This chapter explains the two main sources of criminal law in the UK: legislation, that is, Acts of Parliament (or statutes), and case law. It discusses the process by which Acts of Parliament come into existence; European Union legislation and the European Convention on Human Rights; criminal courts in which cases are heard and the systems of law reporting; how to find legislation and case law using various online resources; and how to find the criminal law of overseas jurisdictions.
Chapter
5. Criminal law
Chapter
14. Skills for Success in Coursework Assessments
Dr Karen Dyer and Dr Anil Balan
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses how students can structure their answers to coursework questions, and exposes common errors that students make when undertaking coursework. The starting point for obtaining a good grade in an exam is to answer the question set. It is even more important to do so for coursework questions, as students are usually given plenty of time to plan and prepare their answers, and to ask for additional support if needed. Whether answering a problem question or an essay question, students are required to produce a convincing argument using ‘evidence’ from case law, statutory provisions, and academic literature.
Book
William Wade, Christopher Forsyth, and Julian Ghosh
Wade & Forsyth’s Administrative Law provides a perceptive account, and an unparalleled level of coverage, of the principles of judicial review and a sketch of the administrative arrangements of the UK. First published in 1961, Administrative Law a classic text. In the twelfth edition, the text brings its account of administrative law up to date in light of recent case law and legislation. The volume covers the following areas of administrative law: authorities and their functions; the influence of Europe; powers and jurisdiction; discretionary power; natural justice; remedies and liability; and administrative legislation and adjudication.
Chapter
1. Introduction
This introductory chapter begins by providing examples of torts. It then discusses the aims of the law of torts, the most significant being compensation and deterrence. Part of the justification for a tort is that it identifies what actions should be avoided and deters people from engaging in them. It is essential to know that action is wrongful, but a tort action may over-deter or under-deter. It may over-deter where the perception of the chance of liability is exaggerated. It may under-deter where either the chances of somebody suing to enforce their rights are small, or where the consequences to the individual tortfeasor may be slight. Originally tort was about ‘shifting’ or ‘transferring’ the loss from the victim to the defendant (corrective justice). The defendant themselves paid compensation to the victim. However, those days are gone and we are now in an era of ‘loss distribution’. In other words, it is not the defendant himself who pays, but it will be their, or their employer’s, insurer. The chapter then considers the study of torts. Tort law is almost wholly a case-driven subject and therefore a good knowledge of the cases and what they stand for is essential. The chapter presents three steps to studying cases.
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12. Third Party Rights (the Doctrine of Privity)
This chapter highlights the doctrine of privity of contract; that means it is about the rights and obligations of third parties. The starting point is the basic common law rule of privity. At common law, third parties have no general right to enforce contracts made by others. Likewise, contracts made by others cannot impose obligations on third parties. This is a fairly straightforward principle and is based on sound reasons, but in practice privity has become a complex area. The existence of the rule resulted in a range of clever devices being developed to get around it, all of which are of commercial importance. And the rule against parties enforcing contracts made by others in particular was also severely criticized over the years for various reasons. The basis for such criticism resulted in some partial exceptions being developed in the case law, and ultimately in a statute—namely the Contracts (Rights of Third Parties) Act 1999. This complicates matters further because the Act only applies in certain circumstances and its application can be excluded by the terms of the contract. As such, there will be circumstances in which the common law exceptions and devices remain relevant, and they must therefore be studied alongside it.
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6. The Practical Working of the Law of Treaties
Malgosia Fitzmaurice
This chapter examines key structural questions and fundamental problems relating to the law of treaties. These structural matters include: the concept of a treaty; the anatomy of treaties (including the making of treaties; authority to conclude treaties; expression of consent to be bound; invalidity of treaties (non-absolute grounds for invalidity of treaties, absolute grounds for invalidity of treaties, amendment, and modification); suspension and termination). The key issues addressed include the scope of legal obligation (the principle pacta sunt servanda, treaties, and third States); interpretation and reservation to treaties (including interpretative declarations); and finally, problems concerning the grounds for termination (supervening impossibility and material breach). The chapter also considers the theory and practice of the law of treaties, with broad analysis of the case law of various international courts and tribunals, with special emphasis on jurisprudence of the International Court of Justice.
