Unit 1 & 2

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Criminal Law

A legal wrong which may be followed by criminal proceedings. A guilty verdict may result in punishment.

Actus Reus - The guilty act.

Mens Rea - The guilty intention.

Summary offences - minor crimes - Magistrates' Court.

Triable either way offences - mid range crimes - Magistrates' or Crown Court.

Indictable offences - serious crimes - Crown Court.

Magistrates' Court can sentence up to 6 months for an offence and fine up to £5,000.

Magistrates' Court, Crown Court, High Court, Court of Appeal, House of Lords (Supreme Court), European Court of Justice.

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How laws are made

Ideas and discussion

Green paper

White paper

Drafting

First reading

Second reading

Committee stage

Report stage

Third reading

Royal assent

Parliament Acts 1911 & 1949 - Commons gets the final say on all changes to the Bill

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The Theft Act 1968

Section 1 - Theft - The dishonest appropriation of property belonging to another with the intention to permanently deprive the other of it.

Section 8 - Robbery - Stealing and immediately at the time of doing so, using force or the threat of force to aid the theft.

Section 9 - Burglary - Entering a building or part of a building as a trespasser with the intention of causing gbh, criminal damage or theft.

Section 10 - Aggravated burglary - Committing burglary and at the time of doing so, you have with you a fire arm, imitation firearm, explosive material or weapon of offence.

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Criminal Law - Sentencing

Retributive theory - The idea that punishment should be enforced whether useful or not.

Utilitarian theory - The idea that punishment should be useful.

Mentally ill offenders - They should be treated not punished.

Young offenders - Sentenced to community orders .e.g. warnings, attendance centre orders .etc.

Custodial sentencing - Prison, young offenders institute, detention and training orders .etc.

Community sentencing - Unpaid work .etc.

Fines - Can vary in amount.

Discharges - Either conditional or absolute.

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The Homicide Act 1957

Murder - When a person of sound mind unlawfully kills a creature in being under the Queen's peace with malice aforethought express or implied.

Express - The intention to kill.

Implied - The intention to commit GBH

R v Vickers (1957) - A shoplifter caught by an old lady struck her a number of blows which killed her. Vickers intended to commit gbh but was convicted of murder.

R v Woollin (1998) - Woollin threw his baby into a pram. He did not mean to harm the baby. Convicted of manslaughter.

R v Maloney (1985) - Maloney shot his step-father when having a competition to see who could load their gun the fastest. Convicted of manslaughter as he did not mean to shoot his step-father.

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Manslaughter

 Voluntary manslaughter is the killing of a human being in which the offender had no prior intent to kill and acted during "the heat of passion", under circumstances that would cause a reasonable person to become emotionally or mentally disturbed.

Involuntary manslaughter  death as a result of the Defendant's  illegal act or as a result of the Defendant's irresponsibility or recklessness.

R v Mitchell (1983) - Mitchell punched a man who then fell on an elderly woman and broke her leg. The woman later died of complications caused by her broken leg. Mitchell was charged with involuntary manslaughter.

R v Adomako (1994) - An anesthetist failed to notice when a tube supplying oxygen to his patient had become un-attached. The patient died and Adomako was charged with involuntary manslaughter.

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Defences to Murder: Homicide Act 1957 - Diminished

Diminished responsibility - When the defendant is suffering from an abnormality of mind caused by disease, injury or arrested or retarded development of mind.

Suicide pact - When one person kills the other but survives himself

To rely on this defence :

1.An abnormality of mental functioning caused by a recognised medical condition.

2. Which provides an explanation for the defendant’s acts or omissions in being party to the killing.

3. Which substantially impaired his/her mental ability to either:

a) Understand the nature of their conduct, 

b) Form a rational judgment or

c) Exercise self–control

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Non-fatal offences to the person

Assault - To cause someone to fear that force will be used against them. R v Ireland (1997).

Battery - To use unlawful force on a person. Colins v Wilcock (1984).

Assault occasioning Actual Bodily Harm - An assault or battery that causes injury.

R v Miller (1954).

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Tort

Tort - A civil wrong against an individual.

