Exam Practice Answers as Law G152

7/24/2019 Exam Practice Answers as Law G152

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OCR AS Law Unit G152

IntroductionThe answers to the exam practice questions provided in G152 are given below, in theorder they appear in the text. An example o a high!level answer is given or each exampractice question.

Chapter 1: Doctrine of Precedent

Question 1a" #ource A at line 1 reers to stare decisis. $escribe the concept o stare decisis

using the #ources and other cases to illustrate your answer. %15 mar&s'

()* G152 +ay 212

Higher-level answera" As stated in the source, Stare decisismeans stand by what has been decided. -t is

the basis o the practice o precedent where courts ollow their own previousdecisions and those o higher courts. -t is based on the idea o ensuring that thelaw is consistent, air and certain.

The system relies on a hierarchy o courts where higher courts bind lower courts.-n the nglish legal system the highest court is the /0 #upreme )ourt except or/ matters which come under the )ourt o ustice o the /". The /0 #upreme)ourt binds the )ourt o Appeal, the 3igh )ourt and all the inerior courts.

-n order to be able to ollow previous decisions, some record must be &ept. This iswhere the 4aw *eports prove vital. They are a record o the udgments made in allthe important cases. The -ncorporated )ouncil or 4aw *eporting was set up in1675 and is the preerred source o such reports.

ach udgment will have two important parts to it. The ratio decidendiis the actual

legal principle that comes rom the case. verything else acts, reasoning andother udicial speculation" is &nown as the obiter dicta.

Andrew #hepherd, acqui #par&s, Ann *adord 8 219 1


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There are three &inds o precedent. :irstly there is a binding precedent which is a

precedent which must be ollowed because it comes rom a higher court or is anearlier decision o the same court. The ratio decidendio a case is the binding part.An example o a well!&nown binding precedent is that a manuacturer owes a dutyo care to the end consumer ; this comes rom the amous case o Donoghue vStevenson. #econdly, where a court has to ma&e a resh precedent because thereis no binding authority, this is &nown as an original precedent. A well!&nownexample o an original precedent is *e< # adult ; reusal o medical treatment"where the udge had to decide the case with no nglish authority to bind him.4astly, there is a persuasive precedent which is where a court can choose to ollowa decision but does not have to.

A udge has a number o techniques that can be used to deal with precedents.:ollowing is where a udge is bound and must apply the legal principle o theearlier case to the present case. 3owever, there are three ways a udge can avoidollowing. :irstly, a udge in an appropriate superior court can reverse the decisiono a lower court in a case which has been appealed Sweet v Parsley". #econdly, audge in a court with suitable powers can overrule a decision made in an earliercourt in a dierent case R v Shivpuri". 4astly, i a udge can ind a dierence in thematerial acts o the present case and the earlier case, then they may =distinguish>the latter case and are then ree to ma&e a resh decision R v Browndistinguishedin R v Wilson".

There is some lexibility in the system o precedent as the /0 #upreme )ourt andthe )ourt o Appeal have limited powers to overrule their own previous decisions incertain circumstances.

Comment:This would be a top level answer. It covers the breadth of the questionincludes a lin! to the source "aterial and refers to a nu"ber of relevant cases.Please also note that a diagra" of the court hierarchy would be crediteddependent on descriptive detail.

Question 2c" ii" $iscuss the advantages and disadvantages o the doctrine o precedent. %15

mar&s'

()* G152 +ay 211

Higher-level answer



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c" ii"The main reason given in support o precedent is that it produces certainty and

consistency in the law. 4i&e cases are treated ali&e and this means that lawyerscan advise clients in a conident manner so that such individuals can then plantheir aairs sae in the &nowledge o the li&ely outcome.

The &ey argument against a system o precedent is that it can be rigid andinlexible. /nless a suitable case is appealed to a court with the power to changeprecedent, the law may stay the same or a long time.

Another good thing about nglish and ?elsh precedent is that we have built up animpressive range o past udgments which provides a wealth o legal precedents tocover most situations that arise in court. This saves lawyers and their clients> time

and money as cases do not have to be argued rom scratch each time.

#ome commentators argue that the lexibility o the /0 #upreme )ourt using the@ractice #tatement could lead to udicial law!ma&ing. This would go againstconstitutional doctrines li&e the theory o the separation o powers andparliamentary sovereignty.

