence. This interpretation would be absurd, the courts applied the golden rule and held that the word marry meant to go through the ceremony of marriage. Allen was convicted. Facts: Allen, having a wife, went through a ceremony of marriage with another woman. He was charged as guilty of bigamy. He argued that he could not validly “marry” another person while being married. - Adler v George (1964) Section 3 of the Official Secrets Act 1920, it was an offence to obstruct HM Forces ( = the British Armed Forces, Her Majesty’s Armed Forces) in the vicinity of a prohibited place. Mr Adler had been arrested whilst obstructing such forces within such a prohibited place (Marham Royal Air Force Station, Norfolk). Mr Adler argued that he was not in the vicinity of a prohibited place as he was actually in a prohibited place. Literal rule interpretation would lead to absurdity, golden rule interpretation led to conviction. ELEMENTS CRIME (ACTUS REA & MENS REA) → THE CRIMINAL CONDUCT: Actus Reus You must always have criminal conduct (you can’t convict for a criminal intention/thought). If there is no criminal conduct, there is nothing done, there is no act, you can’t prosecute. As long as you don’t act on your criminal intentions, you can’t be prosecuted for it. It is important in the adversarial system, particularly the criminal system; If you are prosecuting someone, you have to prove they committed the act, you have to know what the act is, that is criminal, that needs to be proven. → THE MENTAL ELEMENT: Mens Rea Very few criminal offenses don’t need this element. Negligent, wreckless, it doesn’t mean you intended to achieve what has happened. There has to be a mental element, which relates to people who don’t have the mental capacity to form an intention (psychiatric illness and so). Ignorance or mistake of law is no defence: fact that you didn’t know something was illegal, doesn’t matter, because you did intend to do the act. - E.g. smoking a joint, you did intend to do so, do it in front of children in the middle of London, give one to your friend and you did want to get high. lOMoARcPSD|1081162 The Prosecution needs to prove the elements of the crime ‘beyond reasonable doubt’. - The proposition being presented by the prosecution must be proven to the extent that there could be no ‘reasonable doubt’ in the mind of a ‘reasonable person’ that the defendant is guilty. FIRST PAST THE POST SYSTEM → Voters elect individual MP’s, not parties. → An MP is the person who receives the largest number of votes cast in their constituency. → voting is by paper ballot → There are currently 533 constituencies in England; 59 in Scotland; 40 in Wales; 18 in Northern Ireland. → The number of people able to vote differs by constituency → In order to vote - one has to register to vote, and voting is optional. - One has to be 18 or over on the day of the election (polling day) - a British, Irish or qualifying Commonwealth citizen - resident at an address in the UK or a British citizen living abroad who has been registered to vote in the UK in the last 15 years - not be legally excluded from voting Large answer: → Voters elect individual MPs, not parties. You can not vote for prime minister. - You vote for someone to represent you in parliament. . The job of an MP is to do things for their local constituency. If someone has a problem, an MP should do something about it. That’s the way the British system works. You get elected to represent you constituency and it’s your job to do things for your constituency. You got 650 of those and they form parliament. Each are chosen individually. The point is you have person who’s got elected, you know him and you have access to him. ( Not al the MP’s do it by the way) Diffrence with Belgium: Who would go to their MP if they had a problem? class: nobody so there is a clear difference between the two systems. → An MP is the person who receives the largest number of votes cast in their constituency. - It has to be a valid vote. “Valid”: it has to be a clear expression. By example: if you write: Idiot, idiot, idiot, YAY, idiot.. If they look at it, it is a clear expression of what you vote. Also you HAVE to vote for someone, there is no option like “none of the above”. You actually can but then it will be a “spoiled ballot”. Voting in the United Kingdom is not an obligation, it’s entirely up to you. Being on the electoral register is not an obligation. If 20% of the people turn up to vote, then parliament will be elected by 20% of the people. That’s the way it goes, that’s democracy. The largest number of votes cast by the people who are on the electoral register allegeable to vote and turned up in that constituency. → Voting is by paper ballot. - Obviously it’s a secret ballot and it’s done by paper. Then people sit in count. Then there is a control mechanism, people sit in teams and everything gets checked and double checked and triple checked. In some parts of the country the counts come in really late, in some really early. It’s phenomenal how they count the votes. It’s an lOMoARcPSD|1081162 unoUcial race to be the first and It’s nearly always Sunderland who’s first. Northern Ireland always comes in the day after because of the logistics of the ballot boxes. → Registering to vote, and voting are optional. - There is no ID check at the polling station – current government wants to change this. This freaks everyone else out, expects us. The government wants to change it because of electoral fraud, but statistics show that numbers of electoral fraud are so tiny, it’s stupid. In the United Kingdom they don’t have id carts ( compared to Belgium). The Uk does have certain things and services that require photographic prove of ID. This is obviously the case. And If something do not require photographic ID there are some things that require prove of ID. By example: your electricity bill example of photographic ID: driving license and passports. Minute 15.32 If there is an electoral fraud statics show that is not at the polling station. There is no compulsory ID-check. → One person one vote, first past the post → In order to vote in a general election someone must be: - registered to vote ( registration deadline for the election on the 12 th of December was the 26 th of November, compared to Belgium it’s relatively close to the actual election.) - 18 or over on the day of the election (‘polling day’) ( for the general election) - a British, Irish or qualifying Commonwealth citizen - resident at an address in the UK (or a British citizen living abroad who has been registered to vote in the UK in the last 15 years) - not be legally excluded from voting That’s the bare minimum. → The Prime Minister is appointed by the monarch, they are the leader of the party with the majority of MPs ( reminder: not the biggest number of votes!!), and will form Her Majesty’s Government. Why would it not be the biggest number of votes? Let’s imagine that a party gets the largest number of seats from the constituencies with the smallest population and the lowest turnout. Just to give you a very extreme example to make it simple. So you have the party with the largest number of votes, that party has the prime minister and the prime minister is the leader of the party. The leader of