Law

The Rule of Law

The rule of law is the principle that law should rule.

 Liberals see law as a guarantee of liberty

o The fundamental purpose of law therefore is the protection of
rights
o LOCKE – ‘right to life, liberty and property’
 ARISTOTLE – ‘government of law, not of man’
 DICEY’S 4 features of the rule of law (page 154)

Natural Law

 Natural law, or the law of nature, is a philosophy of law that is

determined by nature, and so is universal.

Positive law

 Positive laws are human made laws that oblige or specify an action
within a territory otherwise punishment may be necessary

Similarities Differences
 Natural law is seen as more just because it is
less likely to be manipulated for immoral ends
 Both uphold justice – natural
 Different origins – natural law comes from
through its fidelity to higher
higher power and so is criticised for
principles and positive through
mysticism, and positive law derives from
its process (substantive vs
humans/civic society
procedural)
 Natural law is unchanging (PLATO)
 Both or either can incur
whereas positive law is able to respond to the
punishment
needs of society at the time (AUSTIN – ‘legal
 Natural law is achieved
positivism’ – law is changing and enforced by
through reason, and positive
a sovereign superior’)
law is the application of
 Law is human, so how can we criticise
human reason
it? (WENDELL HOLMES – law is human action,
nothing more)
Sources of Law
Common Law or Case Law

This is the term given to law which is created in the courts rather than in
Parliament. In the UK, the decisions of the courts are written in law reports
and these decisions become law

Judicial Precedent

Case law also requires the development of judicial precedent. Once a point of
law has been decided in a particular case, that law must be applied in all
future cases containing the same material facts.

 Precedents bring to the law consistency and certainty.

Over the years there has been much discussion on whether judges make law
or, as Dworkin says in his Declaratory Theory, simply find out what the law is
and declare it. Be aware of the greater flexibility given to the Court of Appeal
by Young v Bristol Aeroplane 1944.

One recent example of judges making law is seen in the Tony Bland case
Airedale NHS Trust V Bland 1993. The various transcripts through the
High Court, the Court of Appeal and House of Lords show how the judges felt
that Parliament should legislate in this type of case.

Judges may avoid following a previous precedent by:

1. Overruling
2. Reversing
3. Distinguishing

Overruling

This will apply if the previous (lower) court has failed to apply the law
properly. A court higher in the hierarchy departs from a decision made in a
lower court and the previous decision is no longer binding.

Reversing
This takes place when the lower court has reached the wrong decision.

In Re Pinochet (1999), the House of Lords reversed a previous decision for

the first time after it was revealed that one of the original judges, Lord
Hoffman, had failed to reveal he was a member of Amnesty.

Distinguishing

This is where the facts of the case are deemed sufficiently different so that
the previous case is no longer binding.

Disapproving Precedent

This is where a court follows a precedent but states it doesn’t like it but has
to follow it, hoping that the higher appeal court will accept its concerns and
reverse the judgement.

Advantages of Judicial Precedent

 Certainty - knowing what to expect as previous decisions followed

 Consistency and Fairness - similar cases are dealt with in same way
 Precision - case law helps to define law areas so there is great detail
 Time-saving - saves time as no drafting and passing laws is necessary
 Flexibility - that law can change with times

Disadvantages of Judicial Precedent

 Rigidity - doesn't change easily, bound by higher courts, bound by past

decisions
 Complexity - not always able to find ratio deciendi, hard to find all
relevant cases even with computer database
 Slow Growth - cases are unclear and need reforming, if no case occurs
at House of Lords no change will happen
 Illogical Distinctions - distinguishing cause areas to be complex even if
facts are not that different

European Law

Since joining the EU we have seen a growing influence of European law on

English law. Directives from the EU have to be applied in member States and
laws such as the Companies Act 1985 derive from EU directives. Other terms
we will encounter are Treaties (these require unanimous agreement of
member states) and regulations. Decisions made by Europe often affect us.
We see this influence in Human Rights cases. European law is of importance
because where there is conflict it takes precedence over English law.
Equity

Equity defines a set of legal principles, in all the jurisdictions that follow the
English common law tradition, that supplements strict rules of law where
their application would operate harshly, and this is done to achieve "natural
justice".

The Judicature Acts of the late 19th century led to the relief of equity being
available in all courts alongside the common law. The same court was now
able to apply rules of the common law and the rules of equity, depending on
what the substantial justice of a case required, and depending on what
specific area of law the pleadings involved. The result was that, when the
issues arising from the causes of action were decided in favour of one party,
that party got relief.

Custom

The famous legal writer Blackstone sees custom as something that has
existed since time immemorial (1189) and has been continuous.

This source of law is still seen in commercial law. Bills of exchange originated
as customs in mercantile law and are today incorporated in mainstream law.

Academic Writings

Legal textbooks of great standing are sometimes referred to in cases. We

usually see these in the more esoteric areas of law. In cases involving
withdrawing life support from patients we might see references to legal or
philosophic writers. In the Tony Bland case reference was made by one judge
to the philosophy works of Professor Bernard Williams.

Legislation

Parliament is responsible for approving new laws (legislation). The

government introduces most plans for new laws, or changes to existing laws
- but they can originate from an MP, Lord or even a member of the public or
private group. Before they can become law, both the House of Commons and
House of Lords must debate and vote on the proposals.

The process is as follows:

1. Introducing legislation - Bills normally introduce new laws. Bills that

deal with more political or controversial issues usually begin in the
Commons.
2. Defeating and delaying legislation - To become law the text of a Bill
must be agreed by both Houses. Either House can vote down a Bill in
 which case it will normally not become law - but there are exceptions.
The Commons can pass the same Bill in two successive years, in which
case it can become law without the agreement of the Lords. Bills which
are only about money (raising taxes or authorising government
expenditure) are not opposed in the Lords and may only be delayed for
a month.
3. Royal Assent - The reigning monarch has to approve all new laws -
called the Royal Assent - but this is a formality as in practice it is not
withheld. Royal Assent was last withheld in 1708 when Queen Anne
refused a Bill to settle the Militia in Scotland.
4. When a Bill is given Royal Assent it becomes an Act of Parliament . It is
then the responsibility of the relevant government department to
implement that law (e.g.: The Home Office will deal with new Acts
relating to immigration).

Delegated Legislation
Delegated legislation (sometimes called secondary legislation or subordinate
legislation) stems from an enabling Act of Parliament which authorises
someone else (i.e. other than Parliament) to make laws on certain matters.
Legislative powers are most often delegated to Government ministers, but
may also be delegated to local authorities, professional and other public
bodies, public utility companies (even after privatisation) and a variety of
other organisations and individuals.

Orders in Council
Some Government powers are exercised by Order in Council; three or four
Privy Councillors meet with Her Majesty to give formal approval to Orders
drafted by the government. For example, the Consumer Protection Act
1987 (Product Liability) (Modification) Order 2000 extended the scope
of consumer protection law to agricultural products, to comply with a
European Directive. Matters of foreign affairs are often dealt with by Order in
Council, as for example the Afghanistan (United Nations Sanctions)
Order 2001.

Orders in Council having general effect are often treated as if they were
Statutory Instruments: the difference is unimportant for most purposes. But
Orders in Council are also used to dissolve Parliament in preparation for a
general election, to grant or amend royal charters and university statutes,
for various organisational matters in the Church of England, and in certain
kinds of legislation for the Isle of Man, the Channel Islands, and the few
remaining Colonies.
Statutory Instruments
Power delegated to Ministers is usually exercised by Statutory Instrument;
the legislation itself may be called Regulations (e.g. the Road Vehicles
(Display of Registration Marks) Regulations 2001, or Orders (e.g. the York
Sixth Form College (Dissolution) Order 1999) or Rules (e.g. the Prison Rules
1999), or sometimes something else.

A very common form of statutory instrument is the Commencement Order,

which brings into force part or all of an Act of Parliament. For example, the
Access to Justice Act 1999 has been the subject of eight Commencement
Orders so far (up to the end of 2001) and is still not wholly in force.