Comment:This is a "id#ranging answer which $ust "isses level four due to thelac! of a well#developed point. Please see the boo! for guidance on how to writewell developed points. In the e%a"ple above level four could have been accessedby for e%a"ple using a case such as R v R &rape within "arriage' to illustrate

paragraph two or so"e indication of what the constitutional doctrines in paragraphfour "ean and how they would be offended.

Question 3c" ?ith reerence to #ources A and these can be accessed at the /*4 on page

B7".

Comment:4ote the way these answers follow the pattern e%plained in the boo!.-ach answer has &i' an outco"e &ii' a reason why and &iii' so"e additional piece

of relevant infor"ation.

Question 2b" xplain in the ollowing situations i there would be a successul udicial review.

i" A government minister wishes to repeal an old law. 3e has not consultedrelevant bodies, which are aected by the proposals, beore introducing new

regulations. %5 mar&s'

ii" A government minister is given power to ma&e regulations concerning legalunding. 3e has now introduced a regulation on immigration. %5 mar&s'

iii" A government minister has made regulations which are argued to beunreasonable. %5 mar&s'

()* G152 anuary 2F

Higher-level answer



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b" i"udicial review would be successul here or procedural ultra vires. This is

because the government minister has ailed to ollow a =procedure> that wasrequired o him ; namely, to consult relevant bodies. This scenario is similar to thecase)gricultural Training Board v )ylesbury 2ushroo"s.

ii"udicial review would be successul here or substantive ultra vires. This isbecause the minister has used legitimate powers he has to do one thing to dosomething else that he is not authorised to do. A case which illustrates this sort oultra viresis R v Secretary of State for -ducation and -"ploy"ent e% parte4ational 5nion of Teachers.

iii" udicial review would be successul here through substantive ultra viresor

unreasonableness. This is because the minister has acted in a way which noreasonable minister in the same circumstances would have acted. A case whichillustrates this sort o ultra viresis)ssociated Picture +ouses v Wednesbury1orporation. $epending on the nature o the unreasonableness, this might beactionable under the 3uman *ights Act as well.

Comment:Straightforward questions which follow the sa"e 6for"ula7 as above.

Question 3c" ?ith reerence to #ource and your &nowledge o delegated legislationt=win votes>.

Another &ey problem or the 4aw )ommission has been the act that one o theirmost important and original aims has yet to be achieved ; the codiication o thecriminal law. A drat criminal code was published in 1F65 but, so ar, none o itsrecommendations have been enacted. This has disappointing implications. +aorareas o criminal law are still based on Iictorian legislation e.g. the (encesAgainst the @erson Act 1671" and use out!o!date language and ideas. )ourts are

then let to try and deal with this through udicial interpretation that stretches themeaning o words beyond their normal limitations. ven, recent legislation such asthe )riminal $amage Act 1FB1 has ound it diicult to &eep up with rapidtechnological change see R v Whitely1FF1". ut a lac& o political will to enactthe code has, since 26, led to the )ommission withdrawing the plans to codiycriminal law.

(ther practical problems the 4aw )ommission has had to deal with includenumerous budgetary and staing cuts which clearly impede the ability o the)ommission to achieve its aims. Also, the act that the )ommission is the only ull!time law reorm body has obvious limiting implications. The sheer pace o change

in recent years with rapid social, technological and economic changes as well asthe increasing intervention o / law has also contributed to the practicalproblems aced by the )ommission.

)learly, the )ommission can only be eective i the Government and @arliamentare prepared to ind time to enact reorms. 3owever, it has been argued that the4aw )ommission is an advisory agency and not a body designed to implementchanges in the law. The )ommission also plays valuable roles in contributing toacademic research and discussion, helping clariy practices o the courts andcontributing to discussion in the media, @arliament and among the general public.

Comment: a>ci' ?nce again there is a lot of potential ground to cover with aquestion li!e this and it is best to cover the breadth of the question rather thangetting bogged down in detail on one particular aspect. The question really needsto address three !ey areas which are 6who are the aw 1o""ission= What dothey do= )nd how do they do it=7 It would be unli!ely that a candidate wouldachieve level @ without addressing all three aspects. Please also re"e"ber whenthe question co""and states 6with reference to the source&s'7 it will be unli!elythat candidates can access level four without e%plicit reference to the source.

a>cii' -ven though this question see"s fairly narrow it does offer the opportunity

to e%plore the detail of the !ey criticis"s with e%a"ples and consequences allrepresenting valuable develop"ental points.

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Exam Practice Answers as Law G152