Washminster

Washminster
Washminster

Friday, 26 May 2017

Criminal Law Exams

If you are revising for an undergraduate criminal law exam (such as the Open University's W201 exam), remind yourself that

1 No undergraduate course in Criminal Law requires you to know about every criminal offence in existence - your course is limited to a finite number of offences.

2 For each offence within that finite set of offences - you need to be able to describe and explain the Actus Reus; Mens Rea and any defences specific to that offence (Murder is the one that has some specific defences that you should know) - and briefly apply the leading cases.

3 A useful revision exercise - which produces a tool that you can use for further revision - is to go through your manual or text book and create a spreadsheet. For each offence [and these are described in the rows across] - you should fill in cells, set out in columns
- Name of the Offence
- Relevant source (section of the relevant Act of Parliament; or 'common law offence (you might want to state a leading case which illustrates that it is a common law offence)
- Actus Reus - in numbered or bullet point list (within that cell)
- Mens Rea - in numbered or bullet point list (within that cell)
- any specific defences
- any related sections (such as definitions of elements of the AR or MR)
- a couple of key cases

4 Cases are useful - but beware of trying to memorise too many, and concentrating mainly on describing the facts. Your focus in cases must be on how that case helps us understand the point of law at stake.

This is the last Washminster post that I will be writing for exams in 2017. So I finish with this IMPORTANT message



Wednesday, 24 May 2017

Facing a Law exam?

There are four matters to concentrate on. For each topic (for example -doctrines such as - Separation of Powers; Rule of Law; Parliamentary Supremacy : or criminal offences such as Homicide; Theft; Rape; Attempts....) make sure that you can succinctly deal with the key

* Concepts
* Arguments
* Cases
* Legislation

Could you describe and explain them to an intelligent friend? or deal with any question that they might fire back at you? (this is the value of working with other students as you prepare). Could you make a coherent argument in response to a request to discuss the strengths/weaknesses of the existing law - or for/against reform?

Are you confident that you know; could explain and use the relevant legislation or cases?

The diagram below might help you prepare your thoughts. [CLICK THE PICTURE FOR THE FULL SIZED VERSION]

"Condensing" is an important part of revision. [so you could review the topics and draw a diagram like the one below for each specific topic].

So is rehearsing explanations and arguments.

Is there a flow diagram you've seen - or could construct to logically set out your argument or solve a practical problem? (My students can use the Judicial Review diagram (W201) as a starter).

Are there any tables you could construct which summarise arguments - with a column for Strengths (with a second column for your evaluation of those claimed strengths) and a column for weaknesses (with a fourth for evaluation).

For Criminal Law you could draw up a table setting out in columns the Actus Reus; Mens Rea; and defences for each offence, along with the leading cases and a sentence to remind you of the key facts.


Revision is not about memorising lots of facts - and regurgitating them. It's about demonstrating your handling of the concepts; arguments; and authorities. Train for the exam, not like a child preparing for a spelling bee competition, but a football player - ready to flexibly respond to whatever strategy the opposing team uses on match day. Flexibility and skilful use of your acquired resources (your knowledge and understanding) are the key.

Monday, 22 May 2017

How to answer a JR exam Question


Faced with a problem question in a law exam about whether Judicial Review can be used? This flowchart suggests a logical approach to structuring your answer.

(click on the image for a full sized version)


Don't forget that as well as problem questions on Judicial Review - which are all about specific decisions, the issue of Judicial Review is relevant to the Constitutional issues of Separation of Powers and Parliamentary supremacy. So do reflect on those issues.


Friday, 19 May 2017

Freedom of Expression


Traditional 'freedom of expression' in England rested upon the principle that anyone is free to do what they want, unless the behaviour is specifically banned. Liberty is one sense, but a fragile one. The problem is that one person's use of the freedom may interfere with someone else's rights.

So throughout English history freedom of expression has been limited. The criminal law has been used to prevent obscenity; revelation of state secrets; sedition; inciting troops to mutiny; and in everyday life threatening, insulting or abusive words and behaviour are banned. Incitement to racial and religious hatred will bring criminal sanctions. There is criminal liability for contempt of court.

If someone's rights have been interfered with, there are remedies available in the civil courts - through actions for the torts of defamation and breach of confidence.

The European Convention on Human Rights, Article 10 states:-

  1. Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
This is not an absolute right - Section 2 makes that clear - but the right is also balanced against the rights of others set out elsewhere in the ECHR. Article 8 sets out the right to privacy - "Everyone has the right to respect for his private and family life, his home and his correspondence."

There is some useful caselaw on balancing these rights, including -

Thompson and Venables v News Group Newspapers
Campbell v Mirror Group Newspapers
Murray (by his Litigation Friends) v Express Newspapers plc

There's an excellent resource here on current privacy law.

Wednesday, 17 May 2017

ECHR - Key Rights & Restrictions

What are the key rights in the European Convention on Human Rights? - and when can these be restricted? The answers can be found in the Convention itself

But it can be easy to lose sight of the key points - so I have prepared a hand-out for my Open University W201 students, which reformats the text to highlight what the rights cover - and when States can interfere with them. This is a revision document - so if it is of help to you - or you have friends studying Constitutional; or  Administrative Law (UK) or Human Rights Law - please feel free to use it, or share this post (Facebook; Twitter; Email - or whatever)

Article 8 – Right to respect for private and family life 

1.    Everyone has the right to respect for his private and family life, his home and his correspondence.

2.    There shall be no interference by a public authority with the exercise of this right except 

    1. such as is in accordance with the law and 
    2. is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.


Article 9 – Freedom of thought, conscience and religion 

1.    Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2.    Freedom to manifest one's religion or beliefs shall be subject only 

    1. to such limitations as are prescribed by law and 
    2. are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.


Article 10 – Freedom of expression 

1.    Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.    The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to 

    1. such formalities, conditions, restrictions or penalties as are prescribed by law and 
    2. are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 11 – Freedom of assembly and association 

1.    Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2.    No restrictions shall be placed on the exercise of these rights other than 

    1. such as are prescribed by law and 
    2. are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.


·        Do not forget the principle of proportionality – R (on the application of Daly) v Home Secretary [2001] 2 AC 532


o   Is the legislative objective sufficiently important to justify limiting a fundamental right?

o   Are the measures taken rationally connected to this objective?

o   Are the measures taken no more than is necessary to accomplish this objective?