Bylaws
Delegated legislation made by local authorities and other organisations is
usually called byelaws (or by-laws - either spelling is acceptable). Within one
local area, the City of Bristol has about fifty byelaws currently in force,
covering such matters as the use of public libraries, the fouling of footpaths
by dogs, and the employment of children. Bath has (inter alia) byelaws made
under s.235 above making it an offence for a person to consume alcohol in a
"designated place" (essentially, any street or open space in the city centre)
after being warned by a constable. Both Bath & North East Somerset and
South Gloucestershire have byelaws made under s.15(7) of the Local
Government (Miscellaneous Provisions) Act 1982, following a standard
pattern adopted by many local authorities across the country) and regulating
acupuncture, tattooing and ear piercing, mainly in relation to the general
cleanliness of premises and operators and the sterilisation of instruments.
There is even a page devoted to byelaws on the North Somerset Council web
site, but the byelaws themselves are not set out in any detail.

Byelaws can also be made by semi-private bodies such as the National Trust
and the Train Operating Companies; these are not merely internal rules, but
have the force of law and can be enforced by the courts.

Boddington v British Transport Police [1998] 2 All ER 203, HL

British Rail (shortly before privatisation) made a byelaw under s.67(c) of

the Transport Act 1962 as amended, prohibiting smoking where "no
smoking" notices were displayed; they subsequently introduced a total ban
on some trains and displayed notices to this effect. A smoker A defied this
prohibition; he was convicted and fined £10 by the stipendiary magistrate,
and his conviction was upheld on appeal.
Controls
Delegated legislative powers are as extensive as Parliament chooses to
make them in the enabling Act, and the following safeguards can be built in
against abuse:

 Consultation

 Judicial Controls

 Ministerial Approval

 Parliamentary Scrutiny

 Publication

Consultation
There is no common law duty for Ministers or Departments to consult with
any outsiders before making regulations, but such a duty is often imposed by
the enabling statute and consultation is common practice even where it is
not obligatory. Indeed, one of the advantages of delegated legislation is the
opportunity it gives for experts outside the Government to influence its
content. The Act may therefore require the Minister or other legislator to
consult with specified people or organisations before using his powers: even
if he does not need the consultees' approval, it gives them the opportunity to
point out any obvious flaws in the Minister's proposals and perhaps to rally
support elsewhere.

Legislation required the Minister to consult relevant bodies before making

Orders of a certain type, and through a clerical error there was no
consultation with the Mushroom Growers' Association (who were conceded to
be a "relevant body" for this purpose). The court ruled that the consultation
requirement was mandatory, and that its breach made the Order invalid as
far as mushroom growers were concerned.

Parliamentary Scrutiny
Where legislative power is given to Ministers, the enabling legislation usually
requires a statutory instrument (or a draft of it) to be laid before Parliament
before or soon after it comes into effect. A Select Committee of MPs and
peers scrutinises all such instruments and reports to Parliament, drawing
particular attention to:
  any SI that imposes taxation;
 any SI that makes a charge on the Revenue;
 any SI that purports to be immune from challenge in the courts;
 any SI that purports to operate retrospectively;
 any SI that has been unreasonably delayed in publication;
 any SI that makes unusual or unexpected use of the powers granted;
 any SI that appears to be ultra vires the parent Act;
 any SI that appears to be badly drafted and confusing.

Members of Parliament are then able to question the responsible Minister

about any statutory instrument that seems to be unsatisfactory in some way,
and perhaps to take further action.

In particular, the enabling Act may provide for the SI to require an affirmative
resolution of each House in order for them to take effect. This is less than the
full enactment procedure for primary legislation - a short debate (perhaps)
and a single vote in each House, with no Committee or Report stage - but is
still quite a strong control. This "affirmative resolution" procedure is
therefore used most often where the powers delegated are particularly wide-
ranging, as in the Emergency Powers Act 1920 and the Human Rights Act
1998.

Alternatively, the enabling legislation may make the SI subject to annulment

by either House within a fixed period (usually 40 days); it may come into
force immediately, subject to cancellation, or it may not come into force until
the 40 days have passed without a successful challenge. This is the
procedure most commonly adopted, and applies in about three-quarters of
cases. It is much weaker than the "affirmative resolution" procedure: very
few "negative resolution" SIs are debated, and hardly any are ever annulled.

Finally, the enabling Act may not specify either of these procedures at all,
leaving the Minister to legislate free from any formal control: this is
particularly common in respect of Commencement Orders bringing primary
legislation into force piece by piece. There are still political controls, of
course - the Minister can be questioned about his actions and even made the
subject of a critical vote - and the judicial controls discussed below apply as
much to these as to any other statutory instruments.

Judicial Controls
Through the process of judicial review, the Divisional Court exercises its
"inherent power" to scrutinise delegated legislation, and can declare it to be
invalid in whole or in part if it is illegal, irrational or procedurally improper.

Legislation is invalid if it purports to go beyond the powers delegated by the

enabling Act. The rules of statutory interpretation, for example, exclude
(unless granted expressly and very clearly) the power to raise taxes, the
power to exclude citizens' access to the courts, and the power to legislate
retrospectively.

Delegated legislation may also be invalid if it has been made for improper
reasons. Where the enabling Act set out a particular procedure for making
the delegated legislation (for example by including a requirement to consult)
the legislation may be invalid if the proper procedure was not followed.

Delegated legislation may be invalid if it is excessively vague, or if it is so

irrational that no reasonable person could have made it. This is not a
decision to which the courts come very readily, but in extreme cases it may
be appropriate.

Delegated legislation made under powers granted by one Act is normally

invalid if it is inconsistent with the provisions of another Act, irrespective of
which was made first. In particular, the Human Rights Act 1998 effectively
makes unlawful and ineffective any delegated legislation that violates
Convention rights, unless the enabling Act is so clear and so draconian as to
make this violation not just permissible but unavoidable.

Ministerial Approval
Where legislative power is delegated to bodies other than Ministers, the
enabling Act usually makes Ministerial approval an essential part of the
legislative process. This is the case with the powers given to local authorities
under the Local Government Act 1972 and most of the other powers listed at
the beginning of this page. The Minister in turn is answerable to Parliament
for his decision to give or withhold approval.

Publication
There is a general requirement that statutory instruments (and most other
forms of delegated legislation) be published, or at least brought to the
attention of those affected by them.

Statutory Instruments Act 1946 s.3(2)

In any proceedings against any person for an offence consisting of a

contravention of any ... statutory instrument, it shall be a defence to prove
that the instrument had not been issued by HMSO at the date of the alleged
contravention unless it is proved that at that date reasonable steps had been
taken for the purpose of bringing the purport of the instrument to the notice
of the public, or of persons likely to be affected by it, or of the person
charged.
On the other hand, there is no requirement for the general publication of
byelaws, and it can sometimes be difficult to discover their content. Local
authorities and other organisations with the power to make byelaws must
generally allow members of the public to see them, but until a person knows
that a particular byelaw has been made s/he does not know that there is
anything to ask about!

Codes of Practice
There is an increasing use of Codes of Practice with limited legal force. These
codes are not usually law as such, but can be referred to when a court has to
decide whether or not (for example) a person has behaved reasonably.

The oldest of the current codes is the Highway Code, first authorised by the
Road Traffic Act 1930 and now made by the Secretary of State subject to
Parliamentary approval. It is not a Statutory Instrument and has no binding
force, but breaches of the Code may be used as persuasive evidence in both
civil and criminal cases.

A failure on the part of a person to observe a provision of the Highway Code

shall not of itself render that person liable to criminal proceedings, but any
such failure may in any proceedings (whether civil or criminal ...) be relied
upon by any party to the proceedings as tending to establish or negative any
liability which is in question.

The Employment Protection Act 1975 empowers ACAS to issue draft codes of
practice which are laid before Parliament for approval or annulment and then
given effect by Statutory Instrument. Once again a breach of the Codes does
not entail automatic liability, but their provisions are taken into account by
industrial tribunals and by courts.

The Health and Safety Commission has power under the Health and Safety at
Work Act 1974 to make Codes of Practice subject to the consent of the
Secretary of State; no Parliamentary scrutiny is involved.

