ABSTRACT
Designed for students who may not have ready access to a law library, and for students on part-time and distance learning courses, the Sourcebook series offers a collection of material from a diversity of sources. The sources are annotated to set the materials in context and to explain their relevance and importance. This volume contains a representative selection of cases and statutes which cover such topics as the nature of law, sources of law, and the structure and jurisdiction of the civil and criminal courts. The legal profession and the interpretation of statutes are also discussed.
TABLE OF CONTENTS
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documents into Plain English have shown number benefit it has not been soften attitude
Plain English considerable degrees improvement in comprehension. particularly elaborate experiment conducted Charrows United States. Potential jurors asked paraphrase standard civil instructions. instruction presented tape, played twice, paraphrase requested orally, and taped. instructions rewritten
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United Kingdom, the Renton Committee on the Preparation of Legislation commented: upon
those features described by Danet poetisation-might compromise 'majesty' Bhatia terms genre: after simplification, argues, resulting either obscure or even generic integrity original'. legislation, least, he prefers document solution. final argument which, correct, would affect all
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than is required'. But 'than is required' requires us to consider the particular purpose of the communication. The statute writer may argue that this form of drafting is, indeed, no more informative than is required, given the manner in which the drafting is likely to be used in court. It would be quite different if reliance could be placed, in the words of the Renton Committee, on 'the good offices of the reader'-if, that is, the reader were assumed to be 'co-
reader assumed operative', endowed knowledge purpose legislation, desirous spirit. Contemporary drafting makes no order combat age-old human capacity wriggle stretch rights unexpected limits', it becomes necessary
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draftsmen, such that the familiar style is sensed as 'the' right and appropriate one. This tradition is perceived by the non-specialist in very different terms:
shorter sentences linked cross- references. second document solution'. should recognise distinct irreconcilable audiences ...each different background knowledge different motivations reading understanding document. versions, therefore, represent different genres'. should, therefore,
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readers find it easier to read print that is set with equal, rather than variable, spacing between words. Punctuation itself is said to have originated as a guide to the oral reading of written documents (such as proclamations). Until recently, statutes were not punctuated and, even now, the courts are reluctant to attach significance to punctuation. The legal tradition has been one of unadorned, linear text. Such visual aids to presentation as indentation (for example, to highlight the logical structure of paragraphs) are relatively recent innovations. Bhatia indicates that we can go much further in the use of non-linear alternatives to prose, such as logical trees or flow-charts, list structures and tabulated presentations. The use of such techniques deploys the resources of the vertical as well as the horizontal dimension of the printed page. But the written document remains restricted to those two dimensions. With the aid of modern designed business judgment intelligibility-expert
information technology, third dimension, 'depth' (layers text) present 'hypertext' documents. Hypertext software marketed means deliver alternative versions text, different audience example, presentations levels generalist expert). principle,
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The Articles Part I Convention Rights and Freedoms Article Right to Life Noone
Noone Noone
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catheter and, if appropriate, to the cannula, and regulation of the infusions, could be carried out by an appropriately skilled nurse or midwife acting in accordance with precise instructions given by the registered medical practitioner. The Royal College of Nursing sought a declaration that the circular was wrong in law. Woolf
declaration, granted department declaration advice involve performance unlawful members college. Court Appeal reversed decision but further appeal House Lords, Lord Wilberforce dissenting, reinstated decision Woolf
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Aids to construction In addition to the three main rules of interpretation there are a number of secondary aids to construction. These can be categorised as either intrinsic or extrinsic in nature. • Intrinsic assistance is derived from the statute which is the object of interpretation; the judge using the full statute to understand the meaning of a particular part of it. • Extrinsic assistance, that is, reference to sources outside the Act itself, may, on occasion, be resorted to in determining the meaning of legislation; but which external sources manifest reports
sources? unproblematic. example, judges always entitled refer dictionaries order meaning non-legal words 1988) above). textbooks guidance relation particular points using mischief rule, refer earlier statutes
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playa
article, Richard Burns, barrister Ropewalk Chambers Nottingham Recorder Midland Oxford Circuit, examines Woolf Reforms sides of Bench.