Chapter
7. Implied Trusts
This chapter assesses the law relating to implied trusts. The law relating to implied trusts is almost entirely a judicial invention, and perhaps even more importantly, the relative vagueness of many of the rules means that a knowledge of how they work in practice from existing case law is essential. The chapter then studies express trusts, statutory trusts, constructive trusts, and resulting trusts. It also considers the plans regarding reform of the law in this area. The reform proposals which exist do not represent a clear improvement, however, and so in this area, it is perhaps best to see the law as it exists as a series of compromises borne out of a combination of political unwillingness to tackle the issues of cohabitation and imbalance in relationships head on, and of the common law's reluctance in respect of, and the constitutional impropriety of, judicially created ‘revolutionary’ rules.
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4. Choice and use of authorities
This chapter focuses on the main tool of the mooter's trade — case authorities. It provides answers to the following questions: What is ‘exchange of authorities’ and is it appropriate to rely on the opponent's authorities? How should authorities be chosen? How should authorities be cited? Should research be delegated to others? Can other people's ideas be used? Should help be sought from tutors? In what ways can the law library be used in preparing for a moot presentation? What is the difference between square and round brackets in a case citation? How should electronic information resources be used? When and how should overseas authorities be referred to? What does the Latin mean in a law report? How can old cases be obtained? Is an authority ever too old to use? In addition to reading a report of a judgment of a case, should counsels' arguments also be read?
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6. Genocide
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
The term ‘genocide’ refers to the intention to destroy entire groups, whether national, racial, religious, cultural, and so on. Genocide acquired autonomous significance as a specific crime in 1948, when the UN General Assembly adopted the Genocide Convention, whose substantive rules may largely be considered as declaratory of customary international law. This chapter analyzes the main features of the Genocide Convention and examines the legal ingredients of the crime of genocide, as also clarified in international and national case law. It discusses developments in the case law on genocide; objective and subjective elements of genocide; protected groups; two problematic aspects of genocide; genocide and crimes against humanity; and Article 6 of the International Criminal Court Statute and customary international law.
Book
Roderick Munday
Cross & Tapper on Evidence has become firmly established as a classic of legal literature. This thirteenth edition reflects on all recent changes and developments in this fast-moving subject. In particular, it fully examines new case law relevant to evidence of privilege, character, and hearsay. The inclusion of some comparative material provides an excellent basis for the critical appraisal of English law. This book remains the definitive guide to the law of evidence.
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8. Background To The Sale Of Goods Act 1979
This chapter outlines the Sale of Goods Act 1979 (SGA), which is the set of legal rules primarily concerned with the sale of goods. It presents the history of sales law, acknowledging that the modern law of sale is largely found in the SGA. The SGA primarily aims to remove the need to consult prior case law. Thus, decisions of courts in cases prior to the Act should only be examined for guidance in cases where the language of the Act is unclear or ambiguous. The chapter then reflects on the future of sales law, which is considered to be the heart of commercial activity.
Chapter
1. Introduction
This introductory chapter begins by providing examples of torts. It then discusses the aims of the law of torts, the most significant being compensation and deterrence. Part of the justification for a tort is that it identifies what actions should be avoided and deters people from engaging in them. It is essential to know that action is wrongful, but a tort action may over-deter or under-deter. It may over-deter where the perception of the chance of liability is exaggerated. It may under-deter where either the chances of somebody suing to enforce their rights are small, or where the consequences to the individual tortfeasor may be slight. Originally tort was about ‘shifting’ or ‘transferring’ the loss from the victim to the defendant (corrective justice). The defendant themselves paid compensation to the victim. However, those days are gone and we are now in an era of ‘loss distribution’. In other words, it is not the defendant who pays, but their employers or, more accurately, their employer’s insurer. The chapter then considers the study of torts. Tort law is almost wholly a case-driven subject and therefore a good knowledge of the cases and what they stand for is essential. The chapter presents three steps to studying cases.
Chapter
5. The Right to Silence and the Privilege against Self-Incrimination
Chapter 5 deals with the right to silence and the privilege against self-incrimination. It considers relevant provisions of the Criminal Justice and Public Order Act 1994. These include sections 34, 36, and 37, which permit adverse inferences to be drawn from certain failures of the defendant at the pre-trial stage. Section 34, in particular, has generated a substantial body of case law. The manner in which the Court of Appeal has resolved the issue of silence on legal advice has been subjected to particular criticism. The operation of section 34 has been held to be compatible with the European Convention on Human Rights so long as a sufficiently watertight direction is given to the jury. The implications for the privilege against self-incrimination of statutory provisions that criminalize the failure to provide information to law enforcement authorities are also considered.