The Codes of Practice made under the Police and Criminal Evidence Act 1984
are brought into effect by Statutory Instrument (subject to an affirmative
resolution of each House) after a consultation period, but are not strictly
legislation in themselves. This is because the Home Office wanted the Codes
to be complete in themselves (i.e. including and explaining some statutory
provisions) and written in simple language (to be understandable by ordinary
police officers!), and rightly felt it would be inappropriate for secondary
legislation to seek to gloss an Act of Parliament. Breach of the Codes does
not in itself give rise to any criminal or civil liability, but may lead to the
exclusion of evidence improperly obtained and/or internal disciplinary
proceedings against police officers.

The Press Code of Practice is made by the Press Complaints Commission and
has no statutory basis at all. However, s.12 of the Human Rights Act 1998
refers expressly to the importance of considering "any relevant code of
practice" when a court is trying to resolve a conflict between (for example) a
right of privacy and a right of free expression, and it is generally thought that
compliance with the Code would be relevant in determining whether or not a
journalist's conduct was reasonable for the purposes of the Protection from
Harassment Act 1997.

Advantages
 It saves precious Parliamentary time. To take just one example, the Local
Government Pension Scheme Regulations 1995 run to 185 very detailed but
uncontroversial pages. There would be nothing to be gained from debating
these in Parliament: the time taken for 650 MPs and 300 or so peers even to
read the draft regulations would be better spent on other things.

 It allows Parliament to concentrate on broad issues of policy rather than

masses of detail. The Road Traffic Act 1972 (now replaced by the Road Traffic
Act 1988) included a general requirement for motor-cyclists to wear
protective helmets, but left the Secretary of State to draw up detailed
regulations as to the type of helmet required. The Motor Cycles (Protective
Helmets) Regulations 1980 contain further detail about the requirements.

 It allows technical matters to be determined by those competent to do so,

and can make use of expert knowledge not available within the Civil Service.
The Air Navigation Order 1995 contains 140 pages of highly technical rules
(including tables, maps and so on) governing the flying of civil aircraft around
the United Kingdom: it is doubtful whether any Member of Parliament
(including the Minister) had the technical expertise even to comment on
these rules, let alone draft them.

 It also allows local councils to make laws appropriate to their local areas.
Street drinking, for example, is a problem in some city centres but not in all
country villages; local councils with local knowledge are in a much better
position than MPs to decide where such laws are needed.

 The enabling Act can impose a requirement of consultation with those most
closely involved before Orders or Regulations are made. For example, s.2 of
the School Teachers' Pay and Conditions Act 1991 establishes a pay review
body and requires the Secretary of State before making an Order
implementing its recommendations to consult "such associations of local
education authorities ... bodies representing the interests of governors of
voluntary schools ... grant-maintained schools ...bodies representing school
teachers ... as appear to him to be concerned".
  It offers flexibility: adaptation to meet changing circumstances or
modification in the light of experience. The County Court Fees Order 1999
sets out the fees payable at various stages of civil proceedings, but the
County Court Fees (Amendment) Order 2002 amends this Order to take
account of changes in certain enforcement procedures. Similarly, the Civil
Courts (Amendment) Order 1997 was made by the Lord Chancellor under
s.2(1) of the County Courts Act 1984 to close the now-redundant County
Court at Ammanford.

 It allows rapid action to be taken in times of emergency. The Food Protection

(Emergency Provisions) Order 1986 was made and laid before Parliament and
came into effect less than two hours later, prohibiting the movement or
slaughter for food of sheep in certain areas thought to have been affected by
radioactive fallout from the incident at the Chernobyl power station.

 It allows Acts to be implemented piece by piece, as circumstances make

appropriate, though this power is open to abuse. Section 67 of the Family
Law Act 1996 provided for most parts of the Act to be brought into force by
statutory instruments issued by the Lord Chancellor. The Family Law Act
1996 (Commencement No.1) Order 1997 was the first such instrument,
implementing some of the provisions relating to legal aid for mediation; other
Orders implementing other parts of the Act followed, though Part II of the Act
(dealing with divorce procedure) was never brought into force and has since
been repealed.

 It allows for the fulfilment of international obligations where amendment is

impossible and Parliament can say only yes or no. The Diseases of Poultry
Order 1994, made under the Animal Health Act 1981 and imposing measures
to prevent the spread of avian flu and Newcastle disease, was made in
response to an EC directive requiring such measures. Similarly, the Mental
Health Act 1983 (Remedial) Order 2001 was made in response to a
declaration of incompatibility under the Human Rights Act 1998.

Disadvantages
There are some disadvantages too - even dangers - in the delegation of
legislative power, and a number of examples may be given:

 The limited scrutiny given to delegated legislation may lead to incomplete or

imperfect instruments passing into law. The Air Navigation Order 1995 was
followed less than three months later by the Air Navigation (No.2) Order
1995, which revoked and replaced the earlier order and was made expressly
"to remedy defects and printing errors".

 Delegated legislation can be difficult to locate, even for lawyers. There is

nothing in the parent Act to show how many statutory instruments have been
made under it (though there are reference books in specialist law libraries),
and there is no subject index to statutory instruments on the Internet. For
 local bye-laws the situation is even worse: these are not available even in
major public libraries, and there is no easy way of knowing what bye-laws
have been made within a given area.

 An enabling Act may be so brief as to enable a Minister to legislate not just

on detail but on policy, which should be the concern of Parliament.

 Defence Regulation 39BA

o Most people would accept that drastic curtailment of individual
freedom was necessary and justified when the nation was
engaged in a war for its very survival, but it shows how wide
delegated legislative powers can be.

A "Henry VIII clause" may allow the Minister or other body to

alter statutory provisions in this or another Act. The name
probably comes from a statute (31 Hen VIII c.8, repealed by 1 Ed
VI c.12) which provided that "The King ... may set forth
proclamations ... which shall be observed as though they were
made by Act of Parliament.". Henry VIII clauses are effectively a
creature of the past thirty years: before then they were very
rarely included in statutes (and even more rarely used), but now
they have become quite common. Such a clause is useful where
the Act may conflict with a large number of local Acts that may
not be easily identifiable in the beginning, to allow either the old
or the new Acts to be amended as necessary, but can be taken
to extremes.

 Pollution Prevention and Control Act 1999 s.2

The Minister or other delegate may use his powers to defeat the
purpose of the Act. A provision authorising the Minister to bring an Act
into force bit by bit, for example, may be abused to delay indefinitely
the implementation of provisions designed to benefit the citizen.

 R v Home Secretary ex p Fire Brigades Union [1995] 2 All ER 244, HL

o The European Communities Act 1972 gives Ministers very wide-
ranging powers to make Orders, subject to minimal
Parliamentary scrutiny, for the purpose of complying with any
obligations arising from membership of the European
Community.

 European Communities Act 1972 s.2(2)

o This section authorises the making of Orders in Council and
Departmental regulations with statutory force, to give effect to
 EC directives and decisions as necessary. Such Orders and
regulations can amend or repeal existing law, and take
precedence over all other statutes whether enacted before or
after. However, the Act expressly excludes from the scope of this
power any regulations imposing taxation, having retroactive
effect, creating serious crimes or further delegating legislative
powers.

Statutory Interpretation
Literal Rule
This is where the judge gives a word its ordinary natural dictionary meaning
even if it gives an absurd outcome. The Oxford English Dictionary is used

 In Cheeseman, he was found not guilty of ‘exposing his person to the

annoyance of passengers’ because literally the policemen were not
passengers.

 In Berriman, a widow got no compensation because a lookout was only

needed when ‘repairing or relaying’ and her husband was ‘maintaining’

 In Whiteley v Chappel, he was found not guilty of impersonating

someone entitled to vote because literally dead people are not entitled
to vote

Advantages of the Literal Rule

 Upholds Parliamentary Sovereignty

The job of Parliament is to make law and the role of a judge is to apply
it. The literal rule ensures this happens.

 Absurd decisions can be good

Absurd decisions are noticed by Parliament who can then amend the
Act

 Promotes certainty in the law

Using this rule, you always know what the outcome will be so it is
easier for lawyers to advise clients
Disadvantages of the Literal Rule
 Doesn’t allow for modern advancements
The meaning of words can change over time and there can be
technological advancements

 Dictionaries aren’t fool proof

Many words have more than one definition e.g. gay

 Assumes every Act is perfectly worded

When Parliament are writing an Act they can’t word it perfectly for
every possible situation that could arise in the future

Golden Rule
Judges have the choice to use this if the literal rule gives an absurd outcome.
There are two types – narrow and broad.

