AQA Law For As Sixth Edition - Jacqueline Martin

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British Library Cataloguing in Publication Data

A catalogue record for this title is available from the British Library
ISBN: 978 1 4718 5021 9

eISBN: 978 1 4718 5024 0
First Edition Published 2002

Second Edition Published 2005
Third Edition Published 2008
Fourth Edition Published 2010
Fifth Edition Published 2013
This edition Published 2015
Impression number 10 9 8 7 6 5 4 3 2 1
Year 2017, 2016, 2015
Copyright © 2013 Jacqueline Martin
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Contents
Preface
Chapter 1 Introduction to Law
1.1 Civil law
1.2 Criminal law
1.3 Differences between civil and criminal law
1.3.1 Purpose of the law
1.3.2 Person starting the case
1.3.3 Courts
1.3.4 Standard of proof
1.3.5 Outcome of case
1.4 Double liability
1.5 Human rights and the English legal system
1.5.1 The European Convention on Human Rights
1.5.2 Effect on the English legal process
1.5.3 Effect on sources of law
1.6 European Union Law
1.6.1 European Union treaties
1.6.2 Regulations and directives
1.6.3 The Court of Justice of the European Union
UNIT 1 LAW MAKING AND THE LEGAL SYSTEM

Chapter 2 Parliament
2.1 Parliament
2.1.1 House of Commons
2.1.2 House of Lords
2.2 Influences on Parliament
2.2.1 Law Commission
2.2.2 Political influence
2.2.3 European Union Law
2.2.4 Public opinion/media
2.2.5 Pressure groups
2.3 The pre-legislative procedure
2.3.1 Green and White papers
2.4 Formal legislative process
2.4.1 Introducing an Act of Parliament
2.4.2 Role of the House of Commons
2.4.3 Role of the House of Lords
2.4.4 The Parliamentary process
2.5 Example of an Act of Parliament
2.6 Advantages of law making in Parliament
2.7 Disadvantages of law making in Parliament
2.8 Parliamentary supremacy
2.8.1 Limitations on Parliamentary supremacy
Chapter 3 Delegated Legislation

3.1 Types of delegated legislation
3.1.1 Orders in Council
3.1.2 Statutory instruments
3.1.3 By-laws
3.2 Control of delegated legislation
3.2.1 Control by Parliament
3.2.2 The Legislative and Regulatory Reform Act 2006
3.2.3 Control by the courts
3.3 Advantages of delegated legislation
3.4 Disadvantages of delegated legislation
Chapter 4 Statutory Interpretation
4.1 The need for statutory interpretation
4.2 Literal approach versus purposive approach
4.3 The three rules
4.4 The literal rule
4.4.1 Cases using the literal rule
4.4.2 Advantages of the literal rule
4.4.3 Disadvantages of the literal rule
4.5 The golden rule
4.5.1 Cases using the golden rule
4.5.2 Advantages of the golden rule
4.5.3 Disadvantages of the golden rule
4.6 The mischief rule
4.6.1 Cases using the mischief rule
4.6.2 Advantages of the mischief rule
4.6.3 Disadvantages of the mischief rule
4.7 The purposive approach
4.7.1 Cases using the purposive approach
4.7.2 Advantages of the purposive approach
4.7.3 Disadvantages of the purposive approach
4.8 Finding Parliament’s intention
4.8.1 Internal aids
4.8.2 External aids
4.9 The effect of EU law
4.9.1 Interpreting EU Law
4.10 The effect of the Human Rights Act 1998
4.11 Rules of language
4.11.1 The ejusdem generis rule (of the same kind)
4.11.2 Expressio unius exclusio alterius (the mention of one thing excludes
others)
4.11.3 Noscitur a sociis (a word is known by the company it keeps)
4.12 Presumptions
Chapter 5 Judicial Precedent
5.1 The doctrine of precedent
5.1.1 Judgments
5.1.2 Ratio decidendi
5.1.3 Obiter dicta
5.1.4 Original precedent
5.1.5 Binding precedent
5.1.6 Persuasive precedent
5.2 The hierarchy of the courts
5.2.1 Appellate courts
5.2.2 Courts of first instance
5.3 The House of Lords (now the Supreme Court)
5.3.1 The Practice Statement
5.3.2 Use of the Practice Statement
5.3.3 The Practice Statement in criminal law
5.3.4 The Supreme Court
5.4 The Court of Appeal
5.4.1 Decisions of courts above the Court of Appeal
5.4.2 The Court of Appeal and its own decisions
5.4.3 The Court of Appeal (Criminal Division)
5.5 Distinguishing, overruling, disapproving and reversing
5.5.1 Distinguishing
5.5.2 Overruling
5.5.3 Disapproving
5.5.4 Reversing
5.6 Precedent and Acts of Parliament
5.7 Advantages of precedent
5.8 Disadvantages of precedent
5.9 Law reporting
Chapter 6 Civil Courts
6.1 County Court
6.2 High Court
6.2.1 Queen’s Bench Division
6.2.2 Chancery Division
6.2.3 Family Division
6.3 Reform of the civil courts
6.3.1 The effect of the Woolf reforms
6.3.2 Further reforms
6.4 Appeal routes in civil cases
6.4.1 Appeals from the County Court
6.4.2 Appeals from the High Court
6.5 Advantages of using the courts
6.6 Problems of using the courts
Chapter 7 Alternative Methods of Dispute Resolution
7.1 Negotiation
7.2 Mediation
7.2.1 Formalised settlement conference
7.2.2 Mediation services
7.3 Conciliation
7.4 Arbitration
7.4.1 The agreement to arbitrate
7.4.2 The arbitrator
7.4.3 The arbitration hearing
7.4.4 The award
7.4.5 Advantages of arbitration
7.4.6 Disadvantages of arbitration
7.5 Comparing courts and ADR
7.6 Tribunals
7.6.1 Role of tribunals
7.6.2 Tribunals, Courts and Enforcement Act 2007
7.6.3 Composition
7.6.4 Procedure
7.6.5 Advantages of tribunals
7.6.6 Disadvantages of tribunals
Chapter 8 Criminal Courts

8.1 Classification of offences
8.1.1 Summary offences
8.1.2 Triable either way offences
8.1.3 Indictable offences
8.2 Magistrates’ Courts
8.2.1 Jurisdiction of the Magistrates’ Courts
8.3 Appeals from the Magistrates’ Court
8.3.1 Appeals to the Crown Court
8.3.2 Case stated appeals
8.3.3 Further appeal to the Supreme Court
8.4 The Crown Court
8.5 Appeals from the Crown Court
8.5.1 Appeals by the defendant
8.5.2 Appeals by the prosecution
8.5.3 Further appeals to the Supreme Court
Chapter 9 Lay Magistrates
9.1 Lay magistrates
9.2 History of the magistracy
9.2.1 Qualifications
9.2.2 Area
9.2.3 Commitment
9.2.4 Restrictions on appointment
9.2.5 District judges (Magistrates’ Courts)
9.3 Appointment
9.3.1 Local advisory committees
9.3.2 Interview panels
9.4 Composition of the bench today
9.5 Magistrates’ duties
9.5.1 Youth court
9.5.2 Appeals
9.6 Training of lay magistrates
9.6.1 Training for new magistrates
9.6.2 Training sessions
9.6.3 Wingers
9.6.4 Appraisal
9.7 Retirement and removal
9.7.1 Retirement
9.7.2 Removal
9.8 The magistrates’ clerk
9.9 Advantages of lay magistrates
9.9.1 Cross-section of society
9.9.2 Local knowledge
9.9.3 Cost
9.9.4 Training
9.9.5 Legal adviser
9.9.6 Few appeals
9.10 Disadvantages of lay magistrates
9.10.1 Middle aged, middle class
9.10.2 Inconsistency in sentencing
9.10.3 Reliance on the clerk
9.10.4 Prosecution bias
9.10.5 Training
Chapter 10 Juries
10.1 History of the jury system
10.1.1 The independence of the jury
10.2 Modern-day use of the jury
10.2.1 Juries in criminal cases
10.2.2 Juries in civil cases
10.2.3 Coroners’ courts
10.3 Jury qualifications
10.3.1 Basic qualifications
10.3.2 Disqualification
10.3.3 Mentally disordered persons
10.3.4 The right to be excused jury service
10.3.5 Discretionary excusals
10.3.6 Lawyers and police officers
10.3.7 Lack of capacity
10.4 Selecting a jury
10.4.1 Vetting
10.4.2 Selection at court
10.4.3 Challenging
10.5 The jury’s role in criminal cases
10.5.1 Split function
10.5.2 Majority verdicts
10.5.3 Secrecy
10.6 Advantages of jury trial
10.6.1 Public confidence
10.6.2 Jury equity
10.6.3 Open system of justice
10.6.4 Secrecy of the jury room
10.6.5 Impartiality
10.7 Disadvantages of jury trial
10.7.1 Perverse decisions
10.7.2 Secrecy
10.7.3 Racial bias
10.7.4 Media influence
10.7.5 Lack of understanding
10.7.6 Fraud trials
10.7.7 Jury tampering
10.7.8 High acquittal rates
10.7.9 Other disadvantages
10.8 Special problems of using juries in civil cases
10.8.1 Amount of damages
10.8.2 Unreasoned decision
10.8.3 Bias
10.8.4 Cost
10.9 Alternatives to jury trial
10.9.1 Trial by a single judge
10.9.2 A panel of judges
10.9.3 A judge plus lay assessors
10.9.4 A mini-jury
Chapter 11 The Legal Profession
11.1 Solicitors
11.1.1 Qualification
11.1.2 Training
11.1.3 Criticisms of training
11.1.4 Solicitors’ work
11.1.5 The Law Society
11.1.6 Complaints against solicitors
11.2 Barristers
11.2.2 Training
11.2.3 Barristers’ work
11.2.4 Queen’s Counsel
11.2.5 The Bar Council
11.2.6 Complaints against barristers
11.3 Legal Services Act 2007
11.3.1 Legal Services Board
11.3.2 Complaints about legal services
11.3.3 Business structures
11.4 Fusion
11.5 Future reforms
11.6 Women and ethnic minorities in the legal profession
11.7 Legal executives
Chapter 12 Funding of Legal Services
12.1 Access to justice
12.2 The Legal Aid, Sentencing and Punishment of Offenders Act
2012
12.2.1 Service providers
12.2.2 Criteria for civil legal aid services
12.2.3 Availability of legal aid
12.3 Government funding in civil cases
12.3.1 Means testing
12.4 Problems with funding of civil cases
12.4.1 ‘Advice deserts’
12.4.2 Eligibility levels
12.4.3 Lack of funds
12.4.4 Non-availability
12.5 Private funding
12.6 Conditional fees
12.6.1 How conditional fees work
12.6.2 Success fee
12.6.3 Insurance premiums
12.6.4 Are conditional fees working?
12.7 Advice in civil cases
12.7.1 Community Legal Advice Centres
12.7.3 Other advice agencies
12.7.4 Citizens Advice Bureaux
12.7.5 Law Centres
12.7.6 Schemes run by lawyers
12.7.7 Insurance
12.8 Legal aid in criminal cases
12.8.1 Advice and assistance for individuals in custody
12.8.2 Representation
12.8.3 Magistrates’ Court means testing
12.8.4 Crown Court means testing
12.9 Problems with funding of criminal cases
12.9.1 ‘Interests of justice’ test
12.9.2 Means test
12.9.3 Lack of lawyers
12.9.4 Budget
Chapter 13 The Judiciary

13.1 Types of judges
13.1.1 Superior judges
13.1.2 Inferior judges
13.2 Qualifications
13.2.1 Justices of the Supreme Court
13.2.2 Lords Justices of Appeal
13.2.3 High Court judges
13.2.4 Circuit judges
13.2.5 Recorders
13.2.6 District judges
13.2.7 District judges (magistrates’ courts)
13.3 Selection
13.3.1 History
13.3.2 The Judicial Appointments Commission
13.4 Appointment
13.5 Judicial roles
13.6 Training
13.7 Dismissal and retirement
13.7.1 Security of tenure of superior judges
13.7.2 Tenure of inferior judges
13.7.3 Retirement
13.8 Composition of the judiciary
13.8.1 Women in the judiciary
13.8.2 Ethnic minorities
13.8.3 Educational and social background
13.9 The doctrine of the separation of powers
13.10 Independence of the judiciary
13.10.1 Independence from the legislature
13.10.2 Independence from the executive
13.10.3 Freedom from pressure
13.10.4 Independence from political bias
13.10.5 Independence from case
UNIT 2 THE CONCEPT OF LIABILITY

Chapter 14 Introduction to Criminal Law
14.1 Actus reus
14.1.1 Voluntary nature of actus reus
14.1.2 Omissions as actus reus
14.1.3 Causation
14.2 Mens rea
14.2.1 Intention
14.2.2 Recklessness
14.2.3 Transferred malice
14.3 Coincidence of actus reus and mens rea
14.4 Strict liability
14.4.1 Which offences are strict liability?
14.4.2 Justification for strict liability
14.4.3 Arguments against strict liability
Chapter 15 Offences Against the Person

15.1 Common assault
15.1.1 Assault
15.1.2 Battery
15.2 Assault occasioning actual bodily harm
15.3 Wounding and grievous bodily harm
15.3.1 Section 20 offence
Chapter 16 Criminal Procedure

16.2 Charge or summons
16.3 Bail
16.3.1 Police powers to grant bail
16.3.2 The Bail Act 1976
16.3.3 Restrictions on bail
16.4 Crown Prosecution Service (CPS)
16.4.1 Organisation of the CPS
16.4.2 The functions of the CPS
16.5 Plea and sending for trial
16.5.2 Pre-trial procedure for triable either way offences
16.5.3 The right to trial by jury
16.5.4 Pre-trial procedure for indictable offences
16.6 Burden and standard of proof
Chapter 17 Sentencing
17.1 Aims of sentencing
17.1.1 Retribution/punishment
17.1.2 Deterrence
17.1.3 Reform/rehabilitation
17.1.4 Protection of the public
17.1.5 Reparation
17.1.6 Denunciation
17.2 Sentences available for adults
17.2.1 Custodial sentences
17.2.2 Community orders
17.2.3 Fines
17.2.4 Discharges
17.3 Factors in sentencing
17.3.1 Aggravating factors in sentencing
17.3.2 Mitigating factors available in sentencing
17.3.3 Background of the offender
Chapter 18 The Tort of Negligence

18.1 Duty of care
18.1.1 Reasonably foreseeable
18.1.2 Proximity
18.1.3 Fair, just and reasonable
18.2 Breach of duty
18.2.1 Degree of risk
18.2.2 The standard of care
18.3 Damage
18.3.1 Causation
18.3.2 Remoteness of damage
18.4 Starting a court case
18.4.1 Alternative Dispute Resolution (ADR)
18.4.2 Pre-action protocols
18.4.3 Which court to use
18.4.4 Issuing a claim
18.4.5 Defending a claim
18.4.6 The three tracks
18.4.7 Case management
18.5.1 Res ipsa loquitur
18.6 Compensatory damages
18.6.1 Pecuniary and non-pecuniary loss
18.6.2 Mitigation of loss
18.6.3 Special and general damages
18.6.4 Lump sums and structured settlements
Chapter 19 Law of Contract

19.1 Offer
19.1.1 Distinction between offer and invitation to treat
19.1.2 The terms of the offer must be certain
19.1.3 Communication of offer
19.1.4 Duration of offer
19.1.5 Revocation of offer
19.1.6 Rejection of offer
19.1.7 Counter-offer
19.2 Acceptance
19.2.1 Method of acceptance
19.2.2 Communication of acceptance
19.2.3 Postal rules on acceptance
19.2.4 Modern methods of communication
19.3 Intention to create legal relations
19.3.1 Commercial agreements
19.3.2 Social and domestic agreements
19.4 Consideration
19.4.1 Nature of consideration
19.4.2 Intangible matters cannot be good consideration
19.4.3 Past consideration
19.5 Breach of contract
19.5.1 Actual breach
19.5.2 Anticipatory breach
19.6.1 Causation
Appendix
Preface
This book is aimed at the AQA specification for AS Law. The topics are covered
in the order in which they appear in that specification.
The first chapter is an introductory one. It deals with the differences between
civil and criminal law and gives a brief introduction to human rights. I have
included this chapter as it is important that students grasp that civil and criminal
cases are dealt with in different ways and in different courts. Brief introductions
to human rights and European law have been included as they affect so many
aspects of our legal system.
The order of topics then starts with those set out for Unit 1 of the AS, Law
Making and the Legal System. These are Acts of Parliament, including
influences on Parliamentary law-making, delegated legislation, statutory
interpretation, judicial precedent, Civil courts, alternative dispute resolution,
criminal courts, lay magistrates, juries, the legal profession, funding and the
judiciary. The book then covers the topics needed for Unit 2, the Concept of
Liability, starting with an introduction to concepts in criminal law and offences
against the person, then criminal procedure and sentencing. The final two
chapters are on the tort of negligence and the law of contract. Within each of
these chapters are sections on civil procedure and damages in the context of the
relevant area of law.
Throughout the text I have used the previous edition of AQA Law for AS,
which many teachers of AQA AS Law are already familiar with, as the basis for
this textbook. I have kept to the principles of explaining points simply and
clearly, but at the same time providing some depth for the more able students. As
well as covering the factual material, each chapter contains critical analysis at a
level suitable for AS students.
The text is broken up into manageable ‘bites’ with the use of sub-headings.
There are also diagrams and charts to help students with their understanding of
topics. Key facts charts are included for each topic to enable students to have an
overview of the topics. These charts are also helpful as revision aids.
Newspaper articles, cases and other ‘live’ material are provided in most
chapters to illustrate the legal system at work today. Many of these items are
also used as a basis for activities and exercises for students to do. There are also
application tasks for students based on scenario-style questions and ‘Test
yourself’ questions. These can be done by using the book to find the answers and
test understanding of a new topic or they can be used as revision questions to test
student’s recall of topics.
Examination questions are also given at the end of most chapters. In addition,
examiner tips have been added after the questions to help students understand
what is required of an answer in the AS examinations.
This sixth edition has been updated. In particular, it includes changes made by
the Crime and Courts Act 2013 and the Criminal Justice and Courts Act 2015.
My thanks go to Denis Lanser for reading the whole of this manuscript when
it was in draft and for making valuable comments thereon.
The law is as I believe it to be on 1 February 2015.
Jacqueline Martin
Chapter 1
Introduction to Law
Headlines like these in newspapers are what many people think of when ‘law’
is mentioned. The other main source of information for the ordinary person
is television programmes including factual ones such as Crimewatch and
fictional series about the police. The headlines and these TV programmes all
involve criminal cases.
This does not give a complete picture of the law. In fact, the law deals with a
very wide variety of different cases and situations. As well as all the criminal
cases that we hear so much of, the law also deals with what is called civil law.
The AQA AS specification you are studying requires you to understand the
different ways in which civil and criminal cases are dealt with. This is part of
Unit 1. For Unit 2 you have to study some aspects of criminal law and one area
of civil law. This can be either contract law or the law of negligence in tort.
1.1 Civil law
Civil law is about private disputes between individuals and/or businesses. There
are several different types of civil law. Some important areas of civil law are:
• contract law;
• law of tort;
• family law;
• employment law;
• company law.
These all deal with different matters.
Contract cases
Consider the following situations:
(a) a family complain that their package holiday did not match what was
promised by the tour operator and that they were put into a lower grade of
hotel than the one they had paid for;
(b) a woman has bought a new car and discovers that the engine is faulty;
(c) a man who bought a car on hire-purchase has failed to pay the instalments
due to the hire-purchase company.
All these situations come under the law of contract. There are also many other
situations in which contracts may be involved. A contract is an agreement
between two or more people and that agreement can be enforced by the courts.
If a court case is successfully taken for breach of contract, the court will try to
put the parties into the position they would have been if the contract had not
been broken. This is usually done by ordering the person who broke the contract
to pay a sum of money in compensation to the other person. This sum of money
is called an award of damages. In a very small number of contracts the court may
order the person in breach to carry out the contract. This is called specific
performance.
Tort cases
Now look at the next list. These also involve disputes between individuals and/or
businesses, but there is no contract or agreement between them:
(a) a child pedestrian crossing a road is injured by a car whose driver is
travelling too fast (the tort of negligence);
(b) a family complain that their health is being affected by the noise and smoke
from a factory which has just been built near their house (the tort of
nuisance);
(c) a man complains that a newspaper has written an untrue article about him
which has damaged his reputation (the tort of defamation).
All these cases come under the law of tort. This area of law recognises that there
are situations where one person owes a legal responsibility to another. If there is
a breach of this responsibility, then the person affected can make a claim under
the law of tort. If successful the court will award them damages, which means a
sum of money in compensation for any injury to them, their property or their
reputation. Where there is a situation which is continuing (such as in (b) above),
it is also possible for the court to order the person causing the problem not to do
certain things. The examples above show possible breaches of different torts.
Other types of civil law

Other divisions of civil law concentrate on specific topics. Family law covers all
disputes that may arise within families. A major part of this is divorce law and
who should have the day-to-day care of any children of the family. Employment
law covers all aspects of employment: for example, any disputes about unfair
dismissal or redundancy come under this area of law. Company law is very
important in the business world: it regulates how a company should be formed,
sets out the formal rules for running a company, and deals with the rights and
duties of shareholders and directors.
As well as these areas of civil law, there are also laws relating to land, to
copyright, to marine law and many other topics. So it can be seen that civil law
covers a wide variety of situations.
1.2 Criminal law
Criminal law sets out the types of behaviour which are forbidden at risk of
punishment. A person who commits a crime is said to have offended against the
State and so the State has the right to prosecute them. This is so even though
there is often an individual victim of a crime as well. For example, if a defendant
commits the crime of burglary by getting into someone’s house and stealing
money and other property, the State will prosecute the defendant for that
burglary. But there is also an individual, the person living in the house, who is
the victim of the crime. If the State does not prosecute then that individual has
the right to prosecute. This happens only rarely in cases where the victim is an
individual, but it is common in cases such as shoplifting where the business that
owns the shop will often prosecute.
The criminal courts have the right to punish those who break the criminal law.
So, at the end of a case where the defendant is found guilty, that defendant will
be given a punishment. Such punishments include imprisonment, a community
sentence such as unpaid work, a fine, or a ban from driving.
Any individual victim of the crime will not necessarily be given
compensation, though where possible the courts do make a compensation order
as well as punishing the offender.
Activity
On this page and the next page there are five newspaper articles. Three are
about civil cases and two are about criminal cases. Read the articles and answer
the questions at the end.
After you have done this activity read section 1.3 to get a clearer understanding
of the differences between the way civil and criminal cases are dealt with in the
courts.
Source A
Angry drinker poured half a pint of ale over ‘grizzling’ toddler
because the noise disturbed his lunch
A grandfather poured beer over a crying toddler in a pub because the noise
ruined his lunch plans, a court heard today.
Danny Polak, 64, lost his temper when 15-month-old Finlay White started
making ‘grizzling’ sounds in the Ernehale pub in Arnold, Nottinghamshire.
He soaked the toddler in ale and then kicked the boy’s mother, Rachel Atkin, in
the backside when she went to confront him.
Polak was fined £355 and ordered to pay £50 in compensation when he
appeared at Nottingham Magistrates’ Court and admitted two counts of assault.
Taken from an article by Rob Preece in the Daily Mail, 15 October 2012
Source B
Couple sue wedding photographer
A newly-married couple have successfully sued their wedding photographer
after paying £1,450 for a ‘woefully inadequate’ service.
Marc and Sylvia Day were presented with a disc full of pictures from the big
day with heads chopped off, inattentive guests and random close-ups of
vehicles.
The cutting of the cake was missed and of the 400 images they were sent, only
22 met with their approval.
They have now been awarded compensation by a judge after winning a case for
breach of contract against the photographer.
Deputy District Judge Keith Nightingale, found in favour of the Days at
Pontefract County Court and criticised Mr Bowers for providing
‘inappropriate’ photos and a ‘woefully inadequate’ service.
He ordered him to pay back £500 from the £1,450 to the Days with £450 in
damages, £100 for their loss of earning and £170 in court fees.
Adapted from an article by Paul Stokes in The Daily Telegraph, 5 October
2009
Source C
Gun found next to baby
Mohammed Arif was convicted of possessing a firearm and jailed for six years
at Birmingham Crown Court on Friday following the discovery in May.
Police were called to a house in the Bordesley Green area of Birmingham in the
early hours after reports of a domestic dispute. They found the baby alone
inside.
The antique fully operational Russian Smith and Wesson .44 revolver, loaded
with six bullets, was wrapped in a blanket in the cot. Alongside was a machete.
Arif, 42, initially denied all knowledge of the weapons but his DNA was found
on the gun and ammunition.
Taken from an article in The Daily Express, 30 September 2012
Source D
High Court uses Twitter to issue injunction
The High Court has ordered an injunction to be served through the social
networking site Twitter for the first time.
In yesterday’s ruling, the court said issuing the writ over the microblogging site
was the best way to get to an anonymous tweeter who was impersonating a
right-wing commentator.
The Twitter account, blaneysbarney, was impersonating Donal Blaney, a
lawyer and Conservative blogger. The account, which was opened last month,
features a photograph of Mr Blaney followed by a number of messages
purporting to be by him.
The Court said that the unknown impostor should stop their activities and that
they should reveal themselves to the court. The owner of the fake account will
receive the writ next time they enter the site.
Taken from an article in The Times, 2 October 2009
Source E
Milly Evans, 11, wins £10.8m medical negligence award from
Lincolnshire Hospital trust
A girl who suffered devastating injuries at birth is to receive compensation
worth £10.8 million.
The sum awarded to 11-year-old Milly Evans at London’s High Court is
thought to be one of the highest – if not the highest – clinical negligence
awards.
After Milly’s birth at Lincoln County Hospital, on 1 March 2001, she was
transferred to the neonatal unit, where she underwent resuscitation and suffered
a seizure.
Her parents claimed that if the baby’s heart had been properly monitored, the
midwife would have spotted her fetal distress sooner, and Milly would have
been delivered earlier without suffering catastrophic injury.
Milly is confined to a wheelchair and unable to speak, although her intellect has
remained fairly well intact and she communicates through sophisticated eye-
gaze equipment. She sat smiling in court as the judge approved a settlement
involving a lump sum of £5.866m and lifelong periodic payments rising to
£204,000 a year.
The judge had heard that United Lincolnshire Hospital NHS Trust admitted
liability in March 2010, but had contested the amount of damages until the
parties recently reached agreement.
Taken from an online article in The Huffington Post, 1 May 2012
Questions
1. Identify which of these articles is referring to civil cases and which to
criminal cases. (If you wish to check that you are right before continuing
with the rest of the questions, turn to the start of Appendix 1 at the back of
the book.)
2. Look at the articles which you have identified as civil cases and state in
which courts the cases were dealt with.
3. Look at the articles which you have identified as criminal cases and state in
which courts the defendants were tried.
4. What did the people taking the civil cases receive as a result of winning
their case?
5. In the criminal cases the defendants received punishment. List the different
punishments used in the cases.
6. One of the articles on civil cases shows there was a long time between the
event for which the claim is made and the resolution of the case. How long
was that time?
1.3 Differences between civil and criminal law
There are many differences between civil cases and criminal cases. The
newspaper articles on the previous pages show some of these differences. There
are other differences as well and it is important to understand fully the
distinctions between civil and criminal cases.
1.3.1 Purpose of the law

Civil law upholds the rights of individuals and the courts can order
compensation in an effort at putting the parties in the position they would have
been if there had not been any breach of the civil law.
Criminal law is aimed at trying to maintain law and order. So, when a person
is found guilty of an offence, that offender will be punished. There is also the
aim of trying to protect society and this is the justification for sending offenders
to prison.
1.3.2 Person starting the case

In civil cases the person starting the case is the individual or business which has
suffered as a result of the breach of civil law.
Criminal cases are taken on behalf of the State, and so there is a Crown
Prosecution Service responsible for conducting most cases. However, there are
other State agencies which may prosecute certain types of offence, for example
the Environment Agency who prosecute pollution cases.
The person starting the case is given a different name in civil and criminal
cases. In civil cases they are called the claimant, while in criminal cases they are
referred to as the prosecutor.
1.3.3 Courts
The cases take place in different courts. In general, civil cases are heard in the
High Court or the County Court. The High Court deals with more serious cases
while the county court deals with cases of lower value. (Note that some civil
matters can be dealt with in the magistrates’ courts – see 9.5.1 for further
details.)
In both the High Court and the county court a judge will try the case. It is very
rare to have a case tried by a jury in a civil matter. See Chapter 10 for details of
when a jury might be used in a civil case.
Criminal cases will be tried in either the magistrates’ courts or the Crown
Court. The magistrates’ courts deal with less serious offences and the case is
tried by a panel of lay magistrates or by a single legally qualified district judge.
Serious offences are tried in the Crown Court. The case is tried by a judge sitting
with a jury. The judge decides points of law and the jury decide the verdict of
guilty or not guilty.
1.3.4 Standard of proof

Criminal cases must be proved ‘beyond reasonable doubt’. This is a very high
standard of proof, and is necessary since a conviction could result in the
defendant serving a long prison sentence.
Example
Judgment overtakes Brink’s-Mat accused 11 years later
Eleven years after a man was acquitted of the £26 million Brink’s-Mat bullion
robbery, a High Court judge ruled that he was involved and must repay the
value of the gold.
Anthony White, acquitted at the Old Bailey in 1984 of taking part in Britain’s
biggest gold robbery, was ordered to repay the £26,369,778 value and
£2,188,600 in compensation. His wife Margaret was ordered to pay £1,084,344.
Insurers for Brink’s-Mat had sued the couple for the value of the proceeds.
Mr Justice Rimmer told Mr White that his acquittal did not mean that the Old
Bailey jury had been satisfied he was innocent; only that he was not guilty
according to the standard of proof required in criminal cases …
The case against the Whites is the latest and almost the last in a series of
actions since the 1983 robbery brought by insurers for Brink’s-Mat against
people either convicted or suspected of taking part in the robbery.
Using the lower standards of proof in civil courts and in actions for seizure of
assets, lawyers believe that they will recoup at least £20 million.
Taken from an article by Stewart Tendler in The Times, 2 August 1995. © The
Times 1995/nisyndication.com
Civil cases have to be proved ‘on the balance of probabilities’. This is a much
lower standard of proof, where the judge decides who is more likely to be right.
This difference in the standard of proof means that it is possible for a defendant
who has been acquitted in a criminal case to be found liable in a civil case based
on the same facts. Such situations are not common, but one is illustrated in the
article on the previous page.
1.3.5 Outcome of case

A defendant in a civil case is found liable or not liable. A defendant in a criminal
case is found guilty or not guilty. Another way of stating this in criminal cases is
to say that the defendant is convicted or acquitted.
At the end of a civil case anyone found liable will be ordered to put right the
matter as far as possible. This is usually done by an award of money in
compensation, known as damages, though the court can make other orders such
as an injunction to prevent similar actions in the future or an order for specific
performance where the defendant who broke a contract is ordered to complete
that contract.
At the end of a criminal case a defendant found guilty of an offence may be
punished.
1.4 Double liability
It is possible for the same incident to give rise to both civil and criminal liability.
This occurs most often where someone is injured as a result of another person’s
bad driving. The driver can then be prosecuted in the criminal courts for a
driving offence and the injured person can also claim against the driver in the
civil courts. This next newspaper article shows a case where this happened.
Example
Record £8.5 million for woman hit by car
A 22-year-old woman who suffered serious brain damage in a road accident
nine years ago has been awarded £8.5 million, believed to be a record for a
personal injury case (Frances Gibb writes).
Leanne Evans was hit by a 79-year-old driver on a pelican crossing in
Birmingham when she was 13. The driver was fined £75 and convicted of
careless driving.
Leanne now needs round-the-clock attention from eight carers, has severe
memory impairment and uses a wheelchair.
Her father, Ivor Evans, said: ‘We are very pleased for Leanne. This award will
at least give her a limited quality of life and allow her to enjoy some of the
things that every other 22-year-old likes to do, like going to pop concerts, going
to the theatre and having a holiday, as well as making sure she has all the
medical care that she needs’.
Frances Gibb, The Times, 15 March 2007. © The Times
2007/nisyndication.com
In this article the criminal case was the one in which the driver was convicted
of careless driving. The civil case is the one in which the injured girl was
awarded £8.5 million pounds.
Activity
Look through newspapers to find articles about court cases. When you have
found an article use your knowledge about civil and criminal cases to decide
what type of case it is.
If you are having difficulty finding civil cases, try searching for the phrase
‘High Court’ or ‘county court’ in newspapers online. The following have good
search engines:
www.dailymail.co.uk
www.telegraph.co.uk
www.dailyexpress.co.uk
1.5 Human rights and the English legal system
The Human Rights Act 1998 incorporated the European Convention on Human
Rights into our law. This is important as it has affected many areas of the
English legal system. This section explains key rights under the Convention and
also gives a brief summary of some of the effects on our legal system.
1.5.1 The European Convention on Human Rights

The Convention sets out the rights that the people of Europe should have. These
are:
• the right to life (Article 2), though it is recognised that states may impose the
death penalty for certain crimes;
• the right not to be tortured or subjected to inhumane or degrading treatment
(Article 3);
• slavery is forbidden (Article 4);
• the right to liberty (Article 5), although limitations on this right are permitted
so that people who are lawfully arrested or held in custody for trial or given a
prison sentence by a court can be detained;
• the right to a fair trial (Article 6);
• the right not to be punished except according to law (Article 7);
• the right to respect for private and family life (Article 8).
The Convention also sets out freedoms which people should be able to enjoy.
These include:
• freedom of thought, conscience and religion;
• freedom of expression; and
• freedom of assembly and association.
1.5.2 Effect on the English legal process

Before the Convention was incorporated into our law by the Human Rights Act
1998, anyone who wanted to complain of a breach of human rights had to take
their case to the European Court of Human Rights. If the United Kingdom was
found to be in breach of the Convention, the Government did not have to change
the law. However, in some cases they did do so. An example is T v United
Kingdom; V v United Kingdom (1999) (see Criminal trials below).
Since the Convention was incorporated, people can rely on the rights it gives
in our courts. In addition, there have been some changes in our legal system in
order to comply with the Convention. Some of these are explained below. These
points are not the only way in which the English legal system has been affected
by the European Convention on Human Rights. However, they give some
illustration of how wide ranging the effect has been on our legal system.
Civil cases
An appeal route for small claims cases was created. Previously there had been no
appeal for small claims cases. This would have breached Article 6 of the
Convention – the right to a fair trial.
Criminal trials
In the case of T v United Kingdom; V v United Kingdom (1999), the European
Court of Human Rights had ruled that there was a breach of Article 6. In the case
a boy of 10 and a boy of 11 were tried for murder in the Crown Court. The
European Court of Human Rights held the formality of a Crown Court trial
would have made it difficult for the boys to understand what was happening.
This meant that the trial was not fair and there was a breach of the European
Convention.
Following this decision, trials of juveniles at the Crown Court were altered to
make the trial process less formal.
Sentencing
Where an offender is sentenced to prison for life, it is usual to set a minimum
period which must be served before the offender can be considered for parole.
This minimum sentence used to be set by the Home Secretary (a Government
minister). The European Court of Human Rights held that this was a breach of
the European Convention. This was changed so that judges are now responsible
for setting any minimum period.
Judicial appointment
Part-time judges in this country used to be appointed for a period of three years.
After this time they could then be appointed for further periods of three years. In
addition the appointment was by the Lord Chancellor (a Government minister).
The length of appointment was changed to five years as it was thought that the
shorter period meant that there was a risk of the judges not being sufficiently
independent from the Government. This would have been a breach of the
European Convention.
1.5.3 Effect on sources of law

As well as affecting our legal system, the Human Rights Act 1998 sets out three
important matters for the way our law is made and interpreted. These affect the
making of Acts of Parliament, decisions on points of law by judges and the way
in which judges interpret new laws. Each of these is explained below.
Acts of Parliament
When a new potential Act of Parliament (known as a Bill) is put before
Parliament, there must be a statement as to whether it is compatible with
Convention rights or not.
Precedent
Section 2(1)(a) of the Human Rights Act 1998 states that our courts must take
into account any judgment or decision of the European Court of Human Rights.
This means that judges, when deciding a case, must look at human rights cases,
as well as our own English law.
Statutory interpretation
Section 3 of the Act states that, so far as it is possible to do so, all legislation
(that is Acts of Parliament and other laws made in this country) must be given
effect so that it is compatible with the European Convention. For example, if the
wording of an Act of Parliament has two possible meanings, then the meaning
which fits with the European Convention is the one that must be used.
1.6 European Union Law
Britain joined the European Union on 1 January 1973 (it was at that time called
the European Economic Community). Since this date EU law has had an effect
on our law. The main effects are on the laws in relation to trade, work and
employment law, and equality.
1.6.1 European Union treaties

The European Communities Act 1972, which was passed by the British
government of the day in order for us to join the EU, says that EU treaties are
automatically part of our law. The Act states that EU treaties are:
without further enactment to be given legal effect or used in the UK.
So, once a treaty has been signed by all member States, that treaty becomes part
of our law.
1.6.2 Regulations and directives

In addition the EU can make two other types of law. These are regulations and
directives.
Regulations
Regulations are ‘binding in every respect and directly applicable in each
Member State’. This means that EU regulations do not have to be adopted in any
way by the individual states. They automatically become law in each member
country.
This ‘direct applicability’ point was tested in Re Tachographs: Commission v
United Kingdom (1979), where a regulation requiring mechanical recording
equipment to be installed in lorries was issued. The UK government of the day
decided not to implement the regulation, but to leave it to lorry owners to decide
whether or not to put in such equipment. When the matter was referred to the
European Court of Justice (now called the Court of Justice of the European
Union) it was held that Member States had no discretion in the case of
regulations. The regulation was law in Britain.
Directives
Directives are an important method by which the laws within Member States are
made uniform. There have been directives covering many topics including
company laws, banking, insurance, health and safety of workers, equal rights,
consumer law and social security.
Member States pass their own laws to bring directives into effect. This has to
be done within a time limit set by the European Commission. If Britain or
another Member State does not pass its own law to bring the EU directive into
effect in its own country, then the European Court of Justice has ruled that the
directive will have direct effect. This ruling allows individuals in the country to
rely on the EU directive if they are bringing an action against their own State.
This happened in Marshall v Southampton and South West Hampshire Area
Health Authority (1986). Miss Marshall was required to retire at the age of 62
when men doing the same work did not have to retire until age 65. Under the
Sex Discrimination Act 1975 in English law this was not discriminatory.
However, she was able to succeed in an action for unfair dismissal by relying on
the Equal Treatment Directive 76/207. This directive had not been fully
implemented in the United Kingdom but the European Court of Justice held that
it was sufficiently clear and imposed obligations on the Member State. This
ruling allowed Miss Marshall to succeed in her claim against her employers
because her employers were ‘an arm of the state’; i.e. they were considered as
being part of the State.
1.6.3 The Court of Justice of the European Union

The role of the Court of Justice of the European Union is to ensure that EU law
is applied uniformly in all Member States. It does this in two ways. The first is
that it hears cases to decide whether Member States have failed to fulfil
obligations under the Treaties. An example of such a case is Re Tachographs:
Commission v United Kingdom (1979) in 1.6.2 above.
The second way is by the Court of Justice of the European Union hearing
references from national courts for preliminary rulings on points of European
law. This function is a very important one, since any ruling made by the Court of
Justice of the European Union is then binding on courts in all Member States.
This ensures that the law is indeed uniform throughout the European Union. An
example of a case being referred to the Court of Justice of the European Union
by a British court is Marshall v Southampton and South West Hampshire Area
Health Authority (1986) (see 1.6.2).
Test Yourself
1. Give an example of a civil case.
2. What is the purpose of the civil law?
3. Which two courts try civil cases?
4. Give an example of a criminal case.
5. What is the purpose of the criminal law?
6. Which two courts try criminal cases?
7. What is meant by ‘double liability’?
8. Name three rights that are given by the European Convention on Human
Rights.
9. Explain one way in which the English Legal System has been affected by
human rights.
10. What types of cases does the European Court of Justice hear?
Chapter 2
Parliament
2.1 Parliament
A key principle in a democracy is that laws should be made by the elected
representatives of society. In the United Kingdom this means that major laws are
made by Parliament. Parliament consists of the House of Commons and the
House of Lords.
2.1.1 House of Commons

The members of the House of Commons are elected by the public. The country
is divided into constituencies and each of these votes for one Member of
Parliament (MP).
There must be a general election every five years. In addition, there may be
individual by-elections in constituencies where the MP has died or retired during
the current session of Parliament.
The government of the day is formed by the political party which has a
majority in the House of Commons, and it is the government which has the main
say in formulating new Acts of Parliament.
2.1.2 House of Lords

The House of Lords is a non-elected body. Before 1999, there were over 1,100
members of the House of Lords of whom 750 were hereditary peers. The rest
consisted of life peers (people who have been given a title for their service to the
country), judges and bishops.
In 1999 the Labour Government reviewed membership of the House of Lords
and decided that it should consist of some nominated members (like the life
peers) and some elected members. In particular they decided that an inherited
title should not automatically allow that person to take part in the law-making
process. Temporary changes were made to the membership of the House of
Lords so that it consisted of:
• 90 hereditary peers;
• about 640 life peers;
• the 26 most senior bishops in the Church of England.
This was meant to be a temporary solution while the government consulted on
the final make-up of the House of Lords. However, there has not yet been
agreement on how many of the House of Lords should be elected and how many
should be nominated (and by whom). As a result the reform of the House of
Lords has not been completed.
Note that the 12 most senior judges used to sit in the House of Lords, but they
no longer do so. They are now separate from Parliament and sit as the Supreme
Court (see 13.2.1).
2.2 Influences on Parliament
2.2.1 Law Commission
The Law Commission was set up in 1965. It considers areas of law which are
believed to be in need of reform. The actual topics may be referred to it by the
Lord Chancellor on behalf of the government, or it may itself select areas in
need of reform and seek governmental approval to draft a report on them. It
concentrates on what is sometimes called ‘lawyers’ law’ or ‘pure law’. In other
words it is concerned with specific areas of law, such as contract law, land law
or criminal law.
The Law Commission works by researching the area of law that is thought to
be in need of reform. It then publishes a consultation paper seeking views on
possible reform. The consultation paper will describe the current law, set out the
problems and look at options for reform (often including explanations of the law
in other countries).
Following the response to the consultation paper, the Commission will then
draw up positive proposals for reform. These will be presented in a report which
will also set out the research that led to the conclusions. There will often be a
draft Bill attached to the report with the intention that this is the exact way in
which the new law should be formed. Such a draft Bill must, of course, go
before Parliament and go though the necessary Parliamentary stages if it is to
become law.
Codification
The Law Commission also puts forward proposals to codify law. The purpose of
this is to bring together all the law on one topic into one Act. This makes the law
simpler and easier to find. The Law Commission spent many years writing a
draft criminal code which aimed to include the main general principles of
criminal law. The draft Criminal Code was first published in 1985. However, the
Government has never implemented it. In 2008, the Law Commission stated that
it would be concentrating on smaller areas of the code, as there was more chance
that the Government would be prepared to make such reforms of the law.
Repeal
Another of the Law Commission’s roles is to identify old Acts which are no
longer used, so that Parliament can repeal these Acts. The Law Commission has
been very successful in this. By 2014, over 3,000 old and out-of-date Acts had
been repealed as a result of their work as well as parts of thousands of other
Acts. Examples of old Acts repealed include six Acts from 1697 relating to
workhouses for the poor.
Internet Research
Look at the Law Commission’s website (http://lawcommission.justice.gov.uk/)
and make a list of three areas of law which the Law Commission is currently
researching.
Advantages
The main advantages of having the Law Commission issue reports on areas of
law are:
1. areas of law are researched by legal experts;
2. the Law Commission consults before finalising its proposals;
3. whole areas of law can be considered, not just small issues;
4. if Parliament enacts the reform of a whole area of law, then the law is in one
Act, such as the Land Registration Act 2002 (see below) and it is easier to
find and to understand.
Examples of laws that the government has enacted following a report by the Law
Commission include:
• Land Registration Act 2002 which was important for anyone selling or buying
a house, flat or any other building or land, as it modernised and simplified the
method of registering land.
• Fraud Act 2006 which reformed the law on fraud and deception offences.
• Corporate Manslaughter and Corporate Homicide Act 2007 which made
companies and other organisations criminally liable for deaths caused through
bad working practices.
• Coroners and Justice Act 2009 which abolished the defence of provocation
and replaced it with the defence of loss of control.
Disadvantages
The main disadvantage is that the Law Commission has to wait for the
government to bring in the reforms it proposes. The Government is often slow to
enact reforms and some Law Commission reports have not yet been made law.
Each year in its annual report, the Law Commission highlights the number of
reports which are still awaiting implementation by Parliament.
A major area of criminal law that is still awaiting reform is non-fatal offences
against the person. (This is an area of law you have to study for Unit 2 of the
AS.) In 1993 the Law Commission issued a report, Offences Against the Person
(Law Com No 218) recommending reform to this area of law. Five years later, in
1998, the government issued a consultation paper which included a draft Bill on
this area of law. However, the government did not proceed with the Bill and the
reforms proposed by the Law Commission have never been made.
Another example of law where the proposals for reform have not been made is
in the civil law of negligence. In 1998 the Commission issued a report, Liability
for Psychiatric Illness (Law Com No 249) suggesting changes to the law where
a person suffers psychiatric illness because of another person’s negligence. This
reform to the law has not been made by the government.
These two examples show how slow Parliament can be over taking action on
the Law Commission’s proposals. Clearly the Law Commission can only be
effective if the government and Parliament are prepared to find time to enact
reforms.
There is a problem with the amount of time available in Parliament. A lot of
time has to be given to financial matters such as the budget and taxation; foreign
policy and issues such as the war in Iraq; events in this country such as terrorist
attacks; health and education. So only a limited time is left for ‘pure’ law reform.
In fact, in the Lord Chancellor’s report in 2012 on implementation, he stated
that the Report on Participating in Crime (2007) (Law Com 305) and the Report
on Conspiracy and Attempts (2009) (Law Com 318) were not priority areas and
would not be implemented during the lifetime of the then current Parliament
which lasted until early 2015.
Other disadvantages
The Government may accept the Law Commission’s recommendations in
principle. However, when reforming the law, the Government may not follow all
the recommendations. In addition, as a Bill goes through Parliament, changes to
the wording may be made so that the final law is very different to that proposed
by the Law Commission. This can cause the law to be less satisfactory than the
original proposals.
The Government does not have to consult the Law Commission on changes to
the law. This can mean that major changes are made without the benefit of the
Law Commission’s legal knowledge and extensive research.
2.2.2 Political influence

When there is a general election all the political parties publish a list of the
reforms they would carry out if they were elected as the next government. This
is called the party’s manifesto, and it is one of the ways in which the party tries
to persuade people to vote for them.
The party that has the most members of Parliament after a general election
becomes the government. This party then has the whole life of the Parliament
(this can be up to five years) to bring in the reforms they promised in their
manifesto. Most of the reforms will gradually be put before Parliament to pass as
an Act of Parliament.
Throughout any session of Parliament, the government has the major say on
what new laws will be put before the House of Commons and the House of
Lords for debate.
At the opening of each session of Parliament (usually about once a year) the
government announces its plans for new laws in that session. This is done in the
Queen’s speech. This speech is written for the Queen by the Prime Minister and
other senior ministers. This is shown in the speech as the Queen will usually use
the words ‘my Government will …’.
Advantages
Each political party has its proposals for reform ready so that if they are elected
as the government they know what they wish to do.
The fact that the government has a majority in the House of Commons means
that virtually every law it proposes will be passed. This makes the law-making
process efficient.
Disadvantages
If a different party is elected at the next general election, they may decide to
repeal or alter some of the laws that the previous government passed. This is
because their policies are likely to be quite different from the previous
government. Changes in the law in this way can be costly and open to criticism.
2.2.3 European Union law
As Britain is a member of the European Union, the government has to bring into
effect any new laws passed by the European Union. This may be done by
passing an Act of Parliament. For example, the Sex Discrimination Act 1975 and
the Sex Discrimination Act 1986 were enacted in order to bring our laws on
discrimination into line with EU law.
Most EU laws are, however, brought into effect through delegated legislation
(see section 3.1.1).
This is good as the law in these areas is uniform through all the EU member
countries. However, some aspects of EU Law are unpopular in Britain. For
example, the EU originally ruled that all goods had to be sold using metric
measurements, such as kilograms. Many people in this country objected to this
as Britain had up to then used what are called ‘imperial’ measurements. For
weighing items this means using pounds and ounces, not kilograms.
2.2.4 Public opinion/media

Where there is strong public opinion about a change to the law, the government
may bow to such opinion. This is more likely towards the end of a term of
government when there will be a general election soon and the government
wants to remain popular with the majority of people.
Media
The term media means the ways in which information is supplied to the public.
It includes television and radio, newspapers and magazines.
The media play a large role in bringing public opinion to the government’s
attention. Where an issue is given a high profile on television and in the
newspapers, then it also brings it to the attention of other members of the public
and may add to the weight of public opinion. This is an advantage of a free
press. They are able to criticise government policy or bring any other issue to the
attention of the government.
An example of the media highlighting bad practice was seen in 2009 over
Members of Parliament’s expenses claims. Expenses claims made by various
MPs were detailed in a national newspaper. Some of the claims were for quite
large amounts of money and some were even for items which the MP had not
paid for. This caused a public outrage at the system of MPs’ expenses.
Parliament then had to reform the whole system.
However, there is also the disadvantage that in some cases this can be seen as
the media manipulating the news and creating public opinion.
In addition, specific events may also play a role in formulating the law. A
particularly tragic example was the massacre in 1996 of 16 young children and
their teacher in Dunblane by a lone gunman with a legally owned gun. An
enquiry into the ownership of guns was set up and a pressure group organised a
petition asking for guns to be banned. Eventually Parliament banned private
ownership of most handguns.
The disadvantage of government responding too quickly to high-profile
incidents (a ‘knee-jerk reaction’) is that the law may be poorly drafted. This was
seen with the Dangerous Dogs Act 1991 where the wording in the Act has led to
many disputed cases in the courts.
2.2.5 Pressure groups

These are groups which have a particular interest. They try to bring matters they
are interested in to the attention of the general public and the government. There
are two types of pressure group: sectional and cause. Sectional pressure groups
exist to represent the interests of a particular group of people. They often
represent work groups or professions. Examples include the Law Society which
represents solicitors’ interests, the British Medical Association which represents
doctors and trade unions which represent workers in different types of job.
Cause pressure groups exist to promote a particular cause. There are many
different types of ‘cause’ pressure group. Examples include environmental
groups such as Greenpeace, animal welfare groups, human rights groups, such as
Amnesty and ASH, the anti-smoking group.
Pressure groups may cause the government to reconsider the law on certain
areas. This was seen in 2000 when the government finally agreed to reduce the
age of consent for homosexual acts in private to 16. Another example of the
government bowing to public opinion and the efforts of the pressure group, the
League against Cruel Sports, was the passing of the Hunting Act 2004 which
banned hunting foxes with dogs. In 2007 strict laws against smoking in public
places were introduced because of public opinion and medical opinion.
Sometimes pressure groups will campaign against a proposed change to the
law. This was seen when the government tried to restrict the right to trial by jury.
Pressure groups such as Justice and Liberty campaigned against this as they
thought the changes infringed human rights.
Lobbying
Some pressure groups try to persuade individual Members of Parliament to
support their cause. This is called lobbying (because members of the public can
meet MPs in the lobbies (small hallways) through which MPs go to get to the
House of Commons). If a pressure group is successful, it may persuade an MP to
ask questions in Parliament about a particular problem. It is also possible that a
backbench MP may use the Private Members Bill session (see section 2.4.1) to
introduce a Bill trying to reform the law in the way that the pressure group
wants. However, it is very unlikely that such a Bill will be passed by Parliament
unless there is widespread support for it.
Advantages
Pressure groups often raise important issues. Environmental groups have made
the government much more aware of the damage being done to our environment
by greenhouse gases and other pollutants.
A wide range of issues is drawn to the attention of the government as there are
so many pressure groups with different aims and issues.
Disadvantages
It can be argued that pressure groups are seeking to impose their ideas, even
where the majority of the public do not support their views.
There are also occasions when two pressure groups have conflicting interests
and want opposing things. This was seen when the ban against fox hunting was
considered. The League against Cruel Sports wanted it banned, but the
Countryside Alliance wanted it to be allowed to continue.
Internet Research
Look up websites of pressure groups such as Liberty (www.liberty-human-
rights.org.uk) or Justice (www.justice.org.uk) or Greenpeace
(www.greenpeace.org.uk). (These are only suggestions. You can find many
other websites by searching.) Choose one pressure group and write a brief
summary of any changes in the law it is suggesting or any success in changing
the law that it has had.
2.3 The pre-legislative procedure
Each government minister has a department of civil servants and advisers. The
particular ministry which is responsible for the area in which a change in the law
is being considered will draft ideas for change.
These ideas may be published as a consultation paper. This will outline
possible changes, often with alternatives, and anyone can then send in comments
on those ideas. Usually pressure groups or groups with a particular interest in the
matter will respond to the consultation paper, but members of the public are also
entitled to respond. All consultation papers are published on the website of the
ministry issuing them.
2.3.1 Green and White papers

On major matters a Green Paper may be issued by the Minister with
responsibility for that matter. A Green Paper is a consultative document on a
topic in which the government’s view is put forward with proposals for law
reform. Interested parties are then invited to send comments to the relevant
government department, so that a full consideration of all sides can be made and
necessary changes made to the government’s proposals. Following this the
government will publish a White Paper with its firm proposals for new law.
Test Yourself
1. Explain what the Law Commission is and how it works.
2. Give two examples of law reform which resulted from the Law
Commission’s work.
3. Give two advantages of the Law Commission.
4. Give two disadvantages of the Law Commission.
5. What is meant by a ‘sectional’ pressure group? Give an example.
6. What is meant by a ‘cause’ pressure group? Give an example.
7. Explain how pressure groups may try to influence Parliament.
8. Give two advantages of pressure groups.
9. Give two disadvantages of pressure groups.
10. Give two other influences on Parliament (other than the Law Commission
and pressure groups.
Consultation before any new law is framed is valuable as it allows time for
mature consideration. Governments have been criticised for sometimes
responding in a ‘knee-jerk’ fashion to incidents and, as a result, rushing law
through that has subsequently proved to be unworkable.
2.4 Formal legislative process
Major legislation is usually made through Acts of Parliament. Acts of Parliament
are also known as statutes. There is a very long and formal process which has to
be followed before an Act of Parliament becomes law.
2.4.1 Introducing an Act of Parliament

The great majority of Acts of Parliament are introduced by the government and
these are initially drafted by lawyers in the Civil Service who are known as
parliamentary counsel to the Treasury. The government department which is
responsible for the new law gives instructions as to what is to be included and
the intended effect of the proposed law.
Bills
When the proposed Act has been drafted it is published, and at this stage it is
called a Bill. It will only become an Act of Parliament if it successfully
completes all the necessary stages in Parliament. Where it is a Bill put forward
by the government it will be introduced into Parliament by a government
minister. For example, the Minister of Justice (or an MP in that department) will
introduce any Bills about the justice system, while the Minister for the
Department for the Environment, Food and Rural Affairs (or an MP in that
department) will introduce any Bills on issues about the environment.
Even at this early stage there are difficulties, as the draftsmen face problems
in trying to frame the Bill. It has to be drawn up so that it represents the
government’s wishes, while at the same time using correct legal wording so that
there will not be any difficulties in the courts applying it. It must be
unambiguous, precise and comprehensive. Achieving all this is not easy, and
there may be unforeseen problems from the language used, as discussed in the
section on statutory interpretation.
In addition, there is usually a pressure on time, as the government will have a
timetable of when they wish to introduce the draft Bill into Parliament.
Private Members’ Bills

As well as Bills being introduced into Parliament by the government, it is
possible for individual (private) Members of Parliament to introduce a Bill.
These MPs are those who are not government ministers. They can be from any
political party. They are also known as ‘backbenchers’ because they do not sit in
the front row in the actual House of Commons. (The government ministers sit in
the front row.) There are two ways a private MP can introduce a Bill. These are:
• by ballot;
• through the ‘ten-minute’ rule.
Ballot
The Parliamentary process allows for a ballot each Parliamentary session in
which 20 private members are selected who can then take their turn in presenting
a Bill to Parliament. The time for debate of private members’ Bills is limited,
usually only being debated on Fridays, so that only the first six or seven
members in the ballot have a realistic chance of introducing a Bill on their
chosen topic.
Ten-minute rule
Backbenchers can also try to introduce a Bill through the ‘ten-minute’ rule,
under which any MP can make a speech of up to ten minutes supporting the
introduction of new legislation. This method is rarely successful unless there is
no opposition to the Bill, but some Acts of Parliament have been introduced in
this way, for example the Bail (Amendment) Act 1993 which gave the
prosecution the right to appeal against the granting of bail to a defendant.
Members of the House of Lords can also introduce private members’ Bills.
Relatively few private members’ Bills became law, but there have been some
important laws passed as the result of such Bills. A major example was the
Abortion Act 1967 which legalised abortion in this country. More recent ones
include the Marriage Act 1994 which allows people to marry in any registered
place, not only in Register Offices or religious buildings, and the Household
Waste Recycling Act 2003 which places local authorities under a duty to recycle
waste.
Public Bills
Most Bills introduced into Parliament involve matters of public policy which
will affect either the whole country or a large section of it. These Bills are
known as Public Bills. Most government Bills are in this category. For example
the Constitutional Reform Act 2005, the Legal Services Act 2007 and the Legal
Aid, Sentencing and Punishment of Offenders Act 2012 all started as Public
Bills.
Private Bills
A small number of Bills are designed to pass a law which will affect only
individual people or corporations. These do not affect the whole community.
They are known as Private Bills. A recent example of such a Bill was the
Whitehaven Harbour Bill which was passed by Parliament and is now the
Whitehaven Harbour Act 2007. This transferred all rights and obligations in
respect of the harbour from three separate companies to the Whitehaven Harbour
Commissioners.
Hybrid Bills
These are a cross between Public Bills and Private Bills. They are introduced by
the Government, but if they become law they will only affect a particular person,
organisation or place. A recent example is the Crossrail Act 2008 which was
introduced into Parliament as a hybrid Bill. This Act allows for the construction
of underground rail links in London and will affect people in the area.
2.4.2 Role of the House of Commons
As the members of the House of Commons are democratically elected, most
Bills are introduced into the House of Commons first. If the House of Commons
votes against a Bill, then that is the end of the Bill.
During the course of a Bill through the House of Commons, there will be
debates on issues of the policy behind the law as well as on the specific details of
the Bill.
The government will have a majority in the House of Commons, so that it is
likely that policies supported by the government will become law.
2.4.3 Role of the House of Lords

The House of Lords acts as a check on the House of Commons. All Bills go
through the House of Lords and they can vote against proposed changes to the
law. In some cases this may alert the House of Commons to a problem with the
proposal and it will be dropped or amended.
However, the power of the House of Lords is limited by the Parliament Acts
1911 and 1949. These allow a Bill to become law even if the House of Lords
rejects it, provided that the Bill is reintroduced into the House of Commons in
the next session of Parliament and passes all the stages again there. So the House
of Lords can only delay a law by up to one year.
The principle behind the Parliament Acts is that the House of Lords is not an
elected body. Its function is to refine and add to the law rather than oppose the
will of the democratically elected House of Commons. In fact there have only
been four occasions when this procedure has been used to by-pass the House of
Lords after they had voted against a Bill. These were for the:
• War Crimes Act 1991;
• European Parliamentary Elections Act 1999;
• Sexual Offences (Amendment) Act 2000;
• Hunting Act 2004.
Following the passing of the Hunting Act 2004 under the use of the Parliament
Acts, there was a challenge as to whether the Act was constitutionally valid. This
was in R (Jackson and others) v Attorney General (2005). The challenge was on
the basis that the Parliament Act 1949 could not be used as it had increased the
House of Commons’ power without the agreement of the House of Lords. It was
held that the Parliament Act 1949 merely placed limits on the power of the
unelected House of Lords. It did not increase the power of the House of
Commons. Therefore the Hunting Act 2004 had been validly enacted and was
law.
2.4.4 The Parliamentary process

In order to become an Act of Parliament, the Bill will usually have to be passed
by both Houses of Parliament, and in each House there is a long and complex
process. A Bill may start in either the House of Commons or the House of Lords,
with the exception of finance bills which must start in the House of Commons.
All Bills must go through the following stages.
1. First Reading
This is a formal procedure where the name and main aims of the Bill are read
out. Usually no discussion or vote takes place.
2. Second Reading
This is the main debate on the whole Bill in which MPs debate the principles
behind the Bill. The debate usually focuses on the main principles rather than
the smaller details. Those MPs who wish to speak in the debate must catch
the Speakers’ eye, since the Speaker controls all debates and no-one may
speak without being called on by the Speaker. At the end of this a vote is
taken. The vote may be verbal, that is the Speaker of the House asks the
members as a whole how they vote and the members shout out ‘Aye’ or
‘No’. If it is clear that nearly all members are in agreement, either for or
against, there is no need for a more formal vote.
If it is not possible to judge whether more people are shouting ‘Aye’ or
‘No’, there will be a formal vote in which the members of the House vote by
leaving the Chamber and then walking back in through one of two special
doors on one side or the other of the Chamber. There will be two ‘tellers’
positioned at each of these two voting doors to make a list of the Members
voting on each side. These tellers count up the number of MPs who voted for
and against and declare these numbers to the Speaker in front of the
members of the House.
Obviously there must be a majority in favour for the Bill to progress any
further.
3. Committee Stage
At this stage a detailed examination of each clause of the Bill is undertaken
by a committee of between 16 and 50 MPs. This is usually done by what is
called a Standing Committee, which, contrary to its name, is a Committee
chosen specifically for that Bill.
In such a committee the government will have a majority and the
opposition and minority parties are represented proportionately to the
number of seats they have in the House of Commons.
The members of Parliament nominated for each Standing Committee will
usually be those with a special interest in or knowledge of the subject of the
Bill which is being considered. For finance Bills the whole House will sit in
committee.
4. Report Stage
At the Committee stage amendments to various clauses in the Bill may have
been voted on and passed, so this report stage is where the committee report
back to the House on those amendments. (If there were no amendments at
the Committee stage, there will not be a ‘Report’ stage – instead the Bill will
go straight on to the Third Reading.) The amendments will be debated in the
House and accepted or rejected. Further amendments may also be added. The
Report stage has been described as ‘a useful safeguard against a small
Committee amending a Bill against the wishes of the House, and a necessary
opportunity for second thoughts’.
5. Third Reading
This is the final vote on the Bill. It is almost a formality since a Bill which
has passed through all the stages above is unlikely to fail at this late stage. In
fact in the House of Commons there will only be an actual further debate on
the Bill as a whole if at least six MPs request it.
6. The House of Lords
If the Bill started life in the House of Commons it is now passed to the
House of Lords where it goes through the same five stages outlined above. If
the House of Lords makes amendments to the Bill, then it will go back to the
House of Commons for them to consider those amendments. If the Commons
do not accept the Lords’ amendments, they then send those amendments
back to the Lords. This sending to and fro can go on for some time and is
referred to as ‘ping-pong’.
7. Royal Assent
The final stage is where the monarch formally gives approval to the Bill and
it then becomes an Act of Parliament. This is now a formality and, under the
Royal Assent Act 1967, the monarch will not even have the text of the Bills
to which she is assenting; she will only have the short title. The last time that
a monarch refused assent was in 1707, when Queen Anne refused to assent
to the Scottish Militia Bill.
These stages in the Parliamentary procedure are shown in a flow chart in Figure
2.4.
Commencement of an Act of Parliament