the party with the next largest number of MPs becomes Leader of Her Majesty’s Most Loyal Opposition (OUcial Opposition). Which is currently the labor party. Obviously every other party is in the opposition, but they are not the oUcial opposition. And because of the way parliament works the oUcial opposition can do certain things etc. If no party has a majority there is a ‘hung Parliament’, and the leader of the largest party can form a minority government or they can form a coalition government. In 2015 the conservatives have majority. Theresa May decided ‘im going to call an election to get a bigger majority and get the Brexitthing done, she lost a whole bunch of seats she then had to concluded that was called a confidence and supply agreement with the Democratic unionist party. WHAT IS THE CONCEPT PRIVITY OF CONTRACT (+exceptions) + WHAT ABOUT THIRD PARTIES + WELKE ACT DAAROP GEBASEERD IS (exceptions en voorwaarden exceptions) lOMoARcPSD|1081162 → This is the one in relation to the voidable nature. Basically, a contract is voidable by the victim of the defective agreement, but they can also wave it. So they can say no I'm absolutely happy to continue in this contract. Even if there is something that gives me the right to get out of this contract, I choose to stay in this contract. That is up to the victim of the defective agreement. The general rule is in relation to privity of contract, the general rule for voidable is that there has to be a person that suffers a defective agreement and they are also entitled to stay in the contract. So generally, it is not third parties. That brought us to the issue of third parties generally. The principle of privity of contract is a very old principle of English law. So, the common law general rule is that a third party cannot enforce a provision of a contract at all. One of those circumstances might be A contracts with B to give something to C and then A breaches a contract, C suffers a substantial loss, B can only claim for the breached contract, but not for the substantial damages, and C can't claim anything. That's problematic. So, then they started printing certain devices and started coming up with certain arraignments. It was obvious that they needed to do something about it. What they basically did about it was finally after centuries they came up with a contracts act 1999 (rights of third parties act) In this situation, and the situation is a relation to beneficiaries, if it has been expressed, provided for someone's beneficiary, and it doesn't say you can't enforce it as a third party. So number one, you have to be benefiting from it, it has to be expressing there you have to be able to take this persons entitled benefit to have this benefit, and there has to be nothing so they have to come to give you the benefit within this contract for you to be able to enforce it, and they can't have excluded your right to enforce it. Under these circumstances, you will be entitled to enforce your rights under the contract.(this act allows for some third party beneficiaries to enforce contract provisions (if expressly provided for or purports to confer benefit but not if parties did not intend for third party to be able to enforce) That's enforcing the contract. In other words, if you are not automatically considered entitled as a third party to enforce your rights under the contract because your form was in the provisions of the third parties act, then you may still be entitled to enforce your rights under the contract if for example one person made a contract with another person for the benefit of a third person and one person breaches the contract, third person can't enforce it and is the one with the biggest loss. (if act 1999 not applicable a promisor may be able to enforce a third party’s benefit → this is a court device to avoid the ‘black hole’ problem) They then have the Euromaidan case. They created the concept of agency, in other words, one contracted party will be the agent on behalf of the third party. The also tried other situations. Like making a contract with one and the other with the third party, with the result of having two contracts. All the devices show that they don't automatically allow third parties to enforce contracts, in fact only in very specific conditions. But someone asked if they could do a specific performance, the answer is yes. What is specific performance, it says that you should do something, perform the contract in a specific way, in a certain way. And there are occasions, and those would be where it would not be suffcient, where a court will order a party to a contract to name a specific performance for the benefit of a third party. lOMoARcPSD|1081162 WHO ARE THE FINDERS OF FACT AND LAW IN CRIMINAL CASES + WHICH COURTS? → Jury are finders of fact - Jury only persuades on facts; for example the alibi, which is not always allowed. - Facts must be decided on what is said in court, the jury hears both parties. → judges are finders of law. - Afterwards is decided who they believe the judge will then say: if you believe this, then this must be decided. DOES JUDICATURE ACT TELL YOU SOMETHING? → Judicature Acts 1873-75 (High Court, etc.,etc.) , judges could apply both common law and equity. In the 1850-1860, the procedures were further simplified and efforts were made to end duplication of claims in Common Law and equity courts. 1873: Judicature Act brought together the old common law courts and the Court of Chancery and the Court of Appeal into the Supreme Court of Judicature - The Judicature Act created a fairly uniform writ to access the court for all actions. The decisions include both common law and equity considerations as relevant. S I E TYPES OF OFFENCES (HIER WOU ZE SUPER VEEL DETAILS), OOK BIJVRAGEN => "WAT IS EEN ANDERE MANIER OM VOOR CROWN COURT TE KOMEN ANDERS DAN DE DOORVERWIJZING DOOR MAGISTRATE COURT" (+ BIJVRAGEN ZOALS HOE JE VERWEZEN WORDT NAAR DE CROWN COURT) → SUMMARY OFFENCE: a criminal offence which is triable only by a Magistrates’ Court - There’s no possibility to go in front of a jury for these kinds of offences some people might think it’d be in their favour to be listened to by a jury and that a jury would make it easier for them, but it’s just not possible. → INDICTABLE OFFENCE: a criminal offence triable only by the Crown Court - Starts at the Magistrates Court, because that is where the first stage happens even if it’s just on paper. It goes straight up, you have no choice about going to the Crown Court, because the offence is too serious, too complex or has a very long sentence. - These offences are always too serious to be tried by the Magistrates’ Court and they require higher sentences. → EITHER-WAY OFFENCE: an offence which may be dealt with either summarily by the magistrates or by committal to the Crown Court to be tried by jury - Summarily: because it’s a summary offence Offences (assault being the absolute classic) where, depending on the circumstances and the type of sentence that is required if found guilty, you will either go summarily by the magistrates, or (this is where the choice about the guilty-plea comes in) the defendant can request Crown Court trial, so going before a jury, but higher sentences are possible. Or the magistrates say they