 Narrow is where a word has two meanings and the judge chooses
which to apply
In R v Allen, there were two meanings of marry – the legal marriage
and the ceremony. He had legally married one woman and went
through the ceremony with the other so was guilty of bigamy

 Broad is where the judge can read words into the Act
In R v Sigsworth, a man had killed his mother but as next of kin he was
due to inherit everything. The courts added the phrase ‘unless they
killed the deceased’ to prevent him from inheriting

Advantages to the Golden Rule

 Respects words of Parliament
It still follows the words of Parliament but gives flexibility so just
decisions can be made

 Prevents absurd outcomes

It stops unfair results. In R v Sigsworth it would have been absurd to let
a murderer profit from his crime
  Provides an escape route
It gives judges another choice if they don’t want to use the literal rule

Disadvantages of the Golden Rule

 Makes the law unpredictable
Nobody knows what will be classed as an absurd decision

 Too much power for judges

Reading words into the Act is the same as making law

 Zander described it as a ‘feeble parachute’

Allows courts to escape from the literal rule but they are still limited

Mischief Rule
It looks back at the old common law to find out what the problem was
established in Heydons Case. There are 4 key questions:

 What was the common law before the Act was passed?
 What was the problem/mischief that the common law didn’t cover?
 What remedy did the Act attempt to create?
 What is the true reason for the remedy?

In RCN, nurses were worried as they were carrying out abortions and they
weren’t registered medical practitioners. The mischief was unsafe backstreet
abortions and the nurses were giving safe clinical abortions so were allowed
to continue by a vote of 3-2

In Smith v Hughes, a group of prostitutes were guilty of soliciting in a street

or public place despite being in a bedroom and on a balcony. The mischief
was women selling sex and this is what they were doing so they were found
guilt

Advantages of the Mischief Rule

 Prevents absurd outcomes
 In RCN it would have been absurd to charge nurses for doing their job

 Focuses on Parliaments intentions

Allows Parliament to focus on meaning of Act rather than choosing
exact words

 The Law Commission described it as a ‘more satisfactory approach’

They are the largest independent law body in the UK

Disadvantages of the Mischief Rule

 Too much power for judges
Judges aren’t elected to make law, Parliament are

 Not easy to find mischief

It can take a long time to go through previous cases or look for
Parliaments intentions

 Outdated rule
It was established in the 16th century when judges made law for the
monarch

Purposive Approach
The purposive approach looks forward at Parliaments intentions and aims to
apply the spirit of the law. It is the favoured approach of the EU and Lord
Denning in Bulmer v Bollinger.

 In ex parte Smith, a convicted killer discovered he was adopted and

wanted a copy of his birth certificate to contact his mother. Parliament
didn’t intend to put people at risk so changed it from ‘will’ be given to
‘may’ be given

 In Jones v Tower Boot a man was being racially abused by his co-
workers during breaks. Literally it wasn’t during the course of
employment but the judge said Parliament intended to stop racial
abuse so the employer had to do something
Advantages of the Purposive Approach
 Consistent with the EU approach
Any EU law must be interpreted with this method

 Focuses on Parliaments intentions

Parliament don’t have to carefully choose every single word

 Preferred by Lord Denning

He was an important, trusted judge

Disadvantages of the Purposive Approach

 Too much power for judges
Judges aren’t elected to make law, Parliament are

 Judges make policy decisions

Judges are deciding what they think the law should be

 Makes law unpredictable

Hard for lawyers to advise clients as judges could do anything

The Court System

Crown and County Courts
These are the major Criminal and Civil Courts.

They will generally have a judge or judges running the trial. A Crown Court
will either hear appeals form Magistrates' Courts, sentence criminals from
magistrates or hold trials themselves. They often have a jury. These often
take place with significant offences which the Magistrates' Court does not
have the powers to handle.

County Courts are the civil counterpart from Crown Courts. Whereas a
murder is a criminal case, something like a divorce or a claim for negligence
is generally not a criminal matter. County Courts will divide cases
between Small Claims (claims up to £5000), Fast Track (up to £15000)
and Multi Track (over £15000).

Magistrates' Court
The Magistrates' Court is the lowest court and is staffed by Magistrates (who
are volunteers). Most criminal matters start here before the serious ones are
sent up to the Crown Court. Similarly, many civil cases start here though
some will start in ADR.

A Magistrates' Court will often deal with summary offences. These are small
offences with a maximum penalty of 6 months or a fine of
£5000. Indictable offences which are more serious will be given a basic trial
before being passed to the Crown courts. Either way offences are offences
which could be minor or serious depending on the nature of the case itself.

In some cases, instead of the magistrates (of which there is generally 3)

there will be a District Judge.

High Court
The High Court is divided into three ‘Divisions’:

1. Queen's Bench
2. Chancery
3. Family Courts
Most of these deal with Civil Law only, however a small section of the
Queen's Bench (administrative section) can occasionally hear Criminal
appeals from the lower courts on some matters but these tend to skip to the
Court of Appeal.

Many High Court judges will also sit in the Crown Court. It can be the court of
first instance for very serious cases. There is occasionally a Jury in serious
defamation or Police cases but otherwise it is a rarity. High Court judges are
often referred to at M’Lud (My Lord) and are knighted upon attaining their
position.

Court of Appeal
This is the major appeal court and the judges here go under the title of “Lord
Justice” (they earn over £180,000) and there are just 38 of them.

Appeals will come from the Crown Courts in criminal cases and in civil they
are from County and High Courts.

The Court of Appeal hears appeals from lower courts, this may be because
one party feels that the law was unfairly applied or some procedural error
occurred.

In criminal cases it will be the defence appealing over the verdict or

punishment whereas in a civil case either party can technically bring an
appeal but it will be the one who feels the most hard done by who will take it
forward.

Supreme Court
The Supreme Court was until recently (2005 reformed
under the Labour government) called the House of Lords.
People have often confused this with the House of Lords
that sit in Parliament. While many of the judges may sit
there this once was a court that was overseen by the 12
Law Lords.

Since it has been restyled, the Supreme Court, similar to

the American system, nothing much has changed but it is seen as a bit more
open now some of the tradition has been shrugged off. Though you will see
in most cases a reference to the House of Lords, it is simply the same as the
Supreme Court.
The Court exists as the final and ultimate (excluding Europe) court in this
country. Appeals will go no further and the Court has authority over all the
lower courts in the country.

British Legal System Timeline

Celtic Britain

Before the Roman conquest, Britain was divided into many small nations and
tribes. The law of these places would be kept by the local rulers or holy men
such as druids. Many were superstitious and actions such as trial by combat
were used, if the accused won it was seen that the gods were showing him
innocent by his victory. Laws were passed by word of mouth and very
cultural rather than there being any set system of law as we know it.

600AD

During this time Britain is largely controlled by Rome. The Romans are
considered the founders of law and many of the expressions we use today
come from them. They would have a Senate who would create laws that
would affect the Empire and order was kept by the local governors and
prefects who would enforce law and pass out punishment.

1066

Britain is conquered by the Normans who bring many new laws and customs
to the country. One of the most important is the idea of land and property.
They create the ‘Doomsday Book’ a record of who and what is owned by
everyone in the country. During this time, although the King and Treasury
were in London, the courts of the country and the “Sheriffs” would travel
around, staying wherever they thought was suitable at the time. In time the
judges were given routes they must follow; even today we often refer to
some judges as ‘circuit judges’. The time when a judge would be in town was
often known as ‘assize’ and the judge would go through the jails sentencing
people. It could be that a suspect would have to wait in prison for months
until the next assize to find out if he was guilty or innocent.

1215

The nobles of England force the King to sign the ‘Magna Carta’ or ‘Great
Charter’. This was a document which took power from the King and gave
some of it to the nobles and people. It meant that if the King broke the law
he could be held accountable to his people. The most important aspect of
the document was the right to due process; that no innocent man may be
condemned without fair trial by his peers.
1533

Henry VIII forms the Church of England, dissolving the Catholic church and
severing the country's ties with The Pope. This gives the King huge amounts
of power and control in a country which had always seen the King as below
the Pope and a church which carries equal weight with the state.