Following the Royal Assent the Act of Parliament will come into force on
midnight of that day, unless another date has been set. However, very few Acts
are implemented immediately. Instead the Act itself states the date when it will
commence or passes responsibility on to the appropriate minister to fix the
commencement date. In the latter case the minister will bring the Act into force
by issuing a commencement order.
This can cause problems as it can be necessary to keep checking which
sections have been brought into force. It may be that some sections or even a
whole Act will never become law. An example of this is the Easter Act 1928,
which was intended to fix the date of Easter Day. Although this Act passed all
the necessary Parliamentary stages, and was given the Royal Assent, it has never
come into force.
2.5 Example of an Act of Parliament
On page 28 is a reproduction of the Law Reform (Year and A Day Rule) Act
1996. This shows what an Act of Parliament looks like. The name of the Act is
given immediately under the Royal coat of arms and underneath the name 1996
CHAPTER 19 means that it was the 19th Act to be passed in 1996.
Next follows a short statement or preamble about the purpose of the Act. Then
there is a formal statement showing that the Act has been passed by both Houses
of Parliament and received the Royal Assent; this is included in all Acts. After
this comes the body of the Act, which is set out in sections; this is an unusually
short Act as it has only three sections.
Section 1 abolishes the ‘year and a day rule’. Note that the Act actually refers
to it in those terms; this is because the rule was a part of the common law and
was never written down in any statute. Section 2 sets out when the consent of the
Attorney-General is needed before a prosecution can be started. The last section
gives the name by which the Act may be cited and it also sets out that the Act
does not apply to cases in which the incident which led to death occurred before
the Act was passed.
Section 3(3) is concerned with the commencement of the Act; this sets the
commencement date for section 2 at two months after the Act is passed. As
section 1 is not specifically mentioned, the normal rule that an Act comes into
effect on midnight of the date on which it receives the Royal Assent applies to
that section.
Internet Research
1. Look up a recent Act of Parliament on the Internet. You can find Acts on
www.opsi.gov.uk. Try to find the commencement section.
2. Look up any Bill that is currently going through Parliament. These are on
www.parliament.uk. What stage in the parliamentary process has the Bill
you have chosen reached?
2.6 Advantages of law making in Parliament
The main advantage of parliamentary-made law is that it is made by our elected
representatives. This means it is democratic. Also, as there has to be a general
election at least once every five years, the public can vote out any government if
it has not performed as the public expected.
Another advantage is that Acts of Parliament can reform whole areas of law in
the one Act. An example is in the criminal law with the Fraud Act 2006 which
abolished all the old offences of deception and fraud and created a newer and,
hopefully, simpler structure of offences. Judges can only change the law on very
small areas of law as they can only rule on the point of law in the case they are
deciding.
Acts of Parliament can also set broad policies and give the power to others to
make detailed regulations. This is known as delegated legislation (see Chapter
3). This is an advantage because the general structure is laid down by Parliament
but it allows greater detail in the law than if it was just contained in an Act of
Parliament.
Also before a Bill is presented to Parliament there will have been consultation
on the proposed changes to the law. This allows the government to take into
consideration objections to the proposals. Also, as all Bills have to go through
the lengthy process in both Houses of Parliament, the new law will be
thoroughly discussed in Parliament.
Law made by Parliament is also certain as it cannot be challenged under the
doctrine of Parliamentary supremacy (see section 2.8).
2.7 Disadvantages of law making in Parliament
Although there are major advantages to having law made in Parliament, there are
also some disadvantages. One is that Parliament does not always have time to
deal with all the reforms that are proposed. This is particularly true of reform of
‘lawyers’ law’ such as criminal law or the law of contract.
An example of law that is still awaiting reform is the law on assaults and other
offences against the person. The Law Commission proposed changes to the law
on offences against the person in 1993. Reform was needed because the old law
dated back to an Act of 1861 which was very difficult to understand. In 1997 the
government accepted that there was a need for reform and published a draft Bill
in 1998. However, this was not put before Parliament and the law has not yet
been reformed.
Even where the Government introduces a Bill into Parliament the process of
becoming an Act with all the different reading, committee and report stages can
take several months.
The Government is in control of the Parliamentary timetable and allows very
little time for private members’ Bills. Even when a private member does manage
to introduce a Bill, it can be easily voted out by the Government as they have the
majority in the House of Commons. The result is that very few private members’
Bills become law.
Another disadvantage is that Acts of Parliament are often very long and
complex. This can make them difficult to understand. In fact many of the cases
that go to the House of Lords on appeals are about what the words in an Act of
Parliament mean.
The law can become even more complicated where one Act amends another
so that it is necessary to consult two or more Acts to find out exactly what the
law is.
2.8 Parliamentary supremacy
The most widely recognised definition of Parliamentary supremacy was given by
Dicey in the nineteenth century. He made three main points:
1. Parliament can legislate on any subject-matter.
2. No Parliament can be bound by any previous Parliament, nor can a
Parliament pass any Act that will bind a later Parliament.
3. No other body has the right to override or set aside an Act of Parliament.
Parliamentary supremacy is also referred to as Parliamentary sovereignty.
Legislating on any subject-matter

There are no limits on what Parliament can make laws about. It can make any
law it wants. For example, in the past Parliament changed the rule on who
should succeed to the throne. This was in 1700 when Parliament passed the Act
of Settlement which stated that the children of King James II (who were the
direct line of the monarchy) could not succeed to the throne.
Parliament can also change its own powers. It did this with the Parliament
Acts 1911 and 1949 which placed limits on the right of the House of Lords to
block a Bill by voting against it (see section 2.4.3).
Cannot bind successor

Each new Parliament should be free to make or change what laws they wish.
They cannot be bound by a law made by a previous Parliament. They can repeal
any previous Act of Parliament.
There are, however, some laws that become such an important part of the
British constitution that they cannot realistically be repealed. For example, the
Act of Settlement in 1700 changed the line of succession to the throne. It
affected who was entitled to become King or Queen. Realistically, after 300
years, this can not now be repealed.
Another example where it would be impractical to repeal the law is the Statute
of Westminster 1931. Before 1931 The United Kingdom had the right to make
law for Dominion countries (now Commonwealth countries). Section 4 of the
Statute of Westminster stated that no future United Kingdom statute should
extend to law in those countries unless the countries requested and consented to
the legislation. These countries included Australia, Canada and New Zealand.
Technically, the Statute of Westminster 1931 could be repealed and the UK
could pass a law extending to one or more of these countries, but obviously none
of those countries would accept such a law. So, it is impracticable to repeal the
Statute of Westminster.
There are other modern limitations which have been self-imposed by
Parliament. These are dealt with in section 2.8.1 below.
Cannot be overruled by others

This rule is kept to even where the Act of Parliament may have been made
because of incorrect information. This was shown by British Railways Board v
Pickin (1974). A private Act of Parliament, the British Railways Act 1968, was
enacted by Parliament. Pickin challenged the Act on the basis that the British
Railways Board had fraudulently concealed certain matters from Parliament.
This alleged fraud had led to Parliament passing the Act which had the effect of
depriving Pickin of his land or proprietary rights. The action was struck out
because no court is entitled to go behind an Act once it has been passed. A
challenge cannot be made to an Act of Parliament even if there was fraud.
2.8.1 Limitations on Parliamentary supremacy

There are now some limitations on Parliament’s supremacy but all these limits
have been self-imposed by previous Parliaments. The main limitations are
through:
• membership of the European Union;
• the effect of the Human Rights Act 1998;
• devolution.
Effect of membership of the EU

The United Kingdom joined the European Union in 1973. In order to become a
member, Parliament passed the European Communities Act 1972. Although, as
Parliament passed that Act, it is theoretically possible for a later Parliament to
pass an Act withdrawing from the European Union, political reality means that
this is very unlikely. Membership of the EU affects so much of our law and
political system.
Membership of the EU means that EU laws take priority over English law
even where the English law was passed after the relevant EU law. This was
shown by the Merchant Shipping Act 1988 which set down rules for who could
own or manage fishing boats registered in Britain. The Act stated that 75 per
cent of directors and shareholders had to be British. The European Court of
Justice ruled that this was contrary to European Union law under which citizens
of all member states can work in other member states. The Merchant Shipping
Act 1988 could not be effective so far as other EU citizens were concerned.
Effect of Human Rights Act 1998

This states that all Acts of Parliament have to be compatible with the European
Convention on Human Rights. It is possible to challenge an Act on the ground
that it does not comply with the Convention. Under s 4 of the Human Rights
Act, the courts have the power to declare an Act incompatible with the
Convention.
This happened in H v Mental Health Review Tribunal (2001). When a patient
was making an application to be released, the Mental Health Act 1983 placed the
burden of proof on the patient to show that he should be released. Human rights
meant that it should be up to the state to justify the continuing detention of such
a patient. The court made a declaration that the law was not compatible with
human rights. Following this declaration of incompatibility, the Government
changed the law.
However, a declaration of incompatibility does not mean that the Government
has to change the law. Also, if Parliament wishes it can pass a new Act which
contravenes the European Convention on Human Rights.
Devolution
The Scotland Act 1998 and the Wales Act 1998 have devolved (handed down)
certain powers to the Scottish Assembly and to the Welsh Assembly. As a result
they can make laws on some matters for their own countries without having to
get Parliament’s approval. This means that Parliament’s supremacy has been lost
in these areas.
It is theoretically possible that a future Parliament could repeal the Scotland
Act 1998 and the Wales Act 1998, but it seems unlikely as such a move would
be very unpopular and would lose support for any political party which proposed
it.
Test Yourself
1. What type of Paper may be issued by the Government before a new Bill is
introduced into Parliament?
2. Who introduces the majority of Bills into Parliament?
3. By what two methods can a private MP introduce a Bill into Parliament?
4. Explain what is meant by a public Bill.
5. When a Bill is introduced into the House of Commons what stages does it
have to pass before it goes to the House of Lords?
6. Which Acts limit the House of Lords’ powers in respect of Bills?
7. Give three advantages of the Parliamentary system of law-making.
8. Give three disadvantages of the Parliamentary system of law-making.
9. Briefly explain what is meant by Parliamentary supremacy.
10. What are the limitations on Parliamentary supremacy?
Examination questions
(a) Briefly explain what is meant by the doctrine of parliamentary supremacy.
Outline one limitation on this doctrine.
(10 marks)
(b) Outline the following:
• the nature and purpose of Green and White papers
• the law-making process in the House of Commons.
(10 marks)
(c) Discuss disadvantages of the law-making process in Parliament.
(10 marks + 2 marks for AO3)
AQA Law Unit 1 June 2012
Examiner’s tip
Know the examiners’ approach to marking
For part (a) of the question above the AQA mark scheme states that, to get into
the top mark band, you must deal with the two issues (doctrine of
Parliamentary supremacy) in the following way:
max 10: two sound
max 9: one sound, one clear
max 8: one sound, one some or two clear.
Sound means that:
• The material will be predominantly accurate and contain material relevant to
the Potential Content;
• The material will be supported by generally relevant authority and/or
examples;
• It will generally deal with the Potential Content in a manner required by the
question.
As a consequence, the essential features of the Potential Content are dealt with
competently and coherently.
Clear means that:
• The material is broadly accurate and relevant to the Potential Content;
• The material will be supported by some use of relevant authority and/or
examples;
• The material will broadly deal with the Potential Content in a manner
required by the question.
As a consequence, the underlying concepts of the Potential Content will be
present, though there may be some errors, omissions and/or confusion which
prevent the answer from being fully rounded or developed.
NB These definitions of sound and clear are important as they are used for
marking on every question. The full mark scheme can be found on AQA’s
website www.aqa.org.uk.
Now answer the question trying to make sure that you deal with both issues in a
sound way. Use the information in sections 2.8 for part (a), 2.3.1 and 2.4.2 for
part (b) and 2.7 for your answer to part (c).
Chapter 3
Delegated Legislation
D elegated legislation is law made by some person or body other than

Parliament, but with the authority of Parliament. That authority is usually
laid down in a ‘parent’ Act of Parliament known as an enabling Act. The
enabling Act creates the framework of the law and then delegates power to
others to make more detailed law in the area.
3.1 Types of delegated legislation
There are three different types of delegated legislation:
• Orders in Council;
• statutory instruments;
• bylaws.
Figure 3.1 shows these in diagram form.
3.1.1 Orders in Council

The Queen and the Privy Council have the authority to make Orders in Council.
The Privy Council is made up of the Prime Minister and other leading members
of the government. So this type of delegated legislation effectively allows the
government to make laws without going through Parliament.
Orders in Council can be made on a wide range of matters, especially:
• giving legal effect to European Directives;
• transferring responsibility between Government departments, e.g. when the
Ministry of Justice was created, the powers of the previous Department of
Constitutional Affairs and some of the powers of the Home Office were
transferred to this new ministry;
• bringing Acts (or parts of Acts) of Parliament into force.
In addition, the Privy Council has power to make law in emergency situations
under the Civil Contingencies Act 2004. This power will usually only be
exercised in times of emergency when Parliament is not sitting.
Orders in Council can also be used to make other types of law. For example,
in 2003, an Order in Council was used to alter the Misuse of Drugs Act 1971 so
as to make cannabis a class C drug. Five years later, the Government decided
that it had been a mistake to downgrade cannabis and another Order in Council
was issued changing cannabis back to a class B drug (see Figure 3.2).
There must be an enabling Act allowing the Privy Council to make Orders in
Council on the particular topic. For the change of category of cannabis, the
enabling Act was the Misuse of Drugs Act 1971.
Another enabling Act giving power to make Orders in Council is the
Constitutional Reform Act 2005. This allows the Privy Council to alter the
number of judges in the Supreme Court.
3.1.2 Statutory instruments

The term ‘statutory instruments’ refers to rules and regulations made by
government ministers. Ministers and government departments are given
authority to make regulations for areas under their particular responsibility.
There are about 15 Departments in the Government. Each one deals with a
different area of policy and can make rules and regulations in respect of matters
it deals with. So the Minister for Work and Pensions will be able to make
regulations on work-related matters, such as health and safety at work, while the
Minister for Transport will be able to deal with necessary road traffic
regulations.
Internet Research
Look up recent Orders in Council on the Privy Council website at
http://privycouncil.independent.gov.uk/.
On the Home page, click on Privy Council, then click on Privy Council
Meetings. You should now see a series of dates on which meetings took place.
Click on any of these dates and you should see a list of Orders made at that
meeting.
Look to see which enabling Acts have allowed recent orders to be made. The
Enabling Act is usually given on the left-hand side of the list of orders.
Statutory instruments can be very short, covering one point such as making
the annual change to the minimum wage. However, other statutory instruments
may be very long with detailed regulations which were too complex to include in
an Act of Parliament.
Examples of statutory instruments which include a lot of detail are:
• the Chemicals (Hazard Information and Packaging for Supply) Regulations
2009. This statutory instrument was made by the Minister for Work and
Pensions under powers given in the European Communities Act 1972 and the
Health and Safety at Work etc Act 1974;
• police codes of practice in relation to such powers as stop and search, arrest
and detention. These were made by the Minister for Justice under powers in
the Police and Criminal Evidence Act 1984.
Statutory instruments are a major way of making law, as over 3,000 are made
each year.
3.1.3 By-laws
These can be made by local authorities to cover matters within their own area,
for example, a County Council can pass laws affecting the whole county while a
District or Town council can only make by-laws for its district or town. Many
local by-laws will involve traffic control, such as parking restrictions. Other by-
laws may be for such matters as banning drinking in public places orbanning
people from riding cycles in local parks.
By-laws can also be made by public corporations and certain companies for
matters within their jurisdiction, which involve the public. This means that
bodies such as the British Airports Authority and the railways can enforce rules
about public behaviour on their premises.
3.2 Control of delegated legislation
As delegated legislation in many instances is made by non-elected bodies and,
since there are so many people with the power to make delegated legislation, it is
important that there should be some control over delegated legislation. Control is
exercised by Parliament and by the courts. In addition there may sometimes be a
Public Enquiry before a law is passed on an especially sensitive matter, such as
planning laws which may affect the environment.
3.2.1 Control by Parliament

Enabling Act
Parliament has the initial control over what powers are delegated as the enabling
Act sets out the limits within which any delegated legislation must be made. For
example, the Act will state which government minister can make the regulations.
It will also state the type of laws to be made and whether they can be made for
the whole country or only for certain places. The Act can also set out whether
the government department must consult other people before making the
regulations.
Activity
Look at the following two sources and answer the questions below.
Source A
Source B
Alcohol free zones in Knowsley
Alcohol free zones are being set up in Knowsley to tackle crime and anti social
behaviour caused by binge drinking. The Safer Knowsley Partnership, which
includes Merseyside Police and Knowsley Council, is taking the measure after
successfully securing the borough’s first Designated Public Place Orders back
in 2008.
The orders have been approved in Wignall Park, Court Hey Park, Stadtmoers,
Millennium Green and Henley Park, and will come into force on 16th July
2009. The orders will make it an offence for anyone to drink alcohol after being
required by a police officer not to do so.
Police have the power to confiscate and dispose of alcohol and it is an
arrestable offence to fail to co-operate, without reasonable excuse, with a police
officer’s request. The ban does not affect drinking in any licensed premises.
Reducing crime and disorder
Knowsley Council’s Licensing Committee approved the orders on 25th June
2009. This is part of the Safer Knowsley Partnership’s on-going commitment to
reduce alcohol related crime and disorder and anti social behaviour.
Taken from Merseyside Police website July 2009
Questions
1. What type of delegated legislation is Source A?
2. Which Act is the enabling Act which allowed this delegated legislation to
be made?
3. Which government department was responsible for producing the
regulations?
4. To which type of delegated legislation does Source B refer?
5. Who made the orders referred to in the source?
6. What effect do these orders have?
Parliament also retains control over the delegated legislation as it can repeal
the powers in the enabling Act at any time. If it does this then the right to make
regulations will cease.
Delegated Powers Scrutiny Committee

There is a Delegated Powers Scrutiny Committee in the House of Lords which
considers whether the provisions of any Bills going throughParliament delegate
legislative power inappropriately. It reports its findings to the House of Lords
before the Committee stage of the Bill, but it has no power to amend Bills.
It is sensible that checks are made on what powers are proposed to be
delegated. If the powers in the original enabling Act are appropriate, then the
delegated legislation is more likely to be properly drawn up.
However, there also need to be checks to make sure that powers are not being
used wrongly. Parliament has the following ways of checking on delegated
legislation:
• affirmative resolution;
• negative resolution;
• Joint Select Committee on Statutory Instruments (Scrutiny Committee).
In addition there are special controls for any delegated legislation made under
the Legislative and Regulatory Reform Act 2006 (see section 3.2.2).
Affirmative resolutions
A small number of statutory instruments will be subject to an affirmative
resolution. This means that the statutory instrument will not become law unless
specifically approved by Parliament. The need for an affirmative resolution will
be included in the enabling Act. For example, an affirmative resolution is
required before new or revised police Codes of Practice under the Police and
Criminal Evidence Act 1984 can come into force. One of the disadvantages of
this procedure is that Parliament cannot amend the statutory instrument; it can
only be approved, annulled or withdrawn.
Negative resolutions
Most other statutory instruments will be subject to a negative resolution, which
means that the relevant statutory instrument will be law unless rejected by
Parliament within 40 days. The main problem with this procedure is that very
few of the statutory instruments will be looked at. They are available for MPs to
consider, but, as there are so many statutory instruments, it is likely that only a
few will be looked at.
Questions
Individual Ministers may also be questioned by MPs in Parliament on the work
of their departments, and this can include questions about proposed regulations.
Scrutiny Committee
A more effective check is the Joint Select Committee on Statutory Instruments,
usually called the Scrutiny Committee. This committee reviews all statutory
instruments and, where necessary, will draw the attention of both Houses of
Parliament to points that need further consideration. However, the review is a
technical one and not based on policy. The main grounds for referring a statutory
instrument back to the Houses of Parliament are that:
• it imposes a tax or charge – this is because only an elected body has such a
right;
• it appears to have retrospective effect which was not provided for by the
enabling Act;
• it appears to have gone beyond the powers given under the enabling
legislation;
• it makes some unusual or unexpected use of those powers;
• it is unclear or defective in some way.
The Scrutiny Committee can only report back its findings; it has no power to
alter any statutory instrument.
The two main problems are, first, that the review is only a technical one
limited to the points set out above. Secondly, even if the Committee discovers a
breach of one of these points, the Committee cannot alter the regulations or stop
them from becoming law. The Committee can only draw the attention of
Parliament to the matter.
3.2.2 The Legislative and Regulatory Reform Act 2006

This Act sets procedure for the making of statutory instruments which are aimed
at repealing an existing law in order to remove a ‘burden’. For the purpose of the
Act ‘burden’ means any of the following:
(a) a financial cost;
(b) an administrative inconvenience;
(c) an obstacle to efficiency, productivity or profitability; or
(d) a sanction, criminal or otherwise, which affects the carrying on of any lawful
activity.
Any minister making a statutory instrument under the powers of this Act must
consult various people and organisations. These include:
• organisations which are representative of interests substantially affected by the
proposals;
• the Welsh Assembly in relation to matters upon which the Assembly exercises
functions;
• the Law Commission where appropriate.
Orders made under this power of this Act must be laid before Parliament. There
are three possible procedures:
1. negative resolution procedure where the Minister recommends that this
procedure should be used, it will be used unless within 30 days one of the
Houses of Parliament objects to this. If the negative resolution procedure is
adopted, the delegated legislation will not become law until it has been laid
before Parliament for 40 days;
2. affirmative resolution procedure this requires both Houses of Parliament
to approve the order: even though the Minister has recommended this
procedure Parliament can still require the super-affirmative resolution
procedure to be used;
3. super-affirmative resolution procedure under this the Minister must have
regard to:
• any representations;
• any resolution of either House of Parliament;
• any recommendations by a committee of either House of Parliament who are
asked to report on the draft order.
This super-affirmative resolution procedure gives Parliament more control over
delegated legislation made under the Legislative and Regulatory Reform Act
2006. It is important that this is the position as the Act gives Ministers very wide
powers to amend Acts of Parliament.
3.2.3 Control by the courts

Delegated legislation can be challenged in the courts on the ground that it is
ultra vires, that is, it goes beyond the powers that Parliament granted in the
enabling Act. The validity of delegated legislation may be challenged through
the judicial review procedure, or it may arise in a civil claim between two
parties.
Any delegated legislation which is ruled to be ultra vires is void and not
effective. This was illustrated by R v Home Secretary, ex parte Fire Brigades
Union (1995) where changes made by the Home Secretary to the Criminal
Injuries Compensation scheme were held to have gone beyond the power given
to him in the Criminal Justice Act 1988.
The courts will presume that unless an enabling act expressly allows it, there
is no power to do any of the following:
• make unreasonable regulations – in Strickland v Hayes Borough Council
(1896) a by-law prohibiting the singing or reciting of any obscene song or
ballad and the use of obscene language generally, was held to be unreasonable
and so ultra vires, because it was too widely drawn in that it covered acts done
in private as well as those in public;
• levy taxes;
• allow sub-delegation.
It is also possible for the courts to hold that delegated legislation is ultra vires
because the correct procedure has not been followed. For example in the
Aylesbury Mushroom case (1972) the Minister of Labour had to consult ‘any
organisation … appearing to him to be representative of substantial numbers of
employers engaging in the activity concerned’. His failure to consult the
Mushroom Growers’ Association, which represented about 85 per cent of all
mushroom growers, meant that his order establishing a training board was
invalid as against mushroom growers. However, it was valid in relation to others
affected by the order, such as farmers, as the Minister had consulted with the
National Farmers Union.
In R v Secretary of State for Education and Employment, ex parte National
Union of Teachers (2000) a High Court judge ruled that a statutory instrument
setting conditions for appraisal and access to higher rates of pay for teachers was
beyond the powers given under the Education Act 1996. In addition, the
procedure used was unfair as only four days had been allowed for consultation.
Statutory Instruments can also be declared void if they conflict with European
Union legislation.
3.3 Advantages of delegated legislation
Saves Parliamentary time
Parliament does not have time to consider and debate every small detail of
complex regulations. Making such regulations through delegated legislation
saves Parliamentary time.
Need for technical expertise

Parliament may not have the necessary technical expertise or knowledge
required; for example health and safety regulations in different industries need
expert knowledge, while local parking regulations need local knowledge.
Modern society has become very complicated and technical, so that it is
impossible that members of Parliament could have all the knowledge needed to
draw up laws on controlling technology, ensuring environmental safety, dealing
with a vast array of different industrial problems or operating complex taxation
schemes. It is thought that it is better for Parliament to debate the main
principles thoroughly, but leave the detail to be filled in by those who have
expert knowledge of it.
Allows consultation
Ministers can have the benefit of further consultation before regulations are
drawn up. Consultation is particularly important for rules on technical matters,
where it is necessary to make sure that the regulations are technically workable.
Allows quick law-making

As already seen the process of passing an Act of Parliament can take a
considerable time and in an emergency Parliament may not be able to pass law
quickly enough. Orders in Council, especially, can be made very quickly.
Easy to amend
Delegated legislation can be amended or revoked easily when necessary so that
the law can be kept up to date. This is useful where monetary limits have to
change each year as, for example, the minimum wage or the limits for legal aid.
Ministers can also respond to new or unforeseen situations by amending
regulations made through a statutory instrument. This is another reason why use
of delegated legislation is sometimes preferred to an Act of Parliament.
Test Yourself
1. What is an enabling Act?
2. Who can make Orders in Council?
3. Who can make bylaws?
4. What is the other type of delegated legislation?
5. Name three ways in which Parliament can control delegated legislation.
6. Give three advantages of these controls.
7. Give three disadvantages of these controls.
8. When can the courts declare that delegated legislation is void?
9. Give three advantages of using delegated legislation.
10. Give three disadvantages of using delegated legislation.
3.4 Disadvantages of delegated legislation
1. The main criticism is that delegated legislation takes law making away from
the democratically elected House of Commons and allows non-elected
people to make law. This is acceptable provided there is sufficient control,
but, as already seen, Parliament’s control is fairly limited. This criticism
cannot be made of by-laws made by local authorities since these are elected
bodies and accountable to the local citizens.
2. Another problem is that of sub-delegation, which means that the law making
authority is handed down another level. This causes comments that much of
our law is made by civil servants and merely ‘rubber stamped’ by the
Minister of that department.
3. The large volume of delegated legislation also gives rise to criticism, since it
makes it difficult to discover what the present law is. This problem is
aggravated by a lack of publicity, as much delegated legislation is made in
private, in contrast to the public debates of Parliament.
4. Finally, delegated legislation shares with Acts of Parliament the same
problem of obscure wording that can lead to difficulty in understanding the
law. This difficulty of how to understand or interpret the law is dealt with
next.
(a) Statutory instruments, By-laws and Orders in Council are all different forms
of legislation. Briefly describe any two of these forms.
(10 marks)
(b) Describe judicial controls on delegated legislation.
(10 marks)
(c) Discuss advantages of delegated legislation.
Examiner’s tip
Where the question states ‘describe any two forms’ (see part (a) above), make
sure that you do describe two types. If you only do one, you cannot get into the
highest mark bands.
Chapter 4
Statutory Interpretation
A s seen in Chapter 2, many Acts of Parliament are passed by Parliament each

year. The meaning of the law in these statutes should be clear and explicit
but this is not always achieved. In order to help with the understanding of a
statute Parliament sometimes includes sections defining certain words used in
that statute. Such sections are called interpretation sections. In the Theft Act
1968, for example, the definition of theft is given in s 1, and then ss 2 to 6
define the key words in that definition. To help the judges with general words
Parliament has also passed the Interpretation Act 1978 which makes it clear
that, unless the contrary appears, he includes she, and singular includes plural.
4.1 The need for statutory interpretation
Despite the aids mentioned above, many cases come before the courts because
there is a dispute over the meaning of an Act of Parliament. In such cases the
court’s task is to decide the exact meaning of a particular word or phrase. There
are many reasons why meaning may be unclear:
• A broad term
There may be words designed to cover several possibilities; this can lead to
problems as to how wide this should go. In the Dangerous Dogs Act 1991
there is a phrase ‘any dog of the type known as the pit bull terrier’. This seems
a simple phrase but has led to problems. What is meant by type? Does it mean
the same as ‘breed’? In Brock v DPP (1993) this was the key point in dispute
and the Queen’s Bench Divisional Court decided that ‘type’ had a wider
meaning than ‘breed’. It could cover dogs which were not pedigree pit bull
terriers, but had a substantial number of the characteristics of such a dog.
• Ambiguity
This is where a word has two or more meanings; it may not be clear which
meaning should be used.
• A drafting error
The Parliamentary Counsel who drafted the original Bill may have made an
error which has not been noticed by Parliament; this is particularly likely to
occur where the Bill is amended several times while going through Parliament.
• New developments
New technology may mean that an old Act of Parliament does not apparently
cover present day situations. This is seen in the case of Royal College of
Nursing v DHSS (1981) where medical science and methods had changed
since the passing of the Abortion Act in 1967. This case is discussed more
fully at section 4.6.1.
• Changes in the use of language
The meaning of words can change over the years. This was one of the
problems in the case of Cheeseman v DPP (1990). The Times law report of
this case is set out opposite in the activity section.
4.2 Literal approach versus purposive approach
The case of Cheeseman in the activity opposite illustrates several of the
problems of statutory interpretation. It is an example of the courts taking the
words literally.
However, it can be argued that the defendant was ‘wilfully and indecently
exposing his person in a street’ and that he was caught doing that. Is it important
whether the police officers were ‘passengers’? After all they were there because
of previous complaints about this type of behaviour and presumably the
defendant thought they were ordinary members of the public. Some people
would argue that the whole purpose of the act was to prevent this type of
behaviour; this is the purposive approach to statutory interpretation. Instead of
looking at the precise meaning of each word a broader approach is taken.
This conflict between the literal approach and the purposive approach is one
of the major issues in statutory interpretation. Should judges examine each word
and take the words literally or should it be accepted that an Act of Parliament
cannot cover every situation and that meanings of words cannot always be exact.
In European law the purposive approach is taken. This is important since as
European laws are issued in several languages, it would be difficult, if not
impossible, to take the meanings of words literally. It is not always possible to
have an exact translation from one language to another.
4.3 The three rules
In English law the judges have not been able to agree on which approach should
be used, but instead, over the years they have developed three different rules of
(or approaches to) interpretation. These are:
• the literal rule;
• the golden rule;
• the mischief rule.
These rules take different approaches to interpretation and some judges prefer to
use one rule, while other judges prefer another rule. This means that the
interpretation of a statute may differ according to which judge is hearing the
case. However, once an interpretation has been laid down, it may then form a
precedent for future cases under the normal rules of judicial precedent. Since the
three rules can result in very different decisions, it is important to understand
them.
4.4 The literal rule
Under this rule courts will give words their plain, ordinary or literal meaning,
even if the result is not very sensible. This idea was expressed by Lord Esher in
R v Judge of the City of London Court (1892) when he said:
Activity
Read the following law report and answer the questions below.
Lurking policeman not ‘passengers’
Cheeseman v Director of Public Prosecutions
Police officers who witnessed a man masturbating in a public lavatory were not
‘passengers’ within the meaning of section 28 of the Town Police Clauses Act
1847 when they had been stationed in the lavatory following complaints.
The Queen’s Bench Divisional Court so held in allowing an appeal by way of
case stated by Ashley Frederick Cheeseman against his conviction of an
offence of wilfully and indecently exposing his person in a street to the
annoyance of passengers.
Section 81 of the Public Health Acts Amendment Act 1907 extended the
meaning of the word ‘street’ in section 28 to include, inter alia, any place of
public resort under the control of the local authority.
LORD JUSTICE BINGHAM, concurring with Mr Justice Waterhouse, said
that The Oxford English Dictionary showed that in 1847 when the Act was
passed ‘passenger’ had a meaning, now unusual except in the expression ‘foot-
passenger’ of ‘a passer by or through; a traveller (usually on foot); a wayfarer’.
Before the meaning of ‘street’ was enlarged in 1907 that dictionary definition
of passenger was not hard to apply: it clearly covered anyone using the street
for ordinary purposes of passage or travel.
The dictionary definition could not be so aptly applied to a place of public
resort such as a public lavatory, but on a commonsense reading when applied in
context ‘passenger’ had to mean anyone resorting in the ordinary way to a
place for one of the purposes for which people would normally resort to it.
If that was the correct approach, the two police officers were not ‘passengers’.
They were stationed in the public lavatory in order to apprehend persons
committing acts which had given rise to earlier complaints. They were not
resorting to that place of public resort in the ordinary way but for a special
purpose and thus were not passengers.
Questions
1. In this case the meaning of the word ‘street’ was important. Why did the
court decide the word ‘street’ in the Act included a public lavatory?
2. The meaning of the word ‘passenger’ was also important. How did the
court discover what this word meant in 1847?
3. The court decided that ‘passenger’ meant ‘a passer by or through; a
traveller (usually on foot); a wayfarer’. Why did that definition not apply to
the police officers who arrested the defendant?
4. The defendant was found not guilty because of the way the court interpreted
‘passenger’. Do you think this was a correct decision? Give reasons for
your answer.
If the words of an act are clear then you must follow them even though they lead
to a manifest absurdity. The court has nothing to do with the question whether
the legislature has committed an absurdity.
The rule developed in the early nineteenth century and was the main rule used
for the first part of the twentieth century. It is still used as the starting point for
interpreting any legislation.
4.4.1 Cases using the literal rule

The rule was used in Whiteley v Chappell (1868) where the defendant was
charged under a section which made it an offence to impersonate ‘any person
entitled to vote’. The defendant had pretended to be a person whose name was
on the voters’ list, but who had died. The court held that the defendant was not
guilty since a dead person is not, in the literal meaning of the words, ‘entitled to
vote’. Using the literal rule in this case made the law absurd.
The rule can also lead to what are considered harsh decisions. This occurred in
London & North Eastern Railway Co v Berriman (1946) where a railway worker
was killed while doing maintenance work, oiling points along a railway line. His
widow tried to claim compensation because there had not been a look-out man
provided by the railway company in accordance with a regulation under the Fatal
Accidents Act which stated that a look-out should be provided for men working
on or near the railway line ‘for the purposes of relaying or repairing’ it. The
court took the words ‘relaying’ and ‘repairing’ in their literal meaning and said
that oiling points was maintaining the line and not relaying or repairing so that
Mrs Berriman’s claim failed.
4.4.2 Advantages of the literal rule

The rule follows the words that Parliament has used. Parliament is our law-
making body and it is right that judges should apply the law exactly as it is
written. Using the literal rule to interpret Acts of Parliament prevents unelected
judges from making law.
Using the literal rule should make the law more certain, as the law will be
interpreted exactly as it is written. This makes it easier for people to know what
the law is and how judges will apply it.
4.4.3 Disadvantages of the literal rule

The literal rule assumes every Act will be perfectly drafted. In fact it is not
always possible to word an Act so that it covers every situation Parliament
meant it to. This was seen in the case of Whiteley v Chappell (1868) where the
defendant was not guilty of voting under another person’s name (see section
4.4.1 above).
Words may have more than one meaning, so that the Act is unclear. Often in
dictionaries words are defined with several different meanings. At section 4.1 we
have already seen that there was difficulty in interpreting the word ‘type’ in the
Dangerous Dogs Act 1991.
Following the words exactly can lead to unfair or unjust decisions. This was
seen in London & North Eastern Railway Co. v Berriman (1946) (see section
4.4.1 above).
With decisions such as Whiteley v Chappell and the Berriman case, it is not
surprising that Professor Michael Zander has denounced the literal rule as being
mechanical and divorced from the realities of the use of language.
4.5 The golden rule
This rule is a modification of the literal rule. The golden rule starts by looking at
the literal meaning but the court is then allowed to avoid an interpretation which
would lead to an absurd result. There are two views on how far the golden rule
should be used. The first is very narrow and is shown by Lord Reid’s comments
in Jones v DPP (1962) when he said:
It is a cardinal principle applicable to all kinds of statutes that you may not for
any reason attach to a statutory provision a meaning which the words of that
provision cannot reasonably bear. If they are capable of more than one
meaning, then you can choose between those meanings, but beyond this you
cannot go.
So under the narrow application of the golden rule the court may only choose
between the possible meanings of a word or phrase. If there is only one meaning
then that must be taken.
The second and wider application of the golden rule is where the words have
only one clear meaning, but that meaning would lead to a repugnant situation.
This is a situation which the court feels that using the clear meaning would
produce a result which should not be allowed. In such a case the court will use
the golden rule to modify the words of the statute in order to avoid this problem.
4.5.1 Cases using the golden rule

The narrow view of the golden rule can be seen in practice in Adler v George
(1964). In this case, the Official Secrets Act 1920 made it an offence to obstruct
Her Majesty’s Forces ‘in the vicinity’ of a prohibited place. The defendants had
obstructed HM Forces actually in the prohibited place. They argued they were
not guilty as the literal wording of the Act did not apply to anyone in the
prohibited place. It only applied to those ‘in the vicinity’, i.e. outside but close to
it. The Divisional Court found the defendants guilty as it would be absurd if
those causing an obstruction outside the prohibited place were guilty, but anyone
inside were not. The words should be read as being ‘in or in the vicinity of’ the
prohibited place.
A very clear example of the use of the wider application of the golden rule
was the case of Re Sigsworth (1935). In this case the son had murdered his
mother. The mother had not made a will, so normally her estate would have been
inherited by her next of kin according to the rules set out in the Administration
of Justice Act 1925. This meant that the murderer son would have inherited as
her ‘issue’.
There was no ambiguity in the words of the Act, but the court was not
prepared to let a murderer benefit from his crime, so it was held that the literal
rule should not apply, the golden rule would be used to prevent the repugnant
situation of the son inheriting. Effectively the court was writing into the Act that
the ‘issue’ would not be entitled to inherit where they had killed the person they
would be inheriting from.
4.5.2 Advantages of the golden rule

It respects the exact words of Parliament except in limited situations. Where
there is a problem with using the literal rule, the golden rule provides an ‘escape
route’.
It allows the judge to choose the most sensible meaning where there is more
than one meaning to the words in the Act. It can also provide sensible decisions
in cases where the literal rule would lead to a repugnant situation. It would
clearly have been unjust to allow the son in Re Sigsworth to benefit from his
crime.
This shows how it can avoid the worst problems of the literal rule.
4.5.3 Disadvantages of the golden rule

It is very limited in its use, so it is only used on rare occasions. Another problem
is that it is not always possible to predict when courts will use the golden rule.
Michael Zander has described it as a ‘feeble parachute’. In other words, it is
an escape route but it cannot do very much.
4.6 The mischief rule
This rule gives a judge more discretion than the other two rules. The definition
of the rule comes from Heydon’s case (1584), where it was said that there were
four points the court should consider. These, in the original language of that old
case, were:
1. ‘What was the common law before the making of the Act?
2. What was the mischief and defect for which the common law did not
provide?
3. What was the remedy the Parliament hath resolved and appointed to cure the
disease of the commonwealth?
4. The true reason of the remedy. Then the office of all the judges is always to
make such construction as shall suppress the mischief and advance the
remedy.’
So, under this rule, the court should look to see what the law was before the Act
was passed in order to discover what gap or ‘mischief’ the Act was intended to
cover. The court should then interpret the Act in such a way that the gap is
covered. This is clearly a quite different approach to the literal rule.
4.6.1 Cases using the mischief rule

The mischief rule was used in Smith v Hughes (1960) to interpret section 1(1) of
the Street Offences Act 1959 which said ‘it shall be an offence for a common
prostitute to loiter or solicit in a street or public place for the purpose of
prostitution’.
The court considered appeals against the conviction under this section of six
different women. In each case the women had not been ‘in a street’. One had
been on a balcony and the others had been at the windows of ground floor
rooms, with the window either half open or closed. In each case the women were
attracting the attention of men by calling to them or tapping on the window, but
they argued that they were not guilty under this section since they were not
literally ‘in a street or public place’. The court decided that they were guilty,
with Lord Parker saying:
For my part I approach the matter by considering what is the mischief aimed at
by this Act. Everybody knows that this was an Act to clean up the streets, to
enable people to walk along the streets without being molested or solicited by
common prostitutes. Viewed in this way it can matter little whether the prostitute
is soliciting while in the street or is standing in the doorway or on a balcony, or
at a window, or whether the window is shut or open or half open.
A similar point arose in Eastbourne Borough Council v Stirling (2000) where

a taxi driver was charged with ‘plying for hire in any street’ without a licence to
do so. His vehicle was parked on a taxi rank on the station forecourt, not on a
street.
He was found guilty as, although the taxi was on private land, he was likely to
get customers from the street. The court referred to Smith v Hughes and said that
it was the same point.
Another case in which the House of Lords used the mischief rule was the
Royal College of Nursing v DHSS (1981). In this case the wording of the
Abortion Act 1967, which provided that a pregnancy should be ‘terminated by a
registered medical practitioner’, was in issue.
When the Act was passed in 1967 the procedure to carry out an abortion was
such that only a doctor (a registered medical practitioner) could do it. From 1972
onwards improvements in medical technique meant that the normal method of
terminating a pregnancy was to induce premature labour with drugs. The first
part of the procedure was carried out by a doctor, but the second part was
performed by nurses without a doctor present. The court had to decide if this
procedure was lawful under the Abortion Act. The case went to the House of
Lords where the majority (3) of the judges held that it was lawful, whilst the
other two said that it was not lawful.
The three judges in the majority based their decision on the mischief rule.
They pointed out that the mischief Parliament was trying to remedy was the
unsatisfactory state of the law before 1967 and the number of illegal abortions
which put the lives of women at risk. They also said that the policy of the Act
was to broaden the grounds for abortion and ensure that they were carried out
with proper skill in hospital. The other two judges took the literal view and said
that the words of the Act were clear and that terminations could only be carried
out by a registered medical practitioner. They said that the other judges were not
interpreting the Act but ‘redrafting it with a vengeance’.
4.6.2 Advantages of the mischief rule

The mischief rule promotes the purpose of the law as it allows judges to look
back at the gap in the law which the Act was designed to cover.
The emphasis is on making sure that the gap on the law is filled. This is more
likely to produce a ‘just’ result. It also means that judges try to interpret the law
in the way that Parliament meant it to work.
The Law Commission prefers the mischief rule and, as long ago as 1969,
recommended that it should be the only rule used in statutory interpretation.
Activity
Read the facts of the case set out below then apply the different rules of
interpretation.
CASE: Fisher v Bell [1960] 1 QB 394
The Restriction of Offensive Weapons Act 1959, s 1(1):
‘Any person who manufactures, sells or hires or offers for sale or hire or lends
or gives to any other person – (a) any knife which has a blade which opens
automatically by hand pressure applied to a button, spring or other device in or
attached to the handle of the knife, sometimes known as a ‘flick knife’ … shall
be guilty of an offence’.
FACTS: The defendant was a shop keeper, who had displayed a flick knife
marked with a price in his shop window; he had not actually sold any. He was
charged under s 1(1) and the court had to decide whether he was guilty of
offering the knife for sale. There is a technical legal meaning of ‘offers for
sale’, under which putting an article in a shop window is not an offer to sell
(students of contract law will learn this rule).
Consider the phrase ‘offers for sale’ and explain how you think the case would
have been decided using:
(a) the literal rule;
(b) the golden rule;
(c) the mischief rule.
Note: the court’s decision on the case is given on page 266.
4.6.3 Disadvantages of the mischief rule

There is the risk of judicial law-making. Judges are trying to fill the gaps in the
law with their own views on how the law should remedy the gap. The case of
Royal College of Nursing v DHSS (see section 4.6.1) shows that judges do not
always agree on the use of the mischief rule.
Use of the mischief rule may lead to uncertainty in the law. It is impossible to
know when judges will use the rule and also what result it might lead to. This
makes it difficult for lawyers to advise clients on the law.
The mischief rule is not as wide as the purposive approach (see section 4.6) as
it is limited to looking back at the gap in the old law. It cannot be used for a
more general consideration of the purpose of the law.
It is clear that the three rules (literal, golden and mischief) can lead to different
decisions on the meanings of words and phrases. See page 51 for an activity
based on a real case in which the different rules could result in different
decisions.
4.7 The purposive approach
This goes beyond the mischief rule in that the court is not just looking to see
what the gap was in the old law. The judges are deciding what they believe
Parliament meant to achieve.
4.7.1 Cases using the purposive approach

The purposive approach was used in R v Registrar-General, ex parte Smith
(1990). The court had to consider s 51 of the Adoption Act 1976 which stated:
(1) ‘Subject to subsections (4) and (6), the Registrar-General shall on an
application made in the prescribed manner by an adopted person a record of
whose birth is kept by the Registrar-General and who has attained the age of 18
years supply to that person… such information as is necessary to enable that
person to obtain a certified copy of the record of his birth’.
Subsection 4 said that before supplying that information the Registrar-General
had to inform the applicant about counselling services available. Subsection 6
stated that if the adoption was before 1975 the Registrar-General could not give
the information unless the applicant had attended an interview with a counsellor.
The case involved the application by Charles Smith for information to enable
him to obtain his birth certificate. Mr Smith had made his application in the
correct manner and was prepared to see a counsellor. On a literal view of the Act
the Registrar-General had to supply him with the information, since the Act uses
the phrase ‘shall … supply’.
The problem was that Mr Smith had been convicted of two murders and was
detained in Broadmoor as he suffered from recurring bouts of psychotic illness.
A psychiatrist thought that it was possible he might be hostile towards his
natural mother.
This posed a difficulty for the court; should they apply the clear meaning of
the words in this situation? The judges in the Court of Appeal decided that the
case called for the purposive approach. They said that, despite the plain language
of the Act, Parliament could not have intended to promote serious crime. So, in
view of the risk to the applicant’s natural mother if he discovered her identity,
they ruled that the Registrar-General did not have to supply any information.
Another case in which the purposive approach was used was R (Quintavalle) v
Secretary of State (2003). In this case the House of Lords had to decide whether
organisms created by cell nuclear replacement (CNR) came within the definition
of ‘embryo’ in the Human Fertilisation and Embryology Act 1990. Section 1(1)
(a) of this Act states that ‘embryo means a live human embryo where
fertilisation is complete’.
The problem was that when the Act was passed in 1990 there was only one
way of creating an embryo outside the human body. This was by taking an egg
from a woman and sperm from a man and fertilising the egg with the sperm. The
fertilised egg could then be placed in a woman’s uterus and, if it established
itself, she would be pregnant. This is the normal method of helping those unable
to conceive naturally to have children.
However, by 2003 another method of producing an embryo had become
possible. This was through cell nuclear replacement (CNR). Fertilisation is not
used in CNR. Instead, the nucleus from one cell of an unfertilised egg is
removed. It is then replaced with the nucleus from an adult cell and, if the cell
now divides, it is possible to produce an embryo. This technique is known as
cloning.
Using the purposive approach, the House of Lords decided that embryos
produced through CNR were covered by the 1990 Act. In his judgment in the
case Lord Bingham said:
[T]he court’s task, within permissible bounds of interpretation is to give effect to
Parliament’s purpose … Parliament could not have intended to distinguish
between embryos produced by, or without, fertilisation since it was unaware of
the latter possibility.
4.7.2 Advantages of the purposive approach

The purposive approach leads to justice in individual cases. It is a broad
approach which allows the law to cover more situations than applying words
literally.
The purposive approach is particularly useful where there is new technology
which was unknown when the law was enacted. This is demonstrated by R
(Quintavalle) v Secretary of State, the embryo case explained in section 4.6.1. If
the literal rule/approach had been used in that case, it would have been necessary
for Parliament to make a new law to deal with the situation.
It also gives judges more discretion than using the literal meanings of words.
This allows judges to avoid the literal meaning where it would create an absurd
situation. If the purposive approach had been used in Whiteley v Chappell (see
section 4.4.1) then it is probable that the judges would have decided that
Parliament’s intention was to prevent people voting in another person’s name
and found the defendant guilty.
4.7.3 Disadvantages of the purposive approach

The problems with the purposive approach are that it means the judges refuse to
follow the clear words of Parliament. How do the judges know what
Parliament’s intentions were? Opponents of the purposive approach say that it is
impossible to discover Parliament’s intentions; only the words of the statute can
show what Parliament wanted. So using the purposive approach allows
unelected judges to ‘make’ law as they are deciding what they think the law
should be rather than using the words that Parliament enacted.
Another problem with the purposive approach is that it is difficult to discover
the intention of Parliament. There are reports of debates in Parliament in
Hansard (see section 4.8.2), but these give every detail of debates including
those MPs who did not agree with the law that was under discussion. The final
version of what Parliament agreed is the actual words used in the Act.
It also leads to uncertainty in the law. It is impossible to know when judges
will use this approach or what result it might lead to. This makes it difficult for
lawyers to advise clients on the law.
Test Yourself
1. Explain two reasons why it may be necessary to interpret an Act.
2. Define the literal rule and give a case in which it was used.
3. Give one advantage and one disadvantage of using the literal rule.
4. Define the golden rule and give a case in which it was used.
5. Give one advantage and one disadvantage of using the golden rule.
6. Define the mischief rule and give a case in which it was used.
7. Give one advantage and one disadvantage of using the mischief rule.
8. Define the purposive approach and give a case in which it was used.
9. Give one advantage and one disadvantage of using the purposive approach.
10. Compare the literal and the purposive approaches.
4.8 Finding Parliament’s intention
There are certain ways in which the courts can try to discover the intention of
Parliament and certain matters which they can look at in order to help with the
interpretation of a statute.
4.8.1 Internal aids

These are matters within the statute itself that may help to make its meaning
clearer. The court can consider the long title, the short title and the preamble, if
any. Older statutes usually have a preamble which sets out Parliament’s purpose
in enacting that statute. Modern statutes either do not have a preamble or contain
a very brief one, for example the Theft Act 1968 states that it is an Act to
modernise the law of theft. The long title may also explain briefly Parliament’s
intentions.
The other useful internal aids are any headings before a group of sections, and
any schedules attached to the Act. There are often also marginal notes explaining
different sections but these are not generally regarded as giving Parliament’s
intention as they will have been inserted after the Parliamentary debates and are
only helpful comments put in by the printer.
4.8.2 External aids

These are matters which are outside the Act and it has always been accepted that
some external sources can help explain the meaning of an Act. These undisputed
sources are:
• previous Acts of Parliament on the same topic;
• the historical setting;
• earlier case law;
• dictionaries of the time.
As far as other external aids are concerned attitudes have changed. Originally the
courts had very strict rules that other extrinsic aids should not be considered.
However, for the following three aids the courts’ attitude has changed. These
three main external aids are:
• Hansard – that is the official report of what was said in Parliament when the
Act was debated;
• Reports of law reform bodies such as the Law Commission which led to the
passing of the Act;
• International conventions, regulations or directives which have been
implemented by English legislation.
The use of Hansard

Until 1992 there was a firm rule that the courts could not look at what was said
in the debates in Parliament. Some years earlier Lord Denning had tried to attack
this ban on Hansard in Davis v Johnson (1979), which involved the
interpretation of the Domestic Violence and Matrimonial Proceedings Act 1976.
He admitted that he had indeed read Hansard before making his decision saying:
Some may say … that judges should not pay any attention to what is said in
Parliament. They should grope about in the dark for the meaning of an Act
without switching on the light. I do not accede to this view.
The House of Lords disapproved of this and Lord Scarman explained their
reasons by saying:
Such material is an unreliable guide to the meaning of what is enacted. It
promotes confusion, not clarity. The cut and thrust of debate and the pressures
of executive responsibility … are not always conducive to a clear and unbiased
explanation of the meaning of statutory language.
However, in Pepper v Hart (1993) the House of Lords relaxed the rule and
accepted that Hansard could be used in a limited way. This case was unusual in
that seven judges heard the appeal, rather than the normal panel of five. Those
seven judges included the Lord Chancellor, who was the only judge to disagree
with the use of Hansard. The majority ruled that Hansard could be consulted.
Lord Browne-Wilkinson said in his judgment that:
the exclusionary rule should be relaxed so as to permit reference to
parliamentary materials where; (a) legislation is ambiguous or obscure, or
leads to an absurdity; (b) the material relied on consists of one or more
statements by a minister or other promoter of the Bill together if necessary with
such other parliamentary material as is necessary to understand such statements
and their effect; (c) the statements relied on are clear. Further than this I would
not at present go.
So Hansard may be considered but only where the words of the Act are
ambiguous or obscure or lead to an absurdity. Even then Hansard should only be
used if there was a clear statement by the Minister introducing the legislation,
which would resolve the ambiguity or absurdity. The Lord Chancellor opposed
the use of Hansard on practical grounds, pointing out the time and cost it would
take to research Hansard in every case.
The only time that a wider use of Hansard is permitted is where the court is
considering an Act that introduced an international convention or European
Directive into English law. This was pointed out by the Queen’s Bench
Divisional Court in Three Rivers District Council and others v Bank of England
(No 2) (1996). In such a situation it is important to interpret the statute
purposively and consistently with any European materials and the court can look
at Ministerial statements, even if the statute does not appear to be ambiguous or
obscure.
Since 1992, Hansard has been referred to in a number of cases. The Lord
Chancellor’s predictions on cost have been confirmed by some solicitors, with
one estimating that it had added 25 per cent to the bill. On other occasions it is
clear that Hansard has not been helpful or that the court would have reached the
same conclusion in any event.
Law reform reports

As with Hansard, the courts used to hold that reports by law reform agencies
such as the Law Reform Agency should not be considered by the courts.
However this rule was relaxed in the Black Clawson case in 1975, when it was
accepted that such a report should be looked at to discover the mischief or gap in
the law which the legislation based on the report was designed to deal with. (See
section 2.2.1 for detail on the Law Commission.)
Other aids
As well the above internal and external aids there are other matters which can
help a court with interpretation. These are rules of language (see 4.11) and
presumptions (see 4.12).
4.9 The effect of EU law
The purposive approach is the one preferred by most European countries when
interpreting their own legislation. It is also the approach which has been adopted
by the European Court of Justice in interpreting European law.
Since the United Kingdom became a member of the European Union in 1973
the influence of the European preference for the purposive approach has affected
the English courts in two ways. Firstly they have had to accept that, at least for
law which has been passed as a result of having to conform to a European law,
the purposive approach is the correct one to use. Secondly the fact that judges
are having to use the purposive approach for European law is making them more
accustomed to it and, therefore, more likely to apply it to English law.
4.9.1 Interpreting EU Law

Where the law to be interpreted is based on European law, the English courts
must interpret it in the light of the wording and purpose of the European law.
This is because the Treaty of Rome, which sets out the duties of European
member states, says that all member states are required to:
take all appropriate measures … to ensure fulfilment of the obligations.
The European Court of Justice in the Marleasing case (1992) ruled that this
included interpreting national law in the light and the aim of the European law.
4.10 The effect of the Human Rights Act 1998
Section 3 of the Human Rights Act says that, so far as it is possible to do so,
legislation must be read and given effect in a way which is compatible with the
rights in the European Convention on Human Rights. This applies to any case
where one of the rights is concerned, but it does not apply where there is no
involvement of human rights.
An example of the effect of the Human Rights Act on interpretation is
Mendoza v Ghaidan (2002). In this case the Court of Appeal ignored a House of
Lords’ judgment about the Rent Act 1977 which had been made prior to the
implementation of the Human Rights Act.
The Rent Act applied where a person who had the tenancy of a house or flat
died. If the tenant had been living in the property with their spouse, then the
spouse had the right to take over the tenancy. The Rent Act also allowed
unmarried partners to succeed to the tenancy as it stated that ‘a person who was
living with the original tenant as his or her wife or husband shall be treated as
the spouse of the original tenant’.
In Mendoza v Ghaidan the question was whether same sex partners had the
right to take over the tenancy. A House of Lords’ decision, made before the
Human Rights Act came into effect, had ruled that same sex partners did not
have the right under the Rent Act to take over the tenancy.
The Court of Appeal held that the Rent Act had to be interpreted to conform
to the European Convention on Human Rights which forbids discrimination on
the ground of gender. In order to make the Act compatible with human rights,
the Court of Appeal read the words ‘living with the original tenant as his or her
wife or husband’ to mean ‘as if they were his or her wife or husband’. This
allowed same sex partners to have the same rights as unmarried opposite sex
couples.
The Court of Appeal pointed out the importance of conforming to the
Convention rights when they said:
In order to remedy this breach of the Convention the court must, if it can, read
the Schedule so that its provisions are rendered compatible with the Convention
rights of the survivors of same-sex partnerships.
In 2004 the House of Lords confirmed the Court of Appeal’s decision in this
case.
4.11 Rules of language
Even the literal rule does not take words in complete isolation. It is common
sense that the other words in the Act must be looked at to see if they affect the
word or phrase which is in dispute. In looking at the other words in the Act the
courts have developed a number of minor rules which can help to make the
meaning of words and phrases clear where a particular sentence construction has
been used. These rules, which have Latin names, are:
• ejusdem generis rule;
• expressio unius exclusio alterius (the mention of one thing excludes others;
• noscitur a sociis (a word is known by the company it keeps).
4.11.1 The ejusdem generis rule (of the same kind)

This states that where there is a list of words which is followed by general
words, then the general words are limited to the same kind of items as the
specific words. This is easier to understand by looking at cases. In Hobbs v CG
Robertson Ltd (1970), a workman had injured his eye when brickwork which he
was removing splintered. He claimed compensation under the Construction
(General Provision) Regulation 1961. These regulations made it a duty for
employers to provide goggles for workmen when ‘breaking, cutting, dressing or
carving of stone, concrete, slag or similar material’. The court held that brick did
not come within the term ‘a similar material’. Brick was not ejusdem generis
with stone, concrete, slag. The reason was that all the other materials were hard,
so that bits would fly off them when struck with a tool, whereas brick was a soft
material. This ruling meant that the workman’s claim for compensation failed.
There must be at least two specific words in a list before the general word or
phrase for this rule to operate. In Allen v Emmerson (1944) the court had to
interpret the phrase ‘theatres and other places of amusement’ and decide if it
applied to a funfair. As there was only one specific word ‘theatres’, it was
decided that a funfair did come under the general term ‘other places of
amusement’ even though it was not of the same kind as theatres.
4.11.2 Expressio unius exclusio alterius (the 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. In Tempest v Kilner (1846) the court had
to consider whether the Statute of Frauds 1677, which required a contract for the
sale of ‘goods, wares and merchandise’ of more than £10 to be evidenced in
writing, applied to a contract for the sale of stocks and shares. The list ‘goods,
wares and merchandise’ was not followed by any general words, so the court
held that only contracts for those three types of things were affected by the
statute; because stocks and shares were not mentioned they were not caught by
the statute.
4.11.3 Noscitur a sociis (a word is known by the

company it keeps)
This means that the words must be looked at in context and interpreted
accordingly. It involves looking at other words in the same section or at other
sections in the Act. Words in the same section were important in Inland Revenue
Commissioners v Frere (1965), where the section set out rules for ‘interest,
annuities or other annual interest’. The first use of the word ‘interest’ on its own
could have meant any interest paid, whether daily, monthly or annually. Because
of the words ‘other annual interest’ in the section, the court decided that
‘interest’ only meant annual interest.
Other sections of the Act were considered by the House of Lords in Bromley
London Borough Council v Greater London Council (1982). The issue in this
case was whether the GLC could operate a cheap fare scheme on their transport
systems, where the amounts being charged meant that the transport system
would run at a loss. The decision in the case revolved around the meaning of the
word ‘economic’. The House of Lords looked at the whole Act and, in particular,
at another section which imposed a duty to make up any deficit as far as
possible. As a result they decided that ‘economic’ meant being run on business
lines and ruled that the cheap fares policy was not legal since it involved
deliberately running the transport system at a loss and this was not running it on
business lines.
4.12 Presumptions
The courts will also make certain presumptions or assumptions about the law,
but these are only a starting point. If the statute clearly states the opposite then
the presumption will not apply and it is said that the presumption is rebutted.
The most important presumptions are:
1. A presumption against a change in the common law.
In other words it is assumed that the common law will apply unless
Parliament has made it plain in the Act that the common law has been
altered. An example of this occurred in Leach v R (1912), where the question
was whether a wife could be made to give evidence against her husband
under the Criminal Evidence Act 1898. Since the Act did not expressly say
that this should happen it was held that the common law rule that a wife
could not be compelled to give evidence still applied. If there had been
explicit words saying that a wife was compellable then the old common law
would not apply. This is now the position under s 80 of the Police and
Criminal Evidence Act 1984, which expressly states that in a crime of
violence one spouse can be made to give evidence against the other spouse.
2. A presumption that mens rea is required in criminal cases.
The basic common law rule is that no-one can be convicted of a crime unless
it is shown that they had the required intention to commit it. In Sweet v
Parsley (1970) the defendant was charged with being concerned with the
management of premises which were used for the purposes of smoking
cannabis. The facts were that the defendant was the owner of premises which
she had leased out and the tenants had smoked cannabis there without her
knowledge. She was clearly ‘concerned in the management’ of the premises
and cannabis had been smoked there, but because she had no knowledge of
the events she had no mens rea. The key issue was whether mens rea was
required; the Act did not say there was any need for knowledge of the events.
The House of Lords held that she was not guilty as the presumption that
mens rea was required had not been rebutted.
3. A presumption that the Crown is not bound by any statute unless the
statute expressly says so.
4. A presumption that legislation does not apply retrospectively. This
means that no Act of Parliament will apply to past happenings; each Act will
normally only apply from the date it comes into effect.
Test Yourself
1. Explain what is meant by an internal aid to statutory interpretation.
2. What is Hansard?
3. Which case allowed Hansard to be used for statutory interpretation?
4. What are the limitations on the use of Hansard in statutory interpretation?
5. Give two other aids to interpretation.
6. What approach does European law use in statutory interpretation?
7. How does the Human Rights Act 1998 affect interpretation in cases which
involve human rights?
8. Explain the ejusdem generis (of the same kind) rule.
9. Explain one other rule of language.
10. Give two presumptions that are made when interpreting an Act.
When interpreting an Act of Parliament, judges can use a range of rules
(approaches) and can also rely on internal and external aids to interpretation.
(a) Outline external (extrinsic) aids to interpretation and one of the rules of
language.
(10 marks)
(b) Describe the golden rule of statutory interpretation.
(10 marks)
(c) Briefly discuss advantages and disadvantages of the golden rule.
Examiner’s tip
When a question asks for more than one topic, make sure you include all the
topics asked for.
Look at part (a) of the question above. This asks you to outline external aids to
interpretation AND one of the rules of language. Make sure you do this. Also
where you have a choice of what to write about (one of the rules of language),
make sure you choose the one you know best and for which you can give
supporting examples.
Chapter 5
Judicial Precedent
J udicial precedent refers to the source of law where past decisions of the
judges create law for future judges to follow. This source of law is also
known as case law. It is a major source of law, both historically and today.
5.1 The doctrine of precedent
The English system of precedent is based on the Latin maxim stare decisis et
non quieta movere (usually shortened to stare decisis). This means stand by
what has been decided and do not unsettle the established. This supports the idea
of fairness and provides certainty in the law.
5.1.1 Judgments
Precedent can only operate if the legal reasons for past decisions are known, so
at the end of a case there will be a judgment. This is a speech made by the judge
(or judges) hearing the case giving the decision and explaining the reasons for
the decision. In a judgment the judge usually gives a summary of the facts of the
case, reviews the arguments put to him by the advocates in the case, and then
explains the principles of law he is using to come to the decision.
These principles are the important part of the judgment and are known as the
ratio decidendi which means the reason for deciding (and is pronounced ray-she-
o dess-id-end-i). This is what creates a precedent for judges to follow in future
cases. The rest of the judgment is known as obiter dicta (other things said).
It is also worth realising that there can be more than one speech at the end of a
case depending on the number of judges hearing the case. In courts of first
instance there will be only one judge and therefore one judgment. However, in
the Divisional Courts and the Court of Appeal cases are heard by at least two
judges and usually three. In the Supreme Court, the panel of judges must consist
of an uneven number, so it could be three, five, seven or even nine. This means
that there can be more than one judgment.
The fact that there are two or more judges does not mean that there will
always be several judgments as it is quite common for one judge to give the
judgment and the other judge/judges simply to say ‘I agree’! However, in cases
where there is a particularly important or complicated point of law, more than
one judge may want to explain his legal reasoning on the point. This can cause
problems in later cases as each judge may have had a different reason for his
decision, so there will be more than one ratio decidendi.
5.1.2 Ratio decidendi

As already stated, this is the only part of the judgment which forms a precedent.
A major problem when looking at a past judgment is to divide the ratio
decidendi from the obiter dicta, as older judgments are usually in a continuous
form, without any headings specifiying what is meant to be part of the ratio and
what is not. This means that the person reading the judgment (especially a judge
in a later case) will have to decide what the ratio is. Sir Rupert Cross defined the
ratio decidendi as ‘any rule expressly or impliedly treated by the judge as a
necessary step in reaching his conclusion’. Michael Zander says that it is ‘a
proposition of law which decides the case, in the light or in the context of the
material facts.
It depends on the level of the court making the decision as to whether the ratio
has to be followed by a later court (a binding precedent) or whether it merely has
to be considered by that court.
5.1.3 Obiter dicta

