The ELSM summative personal skills portfolio contains the following items:
- Westlaw and Lexis certificates, already submitted and completed. Candidates should not attempt to submit or resubmit, in any form. All candidates who submitted their certificates on time will be given a grade of 100% for each of those units of assessment.
- The candidate’s answers to TB 1 seminar 7, questions on statutory interpretation, except for Q13. (This item of the portfolio carries 35 of the 100 marks available for the portfolio document).
- The candidate’s answers to TB1 seminar 8, questions on precedent and case analysis. (50 marks).
- A brief comment on what the candidate learned in executing the court report and receiving feedback. This includes anything relevant, such as comments on the type and jurisdiction of the court, anything about the visit, the court users and staff, court procedure and so on, and anything learned from feedback. (10 marks).
- A very brief explanation of what plagiarism is, and how to avoid it. (5 marks).
Submit the single document, called “ELSM portfolio”containing items 2, 3,4 and 5, into the portfolio TURNITIN electronic drop-box on StudySpace, in the “portfolio” folder, in “assessment” by 09.00 on January 8th 2015. The word limit is 3,000 words. Words over this limit will be ignored. Title, subtitles and question numbers are excluded from the word limit. Candidates should not replicate the questions in their answer document.The work must be in 12 point font, in Ariel, or Times New Roman. Candidates should use footnotes to provide citations for any material referred to. Oscola formatting MUST be used. TURNITIN will detect plagiarism, including copying from another student, or a PowerPoint, any book or article, or any teaching material. TURNITIN is calibrated to ignore small matches, such as titles of Acts of Parliament, and legitimate material placed in quotation marks. Please see the StudySpace front page and follow the hyperlink marked “plagiarism” in the top left corner of the screen, and read the academic regulations on plagiarism.The portfolio document will be given marks out of 100% and will be graded according to the KU and KLS grading criteria.All candidates are expected to realise by now that they will be penalised for using internet crib sources, such as the Law Teacher, Sixth Form Law and similar sites and they will be rewarded for using legitimate sources such as the module textbooks, Westlaw, Lexis and so on. In accordance with KU regulations, module leaders are not permitted to grant extensions. In the event of illness, please follow the procedure in the regulations and contact the business and law undergraduate office. Contact details for the module administrator are in the handbook.
Solution: –
- 1. Till 1966, the House of Lords in United Kingdom were required to follow the earlier decisions under the principle of stare decisis, no matter if it created injustice. It was only after the Practice Statement 1966 that the House of Lords were given the authority to go away with the previous decisions. By this the precedential value of cases in lower courts does not get affected.
- The advantages developing law through the system of precedent are :
- There is certainty in law as looking at the existing precedents future decisions can be made.
- There is uniformity in law and treated in the same manner in all cases.
- The judicial precedents are flexible to adapt new situations.
- The precedents are detailed to refer and understand fully at any point of time.
The disadvantages developing law through the system of precedent are:
- Difficulty comes when there are number of reasons and decision based on them needs to be taken
- It takes a long time for the case to come to the court
- Inconvenient precedent is witnessed as cases can be differentiated from each other
- As there are too many cases it makes things more complex.(Law Teacher, 2014)
- The Court of Appeal is bound by its own previous decisions except in cases :
- Where the decisions made by them previously are in conflict and it becomes difficult for court to decide what to accept and what to reject
- Where the previous decision does not stand in parallel with the decision of the House of Lords
- In case the Court of Appeal believes that previous decision was given by mistake or carelessness. In R v Taylor [1950] 2 KB 368 the Court of Appeal held that in ‘questions involving the liberty of the subject’ if a full court considered that ‘the law has either been misapplied or misunderstood’ then it must reconsider the earlier decision.
- ‘per incuriam’ mean ‘through lack of care’ which means judgment of a court which has been made without making any reference to the statutory provision or earlier judgment which otherwise would be otherwise be relevant for the decision. The result of such a judgment is that such a precedent shall not be followed by the lower courts. The lower court shall be free from application of the earlier judgment of superior court where such a judgment is made by per incuriam.
- The three cases in which the House of Lords/ UK Supreme Court departed from its previous decisions are :
Morelle Ltd v Wakeling [1955] 2 QB 379, R v Northumberland Compensation Appeal Tribunal ex parte Shaw [1951] 1 All ER 268 and Polemis [1921] 3 KB 560. The court did so because the previous decision was taken under ignorance or forgetfulness of some provision which are inconsistent statutory provision so as to be applied in the future cases.