1651

The English Civil War replaces the King and makes Parliament all powerful.
Although King Charles II eventually restores the monarchy it is recognised
now that it is Parliament and not the crown which runs the country.

17th and 18th Centuries

The legal profession as we know it takes shape. The legal profession has long
been in possession of certain lands in London which it has claimed since the
collapse of the Knights Templar a few hundred years before. The fashion of
wearing powdered wigs takes off and is retained by the courts even when
the rest of the country stops. Similarly, the tradition of wearing black after
the death of various monarchs such as Charles II remains. At this point
Barristers are the dominant legal professionals; very few people are solicitors
who are seen as a lower class of lawyer.

1840

Courts of Equity and Common law combined. Equity will continue to be a

headache for law students and professionals, despite the decline of the form
of law.

19th and 20th centuries

Due to dramatic changes in the world and recent conflicts including two
world wars, the British Empire breaks apart. In its time over 100 countries
including Canada, Australia, Hong Kong and South Africa were ruled by the
UK and continue to use similar legal systems. 52 countries exist even today
in the commonwealth, a collection of countries with similar institutions and
values.

1949

Legal Aid and Advice Act makes funding available for individuals to pursue
claims in court paid for by the state. This is not an automatic right but goes a
long way to making justice widely available.

1973
Britain Joins the European Union. In doing so it surrenders Parliamentary
sovereignty to Brussels which basically means that in certain areas the UK
must follow the laws of the EU or leave the Union. In 2016 Britain votes to
leave the EU and 2020 leaves the European Union.

2005

Role of Lord Chancellor changed to Secretary of State for Justice, transferring

the role from a Lords' to Commons' position.

2009

The House of Lords ceases to exist as a Court and is replaced with the
Supreme court which is the same in all but name.

Police Powers
The powers of the police in England and Wales are defined largely by statute
law, with the main sources of power being the Police and Criminal Evidence
Act 1984 and the Police Act 1996.

 Arrest

 Detention and Questioning

 Obstruction

 Searching Premises

 Stop and Search

Stop and Search

In the absence of a lawful arrest, the police have no general power to detain
anyone for questioning. There are a number of statutory powers, however,
which have become increasingly important in the past twenty years or so.
The statutory provisions listed below are no more than a representative
selection.

 Police and Criminal Evidence Act 1984 s.1

 Misuse of Drugs Act 1971 s.23(2)

 Sporting Events (Control of Alcohol &c) Act 1985 s.7(2)

  Road Traffic Act 1988 ss.164-165

 Criminal Justice and Public Order Act 1994 s.60

 Terrorism Act 2000 s.44

The exercise of all statutory "stop and search" powers (with a few very
limited exceptions) is governed by Code A, issued by the Home Secretary
under the Police and Criminal Evidence Act 1984. The Code also applies to
"consent searches", which must not be carried out in circumstances where
there would be no statutory power to search except where submission to a
search is a condition of admission to a sports ground or other premises.

Most "stop and search" powers (though not those under the Criminal Justice
and Public Order Act 1994 or the Terrorism Act 2000) depend on the
constable's having "reasonable grounds for suspecting" that the person to be
searched is in possession of certain items, and the Code seeks to explain
what such grounds might be. Reasonable suspicion may exist on the basis of
information received such as the description of a suspected offender, or on
reliable information that members of a particular gang (perhaps identifiable
by a gang "uniform") habitually carry weapons or drugs (Paragraph 2.6). But
reasonable suspicion can never be supported on the basis of personal
features alone, such as a person's colour, age, religion, hairstyle or manner
of dress, or the fact that he is known to have a previous conviction, without
supporting intelligence (Paragraph 2.2).

None of this affects a constable's right to speak to a person in the ordinary

course of his duties, without detaining him against his will (Note 1). If the
person then says or does something that arouses the constable's reasonable
suspicions, he may then exercise his statutory powers. But there is no power
to detain a person against his will in order to find grounds for a search
(Paragraph 2.11), and a refusal to answer questions after being detained
does not in itself provide such grounds (Paragraph 2.9), even though an
innocent explanation of suspicious conduct might in other circumstances
allay the constable's suspicions. The "reasonable grounds" must exist before
the statutory powers are exercised: a search cannot be justified
retrospectively by grounds of suspicion coming to light only after detention
has begun.

 Tomlinson v DPP (1992) Legal Action 92/5 21, QBD

 Police and Criminal Evidence Act 1984 s.2(2)

 Osman v DPP (1999) Times 28/9/99, QBD

 Authorisation had been given under s.60 of the 1994 Act for persons
attending the Mile End Park Fair to be searched for weapons.

 Police and Criminal Evidence Act 1984 s.117

Searches in public (which includes an otherwise empty street) must be

restricted to a superficial examination of outer clothing, though the
constable may try to feel through other clothing, subject of course to the
"minimum embarrassment" requirement. A person cannot normally be
required to remove more than an outer coat, jacket and/or gloves (paragraph
3.5), but section 60AA of the Criminal Justice and Public Order Act
1994 allows a constable to require the removal of any item worn to conceal a
person's identity. If a more detailed search is thought necessary it must be
carried out in private (e.g. in the back of a nearby police van), and, if it
involves the removal of further clothing other than hats and/or shoes, by an
officer of the same sex as the person searched.

Special rules apply to "intimate searches", which can be carried out only
after a person has been arrested and only under very restrictive conditions.
These must normally be carried out by a doctor or nurse, except as a last
resort when all other approaches have failed and the authorising officer is
satisfied that the risk of injury from the article being sought is sufficiently
severe to justify such action.

After a search has been carried out, the officer concerned must make a
written record unless it is wholly impracticable to do so (e.g. because of
public disorder), including the person's name if he is willing to give it, his
ethnic origin, the object of the search, the grounds for making it, and its
outcome, and must give a copy of this record to the person searched.

A similar record must be made when a police officer stops a person in a

public place (without searching them) and asks them to account for their
presence or behaviour (Paragraph 4.12), but no record need be made of
ordinary conversations, nor of questions asked by officers seeking to
establish the facts of a particular incident.

Obstruction
Although the police have considerable powers, and although law-abiding
citizens normally co-operate with the police whenever they are asked, the
police do not have unlimited powers to demand such cooperation.

 Rice v Connolly [1966] 2 All ER 649, QBD

 Collins v Wilcock [1984] 3 All ER 374, QBD

  R (Laporte) v Chief Constable of Gloucestershire (2004) Times 26/2/04,
QBD

 Lewis v Cox [1985] 1 QB 509, QBD

 Sekfali v DPP [2006] EWHC 894 (Admin)

Searching Premises
All searches of premises (including consent searches other than routine
scene-of-crime searches or responses to calls, alarms or bomb threats) are
governed by Code B.

The police may search any premises with the occupier's consent; the officer
in charge of such a search should make it clear to the occupier that he is not
obliged to consent (paragraph 5.2). In the case of a lodging house, student
hall of residence or similar accommodation, consent should normally be
obtained from the tenant(s) of the room(s) to be searched, rather than from
the landlord (note 5A).

A "consent search" may also be carried out without first seeking express
consent where it is reasonable to assume that an innocent occupier would
agree and that obtaining consent would cause him undue inconvenience
(paragraph 5.4). For example, if a suspect has run away from the scene of a
midnight crime and has disappeared in a certain street, the police check
each of the gardens to see whether he is hiding there, without first waking all
the occupiers (note 4C).

 Police and Criminal Evidence Act 1984 s.18(1)

 Jeffrey v Black [1978] 1 All ER 555, QBD

In addition, the police have powers under s.17 of the Police and
Criminal Evidence Act 1984 to enter and search premises, using
reasonable force if necessary,

- to arrest a person for an indictable offence, or for certain other

offences;

- in "hot pursuit" of a prisoner at large; or

- to save life or limb or prevent damage to property.