don’t want to deal with it, because it’s either too complicated. - If an accused pleads ‘not guilty’, he can request the Crown Court or more specifically trial by jury. ● If it’s not requested but Magistrates find the case too serious, they can send it up themselves. lOMoARcPSD|1081162 - E.g. a drunk bar fight on Friday night that can range from just minor injuries to 2 days in the hospital. ● Minor injuries: Magistrates’ Court ● Two days in the hospital: Crown Court there will also be a lot more public interest. BIGAMY (golden rule) → R v Allen (1872) Section 57 of the Offences Against the Person Act 1861 defined Bigamy as being married more than once. If you are already married, you cannot lawfully marry again so you cannot commit the offence. This interpretation would be absurd, the courts applied the golden rule and held that the word marry meant to go through the ceremony of marriage. Allen was convicted. Facts: Allen, having a wife, went through a ceremony of marriage with another woman. He was charged as guilty of bigamy. He argued that he could not validly “marry” another person while being married. YOUNG V BRISTOL AIRPLANE: EXPLAIN → Hierarchy of precedent (1. Court of Justice of the EU) 2. Supreme Court 3. Court of Appeal: Bound by the Supreme Court and bound by own previous decisions, unless Young v Bristol Aeroplane Co (1946): (horizontal precedent) - Decisions per incuriam: Case didn’t take into account all relevant law and major defect of material reasoning There’s a choice between conflicting decisions. By choosing one, you are diverging from the other one. When the decision is not expressly overruled by the Supreme Court but is contrary to a decision of the Supreme Court or House. It is expected to be overruled, so it’s an advance on what will be decided by the Supreme Court. A decision that hasn’t been changed yet, will be applied. → details about the case: https://www.youtube.com/watch?v=HlFJlpohlHU&t=386s ASPECTS OF A CRIMINAL OFFENCE (=elements of crime) → THE CRIMINAL CONDUCT: Actus Reus - You must always have criminal conduct (you can’t convict for a criminal intention/thought). If there is no criminal conduct, there is nothing done, there is no act, you can’t prosecute. As long as you don’t act on your criminal intentions, you can’t be prosecuted for it. - It is important in the adversarial system (see D.), particularly the criminal system; If you are prosecuting someone, you have to prove they committed the act, you have to know what the act is, that is criminal, that needs to be proven. lOMoARcPSD|1081162 → THE MENTAL ELEMENT: Mens Rea (is not the same as the motive, the motive is why a crime was commited) - Very few criminal offenses don’t need this element. - Negligent, wreckless, it doesn’t mean you intended to achieve what has happened. There has to be a mental element, which relates to people who don’t have the mental capacity to form an intention (psychiatric illness and so). → Both elements need to be proven, if one of two is lacking or cannot be proven, the person involved is NOT guilty. - There’s a lot of caselaw on what ‘carelessly’ means. “The act is not guilty, unless the mind is guilty”. E.g. I fall over and someone else falls over as well and he cracks his head open. I did the act, but I didn’t mean to, so there’s no mental element. Britain doesn’t know insurance against someone suing them, no ‘familiale verzekering’ as in Belgium. - There are specific acts with all the elements of the offence that need to be proven in order to be found guilty, e.g. theft if you can prove you borrowed the object for a day, then you won’t be found guilty. → The Prosecution needs to prove the elements of the crime ‘beyond reasonable doubt’. ● the proposition being presented by the prosecution must be proven to the extent that there could be no ‘reasonable doubt’ in the mind of a ‘reasonable person’ that the defendant is guilty. STANDARD OF PROOF → Evidence is very important in an adversarial system. The standard of proof in civil cases is generally ‘on the balance of probabilities’ and in criminal cases it is ‘beyond reasonable doubt’. One side of prosecution needs to prove their evidence. Some evidence are allowed and some are not. Evidence at trial is elicited in three forms: (how to get evidence presented) • Evidence in chief (main statement if you are a witness) • Cross-examination: testing the evidence and building situation where you can contradict the evidence. • Re-examination (bv of witness → ask them new questions) There are different types of witnesses and different types of evidence. Different types of evidence mean they have different type of rules that apply. Rules of evidence apply different according to type of witness. These include: • Witnesses of fact (waren aanwezig) • Expert witnesses (bv witness of fraus → inform how fraud works etc) • Witness statements (is a type of evidence, if the witness is not present in court this witness statement can be used as evidence) • Documentary evidence; could be e.g. a will lOMoARcPSD|1081162 → rules of evidence Common Law - Police and Criminal Evidence Act 1994 Civil Evidence Act 1995 - Criminal Justice Act 2003 → prove all the elements and then decide which law is applicable → decision to prosecute The Evidential Stage “4.6 Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. will they be found guilty and not: are they guilty? There needs to be enough evidence to be found guilty. “4.8 Can the evidence be used in court? Prosecutors should consider whether there is any question over the admissibility of certain evidence. In doing so, prosecutors should assess: • the likelihood of that evidence being held as inadmissible by the court; and • the importance of that evidence in relation to the evidence as a whole. … Is the evidence reliable? Prosecutors should consider whether there are any reasons to question the reliability of the evidence, including its accuracy or integrity. Is the evidence credible? Prosecutors should consider whether there are any reasons to doubt the credibility of the evidence. Is there any other material that might affect the sufficiency of evidence? Prosecutors must consider at this stage and throughout the case whether there is any material that may affect the assessment of the sufficiency of evidence, including examined and unexamined material in the possession of the police, and material that may be obtained through further reasonable lines of inquiry.” The Public Interest Stage Under section 4.9, if the case does meet the evidential test, Crown Prosecutors must decide if a prosecution is needed in the public interest. “4.14 Prosecutors should consider each of the following questions: a. How serious is the offence committed?... b. What is the level of culpability of the suspect?... c. What are the circumstances of and the harm caused to the victim?... d. What was the suspect’s age and maturity at the time of the offence?... e. What is the impact on the community?... f. Is prosecution a proportionate response?... h. Do sources of information require protecting?...” All sort of evidence is possible: e.g. videos, photos etc. It doesn’t need to be a legal document TOMMY ROBINSON EXPLAIN → Background information Tommy Robinson, the actual name is Stephen Christopher