The remainder of the judgment is called obiter dicta (other things said) and
judges in future cases do not have to follow it. Sometimes a judge will speculate
on what his decision would have been if the facts of the case had been different.
This hypothetical situation is part of the obiter dicta and the legal reasoning put
forward in it may be considered in future cases, although as with all obiter
statements it is not binding precedent.
As well as learning the Latin phrases ratio decidendi, obiter dicta and stare
decisis there are some English phrases which are important for understanding the
concept of judicial precedent. These are original precedent, binding precedent
and persuasive precedent.
5.1.4 Original precedent

If the point of law in a case has never been decided before, then whatever the
judge decides will form a new precedent for future cases to follow. It is an
original precedent. As there are no past cases for the judge to base his decision
on he is likely to look at cases which are the closest in principle and he may
decide to use similar rules. This way of arriving at a judgment is called
reasoning by analogy.
5.1.5 Binding precedent

This is a precedent from an earlier case which must be followed even if the
judge in the later case does not agree with the legal principle. A binding
precedent is only created when the facts of the second case are sufficiently
similar to the original case and the decision was made by a court which is senior
to (or in some cases the same level as) the court hearing the later case.
5.1.6 Persuasive precedent

This is a precedent that is not binding on the court but the judge may consider it
and decide that it is a correct principle so he is persuaded that he should follow
it. Persuasive precedent comes from a number of sources as explained below:
1. Courts lower in the hierarchy
Such an example can be seen in R v R (1991) where the House of Lords
agreed with and followed the same reasoning as the Court of Appeal in
deciding that a man could be guilty of raping his wife.
2. Decisions of the Judicial Committee of the Privy Council
This court is not part of the court hierarchy in England and Wales and so its
decisions are not binding. However, as many of its judges are also members
of the Supreme Court (formerly the House of Lords), the judgments of the
Privy Council are treated with respect and may often be followed. An
example of this can be seen in the law on remoteness of damage in the law of
tort and the decision made by the Privy Council in the case of The Wagon
Mound (No 1) (1961).
More recently, in A-G for Jersey v Holley (2005) the Privy Council ruled
that in the defence of provocation a defendant is to be judged by the standard
of a person having ordinary powers of self-control. This was contrary to an
earlier judgment by the House of Lords. In cases in 2005 and 2006 the Court
of Appeal followed the Privy Council decision rather than the decision of the
House of Lords.
3. Statements made obiter dicta
This is clearly seen in the law on duress as a defence to a criminal charge.
The House of Lords in R v Howe (1987) ruled that duress could not be a
defence to a charge of murder. In the judgment the Lords also commented, as
an obiter statement, that duress would not be available as a defence to
someone charged with attempted murder. When, later, in R v Gotts (1992) a
defendant charged with attempted murder tried to argue that he could use the
defence of duress, the obiter statement from Howe was followed as
persuasive precedent by the Court of Appeal.
4. A dissenting judgment
When a case has been decided by a majority of judges (for example 2-1 in
the Court of Appeal), the judge who disagreed will have explained his
reasons. This is a dissenting judgment. If that case goes on appeal to the
Supreme Court, or if there is a later case on the same point which goes to the
Supreme Court, it is possible that the Supreme Court may prefer the
dissenting judgment and decide the case in the same way. The dissenting
judgment has persuaded them to follow it.
5. Decisions of courts in other countries
This is especially so where the other country uses the same ideas of common
law as in our system. This applies to Commonwealth countries such as
Canada, Australia and New Zealand.
5.2 The hierarchy of the courts
In England and Wales our courts operate a very rigid doctrine of judicial
precedent which has the effect that:
• every court is bound to follow any decision made by a court above it in the
hierarchy; and
• in general, appellate courts are bound by their own past decisions.
So the hierarchy of the courts is the next important point to get clear. Which
courts come where in the hierarchy? Figure 5.1 shows this in the form of a
cascade model and Figure 5.2 gives each court and its position in respect of the
other courts. The position of each court is considered in this section. Extra detail
on the use of precedent in the House of Lords and the new Supreme Court and
Court of Appeal is given in sections 5.3 and 5.4.
Note that the most senior court in the legal system of this country used to be
the House of Lords. This court was abolished in October 2009 and replaced by
the Supreme Court.
5.2.1 Appellate courts
Appellate courts are those that hear appeals.
The European Court of Justice

Since 1973 the highest court affecting our legal system is the European Court of
Justice. Points of EU law can be referred to it by courts in England and Wales.
The European Court of Justice only decides the point of law; the case then
comes back to the court in this country to apply that law to the case.
All decisions made by the European Court of Justice are binding on all courts
in England and Wales for points of EU law. It does not affect other areas of law.
An important feature of the European Court of Justice is that it is prepared to
overrule its own past decisions if it feels it is necessary. This flexible approach
to past precedents is seen in other legal systems in Europe, and it is a contrast to
the more rigid approach of our national courts.
Supreme Court
The most senior national court is the Supreme Court and its decisions bind all
other courts in the English legal system. The Supreme Court is not bound by its
own past decisions, although it generally will follow them. This point is
discussed in detail at 5.3.
Court of Appeal
At the next level down in the hierarchy is the Court of Appeal; this has two
divisions, Civil and Criminal. Both divisions of the Court of Appeal are bound to
follow decisions of the European Court of Justice and the Supreme Court. In
addition they must usually follow past decisions of their own, although there are
some limited exceptions to this rule. The Court of Appeal (Criminal Division) is
more flexible where the point involves the liberty of the subject. The position of
the two divisions is discussed in detail in 5.4.
Divisional courts
The three divisional courts (Queen’s Bench, Chancery and Family) are bound by
decisions of the European Court of Justice, the Supreme Court and the Court of
Appeal. In addition the divisional courts are bound by their own past decisions,
although they operate similar exceptions to those operated by the Court of
Appeal (see 5.4.2). This was decided in Police Authority for Huddersfield v
Watson (1947). It is also probably correct to say that the divisional courts have
the same flexibility as the Criminal Division of the Court of Appeal where the
case involves a person’s liberty (see 5.4.3). Certainly this was the attitude taken
in R v Greater Manchester Coroner, ex parte Tal (1984), and more recently in
Shaw v DPP (1992).
5.2.2 Courts of first instance

The term ‘courts of first instance’ refers to any court where the original trial of a
case is held. The appellate courts considered in the previous section do not hear
any original trials. They only deal with appeals from decisions of other courts.
Quite often an appeal will be about a point of law. This allows the appellate
courts to decide the law. This is why appellate courts are much more important
than courts of first instance when it comes to creating precedent.
The High Court

This is bound by decisions of all the courts above and in turn it binds the lower
courts. High Court judges do not have to follow each others’ decisions but will
usually do so. In Colchester Estates (Cardiff) v Carlton Industries plc (1984) it
was held that where there were two earlier decisions which conflicted, then,
provided the first decision had been fully considered in the later case, that later
decision should be followed.
Inferior courts
These are the Crown Court, the county court and the magistrates’ court. They are
bound to follow decision by all higher courts and it is unlikely that a decision by
an inferior court can create precedent. The one exception is that a ruling on a
point of law by a judge in the Crown Court technically creates precedent for the
magistrates’ court. However, since such rulings are rarely recorded in the law
reports, this is of little practical effect.
5.3 The House of Lords (now the Supreme Court)
The main debate about the former House of Lords and precedent was the extent
to which it should follow its own past decisions and the ideas on this changed
over the years.
Originally the view was that the House of Lords had the right to overrule past
decisions, but gradually during the nineteenth century this more flexible
approach disappeared. By the end of that century, in London Street Tramways v
London County Council (1898), the House of Lords held that certainty in the law
was more important than the possibility of individual hardship being caused
through having to follow a past decision.
Test Yourself
1. What part of a judgment forms a precedent for future cases?
2. What is the rest of the judgment known as?
3. What is meant by ‘original precedent’?
4. What is meant by ‘binding precedent’?
5. What effect do decisions of the Judicial Committee of the Privy Council
have on future cases?
6. What is meant by a dissenting judgment?
7. Give two other types of persuasive precedent.
8. What is the highest court in the legal system in England and Wales?
9. Where a point of European law is involved, the decisions of which court
must be followed?
10. Which courts do not create precedents?
So from 1898 to 1966 the House of Lords regarded itself as being completely
bound by its own past decisions unless the decision had been made per incuriam,
that is ‘in error’. However, this idea of error referred only to situations where a
decision had been made without considering the effect of a relevant statute.
This was not felt to be satisfactory. The law could not change to meet
changing social conditions and opinions, nor could any possible ‘wrong’
decisions be changed by the courts. If there was an unsatisfactory decision by the
House of Lords, then the only way it could be changed was by Parliament
passing a new Act of Parliament.
This happened in the law on intention as an element of a criminal offence. The
House of Lords in DPP v Smith (1961) had ruled that an accused could be guilty
of murder if a reasonable person would have foreseen that death or very serious
injury might result from the accused’s actions. This decision was criticised as it
meant that the defendant could be guilty even if he had not intended to cause
death or serious injury, nor even realised that his actions might have that effect.
Eventually Parliament changed the law by passing the Criminal Justice Act
1967.
5.3.1 The Practice Statement

It was realised that the House of Lords should have more flexibility, so in 1966
the Lord Chancellor issued a Practice Statement announcing a change to the rule
in London Street Tramways v London County Council. The Practice Statement
said:
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 the rigid adherence to precedent
may lead to injustice in a particular case and also unduly restrict the proper
development of the law. They, therefore, propose to modify their present practice
and while treating former decisions of this House as normally binding, to depart
from a previous decision when it appears 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.
Activity
Read the following passage which comes from an extra explanatory note given
to the press when the Practice Statement was issued and answer the questions
below.
‘The statement is one of great importance, although it should not be supposed
that there will frequently be cases in which the House thinks it right not to
follow their own precedent. An example of a case in which the House might
think it right to depart from a precedent is where they consider that the earlier
decision was influenced by the existence of conditions which no longer prevail,
and that in modern conditions the law ought to be different.
One consequence of this change is of major importance. The relaxation of the
rule of judicial precedent will enable the House of Lords to pay greater
attention to judicial decisions reached in the superior courts of the
Commonwealth, where they differ from earlier decisions of the House of
Lords. That could be of great help in the development of our own law. The
superior courts of many other countries are not rigidly bound by their own
decisions and the change in the practice of the House of Lords will bring us
more into line with them.’
Questions
1. Why was the Practice Statement of great importance?
2. Did the note suggest that the Practice Statement was likely to be used
often?
3. Do you agree that ‘in modern conditions’ (see the passage above) the law
ought to be different from earlier law decided when social or other
conditions in this country were different? Give reasons and examples to
support your answer.
4. Why should the House of Lords (now the Supreme Court) want to consider
decisions from Commonwealth countries? What authority do such decisions
have in the English legal system?
5.3.2 Use of the Practice Statement

From 1966, this Practice Statement allowed the House of Lords to change the
law if they believed that an earlier case was wrongly decided. They had the
flexibility to refuse to follow an earlier case when ‘it appears right to do so’.
This phrase is, of course, very vague and gave little guidance as to when the
House of Lords might overrule a previous decision. In fact the House of Lords
was reluctant to use this power, especially in the first few years after 1966. The
first case in which the Practice Statement was used was Conway v Rimmer
(1968), but this only involved a technical point on discovery of documents.
The first major use did not occur until 1972 in Herrington v British Railways
Board (1972), which involved the law on the duty of care owed to a child
trespasser. The earlier case of Addie v Dumbreck (1929) had decided that an
occupier of land would only owe a duty of care for injuries to a child trespasser
if those injuries had been caused deliberately or recklessly. In Herrington the
Lords held that social and physical conditions had changed since 1929, and the
law should also change.
There was still great reluctance in the House of Lords to use the Practice
Statement, as can be seen by the case of Jones v Secretary of State for Social
Services (1972). This case involved the interpretation of the National Insurance
(Industrial Injuries) Act 1946 and four out of the seven judges hearing the case
regarded the earlier decision in Re Dowling (1967) as being wrong. Despite this
the Lords refused to overrule that earlier case, preferring to keep to the idea that
certainty was the most important feature of precedent. The same attitude was
shown in Knuller v DPP (1973) when Lord Reid said:
Our change of practice in no longer regarding previous decisions of this House
as absolutely binding does not mean that whenever we think a previous
precedent was wrong we should reverse it. In the general interest of certainty in
the law we must be sure that there is some very good reason before we so act.
From the mid 1970s onwards the House of Lords showed a little more
willingness to make use of the Practice Statement. For example in Miliangos v
George Frank (Textiles) Ltd (1976) the House of Lords used the Practice
Statement to overrule a previous judgment that damages could only be awarded
in sterling. Another major case was Pepper v Hart (1993) where the previous
ban on the use of Hansard in statutory interpretation was overruled.
5.3.3 The Practice Statement in criminal law

The Practice Statement stressed that criminal law needs to be certain, so it was
not surprising that the House of Lords did not rush to overrule any judgments in
criminal cases. The first use in a criminal case was in R v Shivpuri (1986) which
overruled the decision in Anderton v Ryan (1985) on attempts to do the
impossible. The interesting point was that the decision in Anderton had been
made less than a year before, but it had been severely criticised by academic
lawyers. In Shivpuri Lord Bridge said:
I am undeterred by the consideration that the decision in Anderton v Ryan was
so recent. The Practice Statement is an effective abandonment of our pretention
to infallibility. If a serious error embodied in a decision of this House has
distorted the law, the sooner it is corrected the better.
In other words, the House of Lords recognised that they might sometimes make
errors and the most important thing then was to put the law right. Where the
Practice Statement is used to overrule a previous decision, that past case is then
effectively ignored. The law is now that set out in the new case.
A more recent major case on the use of the Practice Statement by the House of
Lords in criminal law is R v G and R (2003). The House of Lords overruled their
previous decision in the case of Metropolitan Police Commissioner v Caldwell
(1982) on the law of criminal damage.
In Caldwell the House of Lords had ruled that recklessness included the
situation where the defendant had not realised the risk of his action causing
damage, but an ordinary careful adult would have realised there was a risk. In R
v G and R it was held that this was the wrong test to use. The Law Lord
overruled Caldwell and held that a defendant is only reckless if he realised there
is risk and goes ahead and takes that risk.
5.3.4 The Supreme Court

When the Supreme Court replaced the House of Lords in 2009, the
Constitutional Reform Act 2005 transferred the House of Lords’ powers to the
Supreme Court. It was initially not sure if this included the Practice Direction.
In Austin v London Borough of Southwark (2010), which was about tenancy
law, the Supreme Court confirmed that the power to use the Practice Statement
had been transferred to them. However, they did not use it in Austin to depart
from an earlier decision as they took the view that certainty in tenancy law was
important.
They quoted from the judgment in R v Knuller (Publishing, Printing and
Promotions) Ltd (1973) where it was said that:
‘In the general interest of certainty in the law we must be sure that there is
some very good reason [to depart from the previous law]’. See 5.3.2 for fuller
quotation from Knuller.
5.4 The Court of Appeal
As already stated there are two divisions of this court, the Civil Division and the
Criminal Division, and the rules for precedent are not quite the same in these
two divisions.
5.4.1 Decisions of courts above the Court of Appeal

Both divisions of the Court of Appeal are bound by decisions of the European
Court of Justice and the House of Lords (now the Supreme Court). This is true
even though there were attempts in the past, mainly by Lord Denning, to argue
that the Court of Appeal should not be bound by the House of Lords. In Broome
v Cassell & Co. Ltd (1971) Lord Denning refused to follow an earlier decision of
the House of Lords in Rookes v Barnard (1964) on the circumstances in which
exemplary damages could be awarded.
Again in the cases of Schorsch Meier GmbH v Henning (1975) and Miliangos
v George Frank (Textiles) Ltd (1976) the Court of Appeal under Lord Denning’s
leadership refused to follow a decision of the House of Lords in Havana
Railways (1961) which said that damages could only be awarded in sterling
(English money). Lord Denning’s argument for refusing to follow the House of
Lords’ decision was that the economic climate of the world had changed, and
sterling was no longer a stable currency; there were some situations in which
justice could only be done by awarding damages in another currency. The case
of Schorsch Meier GmbH v Henning did not get appealed to the House of Lords,
but Miliangos v George Frank (Textiles) Ltd did go on appeal to the Lords where
it was pointed out that the Court of Appeal had no right to ignore or overrule
decisions of the House of Lords. The more unusual feature of Miliangos was that
the House of Lords then used the Practice Statement to overrule their own
decision in Havana Railways.
5.4.2 The Court of Appeal and its own decisions
The first rule is that decisions by one division of the Court of Appeal will not
bind the other division. However, within each division, decisions are normally
binding, especially for the Civil Division. This rule comes from the case of
Young v Bristol Aeroplane Co. Ltd (1944) and the only exceptions allowed by
that case are:
• where there are conflicting decisions in past Court of Appeal cases, the court
can choose which one it will follow and which it will reject;
• where there is a decision of the Supreme Court/House of Lords which
effectively overrules a Court of Appeal decision the Court of Appeal must
follow the decision of the Supreme Court/House of Lords;
• where the decision was made per incuriam, that is carelessly or by mistake
because a relevant Act of Parliament or other regulation has not been
considered by the court.
Activity
Read the following comments by Lord Scarman in his judgment in Tiverton
Estates Ltd v Wearwell Ltd (1975) and answer the questions below.
‘The Court of Appeal occupies a central, but intermediate position in our legal
system. To a large extent, the consistency and certainty of the law depend upon
it … If, therefore, one division of the court should refuse to follow another
because it believed the other’s decision to be wrong, there would be a risk of
confusion and doubt arising where there should be consistency and certainty.
The appropriate forum for the correction of the Court of Appeal’s errors is the
House of Lords, where the decision will at least have the merit of being final
and binding, subject only to the House’s power to review its own decisions.
The House of Lords as the court of last resort needs this power of review; it
does not follow that an intermediate court needs it.’
Questions
1. Why did Lord Scarman describe the Court of Appeal as occupying ‘a
central but intermediate position’?
2. Do you agree with his view that there would be a ‘risk of confusion and
doubt’ if the Court of Appeal was not obliged to follow its own past
decisions?
3. Describe the situations in which the Court of Appeal may refuse to follow
its own past decisions.
4. Why does the House of Lords (now the Supreme Court) need the power of
review?
The rule in Young’s case was confirmed in Davis v Johnson (1979). In this case
the Court of Appeal refused to follow a decision made only days earlier
regarding the interpretation of the Domestic Violence and Matrimonial
Proceedings Act 1976. The case went to the House of Lords on appeal, where
the Law Lords, despite agreeing with the actual interpretation of the law, ruled
that the Court of Appeal had to follow its own previous decisions and said that
they ‘expressly, unequivocally and unanimously reaffirmed the rule in Young v
Bristol Aeroplane’.
Since this case the Court of Appeal has not challenged the rule in Young’s
case, though it has made some use of the per incuriam exception allowed by
Young’s case. For example in Williams v Fawcett (1986) the Court refused to
follow previous decisions because these had been based on a misunderstanding
of the County Court rules dealing with procedure for committing to prison those
who break court undertakings.
In Rickards v Rickards (1989) Lord Donaldson said that it would only be in
‘rare and exceptional cases’ that the Court of Appeal would be justified in
refusing to follow a previous decision. Rickards v Rickards was considered a
‘rare and exceptional case’ because the mistake was over the critical point of
whether the court had the power to hear that particular type of case. Also it was
very unlikely that the case would be appealed to the House of Lords.
Comment
The main argument in favour of the Court of Appeal being able to ignore
House of Lords’ (now the Supreme Court) decisions is that very few cases
reach the Supreme Court, so that if there is an error in the law it may take years
before a suitable case is appealed all the way to the Supreme Court.
The cases of Schorsch Meier and Miliangos illustrate the potential for injustice
if there is no appeal to the Supreme Court. What would have happened if the
Court of Appeal in Schorsch Meier had decided that it had to follow the House
of Lords’ decision in Havana Railways? It is quite possible that the later case of
Miliangos would not have even been appealed to the Court of Appeal. After all,
why waste money on an appeal when there have been previous cases in both
the Court of Appeal and the House of Lords ruling on that point of law. The
law would have been regarded as fixed and it might never have been changed.
On the other hand, if the Court of Appeal could overrule the Supreme Court,
the system of precedent would break down and the law would become
uncertain. There would be two conflicting precedents for lower courts to
choose from. This would make it difficult for the judge in the lower court. It
would also make the law so uncertain that it would be difficult for lawyers to
advise clients on the law. However, since the case of Miliangos, there has been
no further challenge by the Court of Appeal to this basic idea in our system of
judicial precedent that lower courts must follow decisions of courts above them
in the hierarchy.
5.4.3 The Court of Appeal (Criminal Division)

The Criminal Division, as well as using the exceptions from Young’s case, can
also refuse to follow a past decision of its own if the law has been ‘misapplied or
misunderstood’. This extra exception arises because in criminal cases people’s
liberty is involved. This idea was recognised in R v Taylor (1950). The same
point was made in R v Gould (1968).
Also in R v Spencer (1985) the judges said that there should not in general be
any difference in the way that precedent was followed in the Criminal Division
and in the Civil Division, ‘save that we must remember that we may be dealing
with the liberty of the subject and if a departure from authority is necessary in
the interests of justice to an appellant, then this court should not shrink from so
acting’.
5.5 Distinguishing, overruling, disapproving and
reversing
5.5.1 Distinguishing
This is a method which can be used by a judge to avoid following a past decision
which he would otherwise have to follow. It means that the judge finds that the
material facts of the case he is deciding are sufficiently different for him to draw
a distinction between the present case and the previous precedent. He is not then
bound by the previous case.
Two cases demonstrating this process are Balfour v Balfour (1919) and
Merritt v Merritt (1971). Both cases involved a wife making a claim against her
husband for breach of contract. In Balfour it was decided that the claim could
not succeed because there was no intention to create legal relations; there was
merely a domestic arrangement between a husband and wife and so there was no
legally binding contract. The second case was successful because the court held
that the facts of the two cases were sufficiently different in that, although the
parties were husband and wife, the agreement was made after they had
separated. Furthermore the agreement was made in writing. This distinguished
the case from Balfour; the agreement in Merritt was not just a domestic
arrangement but meant as a legally enforceable contract.
5.5.2 Overruling
This is where a court in a later case states that the legal rule decided in an earlier
case is wrong. Overruling may occur when a higher court overrules a decision
made in an earlier case by a lower court, for example the Supreme Court
overruling a decision of the Court of Appeal. It can also occur where the
European Court of Justice overrules a past decision it has made; or when the
Supreme Court uses the Practice Statement to overrule a past decision of its own.
5.5.3 Disapproving
This is where a judge states in his judgment that he believes the decision in an
earlier case is wrong. This may occur where the present case is on a related point
of law, but the point of law is not sufficiently similar for the earlier decision to
be overruled. It can also occur where the judge is in a court lower in the
hierarchy than the court which made the original decision. In this situation the
lower cannot overrule the higher court, but they can disapprove of the decision
by expressing their view that it was wrong.
An example where the court disapproved of an earlier case occurred in R v

Hasan (2005). This case was about the availability of the defence of duress by
threats to a criminal offence. The main point of the case was on whether a
defendant could use the defence of duress if he ought to have realised that he
was putting himself in a position where he might be pressurised into committing
an offence.
However, the House of Lords also commented on whether the threats had to
be immediate or whether the fact that they could be carried out in the future was
enough. When discussing this they disapproved of the earlier case of R v Hudson
and Taylor (1971). In R v Hudson and Taylor two girls committed perjury (lied
when giving evidence in court) because they had been threatened that they
would be ‘cut up’ if they gave evidence against a particular man. While they
were giving evidence the man who had threatened them was watching in the
public gallery. Obviously he could not carry out his threat at that moment. The
Court of Appeal held that the defence of duress was available even though the
threats were not ‘immediate’. The disapproval of the House of Lords does not
change the precedent set by R v Hudson and Taylor. However, it is possible that
if the same point has to be decided again in the future, the disapproving
judgment by the House of Lords in R v Hasan might lead to the precedent in R v
Hudson and Taylor being overruled.
5.5.4 Reversing
This is where a court higher up in the hierarchy overturns the decision of a lower
court on appeal in the same case. For example, the Court of Appeal may disagree
with the legal ruling of the High Court and come to a different view of the law;
in this situation they reverse the decision made by the High Court.
5.6 Precedent and Acts of Parliament
Precedent is subordinate to statute law, delegated legislation and European
regulations. This means that if, for example, an Act of Parliament is passed, and
that Act contains a provision which contradicts a previously decided case, that
case decision will cease to have effect; the Act of Parliament is now the law on
that point. This happened when Parliament passed the Law Reform (Year and a
Day Rule) Act in 1996. Up to then judicial decisions meant that a person could
only be charged with murder or manslaughter if the victim died within a year
and a day of receiving his injuries. The Act enacted that there was no time limit,
and a person could be guilty even if the victim died several years later, so cases
after 1996 follow the Act and not the old judicial decisions.
5.7 Advantages of precedent
As can be seen from the previous sections there are both advantages and
disadvantages to the way in which judicial precedent operates in England and
Wales. In fact it could be said that every advantage has a corresponding
disadvantage. The main advantages are:
1. Certainty
Because the courts follow past decisions people know what the law is and
how it is likely to be applied in their case; it allows lawyers to advise clients
on the likely outcome of cases; it also allows people to operate their
businesses knowing that financial and other arrangements they make are
recognised by law. The House of Lords Practice Statement points out how
important certainty is.
2. Consistency and fairness in the law
It is seen as just and fair that similar cases should be decided in a similar
way, just as in any sport it is seen as fair that the rules of the game apply
equally to each side. The law must be consistent if it is to be credible.
3. Precision
As the principles of law are set out in actual cases the law becomes very
precise; it is well illustrated and gradually builds up through the different
variations of facts in the cases that come before the courts.
4. Flexibility
There is room for the law to change as the House of Lords/Supreme Court
can use the Practice Statement to overrule cases. The use of distinguishing
also gives all courts some freedom to avoid decisions and develop the law.
5. Time-saving
Precedent can be considered a useful time-saving device. Where a principle
has been established, cases with similar facts are unlikely to go through the
lengthy process of litigation.
5.8 Disadvantages of precedent
1. Rigidity
The fact that lower courts have to follow decisions of higher courts together
with the fact that the Court of Appeal has to follow its own past decisions
can make the law too inflexible so that bad decisions made in the past may
be perpetuated. There is the added problem that so few cases go to the
Supreme Court. Change in the law will only take place if parties have the
courage, the persistence and the money to appeal their case.
2. Complexity
Since there are nearly half a million reported cases it is not easy to find all
the relevant case law even with computerised databases. Another problem is
in the judgments themselves, which are often very long with no clear
distinction between comments and the reasons for the decision. This makes it
difficult in some cases to extract the ratio decidendi; indeed in Dodd’s Case
(1973) the judges in the Court of Appeal said they were unable to find the
ratio in a decision of the House of Lords.
3. Illogical distinctions
The use of distinguishing to avoid past decisions can lead to ‘hair-splitting’
so that some areas of the law have become very complex. The differences
between some cases may be very small and appear illogical.
4. Slowness of growth
Judges are well aware that some areas of the law are unclear or in need of
reform, however they cannot make a decision unless there is a case before
the courts to be decided. This is one of the criticisms of the need for the
Court of Appeal to follow its own previous decisions, as only about 50 cases
go to the Supreme Court each year. There may be a long wait for a suitable
case to be appealed as far as the Supreme Court.
Test Yourself
1. When was the Practice Statement issued?
2. To which court did the Practice Statement apply?
3. Why was the Practice Statement made?
4. The Court of Appeal has to follow decisions of court(s) above it in the
hierarchy. Which court(s) are these?
5. Why has the Court of Appeal in the past thought that it should be able to
ignore precedents of courts above it?
6. What rules did Young’s case set out for the Court of Appeal in relation to
past decisions of its own?
7. What is meant by ‘distinguishing’?
8. What is meant by ‘overruling’?
9. Give three advantages of using judicial precedent.
10. Give three disadvantages of using judicial precedent.
5.9 Law reporting
In order to follow past decisions there must be an accurate record of what those
decisions were. Written reports have existed in England and Wales since the
thirteenth century, but many of the early reports were very brief and, it is
thought, not always accurate. The earliest reports from about 1275 to 1535 were
called Year Books, and contained short reports of cases, usually written in
French. From 1535 to 1865 cases were reported by individuals who made a
business out of selling the reports to lawyers. The detail and accuracy of these
reports varied enormously. However, some are still occasionally used today.
In 1865 the Incorporated Council of Law Reporting was set up. This was
controlled by the courts. Reports became accurate, with the judgment usually
noted down word for word. This accuracy of reports was one of the factors in the
development of the strict doctrine of precedent. These reports still exist and are
published according to the court that the case took place in. For example, case
references abbreviated to Ch stand for Chancery and the case will have been
decided in the Chancery Division; while QB stands for Queen’s Bench Division.
There are also other well established reports today, notably the All England
series (abbreviated to All ER) and the Weekly Law Reports (WLR). Newspapers
and journals also publish law reports, but these are often abbreviated versions in
which the law reporter has tried to pick out the essential parts of the judgment.
Internet reports
All High Court, Court of Appeal, Supreme Court (and House of Lords for 1996–
2009) cases are now reported on the internet. Some websites give the full report
free; others give summaries or an index of cases. There are also subscription
sites which contain virtually all the cases. The main ones of these are LexisNexis
and Westlaw.
Internet Research
Search at least one website and find a recent law report. If your school or
college does not have access to subscription sites try the following free sites:
www.lawreports.co.uk – the Daily Notes section of this site gives summaries of
recent important cases.
https://www.supremecourt.uk/ – this has reports of Supreme Court judgments.
www.parliament.uk – this has reports of the House of Lords judgments for
1996 to 2009.
www.bailii.org – this has cases for the High Court and the Court of Appeal.
(a) In the context of judicial precedent:
• outline what is meant by obiter dicta and
• briefly describe the relevance of law reports.
(10 marks)
(b) Describe how judges can avoid following a precedent when sitting in the
Supreme Court.
(10 marks)
(c) Briefly discuss advantages of judicial precedent.
Examiner’s tip
Judicial precedent is a topic where it is essential to use real case examples in
order to reach the top mark bands. The whole of precedent is based on real
cases.
Chapter 6
Civil Courts
A s already stressed in Chapter 1, it is important to understand the differences

between civil cases and criminal cases. Since civil cases cover a wide range
there cannot be a very specific definition which will cover all of them, but a
basic definition for civil claims is to say that these arise when an individual or a
business believes that their rights have been infringed in some way. Some of
the main areas of civil law are contract law, law of tort, family law,
employment law and company law.
As well as dealing with different areas of law, the types of dispute that can arise
within these areas are equally varied. A company may be claiming that money
is owed to them (contract law); this type of claim may be for a few pounds or
for several million. An individual may be claiming compensation for injuries
suffered in an accident (the tort of negligence), while in another tort case the
claim might not be for money but for another remedy such as an injunction to
prevent someone from building on disputed land. Other types of court orders
include the winding up of a company which cannot pay its debts or a decree of
divorce for a marriage that has failed. The list is almost endless.
The two courts in which civil cases are tried are:
• the County Court;
• the High Court.
The types of cases they deal with are explained below. There is also material on
civil courts and the procedure in civil cases in the section of this book that
covers Unit 2. This is at section 18.4 in the chapter on tort and section 19.7 in
the chapter on contract.
6.1 County Court
There are about 200 County Courts, so that most major towns will have a court.
The County Court can try nearly all civil cases. The main areas of jurisdiction
are:
• small claims, that is a claim for less than £10,000;
• fast-track cases between £10,000 and £25,000;
• multi-track cases up to £100,000 are dealt with and claims above this level can
also be heard;
• all contract and tort claims;
• all cases for the recovery of land;
• disputes over equitable matters such as trusts up to a value of £350,000.
Cases in the County Court are heard by a circuit judge or a district judge. On
very rare occasions it is possible for the judge to sit with a jury of eight. This
will only happen for defamation cases or the torts of malicious prosecution or
false imprisonment.
6.2 High Court
The High Court is based in London but also has judges sitting at 26 towns and
cities throughout England and Wales. It has the power to hear any civil case and
has three divisions, each of which specialises in hearing certain types of case.
These divisions are the Queen’s Bench Division, the Chancery Division and the
Family Division.
6.2.1 Queen’s Bench Division

There are about 70 High Court judges sitting in this division. It deals with
contract and tort cases where the amount claimed is over £100,000.
Cases are normally tried by a single judge, but there is a right to jury trial for
fraud, libel, slander, malicious prosecution and false imprisonment cases. When
a jury is used there will be 12 members.
6.2.2 Chancery Division

There are about 18 High Court judges sitting to hear cases in this division. The
main business of this division involves disputes concerned with such matters as:
• insolvency, both for companies and individuals;
• the enforcement of mortgages;
• disputes relating to trust property;
• copyright and patents;
• intellectual property matters;
• contested probate actions.
There is also a special Companies Court in the division which deals mainly with
winding up companies.
Cases are heard by a single judge. Juries are never used in the Chancery
Division.
6.2.3 Family Division

There are 18 High Court judges sitting to hear cases in this division. It hears
family cases where there is a dispute about which country’s laws should apply
and all international cases concerning family matters under the Hague
convention. In addition, it can hear cases which can be dealt with by the Family
Court.
Cases are heard by a single judge and, although juries were once used to
decide defended divorce cases, juries are not used in this division.
The Crime and Courts Act 2013 created a new separate Family Court. The
majority of family matters previously dealt with in the Family Division are now
dealt with by the Family Court. The Family Division can also deal with these
cases, but are unlikely to unless the case is difficult or important.
6.3 Reform of the civil courts
The present system of civil justice is based on the reforms recommended by
Lord Woolf in his report Access to Justice (1996).
In 1995, Lord Woolf stated that a civil justice system should:
• be just in the results it delivers
• be fair in the way it treats litigants
• offer appropriate procedures at a reasonable cost
• deal with cases at a reasonable speed
• be understandable to those who use it
• provide as much certainty as the nature of particular cases allows
• be effective, adequately resourced and organised.
The Report found that virtually none of these points was being achieved in the
civil courts, and criticised the system for being unequal, expensive, slow,
uncertain and complicated. The Report contained 303 recommendations. The
most important ones proposed were:
• extending small claims up to £3,000 (brought in at £5,000 and now £10,000)
• a fast track for straightforward cases up to £10,000 (brought in at £15,000 and
now £25,000)
• a multi-track for cases over £10,000 (now £25,000), with capping of costs
• encouraging the use of alternative dispute resolution
• giving judges more responsibility for managing cases
• more use of information technology
• simplifying documents and procedures and having a single set of rules
governing proceedings in both the High Court and the County Court
• shorter timetables for cases to reach court and for lengths of trials.
These reforms were brought into effect in 1999.
6.3.1 The effect of the Woolf reforms

Research into the effect of the Woolf reforms some five years after the reforms
found that:
• the culture of litigation changed for the better, with cooperation between the
parties improving
• delay between issuing a claim and the court hearing has been reduced, but pre-
action protocols and other pre-issue work mean that, overall, delay has not
really improved
• case management conferences are felt to be one of the major successes of the
CPR
• there is a more uniform procedure across the country
• there is a very high rate of settlement, often more than 60 per cent and in some
courts over 80 per cent
• there has been little or no increase in ADR and out-of-court mediation: in
practice, judges rarely stay cases for mediation, and ADR has not become
incorporated into the court process
• costs have increased overall as a result of being front-loaded. In particular,
costs in fast-track cases are disproportionate
• the courts are still under-resourced and the IT systems ‘primitive’ compared
with those used by practitioners.
6.3.2 Further reforms

In 2011, the Government in their consultation paper, Solving disputes in the
County Court, pointed out that it was 15 years since the Woolf Report and the
system has not kept pace with the ‘major economic and social shifts that have
taken place since’. They believe that the system needs to focus more on dispute
resolution and debt recovery, rather than the ideals of ‘justice’. In particular,
they pointed out that the costs of taking a case to court are often more than the
amount claimed. The ideal is that disputes:
should be resolved in the most appropriate forum, so that processes and costs
are commensurate with the complexity of the issues involved.
They proposed a range of options to achieve this, including:
• fixed costs (already used for traffic accidents under £10,000) to be extended to
other personal injury claims for up to £25,000 or even £50,000
• introducing mediation information/assessment sessions for claims above the
small claims limit to try to divert more cases into alternative dispute resolution
• increasing the upper level for small claims to £10,000 which was done in
2013.
The overriding objective set out in the Civil Procedure Rules was amended to
read that the Rules were to enable ‘the court to deal with cases justly and at a
proportionate cost’.
6.4 Appeal routes in civil cases
Once a decision has been made in either the County Court or the High Court,
there is always the possibility of appealing against that decision. There are
different appeal routes from the County Court and the High Court. In addition,
the value of the claim and the level of judge who heard the case affect which
appeal route should be used.
6.4.1 Appeals from the County Court

For all claims of under £25,000 (this includes both small claims cases and what
are known as fast track cases) the appeal route depends on the level of judge
hearing the case. This means that:
• if the case was heard by a district judge, then the appeal is to a circuit judge in
the same County Court
• if the case was heard by a circuit judge, then the appeal is to a High Court
judge.
Second appeals
There is the possibility of a second or further appeal. This appeal will always be
to the Court of Appeal (Civil Division). However, such further appeals are only
allowed in exceptional cases as set out in s 55 of the Access to Justice Act 1999
which states:
no appeal may be made to the Court of Appeal … unless the Court of Appeal
considers that–
(a) the appeal would raise an important point of principle or practice, or
(b) there is some other compelling reason for the Court of Appeal to hear it.
For claims over £25,000 which have been dealt with as multi-track cases the
appeal route is always to the Court of Appeal (Civil Division) with a further
appeal to the Supreme Court.
These appeal routes are shown in Figure 6.1.
6.4.2 Appeals from the High Court
From a decision in the High Court the appeal usually goes to the Court of
Appeal (Civil Division).
In rare cases there may be a ‘leap-frog’ appeal direct to the Supreme Court
under the Criminal Justice and Courts Act 2015. Such an appeal must involve an
issue which is of national importance or raise issues of sufficient importance to
warrant the leapfrog. In addition the Supreme Court has to give permission to
appeal.
Further appeals
From a decision of the Court of Appeal there is a further appeal to the Supreme
Court but only if the Supreme Court or Court of Appeal give permission to
appeal.
These appeal routes are shown in Figure 6.2.
Also note that if a point of European law is involved the case may be referred
to the Court of Justice of the European Union under Article 267 of the Treaty of
Rome. Such a referral can be made by any English court.
6.5 Advantages of using the courts
The main advantages of using the courts to resolve a dispute are:
• the process is fair
• the trial is conducted by a legal expert
• enforcement of the court’s decision is easier
• there is an appeal process
• it may be possible to get legal aid.
Fair process
The process is fair. Everyone is treated alike. The judge is impartial.
Legal expert
The decision is made by a judge who is an experience and qualified lawyer.
Enforcement
Any decision made by a court can be enforced through the courts. There are
number of ways in which this can be done.
Appeals
There are set appeal routes from decisions made in the courts. So, if the claimant
is not happy with the decision, it is usually possible to appeal against it. This is
also true of tribunals and there can be an appeal on a point of law from a
decision in arbitration, but for other methods of dispute resolution there are no
appeals.
Legal aid
Legal aid for civil cases has been considerably reduced, but there are still some
types of case where it is available. Legal aid is not usually available in tribunals
or other methods of dispute resolution.
6.6 Problems of using the courts
Using the civil courts is:
• expensive
• slow
• complicated
• uncertain.
Expensive
The costs of taking a case to court are often more than the amount claimed. In
the High Court, the cost can be hundreds of thousands of pounds. For smaller
claims, the costs are often more than the amount claimed.
Slow
There are many preliminary stages to go through. Even after the case is set down
for hearing at court there is still a long wait – usually about one year for larger
claims before the case is heard in court. The total of all this can mean that some
cases are not settled for years. If you look at Source E in Chapter 1, you will see
that the claim was for injuries caused at birth, but the child was 11 years old
before the case was finally settled.
Small claims are dealt with more quickly with fewer formalities to be
completed before the case can be set down for trial. Also, the wait for a hearing
is on average only about 30 weeks.
Complicated
There may be compulsory steps to be taken before a case is started in court. For
example, for some types of case, the parties must use set pre-action protocols
and give the other party certain information. When a case is started in court,
there are forms to be filled in and set procedures to follow. These are all set out
in the Civil Procedure Rules. All of this makes it complicated for an ordinary
person to take a case without legal advice and help.
Test Yourself
1. Name two types of case that the County Court can hear.
2. What types of judges sit in the County Court?
3. What are the three divisions of the High Court?
4. In which division of the High Court is it possible for a jury to try certain
types of cases?
5. Where are appeals from decisions in the County Court dealt with?
6. After the first appeal, there is the possibility of a second appeal in
exceptional cases. Which court would hear this second appeal?
7. Where are appeals from decisions in the High Court dealt with?
8. After the first appeal, there is the possibility of a second appeal. To which
court is this made?
9. What is a leap frog appeal?
10. When may a case be referred to the European Court of Justice?
Uncertain
There is no guarantee of winning a case. The person losing a case may have to
pay the other side’s costs. This makes it difficult to know how much a case is
going to cost in advance. Delays in cases can also add to uncertainty and cost.
(a) Describe the operation of tribunals as a method of dispute resolution.
(10 marks)
(b) Including appeal courts, outline the civil courts that can deal with a claim
for negligence and briefly describe the process of negotiation.
(10 marks)
(c) Discuss advantages and disadvantages of using civil courts as a method of
dispute resolution.
Note that to answer part (a) and part (b) on negotiation, you will need the
information in Chapter 7.
Examiner’s tip
Questions on the civil courts often ask for knowledge of alternative dispute
resolution as well, so it is essential that you learn both areas thoroughly.
Chapter 7
Alternative Methods of Dispute Resolution
I n Chapter 6 we looked at courts which hear civil cases. Using the courts to
resolve disputes can be costly, in terms of both money and time. It can also be
traumatic for the individuals involved and may not lead to the most satisfactory
outcome for the case. An additional problem is that court proceedings are
usually open to the public and the press, so there is nothing to stop the details
of the case being published in local or national newspapers. It is not surprising,
therefore, that more and more people and businesses are seeking other methods
of resolving their disputes. Alternative methods are referred to as ‘ADR’,
which stands for ‘Alternative Dispute Resolution’, and includes any method of
resolving a dispute without resorting to using the courts. There are many
different methods which can be used, ranging from very informal negotiations
between the parties, to a comparatively formal commercial arbitration hearing.
7.1 Negotiation
Anyone who has a dispute with another person can always try to resolve it by
negotiating directly with them. This has the advantage of being completely
private, and is also the quickest and cheapest method of settling a dispute. If the
parties cannot come to an agreement, they may decide to take the step of
instructing solicitors, and those solicitors will usually try to negotiate a
settlement.
In fact, even when court proceedings have been commenced, the lawyers for
the parties will often continue to negotiate on behalf of their clients, and this is
reflected in the high number of cases which are settled out of court. Once
lawyers are involved, there will be a cost element – clearly, the longer
negotiations go on, the higher the costs will be. One of the worrying aspects is
the number of cases that drag on for years, only to end in an agreed settlement
literally ‘at the door of the court’ on the morning that the trial is due to start. It is
this situation that other alternative dispute resolution methods and, in particular,
the Woolf reforms try to avoid.
7.2 Mediation
This is where a neutral mediator helps the parties to reach a compromise
solution. The role of a mediator is to consult with each party and see how much
common ground there is between them. He/she will explore the position with
each party, looking at their needs and carrying offers to and fro, while keeping
confidentiality. A mediator will not usually tell the parties his/her own views of
the merits of the dispute; it is part of the job to act as a ‘facilitator’, so that an
agreement is reached by the parties. However, a mediator can be asked for an
opinion of the merits, and in this case the mediation becomes more of an
evaluation exercise, which again aims at ending the dispute.
Mediation is only suitable if there is some hope that the parties can co-operate.
Companies who are used to negotiating contracts with each other are most likely
to benefit from this approach. Mediation can also take different forms, and the
parties will choose the exact method they want. The important point in
mediation is that the parties are in control: they make the decisions.
7.2.1 Formalised settlement conference

This is a more formal method of approaching mediation. It involves a ‘mini-
trial’ where each side presents its case to a panel composed of a decision-making
executive from each party, and a neutral party. Once all the submissions have
been made, the executives, with the help of the neutral adviser, will evaluate the
two sides’ positions and try to come to an agreement. If the executives cannot
agree the neutral adviser will act as a mediator between them. Even if the whole
matter is not resolved, this type of procedure may be able to narrow down the
issues so that if the case does go to court, it will not take so long.
An advantage of mediation and mini-trials is that the decision need not be a
strictly legal one sticking to the letter of the law. It is more likely to be based on
commercial commonsense and compromise. The method will also make it easier
for companies to continue to do business with each other in the future, and it
may include agreements about the conduct of future business between the
parties. This is something that cannot happen if the court gives judgment, as the
court is only concerned with the present dispute. It avoids the adversarial
conflict of the court room and the winner/loser result of court proceedings – it
has been said that with mediation, everyone wins.
7.2.2 Mediation services
There are a growing number of commercial mediation services. One of the main
ones is the Centre for Dispute Resolution which was set up in London in 1991. It
has many important companies as members including almost all of the big
London law firms. Businesses say that using the Centre to resolve disputes has
saved several thousands of pounds in court costs. The typical cost of a mediator
is about £1,000 to £1,500 a day. This compares with potential litigation costs
which are frequently over £100,000 and sometimes may even come to more than
one million pounds, especially in major commercial cases.
The main disadvantage of using mediation services is that there is no
guarantee the matter will be resolved, and it will then be necessary to go to court
after the failed attempt at mediation. In such situations there is additional cost
and delay through trying mediation. However the evidence is that a high number
of cases will be resolved; the Centre for Dispute Resolution claims that over 80
per cent of cases in which it is asked to act are settled. There is also the
possibility that the issues may at least have been clarified, and so any court
hearing will be shorter than if mediation had not been attempted.
There are also mediation services aimed at resolving smaller disputes, for
example, those between neighbours. An example of such a service is the West
Kent Independent Mediation Service. This offers a free service that will try to
help resolve disagreements between neighbours arising from such matters as
noise, car-parking, dogs or boundary fence disputes. The Service is run by
trained volunteers who will not take sides or make judgements on the rights and
wrongs of an issue. They will usually visit the party who has made the complaint
to hear their side of the matter, then, if that party agrees, ask to visit the other
person and get their point of view. Finally, if both parties are willing, the
mediator arranges a meeting between them in a neutral place. The parties are in
control and can withdraw from the mediation process at any time.
The latest idea is Online Dispute Resolution. There are an increasing number
of websites offering this, e.g. www.mediate.com.
7.3 Conciliation
This has similarities to mediation in that a neutral third party helps to resolve the
dispute, but the main difference is that the conciliator will usually play a more
active role. He will be expected to suggest grounds for compromise, and the
possible basis for a settlement. In industrial disputes ACAS can give an impartial
opinion on the legal position. As with mediation, conciliation does not
necessarily lead to a resolution and it may be necessary to continue with a court
action.
7.4 Arbitration
The word ‘arbitration’ is used to cover two quite different processes. The first is
where the courts use a more informal procedure to hear cases; this is the way
proceedings in the Commercial Court of the Queen’s Bench Division are
described. The second meaning of the word ‘arbitration’ is where the parties
agree to submit their claims to private arbitration; this is the type of arbitration
that is relevant to alternative dispute resolution, as it is another way of resolving
a dispute without the need for a court case.
Private arbitration is now governed by the Arbitration Act 1996 and section 1
of that Act sets out the principles behind it. This says that:
(a) the object of arbitration is to obtain the fair resolution of disputes by an
impartial tribunal without unnecessary delay or expense;
(b) the parties should be free to agree how their disputes are resolved, subject
only to such safeguards as are necessary in the public interest.
So arbitration is the voluntary submission by the parties, of their dispute, to the
judgment of some person other than a judge. Such an agreement will usually be
in writing, and indeed the Arbitration Act 1996 applies only to written
arbitration agreements. The precise way in which the arbitration is carried out is
left almost entirely to the parties’ agreement.
7.4.1 The agreement to arbitrate

The agreement to go to arbitration can be made by the parties at any time. It can
be before a dispute arises or when the dispute becomes apparent. Many
commercial contracts include what is called a Scott v Avery clause, which is a
clause where the parties in their original contract agree that in the event of a
dispute arising between them, they will have that dispute settled by arbitration.
Figure 7.2 shows a Scott v Avery clause in the author’s contract for writing this
book.
Where there is an arbitration agreement in a contract, the Arbitration Act 1996
states that the court will normally refuse to deal with any dispute; the matter
must go to arbitration as agreed by the parties. The rules, however, are different
for consumer claims where the dispute is for an amount which can be dealt with
in the small claims track. In such circumstances the consumer may choose
whether to abide by the agreement to go to private arbitration, or whether to
insist that the case be heard in the small claims track.
An agreement to go to arbitration can also be made after the dispute arises.
Arbitration is becoming increasingly popular in commercial cases.
7.4.2 The arbitrator

Section 15 of the Arbitration Act 1996 states that the parties are free to agree on
the number of arbitrators, so that a panel of two or three may be used or there
may be a sole arbitrator. If the parties cannot agree on a number then the Act
provides that only one arbitrator should be appointed. The Act also says that the
parties are free to agree on the procedure for appointing an arbitrator.
In fact most agreements to go to arbitration will either name an arbitrator or
provide a method of choosing one. In commercial contracts it is often provided
that the president of the appropriate trade organisation will appoint the arbitrator.
There is also the Institute of Arbitrators which provides trained arbitrators for
major disputes. In many cases the arbitrator will be someone who has expertise
in the particular field involved in the dispute, but if the dispute involves a point
of law the parties may decide to appoint a lawyer. If there is no agreement on
who or how to appoint, then, as a last resort, the court can be asked to appoint an
appropriate arbitrator.
7.4.3 The arbitration hearing

The actual procedure is left to the agreement of the parties in each case, so that
there are many forms of hearing. In some cases the parties may opt for a ‘paper’
arbitration, where the two sides put all the points they wish to raise into writing
and submit this, together with any relevant documents, to the arbitrator. He will
then read all the documents, and make his decision.
Alternatively, the parties may send all these documents to the arbitrator, but
before he makes his decision both parties will attend a hearing at which they
make oral submissions to the arbitrator to support their case. Where necessary
witnesses can be called to give evidence. If witnesses are asked to give evidence
orally then this will not normally be given on oath, i.e. the person will not have
to swear to tell the truth. However, if the parties wish, then the witness can be
asked to give evidence on oath and the whole procedure will be very formal. If
witnesses are called to give evidence, the Arbitration Act 1996 allows for the use
of court procedures to ensure the attendance of those witnesses.
The date, time and place of the arbitration hearing are all matters for the
parties to decide in consultation with the arbitrator. This gives a great degree of
flexibility to the proceedings; the parties can choose what is most convenient for
all the people concerned.
7.4.4 The award

The decision made by the arbitrator is called an award and is binding on the
parties. It can even be enforced through the courts if necessary. The decision is
usually final, though it can be challenged in the courts on the grounds of serious
irregularity in the proceedings or on a point of law (s 68 Arbitration Act 1996).
7.4.5 Advantages of arbitration

There are several advantages which largely arise from the fact that the parties
have the freedom to make their own arbitration agreement, and decide exactly
how formal or informal they wish it to be. The main advantages are:
• The parties may choose their own arbitrator, and can therefore decide whether
the matter is best dealt with by a technical expert or by a lawyer or by a
professional arbitrator;
• If there is a question of quality this can be decided by an expert in the
particular field, saving the expense of calling expert witnesses and the time
that would be used in explaining all the technicalities to a judge;
• The hearing time and place can be arranged to suit the parties;
• The actual procedure used is flexible and the parties can choose that which is
most suited to the situation; this will usually result in a more informal and
relaxed hearing than in court;
• The matter is dealt with in private and there will be no publicity;
• The dispute will be resolved more quickly than through a court hearing;
• Arbitration proceedings are usually much cheaper than going to court;
• The award is normally final and can be enforced through the courts.
7.4.6 Disadvantages of arbitration

However, there are some disadvantages of arbitration, especially where the
parties are not on an equal footing as regards their ability to present their case.
This is because legal funding is not available for arbitration and this may
disadvantage an individual in a case against a business; if the case had gone to
court, a person on a low income would have qualified for legal funding and so
had the benefit of a lawyer to present their case. The other main disadvantages
are that:
• An unexpected legal point may arise in the case which is not suitable for
decision by a non-lawyer arbitrator;
• If a professional arbitrator is used, his fees may be expensive;
• It will also be expensive if the parties opt for a formal hearing, with witnesses
giving evidence and lawyers representing both sides;
• The rights of appeal are limited;
• The delays for commercial and international arbitration may be nearly as great
as those in the courts if a professional arbitrator and lawyers are used.
This problem of delay and expense has meant that arbitration has, to some
extent, lost its popularity with companies as a method of dispute resolution.
More and more businesses are turning to the alternatives offered by centres such
as the Centre for Dispute Resolution or, in the case of international disputes, are
choosing to have the matter resolved in another country.
Arbitration in consumer disputes

Arbitration is also offered as an option in consumer disputes, such as those
arising from package holidays (see Figure 7.3). This gives the possibility of
resolving a dispute by arbitration, but not as a binding agreement to go to
arbitration. This optional use of arbitration in consumer disputes is a welcome
move away from the previous practice of including an arbitration clause in
consumer contracts so that the consumer had no choice. In other words if the
consumer wanted to go ahead with the main contract, such as booking a package
holiday, then they had to accept that any dispute would be dealt with by
arbitration, whether they really wanted this or not. Of course, in most cases, the
consumer would probably be unaware of the clause or its implications until they
tried to take legal action against the company.
Activity
Find an arbitration clause in a consumer contract, for example, for a package
holiday or insurance or for a mobile phone.
7.5 Comparing courts and ADR
Methods of ADR are usually much cheaper than going to court. For ADR it is
unlikely that the parties will use a lawyer, so this also saves costs. The most
expensive is arbitration where lawyers are sometimes used, but, even so, it is
cheaper than a court case. All methods of ADR are also much quicker than going
to court.
Another advantage of most forms of ADR is that the parties are in control. In
negotiation, mediation and conciliation sessions, the parties can choose to stop at
any time. An agreement will only be reached if both sides accept it. The fact that
the parties come to an agreement has another advantage; it means they will be
able to go on doing business with each other. Court proceedings are more
adversarial, and will end with one party winning and one party losing. This is
likely to make the parties very bitter about the dispute.
Test Yourself
1. Why is an alternative form of dispute resolution often preferred to going to
court?
2. Explain what is meant by negotiation.
3. Name one advantage and one disadvantage of negotiation.
4. What is the role of a mediator?
5. Give an example of a mediation service.
6. Name one advantage and one disadvantage of mediation.
7. What is the role of a conciliator?
8. Name one advantage and one disadvantage of conciliation.
9. Who makes the decision in arbitration?
10. Name one advantage and one disadvantage of arbitration.
The main points about ADR and going to court have been summarised in
Figure 7.4.
7.6 Tribunals
Tribunals operate alongside the court system and have become an important part
of the legal system. Many tribunals were created in the second half of the
twentieth century, with the development of the welfare state. They were created
in order to give people a method of enforcing their entitlement to certain social
rights. However, unlike alternative dispute resolution where the parties decide
not to use the courts, the parties in tribunal cases cannot go to court to resolve
their dispute. The tribunal must be used instead of court proceedings.
7.6.1 Role of tribunals

Tribunals enforce rights which have been granted through social and welfare
legislation. There are many different rights, such as:
• the right to a mobility allowance for those who are too disabled to walk more
than a very short distance;
• the right to a payment if one is made redundant from work;
• the right not to be discriminated against because of one’s sex, race, age or
disability;
• the right of immigrants to have a claim for political asylum heard.
These are just a few of the types of rights that tribunals deal with.
7.6.2 Tribunals, Courts and Enforcement Act 2007

Tribunals were set up as the welfare state developed, so new developments
resulted in the creation of a new tribunal. This led to more than 70 different
types of tribunal. Each tribunal was separate and the various tribunals used
different procedures. This made the system confused and complicated.
The whole system was reformed by the Tribunals, Courts and Enforcement
Act 2007. This created a unified structure for tribunals, with a First-tier Tribunal
to hear cases at first instance and an Upper Tribunal to hear appeals.
First tier Tribunal

Since the First-tier Tribunal deals with about 300,000 cases each year and has
nearly 200 judges and 3,600 lay members, it operates in seven Chambers
(divisions). These are:
• Social Entitlement Chamber – this covers a wide range of matters such as
Child Support, Criminal Injuries Compensation and Gender Recognition;
• Health, Education and Social Care Chamber – this includes the former Mental
Health Review Tribunal which dealt with appeals against the continued
detention of those in mental hospitals – this Chamber also deals with Special
Educational Needs issues;
• War Pensions and Armed Forces Compensation Chamber;
• General Regulatory Chamber;
• Taxation Chamber;
• Land, Property and Housing Chamber;
• Asylum and Immigration Chamber.
As well as these, there is one tribunal which still operates separately from the
First-tier Tribunal. This is the Employment Tribunal. However, it is likely that
this will eventually become part of the First-tier Tribunal.
Upper Tribunal
The Upper Tribunal is divided into four Chambers (divisions). These are:
• Administrative Appeals Chamber which hears appeals from Social Entitlement
Chamber, Health, Education and Social Care Chamber and War Pensions and
Armed Forces Compensation Chamber;
• Tax and Chancery Chamber;
• Lands Chamber;
• Asylum and Immigration Chamber.
From the Upper Tribunal there is a further possible appeal route to the Court of
Appeal and from here a final appeal to the Supreme Court.
7.6.3 Composition
Cases in the First-tier Tribunal are heard by a tribunal judge. Also, for some
types of case, two lay members will sit with the judge to make the decision.
These lay members will have expertise in the particular field of the tribunal. For
example, the lay members in a hearing about a claim to mobility allowance
would be medically qualified, while there would be surveyors sitting on the
Lands Tribunal. In Employment Tribunals there are also two lay members.
These will usually be one person from an employers’ organisation and one from
an employees’ organisation. This gives them a very clear understanding of
employment issues.
7.6.4 Procedure
Both sides must be given an opportunity to put their case. In some tribunals,
especially employment and asylum tribunals, this will be done in a formal way
with witnesses giving evidence on oath and being cross-examined. Other
tribunals will operate in a less formal way.
Funding for representation is only available in a few tribunals, so most
applicants will not have a lawyer, but will present their own case. Where an
applicant is putting his own case, then the tribunal judge must try to make sure
that the applicant puts the case fully.
The decision of the tribunal is binding.
7.6.5 Advantages of tribunals

Tribunals were set up to prevent the overloading of the courts with the extra
cases that social and welfare rights claims generate.
For the applicant in tribunal cases, the advantages are that such cases are dealt
with:
• more cheaply;
• more quickly;
• more informally;
• by experts in the area.
Cheapness
As applicants are encouraged to represent themselves and not use lawyers,
tribunal hearings do not normally involve the costs associated with court
hearings. It is also rare for an order for costs to be made by a tribunal, so that an
applicant need not fear a large bill if they lose the case.
Quick hearings
Most tribunal hearings are very short and can be dealt with in one day.
Informality
The hearing is more informal than in court. Parties are encouraged to present
their own case. In addition, most cases are heard in private.
Expertise
In some tribunals two lay members sit to hear the case with the Tribunal judge.
These lay members are experts in the type of case being heard. This gives them
good knowledge and understanding of the issue in dispute.
7.6.6 Disadvantages of tribunals

Lack of funding
Public funding is not available for most tribunals, which may put an applicant at
a disadvantage if the other side (often an employer or government department)
uses a lawyer. Legal aid is available for cases where fundamental human rights
are involved, such as in cases about whether an asylum seeker has the right to
remain in the United Kingdom or whether a patient should remain in a secure
mental hospital.
More formal than ADR

A tribunal hearing is more formal than using ADR. The place is unfamiliar and
the procedure can be confusing for individuals presenting their own cases.
Where applicants are not represented the judge is expected to take an
inquisitorial role and help to establish the points that the applicant wishes to
make. But this ideal is not always achieved.
Test Yourself
1. What is the main difference between tribunals and alternative forms of
dispute resolution?
2. Give two examples of types of case which may be heard by a tribunal.
3. Which Act simplified the system of tribunals?
4. Who hears the case in a tribunal hearing?
5. After a decision by the First-tier Tribunal, to where can an appeal be made?
6. Explain one advantage of using a tribunal.
7. Explain one disadvantage of using a tribunal.
Delay
Although the intention is that cases are dealt with quickly, the number of cases
dealt with by tribunals means that there can be delays in getting a hearing. The
use of lay members can add to this problem as they sit part-time, usually one day
a fortnight. If a case is complex lasting several days this can lead to proceedings
being spread over a number of weeks or even months.
Limited review
When the Tribunals, Courts and Enforcement Act 2007 created the new system
of tribunals, it also set up the Administrative Justice and Tribunals Council. The
role of this Council was to review the working of tribunals and to report on
them. This Council has since been abolished, so that there is no independent
body to review the system. Individual decisions can be appealed but there is no
overall review.
There are various forms of dispute resolution, other than taking a case to the
civil courts. They include tribunals, arbitration, negotiation, conciliation and
mediation.
(a) Sarah has been seriously injured in an accident and intends to claim
compensation for her injuries. Outline both of the following:
• the civil courts (including appeal courts) in which her claim for
compensation may be heard
• the process of negotiation as an alternative method of dealing with her
claim.
(10 marks)
(b) Describe arbitration as a form of dispute resolution.
(10 marks)
(c) Briefly discuss advantages and disadvantages of arbitration.
AQA Law Unit 1 January 2013
Examiner’s tip
In part (b) of the question above you are asked to deal with two matters, civil
courts and negotiation. You must deal with both in your answer. If you do not
then you cannot get to the top mark band.
Chapter 8
Criminal Courts
U nit 1 of the specification requires knowledge of the criminal courts, the types
of cases they hear and also appeal routes in criminal cases. All these are
dealt with in this chapter. Unit 2 also requires knowledge of criminal courts and
some of the pre-trial procedure in cases. This is dealt with in Chapter 16.
The type of offence will make a difference as to where the case will be tried and
who will try it. For trial purposes criminal offences are divided into three
categories. These are:
• summary offences;
• triable either way offences;
• indictable offences.

These are the least serious offences. They are always tried in the Magistrates’
Court. They include nearly all driving offences. They also include common
assault and criminal damage which has caused less than £5,000 damage.

These are the middle range of crimes. As the name implies, these cases can be
tried in either the Magistrates’ Court or the Crown Court. They include a wide
range of offences such as theft and assault causing actual bodily harm.
In order to decide whether a triable either way offence will be tried in the
Magistrates’ Court or the Crown Court, the defendant is first asked whether he
or she is pleading guilty or not guilty. If the defendant is pleading guilty the case
is heard by the magistrates. Where the plea is not guilty the defendant then has
the right to ask for the case to be tried at the Crown Court by a jury. The full
procedure for this is explained in Chapter 16.