 D'Souza v DPP [1992] 4 All ER 545, HL

  O'Loughlin v Chief Constable of Essex [1998] 1 WLR 374, CA

 DPP v Meaden [2004] 4 All ER 75, QBD

 Police and Criminal Evidence Act 1984 s.19

Arrest
If a person is thought to have committed an indictable offence, or any
offence punishable with imprisonment, or if his address is unknown, a
constable may apply to a magistrate for a warrant of arrest. Such a warrant
is issued if the magistrate is satisfied that a summons might be ineffective in
securing attendance in court. The warrant names or clearly describes the
suspect and states the alleged offence; it may then be executed at any time
by any police officer, whether or not he has the warrant in his possession.
Arrest warrants are never issued to private citizens.

 Police and Criminal Evidence Act 1984 s.24 (as amended)

 Castorina v Chief Constable of Surrey [1988] NLJ 180, CA

 Hough v Chief Constable of Staffordshire (2001) Times 14/2/01, CA

 Plange v Chief Constable of South Humberside (1992) Times 23/3/92,

CA

 Percy v Hall [1996] 4 All ER 523, CA

 Police and Criminal Evidence Act 1984 s.24A (as amended)

 R v Self [1992] 3 All ER 476, CA

 Albert v Lavin [1981] 3 All ER 878, HL

 Foulkes v Chief Constable of Merseyside [1998] 2 All ER 705, CA

Note that it is a common-law offence for any person called upon to assist a
constable seeking to end a breach of the peace (by making an arrest or
otherwise) to refuse or unreasonably fail to do so.

When making a lawful arrest, a constable or any other person may use such
force as is reasonably necessary for the purpose (and must at least touch the
person arrested to make the arrest effective) but no more. If the force used
is excessive, the person arrested will have grounds for bringing a civil action
or prosecution for assault; if the arrest itself is not lawful, then the person
"arrested" is entitled to use reasonable force to resist and can still sue for
assault and false imprisonment. The rate of damages for wrongful arrest and
detention seems to be about £500 per hour for the first few hours, though an
unlawful arrest does not nullify any subsequent criminal proceedings against
the prisoner.

 Nichols v Bulman [1985] RTR 236, QBD

 Police and Criminal Evidence Act 1984 s.28

 Alderson v Booth [1969] 2 All ER 271, QBD

 R v Fiak [2005] EWCA Crim 2381

Under common law, a person other than a constable who arrests a suspect
must hand him over to a constable without unreasonable delay; a constable
must take the suspect to a police station.

 John Lewis v Tims [1952] 1 All ER 1203, HL

 Police and Criminal Evidence Act 1984 s.30

 Dallison v Caffrey [1964] 2 All ER 610, CA

 Police and Criminal Evidence Act 1984 s.32

Detention and Questioning

The detention and questioning of persons by police officers is governed
mainly by Code C issued under the Police and Criminal Evidence Act 1984;
any suspect detained at a police station is entitled to consult this Code and
must be informed of this right.

The Code does not take away a citizen's civic duty to help the police in the
prevention of crime and the discovery and capture of offenders, and a police
officer is still in principle entitled to question any person from whom he
thinks useful information may be obtained, even where the person indicates
unwillingness to reply (Note 1B).

However, the police have no power to detain a person without formally

arresting him; a person voluntarily "helping the police with their enquiries" is
free to leave the police station at any time, and must be made aware of this.

The Police and Criminal Evidence Act 1984 provides for the appointment of a
custody officer (normally a sergeant) at each police station, whose
responsibility it is to ensure that all the correct procedures are observed and
the proper records made. The custody officer must also ensure that suspects
in custody are made fully aware of their rights, and it is the custody officer
who decides from time to time whether or not the suspect's detention can
still be justified.

Section 54 requires an arrested person to be searched on arrival or arrest at

a police station, and allows his property to be seized and retained (though in
the case of clothes and personal effects, only if the custody officer believes
they may be evidence or may be used to cause injury or damage or to assist
in an escape). Section 55 allows a senior officer to authorise an intimate
search if he has reasonable grounds for believing the prisoner to be in
possession of drugs or articles which might be used by the prisoner to injure
himself or others, but this is very rare.

Before a suspect has been charged, a senior officer must review his
detention within six hours of his initial detention, and then (if he is still in
custody) within a further nine hours and again a further nine hours. He must
normally be released or charged within 24 hours altogether, but if the
offence is a serious one a senior police officer can authorise a further 12
hours and a Magistrates' Court can extend the period to 96 hours altogether.

 Roberts v Chief Constable of Cheshire [1999] 2 All ER 326, CA

Once a person has been charged with an offence, he must either be

brought before the Magistrates' Court by the next working day, or be
released on police bail (with or without conditions) and required to
return to the police station (or to appear at the Magistrates' Court) at
such time as the custody officer may specify.

 Police and Criminal Evidence Act 1984 s.56

Under Code C, a detainee is normally allowed to make a telephone call

himself (paragraph 5.6), and a foreign detainee is entitled to contact
his country's Embassy or Consulate (paragraph 7.1).

Prisoners in custody are entitled to decent conditions of detention.

Cells must be adequately heated, cleaned and ventilated, and access
to toilet and washing

facilities must be provided. At least two light meals and one main meal
must be offered in any 24-hour period, and the prisoner's special
dietary or religious needs must be met as far as practicable, but
alcoholic drinks must not be provided except on medical advice. Brief
outdoor exercise should be offered daily if practicable, medical
treatment must be provided if necessary, and at least 8 hours'
 continuous rest (preferably at night) must be allowed in any 24 hours.
A person being questioned should be allowed meal breaks at the usual
times, refreshment breaks approximately every two hours, and toilet
breaks as necessary.

As soon as a constable suspects that a person may have committed an

offence - often before he is actually arrested - he must caution him
before carrying out an interview (that is, any questioning intended to
obtain evidence.) The suspect must then be cautioned again at the
beginning of each subsequent interview, on being arrested, and on
being charged.

 Criminal Justice and Public Order Act 1994 s.34

In the same way, ss.36 and 37 allow the magistrates or jury to draw
inferences from a defendant's failure to account for objects in his
possession, marks on his clothing, or his presence at a particular place,
where a constable believing them to be indicative of participation in an
offence has asked about these at the time of his arrest and has
explained the consequences of failing to answer.

Research evidence indicates that about 20 per cent of suspects overall

refuse to answer some or all questions in police interviews, the
proportion being highest among those with previous convictions and
those charged with serious offences. In contrast, about 60 per cent
make a complete or partial confession.

No police officer may use any sort of oppression to obtain answers to

his questions, nor should he say (except in reply to a direct question
from the suspect) what action the police propose to take if the prisoner
does (or does not) answer questions or make a statement. Any breach
of these rules may lead to the exclusion of the evidence obtained, and
the officer responsible could be subject to civil action, disciplinary
proceedings or even prosecution.

 R v Fulling [1987] 2 All ER 65, CA

 R v Miller (1992) 97 Cr App R 99, CA

 R v Howden-Simpson [1991] Crim LR 49, CA

In order to ensure that these rules are properly applied, and to reduce
the number of cases in which defendants subsequently challenge the
police account of what was said, Code C requires that an accurate
 record of every interview (whether in the police station or not) should
be made during the interview or (if this is not practicable) as soon as
possible afterwards (paragraph 11.7). This record should be signed as
an accurate account by the officer concerned and by the suspect; if the
suspect refuses to sign, that fact should be recorded. Failure to keep a
proper record may lead the judge to exclude evidence of the interview
as potentially unreliable.

If a person is being questioned at the police station about an indictable

offence, the interview should normally be tape recorded in accordance
with Code E.

A person in custody at the police station, or being questioned as a

suspect, has the right to legal advice. Such advice is available free of
charge under the duty solicitor scheme, and the suspect must be
reminded from time to time that it is available.

 R v Absolam (1989) 88 Cr App R 332, CA

 Police and Criminal Evidence Act 1984 s.58

Home Office data show that only about one-third of arrested people do
in fact ask to see a solicitor, even though the Code emphasises the
need to remind suspects of their right to free legal advice, and insists
that they must not be discouraged in any way from exercising that
right by suggestions (for example) that it might delay their release.
Once the suspect has asked to see a solicitor, and assuming no delay
has been authorised under s.58(8) above, no further questioning
should take place until:

- the chosen solicitor is present, or

- a senior officer decides that delay will involve in immediate risk of
harm to persons or property, or
- the chosen solicitor is unavailable and the suspect declines any
alternative, or
- the suspect changes his mind.