Yaxley-Lennon, has been convicted of fraud, has been convicted of lying on his visa, has been convicted of firearms, has been convicted for violence. He's also the founder of the English defence league. He's a lOMoARcPSD|1081162 dangerous man, and this is not a matter of opinion it is a matter of facts. It's important because this man and his actions have been normalized. He went to prison, but before that, he was the political advisor to UK, in the European parliament. The Tommy Robinson cases are very interesting. → Context The cases were this is all about are grooming cases, involving teenage girls. Lots of girls were raped. They said, that all the victims were white, and all the rapists were Muslims, but the professor says it's nonsense that they are all Muslim, they said that because it was an easy narrative to run with because they were Asian grooming gangs. That's the context. A bunch of girls were sexually assaulted because, police thought it was a lifestyle choice, people who didn't see the warnings. But then luckily, they started an investigation and started taking persecutions. It was gang trials. They were big trials and they needed to take their time. They were three grooming gang trials, and there were reporting restrictions on those three trails across the board. So even when the verdict of the first trial was known, you couldn't report it. And if you didn't respect those reporting restrictions these guilty men could walk free. Tommy Robinson considers himself a journalist and he reports about these grooming trials. → first trial:Canterbury 2017 He filmed on steps, then inside the court but not the courtroom. "Tommy Robinson in Canterbury exposing Muslim child rapists, Police help them escape". Couldn’t film defendants or jury as they were moved via other exit. Notices forbidding filming, security staff told him. Convicted under s41 of the Criminal Justice Act 1925 and of contempt of court. Admitted contempt by filming in the precinct of the court. He claimed he didn’t know, then he apologised, sentenced to 3 months suspended for 18 months. He was represented by Leading and Junior Counsel. Leeds 2018 – convicted (pleaded guilty) of contempt of court for Facebook live streaming in breach of reporting restrictions, and approaching defendants, during jury deliberations. Jailed immediately following conviction, didn’t have opportunity to prepare mitigation. 10 months for Leeds offence, plus 3 months of Canterbury. He appealed. → Second trial – Leeds 2018 Then the second trial started in Leeds where he pleaded guilty for contempt of court. He had been livestreaming on Facebook in breach of reporting restrictions, and approaching defendants, during jury deliberations. The defence council asked for the trial to be declared a mistrial because he was outside while the jury was deliberating and it wouldn’t be a fair trial. Tommy Robinson was risking the chance of a fair trial and if he had kept on live streaming and if the child abusers would be convicted, their convictions could have been unfair. His only motifs were to promote his organisation. He risked 3 different trials of horrendous child abuse. That’s the jeopardy of not respecting reporting restrictions. Unfortunately there was a slight problem. The judge in the Leeds court was very worried about the integrity of the trial, with good reason. Tommy Robinson was brought to court and within 24 hours he was asked to come with a response about his actions, and he pleaded guilty. And he argued successfully that he shouldn’t have been convicted for contempt. That his rights to a fair trial (irony) where not respected because he didn’t had time to prepare or to consult with his own lawyer etc. He won the trial, and he should have won because the lOMoARcPSD|1081162 judge was understandably worried about the integrity of the trial cause this was in jeopardy the moment he was asked to stop filming. He should have had the same rights as any other defendant, as any other accused person. To go by the rhythm of the court and to have the time to prepare his defence, even if he pleaded guilty. → appeals Tommy Robinson indeed appealed for a retrial. After that there was a political debate about should they or should they not prosecute him again and where. (if you type “Tommy Robinson, contempt of court” in google you will find a lot of stuff). Eventually they decided to prosecute him again and to give him enough time and to be very clear about what he was charged for because for Tommy Robinson it wasn’t clear is he was charged with criminal of civil contempt. Than the appeal court stated: “We are satisfied that the decision at Leeds Crown Court to proceed to committal to prison so promptly and without due regard for Part 48 of the Rules gave rise to unfairness. There was no clarity about what parts of the video were relied upon as amounting to contempt, what parts the appellant accepted through his counsel amounted to contempt and for what conduct he was sentenced.” This is another example of why your evidence matters in this system because you have to prove every element. So he was sentenced to prison for contempt of court but the argument was: where is the contempt? Which parts of the video are the contempt? He pleaded guilty but he wasn’t sure for what he pleaded guilty for. So the court of appeal stated that it indeed wasn’t fair because it wasn’t clear which parts of the video were referred to. The appeal court also asked to amend his record. His record stated that he was sentenced to prison but actually it should have been committed to prison. Sentenced to prison is a criminal conviction and is slightly different. So this time he got all the things he could possibly asked for, a retrial and witnesses etc. But despite that he is still found in contempt of court and was sentenced to 9 months. This for violating the very strict reporting restrictions by filming. These restrictions are there to protect a fair trial and to protect the system. Even if you didn’t had the intention to break the reporting restrictions, you can be convicted for contempt of court. → Importance of the Tommy Robinson case What is the importance of the Tommy Robinson case? Up to this point, what is the lesson we can learn about the process, criminal justice system, contempt of court? What do these two cases say about the system? During the first trial in Canterbury Tommy Robinson thought that he was entitled to do the things he did because he is a journalist, he’s got freedom of expression. So he got convicted with suspension for contempt of court. He was giving a second chance but when he did the same things again at the second trial, Tommy Robinson was arrested and they’ve activated his sentence of 3 months because he violated the conditions the judge gave him. Unfortunately they didn’t gave him a fair trial because he didn’t had time to prepare or to consult his own lawyer. So despite the fact that everything he did was against the contempt of court in England, it doesn’t matter because he is entitled to have the same rights for a fair trial as anybody else. So he insulted the court, however the court said it should be referred for a retrial. So think again if you don’t believe in the legal system in England. lOMoARcPSD|1081162 