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LCD, Review
Consultation Paper Tribunals Under General Supervision Council Tribunals
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In this text, the criminal justice system will be examined in two sections. First, the law relating to important pre-trial matters, up to and including the admissibility of confession evidence in court, will be examined and, second, the institutional and procedural aspects of prosecution and matters relating to bail, classification of offences, trials, plea bargaining and the jury will be dealt with. In examining these topics, it is important to keep in mind the various aims of the criminal justice system and the extent to which the existing law serves these aims. Amongst the aims to be borne in mind are the following: (a) to detect crime and convict those who have committed it; (b) to have rules relating to arrest, search, questioning, interrogation and admissibility of evidence which do (d) to have rules as above which do not unnecessarily impede the proper to ensure that innocent persons are not convicted; to maintain public order; (g) to maintain public confidence in the criminal justice system; and (h) properly to balance considerations of justice and fair procedure with those of efficiency and funding. In the following article, Frances Gibb, legal editor of examines
expose suspects unfair treatment likely unjust convictions; rules which impede proper investigation ensure innocent persons convicted; maintain public order;
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in the powers of arrest in based on whether an being committed: anyone may make the
police respondent daughter taken to the police station, charged, released morning daughter tried charge against respondent consent of court appellants advised insufficient evidence justify prosecution.
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warrant, he should take the arrested person before a justice of the peace or a police officer, not necessarily forthwith, as soon as was reasonably for false imprisonment.
reasonably possible; circumstances, respondent appellants' office obtain authority prosecute unreasonable delay before handing her police; therefore, the appellants liable
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had had a prima facie case for suspicion, but that the arrest was premature. He had defined 'reasonable cause' (which the officers would have needed to show they had when they arrested the plaintiff) as 'honest belief founded upon reasonable suspicion leading an ordinary cautious man to the conclusion that the person arrested was guilty of the offence'. He said an ordinary man would
sought information from suspect, including explanation grudge part. relied Scott [1944] principle every presumed innocent until proved guilty arrests. Court Appeal allowed an appeal Chief Constable. court judge severe a judging officer's conduct.
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Holgate-Mohammed v Duke [1984] WLR 660 House of Lords: A detective constable, exercising his powers under s2(4) of the CLA 1967, arrested the plaintiff on suspicion that she had stolen jewellery and took her to a police station where she was questioned. She was not charged with an offence and was released from detention within six hours of her arrest. The plaintiff bought an action in the county court against the Chief Constable for damages for wrongful arrest. The judge found that the detective constable had had reasonable grounds to suspect the plaintiff of having committed an arrestable offence and that the period of detention was not excessive but, because the constable had decided not to interview her under caution but to subject her to the greater pressure of arrest and detention so as to induce a confession, there had been a wrongful exercise of the power of arrest. The plaintiff was awarded £1,000 damages. The Court of Appeal allowed an appeal by the Chief Constable. On the plaintiffs appeal: Held that the Wednesbury principles were to be applied in determining, for the purpose of founding an action at common law for false imprisonment, whether the discretion conferred upon a constable by s2(4) of the CLA 1967 to arrest a person without a warrant had been exercised lawfully, namely whether the discretion had been exercised in good faith and whether irrelevant matters had been excluded
consideration. applied. [1970] considered. Dismissing appeal, since an arrestable offence committed and constable reasonable cause suspecting plaintiff guilty offence,
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had exercised his discretion wrongly in admitting the oral and written statements, but that since the defendant had never his character in issue it was not relevant for evidence of his bad character to be given against him, and when an incident like that happened during that course of a trial the
character evidence of character given against incident like happened during course of a trial the verdict could other unsatisfactory.