Negligence = Forseeable harm to your 'neighbour'.  it is just and fair to impose a duty. 

(4C harm neighbour just and fair)

Case that established duty of care/neighbour pp: Donoghue v Stevenson (1932) (Snail)

Most recent case : Caparo v Dickman (1990)  (Cap on a duck man)

The neighbour principle - anyone affected by your actions - Lord Atkin.

You must prove:

  • You are owed a duty of care.
  • There was a breach of that duty.
  • The breach caused you to suffer damage.

Duty of Care - Employee and employer, innkeeper and guest, manufacturer and consumer .etc.

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Vicarious Liability

When someone is automatically responsible for someone elses torts. There must be a special relatioship .e.g. employer and employee. The employee must be acting in the course of employment.

Limpus v London General Omnibus Co (1862).

Justifications for vicarious liability -

  • Employers are in a better financial situation to pay damages.
  • Employers get profits from work so should deal with losses too.
  • Employers should make sure they enforce Health & Safety.
  • Employers should only employ competent workers.
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Occupiers Liability

The Occupiers Liability Act 1957 as amended by the Occupiers Liability Act 1984.

In certain circumstances the occupier of the property will be liable for injuries suffered by visitors.

Glasgow Corporation v Taylor (1922).

A person used to be responsible for merely lawful visitors. Now you are responsible for both lawful and unlawful visitors.

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Defences to Tort

Consent - You consent to the risk of injury .e.g. injuring yourself at a sporting event. There are 2 exceptions to consent - Rescue cases and Employees.

Act of God - Act of nature .e.g. an earthquake. No one is responsible.

Necessity - To prevent a worse evil from happening.

Inevitable accident - It could not have been avoided.

Intervening act - Where the chain of events was caused by the defendant but an intervening act caused the final damage.

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Trespass

Trespass to Goods

Direct and unlawful damage to or interference with goods in the possession of another person.

Goods - movable items of property.

Trespass to Land

Unlawful physical interference with land or buildings in the possession of another OR an unlawful entry onto land or buildings.

Trespass to person

False imprisonment, assault, battery.

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The Defamation Act 1952

Making and publishing a false statement about another person which damages that person's reputation.

Libel - defamation in a permanent form - newspapers, magazines, pictures, films .etc.

Actionable per se.

Monson v Tussauds LTD (1894).

Slander - Defamation in a non-permanent form - speeches, gestures .etc.

Not actionable per se - You must prove actual loss

HIGH COURT!

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Contract

  • Offer and Acceptance, Consideration, Capacity to make a contract, Intention to create legal relations

Invitatation to treat - This is NOT an offer -  items for display in a shop, items in a catalogue etc - Fisher v Bell (1961).

Reward poster - This IS an offer - Carlill v Carbolic Smoke Ball Co (1893).

Acceptance must be comunicated! - Felthouse v Bindley (1862).

Postal acceptance - Acceptance is when the letter is posted - Adams v Lindsell (1818).

Consideration - Gifts are not contracts! Consideration must be more than a duty.

Capacity to make a contract - Minors can only enter into contracts for neccessaries or contracts of beneficial service - Nash v Innman (1908).

Intention to create legal relations - Social and domestic agreements aren't always binding - Balfour v Balfour (1919).

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Contract - Sale of Goods Act 1979 - amended by CRA

The Sale of Goods Act 1979 since amended by Consumer Rights Act 2015**

Section 12 - The right to sell.

Section 13 - Goods must match description.

Section 14 - Goods must be of satisfactory quality.

Section 15 - Sale by sample.

The Consumer Protection Act 1987

Defective products .etc. Damages must amount to at least £250.

Unfair Terms Contracts 1999

Not in plain language, no chance to see goods before buying .etc. ONLY applies to businesses.

Supply of Goods and Services Act 1982

Protects against bad workmanship or provision of services .etc.

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Employment Law

Employment contracts must be in writing.

Health and Safety at Work Act 1974

Discrimination in employment:

  • Race Relations Act 1976
  • Sex Discrimination Act 1975
  • Equal Pay Act 1970
  • Disability Discrimination Act 2005.

Tribunal - no legal representation, quicker and cheaper than courts.