These are the most serious crimes and include murder, manslaughter and rape.
The first preliminary hearing for such an offence will be at the Magistrates’
Court, but then the case is transferred to the Crown Court. All indictable
offences must be tried at the Crown Court by a judge and jury.
8.2 Magistrates’ Courts
There are over 400 Magistrates’ Courts in England and Wales. They are local
courts so there will be a Magistrates’ Court in almost every town, while big
cities will have several courts. Each court deals with cases that have a
connection with its geographical area and they have jurisdiction over a variety of
matters involving criminal cases.
Cases are heard by magistrates, who are either qualified district judges or
unqualified lay justices (see Chapter 9 for further details on magistrates). There
is also a legally qualified clerk attached to each court to assist the magistrates.
8.2.1 Jurisdiction of the Magistrates’ Courts

In criminal cases the Magistrates Courts deal with a variety of matters. They
have a very large workload as they do the following:
1. Try all summary cases.
2. Try any triable either way offences in which the magistrates are prepared to
accept jurisdiction and where the defendant agrees to summary trial by the
magistrates.
These two categories account for about 97 per cent of all criminal cases and
about 2 million cases take place each year in Magistrates’ Courts. As well as
these the magistrates also:
1. Deal with the preliminary hearings of any triable either way offence which is
going to be tried in the Crown Court.
2. Deal with the first preliminary hearing of all indictable offences.
3. Deal with all the side matters connected to criminal cases, such as issuing
warrants for arrest and deciding bail applications.
4. Try cases in the youth court where the defendants are aged 10–17 inclusive.
8.3 Appeals from the Magistrates’ Court
There are two different routes of appeal from the Magistrates’ Court. The route
used will depend on whether the appeal is only on a point of law or whether it is
for other reasons. The two appeal routes are to the Crown Court or to the
Queen’s Bench Divisional Court.
8.3.1 Appeals to the Crown Court

This is the normal route of appeal from the Magistrates’ Court. It is only
available to the defence. If the defendant pleaded guilty at the Magistrates’
Court, then he can only appeal against sentence. If the defendant pleaded not
guilty and was convicted then the appeal can be against conviction and/or
sentence. In both cases the defendant has an automatic right to appeal and does
not need to get leave (permission) to appeal.
At the Crown Court the case is completely reheard by a judge and two
magistrates. They can come to the same decision as the magistrates and confirm
the conviction or they can decide that the case is not proved and reverse the
decision. In some cases it is possible for them to vary the decision and find the
defendant guilty of a lesser offence.
Where the appeal is against sentence, the Crown Court can confirm the
sentence or they can increase or decrease it. However, any increase can only be
up to the magistrates’ maximum powers for the case.
If it becomes apparent that there is a point of law to be decided, then the
Crown Court can decide that point of law, but there is the possibility of a further
appeal by way of case stated being made to the Queen’s Bench Divisional Court
(see below).
8.3.2 Case stated appeals

A case stated appeal is an appeal on a point of law that goes to the Queen’s
Bench Divisional Court. Both the prosecution and the defence can use this
appeal route. The appeal can be made direct from the Magistrates’ Court or
following an appeal to the Crown Court as above.
This route is only used by the defendant against a conviction or by the
prosecution against an acquittal in situations where they claim the magistrates
came to the wrong decision because they made a mistake about the law.
The magistrates (or the Crown Court) are asked to state the case by setting out
their findings of fact and their decision. The appeal is then argued on the basis of
what the law is on those facts; no witnesses are called. The appeal is heard by a
panel of two or three High Court judges from the Queen’s Bench Division.
The Divisional Court may confirm, vary or reverse the decision or remit (send
back) the case to the Magistrates’ Court for the magistrates to implement the
decision on the law.
8.3.3 Further appeal to the Supreme Court

From the decision of the Queen’s Bench Divisional Court there is a possibility of
a further appeal to the Supreme Court. Such an appeal can only be made if:
(a) The Divisional Court certifies that a point of law of general public
importance is involved; and
(b) The Divisional Court or the Supreme Court gives permission to appeal
because the point is one which ought to be considered by the Supreme Court.
An example of a case which followed this appeal route was C v DPP (1994).
This case concerned the legal point about the presumption of criminal
responsibility of children from the age of ten up to their fourteenth birthday.
Until this case it had been accepted that a child of this age could only be
convicted if the prosecution proved that the child knew he was doing wrong. The
Divisional Court held that times had changed and that children were more
mature and the rule was not needed. So they decided that children of this age
were presumed to know the difference between right and wrong and that the
prosecution did not need to prove ‘mischievous discretion’.
The case was then appealed to the House of Lords (now the Supreme Court)
who overruled the Divisional Court. The Law Lords held that the law was still
that a child of this age was presumed not to know he was doing wrong and
therefore not to have the necessary intention for any criminal offence. A child of
this age could only be convicted if the prosecution disproved this presumption
by bringing evidence to show that the child was aware that what he was doing
was seriously wrong. The House of Lords ruling was on the basis that it was for
Parliament to make such a major change to the law, not the courts. The courts
were bound by precedent.
In fact Parliament did later change the law on this point.
A diagram setting out the appeal routes from the Magistrates’ Court is shown
in Figure 8.3.
8.4 The Crown Court
The Crown Court currently sits in 90 different centres throughout England and
Wales. There are three kinds of centre:
1. First tier
These exist in main centres throughout the country, for example there are
first tier Crown Courts in Bristol, Birmingham, Leeds and Manchester. At
each court there is a High Court and a Crown Court with separate judges for
civil and criminal work. The Crown Court is permanently staffed by High
Court judges as well as Circuit judges and Recorders and the court can deal
with all categories of crime triable on indictment.
2. Second tier
This is a Crown Court only, but High Court judges sit there on a regular
basis to hear criminal cases, as well as Circuit judges and Recorders. All
categories of crime triable on indictment can be tried here.
3. Third tier
This is staffed only by Circuit judges and Recorders. The most serious cases,
such as murder, manslaughter and rape are not usually tried here as there is
no High Court judge to deal with them.
Each year the Crown Court deals with about 80,000 cases.
8.5 Appeals from the Crown Court
8.5.1 Appeals by the defendant
The defendant has the possibility of appealing against conviction and/or sentence
to the Court of Appeal (Criminal Division). So, at the end of any trial in which a
defendant has been found guilty, his lawyer should advise him on the possibility
of an appeal.
Leave to appeal
In all cases the defendant must get leave to appeal from the Court of Appeal or a
certificate that the case is fit for appeal from the trial judge. The idea is that cases
which are without merit are filtered out and the court’s time saved.
The application for leave to appeal is considered by a single judge of the
Court of Appeal in private, although if he refuses it is possible to apply to a full
Court of Appeal for leave.
Grounds for appeal

The Criminal Appeal Act 1995 simplified the grounds under which the court can
allow an appeal. The Act states that the Court of Appeal:
(a) shall allow an appeal against conviction if they think that the conviction is
unsafe; and
(b) shall dismiss such an appeal in any other case.
If the Court of Appeal decides that the conviction is unsafe, they can allow the
defendant’s appeal and quash the conviction. Alternatively they can vary the
conviction to that of a lesser offence of which the jury could have convicted the
defendant. If the appeal is against sentence, the court can decrease the sentence
but cannot increase it on the defendant’s appeal.
The Court of Appeal also has the power to order that there be a retrial of the
case in front of a new jury. This power is only used in about 50 to 60 cases each
year.
If the Court of Appeal decides that the conviction is safe, then they will
dismiss the appeal.
8.5.2 Appeals by the prosecution
Originally the prosecution had no right to appeal against either the verdict or
sentence passed in the Crown Court. Gradually, however, some limited rights of
appeal have been given to them by Parliament.
Against a judge’s ruling

If the trial judge gives a ruling on a point of law which effectively stops the case
against the defendant, the prosecution now have the right to appeal against that
ruling. This right was given by the Criminal Justice Act 2003. It makes sure that
an error of law by the judge does not lead to an acquittal.
Against acquittal
There are only two limited situations in which the prosecution can appeal against
an acquittal by a jury.
1. Where the acquittal was the result of the jury being ‘nobbled’.
This is where one or more jurors are bribed or threatened by associates of the
defendant. In these circumstances, provided there has been an actual
conviction for jury nobbling, the Criminal Procedure and Investigations Act
1996 allows the prosecution to appeal and the Court of Appeal can order a
retrial.
Once the acquittal is quashed, the prosecution could then start new
proceedings for the same offence.
2. Where there is new and compelling evidence of the acquitted person’s guilt
and it is in the public interest for the defendant to be retried. This power is
given by the Criminal Justice Act 2003 and it is only available for some 30
serious offences, including murder, manslaughter, rape and terrorism
offences. It is known as double jeopardy, since the defendant is being tried
twice for the same offence.
The DPP has to consent to the reopening of investigations in the case.
Once the evidence has been found, then the prosecution have to apply to the
Court of Appeal for the original acquittal to be quashed.
This power has been used in cases where new techniques of DNA testing
now show that a defendant who is acquitted is in fact the offender. The first
case in which this power was used is shown in the article opposite.
Another case in which this power was used was in 2011 when two
defendants who had been previous acquitted of the murder of black teenager,
Stephen Lawrence, were retried and convicted some 19 years after his
murder. Part of the new evidence was a DNA match with Stephen’s blood
found on the clothing of one of the defendants. This evidence became
available due to improved DNA testing techniques.
Referring a point of law

Where the judge may have made an error in explaining the law to the jury, the
prosecution have the right to refer a point of law to the Court of Appeal if the
defendant is acquitted. This right is under s 36 of the Criminal Justice Act 1972
which allows the Attorney-General to refer the point of law to the Court of
Appeal in order to get a ruling on the law. The decision by the Court of Appeal
on that point of law does not affect the acquittal but it creates a precedent for any
future case involving the same point of law.
Example
Man admits murder in first UK double jeopardy case
Fifteen years after he was cleared of murder, the first person in Britain to face a
retrial under new double jeopardy rules admitted today that he killed his victim.
Billy Dunlop, 43, pleaded guilty to murdering pizza delivery girl Julie Hogg,
22, in Billingham, Teeside, when he appeared at the Old Bailey today.
Dunlop stood trial twice in 1991 for her murder but each time a jury failed to
reach a verdict. He was formally acquitted under the convention that the
prosecution do not ask for a third trial in such circumstances.
But in April last year the double jeopardy rule – which prevented a defendant
who had been acquitted from being tried again for the same offence – was
changed under the Criminal Justice Act 2003.
The following November the Director of Public Prosecutions announced the
legal process to retry Dunlop had begun. The case was sent to the Court of
Appeal where his acquittal was quashed.
Taken from an article in the Daily Mail, 11 September 2006
Against sentence
Under s 36 of the Criminal Justice Act 1988 the Attorney-General can apply for
leave to refer an unduly lenient sentence to the Court of Appeal for re-
sentencing. This power was initially available for indictable cases only, but was
extended in 1994 to many triable either way offences, provided that the trial of
the case took place at a Crown Court.
8.5.3 Further appeals to the Supreme Court

Both the prosecution and the defence may appeal from the Court of Appeal to
the Supreme Court, but it is necessary to have the case certified as involving a
point of law of general public importance and to get permission to appeal, either
from the Supreme Court or from the Court of Appeal. There are very few
criminal appeals heard by the Supreme Court.
Test Yourself
1. Where can a summary offence be tried?
2. Give an example of a summary offence.
3. Where can a triable either way offence be tried?
4. Give an example of a triable either way offence.
5. Where can an indictable offence be tried?
6. Give an example of an indictable offence.
7. To which court is an appeal normally made from the magistrates’ courts?
8. What is a case stated appeal?
9. To which court is an appeal made after a trial in the Crown Court?
10. What rights do the prosecution have to make an appeal after an acquittal in
the Crown Court?
(a) Outline both of the following:
• the trial and appeal courts that can hear adult criminal cases
• the types of cases dealt with by these courts.
(10 marks)
Examiner’s tip
Questions on the courts need very accurate knowledge. If you know this topic,
then the question is very straightforward and you can easily get into the top
mark band. If you do not know the topic, then do not choose it as one of the
ones to answer in the examination.
Chapter 9
Lay Magistrates
T here is a tradition of using lay people, i.e. people who are not legally
qualified, in the decision-making process in our courts. Today this applies
particularly to the Magistrates’ Courts and the Crown Court. However, in the
past lay people were also frequently used to decide civil cases in the High
Court and the County Court, and there are still some cases in which a jury can
be used in the civil courts. There are also lay people with expertise in a
particular field who sit as part of a panel as lay assessors. This occurs mainly in
tribunals but lay assessors are also used in the Patents Court and the Admiralty
Court in the High Court.
This chapter concentrates on lay magistrates and the next chapter looks at
juries. It is possible for examination questions to be set on the use of lay people
in the legal system in general. Remember that for such a question you will need
to use material from both chapters.
9.1 Lay magistrates
There are about 21,000 lay magistrates sitting as part-time judges in the
Magistrates’ Courts; another name for lay magistrates is Justices of the Peace.
They sit to hear cases as a bench of two or three magistrates. The size of panel
has been limited to a maximum of three, whereas before 1996 there could be up
to seven magistrates sitting together to hear a case. A single lay magistrate
sitting on his or her own has very limited powers. They can, however, issue
search warrants and warrants for arrest and conduct Early Administrative
Hearings.
There are also District judges (Magistrates’ Courts) who work in Magistrates’
Courts. These are not lay people but are qualified lawyers who can sit on their
own to hear any of the cases that come before the court. Under section 16(3) of
the Justices of the Peace Act 1979 they have the same powers as a bench of lay
magistrates. Since the duties of these District judges are the same as those of lay
magistrates and since the history of the two is linked, details of District judges
(formerly known as Stipendiary magistrates) are also included in this chapter.
9.2 History of the magistracy
The office of Justice of the Peace is very old, dating back to the twelfth century
at least – in 1195 Richard I appointed ‘keepers of the peace’. By the mid-
thirteenth century the judicial side of their position had developed and by 1361
the title Justice of the Peace was being used. Over the years they were also given
many administrative duties, for example, being responsible for the poor law,
highways and bridges, and weights and measures. In the nineteenth century
elected local authorities took over most of these duties, though some remnants
remain, especially in the licensing powers of the Magistrates’ Courts.
The poor quality of the local Justices of the Peace in London and the absence
of an adequate police force became a matter of concern towards the end of the
eighteenth century. This led to seven public offices with paid magistrates being
set up in 1792 and until 1839 they were in charge of the police as well as hearing
cases in court. Outside London the first appointment of a paid magistrate was in
Manchester in 1813. In 1835 the Municipal Corporations Act gave a general
power for boroughs to request the appointment of a paid magistrate. At the
beginning a paid magistrate did not have to have any particular qualifications,
but from 1839 they could only be appointed from barristers. Solicitors did not
become eligible to be appointed until 1949.
9.2.1 Qualifications
Lay magistrates
Lay magistrates do not have to have any qualifications in law. There are,
however, some requirements as to their character. In 1998, the Lord Chancellor
set out six key qualities which candidates should have. These are:
• good character;
• understanding and communication;
• social awareness;
• maturity and sound temperament;
• sound judgment;
• commitment and reliability.
They must have certain ‘judicial’ qualities – it is particularly important that they
are able to assimilate factual information and make a reasoned decision upon it.
They must also be able to take account of the reasoning of others and work as a
team.
There are also formal requirements as to age and residence: lay magistrates
must be aged between 18 and 65 on appointment. Not many people under the
age of 27 are appointed as it is felt they do not have enough experience.
However, since the age for appointment was reduced to 18 in 2003, more young
magistrates have been appointed. For example, in 2004 one aged 21 was
appointed in Shropshire and another aged 23 in West Yorkshire. However, the
statistics for 2014 show that only 3 per cent of magistrates were under the age of
40.
9.2.2 Area
Up to 2003 it was necessary for lay magistrates to live within 15 miles of the
commission area for the court which they sat in. In 2003 the Courts Act
abolished commission areas. Instead there is now one commission area for the
whole of England and Wales. However the country is divided into local justice
areas. These areas are specified by the Lord Chancellor and lay magistrates are
expected to live or work within or near to the local justice area to which they are
allocated.
9.2.3 Commitment
The other requirement is that lay magistrates are prepared to commit themselves
to sitting at least 26 half days each year. It is thought that this level of
commitment deters many people from becoming lay magistrates.
9.2.4 Restrictions on appointment

Some people are not eligible to be appointed. These include people with serious
criminal convictions, though a conviction for a minor motoring offence will not
automatically disqualify a candidate. Others who are disqualified include
undischarged bankrupts, members of the forces and those whose work is
incompatible with sitting as a magistrate, such as police officers and traffic
wardens. Relatives of those working in the local criminal justice system are not
likely to be appointed as it would not appear ‘just’ if, for example, the wife or
husband of a local police officer were to sit to decide cases. In addition people
whose hearing is impaired, or who by reason of infirmity cannot carry out all the
duties of a justice of the peace cannot be appointed. Close relatives will not be
appointed to the same bench.
Activity
1. Put the list of six key qualities in 9.2.1 into order with the one that you
think is most important first and the least important last.
2. Compare your list with those of two other people.
3. Explain what other qualities you think magistrates need.
9.2.5 District judges (Magistrates’ Courts)

These were previously known as stipendiary magistrates. They must have a
seven-year general qualification, that is a right of audience as an advocate, and
are usually chosen from practising barristers or solicitors, or from others with
relevant experience such as court clerks. They are only appointed to courts in
London or other places with busy courts. Before becoming a District judge they
will usually be an acting judge sitting part time for two years to gain experience
of sitting judicially, and to establish their suitability for full-time appointment.
9.3 Appointment
About 1,200 new lay magistrates are appointed each year. As of 2013,
appointments are made by the Lord Chief Justice, who can delegate these
powers. The current Lord Chief Justice has delegated these powers to the Senior
Presiding Judge. In order to decide who to appoint the Judge relies on
recommendations made by the local advisory committees.
9.3.1 Local advisory committees

The membership of the committees used to be secret but since 1993 all names
must be published. The members tend to be current or ex-Justices of the Peace.
About half the members have to retire in rotation every three years. The
committees should have a maximum of 12 members and these should include a
mixture of magistrates and non-magistrates.
Anyone can apply to become a magistrate. The process is explained online at
www.gov.uk.
Advertisements are used to try and encourage as wide a range of potential
candidates as possible. Advertisements have been placed in local papers, or
newspapers aimed at particular ethnic groups, and even on buses! Also, in
Leeds, radio adverts have been used. People are also encouraged to go to open
evenings at their local Magistrates’ Court. All this is aimed at getting as wide a
spectrum of potential candidates as possible. The intention is to create a panel
that is representative of all aspects of society.
The aim is for membership to reflect a balance of occupations. The Lord
Chancellor set down 11 broad categories of occupations, and advisory
committees are recommended that they should not have more than 15 per cent of
the bench coming from any one category.
9.3.2 Interview panels

There is usually a two-stage interview process. At the first interview the panel
tries to find out more about the candidate’s personal attributes, in particular
looking to see if they have the six key qualities required. The interview panel
will also explore the candidate’s attitudes on various criminal justice issues such
as youth crime or drink driving. The second interview is aimed at testing
candidates’ potential judicial aptitude and this is done by a discussion of at least
two case studies which are typical of those heard regularly in magistrates’
courts. The discussion might, for example, focus on the type of sentence which
should be imposed on specific case facts.
The advisory committees will then submit names of those they think are
suitable to the Lord Chief Justice or his delegate, who will then appoint new
magistrates from this list. Once appointed, magistrates may continue to sit until
the age of 70.
9.4 Composition of the bench today
The traditional image of lay justices is that they are ‘middle-class, middle-aged
and middle-minded’. This image is to a certain extent true. A report, The
Judiciary in the Magistrates’ Courts (2000), found that lay magistrates:
• were drawn overwhelmingly from professional and managerial ranks; and
• 40 per cent of them were retired from full-time employment.
However, in other respects the bench is well balanced, as just over 51 per cent of
magistrates are women, as against 18 per cent in the top ranks of the professional
judges, although there are more at the lower levels. For example, about 31 per
cent of District Judges are women.
Also, ethnic minorities are reasonably well represented in the magistracy.
Over 8 per cent of magistrates are from ethnic minorities. This compares very
favourably to the professional judiciary where less than 4 per cent are from
ethnic minority backgrounds.
The relatively high level of ethnic minority magistrates is largely a result of
campaigns to attract a wider range of candidates. Adverts are placed in national
newspapers and also in TV guides and women’s magazines. In an effort to
encourage those from ethnic minorities to apply, adverts have also appeared in
such publications as the Caribbean Times, the Asian Times and Muslim News.
This has led to an increase in the numbers of ethnic minority appointments.
Internet Research
Look up the composition of the magistracy for your area at
www.judiciary.gov.uk. Find out:
1. How many male and female magistrates are there in your area?
2. How many magistrates from an ethnic minority are there in your area?
Disabled people are encouraged to apply to become magistrates. This has

included appointing blind persons as lay magistrates.
9.5 Magistrates’ duties
Magistrates have a very wide workload which is mainly connected to criminal
cases, although they also deal with some civil matters, especially family cases.
They try 97 per cent of all criminal cases and deal with preliminary hearings in
the remaining 3 per cent of criminal cases. This will involve Early
Administrative Hearings, remand hearings, bail applications and transfer
proceedings where serious criminal cases are sent to the Crown Court for trial.
Magistrates also deal with civil matters which include the enforcing of debts
owed to the utilities (gas, electric and water), non-payment of the council tax and
non-payment of television licences. In addition they hear appeals against the
refusal of the local authority to grant licences for the sale of alcohol and licences
for betting and gaming establishments.
9.5.1 Youth court

Specially nominated and trained justices from the Youth Court panel hear
criminal charges against young offenders aged 10 to 17 years old. The panel
must usually include at least one man and one woman. There is also a special
panel for the Family Court to hear family cases including orders for protection
against violence, affiliation cases, adoption orders and proceedings under the
Children Act 1989. This family court is part of the new Family Court which was
set up under the Crime and Courts Act 2013.
9.5.2 Appeals
Lay magistrates also sit at the Crown Court to hear appeals from the
Magistrates’ Court. In these cases the lay justices form a panel with a qualified
judge.
9.6 Training of lay magistrates
The training of lay magistrates is supervised by the Magisterial Committee of the
Judicial College. This Committee has drawn up a syllabus of the topics which
lay magistrates should cover in their training. However, because of the large
numbers of lay magistrates, the actual training is carried out in local areas,
sometimes through the clerk of the court, sometimes through weekend courses
organised by universities with magistrates from the region attending.
Since 1998 magistrates’ training has been monitored more closely. There were
criticisms prior to then that, although magistrates were required to attend a
certain number of hours training, there was no assessment of how much they had
understood. In 1998 the Magistrates New Training Initiative was introduced
(MNTI 1). In 2004 this was refined by the Magistrates National Training
Initiative (MNTI 2).
The framework of training is divided into four areas of competence, the first
three of which are relevant to all lay magistrates. The fourth competence is for
chairmen of the bench. The four areas of competence are:
1. Managing yourself – this focuses on some of the basic aspects of self-
management in relation to preparing for court, conduct in court and ongoing
learning.
2. Working as a member of a team – this focuses on the team aspect of
decision-making in the Magistrates’ Court.
3. Making judicial decisions – this focuses on impartial and structured decision-
making.
4. Managing judicial decision-making – this is for the chairman’s role and
focuses on working with the legal adviser, managing the court and ensuring
effective, impartial decision-making.
For delivering training there are Training and Developmental Committees
(BTDCs) and s 19(3) of the Courts Act 2003 sets out a statutory obligation on
the Lord Chancellor to provide training and training materials.
9.6.1 Training for new magistrates

There is a syllabus for new magistrates which is divided into three parts:
1. Initial introductory training – this covers such matters as understanding the
organisation of the bench and the administration of the court and the roles
and responsibilities of those involved in the Magistrates’ Court.
2. Core training – this provides the new magistrate with the opportunity to
acquire and develop the key skills, knowledge and understanding required of
a competent magistrate.
3. Activities – these will involve observations of court sittings and visits to
establishments such as a prison or a probation office.
9.6.2 Training sessions

These are organised and carried out at local level within the 42 court areas.
Much of the training is delivered by Justices’ Clerks. The Judicial College
intends that most training should still be delivered locally, however, they take
into account the need to collaborate regionally and nationally where appropriate.
In particular, the training of Youth and Family Panel Chairmen will be delivered
nationally for areas which do not have enough such chairmen needing training to
run an effective course locally.
9.6.3 Wingers
After doing the core training and observing cases, a new magistrate will sit as a
‘winger’ to hear cases. This means that they will be one of a panel of three. The
chairman (who sits in the middle) is a very experienced magistrate and the
magistrates who sit on either side of the chairman are known as ‘wingers’.
9.6.4 Appraisal
During the first two years of the new magistrate sitting in court, between 8 and
11 of the sessions will be mentored. In the same period the magistrate is also
expected to attend about seven training sessions. After two years, or whenever it
is felt that the magistrate is ready, an appraisal will take place to check if they
have acquired the competencies.
Any magistrate who cannot show that they have achieved the competencies
will be given extra training. If they still cannot achieve the competencies, then
the matter is referred to the local Advisory Committee, who may recommend to
the Lord Chancellor that the magistrate is removed from sitting.
This new scheme involves practical training ‘on the job’. It also answers the
criticisms of the old system where there was no check made on whether the
magistrate had actually benefited from the training session they attended.
Those magistrates who chair the bench are also appraised for this role, so that
the quality of the chairing in court should also improve. The training programme
for new magistrates should normally follow the pattern set out in Figure 9.1.
9.7 Retirement and removal
9.7.1 Retirement
The retirement age is 70, but when magistrates become 70 they do not officially
retire – instead their names are placed on the Supplemental List. This means that
they can no longer sit in the Magistrates’ Court. However, they can continue to
carry out some administrative functions mainly connected with signing
documents. Lay magistrates who move from the area for which they were
appointed cannot continue as magistrates in that area. If they wish to continue as
magistrates their names will be placed on the Supplemental List until there is a
vacancy in their new area. Lay magistrates may, of course, resign from office at
any time and many will resign before reaching 70.
9.7.2 Removal
Section 11 of the Courts Act 2003 gives the Lord Chancellor with the agreement
of the Lord Chief Justice powers to remove a lay justice for the following
reasons:
• on the ground of incapacity or misbehaviour;
• on the ground of a persistent failure to meet such standards of competence as
are prescribed by a direction given by the Lord Chancellor; or
• if the Lord Chancellor is satisfied that the lay justice is declining or neglecting
to take a proper part in the exercise of his functions as a justice of the peace.
Removal for misbehaviour usually occurs when a magistrate is convicted of a
criminal offence. There about 10 such removals each year. However, on
occasions in the past there have been removals for such matters as taking part in
a CND march or transvestite behaviour. There was considerable criticism of the
use of the power of removal in such circumstances and it is unlikely that such
behaviour today would lead to removal from the bench.
9.8 The magistrates’ clerk
Every bench is assisted by a clerk, also known as a legal adviser. The senior
clerk in each court has to be qualified as a barrister or solicitor for at least five
years. The clerk’s duty is to guide the magistrates on questions of law, practice
and procedure. This is set out in s 28(3) of the Justices of the Peace Act 1979
which says:
It is hereby declared that the functions of a justices’ clerk include the giving to
the justices … of advice about law, practice or procedure on questions arising in
connection with the discharge of their functions.
The clerk is not meant to assist in the decision-making and should not normally
retire with the magistrates when they go to make their decision. In R v Eccles
Justices, ex parte Farrelly (1992) the Queen’s Bench Divisional Court quashed
convictions because the clerk had apparently participated in the decision-making
process.
Clerks deal with routine administrative matters. They can also issue warrants
for arrest, extend police bail, adjourn criminal proceedings and deal with Early
Administrative Hearings.
9.9 Advantages of lay magistrates
9.9.1 Cross-section of society
The system involves members of the community and provides a wider cross-
section on the bench than would be possible with the use of professional judges.
This is particularly true of women, with just over 51 per cent of magistrates
being women. Also, there is considerable involvement of ethnic minorities.
9.9.2 Local knowledge

Since lay magistrates have to live or work near the court, it is intended that they
should have local knowledge of particular problems in the area. However, as
most magistrates come from the professional and managerial classes, it is
unlikely that they live in, or have any real knowledge of, the problems in the
poorer areas. Their main value is that they will have more awareness of local
events, local patterns of crime and local opinions than a professional judge from
another area.
9.9.3 Cost
The use of unpaid lay magistrates is cheap. The cost of replacing them with paid
judges has been estimated at £100 million a year (there would also be the
problem of recruiting sufficient qualified lawyers). The cost of a trial in the
Magistrates’ Court is also much cheaper than in the Crown Court.
9.9.4 Training
Improved training means that lay magistrates are not complete ‘amateurs’. The
majority of decisions require common sense rather than professional training.
9.9.5 Legal adviser

Since 1999 all newly appointed magistrates’ clerks have to be legally qualified.
In addition, existing clerks under the age of 40 in 1999 have to qualify within 10
years. This brings a higher level of legal skill to the Magistrates’ Court. The
availability of a legal adviser gives the magistrates access to any necessary legal
advice on points that may arise in any case. This overcomes any criticism of the
fact that lay magistrates are not themselves legally qualified.
9.9.6 Few appeals
Comparatively few defendants appeal against the magistrates’ decisions, and
many of the appeals that are made are against sentence, not against the finding of
guilt. From a total workload of nearly 2 million cases there are only a small
number of appeals. In most years there are between 5,000 and 6,000 appeals
against conviction. Less than half of these appeals are successful. There are also
about 6,000 appeals each year against the sentence imposed by the magistrates.
Again, less than half of these are successful.
There are also very few instances where an error of law is made. This is
shown by the fact that in 2011 there were only 79 appeals by way of case stated
to the Queen’s Bench Divisional Court. Of this very small number of appeals,
less than half were allowed. From this it can be argued that, despite the amateur
status of lay magistrates, they do a remarkably good job.
9.10 Disadvantages of lay magistrates
9.10.1 Middle aged, middle class
Lay magistrates are often perceived as being middle aged and middle class. The
report The Judiciary in the Magistrates’ Courts (2000) showed that this was
largely true. They found that 40 per cent of lay magistrates were retired and also
that they were overwhelmingly from a professional or managerial background.
However, lay magistrates are from a much wider range of backgrounds than
professional judges.
9.10.2 Inconsistency in sentencing

Magistrates in different areas often pass very different sentences for what appear
to be similar offences. This is something which has not really improved over the
years, despite the training they receive.
For example, in 2001, the Government’s White Paper, Justice for All, set out
differences with these following examples:
• for burglary of dwellings, 20 per cent of offenders are sentenced to immediate
custody in Teesside, compared with 41 per cent of offenders in Birmingham;
38 per cent of burglars at Cardiff magistrates’ courts receive community
sentences, compared with 66 per cent in Leicester;
• for driving while disqualified, the percentage of offenders sentenced to
custody ranged from 21 per cent in Neath Port Talbot (South Wales) to 77 per
cent in mid-north Essex;
• for receiving stolen goods, 3.5 per cent of offenders sentenced at Reading
Magistrates’ Court received custodial sentences compared with 48 per cent in
Greenwich and Woolwich (south London) and 39 per cent at Camberwell
Green (south London).
The situation had not improved by 2010 as the statistics for that year show. The
highest percentage of offenders being given a custodial sentence was in Bristol
(11.1 per cent) and Peterborough (11.0 per cent). At the other end of the scale,
only 0.1 per cent of offenders appearing in Dinefwr magistrates’ courts were
given custodial sentences.
Bristol also imposed the highest percentage of community sentences at 32.2
per cent, whilst in Dinefwr it was 6.6 per cent. The overall figures for Bristol
show that out of 5,687 offenders sentenced, 630 were given a custodial sentence
and 1,831 a community sentence. In Dinefwr, out of 1,169 offenders sentenced,
only one was given a custodial sentence and 79 a community sentence.
These figures do not take into account what types of offences were involved,
but the figures for Bristol seem to be excessively high. This is so even when
compared to other city areas with similar numbers of offenders, such as
Coventry where, out of 7,162 offenders, 492 were given a custodial sentence
(6.8 per cent) and 1,043 were given community sentences (14.4 per cent).
An interesting point is that District Judges are more likely than lay magistrates
to sentence an offender to imprisonment.
9.10.3 Reliance on the clerk

The lack of legal knowledge of the lay justices should be offset by the fact that a
legally qualified clerk is available to give advice. However, this will not prevent
inconsistencies in sentencing since the clerk is not allowed to help the
magistrates decide on a sentence. In some courts it is felt that the magistrates
rely too heavily on their clerk.
9.10.4 Prosecution bias
It is often said that lay magistrates tend to be prosecution-biased, believing the
police too readily. However, part of the training is aimed at eliminating this type
of bias. It is also true that at courts outside London they will see the same Crown
Prosecution Service prosecutor frequently and this could affect their judgment.
There is a low acquittal rate in Magistrates’ Courts with only 20 per cent of
defendants being acquitted. By comparison 60 per cent of defendants pleading
not guilty at the Crown Court were acquitted.
9.10.5 Training
There are the criticisms that the training is variable in quality and inadequate for
the workload. This poor training may be the cause of marked variations in
sentencing and granting of bail between different benches.
Test Yourself
1. What two types of ‘judge’ sit to hear cases in the magistrates’ courts?
2. What qualifications (age, character) must lay magistrates have?
3. How are potential lay magistrates selected and by whom?
4. Who appoints lay magistrates?
5. What types of cases do magistrates deal with in the magistrates’ courts?
6. What does the Youth Court deal with?
7. How are lay magistrates trained?
8. At what age must lay magistrates retire?
9. Give three advantages of using lay magistrates.
10. Give three disadvantages of using lay magistrates.
(a) An either-way offence, such as Actual Bodily Harm (ABH), can be tried in
either the Magistrates Court or the Crown Court. Describe the role of lay
magistrates when dealing with an either-way offence.
(10 marks)
(b) Discuss one of the following:
• advantages of using lay magistrates in the criminal justice system
• advantages of using juniors in the criminal justice system
AQA Law Unit 1 January 2013 part question
Examiner’s tip
Past questions on the criminal courts and lay people have usually included parts
on both magistrates and juries, so you must learn both in order to be able to
answer all parts of the question. It is also possible that the question will include
a part on the criminal courts.
Chapter 10
Juries
10.1 History of the jury system
Juries have been used in the legal system for over 1,000 years. There is evidence
that they were used even before the Norman Conquest. However, in 1215 when
trial by ordeal was condemned by the Church and (in the same year) the Magna
Carta included the recognition of a person’s right to trial by ‘the lawful judgment
of his peers’, juries became the usual method of trying criminal cases. Originally
they were used for providing local knowledge and information, and acted more
as witnesses than decision-makers. By the middle of the fifteenth century juries
had become independent assessors and assumed their modern role as deciders of
fact.
10.1.1 The independence of the jury

The independence of the jury became even more firmly established following
Bushell’s Case (1670). In that case several jurors refused to convict Quaker
activists of unlawful assembly. The trial judge would not accept the not guilty
verdict, and ordered the jurors to resume their deliberations without food or
drink. When the jurors persisted in their refusal to convict, the court fined them
and committed them to prison until the fines were paid. On appeal, the Court of
Common Pleas ordered the release of the jurors, holding that jurors could not be
punished for their verdict. This established that the jury were the sole arbiters of
fact and the judge could not challenge their decision.
A modern-day example, demonstrating that judges must respect the
independence of the jury, is R v McKenna (1960). In that case the judge at the
trial had threatened the jury that if they did not return a verdict within another 10
minutes they would be locked up all night. The jury then returned a verdict of
guilty, but the defendant’s conviction was quashed on appeal because of the
judge’s interference.
10.2 Modern-day use of the jury
Only a small percentage of cases is tried by jury today. However, juries are used
in the following courts:
• Crown Court for criminal trials on indictment;
• High Court, Queen’s Bench Division (rarely and only for certain types of
cases);
• County Court (very rarely and for the same types of cases as in the Queen’s
Bench Division);
• Coroners’ Courts (in some cases).
10.2.1 Juries in criminal cases

The most important use of juries today is in the Crown Court where they decide
whether the defendant is guilty or not guilty. Jury trials, however, account for
less than 1 per cent of all criminal trials. This is because 97 per cent of cases are
dealt with in the Magistrates’ Court and of the cases that go to the Crown Court,
about two out of every three defendants will plead guilty. Also some of the cases
at the Crown Court, in which the defendant has entered a not guilty plea, will not
go before a jury as the case will be discharged by judge without any trial. This
occurs where the Crown Prosecution Service withdraws the charges, possibly
because a witness refuses to give evidence. A jury in the Crown Court has 12
members.
10.2.2 Juries in civil cases
Juries in civil cases are now only used in very limited circumstances, but where
they are used they have a dual role. They decide whether the claimant has
proved his case or not, then, if they decide that the claimant has won the case,
the jury also go on to decide the amount of damages that the defendant should
pay to the claimant.
Up to 1854 all common law actions were tried by jury, but from 1854 the
parties could agree not to use a jury and gradually their use declined. Then in
1933 the Administration of Justice Act limited the right to use a jury, so that
juries could not be used in disputes over breach of contract.
The present rules for when juries may be used in civil cases are set out in s 69
of the Senior Courts Act 1981 for High Court cases, and s 66 of the County
Courts Act 1984 for cases in that court. These Acts state that parties have the
right to jury trial only in the following types of case:
• defamation, i.e. cases of libel and slander (this is the most frequent use of
juries);
• false imprisonment;
• malicious prosecution;
• fraud.
All these cases involve character or reputation and it is for this reason that jury
trial has been retained. Even for these cases a jury trial can be refused by the
judge if the case involves complicated documents or accounts or scientific
evidence and is therefore thought to be unsuitable for jury trial.
There are now very few civil cases in which a jury is used. Some years there
are none in the County Court and less than 10 in the High Court. Where a jury is
used in the High Court there will be 12 members; in the County Court a jury
consists of eight.
Use of juries in personal injury cases

In other civil cases in the Queen’s Bench Division of the High Court the parties
can apply to a judge for trial by jury, but it is very rare for such a request to be
granted. This follows the case of Ward v James (1966) where the claimant was
claiming for injuries caused in a road crash. In this case the Court of Appeal laid
down guidelines for personal injury cases. These were:
• Personal injury cases should normally be tried by a judge sitting alone,
because such cases involve assessing compensatory damages which have to
have regard to the conventional scales of damages.
• There have to be exceptional circumstances before the court will allow a jury
to be used in such a case.
The decision in Ward v James effectively stopped the use of juries for personal
injury cases. The following cases show how the courts have proved very
reluctant to let juries be used. In Singh v London Underground (1990) a request
for a jury to try a personal injury case arising from the King’s Cross
underground fire was refused. It was held that the case was unsuitable for jury
trial because it involved such wide issues and technical points.
The case of H v Ministry of Defence (1991) further reinforced the rule in Ward
v James; the claimant was a soldier who had received negligent medical
treatment necessitating the amputation of part of his penis. He applied for jury
trial, but it was held that jury trial for a personal injury claim would only be
allowed in very exceptional circumstances and this case was not such a one. The
court said that an example of when jury trial might be appropriate was where the
injuries resulted from someone deliberately abusing their authority and there
might well be a claim for exemplary damages.
10.2.3 Coroners’ courts

In these courts a jury of between 7 and 11 members may be used to enquire into
deaths.
The Coroners and Justice Act 2009 changed the use of juries in Coroners’
Courts. Under this a jury must be used if there is reason to suspect that the
deceased died while in custody and that either:
(a) (i) the death was a violent or unnatural one,
or
(ii) the cause of death is unknown;
(b) that the death resulted from an act or omission of a police officer.
A jury must also be used where the death was caused by a notifiable accident,
poisoning or disease.
A jury will also be used if the senior coroner thinks that there is sufficient
reason for it.
A coroner is no longer obliged to summon a jury to decide cases involving
road accidents or suspected homicide. He has a discretion as to whether a jury
should be used in such cases. A jury was used to inquire into the death of
Princess Diana.
10.3 Jury qualifications
10.3.1 Basic qualifications
History
The qualifications for jury service were revised in 1972 following the Morris
Committee Report on jury service. Before this date there was a property
qualification – in order to be a juror it was necessary to be the owner or tenant of
a dwelling. This restriction meant that women and young people who were less
likely to own or rent property were prevented from serving on a jury.
The Morris Committee thought that being a juror should be part of the
responsibilities of being a citizen. As a result, the qualifications for jury service
were widened in the Criminal Justice Act 1972 and based on the right to vote.
Present qualifications
The present qualifications are set out in the Juries Act 1974 (as amended) so that
to qualify for jury service a person must be:
• aged between 18 and 75 inclusive (age increased by the Criminal Justice and
Courts Act 2015);
• registered as a parliamentary or local government elector;
• ordinarily resident in the United Kingdom, the Channel Islands or the Isle of
Man for at least five years since their thirteenth birthday.
However, certain people are not permitted to sit on a jury even though they are
within these basic qualifications; these are people who are disqualified or
mentally disordered.
10.3.2 Disqualification
Disqualified permanently from jury service are those who at any time have been
sentenced to:
• imprisonment for life, detention for life or custody for life;
• detention during Her Majesty’s pleasure or during the pleasure of the
Secretary of State;
• imprisonment for public protection or detention for public protection;
• an extended sentence;
• a term of imprisonment of five years or more or a term of detention of five
years or more.
Those in the following categories are disqualified for 10 years:
• at any time in the last 10 years served a sentence of imprisonment;
• at any time in the last 10 years had a suspended sentence passed on them;
• at any time in the last 10 years had a community order or other community
sentence passed on them.
In addition anyone who is currently on bail in criminal proceedings is
disqualified from sitting as a juror.
If a disqualified person fails to disclose that fact and turns up for jury service,
they may be fined up to £5,000.
10.3.3 Mentally disordered persons

A mentally disordered person is defined in the Criminal Justice Act 2003 as:
1. A person who suffers or has suffered from mental illness, psychopathic
disorder, mental handicap or severe mental handicap and on account of that
condition either:
(a) is resident in a hospital or similar institution, or
(b) regularly attends for treatment by a medical practitioner.
2. A person for the time being under guardianship under section 7 of the
Mental Health Act 1983.
3. A person who, under Part 7 of that Act, has been determined by a judge to be
incapable of administering his property and affairs.
10.3.4 The right to be excused jury service

Prior to April 2004 people in certain essential occupations, such as doctors and
pharmacists, had a right to be excused jury service if they did not want to do it.
The Criminal Justice Act 2003 abolished this category. This means that doctors
and other medical staff are no longer able to refuse to do jury service, though
they can apply for a discretionary excusal.
Members of the forces

Full-time serving members of the forces will be excused from jury service if
their commanding officer certifies their absence from duty (because of jury
service) would be prejudicial to the efficiency of the service.
10.3.5 Discretionary excusals

Anyone who has problems which make it very difficult for them to do their jury
service may ask to be excused or for their period of service to be put back to a
later date. The court has a discretion to grant such an excusal but will only do so
if there is a sufficiently good reason. Such reasons include being too ill to attend
court or suffering from a disability that makes it impossible for the person to sit
as a juror, or being a mother with a small baby. Other reasons could include
business appointments that cannot be undertaken by anyone else, examinations
or holidays that have been booked.
In these situations the court is most likely to defer jury service to a more
convenient date, rather than excuse the person completely. This is stated in the
current guidance for summoning officers which is aimed at preventing the high
number of discretionary excusals shown in the statistics in the Activity on page
120. The guidance states that:
The normal expectation is that everyone summoned for jury service will serve at
the time for which they are summoned. It is recognised that there will be
occasions where it is not reasonable for a person summoned to serve at the time
for which they are summoned. In such circumstances the summoning officer
should use his/her discretion to defer the individual to a time more appropriate.
Only in extreme circumstances, should a person be excused from jury service.
If a person is not excused from jury service they must attend on the date set or
they may be fined up to £1,000 for non-attendance.
10.3.6 Lawyers and police officers

There used to be a category of people who were ineligible for jury service. This
included judges and others who had been involved in the administration of
justice within the previous 10 years. This category was abolished by the
Criminal Justice Act 2003. This means that judges, lawyers, police, etc are now
eligible to serve on juries. Many people feel that this could lead to bias or to a
legally well-qualified juror influencing the rest of the jury.
In R v Abdroikof, R v Green and R v Williamson (2007) the House of Lords
considered appeals where a police officer or prosecutor had been one of the jury
members.
They held that the fact that one of the members of jury was a police officer did
not of itself make a trial unfair. However, a majority of three of the five judges
held that in the situation where a police officer on the jury had worked in the
same station as a police officer giving evidence for the prosecution in the trial,
then there was the risk of bias. The test to be applied in such cases was:
whether the fair-minded and informed observer, having considered the facts,
would conclude that there was a real possibility that the tribunal was biased.
The House of Lords also quoted from the decision in R v Sussex Justices, ex
parte McCarthy (1924) where the judge stated that justice must not only be
done, but must be seen to be done.
The same three judges in a majority decision also held that the presence of a
juror who was a local Crown Prosecutor in the Crown Prosecutor Service meant
that justice was clearly not being seen to be done. Lord Bingham stated:
It is, in my opinion, clear that justice is not seen to be done if one discharging
the very important neutral role of juror is a full-time, salaried, long-serving
employee of the prosecutor.
In Hanif v United Kingdom (2012), the European Court of Human Rights ruled
that having a police officer on the jury was a breach of Article 6(1) of the
European Convention on Human Rights – the right to a fair trial. In this case, the
police officer juror had immediately alerted the court to the fact that he knew
one of the prosecution police witnesses. It was particularly important as the
evidence of this witness was crucial to the case against the defendant. However,
the trial judge had ruled that this did not matter.
The case continued with the police officer juror being the foreman of the jury
and the defendant was convicted. The Court of Appeal, somewhat surprisingly,
had upheld the conviction. This ruling of the Court of Appeal appears to be
contrary to the judgment of the House of Lords in Abdroikof as it would appear
that a fair-minded person would conclude there was a real possible risk of bias.
Judges on jury service

In June 2004 (just two months after the rules on jury service changed) a judge
from the Court of Appeal, Lord Justice Dyson, was summoned to attend as a
juror. This prompted the Lord Chief Justice, Lord Woolf, to issue observations
to judges who are called for jury service. These point out that
• a judge serves on a jury as part of his duty as a private citizen;
• excusal from jury service will only be granted in extreme circumstances;
• deferral of jury service to a later date should be sought where a judge has
judicial commitments which make it particularly inconvenient for him to do
jury service at the time he was called to do so;
• at court if a judge knows the presiding judge or other person in the case, he
should raise this with the jury bailiff or a member of the court staff if he
considers it could interfere with his responsibilities as a juror;
• it is a matter of discretion for an individual judge sitting as a juror as to
whether he discloses the fact of his judicial office to the other members of the
jury;
• judges must follow the directions given to the jury by the trial judge on the law
and should avoid the temptation to correct guidance which they believe to be
inaccurate as this is outside their role as a juror.
Activity
Discuss whether you think the following people should sit on a jury:
1. A woman who was fined for shoplifting a month ago.
2. A man who was fined and disqualified from driving for taking cars without
the consent of the owner.
3. A doctor who works in general practice.
4. A doctor who works in an accident and emergency unit of a busy city
hospital.
5. A circuit judge who frequently tries cases in the Crown Court.
The point about letting the court know when someone involved in the case is
personally known to the juror is also relevant to practising lawyers who are
called for jury service. It was noticeable that when a Queen’s Counsel was
summoned for jury service at the Central Criminal Court (the Old Bailey) in the
summer of 2004, he was prevented from sitting in each case that he was called
for, on the grounds that he knew one or more people involved in each trial.
10.3.7 Lack of capacity

A judge at the court may discharge a person from being a juror for lack of
capacity to cope with the trial. This could be because the person does not
understand English adequately or because of some disability which makes them
unsuitable as a juror. This includes anyone who is blind, and who would be
unable to see plans and photographs produced in evidence. Section 9B(2) of the
Juries Act 1974 (which was added into the Act by the Criminal Justice and
Public Order Act 1994, s 41) makes it clear that the mere fact of a disability does
not prevent someone from acting as a juror. The judge can only discharge the
juror if he is satisfied that the disability means that that juror is not capable of
acting effectively as a juror.
Deaf jurors
In June 1995 a deaf man was prevented from sitting on a jury at the Old Bailey
despite wishing to serve and bringing with him a sign language interpreter. The
judge pointed out that that would mean an extra person in the jury room and this
was not allowed by law. He also said that the way in which witnesses gave
evidence and the tone of their voice was important: ‘a deaf juror may not be able
to pick up these nuances and to properly judge their credibility’.
In November 1999 another deaf man challenged the ban on him sitting as a
juror. The judge in this case felt that there was no practical reason why he should
not sit, but the law only allowed the 12 jury members to be present in the jury
room. It did not allow a thirteenth person – a sign-language interpreter – to be
present. This made it impossible for the deaf man to be a juror.
10.4 Selecting a jury
At each Crown Court there is an official who is responsible for summonsing
enough jurors to try the cases that will be heard in each two-week period. This
official will arrange for names to be selected at random from the electoral
registers, for the area which the court covers. This is done through a computer
selection at a central office. It is necessary to summons more than 12 jurors as
most courts have more than one courtroom and it will not be known how many
of those summonsed are disqualified or may be excused. In fact, at the bigger
courts up to 150 summonses may be sent out each fortnight.
Test Yourself
1. In which criminal court is a jury used?
2. In which civil courts may a jury be used?
3. What age limits are there for jury service?
4. What two other basic qualifications are there for jury service?
5. Give two situations in which a person is disqualified from jury service.
6. What special rule is there about jury service for serving members of the
armed forces?
7. What is meant by a ‘discretionary excusal’ from jury service?
8. What is the name of the case in which the House of Lords considered the
effect of a police officer or prosecutor sitting as a jury member?
9. What test does the Supreme Court state should be used in cases where a
jury member was a police officer or prosecutor?
10. Why was it ruled that a deaf person could not sit on a jury?
Those summonsed must notify the court if there is any reason why they
should not or cannot attend. All others are expected to attend for two weeks’ jury
service, though, of course, if the case they are trying goes on for more than two
weeks they will have to stay until the trial is completed. Where it is known that a
trial may be exceptionally long, such as a complicated fraud trial, potential jurors
are asked if they will be able to serve for such a long period.
10.4.1 Vetting
Once the list of potential jurors is known, both the prosecution and the defence
have the right to see that list. In some cases it may be decided that this pool of
potential jurors should be ‘vetted’, i.e. checked for suitability. There are two
types of vetting:
• police checks, and
• wider background check.
Activity
Read the following extract from Diversity and Fairness in the Jury System
(2007) and answer the questions below.
The Criminal Justice Act 2003 removed ineligibility and the right of excusal
from jury service for a number of groups (those aged 65 to 69, MPs, clergy,
medical professionals and those in the administration of justice). But
summoned jurors may still be disqualified or excused from jury service (due to
age, residency, mental disability, criminal charges, language, medical or other
reasons).
• The study found that the most significant factors predicating whether a
summoned juror will serve or not are income and employment status, not
ethnicity. Summoned jurors in the lower income brackets and those who are
economically inactive are far less likely to serve than those in medium to
high income brackets and those who are employed.
• In 2005, of all those who replied to their summonses, 64 per cent of jurors
served, 9 per cent were disqualified or ineligible, 27 per cent were excused.
Of those excused, most were for medical reasons that prevented serving
(34%) or childcare (15%) and work reasons (12%). Fifteen per cent of all the
summonses in the survey were either returned as undeliverable or not
responded to, which occurred most often in areas of high residential mobility.
• The report established that most current thinking about who does and does
not do jury service is based on myth, not reality.
Myth: Ethnic minorities are under-represented among those doing jury service.
Reality: Analysis showed that, in almost all courts (81 of the 84 surveyed),
there was no significant difference between the proportion of black and ethnic
minority jurors serving and the black and ethnic minority population levels in
the local juror catchment area for each court.
Myth: Women and young people are under-represented among serving jurors,
and the self-employed are virtually exempt from jury service.
Reality: The study establishes that jury pools at individual courts closely
reflected the local population in terms of gender and age, and the self-employed
are represented among serving jurors in direct proportion to their representation
in the population.
Questions
1. What are the age limits for jury service?
2. What is the residency requirement to qualify for jury service?
3. What categories of people are disqualified from doing jury service?
4. What categories of people are less likely to serve on a jury?
5. What percentage failed to reply to their summons to do jury service?
6. For what types of reason were people excused from jury service?
7. What does the study show about the representative nature of juries?
Police checks
Routine police checks are made on prospective jurors to eliminate those
disqualified. In R v Crown Court at Sheffield, ex parte Brownlow (1980) the
defendant was a police officer and the defence sought permission to vet the jury
panel for convictions. The judge gave permission but the Court of Appeal, while
holding that they had no power to interfere, said that vetting was
‘unconstitutional’ and a ‘serious invasion of privacy’ and not sanctioned by the
Juries Act 1974.
However, in R v Mason (1980) where it was revealed that the Chief Constable
for Northamptonshire had been allowing widespread use of unauthorised vetting
of criminal records, the Court of Appeal approved of this type of vetting. Lawton
LJ pointed out that, since it is a criminal offence to serve on a jury while
disqualified, the police were only doing their normal duty of preventing crime by
checking for criminal records. Furthermore, the court said that, if in the course of
looking at criminal records convictions were revealed which did not disqualify,
there was no reason why these should not be passed on to prosecuting counsel,
so that this information could be used in deciding to stand by individual jurors
(see 10.4.3 for information on the right of stand by).
Juror’s background
A wider check is made on a juror’s background and political affiliations. This
practice was brought to light by the ‘ABC’ trial in 1978 where two journalists
and a soldier were charged with collecting secret information. It was discovered
that the jury had been vetted for their loyalty. The trial was stopped and a new
trial ordered before a fresh jury. Following this, the Attorney-General published
guidelines in 1980 on when political vetting of jurors should take place. These
guidelines state that:
(a) vetting should only be used in exceptional cases involving:
• national security where part of the evidence is likely to be given in camera
• terrorist cases
(b) vetting can only be carried out with the Attorney-General’s express
permission.
10.4.2 Selection at court

The jurors are usually divided into groups of 15 and allocated to a court. At the
start of a trial the court clerk will select 12 out of these 15 at random. If there are
not enough jurors to hear all the cases scheduled for that day at the court, there is
a special power to select anyone who is qualified to be a juror from people
passing by in the streets or from local offices or businesses. This is called
‘praying a talesman’. It is very unusual to use this power but it was used at
Middlesex Crown Court in January 1992 when about half the jury panel failed to
turn up after the New Year’s holiday and there were not sufficient jurors to try
the cases.
10.4.3 Challenging
Once the court clerk has selected the panel of 12 jurors, these jurors come into
the jury box to be sworn in as jurors. At this point, before the jury is sworn in,
both the prosecution and defence have certain rights to challenge one or more of
the jurors. These are:
• to the array;
• for cause;
• prosecution right to stand by (put to one side) jurors.
To the array
This right to challenge is given by s 5 of the Juries Act 1974 and it is a challenge
to the whole jury on the basis that it has been chosen in an unrepresentative or
biased way. This challenge was used successfully against the ‘Romford’ jury at
the Old Bailey in 1993 when, out of a panel of 12 jurors, nine came from
Romford, with two of them living within 20 doors of each other in the same
street. A challenge to the array was also used in R v Fraser (1987) where the
defendant was of an ethnic minority background but all the jurors were white.
The judge in that case agreed to empanel another jury. However, in R v Ford
(1989) it was held that if the jury was chosen in a random manner then it could
not be challenged simply because it was not multi-racial.
For cause
This involves challenging the right of an individual juror to sit on the jury. To be
successful the challenge must point out a valid reason why that juror should not
serve on the jury. An obvious reason is that the juror is disqualified, but a
challenge for cause can also be made if the juror knows or is related to a witness
or defendant. If such people are not removed from the jury there is a risk that
any subsequent conviction could be quashed. This occurred in R v Wilson and R
v Sprason (1995) where the wife of a prison officer was summonsed for jury
service. She had asked to be excused attendance on that ground, but this request
had not been granted. She served on the jury which convicted the two defendants
of robbery. Both defendants had been on remand at Exeter prison where her
husband worked. The Court of Appeal said that justice must not only be done, it
must be seen to be done and the presence of Mrs Roberts on the jury prevented
that, so that the convictions had to be quashed.
Prosecution right to stand by jurors

This is a right that only the prosecution can exercise. It allows the juror who has
been stood by to be put to the end of the list of potential jurors, so that they will
not be used on the jury unless there are not enough other jurors. The prosecution
does not have to give a reason for ‘standing by’, but the Attorney-General’s
guidelines make it clear that this power should be used sparingly.
10.5 The jury’s role in criminal cases
The jury is used only at the Crown Court for cases where the defendant pleads
not guilty. This means that a jury is used in about 30,000 cases each year.
10.5.1 Split function

The trial is presided over by a judge and the functions split between the judge
and jury. The judge decides points of law and the jury decides the facts. At the
end of the prosecution case, the judge has the power to direct the jury to acquit
the defendant if he decides that, in law, the prosecution’s evidence has not made
out a case against the defendant. This is called a directed acquittal and occurs in
about 10 per cent of cases.
Where the trial continues, the judge will sum up the case at the end, to the jury
and direct them on any law involved. The jury retire to a private room and make
the decision on the guilt or innocence of the accused in secret. Initially the jury
must try to come to a unanimous verdict, i.e. one on which they are all agreed.
The judge must accept the jury verdict, even if he or she does not agree with it.
This long established principle goes back to Bushell’s case (1670). The jury do
not give any reasons for their decision.
10.5.2 Majority verdicts
If, after at least two hours (longer where there are several defendants), the jury
have not reached a verdict, the judge can call them back into the courtroom and
direct them that he can now accept a majority verdict. Majority verdicts have
been allowed since 1967. Where there is a full jury of 12, the verdict can be 10:2
or 11:1 either for guilty or for not guilty. If the jury has fallen below 12 for any
reason (such as the death or illness of a juror during the trial) then only one can
disagree with the verdict. That is, if there are 11 jurors, the verdict can be 10:1;
if there are 10 jurors it can be 9:1. If there are only nine jurors the verdict must
be unanimous. A jury cannot go below nine.
Majority verdicts were introduced because of the fear of jury ‘nobbling’, that
is jurors being bribed or intimidated by associates of the defendant into voting
for a not guilty verdict. When a jury had to be unanimous, only one member
need be bribed to cause a ‘stalemate’ in which the jury were unable to reach a
decision. It was also thought that the acquittal rates in jury trials were too high
and majority decisions would result in more convictions.
Where the jury convict a defendant on a majority verdict, the foreman of the
jury must announce the numbers both agreeing and disagreeing with the verdict
in open court. This provision is contained in s 17(3) of the Juries Act 1974 and is
aimed at making sure the jury have come to a legal majority, and not one, for
example of eight to four, which is not allowed. About 20 per cent of convictions
by juries each year are by majority verdict.
10.5.3 Secrecy
The jury discussion takes place in secret and there can be no inquiry into how
the jury reached its verdict. This used to be because disclosure of anything that
happened in the jury room was a contempt of court. Now the Criminal Justice
and Courts Act 2015 makes it a criminal offence to intentionally obtain, disclose
or solicit any particulars of statements made, opinions expressed, arguments
advanced or votes cast by members of a jury in the course of their deliberations
in any legal proceedings. Disclosure is allowed in situations where it is in the
interests of justice, such as reporting juror misconduct.
10.6 Advantages of jury trial
10.6.1 Public confidence
On the face of it, asking 12 strangers who have no legal knowledge and without
any training to decide what may be complex and technical points is an absurd
one. Yet the jury is considered one of the fundamentals of a democratic society.
The right to be tried by one’s peers is a bastion of liberty against the state and
has been supported by eminent judges. For example, Lord Devlin said juries are
‘the lamp that shows that freedom lives’. The tradition of trial by jury is very old
and people seem to have confidence in the impartiality and fairness of a jury
trial. This can be seen in the objection to withdrawing the right to jury trial from
cases of ‘minor’ theft.
10.6.2 Jury equity

Since juries are not legal experts, they are not bound to follow the precedent of
past cases or even Acts of Parliament, and do not have to give reasons for their
verdict, it is possible for them to decide cases on their idea of ‘fairness’. This is
sometimes referred to as jury equity. Several cases have shown the importance
of this, in particular Ponting’s case (1984) in which a civil servant was charged
under the old wide-ranging s 2 of the Official Secrets Act 1911. He had leaked
information on the sinking of the ship, The General Belgrano, in the Falklands
war to an MP. At his trial he pleaded not guilty, claiming that his actions had
been in the public interest. The jury refused to convict him even though the
judge ruled there was no defence. The case also prompted the government to
reconsider the law and to amend s 2.
More recently, a jury acquitted a mother of attempting to murder her daughter
who had committed suicide. Her daughter was aged 31 and had been ill for 17
years. She had injected herself with an overdose of morphine. The mother had
given her daughter some medication to ease her suffering in her final hours. She
had pleaded guilty to assisting the daughter’s suicide, but the prosecution had
insisted on continuing to prosecute her for attempted murder. The jury found her
not guilty.
10.6.3 Open system of justice

The use of a jury is viewed as making the legal system more open. Justice is
seen to be done as members of the public are involved in a key role and the
whole process is public. It also helps to keep the law clearer as points have to be
explained to the jury, enabling the defendant to understand the case more easily.
Against this is the fact that the jury deliberate in private and that no one can
inquire into what happened in the jury room. In addition, the jury do not have to
give any reason for their verdict. When a judge gives a judgment he explains his
reasoning and, if he has made an error, it is known and can be appealed against.
10.6.4 Secrecy of the jury room

This can be seen as an advantage, since the jury are free from pressure in their
discussion. Jurors are protected from outside influences when deciding on the
verdict. This allows juries to bring in verdicts that may be unpopular with the
public as well as allowing jurors the freedom to ignore the strict letter of the law.
It has been suggested that people would be less willing to serve on a jury if they
knew that their discussions could be made public.
10.6.5 Impartiality
A jury should be impartial as they are not connected to anyone in the case. The
process of random selection should result in a cross-section of society and this
should also lead to an impartial jury, as they will have different prejudices and
so should cancel out each others’ biases. No one individual person is responsible
for the decision. A jury is also not case-hardened since they sit for only two
weeks and are unlikely to try more than three or four cases in that time. After the
end of the case the jury dissolves and, as Sir Sebag Shaw said, it is ‘anonymous
and amorphous’.
10.7 Disadvantages of jury trial
10.7.1 Perverse decisions
In section 10.6.2 we looked at the idea of jury equity. That is the fact that the
jury can ignore an unjust law. However, in some circumstances this type of
decision can be seen as a perverse decision and one which was not justified.
Juries have refused to convict in other clear-cut cases such as R v Randle and
Pottle (1991) where the defendants were charged with helping the spy George
Blake to escape from prison. Their prosecution did not occur until 25 years after
the escape, when they wrote about what they had done and the jury acquitted
them, possibly as a protest over the time lapse between the offence and the
prosecution.
Another case where the evidence was clear, yet the jury acquitted the
defendants was R v Kronlid and others (1996). In this case, the defendants
admitted they had caused £1.5 million damage to a plane. They pleaded not
guilty on the basis that they were preventing the plane from being sent to
Indonesia where it would have been used in attacks against the people of East
Timor. The jury acquitted them.
10.7.2 Secrecy
Earlier we considered how the secrecy of the jury protects jurors from pressure.
However, the secrecy of the jury room is also a disadvantage because as no
reasons have to be given for the verdict, there is no way of knowing if the jury
understood the case and came to the decision for the right reasons.
In R v Mirza (2004) the House of Lords ruled that it could not inquire into
discussions in a jury room. Two separate cases were considered in the appeal.
These were R v Mirza and R v Connor and Rollock.
In Mirza the defendant was a Pakistani who settled in the UK in 1988. He had
an interpreter to help him in the trial and during the trial the jury sent notes
asking why he needed an interpreter. He was convicted on a 10:2 majority. Six
days after the jury verdict, one juror wrote to the defendant’s counsel alleging
that from the start of the trial there had been a ‘theory’ that the use of an
interpreter was a ‘ploy’. The juror also said that she had been shouted down
when she objected and reminded her fellow jurors of the judge’s directions.
In Connor and Rollock a juror wrote to the Crown Court stating that while
many jurors thought it was one or other of the defendants who had committed
the stabbing, they should convict both to ‘teach them a lesson’. This was five
days after the verdict but before sentence was passed. As in Mirza there was a
majority verdict of 10:2. The complaining juror said that, when she argued that
the jury should consider which defendant was responsible, her co-jurors had
refused to listen and remarked that if they did that they could be a week
considering verdicts in the case.
The House of Lords held that s 8 of the Contempt of Court Act 1981 made it a
contempt to disclose or obtain or solicit information about what had occurred in
the jury room even for the purposes of an appeal. They also ruled that s 8 was
compatible with Article 6 of the European Convention on Human Rights (the
right to a fair trial). They pointed out that:
• confidentiality was essential to the proper functioning of the jury process;
• there was merit in finality;
• jurors had to be protected from harassment.
Exceptions
There are two exceptions where the courts will inquire into the conduct of the
jury in coming to their verdict. The first is where there has been a complete
repudiation of the oath taken by the jurors to try the case according to the
evidence. In other words, they have used another method to make their decision.
The best known example of this is the case of R v Young (Stephen) (1995)
where the defendant was charged with the murder of two people. The jury had to
stay in a hotel overnight as they had not reached a verdict by the end of the first
day of deliberations. At the hotel, four of the jurors held a séance using a ouija
board to try to contact the dead victims and ask them who had killed them. The
next day, the jury returned a guilty verdict.
When the use of the ouija board became known, the Court of Appeal quashed
the conviction and ordered a retrial. The Court also felt able to inquire into what
had happened as it had occurred in a hotel and was not part of the jury room
deliberations.
The second exception is where extraneous material has been introduced into
the jury room. Examples have included telephone calls in and out of the jury
room, papers mistakenly included in the set of papers given by the court to the
jury and information from the internet. This last happened in R v Karakaya
(2005) where the defendant was accused of rape. A juror did an internet search
at home and brought into the jury room the printed-out results of the search. The
jury convicted Karakaya, but this conviction was quashed because of the outside
information that the jury had access to during their deliberations. A retrial was
ordered and Karakaya was acquitted by the jury in the second trial.
Jurors and the internet