If we didn’t had the reporting restrictions and the contempt of court in order to have the right to a fair trial, than these pedofiles wouldn’t be convicted. So that’s the importance of the reporting restrictions in England and Wales and the difference of that and article 10. It doesn’t make a difference that Tommy Robinson wasn’t a journalist. He could still be convicted for contempt of court. In fact if he would have been a journalist he wouldn’t have violated the restrictions because he would have known about them. THE 4 RULES VAN STATUTORY INTERPRETATION: EEN VAN DE BIJVRAGEN => "WELK RECHT TOV WELK RECHT MOET GEÏNTERPRETEERD WORDEN BIJ PURPOSIVE APPROACH" → VOOR WELK RECHT DE PURPOSIVE APPROACH WORDT GEBRUIKT (EU LAW) → THE LITERAL RULE = Using the ordinary and natural meaning of the words used. There is no ambiguity. - try to find out what the lawmaker was trying to achieve with the text, by looking at the actual words. If this is really the idea/purpose/intention of Parliament on how to understand their texts, is doubtful. A text that comes out of Parliament should be able to be read through the eyes of a normal person. With this method, they only look at certain words instead of the entire text which is unreasonable. advantages disadvantages -Respects supremacy of parliament -Can lead to absurd results - Ignores the limitations and ambiguities inherent in the English language Sticks to the basics of the text Encourages careful drafting, to write good texts Promotes clear laws that anyone can understand Can be a ploy of judges to ignore Parliament’s wishes (elected representatives of the people) Case: Whiteley v Chappell (1868) / R v Harris (1836) / Fisher v Bell (1961) → THE GOLDEN RULE = The rule essentially requires a court to look at the words in their context if the literal rule leads to an absurd result - Even though the formulation of the rule by Lord Wensleydale makes clear that the golden rule should only be applied to avoid an absurdity in the interpretation, there is no test to determine what is an absurdity. It allows judges some flexibility in interpreting the statute by defining broadly what is and what is not an absurd outcome. Case: Adler v George (1964) / Re Sigsworth (1935) / Keene v Muncaster RDC (1980) / R v Allen (1872) lOMoARcPSD|1081162 → THE MISCHIEF RULE = Deals with statutes that deal with a problem or lack of a rule in the common law. And then the office of the Judges is to make such construction as shall suppress the mischief and advance the remedy. Case: Smith v Hughes (1960) → THE PURPOSIVE APPROACH = can be used in the absence of ambiguity or uncertainty = uses extrinsic materials to aid the interpretation (e.g. Hansard) = It is a controversial approach as it goes against the tradition in English Law – a kind of heresy - - Uses extrinsic materials to aid the interpretation (e.g. Hansard = official record of Parliamentary debates.) Extrinsic aids are matters which may help put an Act into context. Sources include previous Acts of Parliament on the same topic, earlier case law, dictionaries of the time, and the historical setting. In addition, Hansard can now be considered. Hansard is the official report of what was said in Parliament when the Act was debated. Extrinsic aids also include international conventions, regulations or directives which have been implemented by English legislation. It is thought that English law should be interpreted in such a way as to be consistent with international law. Section 3 of the Human Rights Act 1998 expressly states that as far as it is possible to do so, an Act must be read and given effect in a way which is compatible with the rights in the European Convention on Human Rights => applies to any case with a human rights issue. Case WHAT DO YOU THINK ABOUT WHEN I SAY “STAB, CUT, WOUND”? => CASE R V HARRIS, LITERAL RULE → THE LITERAL RULE = Using the ordinary and natural meaning of the words used. There is no ambiguity. - try to find out what the lawmaker was trying to achieve with the text, by looking at the actual words. If this is really the idea/purpose/intention of Parliament on how to understand their texts, is doubtful. A text that comes out of Parliament should be able to be read through the eyes of a normal person. With this method, they only look at certain words instead of the entire text which is unreasonable. advantages disadvantages -Respects supremacy of parliament -Can lead to absurd results - Sticks to the basics of the text - Ignores the limitations and ambiguities inherent in the English language lOMoARcPSD|1081162 Encourages careful drafting, to write good texts Promotes clear laws that anyone can understand - Can be a ploy of judges to ignore Parliament’s wishes (elected representatives of the people) R v Harris (1836) 7 C & P 446 In this case an Act was passed making it an offence to “stab, cut, or wound any person”. Harris bit off his victim’s nose. Did he commit the offence? The court held that he would have required use of an instrument/implement (e.g. a knife). His conviction was quashed. → You cannot stab, cut, or wound any person. Court held that it was required to use an instrument/implement Under this rule the judge considers what the statute actually says, rather than what it might mean. In order to achieve this, the judge will give the words in the statute a literal meaning, that is, their plain ordinary everyday meaning, even if the effect of this is to produce what might be considered as an otherwise unjust or undesirable outcome. The literal rule says that the intention of Parliament is best found in the ordinary and natural meaning of the words used. WHAT WAS THE BIGGEST RESULT OF THE NORMAN CONQUEST? → This period is the one that led to the common law system. → 1 geïntegreerd systeem, van allemaal local law naar 1 common law voor het hele land → Continental feudal law came together Norman conquest and birth of common law The British, when they invaded a country, they looked if they had a system, with a working law-system and all of that, they let them control their country, as long as they didn’t oppose them as leaders. The French on the other hand occupied control and oppressed other systems and implemented their French systems onto others. You still see it now. The Normans were like the Brits, they confiscated land, centralized and took control, but they didn’t get rid of the (law)system that was working. That’s why in the 13 th century royal courts developed out of the king’s council (curia regis) at Westminster. They (Norman) disbanded the rebels and created a strong central government. Everyone could do their thing as long as they knew who was in charge. (two most important elements). Common law developed in England after the Norman Conquest 1066 (Battle of Hastings). Norman Kings did not try to do away with the existing laws, changes are incremental (mostly in land law, criminal law and tort law)((supra)). But it was easier to accept a legal system built on the existing roots than an entire new system, so the king at least tried to give an impression that what was being done was built on practice within the existing system. Groups of rebels were disbanded. New state organization: strong central government, king, army and courts. There were