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High Court

Queens Bench Division - Contract, banking, shipping .etc.

 OR

Defamation cases where a 12 person jury can hear the case.  There is a  'right' that a jury could hear fraud cases,, false imprisonment, malicious prosecution, however, the Administration of Justice (Miscellaneous Provisions) Act 1933, gave discretion to a judge to decide whether a jury hears the case or not.  Less than 1% of civil cases are heard by a jury.

Chancery Division - Sale or exchange of land, mortgages, trusts, bankruptcy, wills, company law - 

Family division - Marriage, divorce, children .etc. - 

Judicial Review is heard in the High Court

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Youth Court

For people aged 10-17.

Either 3 Magistrates OR a district judge (crime).

If defendant is under 16, parents must attend. Parents of 16 or 17 years olds may also be ordered to attend.

No members of public allowed!

No press!

Informality is encouraged.  The Justices do not sit up high but at the end of a table.  

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Judicial Precedent

Ratio Decidendi - the essential point of the decision. It is binding on lower courts.  (High Court and above) 

Obiter Dicta - a judge's expression of opinion uttered in court or in a written judgement, but not essential to the decision and therefore not legally binding as a precedent.  An incidental remark

Practise statement - Allows the House or Lords (Supreme Court) to overrule their past decisions.

Advantages of precedent -

  • Consistency, fairness and provides examples for advising clients.

Disadvantages -

  • Rigid, unfair and complex.
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Solicitors

To qualify - Key Stages:

  • qualifying law degree – three years full-time

  • Legal Practice Course – one year full-time

  • period of recognised training incorporating the Professional Skills Course – two years full-time

  • admission to the roll of solicitors 

  Alternatively, CILEX.

Solicitors are regulated by the Law Society.  They give legal advice and can advocate in Magistrates' Court. The can now advocate in all courts if they pass an exam. Since 1999, they have full rights of audience after qualifying as a solicitor.

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Barristers

To Qualify as a Barrister

  • Law Degree or GDL
  • Join an Inn and undertake the Bar Professional Training Course 
  • Pupillage
  • Called to the Bar
  • Tenancy

Barristers are governed by the  General Council of the Bar.

Barristers work in chamber and follow the cab rank rule.

They appear in court and advise clients.

After 10 years they can apply to be a QC (Queen's cousel). QCs are selected by interview.

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Free Legal Help

Citizens Advice Bureaux - Staff aren't legally qualified. Local advice agencies. Some CAB's have specialists who can assist with employment, benefits advice and family law.

Law centres - Staff are qualified in law.  Free

Community legal advice - Free legal advice over the phone.

Duty solicitor - Free legal advice upon arrival at a police station after arrest.

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Bail

The Bail Act 1976

Being allowed liberty rather than custody while awaiting the next stage in the Criminal Justice Process. Bail can be conditional or unconditional.

Bail conditions-

  • Hand in passport.
  • Reside at a bail hostel.
  • Report to a police station daily.
  • Supply a surety.
  • not to contact a person or persons

A person must be released unless:

  • Their name and address aren't know.
  • It's necessary for their own protection.
  • To prevent them from injuring someone, damaging property, absconding or interfering with the Criminal Justice Process.
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Bail : Surety and Appeals

Surety - Someone who promises that he will pay the court a sum of money if the defendant absconds. This promise is called a recognisance. If the D skips bail the person loses the money.

Appeals - Someone who is refused bail can appeal to the Crown Court. However, you can only do this if you are charged with a crime that has a maximum penalty of 5 years imprisonment or more.

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Marriage

Previously definted as - voluntary union for life of one man and one woman to the exclusion of all others. Now Marriage (Same Sex Couples) Act 2013 in force.  

3 legal requirements of a marriage - if not followed the marriage is void -

  • Aged 16 or over (parental consent is needed if under 18).
  • No close blood relationship - you cannot marry your sibling, your grandfather, aunt, uncle, your child, etc.
  • Single (not already married/Bigamy)

Formalities or a marriage - if not followed the marriage is voidable -

  • Authorised building.
  • Authorised Person.
  • Correct time (between 8am and 6pm).
  • Preliminary procedures (license, banns published, witnesses .etc).
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Annulment

The marriage is void if -

1. are closely related;

2. were under 16 at the time of the marriage; or

3. were already married or in a civil partnership at the time of the marriage

Annulment must be within 3 years of marriage.