Book
Brian Sloan
Borkowski’s Law of Succession gives full attention to this area’s rich and evolving case law, illustrating the relevance of the law to modern life; the central issues and academic debates surrounding inheritance are discussed fully. This revised edition covers new case law including Ilott v The Blue Cross and subsequent decisions, Payne v Payne, Legg v Burton, and Hand v George, and new legislation including the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019. The text also looks at relevant Law Commission projects (in particular the recent consultation paper on Making A Will). Finally, there is discussion of the latest succession law scholarship.
Chapter
4. Sources of Law II: Case Law
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. This chapter focuses on case law, a major source of law providing for the interpretation of statutes and the application of law to particular circumstances. Case law, also known as the common law, is a set of judge-made rules that have either a binding or persuasive effect on future cases. Judge-made means that a member of the judiciary has decided a case in a certain way, which has led to the development of that particular piece of law. Certain courts are obliged to follow previous judgments, whereas other can ignore them due to their seniority. Indeed, the doctrine of precedent denotes a system of case law—binding or not—that a lower court may or may not have to follow. Whether precedent is binding is dependent on whether there is a statement of law, as opposed to fact, certain reasoning for that decision (known as ratio decidendi), and the decision of a superior court.
Chapter
16. Locus Standi
This chapter focuses on the concept of locus standi, perhaps the most important way in which administrative law deals with the question of how to balance the protection of individual citizens’ rights and interests with the desire to ensure that government decision-making remains within legal limits and that government bodies (including the courts) are protected from vexatious litigants. It is organised as follows. The first section addresses the law that existed prior to the introduction of the Order 53 reforms in 1977 whilst the second covers the short period between the introduction of those reforms and the House of Lords’ decision in IRC v National Federation of Self-Employed and Small Businesses. The third section runs from the mid-1980s to the present day. The pervasive analytical concerns are to explore the way the law of locus standi interacts with the question of the choice of procedure issues which were addressed in chapter fifteen, and—more broadly—to assess how those two matters both singly and in combination structure in a practical sense the way our constitution gives effect to the various values inherent in theories relating to the rule of law and sovereignty of Parliament.
Chapter
6. The Practical Working of the Law of Treaties
Malgosia Fitzmaurice
This chapter examines key structural questions and fundamental problems relating to the law of treaties. These structural matters include: the making of treaties; authority to conclude treaties; expressions of consent to be bound; invalidity; and suspension and termination. The key issues addressed include the scope of legal obligations; interpretation and reservations and problems concerning grounds for termination (supervening impossibility and material breach). The chapter also considers the theory and practice of the law of treaties, with broad analysis of the case law of various international courts and tribunals, particularly that of the International Court of Justice.
Chapter
10. Retained EU Law and Legal Method
Since 1973, the English legal system has been radically affected by what is now called ‘EU law’. Following the Brexit referendum the UK has now left the EU but there remains a legacy of nearly fifty years of EU-related legislation and case law to contend with. The solution has been to keep a large amount of that EU-derived law, termed ‘Retained Law’, as if it had been created by our Parliament and courts in the first place. The mechanism for dealing with how that has been achieved, and the implication for the future, is discussed here.
Chapter
2. Finding the Law
This chapter introduces the main resources and techniques needed for legal research, the development of legal ‘information literacy’, and the appropriate methods to undertake research: the capabilities necessary for learning and working in an information-rich, digital society. It demonstrates how digital technologies are changing the nature of law and legal information from physical to a virtual space, and with it the research process. Digital media have created new challenges, for example for intellectual property law, for data security and protection, and for the criminal law in responding to a wide range of electronic crime. The discussion of specific research tools and techniques covers literary sources; case law; legislation; EU law; and using a number of online resources.
Chapter
5. The Doctrine of Judicial Precedent
This chapter examines the use of case law to solve legal problems. In the study and practice of law we seek to analyse legal principles; and the ‘principles’ in English law are derived from pure case law or from case law dealing with statutes. The discussions cover the idea of binding precedent (stare decisis); establishing the principle in a case; the mechanics of stare decisis; whether there are any other exceptions to the application of stare decisis to the Court of Appeal that have emerged since 1944; whether every case has to be heard by the Court of Appeal before it can proceed to the Supreme Court; precedent in the higher courts; other courts; and the impact of human rights legislation.