Judges direct jurors not to look at the internet for information, but internet
research by jurors has become more common. In Cheryl Thomas’ research, Are
Juries Fair? (2010), she found that 12 per cent of jurors admittted they had
looked on the internet for information about cases they were trying. Such
information may be prejudicial to the defendant. For example, doing a search on
a defendant’s name may find newspaper reports of previous convictions, which
the jury should not know about. The Criminal Justice and Courts Act 2015
makes it a criminal offence to intentionally search the internet for information
relevant to the case. The Act also makes it a criminal offence to disclose such
information to another member of the jury.
10.7.3 Racial bias

Although jurors have no direct interest in a case, and despite the fact that there
are 12 of them, they may still have prejudices which can affect the verdict. Some
jurors may be biased against the police – this is one of the reasons that those
with certain criminal convictions are disqualified from sitting on a jury. In
particular there is the worry that some jurors are racially prejudiced.
In Sander v United Kingdom (2000) the European Court of Human Rights
ruled that there had been a breach of the right to a fair trial under Article 6 of the
European Convention on Human Rights. In the case one juror had written a note
to the judge raising concern over the fact that other jurors had been making
openly racist remarks and jokes. The judge asked the jury to ‘search their
consciences’. The next day the judge received two letters, one signed by all the
jurors in which they denied any racist attitudes and a second from one juror who
admitted that he may have been the one making the jokes. Despite the
discrepancies between these two letters the judge allowed the case to continue
with the same jury. The European Court of Human Rights held that in these
circumstances the judge should have discharged the jury as there was an obvious
risk of racial bias.
10.7.4 Media influence

Media coverage may influence jurors. This is especially true in high-profile
cases, where there has been a lot of publicity about police investigations into a
case. This occurred in the case R v West (1996) in which Rosemary West was
convicted for the murders of ten young girls and women, including her own
daughter. From the time the bodies were first discovered, the media coverage
was intense. In addition, some newspapers had paid large sums of money to
some of the witnesses in order to secure their story after the trial was completed.
One of the grounds on which Rosemary West appealed against her conviction
was that the media coverage had made it impossible for her to receive a fair trial.
The Court of Appeal rejected the appeal, pointing out that otherwise it would
mean that if ‘allegations of murder were sufficiently horrendous so as to
inevitably shock the nation, the accused could not be tried’. They also said that
the trial judge had given adequate warning to the jury to consider only the
evidence they heard in court.
Another case which highlighted media influence on the jury’s decision was R
v Taylor and Taylor (1993) in which two sisters were charged with murder.
Some newspapers published a still from a video sequence which gave a false
impression of what was happening. After the jury convicted the two defendants,
the trial judge gave leave to appeal because of the possible influence this picture
could have had on the jury’s verdict and the Court of Appeal quashed the
convictions.
10.7.5 Lack of understanding

There are worries that jurors may not understand the case which they are trying.
This fear was only partly borne out by a survey carried out in 1992 for the
Runciman Commission, in which jurors were asked whether they thought they
had been able to understand the evidence. Over half (56%) of the jurors
questioned thought that the jury as a whole had understood the evidence with
another two-fifths (41%) believing that most of the jury had understood the case.
However just under 10 per cent of jurors admitted that they had had difficulty.
When the foremen of juries were questioned on the same point, they thought that
a small number of jurors (0.2%) could not understand English sufficiently well
to follow a case. The foremen also thought that about 1 per cent of jurors could
not understand the details of a case, while another 1 per cent could not
understand any case.
These may be small numbers, but it is still worrying that in some cases a
defendant’s future is being decided by some members of the public who do not
understand the case. For example, in one case at Snaresbrook Crown Court, the
jury after they had retired to consider their verdict sent a note to the judge asking
what they had to do! The judge discharged that jury from the case.
Recent research
In 2010, a report, Are Juries Fair?, by Cheryl Thomas was published. This
looked at various aspects of the use of juries. One area was jurors’ understanding
of cases. In order to test understanding, a series of simulated trials was used. A
total of 797 jurors in three different areas all saw the same simulated trial and
heard exactly the same judicial directions on the law.
The jurors were first asked whether they thought they had understood the
directions. In two of the areas, Blackfriars, London and Winchester, over two-
thirds of the jurors felt they were able to understand the directions. In
Nottingham, only just under half of the jurors felt they understood the directions.
The jurors’ understanding of the directions was then tested. This discovered
that only 31 per cent of the jurors had actually understood the directions fully in
the legal terms used by the judge. When the jurors were given a written
summary of the instructions, the number who fully understood increased to 48
per cent.
This study shows that, even with a written summary, less than half of jurors
fully understood the judge’s directions.
10.7.6 Fraud trials

Fraud trials with complex accounts being given in evidence can create special
problems for jurors. Even jurors who can easily cope with other evidence may
have difficulty understanding a fraud case. These cases are also often very long,
so that the jurors have to be able to be away from their own work for months. A
long fraud trial can place a great strain on jurors. Such cases also become very
expensive, both for the prosecution and for the defendants.
The Roskill Committee in 1986 suggested that juries should not be used for
complex fraud cases. However, this reform has not been implemented.
The Criminal Justice Act 2003 had provision for the prosecution to apply for
trial by a judge alone in complex fraud cases. However, this was never brought
into force and in 2012 the Legal Aid, Sentencing and Punishment of Offenders
Act repealed the provision.
In the Domestic Violence, Crime and Victims Act 2004, there is a special
provision for cases where there is a large number of counts on the indictment.
This allows a trial of sample counts with a jury and then, if the defendant is
convicted on those, the remainder can be tried by a judge alone. This does help
prevent long jury trials in very complex fraud cases.
10.7.7 Jury tampering

In a few cases, friends of the defendant may try to interfere with the jury. This
may be by bribing jury members to bring in a not guilty verdict or by making
threats against jury members so that they are too afraid to find the defendant
guilty. In such cases, police may be used to try to protect the jurors, but this may
not be effective and is also expensive and removes the police from their other
work.
To combat this, s 44 of the Criminal Justice Act 2003 provides that where
there has already been an effort to tamper with a jury in the case, the prosecution
can apply for the trial to be heard by judge alone. The first trial without a jury
was approved in R v Twomey and others (2009).
In this case, the defendants were charged with various offences connected to a
large robbery from a warehouse at Heathrow. Three previous trials had collapsed
and there had been a ‘serious attempt at jury tampering’ in the last of these. The
prosecution applied to a single judge for the trial to take place without a jury.
The judge refused, but the Court of Appeal overturned this decision, ordering
that the trial should take place without a jury.
The Criminal Procedure and Investigations Act 1996 allows for a retrial to be
ordered if someone is subsequently proved to have interfered with the jury.
However, in other cases the Court of Appeal has not granted trial by judge
alone. In KS v R (2010), there had been several trials on various allegations of
fraud committed by the defendant. It was not until the tenth trial that jury
tampering occurred. It occurred because jurors and members of the public who
wished to smoke during breaks were directed to the same area. During one of
these breaks, a friend of the defendant approached a juror. The Court of Appeal
refused an application for trial by judge alone. They pointed out that the casual
arrangements at the Crown Court which had allowed the contact would not be
repeated. Also the approach had been opportunistic rather than a deliberate
targeting of jurors. For these reasons, there was no need to order trial by judge
alone.
10.7.8 High acquittal rates

Juries are often criticised on the grounds that they acquit too many defendants.
The figures usually quoted in support of this are that about 60 per cent of those
who plead not guilty at the Crown Court are acquitted. However, this figure does
not give a true picture of the workings of juries as it includes cases discharged
by the judge and those in which the judge directed an acquittal.
The judicial statistics show that in most years more than half of acquittals are
ordered by the judge without a jury even being sworn in to try the case. This
happens where the prosecution drop the case at the last minute and offer no
evidence against the defendant. Usually about 10–15 per cent of acquittals are by
a jury but on the direction of a judge. This occurs where the judge rules that
there is no case against the defendant; it might be because of a legal point or
because the prosecution evidence is not sufficient in law to prove the case. When
these decisions are excluded from the statistics it is found that juries actually
acquit in less than 40 per cent of cases.
10.7.9 Other disadvantages

The compulsory nature of jury service is unpopular, so that some jurors may be
against the whole system, while others may rush their verdict in order to leave as
quickly as possible. Jury service can be a strain, especially where jurors have to
listen to horrific evidence. Jurors in the Rosemary West case, where several
young women and girls had been murdered by West and her husband, were
offered counselling after the trial to help them cope with the evidence they had
seen and heard.
Jury ‘nobbling’ does occur and in some cases jurors have had to be provided
with police protection. In order to try to combat this, the Criminal Procedure and
Investigations Act 1996 allows for a retrial to be ordered if someone is
subsequently proved to have interfered with the jury.
The use of juries makes trials slow and expensive. This is because each point
has to be explained carefully to the jury and the whole procedure of the case
takes longer.
10.8 Special problems of using juries in civil cases
10.8.1 Amount of damages
Juries in civil cases decide both the liability of the parties in the case and also the
amount of damages that will be awarded. The awards vary greatly as each jury
has its own ideas and does not follow past cases. The amount is, therefore,
totally unpredictable which makes it difficult for lawyers to advise on
settlements. Judges look back to past awards when deciding awards of damages
in personal injury cases, and then apply an inflation factor so that there is
consistency between similar cases. Juries in defamation cases cause particular
problems with very large awards; one judge called it Mickey Mouse money.
Until 1990 the Court of Appeal had no power to correct awards which were
thought to be far too high. But under s 8 of the Courts and Legal Services Act
1990 the Court of Appeal has special powers in such cases. The Court of Appeal
can order a new trial or substitute such sum as appears proper to the court, if
they feel the damages were excessive or inadequate. This power was first used in
a case brought by the MP Teresa Gorman where the Court of Appeal reduced the
damages awarded to her by the jury from £150,000 to £50,000. It was also used
in Rantzen v Mirror Group Newspapers (1993) when the award to Esther
Rantzen, the founder of ‘Childline’ (a charity set up to help abused children)
over allegations that she had deliberately kept quiet about the activities of a
suspected child abuser, was reduced from £250,000 to £110,000.
10.8.2 Unreasoned decision

The jury does not have to give a reason either for its decision or for the amount it
awards. A judge always gives a judgment, which makes it easier to see if there
are good grounds for an appeal.
10.8.3 Bias
The problems of bias in civil cases is different to that encountered in criminal
cases. In some defamation cases the claimants and/or the defendants may be
public figures so that jurors will know and possibly hold views about them.
Alternatively there is the fact that the defendant in a defamation case is often a
newspaper and jurors may be biased against the press or may feel that ‘they can
afford to pay’.
10.8.4 Cost
Civil cases are expensive and the use of a jury adds to this as the case is likely to
last longer. At the end of the case the losing party will have to pay all the costs
of the case which may amount to hundreds of thousands of pounds. As a result
of this, the Lord Chancellor has introduced some reforms so that defamation
actions will be less costly. First, with the increase in County Court jurisdiction,
parties can now agree that their case should be transferred to the County Court.
Here a jury of eight may be used and the trial is likely to be less expensive than
one in the High Court. Second, the parties may also agree to the case being tried
by a judge alone without a jury. The Defamation Act 1996 allows the claimant to
seek a limited sum (up to £10,000) in a quick procedure dealt with by a judge.
This allows those who want to clear their name and get immediate compensation
at a lower cost to do so.
10.9 Alternatives to jury trial
Despite all the problems of using juries in criminal cases, there is still a strong
feeling that they are the best method available. However, if juries are not thought
suitable to try serious criminal cases, what alternative form of trial could be
used?
10.9.1 Trial by a single judge

This is the method of trial in the majority of civil cases which is generally
regarded as producing a fairer and more predictable result. Trial by a single
judge was used for some criminal trials in Northern Ireland until 2007. These
were called the Diplock courts and were brought in on the recommendation of
Lord Diplock to replace jury trial because of the special problems of threats and
jury nobbling that existed between the different sectarian parties.
However, there appears to be less public confidence in the use of judges to
decide all serious criminal cases. The arguments against this form of trial are that
judges become case-hardened and prosecution-minded. They are also from a
very elite group and would have little understanding of the background and
problems of defendants. Individual prejudices are more likely than in a jury
where the different personalities should go some way to eliminating bias. But, on
the other hand, judges are trained to evaluate cases and they are now being given
training in racial awareness. This may make them better arbiters of fact than an
untrained jury.
10.9.2 A panel of judges

In some continental countries cases are heard by a panel of three or five judges
sitting together. This allows for a balance of views, instead of the verdict of a
single person. However, it still leaves the problems of judges becoming case-
hardened, prosecution-minded and coming from an elite background. The other
difficulty is that there are not sufficient judges and our system of legal training
and appointment would need a radical overhaul to implement this proposal. It
would also be expensive.
10.9.3 A judge plus lay assessors

Under this system the judge and two lay people would make the decision
together. This method is used in the Scandinavian countries. It provides the legal
expertise of the judge, together with lay participation in the legal system by
ordinary members of the public. The lay people could either be drawn from the
general public, using the same method as is used for selecting juries at present or
a special panel of assessors could be drawn up as in tribunal cases. This latter
suggestion would be particularly suitable for fraud cases.
10.9.4 A mini-jury
Finally, if the jury is to remain, then it might be possible to have a smaller
number of jurors. In many continental countries when a jury is used there are
nine members. For example, in Spain, which reintroduced the use of juries in
certain criminal cases in 1996, there is a jury of nine. Alternatively a jury of six
could be used for less serious criminal cases that at the moment have a full jury
trial, as occurs in some American states.
Test Yourself
1. How are the names of potential jurors chosen?
2. What two types of vetting may take place?
3. When can a challenge be made to an individual juror?
4. What is the role of the jury in a criminal case?
5. What is meant by a majority verdict?
6. Which Act of Parliament makes it an offence for a juror to disclose what
happened in the jury room?
7. Explain three advantages of using juries.
8. Explain three disadvantages of using juries.
9. Explain two problems of using a jury in a civil case.
10. State two alternative methods of trial other than trial by jury.
(a) Explain the role of jurors in a Crown Court trial.
(10 marks)
(b) Discuss disadvantages of using either
• jurors or
• lay magistrates
in the criminal justice process.
AQA Law Unit 1 June 2014 part question
Examiner’s tip
Read the question carefully. Look at part (b). First, note that it asks only for
disadvantages. So: only write about disadvantages. Also note that it requires
you to discuss the use of either jurors or lay magistrates. So you must choose
one and only write about that one.
Chapter 11
The Legal Profession
I n England and Wales there are two types of lawyers (barristers and solicitors)
jointly referred to as the legal profession. Most countries do not have this
clear-cut division among lawyers: a person will qualify simply as a lawyer,
although, after qualifying, it will be possible for them to specialise as an
advocate, or in a particular area of law. This type of system is also seen in this
country in the medical profession, where all those wishing to become doctors
take the same general qualifications. After they have qualified, some doctors
will go on to specialise in different fields, perhaps as surgeons, and will take
further qualifications in their chosen field.
In England and Wales, not only are the professions separate, but there is no
common training for lawyers, although there have been increasing calls for this.
As far back as 1971 the Ormrod Committee was in favour of a common
education for all prospective lawyers. In 1994 the Lord Chancellor’s advisory
committee on legal education, under Lord Steyn, recommended that, instead of
having separate training for barristers and solicitors, ‘the two branches of the
profession should have joint training. All those qualifying would then work for
six months or a year at a solicitors’, with those who wished to become
barristers going on to do extra training at the Bar. Yet despite these
recommendations, the training of the two professions remains separate.
11.1 Solicitors
There are over 130,000 solicitors practising in England and Wales and they are
controlled by their own professional body, the Law Society. Of these, 90,000 are
in private practice and the remainder are in employed work such as for local
government or the Crown Prosecution Service.
To become a solicitor it is usual to have a law degree, although those with a
degree in a subject other than law can do an extra year’s training in core legal
subjects, and take the Graduate Diploma in Law (GDL). The next stage is the
one-year Legal Practice Course (LPC). This is much more practically based than
the previous Law Society Finals course and includes training in skills such as
client-interviewing, negotiation, advocacy, drafting documents and legal
research. There is also an emphasis on business management, for example,
keeping accounts.
11.1.2 Training
Even when this course has been passed, the student is still not a qualified
solicitor. He or she must next obtain a training contract under which they work
in a solicitors’ firm for two years, getting practical experience. This training
period can also be undertaken in certain other legal organisations such as the
Crown Prosecution Service, or the legal department of a local authority. During
this two-year training contract the trainee will be paid, though not at the same
rate as a fully qualified solicitor, and will do his own work, supervised by a
solicitor. He will also have to complete a 20-day Professional Skills Course
which builds on the skills learnt on the LPC. At the end of the time, the trainee
will be admitted as a solicitor by the Law Society and his name will be added to
the roll (or list) of solicitors. Even after qualifying, solicitors have to attend
continuing education courses to keep their knowledge up to date.
Non-graduate route
There is also a route under which non-graduates can qualify as solicitors by first
becoming legal executives. This route is only open to mature candidates and
takes longer than the graduate route. The three routes to becoming a solicitor are
shown in Figure 11.1.
11.1.3 Criticisms of training

There are several criticisms of the training process.
The first of these is a financial problem, in that students will usually have to
pay the fees of the Legal Practice Course (up to £12,000) and support themselves
during this year. If they have a degree in a subject other than law and have to do
the GDL, they will also have had to pay for that course. This need to pay full
fees is because the GDL and the LPC are post-graduate courses, so students must
pay all the cost. The result of this policy is that students from poor families may
not be able to afford to take the courses and may therefore be prevented from
becoming solicitors, even though they have obtained a good degree. Other
students may take out bank loans, so that although they qualify, they start the
training period with a large debt. The problem has increased since universities
started charging fees for the ordinary degree course. These fees can be up to
£9,000. Would-be solicitors are likely to have debts of £30,000 or more by the
time they start their training contract. This financial problem is also one faced by
prospective barristers.
In order to try to help would-be solicitors, the GDL can be taken as a part-time
course over two years, instead of the one-year full-time course. Doing the course
part time allows students to work as well, easing their financial problems. Often
this work will be as a para-legal in a law firm, so that the student is also getting
practical experience at the same time.
A point common to barristers is that non-law graduates do only one year of
formal law for the Graduate Diploma in Law. The Ormrod Committee which
reported on legal education in 1971 thought that the main entry route should be
via a law degree, but in practice 25 per cent of solicitors will not have taken a
law degree. One critic posed the question of whether the public would be
satisfied with doctors who have only studied medicine for one year,
concentrating on only six subjects. Yet this is precisely what is occurring in the
legal profession.
A third problem is one of over-supply, so that students who have passed the
LPC may be unable to obtain a training contract. This was a real problem during
the 1990s, but the number of places has increased. Even so, there will be some
students who pass all their examinations but are unable to become solicitors
because they cannot get a training contract.
11.1.4 Solicitors’ work

The majority of those who succeed in qualifying as a solicitor will then work in
private practice in a solicitors’ firm. However, there are other careers available,
and some newly-qualified solicitors may go on to work in the Crown
Prosecution Service or for a local authority or government department. Others
will become legal advisers in commercial or industrial businesses. In fact, there
are about 30,000 employed solicitors.
A solicitor in private practice may work as a sole practitioner or in a
partnership. There are some 10,000 firms of solicitors, ranging from the small
‘high street’ practice to the big city firms. The number of partners is not limited,
and some of the biggest firms will have over 100 partners as well as employing
assistant solicitors.
The type of work done by a solicitor will largely depend on the type of firm he
or she is working in. A small high street firm will probably be a general practice
advising clients on a whole range of topics such as consumer problems, housing
and business matters and family problems. A solicitor working in such a practice
is likely to spend some of his time interviewing clients in his office and
negotiating on their behalf, and a large amount of time dealing with paperwork.
This will include:
• writing letters on behalf of clients;
• drafting contracts, leases or other legal documents;
• drawing up wills;
• dealing with conveyancing (the legal side of buying and selling flats, houses,
office buildings and land).
The solicitor may also, if he wishes, act for some of his clients in court. Standing
up in court and putting the client’s case, and questioning witnesses is known as
advocacy. Some solicitors will specialise in this and spend much of their time in
court.
Specialising
Although some solicitors may be general practitioners handling a variety of
work it is not unusual, even in small firms, for a solicitor to specialise in one
particular field. The firm itself may only handle certain types of cases (perhaps
only civil actions) and not do any criminal cases, or a firm may specialise in
matrimonial cases. Even within the firm the solicitors are likely to have their
own field of expertise. In large firms there will be an even greater degree of
specialisation with departments dealing with one aspect of the law. The large
city firms usually concentrate on business and commercial law. Amounts earned
by solicitors are as varied as the types of firm, with the top earners in big firms
on £500,000 or more, while at the bottom end of the scale some sole
practitioners will earn less than £40,000.
Conveyancing
Prior to 1985 solicitors had a monopoly on conveyancing: this meant that only
solicitors could deal with the legal side of transferring houses and other
buildings and land. This was changed by the Administration of Justice Act 1985
which allowed people other than solicitors to become licensed conveyancers. As
a result of the increased competition in this area, solicitors had to reduce their
fees, but even so they lost a large proportion of the work. This led to a demand
for wider rights of advocacy.
Rights of advocacy
All solicitors have always been able to act as advocates in the Magistrates’
Courts and the County Courts, but their rights of audience in the higher courts
used to be very limited. Normally a solicitor could only act as advocate in the
Crown Court on a committal for sentence, or on an appeal from the Magistrates’
Court, and then only if he or another solicitor in the firm had been the advocate
in the original case in the Magistrates’ Court.
Until 1986 solicitors had no rights of audience in open court in the High
Court, though they could deal with preliminary matters in preparation for a case.
This lack of rights of audience was emphasised in Abse v Smith (1986) in which
two Members of Parliament were contesting a libel action. They came to an
agreed settlement, but the solicitor for one of them was refused permission by
the judge to read out the terms of that settlement in open court. Following this
decision the Lord Chancellor and the senior judges in each division of the High
Court issued a Practice Direction, allowing solicitors to appear in the High Court
to make a statement in a case that has been settled.
Certificate of advocacy
The first major alteration to solicitors’ rights of audience came in the Courts and
Legal Services Act 1990. Under this Act, a solicitor in private practice had the
right to apply for a certificate of advocacy which enabled him to appear in the
higher courts. Such a certificate was granted if the solicitor already had
experience of advocacy in the Magistrates’ Court and the County Court, took a
short training course and passed examinations on the rules of evidence. The first
certificates were granted in 1994 and by 2014 over 6,500 solicitors had qualified
to be an advocate in the higher courts. Figure 11.2 sets out the changes to the
rights of audience of solicitors.
Solicitors with an advocacy qualification are also eligible to be appointed as
Queen’s Counsel (see section 11.2.4) and also to be appointed to higher judicial
posts.
The Access to Justice Act did have a provision that all solicitors could
eventually be given full rights of audience. However, this provision has not yet
been brought into effect.
Legal Disciplinary Practices

Section 66 of the Courts and Legal Services Act 1990 allows solicitors to form
partnerships with other professions, for example, accountants. This would give
clients a wider range of expertise and advice in a ‘one-stop shop’. However,
these provisions have not been brought into being.
Instead, the Legal Services Act 2007 allows Legal Disciplinary Practices
(LDP) where up to 25 per cent of partners in a firm can be non-lawyers. The Act
also allows Alternative Business Structures. So, instead of having to be a
partnership, solicitors can form companies. Such companies do not have to be
owned by solicitors.
11.1.5 The Law Society

The Law Society is the governing body of solicitors. It has a council elected by
solicitors themselves. The head of the council is the President who is elected
(and therefore changes) each year.
The Law Society’s powers come from the Solicitors Act 1974. It sets down
rules about qualifications and training. It is also responsible for disciplining
solicitors.
11.1.6 Complaints against solicitors

A solicitor deals directly with clients and enters into a contract with them. This
means that if the client does not pay, the solicitor has the right to sue for his fees.
It also means that the client can sue his solicitor for breach of contract if the
solicitor fails to do the work.
A client can also sue the solicitor for negligence in and out of court work. This
happened in Griffiths v Dawson (1993) where solicitors for the claimant had
failed to make the correct application in divorce proceedings against her
husband. As a result the claimant lost financially and the solicitors were ordered
to pay her £21,000 in compensation.
Other people affected by the solicitor’s negligence may also have the right to
sue in certain circumstances. An example of this was the case of White v Jones
(1995) where a father wanted to make a will leaving each of his daughters
£9,000. He wrote to his solicitors instructing them to draw up a will to include
this. The solicitors received this letter on 17 July 1986 but had done nothing
about it by the time the father died on 14 September 1986. As a result the
daughters did not inherit any money and they successfully sued the solicitor for
the £9,000 they had each lost.
Negligent advocacy
It used to be held that a solicitor presenting a case in court could not be sued for
negligence. However, in Hall v Simons (2000), the House of Lords decided that
advocates can be liable for negligence. This case is discussed more fully in
section 11.2.6.
History of complaints procedure

The Law Society used to have its own complaints body to deal with disputes
between solicitors and their clients. There were problems with this, as noted
above. One of the main concerns was that one of the Law Society’s main roles
was to represent solicitors. By operating its own complaints procedure, there was
a conflict between the interest of the solicitor and the interest of the client who
was complaining.
The other difficulty for those complaining about poor service by a solicitor
was that the complaints bodies run by the Law Society have been frequently
criticised for delays and inefficiency. Because of these criticisms, the Law
Society changed its complaints procedure several times. The last body was the
Consumer Complaints Service. However, this body was not as efficient as it
should have been. In most years, only two out of every three complaints were
handled satisfactorily. These problems were one of the factors which led to the
Government reforming the complaints procedure and making it independent of
the legal profession.
Office for Legal Complaints

The Legal Services Act 2007 created the Office for Legal Complaints. This is
completely independent of the Law Society and any other sector of the legal
profession. The office has a non-lawyer as chairman and the majority of
members must also be non-lawyers. This office has set up the Legal
Ombudsman to deal with complaints about poor service by solicitors and other
legal professionals.
The Legal Ombudsman

The office started work in October 2010. It is independent and impartial. When a
complaint is received, the office will look at the facts in each case and weigh up
both sides of the story. If the Legal Ombudsman agrees that a lawyer’s service
has been unsatisfactory, it can ask the lawyer and the law firm to:
• apologise to the client
• give back any documents that the client might need
• put things right if more work can correct what went wrong
• refund or reduce the legal fees, or
• pay compensation of up to £30,000.
In 2013–14, the Legal Ombudsman received 7,516 complaints against solicitors.
About 20 to 25 per cent of complaints are about costs. Others are about delay,
poor advice or poor practice. No statistics are available on the number of
complaints which were upheld. There are, however, case studies on the Legal
Ombudsman’s website showing the type of complaint and stating whether it was
upheld.
Activity
Look at the Legal Ombudsman’s website (www.legalombudsman.org.uk) and
find a case study of a complaint. You could use this as the basis of a
presentation to your class.
Solicitors’ Regulation Authority
This Authority investigates complaints about the professional misconduct of
solicitors. If there is evidence of serious professional misconduct, they can put
the case before the Solicitor’s Disciplinary Tribunal. If the tribunal upholds the
complaint, it can fine or reprimand the solicitor or, in more serious cases, it can
suspend a solicitor from the roll, so that he or she cannot practise for a certain
time. In very serious cases, the tribunal can strike off a solicitor from the roll.
11.2 Barristers
There are over 12,000 barristers in independent practice in England and Wales.
In addition, there are another 3,000 barristers employed by organisations such as
the Crown Prosecution Service, businesses, local government or the Civil
Service.
Collectively barristers are referred to as ‘the Bar’ and they are controlled by
their own professional body – the General Council of the Bar. All barristers must
also be a member of one of the four Inns of Court: Lincoln’s Inn, Inner Temple,
Middle Temple and Gray’s Inn, all of which are situated near the Royal Courts
of Justice in London.
Entry to the Bar is normally degree-based. As with solicitors, graduate students
without a law degree can take the one-year course for the Graduate Diploma in
Law in the core subjects, in order to go on to qualify as a barrister. All student
barristers have to pass the Bar Professional Training Course. This course is
being re-named as the Bar Professional Training Course. On the course students
study:
• case preparation;
• legal research;
• written skills;
• opinion-writing (giving written advice);
• drafting documents such as claim forms;
• conference skills (interviewing clients);
• negotiation;
• advocacy (speaking in court).
Test Yourself
1. If a person has a non-law degree, what extra qualification must they take if
they wish to become a lawyer?
2. What is the skills-based qualification which all would-be solicitors must
pass?
3. What is a training contract?
4. What problems are there in respect of training to become a lawyer?
5. Explain three types of work that a solicitor’s firm might do.
6. Apart from working in a solicitor’s firm, what other legal careers are
available to a qualified solicitor?
7. What is a certificate of advocacy?
8. Which body governs solicitors?
9. What complaints body is being set up under the provisions of the Legal
Services Act 2007?
10. What is the role of the Legal Ombudsman?
Students also study specific areas of law related to their future profession, such
as civil litigation, criminal litigation and the law of evidence.
All student barristers must join one of the four Inns of Court and used to have
to dine there 12 times before being called to the Bar. Students may now attend in
a different way, for example, a weekend residential course. This helps students
on courses outside London as travelling costs will be lower. The idea behind the
rule requiring all trainee barristers to dine was that they met senior barristers and
judges and absorbed the traditions of the profession. In practice, few barristers
dine at their Inns and students are unlikely to meet anyone except other students.
11.2.2 Training
Once a student has passed the Bar Professional Course, he or she is then ‘called
to the Bar’. This means that they are officially qualified as a barrister. However,
there is still a practical stage to their training which must be completed. This is
called pupillage.
Pupillage
After the student has passed the Bar Professional Training Course there is ‘on
the job’ training where the trainee barrister becomes a pupil to a qualified
barrister. This effectively involves ‘work shadowing’ that barrister, and can be
with the same barrister for 12 months or with two different pupil masters for six
months each. There is also a requirement that they take part in a programme of
continuing education organised by the Bar Council. After the first six months of
pupillage, barristers are eligible to appear in court and may conduct their own
cases. During pupillage trainee barristers are paid a small salary, usually about
half the amount paid to trainee solicitors.
The various training routes are shown in Figure 11.3.
11.2.3 Barristers’ work

Barristers practising at the Bar are self-employed, but usually work from a set of
chambers where they can share administrative expenses with other barristers.
Most sets of chambers are fairly small comprising of about 20 to 25 barristers.
They will employ a clerk as a practice administrator – booking in cases and
negotiating fees – and they will have other support staff. One of the problems
facing newly qualified barristers is the difficulty of finding a tenancy in
chambers. Many will do a third six-month pupillage and then ‘squat’ as an
unofficial tenant before obtaining a place. The rule on having to practise from
chambers has been relaxed, so that it is technically possible for barristers to
practise from home. However, despite the fact that a tenancy in chambers is not
essential, it is still viewed as the way to allow a barrister to build a successful
practice.
The majority of barristers will concentrate on advocacy, although there are
some who specialise in areas such as tax and company law, and who rarely
appear in court. Barristers have rights of audience in all courts in England and
Wales. Even those who specialise in advocacy will do a certain amount of
paperwork, writing opinions on cases, giving advice and drafting documents for
use in court.
Direct access
Originally it was also necessary for anybody who wished to instruct a barrister to
go to a solicitor first. The solicitor would then brief the barrister. This was
thought to create unnecessary expense for clients, as it meant they had to use two
lawyers instead of one. As a result of criticism the Bar first of all started to
operate a system called Bar Direct under which certain professionals such as
accountants and surveyors could brief a barrister direct without using a solicitor.
This was extended to other professionals and organisations. Then in September
2004 the Bar granted direct access to anyone (business or individual). It is no
longer necessary to go to a solicitor in order to instruct a barrister in civil cases.
However, direct access is still not allowed for criminal cases.
Cab rank rule

Normally barristers operate what is known as the cab rank rule under which they
cannot turn down a case if it is on the area of law they deal with and they are
free to take the case. However, where clients approach a barrister direct, the cab
rank rule does not apply. Barristers can turn down a case which would require
investigation or support services which they cannot provide.
Activity
Read the following article and answer the questions below.
Talent, not cash, should open the door to the Bar
The ancient buildings, paved courtyards and well-tended lawns of the Inns of
Court shout privilege. But is the privilege of being a barrister one that anyone
can attain – regardless of social background or wealth?
Concerns that it is now harder to enter the Bar have grown along with the costs
of university and Bar training. Nearly one in three students arrive with debts of
£20,000. The one-year vocational course can add another £15,000 – and non-
law graduates have to fund an extra year on top of that.
But the barrier is not just financial. Geoffrey Vos, QC, whose father was a
Bermondsey leather merchant, identifies other hurdles: lack of contacts or
knowledge about the profession; its intimidating environment; the scramble to
find a pupillage, or training place; and then the challenge of securing a seat in
chambers. Finally, there is uncertainty of success or earning power.
The profession’s entry profile is far more diverse that it was. But then what?
Getting in is just the first hurdle. Perceived obstacles once inside can be a
further deterrent. At the top the profession is still mostly male, white and
privileged: 73 per cent of barristers in eight top commercial chambers went to
private schools. At law firms, the proportion of women partners over ten years
has risen slowly from 16.55 per cent to 23.2 per cent now. Women in the higher
levels of the profession are nowhere near beginning to reflect the level of
women entering the profession.
Adapted from an article by Frances Gibb, The Times, 3 April 2007. © The
Questions
1. The article mentions the Inns of Court. Name the four Inns of Court.
2. Briefly describe what the Bar Professional Training Course consists of.
3. Why do non-law graduates have to do an extra year?
4. What financial barriers are there to becoming a barrister?
5. What other barriers are there to becoming a barrister?
6. In which area have the legal professions become more diverse?
7. What are the problems at the higher levels of the legal professions?
Employed barristers
The employed Bar, which includes those barristers working for the Crown
Prosecution Service, have full rights of audience. They can appear in the
Magistrates’ Court, in the Crown Court, High Court or appellate courts.
11.2.4 Queen’s Counsel

After at least 10 years as a barrister or as a solicitor with an advocacy
qualification, it is possible to apply to the Lord Chancellor to become a Queen’s
Counsel (QC). About 10 per cent of the Bar are Queen’s Counsel and it is known
as ‘taking silk’. QCs usually take on more complicated and high-profile cases
than junior barristers (all barristers who are not Queen’s Counsel are known as
‘juniors’), and they can command higher fees for their recognised expertise.
Often a QC will have a junior barrister to assist with the case.
New appointment system

Selection of new QCs is now made by an independent selection panel. Lawyers
apply to become QCs. They have to pay a fee of £3,500. Applicants provide
references (these can include references from clients) and are interviewed by
members of the panel. The panel then recommends those who should be
appointed to the Lord Chancellor.
The first appointments of QCs under the new system were made in 2006. 443
applied and 175 were appointed. Of these 33 were women, 10 from ethnic
minorities and 4 were solicitors.
Since then the number of women appointed has been smaller but has reflected
the number of women applying. In the 2013–14 competition, a total of 100 new
QCs were appointed. Of these, 18 were women. Applications from ethnic
minority lawyers have increased and this has led to an increasing number of
successful applicants. In the 2013–14 competition, 22 applicants were from an
ethnic minority and 13 of these were successful. Only two solicitors applied and
neither of them was successful. Seven employed advocates applied and two of
them were made QCs.
As a result of the new system of appointment, it appears that the diversity of
QCs is improving, albeit very slowly.
11.2.5 The Bar Council

The Bar Council is the governing body of barristers. Its full title is the General
Council of the Bar. It is run by elected officials and is responsible for setting
down rules for education and training, the Code of Conduct and disciplining
barristers. The disciplinary body is the Senate of the Inns of Court which can
disbar a barrister from practising.
Internet Research
The article on the previous page states that the profession’s entry is far more
diverse than it was.
Try to find out what the current figures are for entrants to the legal professions.
Try the websites for the Law Society and the Bar Council:
www.lawsociety.org.uk and www.barcouncil.org.uk.
The Bar Council also represents the interests of barristers in discussions with
the government.
This means that it has two contradictory roles as it is a ‘watchdog regulating
practices and activities’ but it is also a ‘trade union pursuing the interests of the
Bar’.
11.2.6 Complaints against barristers

Where a barrister receives a brief from a solicitor, he or she does not enter into a
contract with his client and so cannot sue if his fees are not paid. Similarly, the
client cannot sue for breach of contract. However, they can be sued for
negligence. In Saif Ali v Sydney Mitchell and Co (1980) it was held that a
barrister could be sued for negligence in respect of written advice and opinions.
In that case a barrister had given the wrong advice about who to sue, with the
result that the claimant was too late to start proceedings against the right person.
In Hall (a firm) v Simons (2000) the House of Lords held that lawyers could
also be liable for negligence in the conduct of advocacy in court. This decision
overruled the earlier case of Rondel v Worsley (1969) in which barristers were
held not to be liable because their first duty was to the courts and they must be
‘free to do their duty fearlessly and independently’.
The Law Lords in Hall (a firm) v Simons felt that in light of modern
conditions it was no longer in the public interest that advocates should have
immunity from being sued for negligence. They pointed out that doctors could
be sued and they had a duty to an ethical code of practice and might have
difficult decisions to make when treating patients. There was no reason why
advocates should not be liable in the same way.
They also pointed out that allowing advocates to be sued for negligence would
not be likely to lead to the whole case being re-argued. If an action against an
advocate was merely an excuse to get the whole issue litigated again, the matter
would almost certainly be struck out as an abuse of process.
Legal Ombudsman
This service now deals with complaints about poor service by a barrister.
Bar Standards Board

This is the body which regulates the profession of barristers. It sets training and
entry standards. It also sets out a Code of Conduct with which barristers should
comply.
Test Yourself
1. Name two of the Inns of Court.
2. What skills-based course must a would-be barrister pass?
3. What is pupillage?
4. What is meant by ‘chambers’?
5. Explain two types of work a barrister might do.
6. What is meant by ‘direct access’ and which types of case is it NOT allowed
for?
7. What is a QC?
8. Which body governs barristers?
9. Which case decided that barristers could be sued for negligence in their
work?
10. Which body deals with complaints against the legal profession?
The Board investigates any alleged breach of the Code of Conduct. It can
discipline any barrister who is in breach of the code. If the matter is serious, it
will be referred to the Disciplinary Tribunal of the Council of the Inns of Court.
Council of the Inns of Court

Barristers can be disciplined by the tribunal of the Council of the Inns of Court if
they fail to maintain the standards set out in their Code of Conduct. The tribunal
can suspend a barrister from practice or, in extreme cases, the Senate can disbar
a barrister from practising.
11.3 Legal Services Act 2007
This Act was passed following the Clementi Report. It set up the Legal Services
Board, a new regulator, to oversee all legal professions. It also brought in the
Office for Legal Complaints, a new complaints system, which deals with
complaints against any of the legal professions.
11.3.1 Legal Services Board

The role of the Board is to have independent oversight regulation of the legal
profession. It consists of a chairman and seven to ten members appointed by the
Secretary of State. The first chairman had to be a non-lawyer and the majority of
members must also be non-lawyers.
The Solicitors’ Regulatory Authority continue to be the regulator for solicitors
and the Bar Standards Board continue to be the regulator for barristers.
However, the Legal Services Board oversees their work. For example, when
either of the professions’ regulatory bodies wishes to make major changes to
their Codes of Conduct or working practices, they must gain the approval of the
Legal Services Board to do so.
11.3.2 Complaints about legal services

The Act established the Office for Legal Complaints to handle all complaints in
respect of the legal profession. The Office has set up the Legal Ombudsman to
perform the day-to-day handling of complaints. This began work in October
2010. The aim is to simplify the complaints structure for consumers. It is also
completely independent of the legal professions.
11.3.3 Business structures

Prior to the Act, there were restrictions on the types of business structures in the
legal profession. The main restrictions were:
• barristers and solicitors could not operate from the same business;
• lawyers were not allowed to enter into partnership with non-lawyers;
• there were restrictions on non-lawyers being involved in the ownership or
management of legal businesses;
• legal practices could not operate as companies.
So, generally, barristers and solicitors could not work together, nor could
lawyers and non-lawyers work together in legal businesses. The Legal Services
Board has changed this by allowing legal businesses to include:
• lawyers and non-lawyers;
• barristers and solicitors;
• non-lawyers to own legal businesses;
• legal businesses will be able to operate as companies.
Since 2009, solicitors have been allowed to form Legal Disciplinary Practices
(LDPs). In these up to 25 per cent of partners can be non-lawyers.
In 2010, the rules on working practices for barristers were changed, so that
they can be managers or work in LPDs. These practices are still owned by
lawyers.
Alternative Business Structures

Alternative Business Structures (ABSs) have been allowed since October 2011.
These can be owned by non-lawyers. So major companies, such as Tesco, could
own an ABS.
To set up an ABS, a licence to operate has to be given. Access to justice must
be considered when such a licence is applied for. This is to prevent commercial
businesses choosing only the most profitable areas of law and possibly leaving
an area without lawyers to do the less profitable types of law.
The first three licences were given in April 2012. Two of these were to ‘high
street’ solicitors who wished to bring in a non-lawyer practice manager to their
practices. The first ‘big name’ to be given a licence was the Co-operative
Society.
As more ABSs are set up, the style of legal advice and services is likely to
change considerably. Traditional solicitors’ firms will face competition from
commercial firms such as the Co-op.
Internet Research
Look up the Legal Services Act 2007 on www.legislation.gov.uk. At the start
of the Act there is an index of contents. Use this to find which part of the Act
deals with:
(a) The Legal Services Board
(b) Alternative Business Structures
(c) Legal complaints
The way in which solicitors and barristers can work together now in an ABS
is shown by the group, Artesian Law. Six of the seven partners are barristers, the
other being a solicitor. They also intend to have a non-lawyer practice manager.
So, the firm can not only do the advocacy in court, but can also do solicitor’s
work involved in litigation. It can also bid for legal aid contracts.
11.4 Fusion
A major debate used to be whether the two professions should be merged into
one profession. The advantages of fusion were thought to be:
• reduced costs as only one lawyer would be needed instead of a solicitor and a
barrister;
• less duplication of work, because only one person would be doing the work,
instead of a solicitor preparing the case and then passing it on to a barrister;
• more continuity as the same person could deal with the case from start to
finish.
The disadvantages of fusion were seen as:
• a decrease in the specialist skills of advocacy;
• loss of the independent bar and the lack of availability of advice from
independent specialists at the bar;
• less objectivity in consideration of a case; at the moment the barrister provides
a second opinion;
• loss of the cab-rank principle under which barristers have to accept any case
offered to them (except when they are already booked on another case for the
same day). This principle allows anyone to get representation, even if their
case is unpopular or unlikely to win.
The argument for fusion is no longer so important since the changes made by the
Legal Services Act 2007.
11.5 Future reforms
In 2013; the Legal Education and Training Review (LETR) published a report on
legal training. There were a number of recommendations aimed at improving the
content of training schemes and the consistency of outcomes. Look at the
LETR’s website (http://letr.org.uk) to see their recommendations.
11.6 Women and ethnic minorities in the legal
profession
The legal profession has an image of being white male-dominated. Both women
and ethnic minorities are under-represented in the higher levels of the legal
professions.
Women
Women make up an increasing number of entrants to the professions. They now
account for over half of new solicitors and just over half of new entrants to the
Bar. As a result of the increasing numbers of women studying law there are now
greater numbers of women in both professions: 47 per cent of solicitors and 34
per cent of members of the Bar are female.
Despite this, there are very few women at the higher levels in either
profession. For example, at the Bar, only about 12 per cent of QCs are women.
In the solicitors’ profession, 25 per cent of women are partners, compared to 49
per cent of men. Women solicitors are more likely to be in junior positions as
assistant solicitors or junior partners.
A report, Obstacles and Barriers to the Career Development of Women
Solicitors, was published by the Law Society in 2010. The following factors
were the main reasons why women were less likely than men to progress in the
profession:
• lack of flexible working hours;
• the organisational culture which was perceived as being traditional,
conservative and male-dominated;
• the long working hours with the 24/7 mindset;
• the fact that the measurement of success was strongly linked to the number of
hours billed to clients – measuring quantity rather than quality;
• the fact that women are not prepared to challenge the status quo or push
themselves forward for promotion.
These factors lead to many women leaving solicitors’ firms, often to become an
‘in-house’ lawyer in another organisation where there is a different work culture.
Ethnic minorities
Proportionate to the composition of the general population, ethnic minorities are
well represented at the Bar. In 2014, about 13 per cent of solicitors and 13 per
cent of barristers were from an ethnic minority. As with women, they are more
likely to be in junior positions. An interesting fact is that ethnic minority lawyers
are better represented in the Crown Prosecution Service, making up over 15 per
cent of lawyers there.
Five per cent of QCs are from an ethnic minority and this figure is gradually
increasing. However, only 25 per cent of ethnic minority solicitors are partners,
compared to 38 per cent of white solicitors. Statistics also show that ethnic
minority solicitors are more likely to work in smaller firms with only a few
partners.
11.7 Legal executives
Legal executives work in solicitors’ firms as assistants. They are qualified
lawyers who have passed the Institute of Legal Executives’ Professional
Qualification in Law. They specialise in a particular area of law. There are over
22,000 legal executives practising.
Qualification and training

To become a legal executive it is necessary to pass the Professional Diploma in
Law and the Professional Higher Diploma in Law. The Professional Diploma is
set at A level standard and can be achieved in two ways:
• Mixed Assessment Route
This is by portfolio, case studies and one end of course examination which
covers the English Legal System and essential elements of law and practice.
• Examination Route
The student has to sit four papers. These are normally taken over a two-year
period. They cover the English Legal System, Land Law, Criminal Law and Law
of Tort in the first year and Consumer Law, Employment Law, Family Law,
Wills & Succession in the second year. There is also an examination on practice
and procedures dealing with matters such as conveyancing and procedure in civil
and criminal cases.
The Professional Higher Diploma in Law (PHDL) is degree level and students
have a choice of areas of law to study. In each area they learn the law and the
practice side of that area of law.
As well as passing the PHDL examinations, it is also necessary to have
worked in a solicitors’ firm (or other legal organisation such as the Crown
Prosecution Service or local government) for at least five years. When all the
qualifications have been achieved the person becomes a Fellow of the Institute
of Legal Executives.
A Fellow of the Institute of Legal Executives can go on to become a solicitor.
In order to do this they will have to pass the Law Society’s Legal Practice
Course, but they may be given exemption from the two-year training contract.
Work
Legal executives specialise in a particular area of law. Within that area of law
their day-to-day work is similar to that of a solicitor, though they tend to deal
with the more straightforward matters. For example, they can:
• handle various legal aspects of a property transfer;
• assist in the formation of a company;
• draft wills;
• advise people with matrimonial problems;
• advise clients accused of serious or petty crime.
They also have some rights of audience. They can appear to make applications
where the case is not defended in family matters and civil cases in the County
Court and magistrates’ courts.
Since 2008 legal executives have been able to do a course on advocacy and
obtain wider rights of audience. There are three different practising certificates: a
Civil Proceedings Certificate, a Criminal Proceedings Certificate and a Family
Proceedings Certificate. These will allow legal executives to do such matters as
make an application for bail or deal with cases in the Youth Court or the Family
court of the Magistrates’ courts.
Legal Executives are fee earners. This means that where a legal executive
works for a firm of solicitors in private practice, that legal executive’s work is
charged an hourly rate directly to clients. In this way a legal executive makes a
direct contribution to the income of the law firm. The partners of the firm are
responsible for the legal executive’s work.
1 (a) Outline the training and qualifications of both solicitors and legal
executives.
(10 marks)
(b) Compare and contrast the roles of defence solicitors and defence
barristers in a Crown Court criminal case.
AQA Law Unit 1 June 2014 part question
Examiner’s tip
Examination questions can ask about all the branches of the legal profession.
Note that for part (a) of the question above you need to cover both solicitors
and legal executives. Quite often you are asked to compare aspects of the
professions, so make sure you are clear on the differences between solicitors
and barristers.
Chapter 12
Funding of Legal Services
W hen faced with a legal problem, most people need expert help from a
lawyer. Often the need is only for advice, but some people may need help
in starting court proceedings and/or presenting their case in court. For the
ordinary person seeking legal assistance, there are three main difficulties:
1. Lack of knowledge.
Many people do not know where their nearest solicitor is located or, if they
do know this, they do not know which solicitor specialises in the law
involved in their particular case.
2. Fear of dealing with lawyers.

People feel intimidated when dealing with lawyers.
3. Cost.
Solicitors charge from about £100 an hour for routine advice from a small
local firm, to over £600 an hour for work done by a top city firm of
solicitors in a specialist field.
12.1 Access to justice
Where a person cannot get the help they need, they are being denied access to
justice. Access to justice involves both an open system of justice and also being
able to fund the costs of a case.
Various schemes have aimed at making the law more accessible to everyone.
One of the earliest was the Citizens Advice Bureaux which started in 1938 and
now operates in most towns.
However, the problem of cost still remains a major hurdle. The cost of civil
cases in the High Court may run into hundreds of thousands of pounds. Even in
the cheaper County Court, the cost will possibly be more than the amount of
money recovered in damages. There is the additional risk in all civil cases that
the loser has to pay the winner’s costs.
In criminal cases, a person’s liberty may be at risk and it is essential that they
should be able to defend themselves properly.
For these reasons, the Government has run schemes to help those in lower
income brackets with funding cases. The first scheme was started in 1949 and
altered many times over the years. In 2000, the Legal Services Commission was
set up by the Government to run legal aid. However, in March 2010, the House
of Commons Committee of Public Accounts criticised the Legal Services
Commission for its financial management. In 2012, the Government decided to
abolish the Legal Services Commission and bring legal aid under the control of
the Ministry of Justice. This was done by passing the Legal Aid, Sentencing and
Punishment of Offenders Act 2012.
12.2 The Legal Aid, Sentencing and Punishment of
Offenders Act 2012
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 abolished the
Legal Services Commission. The administration of legal aid since April 2013
has been operated by the Legal Aid Agency and comes under the umbrella of the
Ministry of Justice.
An independent civil servant is the Director of Legal Aid Casework and the
decisions on granting legal aid are made by him and his team.

The system works by the Government making contracts with providers of legal
services so that the providers can do legal work and be paid from Government
funds. Providers include law firms and not-for-profit organisations who offer
advice on legal matters, such as the Citizens Advice Bureaux.
12.2.2 Criteria for civil legal aid services

The Act gives the Lord Chancellor the power to set criteria for making civil legal
aid services available. It also sets out the factors the Lord Chancellor must
consider when setting the criteria. These factors are set out in s 10(3) of the Act.
They include:
• the likely cost of providing the services and the benefit which may be obtained
by them
• the availability of resources to provide the services
• the importance for the individual of the matters in relation to which the
services would be provided
• the availability of other services, such as mediation
• where the services are sought by an individual in relation to a dispute, the
individual’s prospect of success in the dispute
• the public interest.
12.2.3 Availability of legal aid

Under previous legal aid systems, aid was available for all cases except those
specifically excluded. There always were certain types of case excluded, for
example small claims.
Under the new system, the starting point is that legal aid is not available for
civil cases unless it is a category specifically mentioned in the Act or other
regulations. The types of cases for which legal aid is allowed include those
involving children’s rights and those involving liberty of the individual. This
includes cases being heard at Mental Health Tribunals as these are about whether
a person should continue to be detained in a mental hospital and cases involving
claims for asylum.
The result of this change to the availability of legal aid means that it is no
longer granted for those injured through medical negligence. Also removed from
legal aid are claims for trespass to the person, to land or to property. These were
previously eligible for legal aid.
12.3 Government funding in civil cases
The funding for legal aid comes from the Government’s budget. This means that
a set amount is made available each year. Also the amount set has to be
considered against all the other claims on the budget, such as hospitals and
health care and education. As a result, the Government cannot afford to make
legal aid available to everyone. In order to qualify, there is a strict means test.
12.3.1 Means testing

A person applying for Government-funded advice or representation must show
that they do not have enough money to pay for their own lawyer. In order to
decide if the applicant is poor enough to qualify for Government-funded help,
their income and capital are considered.
People receiving Income Support or Income-Based Job Seekers’ Allowance
automatically qualify, assuming their disposable capital is below the set level.
For all other applicants, their gross income is considered first. If a person’s gross
income is above a set amount per month, then they do not qualify.
Disposable income
If the person’s gross income is below the set amount per month, then their
disposable income has to be calculated by starting with their gross income and
taking away:
• tax and National Insurance
• housing costs
• childcare costs or maintenance paid for children
• an allowance for themselves and for each dependant.
If the amount left after making all deductions is below a minimum level, the
applicant does not have to pay any contribution towards their funding. If the
amount left is above a maximum level, the person will not qualify for any of the
schemes provided by the Legal Aid Agency.
Where the disposable income is between the minimum level and the
maximum level, the person applying for legal help has to pay a monthly
contribution. The more in excess of the minimum, the greater the amount of the
contribution. This idea of minimum and maximum levels is shown in Figure
12.1.
Note that the figures for the limits on income are increased slightly each year.
You will be able to find the current figures on the Ministry of Justice’s website
www.justice.gov.uk.
Disposable capital
Disposable capital is the assets of the person, such as money in a bank or savings
account, stocks and shares or expensive jewellery. In order to qualify for funding
to take a court case, there is a maximum limit for disposable capital of £8,000.
If the assets are over £8,000, they must use their own money to fund any legal
case, although once they have spent the money in excess of £8,000 they can
become eligible for funding. Even where the disposable capital is below £8,000,
they can be asked to pay a contribution towards their case.
Where a person owns a home, the value of that home is taken into account in
deciding the disposable capital. This is so even though the person may have a
large mortgage. Only the first £100,000 of any mortgage is deducted from the
value of the home. This rule means that people are regarded as having too much
disposable capital because of the value of the house, but in reality they have no
spare money.
12.4 Problems with funding of civil cases
12.4.1 ‘Advice deserts’
There is evidence that not enough legal service providers have contracts. This is
partly due to the smaller numbers of contracts made with providers by the Legal
Services Commission (and now by the Legal Aid Agency) and also to the fact
that many solicitors are finding that the rates of pay are so low, it is not
economically viable for solicitors to continue in the scheme. This has created
what have been called ‘advice deserts’.
The problem of advice deserts was considered by the Constitutional Affairs
Select Committee as long ago as 2004. In the evidence to the Committee, even
the Legal Services Commission acknowledged that:
It is clear that there are parts of England and Wales in which the need for
publicly funded legal services is not currently being met.
In their report, the Select Committee gave the position in Northumberland as an
example. There were no housing law advisers and no one with a contract for
immigration law in Northumberland. Furthermore, there were only two contracts
for employment law in the area. People have to travel a long way to see a
lawyer. This can be expensive and is difficult for people on low incomes, those
caring for small children or those who have a disability which makes it hard to
travel.
Since 2004, the position has been getting worse as more solicitors have
stopped doing Government-funded legal work. With so few legal service
providers in certain areas, people who want help may have to travel long
distances to find it.
12.4.2 Eligibility levels

Even where there are enough legal services providers in an area, only people
with very low levels of income and capital can qualify for help. As far back as
2004, the Select Committee on Constitutional Affairs which investigated the
adequacy of the provision of civil legal aid pointed out that:
At present, the legal aid system is increasingly being restricted to those with no
means at all. There is a substantial risk that many people of modest means but
who are home-owners will fall out of the ambit of legal aid. In many cases this
may amount to a serious denial of access to justice.
The financial limits have become increasingly restrictive so that this statement
is even more true today. The changes made by the Legal Aid, Sentencing and
Punishment of Offenders Act 2012 have led to a dramatic decrease in the
number of cases for which legal aid has been given. Statistics produced by the
Ministry of Justice show that in 2009–10, 933,616 matters were granted legal
aid. By 2012–13, the number was down to 573,632 and in 2013–14, the first year
of the new Legal Aid Agency, only 172,846 matters were granted legal aid.
12.4.3 Lack of funds

The fact that there is a limit on the amount given by the budget means that some
cases will not be funded as there is no money left for them. Also, the fact that
criminal cases take priority on funding means there may not be enough left for
civil cases. This can lead to civil cases which have merit being refused funding
just because the money has run out.
12.4.4 Non-availability
As set out in section 12.2.2, funding is not available for all civil claims. Claims
for damages for personal injury are excluded from the scheme. Any such case
has to be paid for privately or through a conditional fee agreement (see section
12.6). This works well where people have suffered minor injuries, but it can be
argued that it creates difficulties for people who have been left with serious
disabilities. They need all the help they can get to make sure they receive
adequate compensation.
It can also be argued that people bringing employment claims against large
companies are disadvantaged by being unable to receive public funding to bring
their case. The company will be able to afford a lawyer and will be at an
advantage in the case.
Under the new rules of the Legal Aid Agency, legal aid has been removed
from areas of law which affect the poorest and most vulnerable people in
society. Legal aid has been removed (with a small member of exceptions) for
debt, employment, housing and welfare benefits cases.
12.5 Private funding
Anyone who can afford it can pay for a solicitor and/or a barrister to deal with a
legal matter. There are firms of solicitors in most towns. However, some
solicitors specialise in certain types of work. If your legal problem is in an
unusual area of law, then it may be necessary to travel to another town to find a
solicitor who can deal with it.
The bigger firms of solicitors work in the major cities, in particular London.
They often specialise in commercial law and the majority of their clients are
businesses.
Consulting a solicitor can be expensive. The average cost of a solicitor outside
London is about £150 an hour. For a big London firm of solicitors, the charges
are usually at least £600 an hour and can be as much as £1,000 an hour.
On issues of civil law, it is also possible to consult a barrister directly, without
going to a solicitor first. This can be cheaper than using a solicitor because
barristers do not have such high business expenses as solicitors.
12.6 Conditional fees
One of the main problems of taking a case to court is that it is difficult to
estimate how long it will last or much it will cost. If a person is funding their
own case, this is a major problem for them. Also, if they lose the case, they may
have to pay the costs of the other party. The combined costs of the case can be
many thousands of pounds. In order to overcome these problems, a conditional
fee agreement (CFA) can be used in all civil cases except family cases.
CFAs cannot be used in criminal cases.
12.6.1 How conditional fees work

The solicitor and client agree on the fee that would normally be charged for such
a case. The agreement will also set out what the solicitor’s success fee will be if
he wins the case.
Many conditional fee agreements will be made on the basis that if the case is
lost, the client pays nothing. Because of this sort of agreement, the scheme is
often referred to as ‘no win, no fee’. However, some solicitors may prefer to
charge a lower level fee, for example half the normal fee, even if the case is lost.
If the case is won, the client has to pay the normal fee plus the success fee.
12.6.2 Success fee

The success fee could be up to 100 per cent of the normal fee. However, most
agreements will include a ‘cap’ on the success fee, which prevents it from being
more than 25 per cent of the damages (amount of money) that the client wins as
compensation. This protects the client from having to pay more than he or she
won as compensation. Even so, it can mean that the client is left with very little
of their damages. This is easier to understand by looking at the examples given
in Figure 12.3.
Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the
Lord Chancellor is able to set a limit on the maximum percentage for the success
fee, so it is unlikely that solicitors will be able set a success fee of 100 per cent
in future.
A winning claimant used to be able to claim the success fee back from the
losing defendant. This has been changed by the Legal Aid, Sentencing and
Punishment of Offenders Act 2012 which states that:
A costs order made in proceedings may not include provision requiring the
payment by one party of all or part of a success fee payable under a conditional
fee agreement.
So now the position is that a winning claimant will have to pay any success fee
themselves.
12.6.3 Insurance premiums

Although the client will often not have to pay anything to his own lawyer if the
case is lost, they will usually have to pay the costs of the other side. This can
leave the client with a very large bill to pay. To help protect against this, it is
possible to insure against the risk. This type of insurance is known as ‘after-the-
event’ (ATE) insurance. So, if the case is lost, your insurers will pay the other
side’s costs.
In order to get insurance, it is necessary to pay a premium (a sum of money)
to the insurance company. Premiums for ‘after-the-event’ insurance are usually
quite expensive. This premium usually has to be paid in advance of the decision
in the case. This can cause problems to people who cannot afford the cost of the
premium.
It used to be possible for a winning claimant to be able to claim the cost of
ATE back from the defendant. This has been changed by the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 and it can no longer be
claimed back. The claimant has to fund it themselves.
12.6.4 Are conditional fees working?

Conditional fee agreements (CFAs) have helped thousands of people to bring
cases to court and obtain justice. One area in which they have been particularly
useful for claimants has been in defamation cases. Legal aid has never been
available for such cases and only the rich could risk pursuing defamation claims.
CFAs have enabled ordinary people to take such cases.
However, there are problems with CFAs. Low value cases are not attractive to
lawyers who need to be able to make a profit for their legal business to survive.
Lawyers are also more likely to take on cases where there is a very high chance
of success.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 has made
CFAs less attractive for two reasons:
1. The cost of after the event insurance can no longer be claimed back from the
defendant by a claimant who wins the case.
2. Success fees can no longer be claimable from the defendant by a claimant
who wins the case.
These two points mean that a winning claimant will have to bear more of the
cost of taking a case. As a result, a large proportion of the amount of damages
they receive may well be used up by their costs.
12.7 Advice in civil cases
When people have a legal problem, the first thing they want is advice. The Legal
Services Commission had developed a telephone helpline for people to seek
initial basic advice. Also it had a website offering advice. These two services are
likely to continue under the new Legal Aid Agency.
12.7.1 Community Legal Advice Centres

The Legal Services Commission also established Community Legal Advice
Centres (CLAC). These are a one-stop service providing advice on debt, welfare
benefits, community care, housing and employment. The first two such centres
were set up in Leicester and Gateshead. It was intended that there would
eventually be about 75 CLACs.

People can also get advice from a solicitor or a not-for-profit organisation that
holds a contract with the Government to give advice in civil cases. To receive
advice in this way, the person has to come within the financial limits explained
in section 12.3.1 above.
12.7.3 Other advice agencies

Apart from Government-funded schemes, there are a number of different advice
schemes available. The main ones are Citizens Advice Bureaux and law centres.
However, there are other agencies which offer advice on specific legal topics.
These include trades unions which will help members with work-related legal
problems. There are also charities, such as Shelter which offers advice to people
with housing problems.
These will offer advice free to anyone who has a problem of the type they deal
in.
12.7.4 Citizens Advice Bureaux

Citizens Advice Bureaux (CABx) were first set up in 1938 and today there are
about 1,000 throughout the UK with a bureau existing in most towns. They give
general advice free to anyone on a variety of issues mostly connected to social
welfare problems and debt, but they also advise on some legal matters. They can
also provide information on which local solicitors do legal aid work or give
cheap or free initial interviews. Many have arrangements under which solicitors
may attend at the bureau once a week or fortnight to give more qualified advice
on legal matters.
As well as being available for anyone to get advice, the Legal Services
Commission has awarded contracts for some CABx to provide Government-
funded advice.
12.7.5 Law Centres

These offer a free, non-means-tested legal service to people in their area. The
first Law Centre opened in North Kensington in 1970. This stated its aims as
providing:
a first class solicitor’s service to the people … a service which is easily
accessible, not intimidating, to which they can turn for guidance as they would
to their family doctor, or as someone who can afford it would turn to his family
solicitor.
Their aim is to provide free legal advice (and sometimes representation) in
areas where there are few solicitors. Many of their clients are disadvantaged.
Funding
Law Centres have always struggled to secure enough funding. Recent cuts by
local authorities in their budgets have meant the withdrawal or reduction of
funding from this source. As a result, some Law Centres have had to close.
Funding also comes from the Legal Services Commission (when the Ministry of
Justice takes over legal aid, it is to be hoped this funding will continue). Some
centres have received funds from the Big Lottery Fund where the law centre is
part of a community project.
Activity
Look at the website of the Law Centres Federation at www.lawcentres.org.uk.
This should give you the present number of Law Centres. It will also give
information about the work they do.
As at the beginning of 2013, there were 55 Law Centres in operation.