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Annulment 2

A marriage is voidable (defective) if:

1. the marriage has not been consummated since the date of marriage due to incapacity of either party.

2. the marriage has not been consummated since the date of the marriage due to the wilful refusal of the other party.

3. either of the parties did not consent to the marriage, for example a forced marriage.

4. either of the parties had a sexually transmitted disease at the time of the marriage and the other party was not aware of this.

5. the woman was pregnant by another man at the time of the marriage.

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Divorce

A legal ending to a marriage.

Petitioner presents the petition to the court.

Respondent - The person being divorced.

To get a divorce you must prove irretrievable breakdown -

  • Adultery.
  • Unreasonable behaviour.
  • Desertion for 2 years.
  • Living apart for 2 years and agreeing to divorce.
  • Living apart for 5 years.

Decree nisi --> 6 weeks later --> Decree absolute --> End of marriage.

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Maintenance

A financial settlement usually from a husband to maintain a wife and family.

+ A lump sum.

+ A transfer of property.

Children:

  • Residence order. Lives with Order
  • Contact order. Spends time With Order
  • Prohibited Steps order (can't go abroad, etc).
  • Specific issue order (e.g. what school the child must attend).

Child Maintenance and Enforcement Agency ensure that maintenance is paid.

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Wills

Will /testament - A formal declaration of what you want to happen to your property when you die. It can be revoked by i) making a new will, ii) destroying the will, iii) getting married or iv) getting divorced.

Testator - A male making a will.

Testatrix - A female making a will.

3 requirements - Testator must be -

  • At least 18.
  • Of sound mind.
  • Acting of his own free will

(18 sounds free)

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Wills 2

Privileged Wills- Wills made in circumstances when the formalities of starting a will aren't practical (armed forces).  Can be oral. formalities not required.

Testator must be at least 14.

Re Jones (1981) - A soldier made an oral will and was later killed whilst fighting in war.

Changing a will

Revoke - New will, marriage, divorce .etc.

Codicil - Alterations to a will.

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CPS

Crown Prosecution Service - Set up in 1986.

They are independent from the police.

The CPS prosecute offenders.

They decide whether to prosecute using -

  • The Evidential test (is there enough evidence?)
  • The Public Interest test (is it in the public interest to prosecute?)
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The Police and Criminal Evidence Act 1984

Section 1 - Stop and Search people and vehicles if there is reason to believe they are in possession or stolen goods or prohibited articles.

Section 2/3 - Office must give name and station and give reason for search. If not in uniform, officer may have to produce legal documents to prove who they are. Only coat and gloves can be asked to be removed.

Section 4 - Road checks.

Section 24 - Police + private citizens can make arrests.

Section 25 - Extra powers - If no name and address for suspect is given, if a false name is given, to prevent further damage or to protect a child or a vulnerable person.

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Small Claims

County Court before a District Judge

Heard in Judge's Chambers (his personal room)

No more than 1 day (usually 4 hours)

Claims up to £10,000 -Unless Personal Injury (up to £1000)

Most people represent themselves

Very informal and flexible procedure

No claim for costs allowed.

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GBH section 20 : OAPA 1861

GBH- Section 20 - To inflict a wound or other grevious bodily harm without intending to do so.

Triable either way

Mens rea = intention to cause some harm or recklessness to the victim, regardless of whether harm was actually caused. The defendant needn’t foresee serious injury, he must merely acknowledge the risk of some injury from his actions.