 R v Samuel [1988] 2 All ER 135, CA

 R v Vernon [1988] Crim LR 445, Judge Andrew QC

The Code of Practice allows the solicitor to be present at any interview

unless by his misconduct he prevents the proper putting of questions
to his client. The solicitor can quite legitimately object to the manner in
which questions are put, or advise his client not to reply to particular
questions, or ask for a short break in questioning so that he can
 consult with his client privately. Misconduct that would justify
excluding the solicitor might be answering questions on the client's
behalf, or providing written answers for the client to read. Any decision
to exclude a solicitor must not be taken lightly and must be reported to
a senior officer as soon as practicable.

 R v Chief Constable of South Wales ex p Merrick [1994] NLJ 423, QBD

A study by McConville & Bridges (1994) shows that throughout the

defence process, and particularly at the interrogation stage, many
firms routinely delegate work to non-solicitors, including clerks and
even secretaries. Legal aid regulations pay more for appearance at
court than for preparatory work, and as a result many solicitors take
little part in the preparation. The Code allows a solicitor to send a clerk
in his place, and such a clerk should normally be admitted, but a senior
police officer may refuse to admit a particular unqualified clerk if he
believes the clerk's background and experience make him unsuitable.

 R v Chief Constable of Avon & Somerset ex p Robinsons [1989] 2 All ER

15, QBD

 R v Mason [1987] 3 All ER 481, CA

 R v Alladice (1988) 87 Cr App R 380, CA

 R v Grant [2005] EWCA Crim 1089

The law tries to give special protection to people belonging to

particularly vulnerable groups, and their confessions are treated with
more than the usual suspicion since they may have been made without
full understanding. The categories recognised as particularly
vulnerable are:

- mentally disordered and mentally handicapped persons;

- children and young persons under the age of 17;
- blind and partially sighted persons;
- deaf and partially hearing persons; and

- persons who do not understand English.

Anyone who appears to fall into any of these groups is treated as if

they do until the contrary is shown.
 R v Brine [1992] Crim LR 122, CA

In the case of a mentally disordered or mentally handicapped person,

an "appropriate adult" should be present at all interviews, in addition
to a solicitor if one is requested, and the suspect should be allowed to
consult privately with the appropriate adult at any time. The
appropriate adult should be:

- a relative, guardian or other person responsible for the suspects’

care; or

- a social worker experienced in dealing with mentally disordered or

mentally handicapped people; or

- some other responsible adult not in or employed by the police.

Similarly, a juvenile should be accompanied at all interviews by an

"appropriate adult", who should be:

- a parent or guardian, unless he is involved or suspected of

involvement in the offence, or has received admissions by the child, or
is estranged and the child objects to his presence; or

- a social worker, unless he has received admissions by the child; or

- some other responsible adult not in or employed by the police.

 R v Blake [1989] 1 WLR 432, QBD

 R v Morse [1991] Crim LR 195, Judge Beezley

In the case of a suspect who is blind or seriously visually handicapped,

or is unable to read, a relative or other appropriate adult should be
available to help in checking any documents. The appropriate adult
need not fit any particular description, but should not be in or
employed by the police and should be someone the suspect trusts to
sign police documents on his behalf.

If a suspect appears to be deaf or partially hearing, or there is doubt as

to his ability to understand spoken English, the custody officer must
summon an interpreter who should explain the suspect's rights to him
and be present at all interviews unless the interrogating officer is
fluent in the suspect's language.
 Perhaps unsurprisingly, the law shows no special consideration for drug
addicts, who may also be particularly vulnerable if they are questioned
while under the influence of drugs or while in a state of withdrawal.

 DPP v Ping Lin [1975] 3 All ER 175, HL

 R v Goldenberg (1988) 88 Cr App R 285, CA

Legal Professionals
In 2013 there were over 3,000 judges, over 15,000 barristers and over
120,000 solicitors making up the legally qualified industry in England and
Wales.

Barrister
Historically Barristers were the specialised lawyers
who would accompany a judge around the country
and represent clients in court. Solicitors tended to
be far more local. Interestingly as well, being a
Barrister had a strong social aspect, as the
Barristers and Judges tended to have a good
relationship and this carries on into the training and
organisation of Barristers today.

Here are the required steps for becoming a

barrister:

University

Many students will do a course in a related subject, such as History before

converting. However, it is important to remember that this is very expensive
and many are put off by the additional year and hard work.

A Law course or LLB typically involves students studying a number of core

subjects such as Criminal Law, Tort, English Legal System and Equity before
then being allowed to choose some more specialised areas, Medical or
Discrimination for example. Importantly at this stage what you learn is
largely academic, you will have a chance to get quite involved in debating
societies and find work experience in the holidays but this is not compulsory
if you do not want to actually study law further.
Law School

As a minimum you need a 2:2 or in some cases a 2:1 to get into a Law
School. It is expensive and very competitive because of an oversubscription
of lawyers at the moment. There are about a dozen law schools over the UK
and they teach the actual workings of the job. For a barrister this is the
BPTC, solicitors study the LPC.

On the BPTC you will be taught advocacy, writing proofs and advice and will
have much more of a chance to start specialising. The 12 formal dinners at
the Inns of Court can be substituted for training days, but the idea is to
network and get to know other Barristers, especially when looking for
pupillage.

Pupillage

Despite the competition so far it gets even harder to find pupillage and as
most do it in London the costs of living are incredibly high. Although you can
start working independently in the second half it is unlikely you will find
many well-paying clients as your reputation is not yet established.

Organisation

 Barristers will belong to an Inn of Court and regularly attend many

social and professional events there. The key to any successful career
here is networking and particularly those wanting to be judges will
need to have people who can vouch for their ability.
 A Barrister will also work in a chambers along with other Barristers.
Mostly, the actual work tends to be their own but they will share the
services of a clerk. The clerk tends to bring in most of the business for
a Barrister so they are crucial.
 Barristers will refer to one another as ‘my learned friend’ in court and
solicitors just as ‘my friend’, this is a traditional form of address which,
like the outfit, is often seen as slightly outdated.
 Barristers may also work for the CPS (Criminal Prosecution Service) or
GLS (Government Legal Services).

Regulation

 Barristers are regulated by the Bar Standards Board (BSB), this has
been since 2006 as before they were regulated far more by the Inns
and the General Bar Council.
 The aim of the BSB is to regulate the Bar so as to promote high
standards of practice and safeguard clients and the public interest.
  Since Arthur J.S Hall and Co. v Simons (2000) 3 AER 673 Barristers can
be sued for malpractice. Until then the courts were against it as they
worried that there would be a torrent of claimants suing just because
they lost and were unhappy. However, compared to other professions,
such as medicine, this doesn’t happen. Therefore, Barristers can be
sued if it is shown loss has been suffered as a result of their
negligence.
 Barristers also follow the Bar Code of Conduct which implements rules
such as the Cab Rank Rule.

Work

 Barristers provide specialist legal advice and represent their clients in

courts and tribunals. The work is intellectually challenging in an
intense and demanding professional environment. It is also a very
rewarding career. Barristers’ work varies considerably depending on
the area of law they practise in, and their seniority.
 Typically, barristers do some or all of the following:
o Advising clients on the law and the strength of their legal case.
This often requires considerable amounts of legal research,
followed by writing an ‘Opinion’ for your client setting out your
advice.
o Holding ‘conferences’ with clients to discuss their case and give
them legal advice.
o Representing clients in court. This can include presenting the
case, cross-examining witnesses, summing up all relevant
material and giving reasons why the court should support your
case.
o Negotiating settlements with the other side.

Most barristers are self-employed and work in chambers, although

approximately 20 percent are “employed barristers” and work for an
employer in industry, commerce or central or local government. This is
known as the 'Employed Bar'. The role of the employed barrister can vary
greatly depending on the employer. The majority will work in specialist legal
departments advising only the organisation they work for. Self-employed
barristers work in offices called chambers which they may share with other
barristers. On completion of their training, barristers apply for
tenancy in a set of chambers.

Judge
Judges are generally broken into two
groups: Superior and Inferior Judges. The differences between
superior judges and inferior judges relate to their qualification, selection and
appointment and the subsequent work they do.