- “Persuasive” precedent means that though the judge is not bound to follow the previous decisions as it is not binding on them to adopt it. It is only persuasive as the judge might be influenced by it and persuaded that the legal principles should be followed. Example:
In the case of R v R [1991] the Court of Appeal decided the man who raped his wife is guilty of the offence is agreed by the House of Lords even though Housed of Lords is above in hierarchy and is not bound by the decision of Court of appeal and apply it in cases(Law Mentor, 2015) .
- 7. The meaning of stare decisis is derived from a latin maxim which means ‘Do not move settled things’. The doctrine of stare decisis means to stand by decided things or to go with the previous precedents .
res judicata means that the issue before the court has already been judged by another court between the same parties
The difference among the two concepts is Res-Judicata applies to the decision in the discuss, while Stare Decisis works as to the ruling of law involved.
Res judicata binds the parties and its succsessors but Stare Decisis binds everyone involved.
Res Judicata applies applies to all courts but Stare Decisis applies only to high courts and higher courts.
Res-Judicata takes effect after the time for appealing against a decision in past. But Stare Decisis operates at once.
- The term ‘ratio decidendi’ means the ‘rationale for a decision’ and refers to that the part of the judgement which is delivered at the end of a case explaining the reasons for the decision. The difficulty is in the search for the ratio is to a great extent that one judgement cannot be reached to.Another is where ratio and orbiter cannot be distinguished and separated.
- 9. Obiter dictum is one which is not binding on the future courts though it depends on the reputation of the judge , courts and the circumstances of the case.
- If a judge distinguishes a previous case is a way to avoid to follow a previous decision . The reason for the same is that the material facts are different or because the statement of law cannot be applied properly in the new cases as the same is very narrow(Law Mentor, 2015). Reversing is when a party who loses the case appeals against the original decision and his appeal is upheld and the decision is reversed.
Overruling occurs when a superior court decides not to follow a previous decision of a lower court.
Distinguishing a case on the facts occurs when a court decides not to apply an existing binding precedent to the case before it because it is satisfied that the material facts of the current case are different from those of the precedent, therefore the precedent does not apply.
- Yes the Court of Justice of the EU (CJEU) is the united term for the European Union’s judicial arm but it has three different courts having its own jurisdiction (UK Parliament, 2011).
- The European Court of Justice is not bound by its own previous decisions. It has the right to reconsider its own previous decisions and depart from the earlier decision.
- The judgments by ECJ are not bound on the lower courts. The lower courts are considered national courts and hence as not bound by ECJ judgments it is not applicable on all UK courts.
- The judgments made by the ECHR are binding on the respondent states and hence will have to oblige by it. The States have to abide by the judgments of the Courts (Forst D).
References:
Law Teacher, ‘Judicial Precedents 1’, (2014), <http://www.lawteacher.net/english-legal-system/lecture-notes/judicial-precedent-1.php> accessed 8th January 2015.
Law Mentor, ‘Persuasive precedent’, (2015),<http://www.lawmentor.co.uk/glossary/P/persuasive-precedent/> accessed 8th January 2015.
MJA, ‘Summary Of Papers of Judicial Officers in Wardha District for Workshop on Law of Precedents and Res Judicata for Workshop on Sentencing Policy and Victim Compensation’ <http://mja.gov.in/Site/Upload/GR/Summary%20for%20MJA%20and%20JOTI%20(1).pdf> accessed 8th January 2015.
Parliament, UK, ‘The Court of Justice of the European Union’, (2011), <http://www.publications.parliament.uk/pa/ld201011/ldselect/ldeucom/128/12805.htm> accessed 8th January 2015.
Deborah Forst, ‘The Execution of Judgments of the European Court of Human Rights’, ICL Journal.
- Statutory interpretation is the act or the process of interpreting or applying the legislation. The concept of statutory interpretation is developed by the courts which help them in cases to interpret the statutes and solve the case. The other name for it is statutory construction. In some cases the words mentioned in the statute are simple to understand and have one meaning. But in many other cases the words of the statute might be confusing and needs to be resolved by the judge. For this the judges use various rules for statutory interpretation like the literal rule, golden rule, the mischief rule and the purposive approach. The judges need to interpret the statutes where they need to first ascertain the intent of legislature for the purpose of making the law effective and secondly they should avoid such results which they believe the legislature must not allow being irrational (US Legal,2001).