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whether any justices-that importance-for
decided by Divisional Court where taken order attention being officer acting lawfully thus, within execution of duty. Police officers course of attaching a 'fixed penalty' notice which was causing an obstruction. owner returned behaved abusively officers,
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no power detain on by in order out but it make stop summary it stands, nothing in which would permit an any
prosecution established stopped, searched and 'consent balanced point, including might provided which
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The court was not concerned with disciplining the police, but was vigilant in safeguarding the trial of an accused person. This vigilance required the exclusion of evidence obtained, without the kind of explanation that should have been given being given. The evidence of the stop and search in the street and of the search in the police station would be excluded by virtue of s of PACE 1984. Accountability and s powers There are dangers that the powers under s 60 could be misused, as no reasonable suspicion is required and the requirements for authorisation are rather nebulous. The safeguards against misuse include the fact that the admissibility of evidence gained through the use of a dubious stop and search event may be in doubt if there are serious breaches of the revised Code A. Someone charged with obstructing a police officer in the exercise of his duty may raise breaches of the Code in defence. Unlawful search or seizure may also provide a basis for an application for exclusion of evidence thus obtained under s of PACE (above). As the police have a common law power to take whatever action is even power
whatever action necessary order prevent imminent breach peace then, technically successful, police conduct question often justified. Section
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not This is, thus, a very wide power, and is subject to few restraints. The search could be for virtually anything and it need not be based upon a reasonable suspicion. This power was
given progressively devastating terrorism inability State vehicle stopped under section, whether officer grounds suspecting contains items terrorism. thus, unlike power conferred under which does, valid, require reasonable suspicion vehicle
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on premises, despite being asked by the occupiers to leave, in circumstances where the officers believed that
certain offences (seditious speeches, incitements violence) would committed present. Hewart said:
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At about The appellant demanded the authority the and
attempted search appellant's appellant demanded authority eventually entered appellant's court prosecution contended entry inspector's notebook requirement power entry and under headed 'Search Arrest'. police appellant's sons' arrests, could until hours Although limit, immediate power. would wrong right premises. police wanted could
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Search warrants and safeguards Section 8 of PACE 1984 provides for the issue of warrants by magistrates to enter and search premises for evidence of serious arrestable offences. This gives justices of the peace the power, on written application from a constable, to issue a search warrant where they are satisfied that there are reasonable grounds for believing that a 'serious arrestable offence' has been 'serious that serious with administration with
committed. arrestable offence' distinct 'arrestable offence' defined by defined by Sched 1984). definition divides offences categories. category comprises offences so serious 'serious arrestable offences'; listed in Sched include treason, murder, manslaughter, rape, kidnapping, incest possession firearms
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Section 65 of PACE 1984 now defines an intimate search as, ' ... a search which consists of the physical examination of a person's body orifices other than the mouth'. A physical examination of the mouth searches must authorised by rank
therefore allowed circumstances where non-intimate search of person occur, subject ordinary safeguards (Code Practice search of mouth drugs defined by 1984, restrictions which apply apply here. search of an arrested person's mouth may, thus, carried out
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of their duty simply by failing to answer questions, nor can the judge or prosecutor suggest to the jury that such silence is evidence of guilt. In the appellant was seen by officers in the early hours of the morning behaving suspiciously in an area where house breaking had taken place on the same evening. On being questioned, he refused to say where he was going, or where he had come from. He refused to give his full name and address, though he did give a name and the name of a road which were not untrue. He refused to accompany the officer to a police box for identification purposes saying, 'If you want me you'll have to arrest me'. He was arrested and charged with wilfully obstructing a police officer contrary to s 51(3) of the Police Act 1964. His appeal against conviction succeeded. Lord Parker noted that the police officer was acting within his duty in inquiring about the appellant and that what the appellant did was obstructive. The critical question, though, was whether the appellant's conduct was 'wilful' within the meaning of s 51. Lord Parker CJ, in the Divisional Court, took that word to mean 'intentional [and] without lawful excuse'. He continued:
looking for youths responsible defendant early hours morning. justices found officers acted proper manner putting questions defendant abusive, unco-operative possibly hostile officers, using obscene language, calculated provoke officers, and tried
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following two years across England and Wales (http://tap.ccta.gov.uk/ cps/
infoupdate3). units recommendation Glidewell report 1998. first since service established 1986, Crown prosecutors police together cases reforms return principle police lawyers working process repeated 30,000 cases a year. evidence and witness statements similarly copied and sent off under separate cover. Notifying witnesses would paper, through the post. Technology enable instant updating files investigating officers and lawyers communicating about cases email. Under system, police still retain decision charge.