Inferior judges are those judges who sit in courts below the level of the High
Court. These consist of circuit judges who may sit in both the Crown Court
and the County Court. Recorders who sit as part time judges in the Crown
Court but who may also sit in the County Court. District judges who deal with
small claims and other matters in the County Court. District judges
(Magistrates Courts) who hear cases in the Magistrates Courts in the place of
the Magistrate in London and other large towns and cities where larger
volumes of work are involved. Finally, there are chairmen of administrative
tribunals which are not actually courts as such but who are required to deal
with cases in a judicious manner. Superior judges are those judges who are
entitled to sit in the High Court, the Court of Appeal and the House of Lords.

There is a large number of part-time judges, often some barristers or retired

legal professionals, who serve as judges and are particularly useful when
there is a large strain on the system.

Role

In criminal cases the judge acts as a referee. He decides legal matters such
as which evidence is admissible and may also have decided whether bail
should be granted. He regulates the trial making sure each party has a
chance to speak and that witnesses or defendants are not unduly bullied or
harassed. Throughout the trial he will be making notes on the relevant points
of the case and the legal elements. He will then carefully explain these to the
Jury in a way that does not influence them. He will advise and answer
questions from the Jury and decide in some situations whether or not a
majority sentence is acceptable. Once the Jury decide on the verdict. It may
be up to the judge to determine the sentence.

In civil cases there is hardly ever a Jury involved and as such a judge can
take a more active role. As many civil cases can be stretched over long
periods of time he will decide on time limits and penalties if appropriate. As
there is no jury (unless in defamation) it will be up to the judge to determine
the final decision in regard to the law. He will determine how much, if any,
compensation is owed or if other penalties such as an injunction are suitable.
Finally, he will determine how much and if the unsuccessful party pays for
the successful party's costs.

The judge will occasionally have some role out of cases. This might mean
resolving a dispute between parties over where their child should go to
school. In some cases, such as Re A (2000) [the case of conjoined twins] the
courts will have to decide whether a hospital should carry out a major
operation.
They can also deal with immigration issues. Superior Judges may often be
asked to head an enquiry over a relevant issue, such as the Death of Dr Kelly
[Iraqi weapons inspector]. These can be very expensive and so the judge is
expected to get permission from his superior when possible.

Becoming a Judge

The Tribunals, Courts and Enforcement Act 2007 Part 2 contains a section on
the minimum standards a judicial candidate must have. The reason for this
law was, due to loopholes in the previous process, a judge could be
appointed who has not practised in the field of law after qualifying as a
barrister or solicitor.

The other significant body is the Judicial Appointments Commission. A group

of 15 people made up of practising lawyers and judges as well as lay people.
They will look at candidates based on intelligence, integrity and
independence, the ability to deal fairly, authoritative and communication
skills and efficiency. Depending on the position, prospective judges require a
certain amount of experience, generally 5 years for district judges and 7 for
other roles, though it would be common practice for them to have more
experience than that.

Stages to Appointment

1. Advertisement - often in a major newspaper such as The Times. Roles can

also be advertised by the one of the out-reach events organised by the
Commission where they would explain the process to interested parties.

2. Application - once a party is interested and happy they satisfy the

requirements, they must complete a 9 page application with references.

3. Interview - depending on what role is being filled this could involve taster
sessions and role play workshops, more common for lower court judges. A
more senior judicial role is likely to involve a panel interview.

4. Consultation - once all the information is gathered the Commission

deliberate and final checks are made. Those suitable have their names put
forward as suitable applicants.

5. Appointment - traditionally appointed by the Lord Chancellor and the

Queen. This is more a formality based on the recommendations of the
Commission.

https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/judges/
Legal Executive
Legal executives specialise in one area of law. They have trained to the
same level as solicitors in that area and do much of the same work. To
become qualified in this area you will have to follow one of the training
routes offered by the Chartered Institute of Legal Executives. You will also
need to have practical experience in a legal environment.

Work

As a legal executive lawyer, you could deal with any of the following
branches of law:

 conveyancing – the legal side of buying and selling property

 probate – wills, trusts and inheritance tax
 family law – divorce and children’s matters
 civil litigation – disputes between people
 criminal law – defence or prosecution of people accused of crimes
 company and business law – tax, contracts and employment law.

Depending on your specialism, your work might include:

 advising clients and explaining legal matters to them

 contacting professionals such as mortgage lenders, planning officers or
other lawyers on behalf of clients
 researching and summarising legal information
 preparing legal documents
 writing to clients
 drawing up wills
 preparing contracts
 representing clients in county and magistrates' courts
 preparing bills for clients.

Solicitor
Solicitors make up the majority of legal professionals in the UK. Unlike
Barristers they tend not to do very much work in court. However, solicitors
can achieve a recognised qualification which enables them to work as an
advocator in court, very much like a barrister. At the moment these are still
very uncommon as the two jobs do not, in reality, overlap hugely.

The main steps taken to become a solicitor are:

University
Students will often take a variety of degrees instead of law and simply
convert with a graduate legal diploma.

Law School

For solicitors because of the larger numbers of jobs schools are less
restrictive with offering an LPC rather than the BPTC, however they will often
interview 3rd or 2:2 applicants. It is expensive and very competitive.

On the LPC you are largely taught the key areas of law, the major
professional skills and then a selection of specialised subjects of your own
choosing depending on what the school offers.

Training Contract

To get a training contract in a top Magic Circle firm is incredibly hard, but the
benefits are worth the effort. For example, trainee solicitors at Allen and
Overy can start on £30k and have all of their student debt paid off by the
company. In comparison, a small local firm is unlikely to be able to offer the
same incentives but will also not have the same levels of demand and stress.
Many city lawyers work late nights and weekends whereas a smaller firm is
more likely to have a traditional 9-5.

CILEx

The Chartered Institute of Legal Executive (of which you become a Fellow or
FCILEx) offers training on the job which results in a solicitor qualification.
Many firms will fund their employees through this route and it is a growing
alternative to the academic system generally used until now.

Regulation and Representation

There are over 120,000 solicitors in England and Wales who are represented
and regulated by the Law Society and the independent Solicitors Regulation
Authority. In order to practise, solicitors must pay a yearly contribution for
their certification. This money goes to the Law Society which is the major
professional body representing solicitors. In turn, they set up and fund the
Regulation Authority which is in itself now independent.

The first step to complain about a solicitor would be through the firm itself.
However, if that fails a person can also get in touch with the Legal
Ombudsman and they will investigate and force the relevant body to take
action.

Organisation
Practising Solicitors are members of the Law Society for England and Wales
and do have to regularly complete CPD (continued professional
development) to show they are keeping up with the law and are fit to
practise. Solicitors themselves will either work in a legal department in a firm
or government but more commonly in a law firm itself. These range from
multibillion dollar companies to small local firms. In a larger firm it is
expected that a solicitor would work a part of a team. As firms are owned by
its member, senior and high performing solicitors can be promoted to
partner; that means they have a say in how the company is run and a share
of the profits. There tends to a be a group of senior partners who do the
actual running of the firm.

Work

 Most Solicitors go nowhere near a courtroom.

 A criminal solicitor may work closely with a barrister and hand them
notes etc. in court, but the reality is that they seldom actually address
the court themselves. It will be the solicitor the client has a contract
with and through him they retain the services of a barrister. As a
result, solicitors also have a duty to honour the contract between the
client as well as the standards of the Law society.

 Most of a solicitor's work will involve negotiation and debate. For

example, a solicitor in a divorce will negotiate on his client's behalf
when the property is divided.

 They also notarise, signing official documents and overseeing

important transactions, such as when a house is bought or sold.

 Solicitors tend to have far more contact with people than a barrister
and will also often have international roles as well.

 Solicitors provide clients with expert legal advice and assistance.

 The best solicitors combine legal expertise with people-skills to help

their clients cope with stressful situations, such as divorce,
bereavement, moving house or arrest.

 Solicitors also appear in court in enforcement proceeding, such as

repossession cases.

 In criminal cases they often represent their client in the Magistrates

Court.
 Another key area is trusts. A solicitor may have to protect property for
someone, often inheritance that is not available until someone comes
of age.