- The statutes give rise to problems of interpretation because the statutes do not always offer a plain meaning. In practical cases, the meaning of words in the statutes gives a confusing meaning for the case to be resolved. The second fact is that the intention with which the statute is being interpreted may be different for different individuals and may be judged differently. This brings two different opinions for a same clause creating more confusion in the case. Also there are certain canons which are used for interpretation of statutes which might be used in a unlawful manner to achieve their objective ( Clark K and Connolly M, 2006).
- The various tools for statutory interpretation used by judges in domestic courts are :
- Plain Meaning:
The court believes that meaning of the statute should be construed in such a manner where they can be understood in an ‘ordinary’ and ‘reasonable’ person would understand it. For this primary source, secondary source or whole Act information may be used.
- Context:
The scope or meaning of a particular word or phrase should be understood in the context to interpret of meaning or scope of particular words or phrase. It should be in the context of the common law.
- The statute should be understood in reference to the terms associated with it.
- The use of general words follows the specific words to include words of similar nature.
- Inclusion of one thing means exclusion of other.
I Rv L (1994) 49FCR 543, Burchett, Miles and Ryan JJ at 548
The question was regarding interpretation of Section 15AA(1) the requirement of s15AA(1) that one construction be preferred to another can have meaning only where two constructions are otherwise open, and s15AA(1) is not a warrant for redrafting legislation nearer to an assumed desire of the legislature”.
- Intrinsic Aid of interpretation is those which are found in the statute itself. Example is An Act Instituting Policies for the protection and welfare of domestic workers. It explains the reason for enactment and the purpose. It generally starts with the word ‘Whereas’. For example: WHEREAS, under Section 5 of Presidential Decree No. 705, the Bureau of Forest Development is vested with authority and jurisdiction over all forest lands including watershed reservations;”(Claridadaes A, 2013)
When the Court finds out resources outside the preamble and purview of the Act it is called extrinsic aids of interpretation. Example of the same is ude of dictionaries when the meaning of any word is not defined under the Act then the general meaning can be looked in the dictionary.
- Parliamentary material should be used to aid the construction of legislation when the same is vague or absurd and difficult to interpret. This shall be used in the court when such material gives enough proof to state the mischief or to understand the intention behind the legislation. Lord Tenterden CJ in Doe d Bishop of Rochester v Bridges (1831) 1 B&Ad 847, 859 laid down the general rule that ‘where an Act creates an obligation, and enforces the performance in a specified manner that performance cannot be enforced in any other manner’. In the case of Lord Diplock in Lonrho Ltd v Shell Petroleum Co there were two exceptions to the general rule:
- Where the obligation is imposed for the benefit of particular class of people or their protection
- Where there is a public right created by the statute and an individual may suffer damage of his right.
- As per Section 3 of the Human Rights Act it states ,’ ‘So far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.’ In the case of Sheldrake v DPP (2004) , there were two appeals which were considered together as both of them has the same legal issue. The concern was with the legal burden imposed on a defendant so that he can prove that he has not committed an offence. This was done keeping in mind the breach of innocence protected in Article 6 of the European Convention. The House of Lords concluded that the relevant legislation did not breach the European Convention and in reaching this conclusion it considered its role in interpreting statutes following the Human Rights Act 1998.
10. Other than the gov.uk website, the matter on Anti-social Behaviour, Crime and Policing Act 2014 can be found on various books and journals written by various authors on the Act. Als o some advocates and attorneys make some posts on the Act like Ashfords have given an article on 13th October2014 on it. Also the Civil center has given an article on 14th November , 2014 on Anti Social Behaviour Crime and Policing Act 2014. These are certain external sources from where the Act can be derived other than gov.uk website.
11. Internal sources to interpret the Act would be the guidance taken from the experts about the various provisions of the Act. Group Discussions and those who possess knowledge can be used to interpret the Act.
12. The purpose of Part 1 of the Act is to give injunctions orders to the mischiefs. It provides injunction to those who do such acts which are considered as anti-social behavior. This shall prevent the person from conducting anti-social behavior and need him to do such act as ststed under the orders. The injunction shall specify the period it shall effect and the state it shall effect on till next order on the same is made effective
US (2001), <http://definitions.uslegal.com/s/statutory-interpretation/> accessed 8th January 2015. Legal, ‘Statutory Interpretation Law & Legal Definition’
Katharine Clark and Matthew Connolly, ‘A guide to reading, interpretating and applying Statutes’, (April 2006), The Writing Center at GULC.