12.7.6 Schemes run by lawyers
Some solicitors offer a free half-hour first interview. Local CABx will have a list
of solicitors who offer the service.
Another service from solicitors is the Accident Legal Advice Service (ALAS)
which is aimed at helping accident victims claim compensation. In addition, the
Law Society runs Accident Line – a free telephone service to put accident
victims in contact with solicitors who do personal injury work.
Bar Pro Bono Unit

Since 1996, volunteer barristers have staffed the Bar Pro Bono Unit. This unit
gives free advice to those who cannot afford to pay and who cannot get legal aid.
They will give advice on any area of law and will also, where necessary,
represent the client in court proceedings.
Free Representation Unit

The Free Representation Unit (FRU) is also staffed by volunteer barristers. It
was founded in 1972 and provides representation for:
• cases in the employment tribunals
• social security appeals, and
• claims for criminal injury compensation.
These are areas of law where legal aid is not available.

Until recently, the FRU operated only in London. However, they are trying to
set up units in Nottingham, Birmingham and Manchester.
12.7.7 Insurance
Another way of funding a court case is by legal insurance. Most motor insurance
policies offer cover (for a small amount extra) for help with legal fees in cases
arising from road accidents and there are also policies purely for insurance
against legal costs.
12.8 Legal aid in criminal cases
From 2013, criminal legal aid services have been under the Legal Aid Agency in
the Ministry of Justice. The Director of Legal Aid Casework will supervise
criminal legal aid, as well as civil legal aid. The agency will make contracts with
law firms to provide legal services to people charged with criminal offences.
12.8.1 Advice and assistance for individuals in custody

Section 13 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012
states that:
Initial advice and initial assistance are to be available … to an individual who is
arrested and held in custody at a police station or other premises if the Director
has determined that the individual qualifies for such advice and assistance …
The Director must have regard to the interests of justice when making that
determination. There will be regulations setting out more precisely what is to be
considered in making determinations under s 13.
Telephone advice
One of the problems in the 1990s with duty solicitor schemes was that, in many
cases, the solicitor did not attend at the police station but merely gave advice
over the telephone. Although this was viewed as a defect in the scheme,
telephone advice has now become the Government’s preferred method of action
for duty solicitors. Since 2004, solicitors cannot claim for attending at the police
station unless they can show that attendance was expected to ‘materially
progress the case’.
12.8.2 Representation
In order to get representation, the defendant has to qualify under the ‘interests of
justice’ test. There is also a means test.
Interests of justice
A defendant will only get help with legal funding for representation in court if he
can show that he comes within at least one of the five ‘interests of justice’
factors. These factors are:
1. Whether, if any matter arising in the proceedings is decided against him, the
individual would be likely to lose his liberty or livelihood or suffer serious
damage to his reputation.
2. The case will involve consideration of a point of law.
3. The individual is unable to understand the proceedings in court or to state his
own case.
4. The case may involve the tracing, interviewing or expert cross-examination
of witnesses.
5. It is in the interests of another person that the individual be represented (such
as in a rape case).
12.8.3 Magistrates’ Court means testing

As well as having to qualify under the ‘interests of justice’ test, defendants who
are being tried in the Magistrates’ Courts are also means tested.
Those who are on income support, defendants under the age of 16 and those
under 18 in full-time education automatically pass the means test. For everyone
else, the test starts with a first-stage simple means test which is calculated on
gross annual income. If their income is too high on this test, then the defendant
does not qualify for legal aid. If a defendant’s income is below a certain level,
they qualify. For those in the middle bracket, they are further means tested to
calculate their disposable income.
The levels allowed are very low. This means that about three-quarters of
adults do not qualify for legal aid in criminal cases in the Magistrates’ Courts.
12.8.4 Crown Court means testing

This was gradually introduced during 2010. The main difference from the
Magistrates’ Courts is that there is no upper limit on disposable income. All
defendants can receive legal aid. It is free for those on low incomes.
Where a defendant has to pay, then the higher their income, the higher the
contribution they will have to pay towards the case. The maximum amount they
have to pay through contributions from their income is set by the type of case.
If a defendant is found guilty, they may also have to pay extra from their
capital. This only applies where their capital is over £30,000.
If a defendant is found not guilty, any contributions paid will be normally be
refunded.
12.9 Problems with funding of criminal cases
12.9.1 ‘Interests of justice’ test
This test is applied very strictly. Even where a defendant is charged with an
offence for which a prison sentence can be given, for example theft, it does not
necessarily mean that he will pass the ‘interests of justice’ test. The rule is that
there must be a real risk of imprisonment.
This has the effect that a defendant who has several previous convictions for
theft will qualify for legal help as they are likely to be imprisoned. However,
someone with no previous convictions is not likely to be sent to prison. So, if
they are pleading not guilty they will have to represent themselves or pay for
private legal help.
12.9.2 Means test

In the Magistrates’ Courts, this is a strict test. The levels of income allowed are
very low. About three-quarters of adults do not qualify for legal aid in criminal
cases.
The limits are less severe in the Crown Court, but even here some defendants
do not qualify for legal aid. As the cases are more serious and it is more
expensive to defend a case, there is a real risk of injustice due to lack of
availability of legal help.
Statistics produced by the Ministry of Justice show that there has been a fall in
the number of defendants receiving legal aid for lower level crime cases from
1,521,547 in 2008–09 to 1,203,341 in 2013–14. There has also been a reduction
in the number of higher level crime cases, from 132,570 in 2011–12, to 111,927
in 2013–14.
12.9.3 Lack of lawyers

The Government has cut the fees paid to lawyers for criminal cases. Fixed fees
are being brought in which do not take account of the true amount of work that
may need to be done. As a result, fewer solicitors are taking on Government-
funded legal work. This makes it more difficult for defendants to find a local
solicitor to take their case. The annual reports for the Legal Services
Commission emphasise the decrease in solicitors doing legal aid work. Prior to
2000, there were over 5,000 law firms doing criminal legal aid work, but by
2012 there were only 1,640 firms.
12.9.4 Budget
The budget given by the Government for legal funding has not risen in line with
inflation. This means that there is less money to allocate for funding.
(a) Briefly explain where, and from whom, a person arrested for a serious
criminal offence could obtain legal advice and representation and outline
how this advice and representation could be paid for.
(10 marks)
(b) Discuss disadvantages of the methods of funding advice and representation.
AQA Law Unit 1 January 2013 part question
Examiner’s tip
Sometimes examination questions on funding will ask you to tell a person how
they can get legal help. It is important to identify whether you have to advise
them about a civil or a criminal case and understand the differences between
the two.
In both parts of the exam question above, you are only required to write about
criminal cases. You would get no credit for writing about civil legal aid.
(10 marks + 2 marks for A03)
Chapter 13
The Judiciary
W hen speaking of judges as a group they are referred to as the judiciary.

There are many different levels of judges, but their basic function is the
same. Their main role is to make decisions in respect of disputes. This they
must do in a fair, unbiased way, applying the law and the legal rules of England
and Wales.
The judiciary is divided into what are known as ‘superior’ judges (those in the
High Court and above) and ‘inferior’ judges (those in the lower courts). This
distinction affects training, work and, in particular, the terms on which they
hold office. So it is important to start by understanding which judges sit in
which court.
13.1 Types of judges
13.1.1 Superior judges
Superior judges are those in the Supreme Court, the Court of Appeal and the
High Court. They are:
• the Justices of the Supreme Court;
• the Lord Justices of Appeal in the Court of Appeal;
• High Court judges (also known as puisne (pronounced ‘pew-nay’) judges)
who sit in the three divisions of the High Court: judges in the Queen’s Bench
Division of the High Court also sit to hear serious cases in the Crown Court.
The head of the judiciary is the Lord Chief Justice. As well as being head of the
whole judiciary, this judge is also head of the Criminal Division of the Court of
Appeal.
There are also senior judges who head the Civil Division of the Court of
Appeal and the divisions of the High Court. These are:
• The Master of the Rolls who is head of the Civil Division of the Court of
Appeal;
• The President of the Queen’s Bench Division of the High Court;
• The Chancellor of the High Court who is head of the Chancery Division;
• The President of the Family Division of the High Court.
The inferior judges include:
• Circuit judges who sit in both the Crown Court and the County Court;
• Recorders who are part-time judges who usually sit in the Crown Court,
though some hear cases in the County Court;
• District judges who hear small claims and other matters in the County Court;
• District judges (Magistrates’ Courts) who sit in magistrates’ courts in London
and other major towns and cities;
• Tribunal judges.
13.2 Qualifications
The relevant qualifications for the different judicial posts are set out in the
Courts and Legal Services Act 1990 as amended by the Tribunals, Courts and
Enforcement Act 2007. Qualifications to become a judge are based on legal
qualifications plus relevant legal experience.
Before 1990, only barristers who had practised at the bar for at least ten years
could become High Court judges or above. The 1990 Act allowed solicitors to
become High Court judges. The Tribunals, Court and Enforcement Act 2007
further widened the pool of potential applicants. Under this Act it is necessary
for applicants for judicial posts to have the relevant legal qualification. This is
normally barrister or solicitor, but for some levels the Act has opened up judicial
posts beyond solicitors and barristers for the first time. Fellows of the Institute of
Legal Executives (ILEX) and Registered Patents Attorneys and Trade Mark
Attorneys may apply for certain posts such as Deputy District judge or Tribunal
Judge.
The Tribunals, Court and Enforcement Act 2007 also widened the ways in
which applicants may have gained experience in law. As well as practising or
teaching law, such activities as acting as an arbitrator or mediator, advising on
law or drafting legal documents are also methods by which an applicant can gain
experience in law.
These changes have helped to widen the pool of potential candidates for
judgeships.
The qualifications for each level of judge are set out below.

These are appointed from those who hold high judicial office, for example as a
judge in the Court of Appeal, or from those who have been qualified to appear in
the Senior Courts for at least 15 years. This can be as a practising lawyer or as an
academic who holds the necessary qualification to practise. As the Supreme
Court is the final appellate court for Scotland and Northern Ireland as well,
judges can also be appointed from those who have practised (or been qualified to
practise) as an advocate in Scotland for at least 15 years or as a member of the
Bar in Northern Ireland for at least 15 years or held high judicial office in their
own legal system. There are 12 Justices of the Supreme Court.
All judgments by the Justices of the Supreme Court are put on their website
(https://www.supremecourt.uk/).
Note that the most senior court in the UK used to be the Appellate Committee
of the House of Lords. The Constitutional Reform Act 2005 abolished this and
replaced it with the Supreme Court. The changeover occurred in October 2009.
Judgments by the House of Lords for cases between 1996 and 2009 can be found
on the website for Parliament (www.parliament.uk).

These must be qualified as a barrister or solicitor and have seven years’ relevant
legal experience or be an existing High Court judge. In practice nearly all Lords
Justices of Appeal have been appointed from existing High Court judges. Up to
2006 all Lords Justices of Appeal had been qualified as barristers, but in 2007
the first solicitor Lord Justice of Appeal was appointed.

In order to be eligible to be appointed as a High Court judge it is necessary to be
a barrister or solicitor and have seven years’ relevant legal experience. Prior to
the Courts and Legal Services Act 1990 only those who had practised as a
barrister for at least ten years were eligible. The present qualification routes give
solicitors the chance to become High Court judges. This can be either by
promotion from a circuit judgeship or by holding a certificate of advocacy for
ten years. There have been very few solicitors appointed to the High Court. The
first was in 1993 and the second in 2000. This second solicitor judge (Sir
Lawrence Collins) was later promoted to the Court of Appeal. However, the vast
majority of High Court judges have been barristers.
13.2.4 Circuit judges

There are different routes to becoming a Circuit judge. The candidate must be
qualified as a barrister or solicitor and have seven years’ relevant legal
experience. About 12 per cent of circuit judges are solicitors. The Courts and
Legal Services Act 1990 also allowed for promotion after being a district judge
or a tribunal judge for at least three years. These provisions widened the pool of
potential judges and are starting to lead to a better cross-section amongst the
judges.
13.2.5 Recorders
This is a part-time post. The applicant must be qualified as a barrister or solicitor
and have seven years’ relevant legal experience. Recorders sit as a judge for 20
days in the year, the rest of the time they do their own work. The appointment is
for five years and most recorders work in the Crown Court hearing criminal
cases, though some are appointed as civil recorders and sit in the County Court
to hear civil cases.
13.2.6 District judges

These need to be qualified as a barrister or solicitor and have five years’ relevant
legal experience. This means they can be appointed from either barristers or
solicitors, but in practice the vast majority of district judges are solicitors. They
work in the County Court and are concerned only with civil cases.
Under the Tribunals, Courts and Enforcement Act 2007, ILEX Fellows are
now eligible to be appointed as Deputy District judges.
13.2.7 District judges (magistrates’ courts)

At this level an applicant must have been qualified as a barrister, solicitor and
have gained experience in law for at least five years or to have been a Deputy
District judge. It is usual to have sat part-time as a Deputy District judge before
being considered for the position of District judge in the magistrates’ courts.
Under the Tribunals, Courts and Enforcement Act 2007, ILEX Fellows are now
eligible to be appointed as Deputy District judges.
13.3 Selection
13.3.1 History
Until 2005, the Lord Chancellor was the key figure in the selection of superior
judges. The Lord Chancellor’s Department would keep information on all
possible candidates. These files would contain confidential information and
opinions from existing judges on the suitability of each person. The contents of
these files were secret.
When there was a vacancy for a judicial position in the former Appellate
Committee of the House of Lords, the Court of Appeal or the High Court, the
Lord Chancellor would consider the information in these files and decide which
person he thought was the best for the post. That person would then be invited to
become a judge.
Not surprisingly, this system of selection was seen as secretive. It was also felt
that it favoured white males, as there were few women in the higher ranks of the
judiciary.
Matters improved for High Court judgeships as, from 1998, vacancies were
advertised and any qualified person could apply. However, even then, the Lord
Chancellor continued to invite people to become judges, rather than appoint
solely from those who applied.
The major role of the Lord Chancellor in appointment was very controversial
as the Lord Chancellor is a political appointment. It was thought that the
appointment of judges should be independent from any political influence. So
the method of appointment was changed by the Constitutional Reform Act 2005
and a Judicial Appointments Commission created to deal with selection of
judges.
13.3.2 The Judicial Appointments Commission

Virtually all judges are now selected by the Judicial Appointments Commission.
This was created under the Constitutional Reform Act and started work in April
2006. The Commission is responsible for selecting between about 500 and 700
people for appointment to judicial posts each year.
There are 15 members of this Commission. There must be:
• 6 lay members
• 5 judges – 3 of these from the Court of Appeal or High Court plus 1 circuit
judge and 1 district judge or equivalent;
• 1 barrister;
• 1 solicitor;
• 1 magistrate;
• 1 tribunal member.
The key features of the new process for appointing judges are:
• appointments are made solely on merit;
• the Commission is entirely responsible for assessing the merit of the
candidates and selecting candidates for appointment;
• no candidate can be appointed unless recommended by the Commission;
• the Commission must consult with the Lord Chief Justice and another judge of
equivalent experience before recommending a candidate for appointment;
The Lord Chancellor used to be able to ask the Commission to reconsider its
recommendation, but the Crime and Courts Act 2013 has transferred the Lord
Chancellor’s power in respect of all judges below the High Court to the Lord
Chief Justice. The Senior President of Tribunals has been given the power to
appoint judges for the First-tier and Upper Tribunals. The Lord Chancellor is
still consulted on appointments to the High Court and Court of Appeal along
with the Lord Chief Justice. However, for lower court judgeships the process is
completely separate from the Government and Executive.
Judicial qualities
The Commission has listed five qualities that are desirable for a good judge.
These are:
• intellectual capacity;
• personal qualities including integrity, independence of mind, sound judgment,
decisiveness, objectivity and willingness to learn;
• ability to understand and deal fairly;
• authority and communication skills;
• efficiency.
Judges must not have any criminal convictions, although they are allowed to
have up to 6 penalty points on their driving licence. In 2014, an applicant for the
post of District Judge was not recommended because he had 7 penalty points on
his licence.
The process
Positions are advertised widely in newspapers, legal journals and also online.
All candidates have to fill in an application form. Candidates are also asked to
nominate between three and six referees. In addition, the Commission has
published a list of people whom it may consult about candidates. These include
existing judges.
For lower level posts, applicants are also asked to write an essay or do a case
study.
The Commission then selects the best candidates to be interviewed. The
interview process may include role play or taking part in a formal, structured
discussion. After the interviews, the final selections are made and recommended
to the Lord Chancellor for appointment.
In 2006, the first vacancies for High Court judgeships were advertised through
this system. There were 129 applicants, but only 18 of these were women and all
the applicants were white. Since then, more women and people from ethnic
minorities have started to apply for judgeships, so the pool of potential judges is
widening. For example, in 2013 there were 73 applicants for High Court judge
positions. Twenty-five of these were women of whom three were recommended
for appointment. However, there was only one from black ethnic minorities and
that person was not recommended for appointment.
The percentage of women in the High Court before the JAC took over
appointment was only 10 per cent. That has now doubled to 20 per cent. There
are also considerably move women and black ethnic minorities in lower judicial
positions.
The Judicial Appointments Commission has also tried to encourage a wider
range of candidates to apply by running roadshows and other outreach events
designed to communicate and explain the appointments system to potential
applicants.
Internet Research
Look at the Commission’s website to see if any judicial posts are being
currently advertised.
More information can be found on the Judicial Appointments Commission’s

website at http://jac.judiciary.gov.uk.

When the Supreme Court was established in 2009, all existing Law Lords from
the House of Lords automatically became judges in the new court. Judges for
new appointments after that are selected according to the method set out in Part
3 of the Constitutional Reform Act 2005. This states that when there is a
vacancy, the Office of the President of the Court must set up a Supreme Court
selection commission to select the best candidate.
This commission must include the President and the Deputy President of the
Supreme Court and one member of the Judicial Appointments Commission. As
the Supreme Court is also the final court of appeal for Scotland and Northern
Ireland, the commission must also include a member of the Judicial
Appointments Board for Scotland and the Northern Ireland Judicial
Appointments Commission.
The commission will decide the selection process to be used. It will then use
that process to select a candidate and report that selection to the Lord
Chancellor.
The Lord Chancellor has to accept the commission’s nomination. He then
notifies the Prime Minister. The Prime Minister must recommend to the Queen
that she appoints that person. The Prime Minister is not be able to recommend
another person for appointment.
13.4 Appointment
Once a candidate has been selected and that selection accepted by the Lord
Chancellor, then the appointment is made by the Queen for all judicial posts
from District Judges up to the Supreme Court.
Activity
Below is the advertisement of a vacancy which appeared in October 2009.
Read it and answer the questions below.
Questions

1. Under which section of which Act has a selection commission been
established?
2. What is the role of the selection commission?
3. If the candidate has held high judicial office in other courts, what is the
minimum period of time must they have held that office?
4. If the candidate has not held high judicial office, what qualification(s) do
they need?
13.5 Judicial roles
The work that a judge does depends on the level of court in which he or she
works.

Judges in the Supreme Court hear about 70 cases each year. These are appeals.
They can be in civil or criminal cases. However, there are always far more civil
appeals each year. A case can only be appealed to the Supreme Court if there is a
point of law involved. Often civil cases involve complicated and technical areas
of law such as planning law or tax law.
The Justices of the Supreme Court must sit as an uneven number panel
(minimum three judges) to hear a case.
Any decision the Supreme Court makes on a point of law becomes a
precedent for all lower courts to follow. You can find reports of cases decided by
the Supreme Court at https://www.supremecourt.uk/.

There are some 38 Lords Justices of Appeal. They sit in both the civil and
criminal divisions of the Court of Appeal, so they deal with both civil and
criminal cases. Their workload is much heavier than the Supreme Court.
On the criminal side they will hear over 7,000 applications for leave to appeal
against sentence or conviction. These are dealt with by one judge. Only about a
quarter of these get leave to appeal, so the full court then has about 1,800
criminal appeals to hear. In addition, they hear over 3,000 civil appeals. These
may be appeals against the finding of liability or an appeal about the remedy
awarded, e.g. the amount of money given as damages.
Court of Appeal judges usually sit as a panel of three to hear cases. On rare
occasions in important cases, there may be a panel of five. Decisions by the
Court of Appeal on points of law become precedents which lower courts must
follow.
Because the workload of the Court of Appeal is so large, High Court judges
are often used to form part of the panel. This means there may be one Lord
Justice of Appeal sitting with two High Court judges.
In law reports Court of Appeal judges are referred to as Lord Justice or Lady
Justice, but when their judgments are being quoted it is usually abbreviated to
the surname, followed by LJ, for example, Arden LJ.
Each judge in the High Court will be assigned to one of the Divisions. There are
73 judges in the Queen’s Bench Division, 17 in the Chancery Division and 18 in
the Family Division.
There are also Deputy High Court judges who sit to help with the workload.
The main function of High Court judges is to try cases. These are cases at first
instance because it is the first time the case has been heard by a court. They will
hear evidence from witnesses, decide what the law is and make the decision as to
which side has won the case. If the claim is for damages (an amount of money)
the judge decides how much should be awarded to the winning claimant. When
hearing first instance cases, judges sit on their own. In some rare cases in the
Queen’s Bench Division there may be a jury.
High Court judges also hear some appeals. These are mainly from civil cases
tried in the County Court. The judges in the Queen’s Bench Division also hear
criminal appeals from the magistrates’ courts by a special case stated method.
These are appeals on law only. When sitting to hear appeals, there will be a
panel of two or three judges.
Judges from the Queen’s Bench Division also sit in the Crown Court to hear
criminal trials. When they do this they sit with a jury. The jury decide the facts
and the judge decides the law. Where a defendant pleads guilty or is found guilty
by a jury, the judge then has to decide on the sentence.
In law reports High Court judges are referred to as Mr Justice or Mrs Justice,
but when their judgments are being quoted it is usually abbreviated to the
surname, followed by J, for example, Dobbs J.

Circuit judges sit in the County Court to hear civil cases and also in the Crown
Court to try criminal cases. In civil cases they sit on their own (it is very rare to
have a jury in a civil case in the County Court). They decide the law and the
facts. They make the decision on who has won the case. There are over 600
Circuit Judges.
In criminal cases they sit with a jury. The jury decide the facts and the judge
decides the law. Where a defendant pleads guilty or is found guilty by a jury, the
judge then has to decide on the sentence.
Internet Research
Look up law reports on the Internet. Try www.bailii.org.
TRY TO FIND:
1. A law report in which there was a female judge.
2. A report of the Court of Appeal in which one at least of the judges is only
of High Court level.
3. A report from the High Court in which the judge sitting is only a Deputy
High Court judge.
Recorders are part-time judges who are appointed for a period of five years.
They are used mainly in the Crown Court to try criminal cases, but some sit in
the County Court to help with civil cases.
District Judges sit in the County Court to deal with small claims cases (under
£5,000) and can also hear other cases for larger amounts. There are over 400
District Judges.
District Judges (magistrates’ courts) try criminal cases in the magistrates’
courts. They sit on their own and decide facts and law. When a defendant pleads
guilty or is found guilty, they also have to decide on the sentence.
They may also sit to hear family cases, but this will usually be with two lay
magistrates.
13.6 Training
The training of judges is now carried out by the Judicial College. The Judicial
College was created in 2011 by bringing together separate arrangements that had
previously existed for training judicial office-holders in the courts (the Judicial
Studies Board) and Tribunals Service (through the Tribunals Judicial Training
Group).
The Judicial College points out that there are three main elements for judicial
training. These are:
1. knowledge of substantive law, evidence and procedure
2. the acquisition and improvement of judicial skills
3. the social context within which judging occurs.
On first appointment, all new judges have to go through an induction
programme. This normally consists of a residential course of three to five days
long. Many new judges, magistrates and tribunal members will be assigned an
experienced judge to act as their mentor and support them during their first few
years. If a judge is promoted to a higher level in the judiciary, they will then
have to attend the induction course for that level.
For experienced judges continuing education is given by a mixture of
residential and non-residential seminars supplemented by e-learning. This will
include the effect of new legislation.
Social context
This involves training in human awareness, including gender, racial and
disability issues. The training explores the perceptions of unrepresented parties,
witnesses, jurors, victims and their families, and tries to make judges more
aware of other people’s viewpoints.
Comment
The attitude of the judiciary to training has changed considerably over the last 30
years. Training used to be seen as insulting to lawyers who had spent all their
working lives in the courts, building up expertise in their field. It was also seen
as a threat to judicial independence. However, the need for training is now fully
accepted. The independence of the judges is protected as all the training is
mainly done by existing judges, though they are supported by advisers and
administrators.
13.6.1 Should there be a ‘career’ judiciary?

In many continental countries becoming a judge is a career choice made by
students once they have their basic legal qualifications. They will usually not
practise as a lawyer first, but instead are trained as judges. Once they have
qualified as a judge they will sit in junior posts and then hope for promotion up
the judicial ladder. This has two distinct advantages over the system in use in
this country:
• The average age of judges is much lower, especially in the bottom ranks. In
this country a recorder will normally be in their late 30s/early 40s when
appointed, while the average age for appointment to the High Court bench
tends to be late 40s/early 50s.
• Judges have had far more training in the specific skills they need as judges.
The disadvantage of the continental system is that judges may be seen as too
closely linked to the government as they are civil servants. In this country judges
are generally considered as independent from the government. This point of
judicial independence is explored more fully at section 13.10.
13.7 Dismissal and retirement
It is important that judges should be impartial in their decisions. In particular it is
important that the government cannot force a judge to resign if that judge makes
a decision with which the government of the day disagrees. In this country
judges are reasonably secure from political interference.
13.7.1 Security of tenure of superior judges

Superior judges have security of tenure in that they cannot be dismissed by the
government. This right originated in the Act of Settlement 1701 which allowed
them to hold office whilst of good behaviour. Before 1700 the Monarch could
dismiss judges at will. The same provision is now contained in the Senior Courts
Act 1981 for High Court judges and Lords Justices of Appeal, and in the
Constitutional Reform Act 2005 for the Justices of the Supreme Court. As a
result they can only be removed by the Monarch following a petition presented
to her by both Houses of Parliament. This gives superior judges protection from
political whims and allows them to be independent in their judgments.
Activity
Read the following newspaper article and answer the questions below.
‘Do you fancy being a High Court judge? Forget the whisper over a drink at
your Inn of Court or the traditional “tap on the shoulder”. Dust off your CV and
send in an application. And then prepare yourself for an “interview” with a
selection panel. This is the new world of appointing judges…
The selection process will be undertaken by the Judicial Appointments
Commission, the independent body set up under the Constitutional Reform Act
in 2005 to take over responsibility for selecting judges from the Lord
Chancellor’s officials.
There has been advertising for High Court judges before – but they were
selected on paper. This time, the candidates will undergo a face-to-face
discussion – and that, with references and their own application form, will
combine to inform the selection.
Baroness Usha Prashar, who is chairman of the 15 lay and judicial
commissioners and 105 staff, will now be responsible for 500 to 700
appointments a year, including the High Court.
The aim she says is for a much more transparent process that will encourage a
greater diversity of candidates. “Up to now the process was perceived to be
very secretive and not very open. There was a view that it was those who you
knew who counted – and that probably deterred a lot of people who felt they
would not get a fair deal. This will be objective and transparent and hopefully
that will encourage more people to apply.’
Taken from an article by Frances Gibb The Times, 31 October 2006. © The
Questions
1. Who was responsible for appointing judges under the old system?
2. Who is responsible for appointing judges now?
3. Describe the problems with the old system of appointing judges.
4. Describe how the new system operates.
5. Explain whether you think that the new system will encourage a wider
range of applicants for judgeships.
This power to remove a superior judge has never been used for an English
judge, though it was used in 1830 to remove an Irish judge, Jonah Barrington,
who had misappropriated £700 from court funds.
There have, however, been occasions when pressure has been put on
unsatisfactory High Court judges to resign. The first of these was in 1959 when
the Lord Chancellor asked Mr Justice Hallett to resign and the second in 1998
when Mr Justice Harman resigned after criticisms by the Court of Appeal.
13.7.2 Tenure of inferior judges

These do not have the same security of tenure of office as superior judges. The
Lord Chancellor has the power to dismiss inferior judges for incapacity or
misbehaviour. A criminal conviction for dishonesty would obviously be
regarded as misbehaviour and would lead to the dismissal of the judge
concerned. This has happened in the case of Bruce Campbell, a circuit judge,
who was convicted of evading customs duty on cigarettes and whisky. It also
happened in 2014 in the case of Constance Briscoe, a recorder, who was
convicted and imprisoned for perverting the course of justice. She had lied and
then altered her witness statement regarding her involvement in a case where a
Cabinet Minister, Chris Huhne and his wife had ‘swapped driving points’.
13.7.3 Retirement
Since the Judicial Pensions and Retirement Act 1993 all judges now have to
retire at the age of 70, though there are some situations in which authorisation
can be given for a judge to continue beyond that age. Prior to this Act judges in
the High Court and above could remain sitting as judges until they were 75. All
inferior judges also now retire at 70.
13.8 Composition of the judiciary
One of the main criticisms of the bench is that it is dominated by elderly, white,
upper class males. There are few women judges and even fewer judges from
ethnic minorities in the upper ranks of the judiciary. Women and ethnic
minorities who are appointed tend to be in the lower ranks of the judiciary. It is
unusual for any judge to be appointed under the age of 40 with superior judges
usually being well above this age.
13.8.1 Women in the judiciary

The number of women in judicial posts is small, although there has been an
improvement in recent years.
During the 1990s there was an increase in the number of women appointed to
the High Court. Before 1992 all women judges in the High Court were appointed
to the Family Division. However, the first woman judge in the Queen’s Bench
Division was appointed in 1992 and the first in the Chancery Division in 1993.
In 2014 there were 21 female judges in the High Court out of a total of over 108
judges.
The first woman in the Court of Appeal was appointed in 1988. It was not
until 1999 that a second woman was appointed to the Court of Appeal, and a
third in 2000. In February 2001 the first all-female Court of Appeal panel sat.
The first, and so far only, woman judge in the House of Lords (now Supreme
Court) was appointed in 2004. In 2014 there were eight female judges in the
Court of Appeal and none in the Supreme Court.
Lower down the judicial ladder there are slightly more women being
appointed than in the past. In 2014, 20 per cent of Circuit Judges and 17 per cent
of Recorders were female. The highest percentages of women were for District
Judges where about a third are female.
13.8.2 Ethnic minorities

In 2004 the first ethnic minority judge (mixed race) was appointed to the High
Court. By 2012, there were three ethnic minority judges in the High Court.
However, there were no ethnic minority judges in the Court of Appeal or
Supreme Court.
Internet Research
On the internet look up the judicial website www.judiciary.gov.uk and look at
the section ‘About the judiciary’.
Choose any two judges and look at their biographies. Find out the following
matters:
(a) Which school did they go to?
(b) At which university did they get their degree?
(c) When did they first become a judge?
(d) What was their first judicial post?
(e) When were they appointed to their present position?
Now go to Statistics on the same site and:
1. Find out how many women judges there are in the Court of Appeal.
2. Find out how many ethnic minority judges there are in the High Court.
At the lower levels, ethnic minorities are better represented. In 2014, 2.6 per
cent of Circuit Judges and 7.5 per cent of Recorders were from a black or Asian
ethnic minority. These percentages have improved considerably over the past
few years. This suggests that the present system of appointing judges is
gradually bringing greater diversity to the judiciary.
13.8.3 Educational and social background

At the higher levels judges tend to come from the upper levels of society, with
many having been educated at public school and nearly all attending Oxford or
Cambridge University.
Judges, especially superior judges, will have spent at least 20 years working as
barristers and mixing with a small group of like-minded people. As a result
judges are seen as out of touch with society. Occasionally the media report
actions or comments which appear to support this view, for example where a
judge said of an eight-year old rape victim that she ‘was no angel’. Since 1995
training in human awareness has been given to prevent this type of offensive
remark. Despite this there are still some occasions when judges show a lack of
awareness. For example, in 2015 Judge Joanna Greenberg in a case where a 44
year-old teacher was charged with of two counts of sexual activity with a child
by a person in a position of trust, said of the victim: ‘Her friends described her,
accurately in my view, as stalking you … There is no evidence you encouraged
her in any way. There is no evidence you groomed her. If anything it was she
who groomed you. You gave way to temptation…’. This caused a media storm
and the judge at the time of writing is under investigation and may disciplined or
even removed from office.
Lord Taylor, a former Lord Chief Justice and who was one of the few senior
judges who had attended a state school, pointed out that judges do live in the real
world and do ordinary things like shopping in supermarkets.
13.9 The doctrine of the separation of powers
The theory of separation of powers was first put forward by Montesquieu, a
French political theorist, in the eighteenth century. The theory states that there
are three primary functions of the state and that the only way to safeguard the
liberty of citizens is by keeping these three functions separate. These functions
are:
• Legislative;
• Executive;
• Judiciary.
As the power of each is exercised by independent and separate bodies, each can
keep a check on the others thus limiting the amount of power wielded by any
one group. Ideally this theory requires that individuals should not be members of
more than one ‘arm of the state’.
Some countries, for example the United States of America, have a written
constitution which embodies this theory. In the United Kingdom we have no
such written constitution, but even so the three organs of State are roughly
separated. However, there is some overlap, especially in the fact that the Lord
Chancellor is involved in all three functions of the state. However, the Lord
Chancellor’s role in relation to the judiciary is now much reduced and is being
reduced further by the Crime and Courts Act 2013.
The three arms of the State identified by Montesquieu are:
1. The legislature
This is the law-making arm of the State and in our system this is Parliament.
2. The executive or the body administering the law. Under the British political
system this is the government of the day which forms the Cabinet.
3. The judiciary
This is the judges and they apply the law.
There is an overlap between the executive and the legislature in that the
ministers forming the government also sit in Parliament and are active in the
law-making process. Since the Lord Chancellor’s powers over judges has been
reduced, there is very little overlap between the judiciary and the other two arms
of the state.
This is important because it allows the judiciary to act as a check and ensure
that the executive does not overstep its constitutional powers. This is in
accordance with Montesquieu’s theory. However, it is open to debate whether
the judiciary is truly independent from the other organs of government.
13.10 Independence of the judiciary
As already stated an independent judiciary is seen as important in protecting the
liberty of the individual from abuse of power by the executive. Judges in the
English system can be thought of as being independent in a number of ways.
13.10.1 Independence from the legislature

Judges generally are not involved in the law-making functions of Parliament.
Full-time judges are not allowed to be members of the House of Commons,
although the rule is not as strict for part-time judges so that recorders and
assistant recorders can be Members of Parliament. There used to be judges in the
House of Lords when the Appellate Committee of the House of Lords was the
final court of appeal. The main reason for the creation of the Supreme Court in
2009 was to separate the judiciary from the legislature.
13.10.2 Independence from the executive

Superior judges cannot be dismissed by the government and in this way they can
truly be said to be independent of the government. They can make decisions
which may displease the government without the threat of dismissal. The extent
to which judges are prepared to challenge or support the government is
considered at section 13.10.4
Test Yourself
1. Give the types of superior judge.
2. Give the types of inferior judge.
3. What qualification(s) does a High Court judge need?
4. Which body makes the selection of potential judges?
5. How does that body try to encourage applications from a wide range of
lawyers?
6. What is the role of the judges in the Supreme Court?
7. Which body carries out the training of judges?
8. How can a superior judge be dismissed?
9. How can an inferior judge be dismissed?
10. Briefly explain the theory of the separation of powers.
Judicial independence is now guaranteed under s 3 of the Constitutional
Reform Act 2005. This states that the Lord Chancellor, other Ministers in the
government and anyone with responsibility for matters relating to the judiciary
or the administration of justice must uphold the continued independence of the
judiciary.
The section also specifically states that the Lord Chancellor and other
Ministers must not seek to influence particular judicial decisions.
Ministry of Justice
In 2007 a Ministry of Justice was created to bring together all the key elements
of the justice system under one ministry. Previously two ministries, the
Department for Constitutional Affairs and the Home Office, had had
responsibility for separate parts of the justice system.
The Ministry of Justice has responsibility for:
• the civil courts;
• the criminal courts;
• the judiciary;
• legal aid and funding of cases;
• prisons;
• the probation service;
• sentencing.
There were fears that the budget of the new department would not be sufficient
for all this and that prisons would take a large part of the budget. This could
result in there not being enough money for the courts service. It appears that the
main area where the budget has been cut is legal aid.
Judges were also worried about the effect of the change on their
independence. The Minister for Justice is also the Lord Chancellor. As the
Minister for Justice is a key role in the executive, it was difficult to see how he
could also maintain the independence of the judiciary. This problem has been to
some extent overcome by removing most of the Lord Chancellor’s powers of
appointment of judges (see 13.3.2)
More recently there has been concern over the attempts by the Government to
limit judicial discretion in judicial review cases in the Criminal Justice and
Courts Act 2015.
13.10.3 Freedom from pressure
There are several ways in which judges are protected from outside pressure
when exercising their judicial functions.
1. They are given a certain degree of financial independence, as judicial salaries
are paid out of the consolidated fund so that payment is made without the
need for Parliament’s authorisation. This does not completely protect them
from parliamentary interference with the terms on which they hold office. As
already seen, changes can be made to retirement ages and qualifying periods
for pensions.
2. Judges have immunity from being sued for actions taken or decisions made
in the course of their judicial duties. This was confirmed in Sirros v Moore
(1975) and is a key factor in ensuring judicial independence in decision-
making.
3. As already noted, the security of tenure of the superior judges protects them
from the threat of removal.
13.10.4 Independence from political bias

This is the area where there is most dispute over how independent the judiciary
are. Writers, such as Professor Griffith, have pointed out that judges are too pro-
establishment and conservative with a small ‘c’.
Pro-government decisions
Griffith cited cases such as the ‘GCHQ case’ in showing that judges tend to
support the establishment. This case, Council of Civil Service Unions v Minister
for the Civil Service (1984), concerned the minister for the Conservative
Government withdrawing the right to trade union membership from civil
servants working at the intelligence headquarters in Cheltenham. The House of
Lords upheld the minister’s right, and the decision was seen as anti-trade union.
Anti-government decisions
There is, however, evidence that judges are not as pro-establishment as
sometimes thought. Lord Taylor, when giving the Dimbleby Lecture in 1992,
pointed out that this could be seen in the case of the Greenham Common women
who had camped by an RAF base in protest against nuclear missiles. In DPP v
Hutchinson (1990) some of the women were prosecuted under a by-law for
being on Ministry of Defence property unlawfully. The case went all the way to
the House of Lords which ruled in the women’s favour, holding that the Minister
had exceeded his powers in framing the by-law so as to prevent access to
common land.
Human rights
More recently, the courts have upheld challenges by asylum seekers and by
those held under the Anti-Terrorism, Crime and Security Act 2001. In R (on the
application of Q) v Secretary of State for the Home Department (2003) Collins J
in the High Court declared that the Home Secretary’s power to refuse to provide
assistance to asylum seekers who had not immediately, on their entry to this
country, declared their intention to claim asylum was unlawful. The Court of
Appeal upheld this decision, although they did suggest how the relevant Act
could be made compatible with human rights.
In A and another v Secretary of State for the Home Department (2004) the
House of Lords declared that the Anti-Terrorism, Crime and Security Act 2001
was incompatible with the Convention. The Act allowed foreign nationals to be
detained indefinitely without trial where there was suspicion that they were
involved in terrorist activity. The Lords held that this breached both Article 5
(the right to liberty) and Article 14 (no discrimination on basis of nationality).
This decision forced the government to change the law.
With the Human Rights Act 1998 incorporating the European Convention on
Human Rights, judges can declare that an Act is incompatible with the
Convention. This puts pressure on the government to change the law. The first
case in which this happened was H v Mental Health Review Tribunal (2001).
The courts also have a duty to interpret laws in a way which is compatible with
the Convention.
So, while it is true that judges are still predominantly white, male, middle-
class and elderly, it is possible to argue that they are no longer so out of touch
with the ‘real world’, and that they are increasingly prepared to challenge the
establishment.
13.10.5 Independence from case

Judges must not try any case where they have any interest in the issue involved.
The Pinochet case in 1998 reinforced this rule. In that case the House of Lords
judges heard an appeal by the former head of the state of Chile. There was a
claim to extradite him to Chile to face possible trial for crimes involving torture
and deaths which had occurred there while he was head of state.
Amnesty International, the human rights movement, had been granted leave to
participate in the case. After the House of Lords ruled that Pinochet could be
extradited, it was discovered that one of the judges, Lord Hoffmann, was an
unpaid director of Amnesty International Charitable Trust. Pinochet’s lawyers
asked for the decision to be set aside and to have the case re-heard by a
completely independent panel of judges.
The Law Lords decided that their original decision could not be allowed to
stand. Judges had to be seen to be completely unbiased. The fact that Lord
Hoffmann was connected with Amnesty meant that he might be considered not
to be completely impartial. The case was retried with a new panel of judges.
Human rights
The test for bias has been influenced by the European Convention on Human
Rights. In Re Medicaments (No 2), Director General of Fair Trading v
Proprietary Association of Great Britain (2001) the Court of Appeal followed
decisions of the European Court of Human Rights. The court said that the test
was an objective one of whether the circumstances were such as to lead a fair-
minded and informed observer to conclude that there was a real possibility of
bias.
(a) Describe how judges are trained.
(10 marks)
(b) Explain how judges can be dismissed.
(10 marks)
(c) Discuss why it is important that it should be difficult to dismiss a judge.
Examiner’s tip
Make sure you are clear on the differences between superior judges and inferior
judges as this affects their qualifications, training, role and dismissal. Another
key area is the independence of the judiciary. In part (c) above, the difficulty of
dismissing judges is an important element of their independence.
Chapter 14
Introduction to Criminal Law
I n most crimes there are two elements which must be proved to show that the
defendant is guilty. These two elements are known as the actus reus and the
mens rea. The actus reus is the physical element of the crime, i.e. what the
defendant has done or not done. The mens rea is the mental element of the
crime, i.e. what the defendant is intending or thinking or failing to think about
when the crime is committed.
Each crime has its own actus reus and mens rea. For example, in theft the
defendant must ‘appropriate’ property belonging to another for the actus reus;
and do this dishonestly and intend to permanently deprive the other of it for the
mens rea. For battery the actus reus is applying unlawful force to another
person. This can be any act such as punching, kicking, stabbing or hitting with
a weapon. It can be an indirect act such as setting up a booby trap, so that when
the trap is sprung something hits the victim. In some circumstances it can even
be a failure to act. The mens rea for battery is intending to apply the force or
being reckless as to whether force is applied.
Although each crime has its own actus reus and mens rea there are certain
general rules which apply and these are explained in the rest of this chapter.
14.1 Actus reus
As already stated the actus reus is the physical element of a crime. It can be:
• an act, or
• a failure to act (an omission), or
• a state of affairs.
For some crimes the actus reus must have an act or omission and also result in a
consequence. This can be seen in an assault occasioning actual bodily harm (s 47
Offences Against the Person Act 1861). There must be the threat or the use of
force and there must be a consequence of ‘actual bodily harm’, in other words
some injury to the victim. This could be just a bruise or it could be a broken nose
or broken arm. It could even be psychiatric injury.
14.1.1 Voluntary nature of actus reus

The act or omission must be voluntary on the part of the defendant. If the
defendant has no control over his actions then he has not committed the actus
reus. In Hill v Baxter (1958) the court gave examples where a driver of a vehicle
could not be said to be doing the act of driving voluntarily. These included
where a driver lost control of his vehicle because he was stung by a swarm of
bees, was struck on the head by a stone or had a heart attack while driving.
Involuntary acts and assaults

Involuntary conduct can occur in assaults. One example is where one person
pushes another causing them to bump into the victim. In this situation the act of
the person who has been pushed is involuntary. They will not be guilty of any
assault. However, it is possible (depending on whether they have the necessary
mens rea) that the person who did the pushing will be guilty of assaulting the
person they pushed and also of assaulting the person who was bumped into.
Another example of an involuntary act is where the defendant hits another
person due to a reflex action or a muscle spasm.
These examples show that the criminal law is concerned with fault on the part
of the defendant. Where there is an absence of fault then the defendant is usually
not liable.
State of affairs cases

However, there are some rare instances in which the defendant has been
convicted even though he or she did not act voluntarily. These situations involve
what are known as state of affairs cases. In Larsonneur (1933) the defendant had
been ordered to leave the United Kingdom. She decided to go to Eire, but the
Irish police deported her and took her back to the UK. She did not wish to go
back and was certainly not doing this voluntarily. When she landed in the UK
she was immediately arrested and charged with ‘being an alien to whom leave to
land in the UK had been refused, was found in the UK’. She was convicted
because she was an alien who had been refused leave to land and she was found
in the UK. It did not matter that she had been brought back by the Irish police
against her will (see also section 14.4 on strict liability).
14.1.2 Omissions as actus reus

The normal rule is that an omission cannot make a person guilty of an offence.
This was explained by Stephen J, a nineteenth-century judge, in the following
way: ‘A sees B drowning and is able to save him by holding out his hand. A
abstains from doing so in order that B may be drowned. A has committed no
offence’.
Exceptions to the rule

There are exceptions to the rule that an omission cannot make a person guilty of
an offence. In some cases it is possible for a failure to act (an omission) to be the
actus reus. An Act of Parliament can create liability for an omission. Examples
include the offences of failing to report a road traffic accident and of failing to
provide a specimen of breath.
For common law crimes an omission is only sufficient for the actus reus
where there is a duty to act. There are five ways in which such a duty exists.
Activity
Read the following scenario and discuss whether you think Zoe should be
guilty of an offence.
Scenario
Zoe is sitting by a swimming pool in the grounds of a hotel. Jason is swimming
in the pool. He is the only person in the water and there are no other people
near the pool. Jason gets out of the pool and, while walking around it, slips and
falls into the water. He is knocked unconscious. Zoe sees this happen but she
does nothing. Jason drowns.
Would it make any difference to your answer if:
(a) Zoe could not swim.
(b) Zoe was a qualified lifeguard.
(c) Jason was aged 3.
(d) Jason was aged 3 and Zoe was his mother.
1. A contractual duty
In Pittwood (1902) a railway crossing keeper omitted to shut the gates so that
a person crossing the line was struck and killed by a train. The keeper was
guilty of manslaughter. A more modern example would be of a lifeguard at a
beach who leaves his post unattended. His failure to do his duty could make
him guilty of an offence if a swimmer was injured.
2. A duty because of a relationship (usually parent and child)
In Gibbins and Proctor (1918) a child’s father and his mistress failed to feed
the child, so that it died of starvation; they were guilty of murder.
3. A duty which has been taken on voluntarily
In Stone and Dobinson (1977) Stone’s elderly sister came to live with the
defendants. She became ill and unable to care for herself. She died. The two
defendants were convicted of manslaughter through failing to care for her or
summon help when she became helpless.
4. A duty through one’s official position
In Dytham (1979) a police officer witnessed a violent attack on the victim,
but took no steps to intervene or summon help; instead he drove away from
the scene. The officer was guilty of wilfully and without reasonable excuse
neglecting to perform his duty.
5. A duty which arises because the defendant has set in motion a chain of
events
In Miller (1983) a squatter accidentally started a fire. When he realised this
he left the room and went to sleep in another room. He did not attempt to put
out the fire or summon help. He was guilty of arson.
Doctors’ duties
If discontinuance of medical treatment is in the best interests of the patient then
this is not an omission which can form the actus reus. This was decided in
Airedale NHS Trust v Bland (1993) in which the NHS Trust was given
permission to stop artificial feeding of a man who had been in a persistent
vegetative state (PVS) for over three years.
14.1.3 Causation
Where a consequence must be proved, then the prosecution has to show that:
• the defendant’s conduct was the factual cause of that consequence, and
• the defendant’s conduct was in law the cause of that consequence, and
• there was no intervening act which broke the chain of causation.
Factual cause
The defendant can only be guilty if the consequence would not have happened
‘but for’ the defendant’s conduct. In Pagett (1983) the defendant used his
pregnant girlfriend as a shield while he shot at armed policemen. The police
fired back and the girlfriend was killed. Pagett was convicted of her
manslaughter. She would not have died ‘but for’ him using her as a shield in the
shoot out.
The opposite situation was seen in White (1910) where the defendant put
cyanide in his mother’s drink intending to kill her. She died of a heart attack
before she could drink it. The defendant did not cause her death; he was not
guilty of murder, though he was guilty of attempted murder.
Cause in law
There may be more than one person whose act may have contributed to the
consequence. The defendant can be guilty even though his conduct was not the
only cause of the consequence. The rule is that the defendant’s conduct must be
more than a ‘minimal’ cause, but it need not be a substantial cause.
The defendant must also take the victim as he finds him. This is known as the
‘thin skull rule’. It means that if the victim has something unusual about his
physical or mental state which makes an injury more serious, then the defendant
is liable for the more serious injury. So this means that if the victim has an
unusually thin skull which means that a blow to his head gives him a serious
injury, then the defendant is liable for that injury. This is so even though that
blow would have only caused bruising in a ‘normal’ person.
An example is the case of Blaue (1975) where a young woman was stabbed by
the defendant. She was told she needed a blood transfusion to save her life but
she refused to have one as she was a Jehovah’s witness and her religion forbade
blood transfusions. She died and the defendant was convicted of her murder. The
fact that she was a Jehovah’s witness made the wound fatal, but the defendant
was still guilty because he had to take his victim as he found her.
Chain of causation
There must be a direct link from the defendant’s conduct to the consequence.
This is known as the chain of causation. In some situations something else
happens after the act (or omission) by the defendant which, if it is sufficiently
separate from the defendant’s actions, may break the chain of causation. The
extra happening is called an intervening act.
An example is where the defendant has injured the victim, who needs to be
taken to hospital. On the way the ambulance is involved in a crash and the victim
receives serious injuries from which he dies. Under the ‘but for’ test it could be
argued that the victim would not have been in the ambulance and involved in the
accident but for the injuries caused by the defendant’s conduct. However, the
accident is such a major intervening act that the defendant would not be liable
for the death of the victim. The chain of causation has been broken as shown in
Figure 14.3.
The chain of causation can be broken by:
• an act of a third party;
• the victim’s own act;
• a natural but unpredictable event.
In order to break the chain of causation so that the defendant is not responsible
for the consequence, the intervening act must be both sufficiently independent of
the defendant’s conduct and sufficiently serious enough.
Medical treatment
Medical treatment is unlikely to break the chain of causation unless it is so
independent of the defendant’s acts and ‘in itself so potent in causing death’ that
the defendant’s acts are insignificant. The following three cases show this.
• Smith (1959): Two soldiers had a fight and one was stabbed in the lung by the
other. The victim was carried to a medical centre by other soldiers, but was
dropped on the way. At the medical centre the staff gave him artificial
respiration by pressing on his chest. This made the injury worse and he died.
Had the proper treatment been given, his chance of recovering would have
been as high as 75 per cent. Despite this, the original attacker was still guilty
of his murder. This was because the stab wound was the overwhelming cause
of the death.
• Cheshire (1991): The defendant shot the victim in the thigh and the stomach.
The victim had problems breathing and was given a tracheotomy (i.e. a tube
was inserted in his throat to help him breath). The victim died from rare
complications of the tracheotomy, which were not spotted by the doctors. By
the time he died the original wounds were no longer life-threatening. The
defendant was still held to be liable for his death.
• Jordan (1956): The victim had been stabbed in the stomach. He was treated in
hospital and the wounds were healing well. He was given an antibiotic but
suffered an allergic reaction to it. One doctor stopped the use of the antibiotic
but the next day another doctor ordered that a large dose of it be given. The
victim died from the allergic reaction to the drug. In this case the actions of the
doctor were held to be an intervening act which caused the death. The
defendant was not guilty of murder.
Switching off a life support machine when a patient is brain dead does not break
the chain of causation. This was decided in Malcherek (1981).
Victim’s own act

If the defendant causes the victim to react in a foreseeable way, then any injury
to the victim will have been caused by the defendant. This occurred in Roberts
(1971) where a girl jumped from a car in order to escape from sexual advances.
The car was travelling at between 20 and 40 mph and the girl was injured
through jumping from the car. The defendant was held to be liable for her
injuries.
However, if the victim’s reaction is unreasonable, then this may break the
chain of causation. In Williams (1992) a hitch-hiker jumped from Williams’ car
and died from head injuries caused by his head hitting the road. The car was
travelling at about 30 mph. The prosecution alleged that there had been an
attempt to steal the victim’s wallet and that was the reason for his jumping from
the car. The Court of Appeal said that the victim’s act had to be foreseeable and
also had to be in proportion to the threat. The question to be asked was whether
the victim’s conduct was:
within the ambit of reasonableness and not so daft as to make his own voluntary
act one which amounted to a novus actus interveniens (an intervening act) and
consequently broke the chain of causation.
Activity
Read the following situations and explain whether causation would be proved.
1. Adam has been threatened by Ben in the past. When Adam sees Ben
approaching him in the street, Adam runs across the road without looking
and is knocked down and injured by a car. Would Ben be liable for his
injuries?
2. Toyah stabs Steve in the arm. His injury is not serious but he needs stitches,
so a neighbour takes Steve to hospital in his car. On the way to the hospital
the car crashes and Steve sustains serious head injuries. Would Toyah be
liable for the head injuries?
3. Lewis has broken into Katie’s third floor flat. He threatens to rape her and
in order to escape from him she jumps from the window and is seriously
injured. Would Lewis be liable for her injuries?
4. Ross stabs Paul in the chest. Paul is taken to hospital where he is given a
blood transfusion. Unfortunately, he is given the wrong blood and he dies.
Would Ross be liable for Paul’s death?
14.2 Mens rea
Mens rea is the mental element of an offence. Each offence has its own mens rea
or mental element. The only exceptions are offences of strict liability. These
offences do not require proof of mental element in respect of at least part of the
actus reus.
There are different levels of mens rea. To be guilty the accused must have at
least the minimum level of mens rea required by the offence.
The highest level of mens rea is intention. This is also referred to as specific
intention. The other main types of mens rea are recklessness and negligence.
14.2.1 Intention
In the case of Mohan (1975) the court defined intention as ‘a decision to bring
about, in so far as it lies within the accused’s power [the prohibited
consequence], no matter whether the accused desired that consequence of his act
or not’.
This makes it clear that the defendant’s motive or reason for doing the act is
not relevant. The important point is that the defendant decided to bring about the
prohibited consequence.
This can be illustrated by looking at the offence set out in s 18 of the Offences
Against the Person Act 1861. For this offence the defendant must wound or
cause grievous bodily harm. The mens rea is that the defendant must intend to
cause grievous bodily harm or intend to resist arrest or prevent the apprehension
or detainer of another person. If the defendant did not intend one of these then he
or she cannot be guilty of this offence. For example, if a person opens a door
very suddenly and hits and seriously injures someone on the other side of the
door that they did not know was there, then they do not intend to ‘bring about’
the prohibited consequence.
In most cases, the defendant’s intention is clear. For example, where D
deliberately punches another person, then he has an intention to use unlawful
force on the victim. This is also known as direct intent.
Foresight of consequences
The main problem with proving intention is in cases where the defendant’s main
aim was not the prohibited consequences, but, in achieving the aim, the
defendant foresaw that he would also cause those consequences. This is referred
to as ‘foresight of consequences’.
The first rule about foresight of consequences is that it not the same as
intention but can be evidence of intention. A jury may use this evidence to find
that the defendant had intention, but only where the harm caused as a result of
the defendant’s actions was a virtual certainty and the defendant realised that this
was so.
This was explained in Woollin (1998) where the defendant threw his three-
month-old baby towards his pram which was against a wall some three or four
feet away. The baby suffered head injuries and died. The court ruled that the
consequence must be a virtual certainty and the defendant must realise this.
Where the jury were satisfied on both these two points, then there was evidence
on which the jury could find intention.
Another example is where the defendant decides to set fire to his shop in order
to claim insurance. His main aim is damaging the shop and getting the insurance.
Unfortunately he starts the fire when staff are working in the shop and some of
them are seriously injured. Has the defendant the intention for a section 18
offence of causing grievous bodily harm? Only if serious injury was a virtual
certainty and he realised this. This is also known as oblique or indirect intent and
is shown in Figure 14.5.
Activity
In each of the following situations explain whether the defendant has the
required intention for a section 18 offence (Offences Against the Person Act
1861).
1. Kyle dislikes Vince and decides to attack him. Kyle uses an iron bar to hit
Vince on the head. Vince suffers serious head injuries.
2. Scott throws a large stone into a river to see how much of splash it will
make. Jake is swimming in the river and is hit by the stone and seriously
hurt.
3. Diane throws a large stone from a bridge onto the motorway below. It is
rush hour and there is a lot of traffic on the motorway. The stone smashes
through the windscreen of Ashley’s car and causes him serious injury.
14.2.2 Recklessness
This is a lower level of mens rea than intention. Recklessness is the taking of an
unjustifiable risk. It has to be proved that the defendant realised the risk, but
decided to take it.
Recklessness is the minimum level of mens rea required by all assaults except
for the section 18 offence discussed in section 14.2.1. Don’t forget that if the
defendant has the higher level of intention he will, of course, be guilty.
For example, if the defendant intends to punch the victim in the face, that
defendant has the higher level of intention and is guilty of a battery (see section
15.1.2). It is only when the defendant does not have the higher level that
recklessness has to be considered.
Cunningham
The explanation of recklessness comes from the case of Cunningham (1957). In
Cunningham the defendant tore a gas meter from the wall of an empty house in
order to steal the money in it. This caused gas to seep into the house next door,
where a woman was affected by it. Cunningham was charged with an offence
against s 23 of the Offences Against the Person Act 1861 of maliciously
administering a noxious thing. It was held that he was not guilty since he did not
realise the risk of gas escaping into the adjacent house. He had not intended to
cause the harm, nor had he taken a risk he knew about.
The offence involved in Cunningham uses the word ‘maliciously’ to indicate
the mens rea required. The court held this word to mean that to have the
necessary mens rea the defendant must either intend the consequence or realise
that there was a risk of the consequence happening and decide to take that risk.
The case of Savage (1991) confirmed that the same principle applies to all
offences where the definition in an Act of Parliament uses the word
‘maliciously’. The Law Lords said that ‘maliciously’ was a term of legal art. In
other words it has a special meaning when used in an Act of Parliament, not its
normal dictionary definition. It means doing something intentionally or being
reckless about the risk involved.
14.2.3 Transferred malice

This is the principle that the defendant can be guilty if he intended to commit a
similar crime but against a different victim. An example is aiming a blow at one
person with the necessary mens rea for an assault causing actual bodily harm but
actually hitting another person. This occurred in Latimer (1886) where the
defendant aimed a blow with a belt at a man in a pub after that man had attacked
him. The belt bounced off the man and struck a woman in the face. Latimer was
guilty of an assault against the woman, although he had not meant to hit her.
However, where the mens rea is for a completely different type of offence
then the defendant may not be guilty. This was the situation in Pembliton (1874)
where the defendant threw a stone intending it to hit people with whom he had
been fighting. The stone hit and broke a window. The intention to hit people
could not be transferred to the window.
General malice
In some cases the defendant may not have a specific victim in mind, for
example, a terrorist who plants a bomb in a pub intending to kill or injure anyone
who happens to be there. In this case the defendant’s mens rea is held to apply to
the actual victim.
14.3 Coincidence of actus reus and mens rea
In order for an offence to take place, both the actus reus and the mens rea must
be present at the same time. For example, if you decide to go round to your next
door neighbour intending to assault them, but when you get to their house you
change your mind and do not actually assault them, you cannot be guilty of an
assault even though you had the mens rea. This is also known as the
‘contemporaneity’ rule.
If, two hours later, you are driving your car out of your driveway and knock
down your neighbour because you did not see them, you have now done what
could be the actus reus for an assault. However, you are not guilty of any
criminal offence since at the moment you hit your neighbour you did not have
the necessary mens rea. The mens rea and the actus reus were not present at the
same time. (Although there is no crime, there may be the tort of negligence; see
Chapter 18.)
Continuing act
Where there is a continuing act for the actus reus and, at some point while that
act is still going on the defendant has the necessary mens rea, then the two do
coincide and the defendant will be guilty.
Activity
Explain in the following situations whether there is actus reus and mens rea
present. (Do not forget that there may be transferred malice.)
1. Bart has had an argument with Cara. He aims a punch at her head, but Cara
dodges out of the way and Bart hits Homer who was standing behind Cara.
2. Desmond is sitting in a lecture. He pushes his chair back, but does not
realise that one of the chair legs is pressing on to Mark’s foot. Mark asks
Desmond to move the chair, but Desmond thinks what has happened is
funny and does not move but sits there laughing for several minutes.
3. Sara throws a stone at a cat. Her aim is very poor and the stone hits Marge
who is standing several feet away.
This is illustrated by the case of Fagan v Metropolitan Police Commissioner

(1968). Fagan was told by a police officer to park by a kerb. In doing this Fagan
drove on to the policeman’s foot without realising he had done so. Initially
Fagan refused to move the car. The policeman pointed out what had happened
and asked Fagan several times to move the car off his foot. Eventually Fagan did
move the car.
The Court of Appeal held that once Fagan knew the car was on the police
officer’s foot he had the required mens rea. As the actus reus (the car putting
force on the foot) was still continuing the two elements were then present
together.
14.4 Strict liability
Offences of strict liability are those where the defendant is guilty because he or
she did the actus reus. There is no need to prove any mens rea. This can seem
unfair since the defendant will be guilty even though they had no intention of
committing any offence.
An extreme situation is the case of Larsonneur (1933) which we have already
considered in section 14.1.1. The defendant had been ordered to leave the United
Kingdom. She decided to go to Eire, but the Irish police deported her and took
her back to the UK. She did not want to return to the UK. She had no mens rea.
Another example of a strict liability offence is Harrow London Borough
Council v Shah (1999). The defendants owned a newsagent’s business where
lottery tickets were sold. They had told their staff not to sell tickets to anyone
under 16 years old and had also put up notices in the shop stating this. They told
their staff that if there was any doubt about a customer’s age, the staff should ask
for proof of age, and if still in doubt should refer the matter to the defendants.
One of their staff sold a lottery ticket to a 13-year-old boy without asking for
proof of age. The salesman mistakenly believed the boy was over 16 years old.
The defendants were found guilty of selling a lottery ticket to a person under
16. The offence did not require any mens rea. The act of selling the ticket to
someone who was actually under 16 was enough to make them guilty, even
though they had done their best to prevent this happening in their shop.
14.4.1 Which offences are strict liability?