three kinds of courts: CENTRALISED - King’s Courts: developed out of King’s council = a centralised system of courts based on the power and authority of the kingone base in London. lOMoARcPSD|1081162 - Ecclesiastical Courts 1 : represented in London, but also representation throughout the land. DECENTRALISED - Local Courts: authority of local rulers, barons who own the territory can settle disputes between those living there. a centralized administration was set up under the King’s authority (Curia Regis – King’s Council) with the local noblemen and spiritual leaders. The entire court came to the people, and it was mostly about revenues, not particularly fun for the population to be looking forward to. The court moved through the country from city to city. Continental feudal law came together with the Normans. Land law is still incredibly relevant today. For e.g. the land where Stonehenge is situated is owned by someone, and this person prevented the access to people who celebrated a festivity of Stonehenge. If the owner wants to remove someone, he can, cause its private property. Landlord and property-owning matters are still very relevant today. MAGISTRATE’S COURT & CROWN COURT → MAGISTRATES’ COURTS This court is embedded in local society and magistrates are not lawyers, they should reflect the local community ensures that law can be applied differently concerning the different and local situations.➔ Peer review. Deals with criminal cases, but also some civil cases: - Family Proceedings Court - Non-payment of certain fees/taxes (council tax, TV license) - Licensing Who does the judging? - Three lay magistrates (unpaid only their expenses / not professional they have to represent local community) + Court Clerk with a legal background, or - District judge Problem: in practice, magistrates aren’t representative, since they are mostly white and middle aged. Many of them are teachers, but since the magistrates are unpaid and they sit in court around 2 days a week, also many of them are young retirees do they really represent today’s multicultural British society? Most cases aren’t difficult and don’t require legal knowledge can be solved by the magistrates on their basic common sense and local knowledge. If there’s more legality to the case or it’s more complex, a district judge is available (a trade lawyer). Appeals against decisions from this court go to the High Court. Nearly all criminal cases (over 95%) start in this court, however serious or high up the case can go and nearly 90% will be completed in this court = very important part in the criminal justice system. lOMoARcPSD|1081162 Summary offences (proceedings without a jury) – minor offences e.g. road traffic, common assault, minor criminal damage. Either way offences tried summarily e.g. theft, actual bodily harm (abh), … Accused can insist on a trial ON INDICTMENT at Crown Court (with jury) or the magistrates may refer the case to Crown Court for trial or sentence. - A Court where criminal proceedings are commenced before Justices of the Peace or a District/Deputy District Judge who examine the evidence/statements and either deal with the case themselves or commit to the Crown Court for trial or sentence. Also has jurisdiction in a range of civil matters e.g. family disputes, traffic matters,… The vast majority of criminal cases starts and ends here tried by Magistrates/Justices of the Peace whom are local people, e.g. the butcher, baker, … i.e. non-lawyers, lay judges who decide about guilt. Magistrates are guided by a court clerk who had a legal training. They do everything, i.e. motivate, decide the sentence,… Maximum sentences is 6 months (or 12 months in case of multiple offences). If the Magistrate sees a higher sentence more fit or it’s a more serious crime, then the case is send up to the Crown Court. It’s always possible to go on appeal against the judgements of the Magistrates’ Court. A Clark of the court will help in the court. They advise the Justices of the Peace. The whole system is based on cases. → CROWN COURT Crown Court = a Court that deals with all crime committed for trial by Magistrates’ Courts. Cases for trial are heard before a judge and jury. The Crown Court also acts as an appeal Court for cases heard and dealt with by the Magistrates. The Crown Court can also deal with some civil and family matters. Offences: ● Summary offence - A criminal offence which is triable only by a Magistrates’ Court ● Indictable offence - A criminal offence triable only by the Crown Cour ● Either-way offence - An offence which may be dealt with either summarily by the magistrates or by committal to the Crown Court to be tried by jury ● Sentence – the punishment given by the Magistrate or Crown Court Judge. A sentence is not the verdict what the judge says ● Charge - A formal accusation against a person that a criminal offence has been committed The judge = the arbiter of law there are 3 types of judges: - High Court Judges: class 1 offences, e.g. murder, treason (verraad), … - Circuit Judges: class 2 (e.g. rape) and class 3 offences - Recorders: class 3 offences, e.g. kidnapping, robbery, … The jury = arbiter of fact - Consists of 12 people recruited from the general population (in theory from the electoral role) when you’re called to serve, it’s your duty to do so. lOMoARcPSD|1081162 ● ● Got to a point where everyone had a ‘good’ excuse to get out of fulfilling their duties. They said their jobs were too important to leave for the duration of the trial. That’s when the system was tightened, because the middle class was getting off and the point of a jury is that various people would serve as a juror. There are some exceptions: e.g. when you’re a barrister, justice would not be served when he'd sit in the jury, when the accused lives/lived very close to your home, … EIUSDEM GENERIS REGEL → THREE LANGUAGE RULES 1. Ejusdem generis (Eiusdem generis) - = where a list of words is followed by general words, these general words are limited to the same kind of items as the specific words. - Powell v Kempton Park Racecourse [1899] AC 143: a ring at a racecourse was held not to fall within the terms ‘house, office, room or other place’ because the list of words indicated that ‘other place’ should be construed as an indoor place. - Lane v London Electricity Board [1955] 1 W.L.R. 106: “shock, burn or other injury” does not include a fall. - DPP v Jordan [1977] AC 699: publication of “obscene” material is legal if done “in the interests of science, literature, art or learning, or of other objects of general concern”. The defence that “the material provided sexual deviants with an outlet for their frustrations was not ejusdem generis with science, literature, art or learning”. 2. Expressio unius est exclusio alterius - = the express mention of one thing excludes others. Where there is a list of words which is not followed by general words, then the Act applies only to the items in the list specific words exclude all other kinds of generalities. - R v Inhabitants of Sedgley (1831): use of words ‘lands, houses and coalmines’ excluded application to other types of mines. - R v Immigrations Appeals Adjudicator, ex parte Crew (1982): the definition of "parent" is to be found in the Immigration Act 1971, and reads as follows: (a) 'parent' includes the mother of an illegitimate child;....