Atty. Alvin Claridadaes, ‘Intrinsic or internal aids in Statutory Interpretation’, (8th June, 2013), <https://attyalvinclaridades.wordpress.com/2013/06/08/intrinsic-or-internal-aids-in-statutory-interpretation/> accessed 8th January 2015.
Ashford,’Anti-social Behaviour, Crime and Policing Act 2014 – All Change?’,(13th October, 2014),< http://www.ashfords.co.uk/anti-social-behaviour,-crime-and-policing-act-2014-all-change/> accessed 8th January 2015.
Wallsall, ‘Anti Social Behaviour Crime and Policing Act 2014’, (14th November, 2014),< http://cms.walsall.gov.uk/index/anti_social_behaviour_crime_and_policing_act_2014-2.htm> accessed 8th January 2015.
Court Report
Court Report
Student Name:
Date Turned In: 14th of November 2014
Date/Time of Observation: 14:00
Court: Kingston Crown Court
Case Name:
Presiding Judge:
Attorneys: Penelope Blake,
Charges: Cash-in-transit Robbery under Theft Act 1968;
Rash Driving under the Road Traffic Act 1988;
Type of Proceedings observed:
I observed the direct examination and cross examination of the three convicts Disen, Nushi and Gilman. The session also included the sentencing of the convicts.
Courtroom environment:
The courtroom was moderately big with a number of people inside the room. Even though there was a lot of noise before the proceedings started it soon faded as soon as the judge entered the room. Gradually there was pin-drop silence in the room as the court clerk ordered to switch off all electronic devices present. It was also notified outside the room that even silent texting was prohibited. The most important people in the room were the judge, the attorneys of both sides, the legal advisors, the clerks and the defendants.
Impressions of the Judge:
The judge had a very dynamic personality but she also kept the people and the situation in the room under her control so that the proceedings of the court moved smoothly and in an efficient manner. Her voice was stern, loud and clear so that everybody in the room was able to hear. When she did not agree with a point made she also made her dissatisfaction visible.
Impressions of the Prosecutor:
The Prosecutor was an extremely confident person who was asking straight forward questions to the convicts which made them extremely nervous. Further the prosecutor also was extremely alter during the entire proceedings and did not lose any chance to contradict the defendants and establish points to prove all the convicts guilty. It also appeared to me that the judge was quite impressed with the manner in which the prosecutor carried on the direct and cross-examinations.
Impressions of the Defense Attorney:
All the convicts had their own defense attorneys. But the defense attorney who caught most of my attention was Penelope Blake who was the attorney on behalf of Gilman. She came up with strong contentions to save her client. Her conduct was also very sober even when the judge showed anger on her client Gilman.
Observation of the Jury Trial:
The trial of the case conducted in the courtroom was a case concerning cash-in transit robbery under the Theft Act 1968. The robbery took place on 29th April 2014 when a cash box containing £25,000 was robbed from cash in-transit guard by the three accused robbers. The robbers had then tried to escape in a stolen BMW car. During the trial the judge points out the matching of the accused Gilman’s DNA with that of the one found in the car which proved that the accused was driving the car. The convicts were further accused of violence on the guards but the judge dismissed that stating that argument. The defense attorney further argued that since Gilman accused was the only driver he should not receive the same sentence as that of the other two convicts. In this regard the judge stated that all the convicts had previous convictions and further stated that their crime was a professionally organized one. The attorney in favor of the other convict Nushi claimed that the convict was a talented athlete who had won a number of boxing championships and imprisonment would ruin his life and career. Judge stated that the fact that the convict was an athlete was even more shameful. The defense attorney then stated that his present state is a reflection of his rough childhood. The judge decided to give the sentence after a break. After the recess the judge announced the judgment. She sentenced the three accused Gilman, Nushi and Disen under the Theft Act 1968 to an imprisonment. Gilsen was also cofound guilty for rough driving and sentenced accordingly under the Road Traffic Act 1988. Gilman was sentenced for eleven years and others were sentenced for a period of nine years.
General Observations:
While I was present in the courtroom I also took time to observe the surrounding environment in the courtroom. I noticed that while the proceeding was going on all the people present in the courtroom was very attentive. The court clerks and other officials made sure that there were no discrepancies during the proceedings of the court.
This was a great experience for me as I had the chance to understand the mechanisms and procedures in the courtrooms.