The judges often have difficulty in deciding whether an offence is one of strict
liability or not. The first rule is that where an Act of Parliament includes words
indicating mens rea (e.g. knowingly, intentionally, maliciously or permitting),
the offence requires mens rea and is not one of strict liability. However, if an
Act of Parliament makes it clear that mens rea is not required, the offence will
be one of strict liability.
The presumption of mens rea

The problem arises where an Act of Parliament does not include any words
indicating mens rea. In this situation the judges will start by presuming that all
criminal offences require mens rea. This was made clear in the case of Sweet v
Parsley (1970). In this case the defendant rented a farmhouse and let it out to
students. The police found cannabis at the farmhouse and the defendant was
charged with ‘being concerned in the management of premises used for the
purpose of smoking cannabis resin’. The defendant did not know that cannabis
was being smoked there. It was decided that she was not guilty as the court
presumed that the offence required mens rea.
Although judges start by presuming that an offence has to have the element of
mens rea, it is possible for them to decide that an offence is one of strict liability.
The only situation in which the presumption can be displaced is usually where
the statute involves an issue of social concern. This most often occurs in
offences which are regulatory in nature as these are not thought of as being truly
criminal matters. This includes offences such as breaches of regulations for
selling food or alcohol or lottery tickets (as in Harrow London Borough Council
v Shah (1999)) or causing pollution.
Test Yourself
1. Briefly explain what is meant by actus reus.
2. Give three situations where an omission can be sufficient for the actus reus.
3. Explain the ‘but for’ test in causation.
4. Give two examples of events that can break the chain of causation.
5. Give a case in which it was held that the chain of causation was not broken
by medical treatment.
6. What is meant by mens rea?
7. What is meant by ‘foresight of consequences’?
8. In criminal law when is a defendant reckless?
9. What is meant by an offence of strict liability?
10. Explain a justification for having strict liability offences.
Where an offence is ‘truly criminal’ such as being involved with drugs as in

Sweet v Parsley or a sex offence as in B v DPP, then it is unlikely that the judges
will decide it is a strict liability offence. This is particularly so where it could
lead to the defendant being sent to prison.
14.4.2 Justification for strict liability

The main justification is that strict liability offences help protect society by
promoting greater care over matters of public safety. It encourages higher
standards in such matters as hygiene in processing and selling food. It makes
sure that businesses are run properly.
On the practical side, it is easier to enforce as there is no need to prove mens
rea.
It also saves court time as people are more likely to plead guilty. The fact that
the defendant is not blameworthy can be taken into account when sentencing.
14.4.3 Arguments against strict liability

The main argument against strict liability is that it makes people who are not
blameworthy guilty. Even those who have taken all possible care will be found
guilty and can be punished. This happened in the case of Harrow London
Borough Council v Shah (1999) where the defendants were guilty even though
they had done their best to prevent sales of lottery tickets to anyone under the
age of 16.
Vlad was driving his car, which was fitted with foreign registration plates. He
was lost and drove down a dead-end road, where he noticed Wayne. As Vlad
started to get out of his car to ask directions, Wayne ran towards the car
shouting, “We don’t want your sort here!” Wayne then tried to slam the car
door shut and, in doing so, crushed Vlad’s fingers.
Vlad drove off, turned the car round and then accelerated hard towards Wayne
who was still standing in the road. Frightened, Wayne jumped out of the way,
just as Vlad swerved to avoid him. Wayne did not suffer any injury.
Later Vlad went to hospital where X-rays showed that he had three badly
broken fingers. As a result, Vlad now has a permanent disability.
Actus reus usually depends on proof of an act or omission, causation and a
criminal consequence. Mens rea is also required for criminal liability, but there
is an exception where the offence is one of strict liability.
(a) Explain, using three examples, how an omission can be the basis of the
actus reus of a crime.
(7 marks)
(b) Briefly explain the meaning of, and the reasons for, strict liability in
criminal offences.
(7 marks)
Refer to the scenario when answering the remaining questions in this
section.
(c) Discuss the criminal liability of Wayne with respect to the injuries suffered
by Vlad.
(d) Discuss the criminal liability of Vlad for the incident when he drove the car
at Wayne.
(8 marks)
(e) Outline the procedure, up to the start of the trial, which would be followed
if Vlad were charged with a summary offence.
(5 marks)
(f) Assuming that wayne had been convicted of an offence, discuss the factors
the court would consider before deciding on sentencing.
(7 marks)
AQA Law Unit 2 January 2013
Note. You will be able to answer questions (a) and (b) on the knowledge set out
in this chapter and the preceding chapters. You will also need to read Chapter
15 for parts (c) and (d) and Chapter 16 for part (e) and Chapter 17 for part (f).
Examiner’s tip
Parts (a) and (b) of the question on criminal law in Unit 2 usually ask for
knowledge of the concepts and terms used in criminal law. These are explained
in this chapter. So make sure you know and understand the material in this
chapter, including being able to use cases and/or examples to explain.
Chapter 15
Offences Against the Person
T here are many different types of offence against the person. For this book we
shall look at four of the main non-fatal offences. These are common assault,
assault occasioning actual bodily harm (s 47), maliciously inflicting grievous
bodily harm or wounding (s 20) and causing grievous bodily harm or wounding
with intent (s 18). The last three offences are set out in the Offences Against the
Person Act 1861.
15.1 Common assault
The word assault has two meanings: the first is the general term for a physical
attack on another person; the second is a specific type of offence.
Common assault is the lowest level of offence against the person. It is not
defined in any Act of Parliament but has been built up through cases and judge-
made law. There are two types of common assault. These are:
• assault;
• battery.
15.1.1 Assault
To commit this offence the defendant must intentionally or subjectively
recklessly cause another person to fear immediate unlawful personal violence.
Actus reus of assault

The actus reus of an assault requires some act or words. There is no need for
physical contact. The actus reus is completed when the defendant does any act
or says something which causes the victim to believe that unlawful force is about
to be used against him or her. Examples include:
• raising a fist as though about to hit the victim;
• throwing a stone at the victim which just misses;
• pointing a loaded gun at someone within range;
• making a threat by saying ‘I am going to hit you’.
However, there must be some act or words for an assault; an omission or failure
to act is not enough.
Fear of violence
The important point is that the act or words must cause the victim to fear that
immediate force is going to be used against them. There is no assault if the
situation is such that it is obvious that the defendant cannot actually use force,
for example, where the defendant shouts threats from a passing train. Also, it has
been decided that pointing an unloaded gun at someone who knows that it is
unloaded cannot be an assault. This is because the other person does not fear
immediate force. If the other person thought the gun was loaded then this could
be an assault.
Where violence is possible in the immediate future, then the actus reus for an
assault can exist. For example, an assault can take place even though it is
through a closed window. This was decided in Smith v Chief Constable of
Woking (1983). In this case the defendant entered a private garden at night and
looked through the bedroom window of the victim. She was terrified and thought
that he was about to enter the room. This was enough for an assault.
Words as an assault
Words are sufficient for an assault. The judges in the case of Ireland (1998)
pointed out that a man in a dark alley saying to a woman ‘Come with me or I
will stab you’ would cause her to fear immediate personal violence. Even silent
telephone calls have been held to be an assault. This was in the case of Ireland
(1998) where the defendant made several silent phone calls to three different
women. The victim may fear that the purpose of the call is to find out if she is at
home and that the caller is about to come to her home immediately after the call.
However, where the defendant says something which indicates there will be
no violence, then these words can prevent an act from being an assault. This
happened in the old case of Tuberville v Savage (1669) where a man put his
hand on his sword and said, ‘If it were not assize-time, I would not take such
language from you’. Although the man had done an act which could have made
the victim fear immediate violence, the words showed that no violence was
going to be used.
The level of force need not be serious. Fear of any unwanted touching is
sufficient.
Mens rea of assault

The mens rea of an assault must be either an intention to cause another to fear
immediate unlawful personal violence or recklessness as to whether such fear is
caused. To be reckless the defendant must realise the risk that his acts and/or
words could cause another to fear unlawful personal violence.
15.1.2 Battery
This is the stage beyond an assault where the defendant intentionally or
subjectively recklessly applies unlawful force to another. In many situations
there will be an assault followed quickly by a battery. This is what happens
where the defendant raises his fist to hit the victim in the face and then actually
punches him. The raising of the fist is an assault; the punch connecting with the
victim’s face is the battery. It is possible, however, to have a battery without an
assault. This will happen if the victim does not know that force is about to be
used, as where someone hits you from behind.
Actus reus of battery

There must be some force. This can be the slightest touching, such as a hand on
one’s shoulder. The force may be through a continuing act, as in Fagan v
Metropolitan Police Commander (1968) where the defendant parked his car with
one of the tyres on a police officer’s foot and left it there for several minutes.
A battery can also be through an indirect act such as a booby trap. In this
situation the defendant causes force to be applied, even though he does not
personally touch the victim. This occurred in DPP v K (1990) where the
defendant hid acid in a hot air hand drier in a cloakroom Although he did not
intend it, this had the effect that the next person to use the drier was sprayed by
the acid. Another example of indirect force occurred in Haystead (2000) where
the defendant caused a child to fall to the floor by punching the person holding
the child.
Activity
Explain in each of the following situations whether there has been an assault
and/or a battery.
1. Jane and Sue are having an argument. During the argument, Jane says ‘If
you don’t shut up I’ll thump you’.
2. Ray sneaks up behind Karen and hits her on her back.
3. Miles throws a stone at Tanya, but misses. Tanya is very angry at this and
picks up the stone and throws it at Miles, hitting him in the face.
4. Grant turns round quickly without realising that Harry is standing just
behind him and bumps into Harry. Harry shouts at him, ‘If you were not
wearing glasses, I would hit you in the face’.
Mens rea for battery

The mens rea for battery must be either an intention to apply unlawful physical
force or recklessness that the force will be applied. Where the recklessness is
relied on, it is a subjective test, in other words the defendant must realise the risk
of physical contact and take that risk.
15.2 Assault occasioning actual bodily harm
This is an offence under s 47 of the Offences Against the Person Act 1861. The
maximum sentence for this offence is five years’ imprisonment.
For the actus reus of s 47 there must be an assault or a battery and this must
cause actual bodily harm.
Actual bodily harm

Actual bodily harm is ‘any hurt or injury calculated to interfere with the health
or comfort’ of the victim. This is very wide and covers such injuries as bruises,
scratches, a broken nose or finger or any other injury. It also includes psychiatric
injury, but not ‘mere emotions such as fear, distress or panic’. In T v DPP (2003)
it was held that loss of consciousness, even momentarily, was actual bodily
harm. The victim was chased by the defendant. He fell to the ground and was
kicked by the defendant. This caused him to lose consciousness for a brief
period.
Although technically, actual bodily harm includes even a small bruise, the
Crown Prosecution Service will not charge a defendant with a s 47 offence.
There must be some higher degree of injury than just a bruise under the CPS
charging standards.
If an injury is serious then, although the defendant could be charged with this
offence of occasioning actual bodily harm, it is more likely that the offence will
be a more serious one (see section 15.3).
Mens rea of an assault occasioning actual bodily harm

The defendant must intend to subject the victim to unlawful force or be reckless
with regard to whether the victim fears or is subjected to unlawful force. This is
the same mens rea as for an assault or a battery. There is no need for the
defendant to intend or be reckless as to whether actual bodily harm is caused. In
Roberts (1971) the defendant, who was driving a car, touched the girl in the
passenger seat. She feared that he was going to commit a more serious assault
and jumped from the car while it was travelling at about 30 miles per hour. As a
result of this she was slightly injured. He was found guilty of assault occasioning
actual bodily harm even though he had not intended any injury or realised there
was a risk of injury.
This was confirmed in Savage (1991) where a woman in a pub threw beer
over another woman. In doing this the glass slipped from the defendant’s hand
and the victim’s hand was cut by the glass. The defendant said that she had only
intended to throw beer over the woman. She had not intended her to be injured,
nor had she realised that there was a risk of injury. The court found that she was
guilty of a s 47 offence (assault occasioning actual bodily harm). The fact that
she intended to throw the beer over the other woman was sufficient for the mens
rea of the offence.
15.3 Wounding and grievous bodily harm
There are two offences which involve wounding or grievous bodily harm. These
are s 20 and s 18 of the Offences Against the Person Act 1861. The actus reus is
almost the same for the two offences. Section 20 requires that the defendant
wounds or ‘inflicts’ grievous bodily harm to the victim. Section 18 requires that
the defendant wounds or ‘causes’ grievous bodily harm to the victim.
There appears to be very little difference between the two words ‘inflict’ and
‘cause’. The word ‘cause’ is very wide so that it is only necessary to prove that
the defendant’s act was a substantial cause of the wound or grievous bodily
harm. It is possible that it is wider than the word ‘inflict’, but in Burstow (1998)
it was decided that ‘inflict’ does not require a technical assault or a battery. This
decision means that there appears to be little, if any, difference in the actus reus
of the two offences.
Both offences require the consequence of a wound or grievous bodily harm.
Wound
Wound means a cut or a break in the continuity of the whole skin. A cut of
internal skin, such as in the cheek, is sufficient, but internal bleeding where there
is no cut of the skin is not sufficient. In JCC v Eisenhower (1983) the victim was
hit in the eye by a shotgun pellet. This did not penetrate the eye but did cause
severe bleeding under the surface. As there was no cut, it was held that this was
not a wound.
Grievous bodily harm
Grievous bodily harm means ‘really serious harm’ but the harm does not have to
be life threatening. Serious psychiatric injury can also be grievous bodily harm.
In Bollom (2003) the defendant had caused several severe bruises to a 17-
month-old child. The Court of Appeal held that the victim’s age and health were
relevant when deciding whether an injury amounted to grievous bodily harm.
There had to be an assessment of the effect of the harm to the particular victim.
This ruling means that severe bruising may be grievous bodily harm where the
victim is a young child or a frail elderly person.
A disease can be grievous bodily harm. In Dica (2004) the defendant was
charged with two offences of causing grievous bodily harm under s 20 of the
Offences Against the Person Act 1861. He had had sexual intercourse with two
women when he knew that he was HIV positive. Both women contracted HIV. It
was accepted that this was grievous bodily harm.
Mens rea
The important difference between the two offences is in the mens rea required.
Section 18 requires a higher level of mens rea than s 20. This difference is
explained in sections 15.3.1 and 15.3.2.
This is an offence under s 20 of the Offences Against the Person Act 1861.
This states:
Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily
harm upon any other person, either with or without a weapon or instrument,
shall be guilty of an offence.
For the mens rea the defendant must intend to cause another person some
harm or be subjectively reckless as to whether he suffers some harm.
There is no need for the defendant to foresee serious injury but he must realise
the risk of some injury. In Parmenter (1991) the defendant injured his three-
month-old baby when he threw the child in the air and caught him. Parmenter
said that he had often done this with slightly older children and did not realise
that there was risk of any injury. He was found not guilty of the s 20 offence but
guilty of assault occasioning actual bodily harm under s 47.

This is an offence under s 18 of the Offences Against the Person Act 1861. This
states:
Whosoever shall unlawfully and maliciously by any means whatsoever wound or
cause any grievous bodily harm to any person, with intent to do some grievous
bodily harm to any person, or with intent to resist or prevent the lawful
apprehension or detainer of any person, shall be guilty of an offence.
It is considered a much more serious offence than s 20, as can be seen from the
difference in the maximum punishments. Section 20 has a maximum of five
years’ imprisonment whereas the maximum for s 18 is life imprisonment.
Section 18 is a specific intent offence. For the mens rea of wounding or
causing grievous bodily harm with intent the defendant must be proved to have
intended to:
• do some grievous bodily harm, or
• resist or prevent the lawful apprehension or detainer of any person.
The concept of foresight of consequences as already explained at section 14.2.1
applies to s 18. So, if the act that the defendant does is virtually certain to cause
grievous bodily harm and the defendant realises that this is so, then there is
evidence that the defendant had the necessary mens rea for a s 18 offence.
To help you with the differences between the offences see Figure 15.3. Also,
Figure 15.5 helps you to decide which offence is the most appropriate when
looking at scenarios.
Activity
Explain in each of the situations below, what type of offence may have been
committed.
1. In a football match Danny is kicked by Victor. This causes bruising to
Danny’s leg. Danny is annoyed at this and punches Victor in the face
causing a cut to his lip.
2. Anish is walking along a canal bank. Kim, who is in a hurry, pushes past
him, knocking him into the canal. Anish hits his head on the side and
suffers a fractured skull.
3. Karl waves a knife at Emma, saying ‘I am going to cut that silly smile off’.
Emma is very frightened and faints. She falls against Nita, who is knocked
to the ground and suffers bruising.
While he was out one day, Amir saw Carla, a teenager, whom he knew. Amir
knew Carla was easily frightened. He offered to give her a lift home in his car.
As Amir sped off down the road, they discussed “The Prisoner”, a television
programme which they both liked. Amir suddenly said, “Now you are my
prisoner!”
Carla immediately panicked, opened the passenger door and jumped out of the
moving car. Carla fell and hurt her wrist. When she got home, her wrist was
very sore, so her mother took he to hospital.
She was treated by a doctor who incorrectly put her wrist in a splint. As a
result, Carla sufferd permanent damage to her wrist. This permanent injury
would not have happened if she had been properly treated.
Actus reus usually depends on proof of an act or an omission. Mens rea is also
required for criminal liability, but there is an exception where the offence is one
of strict liability.
(a) Explain the meaning of mens rea in criminal law.
(8 marks)
(b) Explain the meaning of the coincidence (contemporaneity) rule.
(7 marks)
section.
(c) In relation to the criminal liability of Amir
• Outline the law relating to the offence of assault, and briefly discuss
whether Amir would be guilty of this offence.
(d) Briefly explain the rules on causation and briefly discuss whether Amir has
caused the permanent damage to Carla’s wrist.
(10 marks)
(e) Outline the pre-trial procedure which would be followed if Amir were to be
charged with assault (a summary offence).
(5 marks)
(f) Assuming that Amir is convicted of an offence, briefly outline the factors
which the court would take into account before Amir is sentenced.
(5 marks)
Note. You well as this Chapter will need to read Chapter 14 to answer parts (a),
(b) and (d), Chapter 16 for part (e) and Chapter 17 for part (f).
Examiner’s tip
In part (d), the question asks to first briefly explain the rules on causation. This
draws your attention to the main point you need when discussing Amir’s
criminal liability for the injury to Carla’s wrist.
Chapter 16
Criminal Procedure
W e have already looked at the criminal courts in Unit 1 (see Chapter 8). For
Unit 2 you need to know what happens in criminal cases from the moment
the police charge the defendant to the start of the trial.
The type of offence will make a difference as to the procedure for the case. We
have already looked at this in Chapter 8, but it is included again to make this
chapter complete.
Criminal offences are divided into three categories. These are:
• summary offences;
• triable either way offences;
• indictable offences.

These are the least serious offences. They are always tried in the Magistrates’
Court. They include nearly all driving offences. Common assault, which you will
study in this unit, is a summary offence.

These are the middle range of crimes. As the name implies, these cases can be
tried in either the Magistrates’ Court or the Crown Court. They include a wide
range of offences such as theft and assault causing actual bodily harm (s 47) and
the offence under s 20 of the Offences Against the Person Act 1861.
The pre-trial procedure for triable either way cases is more complicated than
for summary or indictable offences as it has to be decided where the case will be
dealt with. This procedure is explained in section 16.5.

These are the most serious crimes. Section 18 of the Offences Against the Person
Act 1861 is an indictable offence. The first preliminary hearing for such an
offence will be at the Magistrates’ Court, but then the case is transferred to the
Crown Court. All indictable offences must be tried at the Crown Court by a
judge and jury.
16.2 Charge or summons
In order for a criminal case to come to court, the defendant must be either
summoned for an offence or charged with an offence.
A summons is a document that is sent to the defendant by post setting a date
when he must attend the magistrates’ court. This is used for minor offences,
especially driving offences. It is also the method most likely to be used for an
offence of common assault.
A charge is made where the defendant has been arrested by the police and the
matter investigated by police, including interviewing the defendant. The police
send the evidence to the Crown Prosecution Service (see section 16.4). A Crown
prosecutor decides if there is enough evidence for the defendant to be charged
with an offence. The charge is done verbally by the police and the defendant is
also given a written record of it. This is the method used for more serious
crimes.
16.3 Bail
An important pre-trial matter to be decided is whether the defendant should stay
in custody while awaiting their trial or whether bail should be granted. A person
can be released on bail at any point after being arrested by the police. Being
given bail means that the person is allowed to be at liberty until the next stage in
the case.
16.3.1 Police powers to grant bail

The police may release a suspect on bail while they make further inquiries. This
means that the suspect is released from police custody on the condition that they
return to the police station on a specific date in the future.
The police can also give bail to a defendant who has been charged with an
offence. In this case the defendant is bailed to appear at the local Magistrates’
Court on a set date. If any person granted bail by the police fails to surrender to
that bail (i.e. attend at the next stage of the case) then the police are given the
right to arrest them. About 84 per cent of those charged with offences are given
bail by the police.
Conditional bail
The police have the power to impose conditions on a grant of bail. The types of
conditions include asking the suspect to surrender his passport, report at regular
intervals to the police station or get another person to stand surety for him. These
conditions can be only imposed in order to make sure that the suspect surrenders
to bail, does not commit an offence while on bail and does not interfere with
witnesses or interfere in any other way with the course of justice.
No police bail
Where the police are not prepared to allow bail, they must bring the defendant in
front of the Magistrates’ Court at the first possible opportunity. If (as usually
happens) the magistrates cannot deal with the whole case at that first hearing, the
magistrates must then make the decision as to whether the defendant should be
given bail or remanded in custody.
16.3.2 The Bail Act 1976

This Act starts with the assumption that an accused person should be granted
bail, though this right is limited for certain cases (see section 16.3.3). Section 4
of the Bail Act 1976 gives a general right to bail. However, the court need not
grant a defendant bail if it is satisfied that there are substantial grounds for
believing that the defendant, if released on bail, would:
1. Fail to surrender to custody.
2. Commit an offence while on bail.
3. Interfere with witnesses or otherwise obstruct the course of justice.
The court can also refuse bail if it is satisfied that the defendant should be kept in
custody for his own protection.
In deciding whether to grant bail, the court will consider various factors
including:
• The nature and seriousness of the offence (and the probable method of dealing
with it).
• The character, antecedents (that is, past record), associations and community
ties of the defendant.
• The defendant’s record as respects the fulfilment of his obligations under
previous grants of bail in criminal proceedings; in other words has he turned
up (surrendered to his bail) on previous occasions.
• The strength of the evidence against him.
• If a defendant is charged with an offence which is not punishable by
imprisonment, bail can only be refused if the defendant has previously failed
to surrender to bail and there are grounds for believing that he will not
surrender on this occasion.
Conditions
A court can make conditions for the granting of bail. These are similar to
conditions which can be set by the police and may include the surrender of
passport and/or reporting to a police station. The court can also make a condition
as to where the accused must reside while on bail; this could be at a home
address or at a bail hostel.
The court can also order that the defendant is placed on a curfew. This means
that he has to be at his home address at set times, for example for the evening
and night. As part of the curfew order the defendant is usually required to wear
an electronic tag so that his whereabouts is known at all times.
Sureties
The court (and the police) can require a surety for bail. A surety is another
person who is prepared to promise to pay the court a certain sum of money if the
defendant fails to attend court. Note that no money is paid unless the defendant
fails to answer to his bail. This system is different from that of other countries.
For example, in the US the surety must pay the money into court before the
defendant is released on bail, but gets the money back when the defendant
attends court as required.
16.3.3 Restrictions on bail

The right to liberty is a human right and the right to bail is therefore part of that
right. This means that even for serious offences, bail must be available in
suitable cases. However, in some situations the public need to be protected from
a potentially dangerous person. In such circumstances the right to bail is
restricted. The main situations where bail is restricted are where:
• the defendant is charged with murder, attempted murder, manslaughter, rape
or attempted rape and they have already served a custodial sentence for a
similar offence, they only have the right to bail if the court thinks that there are
exceptional circumstances;
• the defendant was on bail when the present alleged offence was committed
then he may not be granted bail unless the court is satisfied that there is no
significant risk of his committing an offence on bail (whether subject to
conditions or not;
• the defendant has tested positive for certain Class A drugs and is charged on a
drugs related offence and refuses to take part in an assessment of his drug-
dependency, the court may not grant bail unless the court is satisfied that there
is no significant risk of the defendant committing an offence on bail.
16.4 Crown Prosecution Service (CPS)
Once the police have charged a defendant they have to pass the case to the
Crown Prosecution Service.
16.4.1 Organisation of the CPS

The head of the CPS is the Director of Public Prosecutions (DPP), who must
have been qualified as a lawyer for at least 10 years. The DPP is appointed by,
and is subject to supervision by, the Attorney-General. Below the DPP are Chief
Crown Prosecutors who each head one of the 14 areas into which the country is
divided. In addition, there is a separate CPS Direct section also headed by a
Chief Crown Prosecutor. This section advises on out-of-hours charging of
suspects. Each area is subdivided into branches, each of which is headed by a
Senior District Crown Prosecutor. Within the branches there are several lawyers
and support staff, who are organised into teams and given responsibility for
cases. Overall, more than 8,000 lawyers are employed in the CPS.
16.4.2 The functions of the CPS

These involve all aspects of prosecution and can be summarised as:
• Deciding on what offence(s) should be charged. This used to be done by the
police, but sometimes inappropriate charges were brought which meant that
the case had to be discontinued.
• Reviewing all cases passed to them by the police to see if there is sufficient
evidence for a case to proceed, and whether it is in the public interest to do so;
this is to avoid weak cases being brought to court.
• Being responsible for the case after it has been passed to them by the police.
• Conducting the prosecution of cases in the Magistrates’ Court; this is usually
done by lawyers working in the Crown Prosecution Service as Crown
Prosecutors or lay people who have been trained as Associate Prosecutors.
• Conducting cases in the Crown Court. This can either be by instructing an
independent lawyer to act as prosecuting counsel at court or a Crown
Prosecutor with the appropriate advocacy qualification.
On a practical level, once a defendant has been charged or summonsed with an
offence the police role is at an end. They must send the papers for each case to
the CPS – each case is then assigned to a team in the local branch of the CPS,
and that team will be responsible for the case throughout the prosecution
process.
16.5 Plea and sending for trial
It is possible for cases to be dealt with on a first appearance in court but often an
adjournment may be needed. This could be because the Crown Prosecution
Service has not got all the information required to complete the case, or because
the defendant wants to get legal advice. Another reason for adjourning a case is
where the magistrates want pre-sentence reports on a defendant who pleads
guilty, before they decide what sentence to impose.
When a defendant wishes to plead not guilty, there will almost always have to
be an adjournment, as witnesses will have to be brought to court. One of the
main points to be decided on an adjournment is whether the defendant should be
remanded on bail or in custody (see section 16.3).
Common assault is a summary offence and will always be tried in the
magistrates’ courts.
16.5.2 Pre-trial procedure for triable either way

offences
Plea before venue
The plea before venue procedure applies only to triable either way offences.
Under this procedure, the defendant is first asked whether he or she pleads guilty
or not guilty. If the plea is guilty then the defendant has no right to ask for the
case to be heard at the Crown Court. However, the magistrates may decide to
send the defendant to the Crown Court for sentence.
Mode of trial
If the defendant pleads not guilty then the magistrates must carry out ‘mode of
trial’ proceedings to decide whether the case will be tried in the Magistrates’
Court or the Crown Court.
The magistrates first decide if they think the case is suitable for trial in the
Magistrates’ Court and whether they are prepared to accept jurisdiction (they
have the power to deal with the case). In making the decision, the magistrates
must consider the nature and seriousness of the case, their own powers of
punishment and any representations of the prosecution and defence.
Cases involving complex questions of fact or law should be sent to the Crown
Court. Other relevant factors which may make a case more suitable for trial at
the Crown Court include:
• where there was a breach of trust by the defendant;
• where the crime was committed by an organised gang;
• where the amount involved is more than twice the amount that the magistrates
can fine the defendant.
Defendant’s election
If the magistrates are prepared to accept jurisdiction, the defendant is then told
he has the right to choose trial by jury, but may be tried by the magistrates if he
agrees to this course. However, he is also warned that if the case is tried by the
magistrates and at the end of the case he is found guilty, the magistrates can send
him to the Crown Court for sentence if they feel their powers of punishment are
insufficient.
Section 47 and s 20 offences are triable either way offences. They can be tried in
either the magistrates’ court or the Crown Court.
A main point for discussion is whether defendants should be allowed to
choose where they will be tried. This involves the right to trial by jury.
16.5.3 The right to trial by jury

If the defendant pleads not guilty to a summary offence, there is no right to be
tried by a jury. Such cases are always tried by magistrates.
Cases where the defendant pleads not guilty to an indictable offence are
always tried by jury.
The only offences for which there is a choice of who should try the case are
triable either way offences. The choice is made at the mode of trial proceedings
(explained at section 16.5.2 above) in cases where the defendant is pleading not
guilty to a triable either way offence. If the magistrates decide that the case is
suitable for them to try, then they must offer the defendant the choice of court
for the trial.
In this type of case most defendants choose to be tried by magistrates in the
Magistrates’ Courts. However, there are some reasons why defendants may
prefer to be tried by a jury in the Crown Court.
Reasons for choosing trial by jury

Defendants are more likely to be acquitted (that is, found not guilty) at the
Crown Court than in the Magistrates’ Court. Only 20 per cent of defendants who
plead not guilty in the Magistrates’ Courts are found not guilty. At the Crown
Court over 60 per cent of defendants are acquitted.
An interesting point on the number of acquittals in the Crown Court is that
most are as a result of the judge discharging the case or directing that the
defendant be found not guilty. This will happen where the prosecution drop the
case or witnesses fail to attend court, so there is no evidence against the
defendant.
However, juries do acquit in more cases than magistrates. They acquit in
about 35 per cent of cases compared to the 20 per cent acquittal rate in the
Magistrates’ Courts.
Research conducted into the reasons why defendants chose trial at the Crown
Court found that most did so on the advice of their lawyers. The main factor in
the choice was the higher chance of an acquittal.
However, there were other factors influencing the choice, including (where
defendants were held in custody awaiting trial) a wish to serve part of the
sentence in a remand prison!
Another reason for choosing trial at the Crown Court is that the defendant is
more likely to get legal aid. This means that the State will pay for his legal
representation.
The legal representative at the Crown Court must have a certificate of
advocacy giving the right to do cases at the Crown Court. This is likely to mean
that the lawyer is more experienced at presenting cases in court.
Disadvantages of trial by jury

There will be usually be a longer wait before the case is dealt with than for cases
in the Magistrates’ Courts. If the defendant is not given bail, this waiting period
is spent in prison. However, waiting times for trials in the Crown Court have
been reduced in recent years. Nearly half of cases where the defendant is
pleading not guilty are now dealt with within 16 weeks from the case being sent
to the Crown Court.
The costs of the case are much greater than those in the Magistrates’ Court. If
the defendant has to pay for their own lawyers, this will be expensive. In
addition, if the defendant is ordered to pay part of the prosecution costs, this will
be more than in the Magistrates’ Court.
The other disadvantage is that, for defendants who are found guilty, the judge
at the Crown Court has the power to give a greater sentence than the magistrates.
Plea and case management hearing

If the case is sent to the Crown Court for trial, there will first be a ‘plea and case
management’ hearing in front of a judge at the Crown Court. This is to make
sure that all necessary preparation is taken for the case to be ready for trial.
The defendant will be asked what he pleads to the charges – guilty or not
guilty. If the defendant pleads guilty the judge can sentence him immediately. If
the defendant pleads not guilty, then the prosecution and defence must provide
the judge with information about such matters as:
• which witnesses are needed to attend the trial;
• what documents and exhibits, such as any weapon, will be produced at the
trial;
• any points of law that will be raised at the trial.
16.5.4 Pre-trial procedure for indictable offences

Even for the most serious offences the first hearing is in the magistrates’ court.
This deals with whether the defendant wants to apply for legal aid and issues of
bail. All indictable offences are then sent to the Crown Court immediately after
the early administrative hearing in the magistrates’ court. A s 18 offence is an
indictable offence. It always has to be tried in the Crown Court.
Plea and case management hearing

All other pre-trial matters are dealt with by a judge at the Crown Court in a ‘plea
and case management’ hearing in the same way as for a triable either way
offence (see 16.5.3).
Test Yourself
1. What is meant by a summary offence? Give an example.
2. What is meant by an indictable offence? Give an example.
3. What other category of offence is there?
4. Who can grant bail?
5. What assumption is the starting point for considering bail?
6. When can a defendant be refused bail?
7. Who makes the decision on what offence the defendant should be charged
with?
8. When does a mode of trial hearing take place in the magistrates’ court?
9. What is a plea and case management hearing?
10. What is the standard of proof in criminal cases?
An accused person is presumed innocent until proven guilty. This means that the
burden of proof is on the prosecution. They must prove the case by proving both
the required actus reus and the required mens rea of the offence charged.
The standard of proof necessary in order for the defendant to be found guilty
is ‘beyond reasonable doubt’. This is usually explained by the judge telling the
jury that they should only convict the defendant if they are sure of the
defendant’s guilt.
For part questions see the end of Chapter 14, Question (e) and see the end of
Chapter 15, Question (e).
Examiner’s tip
Read the question carefully. Which part of the procedure does it ask about? If
you look back to Question (e) at the end of Chapter 15, it asks for the procedure
that would follow, that is after Vlad is charged and up to the start of the trial.
This will depend on what offence has been committed. The following chart
helps you know which procedure is relevant for the different offences.
Chapter 17
Sentencing
W henever a person pleads guilty, or is found guilty of an offence, the role of

the court is to decide what sentence should be imposed on the offender.
Judges and magistrates have a fairly wide discretion as to the sentence they
select in each case, although they are subject to certain restrictions. Magistrates
can only impose a maximum of six months’ imprisonment for one offence (12
months’ for two) and a maximum fine of £10,000. Judges in the Crown Court
have no such limits; they can impose up to life imprisonment for some crimes
and there is no maximum figure for fines. Figure 17.1 shows the percentages of
different sentences imposed in Magistrates’ Courts and at the Crown Court in
2011–12. The differing percentages of offenders given an immediate custodial
sentence stresses that the Crown Court is dealing with more serious offences.
17.1 Aims of sentencing
When judges or magistrates have to pass a sentence they will not only look at the
sentences available, they will also have to decide what they are trying to achieve
by the punishment they give. Section 142 of the Criminal Justice Act 2003 sets
out the purposes of sentencing for those aged 18 and over saying that a court
must have regard to:
• the punishment of offenders;
• the reduction of crime (including its reduction by deterrence);
• the reform and rehabilitation of offenders;
• the protection of the public; and
• the making of reparation by offenders to persons affected by their offences.
Punishment is often referred to as retribution. In addition to the purposes of
sentencing given in the 2003 Act, denunciation of crime is also recognised as an
aim of sentencing. Each of the aims will now be examined in turn.
17.1.1 Retribution/punishment
Retribution is based on the idea of punishment. The offender deserves
punishment for his or her acts. This aim of sentencing does not seek to reduce
crime or alter the offender’s future behaviour. A judge using this aim is only
concerned with the offence that was committed and making sure that the
sentence given is in proportion to that offence.
The crudest form of retribution can be seen in the old saying ‘an eye for an
eye and a tooth for a tooth and a life for a life’. This was one of the factors used
to justify the death penalty for the offence of murder.
Tariff sentences
Retribution, today, is based more on the idea that each offence should have a
certain tariff or level of sentencing. The Sentencing Council produces guidelines
for all the main categories of offence. Judges have to take notice of these
guidelines and should not normally give a lower sentence than the minimum set
out in the guidelines.
17.1.2 Deterrence
This can be individual deterrence or general deterrence. Individual deterrence is
intended to ensure that the offender does not re-offend, through fear of future
punishment. General deterrence is aimed at preventing other potential offenders
from committing crimes. Both are aimed at reducing future levels of crime.
Individual deterrence
There are several penalties that can be imposed with the aim of deterring the
individual offender from committing similar crimes in the future. These include
a prison sentence, a suspended sentence or a heavy fine. However, prison does
not appear to deter as about 55 per cent of adult prisoners re-offend within two
years of release. With young offenders, custodial sentences have even less of a
deterrent effect. Over 70 per cent of young offenders given a custodial sentence
re-offend within two years.
General deterrence
The value of this is even more doubtful as potential offenders are rarely deterred
by severe sentences passed on others. However, the courts do occasionally resort
to making an example of an offender in order to warn other potential offenders
of the type of punishment they face.
Examples of deterrent sentencing were seen when those involved in the
rioting in the summer of 2011 were sentenced. Many were given custodial
sentences for relatively minor theft offences as these occurred during the looting
of shops in the riots. This was sending a clear message to others that offenders
committing offences during riots would be given severe sentences.
General deterrence is in direct conflict with the principle of retribution, since
it involves sentencing an offender to a longer term than is deserved for the
specific offence. It is probably the least effective and least fair principle of
sentencing.
17.1.3 Reform/rehabilitation
Under this aim of sentencing the main aim of the penalty is to reform the
offender and rehabilitate him or her into society. It is a forward-looking aim,
with the hope that the offender’s behaviour will be altered by the penalty
imposed, so that he or she will not offend in the future (it aims to reduce crime in
this way).
Reformation is a very important element in the sentencing philosophy for
young offenders, but it is also used for some adult offenders. The court will be
given information about the defendant’s background, usually through a pre-
sentence report prepared by the probation service. Where relevant, the court will
consider other factors, such as school reports, job prospects, or medical
problems.
Offenders will usually be given a community order with various requirements
aimed at rehabilitating them.
17.1.4 Protection of the public

The public need to be protected from dangerous offenders. For this reason life
imprisonment or a long term of imprisonment are given to those who commit
murder or other violent or serious sexual offences.
The Criminal Justice Act 2003 introduced a provision for serious offences that
where the court is of the opinion that there is a significant risk to members of the
public of serious harm being caused by the defendant in the future, the court
must send the defendant to prison for the protection of the public.
The Criminal Justice Act 2003 also has provision for extended sentences to be
given where it is thought necessary to protect the public. This adds an extra
period to the defendant’s sentence during which he is freed on licence.
For less serious offences there are other ways in which the public can be
protected. For example, dangerous drivers are disqualified from driving. Another
method is to include an exclusion order as a requirement in a community order.
This will ban the offender from going to places where he is most likely to
commit an offence. The use of such a banning order is shown in the case of R v
Winkler (2004).
In this case the defendant committed an affray in Manchester when attending
a football match in which Oldham Athletic, the team he supported, was playing.
The judge banned the defendant from going into Oldham town centre on home
match days and also banned him from approaching within half a mile of any
football stadium. Both bans were for a period of six years.
Another method of protecting the public is to impose a curfew order on the
offender ordering him to remain at home for certain times of the day or night.
The curfew can be monitored by an electronic tag, which should trigger an alarm
if the offender leaves his home address during a curfew period.
17.1.5 Reparation
This is aimed at compensating the victim of the crime usually by ordering the
offender to pay a sum of money to the victim or to make restitution, for example,
by returning stolen property to its rightful owner. The courts are required to
consider ordering compensation to the victim of a crime, in addition to any other
penalty they may think appropriate. There are also projects to bring offenders
and victims together, so that the offenders may make direct reparation.
Activity
Read the following article and answer the questions following it.
‘Tougher jail terms DO deter criminals, admits Home Office’
A Home Office report has concluded that stiffer prison sentences deter crime
… the study found that convicts jailed for less than a year are almost 50 per
cent more likely to commit a fresh crime within two years of their release than
those locked up for between one and four years.
And they are twice as likely to break the law as those jailed for at least four
years.
The report is embarrassing for the Government. Only this month [May 2007],
Lord Falconer, newly-created Justice Secretary, announced that tens of
thousands of burglars and other thieves would receive community punishments
instead of jail sentences under plans to ease chronic prison overcrowding.
In March [2007] the Prime Minister signalled that there should be greater
emphasis on rehabilitating offenders, tougher community sentences and crime
prevention …
Figures show that 70 per cent of convicts jailed for under 12 months re-
offended within two years, compared with 49 per cent of those convicted to
between one and four years and 36 per cent of those serving as least four years.
The report said prisoners released from longer sentences were less likely to
reoffend because they were older, had time to be rehabilitated and had been
convicted of more serious ‘one-off’ offences.
Taken from an article by Ian Drury in the Daily Mail, 19 May 2007
Questions
1. What sentencing aim does this article suggest that stiffer prison sentences
promotes?
2. What sentencing aim did the Prime Minister want emphasised?
3. What sentencing aim does the Home Office Report say had an effect on
longer term prisoners?
4. Name and explain two other sentencing aims.
The concept of restitution also includes making reparation to society as a

whole. This can be seen mainly in the use of an unpaid work requirement where
offenders are required to do so many hours work on a community project under
the supervision of the probation service.
17.1.6 Denunciation
This is society expressing its disapproval of criminal activity. A sentence should
indicate both to the offender and to other people that society condemns certain
types of behaviour. It shows people that justice is being done.
Denunciation also reinforces the moral boundaries of acceptable conduct and
can mould society’s views on the criminality of particular conduct – for
example, drink driving is now viewed by the majority of people as unacceptable
behaviour. This is largely because of the changes in the law and the increasingly
severe sentences that are imposed. By sending offenders to prison, banning them
from driving and imposing heavy fines, society’s opinion of drink driving has
been changed.
17.2 Sentences available for adults
17.2.1 Custodial sentences
A custodial sentence is the most serious punishment that a court can impose.
Custodial sentences range from a few weeks to life imprisonment. They include:
• mandatory and discretionary life sentences;
• fixed-term sentences;
• custody plus (short-term sentence);
• suspended sentences.
Custodial sentences are meant to be used only for serious offences. The Criminal
Justice Act 2003 says that the court must not pass a custodial sentence unless it
is of the opinion that the offence (or combination of offences):
was so serious that neither a fine alone nor a community sentence can be
justified.
Mandatory life sentences

For murder the only sentence a judge can impose is a life sentence. However, the
judge is allowed to state the minimum number of years’ imprisonment that the
offender must serve before being eligible for release on licence. This minimum
term is now governed by the Criminal Justice Act 2003. This gives judges clear
starting points for the minimum period to be ordered. The starting points range
from a full life term down to 12 years.
Discretionary life sentences

For other serious offences such as an offence under s 18 of the Offences Against
the Person Act 1861 the maximum sentence is life imprisonment, but the judge
does not have to impose it. The judge has discretion in sentencing and can give
any lesser sentence where appropriate. For certain serious offences, a life
sentence should be given for a second offence.
Fixed-term sentences
For other crimes, the length of the sentence will depend on several factors,
including the maximum sentence available for the particular crime, the
seriousness of the crime and the defendant’s previous record. Imprisonment for a
set number of months or years is called a ‘fixed-term’ sentence.
Internet Research
Look up the current prison population on the internet. It can be found at
www.gov.uk/government/organisations/ministry-of-justice/about/statistics.
Prisoners do not serve the whole of the sentence passed by the court. Anyone
sent to prison is automatically released after they have served half of the
sentence. Only offenders aged 21 and over can be given a sentence of
imprisonment.
Prison population
A problem is that prisons in England and Wales are overcrowded. There has
been a big increase in the number of people in prison and there are not enough
prison places. Figure 17.5 shows the increase in the prison population between
1951 and 2011.
Suspended prison sentences

An adult offender may be given a suspended prison sentence of up to two years
(six months maximum in the Magistrates’ Court). This means that the sentence
does not take effect immediately. The court will fix a time during which the
sentence is suspended; this can be for any period up to two years. If, during this
time, the offender does not commit any further offences, the prison sentence will
not be served. However, if the offender does commit another offence within the
period of suspension, then the prison sentence is ‘activated’ and the offender will
serve that sentence together with any sentence for the new offence.
A suspended sentence should only be given where the offence is so serious
that an immediate custodial sentence would have been appropriate, but there are
exceptional circumstances in the case that justify suspending the sentence.
17.2.2 Community orders

The Criminal Justice Act 2003 created one community order under which the
court can combine any requirements they think are necessary. These
requirements are listed below. The sentencers can ‘mix and match’ requirements
allowing them to fit the restrictions and rehabilitation to the offender’s needs.
The sentence is available for offenders aged 16 and over. The full list of
requirements available to the courts is set out in s 177 of the Criminal Justice
Act 2003. This states:
177(1) Where a person aged 16 or over is convicted of an offence, the court by
or before which he is convicted may make an order imposing on him any one or
more of the following requirements:
(a) an unpaid work requirement
(b) an activity requirement
(c) a programme requirement
(d) a prohibited activity requirement
(e) a curfew requirement
(f) an exclusion requirement
(g) a residence requirement
(h) a mental health treatment requirement
(i) a drug rehabilitation requirement
(j) an alcohol treatment requirement
(k) a supervision requirement, and
(l) in the case where the offender is aged under 25, an attendance centre
requirement.
Each of these is defined within the Criminal Justice Act 2003. Most are self-
explanatory from their name, such as drug rehabilitation and alcohol treatment.
Much crime is linked to drug and alcohol abuse and the idea behind these two
requirements is to tackle the causes of crime, and hopefully prevent further
offences. Mental health treatment is also aimed at the cause of the offender’s
behaviour. The main other requirements are explained briefly below.
Unpaid work requirement

This requires the offender to work for between 40 and 300 hours on a suitable
project organised by the probation service. The exact number of hours will be
fixed by the court, and those hours are then usually worked in eight-hour
sessions, often at weekends. The type of work involved will vary, depending on
what schemes the local probation service have running. The offender may be
required to paint school buildings, help build a play centre or work on
conservation projects.
Prohibited activity requirement
This requirement allows a wide variety of activities to be prohibited. The idea is
to try to prevent the defendant from committing another crime of the type he has
just been convicted of. Often the defendant is forbidden to go into a certain area
where he has caused trouble. In some cases the defendant has been banned from
wearing a ‘hoodie’. In 2006, a defendant who was found guilty of criminal
damage was banned from carrying paint, dye, ink or marker pens.
Activity
Read the following extracts from a parliamentary briefing paper giving
statistics on prisoners and answer the questions below.
• Over 25 per cent of prisoners had been taken into care as a child compared to
2 per cent of the general population.
• 81 per cent of prisoners were unmarried prior to imprisonment, rising to 85
per cent since imprisonment. Almost 10 per cent had been divorced. These
figures are twice as high as those found in the general population.
• One half of male and one-third of female sentenced prisoners were excluded
from school. One half of male and seven out of ten female prisoners have no
qualifications.
• Two-thirds of prisoners have numeracy skills at or below a level expected of
an 11 year old. One-half have a reading ability and 82 per cent have writing
ability at or below this level.
• Two-thirds of prisoners were unemployed in the four weeks before
imprisonment.
• Around 70 per cent of prisoners suffer from two or more mental disorders. In
the general population, the figures are 5 per cent for men and 2 per cent for
women.
• Prisoners are more likely to be abusers of illegal drugs and alcohol than other
sectors of the community.
Taken from Prison Population Statistics, House of Commons Library, 24 May
2012
Questions
1. What problems did many of the prisoners have when they were children?
2. What other problems do many of those who are convicted have prior to
their conviction?
3. What percentage of prisoners suffers from two or more mental disorders?
4. Which factor(s) in the above list do you think would be most likely to lead
to a person committing offences?
5. Discuss ways in which offenders could be helped not to re-offend.
Curfew requirement
Under these, an offender can be ordered to remain at a fixed address for between
2 and 16 hours in any 24-hour period. This order can last for up to six months
and may be enforced by electronic tagging (where suitable). Courts can only
make such an order if there is an arrangement for monitoring curfews in their
area. Such monitoring can be done by spot-checks, with security firms sending
someone to make sure that the offender is at home or offenders may be
electronically tagged. Satellite technology may be used to track those who are
tagged.
Supervision requirement
For this requirement the offender is placed under the supervision of a probation
officer for a period of up to three years. During the period of supervision the
offender must attend appointments with the supervising officer or with any other
person decided by the supervising officer.
17.2.3 Fines
This is the most common way of disposing of a case in the Magistrates’ Court
where the maximum fine is £10,000 for an individual offender. The magistrate
can impose unlimited fines on businesses who have committed offences under
certain regulations, such as health and safety at work. In the Crown Court only a
small percentage of offenders are dealt with by way of a fine.
17.2.4 Discharges
These may be either:
• a conditional discharge or
• an absolute discharge.
A conditional discharge means that the court discharges an offender on the
condition that no further offence is committed during a set period of up to three
years. It is intended to be used where it is thought that punishment is not
necessary. If an offender reoffends within the time limit, the court can then
impose another sentence in place of the conditional discharge, as well as
imposing a penalty for the new offence. Conditional discharges are widely used
by Magistrates’ Courts for first-time minor offenders.
An absolute discharge means that, effectively, no penalty is imposed. Such a
penalty is likely to be used where an offender is technically guilty but morally
blameless. An example could be where the tax disc on a vehicle has fallen to the
floor – it is technically not being displayed and an offence has been committed.
So, in the unlikely situation of someone being prosecuted for this, the
magistrates, who would have to impose some penalty, would most probably
decide that an absolute discharge was appropriate.
17.3 Factors in sentencing
When deciding what sentence to pass on a defendant, the courts consider the
following matters:
• the offence;
• sentencing guidelines;
• the offender’s background.
17.3.1 Aggravating factors in sentencing

In looking at the offence, the most important point to establish is how serious
was it, of its type? This is now set out in s 143(1) of the Criminal Justice Act
2003 which states that:
Activity
If you look back to Figure 17.2 on page 216 you will see the sentencing
guidelines for a s 47 offence (Offences Against the Person Act 1861). Use
those guidelines to answer the following questions.
Questions
1. What is the maximum penalty for a s 47 offence? (this information is given
in Chapter 15)
2. What makes an offence a category one offence for sentencing?
3. What puts an offence into the least serious category?
4. For what category is there a sentence with a starting point of 26 weeks’
custody?
5. What is the range of sentencing for a category 1 offence?
In considering the seriousness of the offence, the court must consider the
offender’s culpability in committing the offence and any harm which the offence
caused, or was intended to cause or might reasonably forseeably have caused.
The Act goes on to give certain factors which are considered as aggravating
factors making an offence more serious. These are:
• previous convictions for offences of a similar nature or relevant to the present
offence;
• the fact that the defendant was on bail when he committed the offence;
• racial or religious hostility being involved in the offence;
• hostility to disability or sexual orientation being involved in the offence.
As well as these points in the Criminal Justice Act 2003, there are also other
factors which are regarded as aggravating features for specific offences. For
example where the defendant has committed an assault, aggravating features
include:
• the offender being part of a group attacking the victim;
• a particularly vulnerable victim, eg a young child or an elderly person;
• a victim serving the public, eg an attack on a nurse in a hospital emergency
unit;
• the fact that the assault was premeditated.
Where there is an aggravating factor the court will pass a more severe sentence
than it would normally have given.
Magistrates all have a copy of the Sentencing Guidelines issued by the
Sentencing Council. These give a starting point for an offence, depending on
certain factors, in particular whether the magistrates should be thinking of a
custodial sentence or a community order. The guidelines also give a sentencing
range.
17.3.2 Mitigating factors available in sentencing

A mitigating factor is one which allows the court to give a lighter sentence than
would normally be given.
If the offender co-operates with the police, for example helping identify others
involved in the crime, then the court can take this into account when deciding
sentence.
Other factors taken into account in mitigation include:
• mental illness of the defendant;
• physical illness of the defendant;
• the fact that a defendant has no previous convictions;
• evidence of genuine remorse.
Reduction in sentence for a guilty plea

There will also be a reduction in sentence for a guilty plea, particularly where
the defendant made that plea early in the proceedings. The Sentencing Council
guidelines on this are that the reduction for a guilty plea at the first reasonable
opportunity should attract a reduction of up to one-third, while a plea of guilty
after the trial has started would only be given a one-tenth reduction. The amount
of reduction is on a sliding scale as shown in Figure 17.6.
The only exception is where the evidence is overwhelming and the

defendant’s guilt is clear. In these circumstances, even if the defendant pleads
guilty at the earliest possible opportunity, the judge need only give a 20 per cent
discount for that plea of guilty.
17.3.3 Background of the offender

Previous convictions
An important fact about the defendant is whether he has previous convictions or
not. Where he has a previous conviction for the same or similar type of offence,
then he is likely to receive a heavier sentence.
A defendant who has no previous convictions is usually treated more
leniently.
Reports
The courts will often have a report prepared by the probation service on the
offender and his background. If the defendant is ill, then the court may also ask
for a medical report. These reports will be considered with all other factors in
deciding what sentence to impose on the defendant.
Test Yourself
1. Explain what is meant by a tariff sentence?
2. What is the aim of deterrence when sentencing?
3. Name and briefly explain two other aims of sentencing.
4. What is a discretionary life sentence?
5. Give three requirements that can be attached to a community order.
6. What is the most common punishment imposed in the magistrates’ courts?
7. What two types of discharge are there?
8. Give two aggravating factors in sentencing.
9. By how much could a sentence be reduced if a defendant pleaded guilty at
the earliest opportunity?
10. Give two other mitigating factors in sentencing.
Examination question
See Part (f) in the question at the end of Chapter 14 and Part (f) in the question
at the end of Chapter 15.
Examiner’s tip
There are three main themes that a question on sentencing may ask. These are:
• aims of sentencing;
• range of sentences available;
• factors the court will consider in sentencing.
As well as knowing these themes, try to link them to the scenario given in the
question. If the offence in the scenario has mitigating or aggravating factors,
then point out that the court would take these specific factors into account.
Chapter 18
The Tort of Negligence
T he law of torts is part of the civil law. A tort is a civil wrong. The word ‘tort’
actually comes from the French word for wrong. The law allows people to
claim compensation when they have been injured or their property damaged or
interfered with or their reputation harmed. There are a number of different torts.
The most important are:
• negligence;
• occupiers’ liability;
• nuisance;
• trespass;
• defamation.
For the AS course you only need to study the tort of negligence. This can apply
in a wide variety of situations where a person or their property is damaged. One
of the most common is a car crash in which the vehicles are damaged and the
drivers and passengers injured. When this happens people will want to claim
compensation for their injuries and for damage to the car or other property.
Other situations include people being injured at work or through medical
negligence. In all these situations the tort of negligence is used as the basis of
the claim.
The newspaper article at source D in the Activity on page 4, Chapter 1 shows a
claim being made under the tort of negligence. In negligence the other person is
only liable if:
• they owe you a duty of care;
• they breach this duty; and
• the breach causes damage.
18.1 Duty of care
The idea of a duty of care in the tort of negligence has developed through judges
making decisions in cases. The start of our modern law of negligence was the
case of Donoghue v Stevenson (1932). In this case Mrs Donoghue went to a cafe
with a friend. The friend bought her a drink of ginger beer and ice cream. The
bottle of ginger beer had dark glass so that the contents could not be seen. After
drinking some of it, Mrs Donoghue poured the rest out and then saw that it
contained a dead (and decomposing) snail. Because of the impurities in the drink
she was taken ill.
She wanted to claim for her illness, but as she had not bought the drink she
could not use the law of contract. So she sued the manufacturers claiming that
they owed her a duty of care.
In the House of Lords the judges set out a test for when a person would be
under a duty. They said:
You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour.
They went on to explain this by saying;
Who then, in law, is my neighbour? Persons who are so closely and directly
affected by my act that I ought reasonably to have them in my contemplation as
being affected when I am directing my mind to the acts or omissions in question.
This established the broad principles of liability. However, there have been a
number of changes to the detail. In Caparo v Dickman (1990) the ‘neighbour’
test was replaced by a three-part test:
• Was damage or harm reasonably foreseeable?
• Is there a sufficiently proximate (close) relationship between the claimant and
the defendant?
• Is it fair, just and reasonable to impose a duty?
18.1.1 Reasonably foreseeable

This depends on the facts of the case, though there are some general principles
which are used. It is easier to understand by looking at some cases.
In Kent v Griffiths (2000) a doctor called for an ambulance to take a patient
suffering from a serious asthma attack to hospital immediately. The ambulance
control centre replied ‘okay, doctor’. The ambulance, without a satisfactory
reason, failed to arrive within a reasonable time. The patient suffered a heart
attack which could have been avoided if she had been taken to hospital earlier. It
was reasonably foreseeable that the claimant would suffer harm from the failure
of the ambulance to arrive.
In Jolley v Sutton London Borough Council (2000) a boy, aged 14, was
paralysed when a boat he was attempting to repair slipped on top of him. The
boat had been abandoned on land belonging to the council by a block of flats.
The council knew that the boat was in a dangerous condition and that children
were likely to play on it. The House of Lords held that attempting to repair the
boat was not so very different from normal play, so the injury to the claimant
was reasonably foreseeable.
Not foreseeable
In some cases the courts have decided that it is not reasonably foreseeable that
the claimant would suffer harm. For example, in Bourhill v Young (1943) a
motorcyclist going too fast, crashed into a car and was killed. Mrs Bourhill, who
was eight months’ pregnant, was about 50 yards away. She heard the accident,
but did not see it. Afterwards she saw blood on the road and suffered shock and
her baby was stillborn. She claimed against the motorcyclist’s estate. The court
decided that the motorcyclist did not owe her a duty of care as he could not have
reasonably foreseen that she would be affected by his negligent driving. He did,
of course, owe a duty of care to the car driver with whom he collided.
In Topp v London Country Bus (South West) Ltd (1993) a driver left a bus
unattended with the keys in the ignition. The bus was stolen and driven
dangerously causing an accident in which the claimant was injured. The damage
to the claimant was held not to be reasonably foreseeable.
18.1.2 Proximity
Even if the harm is reasonably foreseeable, a duty of care will only exist if the
relationship of the claimant and the defendant is sufficiently close. In Hill v
Chief Constable of West Yorkshire (1990) a serial killer had been murdering
women in the Yorkshire area. The claimant’s daughter was the killer’s last
victim before he was caught. By the time of her death the police already had
enough information to arrest the killer, but had failed to do so. The mother
claimed that the police owed a duty of care to her daughter. It was decided by
the House of Lords that the relationship between the victim and the police was
not sufficiently close (proximate) for the police to be under a duty of care. The
police knew that there might be a further victim of the killer but they had no way
of knowing who the victim might be.
The situation was different in Osman v Ferguson (1993) where the police
officers knew that there was a real risk of an attack on a schoolboy. The attacker
had a fixation about the boy and had been following him and causing concern.
There had been complaints to the police about the attacker’s behaviour. The
boy’s father was then murdered by the attacker and the boy was seriously
injured. The court held that there was a sufficiently close relationship between
the police and the victim and the victim’s family. However, the case did not
succeed because it was ruled that it was not fair, just and reasonable to impose a
duty of care on the police. This is considered in more detail in the following
section.
18.1.3 Fair, just and reasonable

This third part of the duty of care tests allows the courts to decide that, even
though the harm was foreseeable and the parties were sufficiently close, there is
no duty of care. The courts are often reluctant to find that it is ‘fair, just and
reasonable’ to impose a duty of care on public authorities. In the case of Hill v
Chief Constable of West Yorkshire (see section 18.1.2) it was pointed out that
imposing a duty on police could lead to policing being carried out in a defensive
way which might divert resources and attention away from the suppression of
crime. This would be likely to lead to lower standards of policing, not higher
ones.
The European Court of Human Rights has criticised excluding liability in this
way, so the extent to which English courts will follow this decision is now in
doubt.
Where the police or other authority have through their own actions created a
new danger or substantially increased the risk of an existing danger, then the
courts are more likely to hold that it is fair, just and reasonable to recognise a
duty of care.
In Capital & Counties plc v Hampshire County Council (1997), the fire
brigade had attended at the scene of a fire. A fire officer ordered that the
sprinkler system in the building be turned off. This caused the fire to spread and
led to more serious damage than if the system had been left on. In this situation
it was fair, just and reasonable to recognise a duty of care against the fire
brigade.
18.2 Breach of duty
Where, under the three Caparo tests, there is a duty of care, the claimant still has
to prove that that duty of care has been broken.
18.2.1 Degree of risk

It is important that the risk is foreseeable. If the risk of harm is not known then
there is no breach. In Roe v Minister of Health (1954) anaesthetic was kept in
glass ampoules. At the time it was not known that invisible cracks could occur in
the glass and allow the anaesthetic to become contaminated. So, when the
claimant was paralysed by some contaminated anaesthetic, there was no breach
and he could not claim compensation.
Another way of looking at it is whether there is fault on the defendant’s part.
In this case the doctors had acted without fault.
Where a risk is small then it is unlikely that there is a duty of care. In Bolton v
Stone (1951) a cricket ball hit a passer-by in the street. The evidence was that
there was a 17-foot high fence around the ground and the wicket was a long way
from this fence. Balls had only been hit out of the ground six times in 30 years.
Because of the low risk involved there was no breach of the duty of care.
However, where it is known there is a risk and no steps are taken to guard
against that risk, there is likely to be a breach of the duty of care. In Haley v
London Electricity Board (1965) it was known that a particular road was used by
blind people. Yet, when the electricity board dug a hole in the road they only put
out warning signs; they did not put any barriers around the hole.
18.2.2 The standard of care

If a defendant falls below the standard of care which a prudent and reasonable
man would take then there is a breach of duty.
Where the consequences of harm to a particular person are greater than for
other people, there is a higher standard of care owed to that person. This is
shown in the case of Paris v Stepney Borough Council (1951) where Mr Paris
was known to be blind in one eye. He was given work to do by his employers
which involved a small risk of injury to the eyes. He was not given any
protective goggles. While doing this work, his good eye was damaged by a small
piece of metal and he became totally blind. His employers were held to have
broken their duty of care to him. They knew that the consequences of an injury
to his good eye would be very serious. They should have taken greater care
because of this and provided him with goggles, even though at that time it was
not thought necessary to provide goggles for other workers.
Is it practicable to take precautions?

The courts will consider the balance of the risk involved against the cost and
effort of taking adequate precautions to eliminate the risk. In Paris v Stepney
Borough Council the cost and effort of providing goggles was very small
compared with the consequences of the risk.
However, in other situations, the cost and effort of taking precautions may be
very high or impracticable compared with the risk. For example, in Latimer v
AEC Ltd (1953) a factory became flooded and the floor was very slippery with a
mixture of the water and oil. Sawdust was spread over the floor to minimise any
risk of workers slipping. Despite this one workman slipped and was injured. The
court held that there was no breach of the duty of care. The only way to
completely prevent injury would have been to close the factory. It was
unreasonable to expect the owners to do this. They had taken sufficient steps to
prevent injury in the circumstances.
Clearly if the risk had been much more serious, perhaps a risk of an explosion
which could have killed and injured many people, then there would have been a
higher standard of care on the owners. It would have been reasonable to expect
them to close the factory.
Standards for experts
Where the defendant has some expertise, for example, he is a doctor carrying out
medical treatment, then the standard of care is that which would normally be
expected from a doctor. In Bolam v Friern Hospital Management (1957) the
judge said:
A man need not possess the highest expert skill; it is … sufficient if he exercises
the ordinary skill of an ordinary competent man exercising that particular art.
Activity
Read the following situations and explain for each whether there is likely to be
a duty of care and if that duty has been broken.
1. Homer is driving his car at a speed which is over the speed limit. He loses
control and the car goes on to the pavement, hitting Jamil. Jamil suffers a
broken leg.
2. Katie is looking after Leo, a child aged six. She takes him to a park and
while he plays she reads a book. She does not notice Leo leave the play area
and approach a busy road. Leo then runs out into the road and is knocked
down by a motorbike. The motorcyclist was going faster than the speed
limit. Consider the liability of both Katie and the motorcyclist.
3. Pete fell and hit his head. He suffered a fractured skull and Dr Moon had to
operate to remove a blood clot. During the operation Dr Moon removed the
clot but Peter was paralysed because of the effects of the clot. Explain
whether Dr Moon owes Peter a duty of care and, if so, whether Dr Moon is
in breach of that duty.
4. Ryland parks his car at the side of the road while he goes into a shop. He
leaves the keys in the ignition. Sam sees the keys and decides to drive the
car around the corner for a joke and leave it there. When reversing into a
parking spot, Sam hits the next car causing damage to the wing. The owner
of this car wishes to claim for the cost of repairing the car.
Explain whether he can claim against:
(i) Ryland
(ii) Sam.
18.3 Damage
18.3.1 Causation
Even where the claimant has proved that the defendant owed him a duty of care
and that the defendant has broken that duty of care, the claimant must still prove
that the damage suffered was caused by the breach of duty.
In Barnett v Chelsea and Kensington Hospitals (1969) three nightwatchmen
went to a hospital accident and emergency department complaining of sickness
after drinking tea made by a fourth man. A nurse telephoned the doctor on duty,
who did not come to examine the men but instead recommended that they go
home and see their own doctors.
One of the men, the claimant’s husband, went home and died a few hours later
from poisoning by arsenic. His widow sued the hospital claiming that the doctor
was negligent in not examining her husband. She was able to prove that the
doctor owed a duty of care to her husband and that by not examining him, the
doctor had broken that duty of care. However, the evidence showed that by the
time the husband had called at the hospital it was already too late to save his life.
The arsenic was already in his system in such a quantity that he would have died
whatever was done. This meant that his death was not the result of the doctor’s
breach of duty of care and so the claim failed.
This is known as the ‘but for’ test. It must be proved that the claimant would
not have suffered damage ‘but for’ the defendant’s breach of duty of care.