“. It did therefore not include the father of an illegitimate child as this was not mentioned. 3. Noscitur a sociis - = words take their meaning from their context. They must be read and interpreted in the context. This involves considering other words in the same section or other sections of the Act. The rule requires to understand the word ‘by the company they keep’, that is, the other words in the provision or the Act. - Muir v Keay (1875): the purpose of licensing theatrical or musical entertainment did not fall within the words of the Act covering houses ‘for public refreshment, resort and entertainment’, because the word ‘entertainment’ in the Act referred to refreshment houses, receptions and accommodation of the public. So entertainment is read as being in the context of refreshment (food and drink). Therefore a license was required for the cafe as entertainment in this context was not theatrical or musical but simply hosting patrons. BRISTOL CASE (uitgebreider dan hierboven) → Court of Appeal Bound by the decisions of the House of Lords/Supreme Court lOMoARcPSD|1081162 Bound by own previous decisions UNLESS in the following cases (was established in Young v. Bristol Aeroplane Co (1946) AC 163 per Lord Greene MR): - The Court of Appeal is not bound by their previous decision if that decision was given ‘per incuruam’, meaning that the case didn’t take all relevant law into account AND has a major defect of material reasoning: - The Court of Appeal is not bound by their previous decision if she has to choose between conflicting decisions (= suppose that the Court of Appeal has to deal with a certain case. But in that case, 2 precedents that the court has made in the past conflict, could applied to the present case. It’s possible because every case is different, with a different set of facts and different applicable law. The problem is that those 2 precedents contradict each other. Obviously, the court can’t follow both precedents, cases, because they conflict. Than I’m allowed to chose one. If that’s the case, the Court of Appeal is allowed to follow one precedent and ignore the other.) - The Court of Appeal is not bound by their previous decision if that previous/earlier decision was not expressly overruled by the House of Lords or Supreme Court, but is contrary to a House of Lords or Supreme Court’s decision. The Court of Appeal had made a certain decision in past, by which she is technically bound. But it appears that, later, the House of Lords or Supreme Court took a decision which is against that decision/precedent from the Court of Appeal. But that precedent from the Court of Appeal has never been appealed to the House of Lords or Supreme Court. Something else has come up in the house of lords in a different case, which means me following this one in a case won’t make sense anymore because of a decision of the house of lords which came afterwards, which will overturn any decision I take now if I base it on the old binding precedent from myself. - They’re basically avoiding the problem where they apply the letter of binding precedent so strictly that they end up following a case which they know will be overturned on appeal because the house of lords already made a principle, passed out a binding decision, which makes it clear it’s going to be overturned on appeal. So it would be ridiculous for the court of appeal to follow it’s own decision just because it has to. So, there are actually 3 very logical exceptions, but it’s not the kind of thing the court of appeal is supposed to decide for itself so the house of lords said we will allow these exceptions to the horizontal binding precedent for the court of appeal but that’s it. So those are the only basis upon which the court of appeal can go against their own decisions. It’s logic because it’s going to be overturned by the house of lords anyways. STEPHEN LAWRENCE CASE (WELKE HERVORMINGEN→DOUBLE JEOPARDY, MACPHERSON REPORT AND POLICE INQUIRY INTO UNDERCOVER POLICING) 22 APRIL 1993 Stephen Lawrence murdered The 18-year-old is stabbed to death in an unprovoked attack by a gang of white youths as he waits at a bus stop in Eltham, south-east London, with his friend Duwayne Brooks. 23 APRIL 1993 Suspects identified lOMoARcPSD|1081162 The day after the murder, a letter giving the names of the suspects is left in a telephone box. Police surveillance begins on their homes four days later. 4 MAY 1993 Family express frustrations Stephen’s family hold a press conference to complain not enough is being done to catch the killers. 7 MAY–23 JUNE 1993 Suspects arrested and two charged Police arrest brothers Neil and Jamie Acourt, David Norris, Gary Dobson and Luke Knight, and search their homes. Neil Acourt and Luke Knight are identified by Duwayne Brooks at ID parades as part of the gang responsible. 29 JULY 1993 Charges dropped The Crown Prosecution Service drops the prosecution saying the ID evidence from Duwayne Brooks is unreliable. 22 DECEMBER 1993 Inquest halted after the family’s barrister, Michael Mansfield QC, says there is “dramatic” new evidence. APRIL 1994 CPS refuses to prosecute saying there is insufficient evidence to bring charges based on the new evidence. SEPTEMBER 1994 Private prosecution launched Stephen’s parents, Doreen and Neville Lawrence, launch a private prosecution against Gary Dobson, Luke Knight and Neil Acourt. 18– 25 APRIL 1996 Private prosecution fails The murder trial begins against Neil Acourt, Luke Knight and Gary Dobson at the Old Bailey, but the case collapses when Mr Justice Curtis rules that identification evidence from Brooks is inadmissible. Acourt, Knight and Dobson are found not guilty. Not guilty verdicts had to be entered at the direction of the judge after legal arguments. 13 FEBRUARY 1997 Inquest verdict. The inquest resumes and the five suspects refuse to answer questions. A verdict of unlawful killing “in a completely unprovoked racist attack by five youths” is delivered by Sir Montague Levine 14 FEBRUARY 1997 Daily Mail front page The Daily Mail newspaper uses its front page to name the five men it says killed Stephen Lawrence. It invites them to sue if it is wrong FEBRUARY 1997 Doreen Lawrence has initial meeting with Jack Straw, Home Secretary MARCH 1997 lOMoARcPSD|1081162 Police Complaints Authority investigation…nine months later highlights “significant weaknesses, omissions and lost opportunities” but it says there is no evidence of racist conduct. JULY 1997 Public inquiry announced: judicial inquiry into the killing and subsequent investigation, to identify lessons for police in dealing with racially motivated crimes. To be chaired by Sir William Macpherson, a retired High Court judge. MARCH 1998 Inquiry opens JULY 1998 Police apology The Lawrence family call on the Met Police Commissioner Sir Paul Condon to resign. He apologises to them when he appears in October, admitting there had been failures FEBRUARY 1999 Macpherson report published It accuses the Metropolitan Police of institutional racism and makes 70 recommendations. MACPHERSON REPORT The Macpherson inquiry was set up to “inquire into the matters arising from the death of Stephen Lawrence on 22 April 1993 to date, in order