Psychiatric illness and disease transmission can also constitute s 20 GBH despite no 'force'

R v Burstow (1997) - 'inflict' serious mental illness

 R v Mohammed Dica (2003) - HIV positive passing on disease

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GBH section 18 : OAPA 1861

GBH Section 18 - (indictable only)

To cause grievous bodily harm with the intention to cause serious injury

Maximum penalty = life

R v Belfon (1976)  recklessness isn’t enough – there must be proof of intention. This may be identified by planned or repeated attacks, prior threats, choosing a particular weapon deliberately or adapting an object to use it as a weapon

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Wills - Witness Requirements

Witnesses to a Will

  • at least 2
  • must see the signature or mark but not necessarily being made
  • must be competent- no set age limit
  • cannot benefit from the will - Ross v Caunters (1979),

unless there's at least 2 who don't benefit - Wills Act 1968

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LAY PEOPLE IN THE LAW

are not legally qualified

are not paid for their time spent in Court

are part time

share their decision making

Magistrates (3) and Jurors (12)

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WHY DO WE NEED LAW?

1. Prevents chaos

2/ Regulates relationships:

 Personal (age to marry, how belongings are distributed after death or marriage, etc)

Business (your rights as consumer or owner)

3. Protects a citizen's rights and freedoms and balances them against necessary restrictions

Law ensures a fair and free society and preserves the effecient functioning of society

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PUBLIC LAW

Involves the Governement/State and its dealings with all citizens/general public eg:

Criminal law,

Human Rights law,

Constitutional Law and

Administrative law

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CRIMINAL LAW

Involves the State & Citizens

its purpose is to maintain law and order, protect society and punish offenders

Aim of trial - determine guilt

Case is started by CPS (state)

Case will be heard in Magistrates or Crown Court

Standard of Proof - Beyond Reasonable Doubt

Decision = verdict

Setencing includes = fines, prison, community orders, discharge

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CIVIL LAW (PRIVATE LAW)

Private law is ALWAYS Civil

Involves individuals

Upholds individual's rights and can compensate

Determines liability if a breach of rights is determined

Case is started by Claimant (Individual)

Case is heard in County or High Court

Standard of Proof = On the Balance of Probabilities

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JURIES - Qualifications

Summonsed to attend court. Legal obligation.   Selected randomly from Electoral register

Qualifications : Juries Act 1974 (CJA 2003)

1. aged between 18 -70

2.Resident in Uk for min 5 years since age of 13

3. Must be on Electoral Register

Can be challenged at court if known by anyone at court or bias

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JURY - DISQUALIFICATION

Even if meet qualifications (18/70 5years since 13, electoral Reg) can be disqualified if:

1. on bail for criminal offence

2. has served prison sentence over 5 years

3. sentenced to custody or comm penalty within last 10 years

4. mentally ill

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JURY - DEFERRAL OR DISCHARGE

DEFERRAL: Any person can ask for jury service to be deferred. Discharge won't be granted if deferral possible.  Defer for up to 6 months.  Need good reason - prebooked holiday, operation, etc

DISCHARGE: Not physically able to sit in court, English not good enough, long term disability (blindness), Serving in Armed Forces if absence from duty prejudice the service

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ROLE OF JURY

1. Decide verdict in either way or indictable only cases in Crown Court according to their conscience - Bushell's Case (1670)  R v Young (1995) Ouija Board, R v Blythe (1998) weed/wife

2. Listen to evidence and decide facts

3. Ask Judge to explain things

4. Deliberate in Secret (Contempt of Court Act 1981

5. Apply law as directed by the Judge

6. Be unanimous in verdict. If over 2 hours deliberations can return majority verdict 10:2

7. Deliver verdict - the foreman deilvers and jury are discharged

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THE RULE OF LAW

The rule of law is one of the fundamental principles of UK' s unwritten or uncodified constitution .

The key idea of the rule of law is that the law should apply equally to all ,rulers and ruled alike.

1) No One Is ‘Above' The Law

2) Equality Before The Law

3) The Law Is Always Applied

4) Judge's Independence

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PROVOCATION : DEFENCE TO MURDER

Provocation -  sudden loss of control due to provocative conduct of another.  Provocation is ONLY a defence to murder - not for assaults or any other criminal offence.

The Jury will be asked: 

  1. Was the defendant provoked to lose his self-control? and

  2. Was the provocation enough to make a reasonable man do as he did?

in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."

The persistent crying of a 17-day-old baby could constitute provocation. The jury should have been directed to consider how the reasonable man would have responded. R v Doughty [1986]

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