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A more open system of plea bargaining was advocated by the Runciman Royal Commission on Criminal Justice (para 156). The report argues that this would do much to alleviate the problem of 'cracked trials' in which defendants do not plead guilty until the last moment, wasting the time of witness, the police, the CPS and the court. In a system where the vast majority of cases in the Crown Court and magistrates' courts result in guilty pleas and 81.5%, respectively) the operation of the plea bargain becomes very important. The Commission research indicated that'cracked
trials' accounted quarter Commission noted sentence discounts between guilty pleas established practice crown court. Commission suggested higher discounts should available those plead guilty earlier process. report states:
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Another branch of publicly-funded law is the Salaried Defence Service. The following extract explains the background to recent developments.
professional integrity individual lawyer subsumed
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a collateral attack is to win in the civil case, proving negligence against the criminal trial lawyer and, thus, by implication, show that the conviction in the criminal case was unfair. Findings Held: the House of Lords held (Lord Hope, Lord Hutton and Lord Hobhouse dissenting in part) that, in the light of modern conditions, it was now clear that it was no longer in the public interest in the administration of justice that advocates should have immunity from suit for negligence for acts concerned with the conduct of either civil or criminal litigation. Lord Hoffmann (with Lord Steyn, Lord Browne-Wilkinson and Lord Millett delivering concurring opinions) said that over 30 years had passed since the House had last considered the rationale for the immunity of the advocate from suit, in Randel v Worsley [1969] 1 AC 191. Public policy was not immutable and there had been great changes in the law of negligence, the functioning of the legal profession, the administration of justice and public perceptions. It was once again time to re-examine the whole matter. Interestingly, Lord Hoffmann chose to formulate his opinion in a creative mode to reflect public policy rather than in the tradition of what can be seen as slavish obedience to the details of precedent: if
There distinct versions divided loyalty argument. first possibility being negligence would actually inhibit lawyer, consciously or unconsciously, giving court priority client. second divided loyalty factor conduct of litigation difficult
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the funding of civil litigation introduced by the Access to Justice Act 1999 which would make it much more difficult than it had been in the past to obtain legal help for negligence actions which had little prospect of success. There was no doubt that the advocate's duty to the court was extremely important in the English justice system. The question was whether removing the immunity would have a significantly adverse effect. If the possibility of being held liable in negligence was calculated to have an adverse effect on the behaviour of advocates in court, one might have expected that to have followed, at least in some degree, from the introduction of wasted costs orders (where a court disallows a lawyer from being able to claim part of a fee for work which is regarded as unnecessary and wasteful). Although the liability of a negligent advocate to a wasted costs order was not the same as a liability to pay general damages, the experience of the wasted costs jurisdiction was the only empirical evidence available in England to test the proposition that such liability would have an adverse effect upon
advocates performed their court and there suggestion changed standards of advocacy worse. provided barrister could ground disapproved case. argument
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deal with the problem in numerous other contexts. So, before examining the strength of the collateral challenge argument as a reason for maintaining the immunity of lawyers, it was necessary to consider how the law dealt with collateral challenge in general. The law discouraged relitigation of the same issues except by means of an appeal. The Latin maxims often quoted were nemo debet vexari una et eadem causa and interest publicae ut finis sit litium. The first was
circumstances bring within spirit of rules. Criminal proceedings because, although technically litigation between Crown defendant, Crown prosecuted behalf whole. quality judgement which should
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JURY
generally accepted true' heart assumption presence persons, randomly introduced into procedure
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A further option
principles involved following chapter will, extended judicial bias. establishing question jurors considered, and appropriate questioning decision grounds stated, House Lords
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In the above speech Lord Irvine makes reference to the fact that the office of Lord Chancellor 'carries significant authority within all three branches of Government'. Such diverse authority raises questions as to its within Human Human but judgment designed support position
appropriateness indeed, its legality under European Convention Rights (ECHR). which Chancellor, European Court Rights (ECtHR) decide issue various roles assumed Bailiff Guernsey, still