particularly to identify the lessons to be learned for the investigation and prosecution of racially motivated crimes”. “Stephen Lawrence's murder was simply and solely and unequivocally motivated by racism. It was the deepest tragedy for his family. It was an affront to society, and especially to the local black community in Greenwich. Nobody has been convicted of this awful crime. That also is an affront both to the Lawrence family and the community at large.” “The conclusions to be drawn from all the evidence in connection with the investigation of Stephen Lawrence's racist murder are clear. There is no doubt but that there were fundamental errors. The investigation was marred by a combination of professional incompetence, institutional racism and a failure of leadership by senior officers. A flawed MPS review failed to expose these inadequacies. The second investigation could not salvage the faults of the first investigation.” There were 70 recommendations made, 67 of them led to specific changes in law or practice. MAY 2004 Trial ruled out The CPS finally announces there is insufficient evidence to prosecute anyone for Stephen’s murder following a review. lOMoARcPSD|1081162 APRIL 2005 Double jeopardy scrapped Government drops the legal principle which prevents suspects being tried twice for the same crime subject to new evidence. DOUBLE JEOPARDY No person can twice ‘be put in jeopardy of life or limb’ for the same offence. Defence to prosecution, a person can’t be tried twice for the same offence. Position changed under s75 of the Criminal Justice Act 2003 Retrial is possible for serious offences An application for a retrial must be made to the Court of Appeal The Director of Public Prosecutions can give permission to apply if: ● there is new and compelling evidence ● it is in the public interest ● any trial would not be inconsistent with obligations of the United Kingdom under Article 31 or 34 of the Treaty on European Union (as it had effect before 1 December 2009) or Article 82, 83 or 85 of the Treaty on the Functioning of the European Union relating to the principle of ne bis in idem. FEBRUARY 2009 Report anniversary Ten years on from the Macpherson inquiry, a report from a member of its panel, Dr Richard Stone, says the police have made significant progress in reforming but charges of racism remain. Justice Secretary Jack Straw says the Met is no longer institutionally racist, but Stephen’s mother says police still fail black Britons. MAY 2011 Two to face trial Gary Dobson and David Norris are to face trial over the murder of Stephen Lawrence following a review of new and compelling forensic evidence. The Court of Appeal decides there is enough new and substantial evidence to allow Dobson’s acquittal to be quashed. The pair had been charged the previous September. NOVEMBER 2011 Trial begins The trial of Dobson and Norris begins at the Old Bailey. The jury hears that Stephen’s DNA was found on the defendants’ clothes. JANUARY 2012 Guilty of murder Dobson and Norris are both found guilty of murder at the end of a six-week trial into the death of Stephen Lawrence. During the trial, the court hears that microscopic evidence found on clothing belonging to the accused links them to the murder. The jury takes twoand-a-half days to reach its decision. Both men receive life sentences; Dobson is jailed for a minimum of 15 years and two months, Norris for 14 years and three months. lOMoARcPSD|1081162 JUNE 2013 Former police officer ‘spied’ on Lawrence family The prime minister calls for an immediate investigation into reports the police wanted to smear Stephen Lawrence’s family. The Guardian claims former officer Peter Francis went undercover to infiltrate the family’s campaign for justice in 1993. Mr Francis tells the paper and Channel 4’s Dispatches programme he was looking for “disinformation” to use against those criticising the police. MARCH 2014 A new public review A review into the original murder investigation – by the barrister Mark Ellison – finds that an undercover Met Police officer worked within the “Lawrence family camp” while an inquiry into the handling of the murder was underway. A separate report into Operation Herne – an investigation launched by the Met into the allegations made by former undercover officer Peter Francis finds no evidence to back claims he was tasked to smear the Lawrence family but it does find failings regarding allegations about undercover officers indulging in inappropriate sexual relationships. Home Secretary Theresa May announces a new public inquiry into undercover policing. MARCH 2015 Public Inquiry into undercover policing A public inquiry chaired by Lord Pitchford into the abuse of undercover techniques by police officers is launched. While its scope is wide it includes, for example, the use of dead children’s names in fake identities – one of its main focus points is the infiltration of the Lawrence campaign for justice. The inquiry will examine the actions of the Special Demonstration Squad, the National Public Order Intelligence Unit, and other undercover policing. Matters which have led to the creation of the inquiry ● failures to disclose material to be used in criminal proceedings; ● deception of courts; and ● concerns around the deployment of undercover police officers in Stephen Lawrence’s family. 8 SEPTEMBER 2017 Lammy Review is published David Lammy MP publishes his independent review into the treatment of, and outcomes for, BAME individuals in the criminal justice system. NOVEMBER 2020 Undercover Policing Inquiry hearings start Chairman is Sir John Mitting (replaced Lord Pitchford in 2017) TRUST (PARTIES, CONCEPT, EXAMPLE) = the epitome of an equitable remedy Trusts involve the division of legal interest of a property and equitable interests Two types of trust: - Express - Implied Trusts create obligations and rights There can be a variety of interests in a trust property Transfer of interest in property lOMoARcPSD|1081162 → express trusts The settlor expressly transfers legal title of the asset to the trustee who manages it for the benefit of the beneficiary. You can’t be a beneficiary if you’re the settlor. Can be public or private. They can be inter vivos (made during lifetime of settlor, e.g. transfer a family home through a trustee who owns a family home but not the property) or testamentary (through settlor’s will, taking effect upon death). They can be fixed or discretionary, bare or protective. Discretionary means that you don’t know who the beneficiary is going to be and don’t know how much he is going to get. A bare trust: trustee does nothing except own the property, it goes straight to the beneficiary. Sort of a legal deposit for the ownership Protective trust: protects the beneficiary of themselves. → implied trusts Trusts which are not expressly created. - Statutory trusts: ex under the Administration of Estates Act 1925 - Resulting trusts: where there has been a failure to validly create a trust or property is voluntary transferred to another or purchased in the name of another. Was not meant to be a trust - Constructive trusts: based on the presumed intention of the parties. For example where it would be unconscionable for one person to deny that another person has an interest in the proper