The damage must not be too remote from the negligence of the defendant. The
rule comes from an Australian case The Wagon Mound (1961) where fuel oil had
been negligently spilled onto water in a harbour. Two days later the oil caught
fire because of welding work being done on another ship. The fire spread to the
claimant’s wharf and burnt it down.
It was decided that although the damage done to the wharf was a result of the
oil being spilled, it was not reasonably foreseeable. It was too remote from the
original negligent act of spilling the oil. If the oil had seeped into the wharf and
damaged it in that way then that would have been reasonably foreseeable. The
chances of it catching fire and causing damage in that way were not.
This rule was followed in Crossley v Rawlinson (1981) where the claimant in
running towards a burning vehicle with a fire extinguisher to put the fire out,
tripped, fell and was injured. It was held that as the claimant was only on the
way to the danger created by the defendant’s negligence, the injury was too
remote.
Thin skull rule

This rule means that the defendant must take his victim as he finds him. So, if
the type of damage is reasonably foreseeable, but it is much more serious
because of something unusual about the claimant, such as a thin skull, then the
defendant is liable. In this situation the damage is not too remote.
This is illustrated in the case of Smith v Leech Brain and Co (1962) where,
because of the defendants’ negligence, a man was burnt on the lip by molten
metal. The man had an existing pre-cancerous condition. The burn brought about
the onset of full cancer and the man died. His widow claimed against the
defendants and it was held that as a burn was a foreseeable injury, the defendant
was also liable for the death.
Test Yourself
1. What three elements have to be proved to establish the tort of negligence?
2. What are the three parts of the Caparo test?
3. Explain using cases/examples what is meant by ‘reasonably foreseeable’.
4. Explain using cases/examples what is meant by ‘proximity’.
5. Give a case or example in which the risk was not foreseeable.
6. What is the standard of care normally expected from a person?
7. What is the standard of care expected from an expert?
8. Demonstrate using a case/example that the breach of the duty of care must
cause the damage.
9. What is meant by ‘remoteness of damage’?
10. What is the ‘thin skull’ rule?
Type of injury foreseeable

The defendant will also be liable if the type of injury was foreseeable, even
though the precise way in which it happened was not. In Hughes v Lord
Advocate (1963) Post Office workmen left a manhole unattended, covered only
with a tent and with paraffin lamps by the hole. The claimant, an eight-year-old
boy, and a friend climbed into the hole. On their way out the boys knocked one
of the paraffin lamps into the hole. This caused an explosion which badly burnt
the claimant.
The boy was able to claim for his injuries since it was foreseeable that a child
might explore the site, break a lamp and be burnt. The type of injury was
foreseeable, so, even though the explosion was not foreseeable, the defendants
were liable.
In Unit 1 (see Chapter 6) you will have learnt that the two civil courts are:
• The County Court
• The High Court.
Most people who have been injured do not want to start a court case unless they
have to. They will first of all try to negotiate an agreed settlement with the
person who caused their injuries or damaged their property. The vast majority of
cases are settled and do not go to court.

Using the courts to resolve disputes can be costly, in terms of both money and
time. It can also be traumatic for the individuals involved and may not lead to
the most satisfactory outcome for the case. It is not surprising, therefore, that
more and more people are trying other methods for resolving their disputes.
Alternative methods are referred to as ‘ADR’, which stands for ‘Alternative
Dispute Resolution’, and include any method of resolving a dispute without
resorting to using the courts. There are many different methods which can be
used, ranging from very informal negotiations between the parties, to a
comparatively formal arbitration hearing. The main methods of ADR are:
• negotiation
• mediation
• conciliation
• arbitration.
These are explained more fully in Chapter 7.
18.4.2 Pre-action protocols
Parties are encouraged to give information to each other, in an attempt to prevent
the need for so many court cases to be started. So before a claim is issued,
especially in personal injury cases, a pre-action ‘protocol’ should be followed.
This is a list of things to be done and if the parties do not follow the procedure
and give the required information to the other party, they may be liable for
certain costs if they then make a court claim.
The information is usually in a letter explaining brief details of how the claim
arises; why it is claimed that the other party is at fault; details of injury or other
damage; and any other relevant matters. The defendant is then given three
months to investigate the claim and must then reply, setting out if liability is
admitted or if it is denied, with the reasons for the denial. If expert evidence is
going to be needed, then the parties should try to agree to use one expert. This
should lead to many claims being settled, but there will still be some which need
to go to court.

If the other person denies liability or refuses to use ADR, then the only way to
get compensation for the injuries will be to start a court case.
Once the decision is made to go to court, then the first problem is which court
to use. The court to be used will depend on the amount that is being claimed.
There are different limits depending on whether the claim is for personal injuries
or for damage to property.
For personal injury cases where the claim is for £50,000 or less, the case must
be started in the County Court, and for less than £1,000 it is a small claim. For
cases involving damage to property the case must be started in the County Court
if the amount claimed is £100,000 or less and for less than £10,000 it is small
claim.
If the claim is for more than the above amounts (that is over £50,000 for
personal injuries or over £100,000 for damage to property), a claimant can
choose whether to start the case in the County Court or the High Court. If the
case is started in the High Court, then it will be in the Queen’s Bench Division
of the High Court. These limits are shown in Figure 18.6.

If you are using the county court, then you can choose to issue the claim in any
of the 230 or so County Courts in the country. If you are using the High Court,
then you can go to one of the 20 District Registries or the main court in London.
You need a claim form called ‘N1’ (see Figure 18.7). The court office will give
you notes explaining how to fill in the form.
Court staff can help to make sure that you have filled in the claim form
properly, or you may get help from advice centres or a Citizens’ Advice Bureau.
Once the form is filled in you should photocopy it so that you have a copy for
the court, a copy for yourself and a copy for each defendant. Then take the form
to the court office. A court fee for issuing the claim has to be paid. This fee
varies according to how much the claim is for.
At the beginning of 2015, the fee for a claim of up to £300 was £35 with a
gradual increase to £115 for claims between £1,500 and £3,000. Claims of
£5,000 to £15,000 had a fee of £455, while at the top end of the scale claims of
over £300,000 had a fee of £1,920.
Internet Research
Look up court forms such as N1 on the website www.courtservice.gov.uk.
Also use that website to find guidance on starting cases in the County Court.

When the defendant receives the claim form there are several routes which can
be taken. They may admit the claim and pay the full amount. Where this happens
the case ends. The claimant has achieved what was wanted. In other cases the
defendant may dispute the claim. If the defendant wishes to defend the claim, he
or she must send either an acknowledgement of service (Form N9) or a defence
to the court within 14 days of receiving the claim. If only an acknowledgement
of service is sent, then the defendant has an extra 14 days in which to serve the
defence.
If the defendant does not do either of these things, then the claimant can ask
the court to make an order that the defendant pays the money and costs claimed.
This is called an order in default.
Once a claim is defended the court will allocate the case to the most suitable
‘track’ or way of dealing with the case.

The decision on which track should be used is made by the District Judge in the
County Court or the Master (a procedural judge) in the High Court. To help the
judge consider to which track a claim should be allocated, both parties are sent
an allocation questionnaire. If it is thought necessary, the judge can allocate a
case to a track that normally deals with claims of a higher value. Alternatively, if
the parties agree, the judge can allocate a case to a lower-value track.
There are three tracks and these are:
1. The small claims track
This is normally used for disputes under £10,000, except for personal injury
cases where the limit is usually £1,000.
Small claims cases are usually heard in private, but they can be heard in an
ordinary court. The procedure allows the District Judge to be flexible in the
way he hears the case. District Judges are given training in how to handle
small claims cases, so that they will take an active part in the proceedings,
asking questions and making sure that both parties explain all their important
points. The parties are encouraged to represent themselves. In fact they
cannot claim the cost of using a lawyer from the other side, even if they win
the case.
2. The fast track
This is used for straightforward disputes of £10,000 to £25,000. Fast track
means that the court will set down a very strict timetable for the pre-trial
matters. This is aimed at preventing one or both sides from wasting time and
running up unnecessary costs.
Once a case is set down for hearing, the aim is to have the case heard
within 30 weeks. The actual trial will usually be heard by a Circuit Judge and
take place in open court with a more formal procedure than for small claims.
In order to speed up the trial itself, the hearing will be limited to a maximum
of one day and the number of expert witnesses restricted, with usually only
one expert being allowed.
3. The multi-track
This is for cases over £25,000 or for complex cases under this amount. The
case will be heard by a Circuit Judge who will also be expected to ‘manage’
the case from the moment it is allocated to the multi-track route.

Under the Civil Procedure Rules judges are expected to manage a case. Case
management by judges includes:
• Identifying the issues at an early stage;
• Deciding which issues need investigation and trial;
• Encouraging the parties to use alternative dispute resolution if this is
appropriate;
• Dealing with any procedural steps without the need for the parties to attend
court;
• Giving directions to ensure that the trial of a case proceeds quickly and
efficiently;
• Fixing timetables by which the different stages of the case must be completed.
This is all aimed at keeping the costs of the case as low as possible and making
sure that it is heard reasonably quickly.
In all civil cases the judge has to decide if the claim is proved or not. If the
judge decides that the claimant has proved their case, then the judge has to
decide how much to award the claimant for the injury or damage.
The burden of proving the case is on the claimant. This means that to win the
case the claimant has to prove all three elements of the tort of negligence (duty
of care, breach and damage). However, there is an exception to this normal
procedure under what is known as the rule of res ipsa loquitur (things speak for
themselves). This rule is explained in the next section.
The standard of the proof is ‘on the balance of probabilities’. This means the
judge decides who is most likely to be right.
18.5.1 Res ipsa loquitur

In some situations of negligence it is difficult for the claimant to know exactly
what happened, even though it seems obvious that the defendant must have been
negligent. An example of this is where, after an operation in hospital, a patient is
found to have a swab left inside them. The patient does not know how the duty
of care was breached. They would have been unconscious throughout the
operation. They only know that afterwards it has been discovered that there is a
swab inside them.
In such a situation the rule of res ipsa loquitur can be used. This means that
the claimant has to show:
• the defendant was in control of the situation which caused the injury, and
• the injury was more likely than not to have been caused by negligence.
If the claimant can show these two things, then the burden of proof moves to the
defendant who has to prove that he was not negligent.
An example of a case in which the rule of res ipsa loquitur was used is Scott v
London and St Katherine Docks (1865). The claimant was hit by six heavy bags
of sugar which fell from the defendant’s warehouse. The claimant did not know
what had happened to make the bags fall. They could only prove that the bags
had indeed fallen and caused injury to the claimant. The court held that the facts
spoke for themselves and it was, therefore, for the defendant to prove that they
had not been negligent.
In negligence cases the court will award a successful claimant an amount of
money as compensation for the injuries or damage to property they have
suffered. This award is known as damages.
The aim is to place the claimant in the same position as if the tort had not been
committed. This can be fairly easily done where the claim is for damage to
property. However, where the claimant has suffered serious personal injuries,
especially where they have been left with a permanent disability, it is difficult to
place a financial value on their loss.
18.6.1 Pecuniary and non-pecuniary loss

Pecuniary loss is a loss that can be easily calculated in money terms. For
example, if the claimant had to hire a car to use while their own car was being
repaired, then the exact amount of the cost of hiring is known. Also the cost of
repairing the car is a pecuniary loss and the exact cost will be known.
Non-pecuniary loss refers to claims that are not money-based. This will
include the pain and suffering of the claimant due to injuries caused by the other
person’s negligence. It also includes compensation for future changes in lifestyle
which the injuries have caused. This is referred to as loss of amenity. For
example, a person may be left unable to walk as a result of their injuries, or they
may be able to walk but unable to enjoy the activities they did previously. This
would include something like not being able to play football anymore.
An example of non-pecuniary loss is shown in this true life situation. A friend
of the author was a keen ice-skater who had trained for many years and reached
the standard for the British Championships. She was good enough that she
would probably have skated in international competitions. She was knocked
down while crossing the road on a pedestrian crossing controlled by lights. The
driver who knocked her down had failed to stop at the red light. He was clearly
in breach of his duty of care to her. She suffered very serious injuries to her legs.
She was eventually able to walk again, but with difficulty, and she was unable to
skate. As well as damages for her injuries and the pain and suffering, she was
awarded a sum of money for the loss of her enjoyment of ice-skating. The judge
also included an amount as compensation for the fact that she was prevented
from representing her country and taking part in international competitions. All
this was non-pecuniary loss.
The claimant is entitled to be compensated for his loss, but he or she is under a
duty to keep the loss to a reasonable level. This is called mitigation of loss.
For example, where a person has been injured due to the negligence of another
person, the injured person cannot claim for private treatment for the injury if
there is suitable treatment available under the National Health Service. However,
if there is a need for plastic surgery which can only be carried out privately, then
the cost of it is allowed as part of the damages awarded to the claimant.
Where there is damage to property, the same principles apply. The claimant
cannot claim for expensive items, if the damaged original was not expensive. An
example here would be if the claimant’s car was damaged and needed repairs
before it could be driven. While the car is off the road, the claimant is entitled to
the cost of hiring a car. However, the claimant cannot claim the cost of hiring a
luxury car at a very high cost when his own car is only a basic small three-door
model.
If some of the claimant’s property is lost or damaged beyond repair as a result
of the defendant’s negligence, the claimant is entitled to the cost of that property
as part of the award of damages. But again, the claimant cannot claim the full
cost of replacing the item(s) with very much more expensive ones.
18.6.3 Special and general damages

Special damages
This is the term for damages which can be calculated specifically. In other words
it is the damages for pecuniary loss. This could be the cost of repairing a car,
hiring a replacement, or replacing damaged clothing. It could also include any
loss of earnings through absence from work that has already taken place.
Test Yourself
1. Which two courts deal with negligence cases?
2. Give two methods of alternative dispute resolution which could be used to
settle a negligence claim.
3. What is a ‘pre-action protocol’?
4. How does a claimant start a court case?
5. What are the three tracks and what are their financial limits?
6. What is meant by ‘case management’?
7. What is the standard of proof in a civil claim for negligence?
8. Explain how the burden of proof differs where there is res ipsa loquitur.
9. What is ‘non-pecuniary’ loss?
10. What is meant by special damages?
General damages
This is the term for damages awarded for non-pecuniary loss. They can include
an amount for pain and suffering, loss of amenity and also for future loss of
earnings. It can also include an amount for any future nursing at home that may
be needed, or for adapting a house to be suitable for a disabled person.
18.6.4 Lump sums and structured settlements

When the courts make an award of general damages for pain and suffering and
for loss of amenity, they can only award a lump sum.
This can be unfair to the claimant whose condition might become worse. Also,
where a very large amount of money is awarded for future nursing needs, there
is the problem of inflation. This is because the value of money goes down a bit
each year, so after ten years the value of the money will be considerably less and
may not be enough to pay for the needs of the claimant.
Example
Andrew turns out from a side road on to a main road without stopping. Beth is
driving along the main road and Andrew crashes into her car. Beth suffers a
broken leg and her car is badly damaged.
Beth, who is self-employed, is unable to work for two months and she is left
with a limp and can no longer enjoy her hobby of line dancing.
Damages will be awarded to Beth for the following:
In other cases such a one-off award of a lump sum might be unfair to the
defendant. This would be where the claimant’s condition improves considerably
and they no longer need to pay for nursing, or perhaps they even recover enough
to be able to work again.
Structured settlements
It was suggested by the Pearson Commission on Personal Injuries that there
should be some method of reassessing the claimant’s needs from time to time.
This suggestion has not been brought in so far as the courts are concerned.
However, the Damages Act 1996 does provide for structured settlements. It
allows parties who settle the claim to agree that all or part of the amount agreed
will be paid as periodical payments, that is so much a month or a year. This is set
up by the defendant (or his insurer) who will purchase an annuity through a
financial company. This is done by the defendant paying in an agreed amount of
money to the financial company, who then pay a set amount at regular intervals
to the claimant.
The Damages Act also allows parties to agree that the payments may be made
for life or for a specific period (e.g. 10 years). The amount can also be reassessed
at intervals to ensure that its value in real terms is maintained.
This type of settlement protects the claimant whose condition may become
worse. At the same time it can also be fairer to the defendant who will only have
to pay while the claimant’s condition requires it.
The courts have no power to order such structured settlements.
Tom, aged three, is a child actor. He was filming a new TV drama series set in
a small fishing village. He had an important part in the series and he was due to
appear in every episode. Una is Tom’s nanny. She specialises in being a nanny
to child actors.
During a break in filming, Tom was playing close to the edge of the harbour.
Una did not notice because she was reading her phone messages. Tom slipped
and fell into the harbour. He was seriously injured, and had to be replaced in
the drama series. As a result Tom lost filming fees of £70,000, and lost a
further £30,000 for being unable to appear in related advertisements.
Negligence requires proof of duty of care, breach of duty and damage.
(a) Explain how the law decides whether a duty of care is owed in negligence.
(8 marks)
(b) Breach of duty of care involves the failure to reach the standard of the
reasonable man, taking into account various risk factors.
In relation to breach, briefly explain how the law sets the standard of the
reasonable man and briefly explain any one risk factor that may affect the
standard.
(8 marks)
Refer to the scenario when answering the remaining questions in this section.
(c) Assume that Una owes a duty of care to Tom. Discuss whether she was in
breach of that duty.
(d) Briefly explain the principle of res ipsa loquitur and briefly discuss
whether it applies in the case of Una and Tom.
(8 marks)
(e) Damage in negligence involves the rules of factual causation and the rules
of remoteness of damage. Outline these rules and assuming that Tom was
suing Una for negligence, briefly discuss whether Tom could recover from
Una the £70,000 and the further £30,000 loss.
(8 marks)
(f) Outline the three-track case management system used in the civil courts and
briefly explain which track and which court is most likely to be used in any
claim that Tom makes against Una.
(5 marks)
Examiner’s tip
You must know the three elements of negligence thoroughly. Questions are
likely to ask you to explain at least one of these elements. They are also
important in applying the law to the situation in the question.
Chapter 19
Law of Contract
A contract is an agreement that is legally binding. This means that if there is a

dispute over a contract, the courts are prepared to hear the case and give a
judgment on it.
In order for the courts to recognise an agreement as a contract, four main

elements must be present. These are:
• an offer;
• an acceptance of that offer;
• intention to create legal relations;
• consideration.
The legal rules for each of these are considered in the next sections.
19.1 Offer
An offer is a proposition or suggestion put by one or more persons to another
person or persons. The court will only recognise an offer as being a valid offer if
it is intended as an offer. An example of an offer is going to a second-hand car
garage and saying to the manager ‘I will sell you my car for £1,500.’ You have
put a clear proposition to the manager. He can choose to accept this offer or
reject it.
The person making the offer is called the offeror. The person to whom the
offer is made is called the offeree.
19.1.1 Distinction between offer and invitation to treat

There must be a legally recognised offer, if the other person is to accept it. What
is known as an invitation to treat is not recognised by the law as an offer.
An invitation to treat is where the other person is inviting you to make an
offer. The other person can then consider your offer and accept or reject it. Three
important situations which are always invitations to treat and not offers are:
• articles for sale on display in a shop window or on a shelf in the store;
• advertisements of items for sale in newspapers, magazines, catalogues or on
the internet;
• auction sales.
Articles displayed for sale

The case of Fisher v Bell (1961) demonstrates that items displayed in a shop are
only invitations to treat, even though there is a price marked on them. In Fisher v
Bell a shopkeeper had a display of flick knives in his shop window with the price
shown. It was held that this was not an offer. The display was an invitation to
treat. In this situation a customer who went into the shop and asked to buy a flick
knife would be making an offer to buy one. The sales person in the shop could
accept that offer and sell the customer a knife or refuse the offer and not sell.
Another case where it was held that displaying an item on a shelf in a shop is
only an invitation to treat is Pharmaceutical Society of Great Britain v Boots
Chemist (1953). In this case it was decided that drugs on shelves in a chemist
shop were not an offer to sell those drugs. It was only inviting customers to offer
to buy the drugs. In contract law it was an invitation to treat and not an offer.
This distinction is important as it means that the offer is made by the customer
at the checkout and can be accepted or refused by the cashier. This decision is
important for self-service stores as it means they can include items on their
shelves which have by law to be supervised at the moment the contract for the
sale of the item is made. The sale of drugs has to be supervised by a pharmacist.
Also sales of alcoholic drinks have to be supervised at the point of the contract
of sale to ensure that they are not sold to anyone under 18 years old.
If the rule in contract was that the display of goods on a shelf was an offer,
then this would mean that the customer would accept the offer when he or she
picked up the item. The contract for sale would be complete at that point and, in
order to supervise the sale, the store would need to have a member of staff
standing by every customer who picked up a bottle of wine or beer. As the law
stands, the offer is made by the customer at the checkout. This decision makes it
easier for stores to supervise such sales.
Magazine adverts
Adverts offering items for sale are usually invitations to treat. This was decided
in Partridge v Crittenden (1968) where an advert to sell wild birds was printed
in a magazine. It was held that this was not an offer but only an invitation to
treat.
This decision avoids any problems that could arise if demand exceeded
supply. Suppose there was an advert for ‘six adorable puppies for sale at £50
each. Apply in writing to…’. If this was an offer, then people writing in to buy
the puppies would be accepting the offer. So, if 10 people wrote on the same
day, it would lead to an impossible situation of 10 contracts but only six puppies.
This illustration makes it easier to see why the courts have held that the original
advertisement is not an offer. It is only an invitation to treat. The person who
responds to the advertisement is making the offer and the advertiser can choose
whether to accept that offer or not.
This same rule applies to advertisements made in a catalogue or newspaper
and also to items advertised on the Internet. The only exception is what is known
as a ‘reward poster’. Reward posters can be offers.
Reward posters
A reward poster is a written document which is exhibited so that people can see
it. It makes an offer to pay a reward if the person seeing the poster does what is
set out in the poster. The most common reward posters are to pay for the return
of a missing animal, but there are other situations where it has been ruled that
there was a reward poster and, therefore, an offer.
An important case on this point was Carlill v Carbolic Smoke Ball Co (1893).
In this case a company, which made smoke balls which could be used as an
inhaler, published an advertisement poster. This set out that the correct use of a
smoke ball could prevent or cure a number of diseases, including influenza. The
poster also stated that there was a ‘£100 reward’ to anyone who used a smoke
ball in the correct manner but still caught influenza. Mrs Carlill saw this poster,
bought a smoke ball, used it as directed but unfortunately still caught ‘flu.
She claimed the £100 reward money from the company but they refused to
pay. She sued them for the money and the court held that the advertisement
poster was an offer. This meant that Mrs Carlill had accepted that offer when she
used the smoke ball. There was a contract and Mrs Carlill was entitled to the
£100.
Auctions
In Payne v Cave (1775) it was held that an auctioneer asking for bids was not
making an offer. It was only an invitation to treat. In that case at the auction, the
auctioneer asked people to bid. The defendant made a bid, but then withdrew it.
The auctioneer claimed that by asking for bids he, the auctioneer, had made an
offer and the defendant had accepted that offer by bidding. It was held that
asking for bids was only an invitation to treat. It was not an offer and so could
not be accepted.
At auctions a bid made by a person at the auction is an offer. This offer can be
accepted or rejected by the auctioneer. Also, as an offer can be withdrawn at any
time before it is accepted, a bidder can withdraw the bid before the auctioneer
accepts it by banging his hammer.
19.1.2 The terms of the offer must be certain

The offer must be certain. That means it must be definite in its terms that if it is
accepted both parties know what they have agreed to. An offer to employ a
secretary and ‘to pay a London salary’ is not certain. The salary is not definite
enough.
19.1.3 Communication of offer

The offer may be communicated by any method. An offer can be in writing,
spoken or even by conduct.
It is not necessary to make an offer in writing. There are many everyday
contractual situations where an offer is made orally or even by conduct. An
example is where someone wants to buy a pair of jeans.
This can be done by taking the jeans from the sales rack and saying to a sales
person ‘I’d like these jeans’. That is a verbal offer to buy the jeans at the price on
the label. Or it is possible to make an offer without saying anything. This
happens where the customer takes the jeans to the checkout and places them on
the counter by the till without speaking. Placing the item on the checkout desk is
an offer to buy those jeans. In fact the contract can be completed without anyone
speaking when the checkout operator accepts the offer by ringing up the price of
the jeans on the till.
A common example of making an offer by conduct is at an auction. The
person making the bid (offer) will do so by nodding their head or raising a hand
or making another signal to show that they are bidding.
The offer can be to anyone

An offer can be made to one specific individual or to a group of people or to the
whole world. The person making the offer decides whether to make an offer to
only one person or to more than one. For example, if Adam offers to sell his car
to Brian for £2,000 and Chris overhears this, the offer has only been made to
Brian. Chris cannot accept that offer: it was not made to him.
However, if Adam says to a group of friends, which include Brian and Chris,
‘Do any of you want to buy my car for £2,000?’, then anyone in the group can
accept the offer.
It is also possible to make an offer to the whole world, so that anyone who
wishes can accept the offer. This was the position in Carlill v Carbolic Smoke
Ball Co (1893) (see section 19.1.1) where the advertisement poster was an offer
to anyone who read it. Mrs Carlill read it and so could accept the offer.
The offer must be communicated before it is effective

The person doing the conduct needed to accept the offer must know about the
offer when he does that conduct. For example, if Mrs Carlill had not seen the
advertisement poster offering a reward of £100 before she used the smoke ball,
then the offer would not have been communicated to her and she could not have
accepted it.
Another situation would be where someone advertises a reward of £25 for the
return of their lost cat. Zita sees the cat some streets away, and knows that it
belongs to her friend. She takes the cat back to the owner, but has not seen the
poster offering the reward of £25. The offer has not been communicated to Zita,
so she cannot claim the £25, even though she has returned the cat.
Offers sent by post

If an offer is sent by post, then it is communicated when it arrives.
19.1.4 Duration of offer

If the offeror sets a time limit for the acceptance of the offer, the offer only
exists during the set times. For example, if the offeror says that the offer must be
accepted by next Monday, then the offer only exists until Monday. If someone
tries to accept it on Tuesday it is too late; the offer no longer exists.
If the offeror does not set a time limit then the offer remains open for a
reasonable time. What is reasonable will depend on the type of offer. If it is an
offer to buy fresh food, then the courts would probably hold that it was only
open for a few days. Where the offer is for more long lasting items then the offer
will remain in existence for longer, but it is unlikely to be held that it exists
indefinitely.
In Ramsgate Victoria Hotel Co Lt v Montefiore (1866) Montefiore offered in
June to buy shares which a company was going to issue. The issue of the shares
did not happen until November. It was held that Montefiore’s offer to buy the
shares had lapsed.
19.1.5 Revocation of offer

The person making the offer (the offeror) can withdraw the offer at any time
before it is accepted. This is known as revocation of the offer. This is what
happened in Payne v Cave (1775) (see above) where the bidder withdrew his bid
(offer) before the auctioneer accepted it.
However the person to whom the offer has been made (the offeree) must
know that the offer has been revoked. This caused problems in Byrne v van
Tienhoven (1880). In this case the defendants, who were in England, wrote on
1st October offering to sell 1000 boxes of tinplate to the claimants, who were in
New York. This offer arrived at the claimants on 11th October. The defendants
then changed their mind and wrote on 8th October revoking their offer. This
letter arrived at the claimants’ office in New York on 20th October. In the
meantime the claimants telegraphed their acceptance of the offer on 11th
October.
This made it important to decide on which date the offer ceased to exist. Was
it on the 8th when the letter of revocation was posted or was it on the 20th when
the letter of revocation arrived at the claimants’ office. The court decided that
the revocation was on the 20th when the letter arrived. So the offer was still in
existence on the 11th when the claimants accepted it and there was a contract
between the parties.
This complicated date sequence is easier to understand by showing it in
diagram form – see Figure 19.1.
Activity
1. Anya receives a mail order catalogue from Look Smart Ltd advertising
clothes. Anya orders a pair of combat trousers costing £40. Two weeks later
she receives a letter from Look Smart Ltd, returning her cheque and telling
her that they do not have the combat trousers in her size.
Anya believes Look Smart Ltd are in breach of contract.
Advise Anya.
2. Brendan finds a dog running loose in the street about 5 miles from his
home. When he looks at the name tag on the dog’s collar, he realises it is
his neighbour, Cassie’s dog that has been missing for two days. He takes
the dog back to Cassie. As Brendan is leaving Cassie’s house he sees a
notice in her window saying that she will pay £100 for the safe return of the
dog. Brendan immediately goes back to Cassie and demands the £100.
Cassie refuses to pay.
Advise Brendan whether he is legally entitled to claim the £100.
3. Darvinder offers to sell a painting to Emily for £600. Emily says she likes
the painting but can only afford to pay £500. Darvinder says he will not
accept £500. Emily then agrees to pay the full price of £600. Darvinder
refuses to sell the painting to her.
Advise Emily as to whether she has a contract to buy the painting at £600.
4. Ferdinand buys Zap-clean, a new brand of stain remover. Ferdinand has
seen an advertisement which states: ‘Zap-clean will remove all ink stains.
£25 will be paid if it fails to work for you.’ Ferdinand uses Zap-clean
according to instructions but it does not remove the ink stains from his shirt.
Advise Ferdinand whether he has a legal claim to the £25.
19.1.6 Rejection of offer

An offer also ceases when it is rejected. So let’s look at the example where
Adam offers to sell his car to Brian for £2,000. If Brian says no, he does not
want to buy the car, then the offer ceases at the moment he says no. If Brian
changes his mind and the next day tells Adam that he does want to buy the car,
there is no offer for him to accept so there is no contract.
What has happened is that Brian is now making an offer of his own to Adam
to buy the car and Adam can accept or reject that offer.
19.1.7 Counter-offer
An offer also ceases to exist if the offeree makes a counter-offer rather than
accepting the original offer. For example, in the scenario above, if Brian instead
of saying no, had said ‘I’ll give you £1,800 for the car’, this is a counter-offer.
Its effect is the same as a rejection: it puts an end to the offer.
A situation like this happened in Hyde v Wrench (1840) where the defendant
offered to sell his farm for £1,000. The claimant initially counter-offered to buy
it for £950. The defendant refused this counter-offer. The claimant then said he
would buy the farm for the original asking price of £1,000. The claimant claimed
that there was a contract as he had now agreed to the original price.
The court decided that the counter-offer of £950 terminated the offer, so there
was no offer in existence when the claimant agreed to pay the original price.
Therefore there was no contract.
Figure 19.2 shows this sequence as a time line.
19.2 Acceptance
An acceptance is an agreement to an offer. In order to form a contract, the
acceptance must agree to all the terms of the offer. If the acceptance does not
agree to all the terms, it is a counter-offer and not an acceptance. We have
already seen this in Hyde v Wrench (1840) (see section 19.1.7).
However, a person can ask for more information before deciding to accept the
offer. This is what happened in Stevenson v McLean (1880). The defendant
offered to sell iron to the claimant, the offer to remain open until the next
Monday. The claimant replied by asking if he might buy the goods on credit. He
did not receive a reply from the defendant so on Monday, Stevenson telegraphed
a full acceptance. The court held that asking if he could buy the goods on credit
was a mere request for information, so the offer remained open and was accepted
when the defendant received the telegram on the Monday.
An acceptance must be by the person to whom the offer was made. Another
person who hears the offer made cannot try to accept it as the offer was not to
them. However, there are situations in which the offer is to the whole world, so
any one can accept it. This was so in Carlill v Carbolic Smoke Ball Co (1893)
with the reward poster (see section 19.1.1).
19.2.1 Method of acceptance

The person who makes the offer can set out a specific way for the offer to be
accepted. For example, an offeror may say that the acceptance has to be in
writing or that it has to be made in person.
If there is a specific way in which the acceptance has to be made, then only
that method will do. This is shown in Eliason v Henshaw (1819) where the
claimant offered to buy flour from Henshaw. The offer said that the acceptance
had to be given to the waggoner who had delivered the offer. Instead of doing
this, Henshaw sent his acceptance by post. The letter of acceptance arrived after
the waggoner had returned. The court held that it was not a valid acceptance as
Henshaw had not communicated by the method specified by Eliason.
If there is no prescribed way of communicating the acceptance then any
effective method will do. The important point is that the method must be
effective. For example, if a person telephones the offeror to accept the offer and,
just as he is saying that he accepts, the telephone line goes dead so that the
offeror does not hear the acceptance, then this is not effective acceptance.
19.2.2 Communication of acceptance
The normal rule is that acceptance must be communicated to the offeror.
However, the offer can set out that it can be accepted by communication to
another person who is acting as agent for the offeror.
Silence
It is not possible to accept an offer by staying silent. This was illustrated in
Felthouse v Bindley (1862) where the defendant had had a discussion about the
possibility of the uncle buying a horse from the nephew for either £30 or 30
guineas (£30.75). The uncle then wrote to his nephew and stated, ‘if I hear no
more about it I will consider the horse to be mine’. The nephew did not reply but
ordered the auctioneer to withdraw the horse from open sale. By error the horse
was auctioned and Felthouse sued, claiming that he had a contract with his
nephew to buy the horse. It was held that as the nephew had not communicated
acceptance of the offer, there was no contract.
19.2.3 Postal rules on acceptance

Postal acceptance is an exception to the rule that acceptance must be
communicated effectively. If the use of the post is a reasonable method of
accepting, then the acceptance is assumed to have been made at the moment it is
posted. This is a very old rule and is illustrated in the case of Adams v Lindsell
(1818).
On 2 September 1817 the defendants wrote to the claimant offering to sell
some wool and requiring an answer in the ‘course of post’. Because the letter
making the offer was incorrectly addressed, it did not arrive until 5 September.
That same evening, the claimant posted his letter of acceptance. This arrived on
9 September. In the normal course a reply would have been expected on 7
September. So, on 8 September, the defendants sold the wool to someone else.
It was held that a contract between the claimant and the defendants came into
being on 5 September when the claimant posted his letter of acceptance. This
meant that the defendants were in breach of contract when they sold the wool to
someone else on 8 September.
The sequence of events is set out as a time line in Figure 19.4.
Posting means placing the letter of acceptance in a post box or into the hands
of a Post Office employee authorised to receive letters. Handing a letter to a
postman authorised only to deliver letters is not’ posting’ and so does not count
as a valid acceptance at that point. It can, however, become a valid acceptance
when it is received by the offeror.
Letter lost in the post
In Household Fire Insurance v Grant (1879) it was decided that even if the letter
was lost in the post the postal rule on acceptance would still apply. In this case
Grant had made a written offer to purchase shares in a company. A written
notice of acceptance was posted to him, but this was never received by him.
When the company went into liquidation, Grant claimed that he was not a
shareholder as he had never received the acceptance of his offer to buy, and that
he was not therefore liable for the value of the shares. It was held that the
acceptance was effective when it had been posted. Grant had become a
shareholder even though he did not know it.
Test Yourself
1. What is the difference between an offer and an invitation to treat?
2. Give two examples of invitations to treat.
3. Do offers have to be in writing?
4. If an offer is sent by post when is it communicated?
5. Give two ways in which an offer can be revoked.
6. What is a counter-offer and what effect does it have on the original offer?
7. When is an acceptance normally communicated to the person making the
offer?
8. Can silence be an acceptance of an offer?
9. What is the rule on an acceptance which is sent by post?
10. If an acceptance is sent by email, when will it be considered to have been
communicated to the person making the offer?
19.2.4 Modern methods of communication

In Entores v Miles Far East (1955) the dispute was over communication of an
acceptance by telex. It was decided that transmission and receipt of a telex was
virtually instantaneous. The normal rules of communication of acceptance
applied. This meant that a telex was communicated when it arrived. However, in
Brinkibon Ltd v Stahag Stahl (1982) the situation was that a telex had been
received out of office hours. The House of Lords held that the acceptance took
effect at the start of the next working day.
Activity
1. Sandeesh emails Tina offering to sell her some jewellery. Sandeesh asks
Tina to let her know if she wants the jewellery by 6pm the next day
(Tuesday). Tina is having problems with her computer and cannot access
her email until Wednesday. When she reads Sandeesh’s email she
immediately emails back that she will buy the jewellery.
Advise Sandeesh if she has to let Tina have the jewellery.
2. On Wednesday Victor writes to Umberto offering to sell him an antique
clock for £700. Umberto receives the letter on Friday and immediately
writes and posts a letter agreeing to buy the clock. On Sunday, while at an
antique fair, Victor is offered £800 for the clock by Xavier. As Victor has
not heard from Umberto he sells the clock to Xavier.
On Monday morning Victor telephones Umberto and leaves a message on
his answer phone saying that the clock is no longer for sale. Umberto listens
to the message that evening. On Tuesday morning Victor receives
Umberto’s letter.
Explain to Umberto whether or not he has a contract to buy the clock
3. Yuri and Zahir have had several discussions about the possibility of Yuri
buying Zahir’s motorbike. In their last discussion they look at an advert for
another bike which is exactly the same as Zahir’s which is advertised at
£1,750. They agree this would be a fair price for such a bike. Later that
evening, Zahir texts Yuri saying ‘Happy to sell at £1,750. If you don’t text
back, I assume you will buy’. Yuri does not reply to the text.
Advise Zahir whether or not he has a contract to sell the bike to Yuri at
£1,750.
Although the use of telex has now been replaced by more modern methods of
communication, the same principles will apply to acceptance of modern methods
such as email, texting or fax. That is, the acceptance is normally communicated
when it arrives. But if the communication is to a business and it arrives out of
office hours, it will be communicated at the start of the next working day.
19.3 Intention to create legal relations
There are some agreements where, even though there is a valid offer and
acceptance and consideration (see section 19.4), the courts may still decide that
the agreement is not enforceable. This is because at the time the parties made
their agreement they did not intend it to be legally binding. In order to decide
whether an agreement was intended to be legally binding the courts have
different rules for social/domestic agreements and for business/commercial
agreements.
19.3.1 Commercial agreements

If the agreement is a business one, then the courts start by presuming that the
agreement is legally binding. This means that the courts assume that the parties
intended to enter into a legally binding contract, unless there is evidence to the
contrary.
In McGowan v Radio Buxton (2001) the claimant entered a radio competition
for which the prize had been stated to be a Renault Clio car. The claimant was
told she had won the competition but was given a four-inch scale model of a
Clio. The defendants argued that there was no legally binding contract. The
judge held that there was intention to create legal relations. The claimant had
entered the competition as a member of the public and that ‘looking at the
transcript of the broadcast, there was not even a hint that the car would be a toy’.
However, if one of the parties can show that this was not meant to be the
situation, then the court may decide that there is not a binding contract. This
occurred in Rose & Frank Co. v Crompton (1925) where the parties had included
in their written agreement the words ‘this agreement is not entered into as a
formal or legal agreement and shall not be subject to legal jurisdiction in the law
courts’. It was held that these words made it quite clear that the parties had not
intended their agreement to be a legally binding contract.
The courts have also held that using the words ‘binding in honour only’ means
that the agreement is not intended to be legally binding. This phrase is usually
used on football pools entry forms. This means that when a person enters the
football pools competition, he is agreeing that there is no legally binding
contract between him and the pools company. This means that if he correctly
forecasts the results of the football matches, the company is not obliged to pay
him any winnings. The person cannot sue the company as the words binding in
honour only show there is no intention to enter in to legal relations. This
happened in Appleson v Littlewood Pools (1939).
19.3.2 Social and domestic agreements

Where the agreement is between family members the courts start by presuming
that it was not intended to be legally binding. An example is Balfour v Balfour
(1919) where a husband, who worked in Sri Lanka, agreed to pay his wife £30 a
month when she was unable to go to Sri Lanka with him due to illness. When the
husband stopped paying the £30, the wife was not able to enforce the agreement
in the courts. It was held it was a purely domestic arrangement and the parties,
when the agreement was made, did not intend it to be a legally binding contract.
Similarly, in Jones v Padavatton (1969) a daughter was unable to enforce an
agreement with her mother. The daughter had agreed to give up her highly paid
job in New York and study to become a barrister in England. The mother
promised to give the daughter an allowance during her studies. The daughter
found it difficult to manage on the allowance, so the mother bought a house for
her to live in part of it and let the other part for extra income. When the mother
and daughter later quarrelled, the mother sought to repossess the house. The
daughter’s case was that the agreement over the house was legally binding: the
courts held that it was not: there was no intent to create legal relations.
However, if one of the parties can show that the agreement was intended to be
legally binding then the courts will accept that and there will be a valid contract.
This happened in Merritt v Merritt (1970) where a husband had deserted his wife
for another woman. The husband and wife agreed that the husband would pay
income to the wife if she paid the mortgage on their former home. It was held
that this was intended to be a legally binding agreement.
Also in Simpkin v Pays (1955) the defendant, her granddaughter and the
claimant, who was a lodger in the house, jointly entered a competition. The
entry, which was sent in under the defendant’s name, won £750, but the
defendant refused to give the claimant any of the prize money. She sued for one-
third of the prize and the court held that the arrangement had been intended as a
legally binding contract, so she could get her share.
Chapter 1 at Source E shows an article about an agreement to enter the lottery.
A court case was started, but the parties settled the case, so the court did not
have to make a decision.
Activity
Read Source E on pages 4–5 and decide if there was a legally binding
agreement or not. Explain your reasons for your answer.
19.4 Consideration
Consideration is what the parties put into the contract. It is what they contribute
to the bargain. Both parties must contribute something to the agreement. It must
be certain: a vague promise is not enough. It must be real and have some value,
though that value can be very small.
Clear examples of good consideration are:
• money;
• goods;
• performing a service;
• stopping doing something.
19.4.1 Nature of consideration

The consideration has to be real. It must have some value, but it need not match
the ‘value’ put in by the other person. An example of the value not matching is
in this invented scenario. If Matt promises to pay Nina £100 if she will give him
a can of lager, then both are contributing something to the bargain. There is real
consideration from both parties. Nina is going to give Matt a can of lager and
Matt is going to pay Nina £100 for it. It does not matter that the value of the
lager is much less than £100.
This point was considered in Chappell & Co v Nestle Ltd (1960). The House
of Lords held that three chocolate bar wrappers could be valuable consideration
in the situation where a customer sent in the three wrappers (and money) in
return for a music record.
Also, in Thomas v Thomas (1842) a husband, before his death, expressed the
wish that his wife should be allowed to remain in their home. He had not put this
into his will but, when he died, his executors carried out this wish and charged
the widow a nominal ground rent of £1 a year. Later the executors tried to get
the widow out of the house. It was held that the £1 she was paying was
consideration and there was a valid contract between the executors and the
widow.
So, if the parties are agreed on the matter, it does not matter that the
consideration is of very low value, provided it is tangible and has some value.
19.4.2 Intangible matters cannot be good

consideration
The consideration must be real and tangible. In White v Bluett (1853) it was held
that there was no consideration. In this case a son owed his father money. When
the father died his executors tried to recover the debt. The son claimed that he
did not have to pay the debt as he had had an agreement with his father that the
debt would be forgotten in return for the son’s promise not to complain about the
distribution of the father’s assets in his will. The court held that the son’s
promise was too intangible to be consideration, so he had to pay the debt to the
executors.
However, in the case of Ward v Bytham (1956) it was held that a promise to
keep a child well looked after and happy was good consideration. The child’s
father had promised the mother money towards the upkeep of the child if she
would keep the child ‘well looked after and happy’. When the father stopped
paying the mother sued him for the money. The father argued that the mother
was doing no more than she was already obliged to do in looking after her child.
The court was prepared to enforce the agreement since there is no obligation in
law to keep a child happy. The promise to do this was good consideration.
Activity
1. Louie needs a law textbook for his course. The local bookshop has run out
and so Louie asks a fellow student, Monique, who has a car, if she will
drive to the bookshop in the next town and get the book. Monique does this
and when she returns gives the book to Louie. He gives Monique the cost of
the book and says that when he gets his wages for his weekend work, he
will pay her another £10 for the cost of her petrol. Louie does not pay
Monique the £10.
Advise Monique whether there is a legally enforceable agreement in respect
of the £10.
2. Nigella rents a flat belonging to Omar. Nigella redecorates all the rooms.
Omar is pleased when he sees the rooms and promises Nigella that he will
pay her £40 towards the cost of the paint. Two months later Omar has still
not paid the £40 to Nigella.
Advise Nigella whether she is entitled to claim it from Omar.
3. Paul wants his son, Richard, to give up smoking. Paul promises to buy
Richard a motorbike, costing £4,000, if Richard does not smoke for two
months. Richard does stop smoking for two months, but his father then says
the motorbike is too expensive and gives him £500 instead.
Advise Richard whether he can claim the extra cost of the bike.
19.4.3 Past consideration

Where the thing that you are offering to put into the contract has already
occurred, then it cannot be good consideration for a contract you make now.
This is shown by Re McArdle (1951) in which a widow had been left a house
for her to live in during her lifetime. She repaired and decorated the property.
After she had done this her children, who were the ultimate beneficiaries (that is
they were to inherit the house when the widow died) promised to pay towards
the improvements. But they did not keep this promise. It was decided that the
payment could not be claimed as the widow had already finished the work when
the promise was made. This meant that it was in the past when the agreement
was made. It was not, therefore, good consideration.
There is an exception to this rule. This occurs when one party has asked the
other to act and, although payment is not specifically mentioned at the time, it is
implied that the work or service will be paid for. If the other party later promises
payment for what has just been done at his request, then the courts will enforce
that promise. This idea comes from the old case of Lampleigh v Braithwaite
(1615).
In that case Braithwaite, who had been tried and sentenced to death, asked
Lampleigh to travel to the King and seek a pardon for him. Lampleigh did this
successfully. Braithwaite was so pleased that he promised to pay Lampleigh
£100. He failed to make this payment and Lampleigh sued him. The court
decided that Lampleigh should receive the money even though he had already
got the pardon for Braithwaite when the promise was made. This was because he
acted at Braithwaite’s request.
19.5 Breach of contract
Breach of contract can be either an actual breach or an anticipatory breach.
An actual breach of contract occurs where one party either fails to perform his
or her side of the contract or performs it improperly. An anticipatory breach is
where one party is due to perform their part of the contract in the future and,
before the date for performance, they inform the other party they will not be
performing the contract.
19.5.1 Actual breach

An actual breach can be either through:
• non-performance or
• improper performance.
Non-performance
An obvious example of this is where one party is due to sing at a concert and
will be paid by the other party for this. If the singer fails to come to the concert,
then this is an actual breach.
There can also be an actual breach where it is not quite so obvious. An
example is the case of Pilbrow v Pearless de Rougemont & Co (1999). In this
case a man arranged to see a solicitor for advice on a legal point. When he went
to the solicitor’s office, his case was not dealt with by a solicitor (or even by a
legal executive). When he realised the case had not been handled by a solicitor,
the man refused to pay the full bill. The solicitors’ firm sued him for the balance
of the bill. The Court of Appeal held that the contract was to provide the services
of a solicitor. So, even though the advice was correct, there was an actual breach
of contract. The contract had not been performed.
Improper performance
This occurs where the contract is performed but not quite as agreed in the
contract. An example is Bunge Corporation v Tradax Export SA (1981) where a
buyer was required by the contract to give at least 15 days’ notice of readiness to
load a ship. In fact the buyer only gave 13 days’ notice. This was improper
performance of the contract.
19.5.2 Anticipatory breach
In some contracts there is an agreement to do something in the future, for
example a band may agree to perform at a rock festival on 15 June next year. If,
in April, two months before they are due to perform the band splits up and says
that they will not do the concert, this is an anticipatory breach. The contract is
not due to be performed until 15 June but the other person need not wait until
then to claim for breach of contract. He can claim once it has been made clear
that the band will not perform, that is in anticipation of the breach.
A case example is Hochster v de la Tour (1853) where a man was hired to
work as a courier. The work was due to start two months after the contract was
made. One month after the making of the contract, the defendants wrote to the
man cancelling the contract. This was an anticipatory breach of contract and the
man was entitled to sue the defendants straight away.
An important point in anticipatory breach cases is that the innocent party can
sue for breach of contract immediately once the breach has occurred. It is not
necessary to wait until the date the contract was due to be performed.
If there is a breach of contract, the innocent party can sue in the courts for
damages. Being awarded damages means that the court states the amount of
money that the defendant must pay the successful claimant. The aim is to place
the claimant in the same position as if the contract had not been broken. The
court is compensating the claimant for his loss.
Loss
Take the example where the claimant had a contract to buy parts for use in
machines he was making and the defendant failed to deliver the parts. As a
result, the claimant had to buy the parts at a higher price from another supplier.
Here the loss is the difference in price between the price in the contract with the
defendant and the higher price that the claimant had to pay.
Loss can arise in various ways. If you look at the case of Stansbie v Troman
(1948) in the next section (19.6.1), you will see that the loss was the value of
goods stolen as a result of the defendant’s breach of contract. In Anglia
Television v Reed (1972) (see section 19.6.2) the loss was the cost of doing
preparatory work for a television film. While in Victoria Laundry v Newman
Industries Ltd (1948) (see section 19.6.2), the loss was loss of profits.
19.6.1 Causation
This is a question of fact as to whether the breach has been the main cause of the
loss.
If the loss arises partly from the breach and partly as the result of intervening
events, the party in breach may still be liable provided that the chain of causation
is not broken.
In Stansbie v Troman (1948) a decorator was entrusted with the keys to the
premises where he had a contract to decorate. When he left the premises
unlocked a thief entered and stole property. It was held that the decorator was
liable for the loss as it had resulted from his failure to comply with his
contractual duty to lock the premises when he left.

The law does not allow a claim for loss which is considered to be too remote a
consequence of the breach. This rule comes from Hadley v Baxendale (1854).
The claimant owned a mill and ordered a new driving shaft for it. This was to be
delivered by the defendant. The defendant was late in delivering the shaft and
the claimant sued for breach of contract.
The claimant tried to claim for loss of profit as the mill had been out of action
while waiting for the new shaft. It was held that as the defendant did not know
that the mill could not operate without the shaft, the loss of profits was too
remote.
The case decided that damages should be awarded where:
(a) they arose naturally from the breach of the contract; or
(b) they were reasonably in contemplation of both parties when the contract was
made.
If the mill owner had told the defendant that a quick delivery was necessary
because the mill could not operate without the shaft, then he would have been
able to claim his loss of profit. The loss of profit would have been ‘reasonably in
contemplation of both parties’.
In Anglia Television v Reed (1972) an American actor made a contract with
the claimants to play the leading role in a television film. The claimants had
already spent money on preparing for the filming and after the contract was
made they spent more. The actor then broke the contract and the claimants were
unable to find a suitable replacement.
The TV company sued the defendant, claiming all the wasted money,
including that spent before he had entered into the contract. The court ordered
the defendant to pay for all the cost of preparation. The court said that the actor
must have contemplated that, if he broke the contract, all the money spent would
be wasted, whether it was spent before or after the contract.
In Victoria Laundry v Newman Industries Ltd (1948) part of the damage was
foreseeable and part was not. The claimants ordered a new boiler from the
defendants. The defendants were five months late in delivering the boiler and the
claimants sued them for loss of profits during that five months. The court held
that they could claim for loss of normal profits during this time as these were
reasonably foreseeable.
However, they could not claim for loss of extra profits which would have been
made from special dyeing contracts. They had not told the defendants about
these contracts and the defendants could not have been expected to foresee this
extra loss.
Test Yourself
1. What is the presumption about intention to create legal relations in:
(a) a commercial agreement
(b) a domestic agreement?
2. What words can be used in a commercial agreement to show that it is not
intended to be legally binding?
3. Give an example/case of a domestic agreement where it was held that the
parties did not intend to create legal relations.
4. Give an example/case of a domestic agreement where it was held that the
parties did intend to create legal relations.
5. Explain what is meant by consideration in a contract?
6. Does the consideration given by one side in the contract have to match in
value the consideration given by the other side? Give a case or example to
illustrate your answer.
7. What is meant by past consideration? Give a case or example to illustrate
your answer.
8. Are there any circumstances in which past consideration can be good
consideration?
9. What is an ‘anticipatory breach’ of contract?
10. Give an example of when damage caused by breach of contract may be too
remote to claim for.

Where there has been a breach of contract, the innocent party must take
reasonable steps to minimise his loss. This is known as mitigation of loss.
If a contract is to buy goods and the defendant fails to deliver the goods, the
claimant must try to find an alternative source. If he can, then his loss is the extra
cost of the replacement goods together with any loss of profit while searching
for the replacements. If the claimant cannot find suitable replacements, then any
loss of profit or other expenses caused by the breach can be claimed.
In British Westinghouse and Manufacturing Co Ltd v Underground Electric
Railways of London Ltd (1912) British Westinghouse had contracted to supply
turbines to Underground Electric Railways. When the turbines were delivered it
was found that they did not match the specifications in the contract. As a result
Underground Electric Railways had to replace them by buying more expensive
turbines from another supplier.
Normally, it would be possible to claim the extra cost of having to buy
turbines from another supplier. In fact the new turbines were so efficient that
they saved money on running them and this soon paid for the difference in price.
The court held that only losses caused before the new turbines were installed
could be claimed. There was no loss after their installation.
Anticipatory breach
Where there is an anticipatory breach, the innocent party has a choice. We have
already seen (in section 19.5.2) that they can immediately consider the contract
at an end and sue for damages.
Alternatively they can choose to continue with the contract and continue to
fulfil their obligations under it. In this situation they can claim for loss caused
after the other party breached the contract.
In White and Carter Ltd v McGregor (1962) the defendant owned a garage
and entered into a contract for advertising of his business to be placed on
litterbins for a local council for a three-year period. Later the same day he
changed his mind and told the claimants that he did not want the adverts. The
claimants could have claimed anticipatory breach and sued the defendant at that
point, but they did not. Instead they chose to go on with the contract and prepare
the adverts.
The House of Lords held that the claimants were entitled to claim the cost of
all the work on the adverts, even though the cost of it had been incurred after the
defendant told them he was not going ahead with the contract.
In Unit 1 (see Chapter 6) you will have learnt that the two civil courts are:
• The County Court
• The High Court.
Most people who have been injured do not want to start a court case unless they
have to. They will first of all try to negotiate an agreed settlement with the other
party to the contract. The vast majority of cases are settled and do not go to
court.

Using the courts to resolve disputes can be costly, in terms of both money and
time. It can also be traumatic for the individuals involved and may not lead to
the most satisfactory outcome for the case. It is not surprising, therefore, that
more and more people are trying other methods for resolving their disputes.
Alternative methods are referred to as ‘ADR’, which stands for ‘Alternative
Dispute Resolution’, and include any method of resolving a dispute without
resorting to using the courts. There are many different methods which can be
used, ranging from very informal negotiations between the parties to a
comparatively formal arbitration hearing. The main methods of ADR are:
• negotiation
• mediation
• conciliation
• arbitration.
These are explained more fully in Chapter 7.

If the other person denies liability or refuses to use ADR, then the only way to
get damages of another remedy for the breach of contract will be to start a court
case.
Once the decision is made to go to court, then the first problem is which court
to use. The court to be used will depend on the amount that is being claimed.
Claims under 10,000 are tried as small claims. If the amount claimed is £100,000
or less then the case must be started in the County Court. If the claim is more
than £100,000 then the claimant can choose whether to start the case in the
County Court or the High Court. If the case is started in the High Court, then it
will be in the Queen’s Bench Division of the High Court. These limits are shown
in Figure 19.8.

If you are using the County Court, then you can choose to issue the claim in any
of the 230 or so County Courts in the country. If you are using the High Court,
then you can go to one of the 20 District Registries or the main court in London.
You need a claim form called ‘N1’ (see section 18.4.4). The court office will
give you notes explaining how to fill in the form.
Court staff can help to make sure that you have filled in the claim form
properly, or you may get help from advice centres or a Citizens’ Advice Bureau.
Once the form is filled in you should photocopy it so that you have a copy for
the court, a copy for yourself and a copy for each defendant. Then take the form
to the court office. A court fee for issuing the claim has to be paid. This fee
varies according to how much the claim is for.
At the beginning of 2015, the fee for a claim of up to £300 was £35 with a
gradual increase to £115 for claims between £1,500 and £3,000. Claims of
£5,000 to £15,000 had a fee of £455, while at the top end of the scale, claims of
over £300,000 had a fee of £1,920.
Internet Research
Look up court forms such as N1 on the website www.courtservice.gov.uk.
Also use that website to find guidance on starting cases in the County Court.

When the defendant receives the claim form there are several routes which can
be taken. They may admit the claim and pay the full amount. Where this happens
the case ends. The claimant has achieved what was wanted. In other cases the
defendant may dispute the claim. If the defendant wishes to defend the claim, he
or she must send either an acknowledgement of service (Form N9) or a defence
to the court within 14 days of receiving the claim. If only an acknowledgement
of service is sent, then the defendant has an extra 14 days in which to serve the
defence.
If the defendant does not do either of these things, then the claimant can ask
the court to make an order that the defendant pays the money and costs claimed.
This is called an order in default.
Once a claim is defended the court will allocate the case to the most suitable
‘track’ or way of dealing with the case.

The decision on which track should be used is made by the District Judge in the
County Court or the Master (a procedural judge) in the High Court. To help the
judge consider to which track a claim should be allocated, both parties are sent
an allocation questionnaire. If it is thought necessary, the judge can allocate a
case to a track that normally deals with claims of a higher value. Alternatively, if
the parties agree, the judge can allocate a case to a lower-value track.
There are three tracks and these are:
1. The small claims track
This is normally used for disputes under £10,000, except for personal injury
cases where the limit is usually £1,000.
Small claims cases are usually heard in private, but they can be heard in an
ordinary court. The procedure allows the District Judge to be flexible in the
way he hears the case. District Judges are given training in how to handle
small claims cases, so that they will take an active part in the proceedings,
asking questions and making sure that both parties explain all their important
points. The parties are encouraged to represent themselves. In fact they
cannot claim the cost of using a lawyer from the other side, even if they win
the case.
2. The fast track
This is used for straightforward disputes of £10,000 to £25,000. Fast track
means that the court will set down a very strict timetable for the pre-trial
matters. This is aimed at preventing one or both sides from wasting time and
running up unnecessary costs.
Once a case is set down for hearing, the aim is to have the case heard
within 30 weeks. The actual trial will usually be heard by a Circuit Judge and
take place in open court with a more formal procedure than for small claims.
In order to speed up the trial itself, the hearing will be limited to a maximum
of one day and the number of expert witnesses restricted, with usually only
one expert being allowed.
3. The multi-track
This is for cases over £25,000 or for complex cases under this amount. The
case will be heard by a Circuit Judge who will also be expected to ‘manage’
the case from the moment it is allocated to the multi-track route.

Under the Civil Procedure Rules judges are expected to manage a case. Case
management by judges includes:
• Identifying the issues at an early stage;
• Deciding which issues need investigation and trial;
• Encouraging the parties to use alternative dispute resolution if this is
appropriate;
• Dealing with any procedural steps without the need for the parties to attend
court;
• Giving directions to ensure that the trial of a case proceeds quickly and
efficiently;
• Fixing timetables by which the different stages of the case must be completed.
This is all aimed at keeping the costs of the case as low as possible and making
sure that it is heard reasonably quickly.
In all civil cases the judge has to decide if the claim is proved or not. If the
judge decides that the claimant has proved their case, then the judge has to
decide how much to award the claimant for the breach of contract or whether
another remedy should be awarded.
The burden of proving the case is on the claimant. This means that to win the
case the claimant has to prove that there was a contract and that it should be
enforced or that there was a breach of contract.
The standard of the proof is ‘on the balance of probabilities’. This means the
judge decides who is most likely to be right.
Test Yourself
1. Which two courts deal with breach of contract cases?
2. Give two methods of alternative dispute resolution which could be used to
settle a breach of contract claim.
3. How does a claimant start a court case?
4. What are the three tracks and what are their financial limits?
5. What is meant by ‘case management’?
6. Who has to prove the case under the burden of proof?
7. What is the standard of proof in a civil claim?
Greta wanted to make an appointment with her dentist, Hari. Greta telephoned
on 1 May and asked Hari to leave a number of possible times on her voicemail.
Hari replied by leaving a message on Greta’s voicemail later that day.
When Greta listened to her voicemail on 2 May, she decided that the suggestion
of 4.00 pm on Monday was perfect. She texted back immediately, stating that
4.00 pm on 12 May was fine. Unfortunately, Greta had not listened to all of
Hari’s voicemail that finished with, ‘All times are for the week beginning 5
May’. Greta then lost her phone, so did not pick up Hari’s text sent on 3 May,
stating that 12 May was no good. Ian, another patient of Hari, failed to arrive
for his pre-booked appointment because he overslept.
A valid contract requires an offer, acceptance, an intention to create legal
relations and consideration.
(a) Explain the rules which apply to the ways in which an offer can be
accepted.
(8 marks)
(b) Explain the meaning of the term ‘consideration’, including an explanation
of past consideration.
(8 marks)
section.
(c) Briefly discuss the legal effect of each stage in the negotiations between
Greta and Hari and decide whether those negotiations resulted in a contract.
(d) Briefly explain what is meant by breach of contract.
Assuming that there was a contract between Ian and Hari, briefly discuss
whether Ian was in breach of that contract when he failed to arrive for his
pre-booked appointment.
(8 marks)
(e) Outline the three-track case management system used in the civil courts and
identify which track and which court are most likely to be used in any claim
that Hari could make against Ian.
(5 marks)
(f) Explain how the court would decide the amount of damages to be awarded
to Hari if Ian were found to be in breach of contract for missing his
appointment.
(6 marks)
Examiner’s tip
In most contract questions there will be a series of events happening on
different dates. In order to help you work out whether there is a contract, write
these dates down in sequence and try to work out what legal effect each event
has. Look at the chart in Figure 19.9 below.
Doing this should make it easier to answer questions about whether and when a
contract was formed. See question (c) on page 264. Try writing in the legal
effect of each of these events. Check what you have written by looking at the
chart on page 266.
Appendix
This appendix gives help with the questions on pages 5, 51 and 265.
Distinguishing between civil and criminal cases (page

5)
Question 1 answer
Sources A and C are criminal cases. Sources B, D and E are civil cases. This
information helps with the remainder of the questions in the activity.
Statutory interpretation and the case of Fisher v Bell

(page 51)
The court used the literal rule in coming to the decision in this case. The court
considered a technical legal meaning of ‘offer for sale’ and used this meaning in
its literal sense. This meant that literally displaying knives in the window was
not offering them for sale. As a result the court came to the decision that the
knives were not ‘offered for sale’, and since they had not been sold or hired or
lent either, the shopkeeper had not committed any offence under the Act. He was
found not guilty.
Completed chart for examination question at end of

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Acknowledgements

© rnl – Fotolia.com p16; © SIMON WALKER/REX p24; © Richard

AQA examination materials are reproduced by permission of the Assessment

British Library Cataloguing in Publication Data

ISBN: 978 1 4718 5021 9

First Edition Published 2002

Copyright © 2013 Jacqueline Martin

All rights reserved. No part of this publication may be reproduced or transmitted

UNIT 1 LAW MAKING AND THE LEGAL SYSTEM

Chapter 3 Delegated Legislation

Chapter 8 Criminal Courts

Chapter 13 The Judiciary

UNIT 2 THE CONCEPT OF LIABILITY

Chapter 15 Offences Against the Person

Chapter 16 Criminal Procedure

Chapter 18 The Tort of Negligence

Chapter 19 Law of Contract

Other types of civil law

1.3.1 Purpose of the law

1.3.2 Person starting the case

1.3.4 Standard of proof

1.3.5 Outcome of case

1.5.1 The European Convention on Human Rights

1.5.2 Effect on the English legal process

1.5.3 Effect on sources of law

1.6.1 European Union treaties

1.6.2 Regulations and directives

1.6.3 The Court of Justice of the European Union

2.1.1 House of Commons

2.1.2 House of Lords

2.2.2 Political influence

2.2.4 Public opinion/media

2.2.5 Pressure groups

2.3.1 Green and White papers

2.4.1 Introducing an Act of Parliament

Private Members’ Bills

2.4.3 Role of the House of Lords

2.4.4 The Parliamentary process

Commencement of an Act of Parliament

Legislating on any subject-matter

Cannot bind successor

Cannot be overruled by others

2.8.1 Limitations on Parliamentary supremacy

Effect of membership of the EU

Effect of Human Rights Act 1998

D elegated legislation is law made by some person or body other than

3.1.1 Orders in Council

3.1.2 Statutory instruments

3.2.1 Control by Parliament

Delegated Powers Scrutiny Committee

3.2.2 The Legislative and Regulatory Reform Act 2006

3.2.3 Control by the courts

Need for technical expertise

Allows quick law-making

A s seen in Chapter 2, many Acts of Parliament are passed by Parliament each

4.4.1 Cases using the literal rule

4.4.2 Advantages of the literal rule

4.4.3 Disadvantages of the literal rule

4.5.1 Cases using the golden rule

4.5.2 Advantages of the golden rule

4.5.3 Disadvantages of the golden rule

4.6.1 Cases using the mischief rule

A similar point arose in Eastbourne Borough Council v Stirling (2000) where