GCSE Law. Other Guidance: Subject Content

Transcription

1 GCSE Law Other Guidance: Subject Content

2

3 SUBJECT CONTENT UNIT 1 THE ENGLISH LEGAL SYSTEM This section provides an introduction to the English legal system and supplies a context for later study of areas of substantive law. It covers law making, legal personnel and courts and processes Introduction to Law Students need an outline understanding of the meaning and need for law in society: they also need to be able to understand the difference between public and private law, and to recognise the different functions of civil and criminal law. Students must also have an understanding of the different branches of both public and private law and the legal differences between them. They should be aware of the type of cases covered by the different branches of law: for example, being able to recognise a tort or a crime Courts and Processes Hierarchy of the Courts In this section, students should be able to identify and replicate both the civil and criminal court hierarchy, including appeal courts with all possible appeal routes. This will also aid understanding of 3.1.4, namely case law and judicial precedent. The Criminal Courts Magistrates Court Pre-trial: Students need to be able to identify the different processes of how a defendant will come to appear in court, either by way of the issue of a summons or by being arrested. They will also require an outline understanding of the role of the Crown Prosecution Service, including the need for an independent opinion from the police on the available evidence, and the merits and public interest tests employed by the CPS. It will also be necessary for students to have an awareness of the role of the duty solicitor at the police station and the accused s right to a duty solicitor at any time, including the availability of a duty solicitor to take instructions at the Magistrates Court if the defendant is unrepresented. They need to have an awareness of the granting of bail by either the police or the Magistrates Court, including the general presumption in favour of bail, and to be able to identify the Bail Act They are not required to know the sections of the Act, but will need an awareness of the meaning of bail, when it may be refused, and examples of conditions which may be placed on bail, such as reporting to the police, living in a bail hostel, or not contacting witnesses. In examining the Magistrates Court, students will need an awareness of the classification of criminal offences, namely summary, triable either-way and indictable, and the role of the magistrates in each of these types of offence. Copyright 2009 AQA and its licensors. All rights reserved. 1

4 The trial: Students will need to be able to explain the procedure of a summary trial and the role of the magistrates or district judge. With triable either-way offences, students must acquire an understanding of the plea before venue procedure and the defendant s right to a choice of mode of trial if the magistrates are willing to hear the case. They should also be aware of the sentencing powers of the magistrates and the possibility that the magistrates consider that their sentencing powers are insufficient to hear the case should the defendant be convicted, meaning that the case transfers to the Crown Court for trial. Post-trial: In this section, students will require an outline understanding of the different aims of sentencing (such as reparation, rehabilitation, deterrence, retribution), the powers of the court, and aggravating and mitigating factors. They should be aware of custodial and non-custodial sentences and the range of community sentences available. They should also be aware of factors such as planned, joint enterprise, non-guilty plea which would lead to a harsher sentence and mitigating factors such as co-operation with the police, remorse, spontaneous action which would lead to a more lenient sentence. Appeal routes and types of appeal should be known in outline. The Crown Court The trial and post-trial: Students will need an understanding of the different roles of the judge and the jury in the trial of either an indictable offence or a triable either-way offence where the defendant has opted for Crown Court trial, or where the Magistrates Court has transferred the case to the Crown Court. They will also need to know about qualification and selection of the jury as set out in Section They will need an awareness of the jury s role as arbiters of fact and unanimous and majority decisions, whereas the role of the judge involves both the law and summing up the facts to the jury and, if the defendant is convicted, sentencing. The Civil Courts The County Court Pre-trial: Students need to understand sources of legal advice and funding in outline. They need to be aware of pre-trial negotiation in order to try to settle the claim without litigation and sources of legal advice such as Citizens Advice Bureaux for free advice, solicitors offering Legal Help (legal aid), solicitors offering conditional fee arrangements (no win, no fee agreements), private finance and insurance covering claims. In this section, students need an awareness of the role and jurisdiction of the County Court and how to commence an action using a claim form. The trial: Once proceedings in the County Court have been commenced by a claimant, the students need an understanding of the Small Claims and Fast Track procedures and when they are used, and the purpose of an allocation hearing including case management. Post-trial: In this section, students will need an outline understanding of the civil remedy of common law compensatory damages and the equitable remedy of an injunction, and when they would be appropriate. They should be aware of the difference between special and general damages. 2 Copyright 2009 AQA and its licensors. All rights reserved.

5 3.1.3 People In The Law Lay People Juries Students need an understanding of how juries are selected from the electoral register and what the qualifications are for jurors, namely that they must be aged between 18 and 65, have their name on the electoral register, and have lived in the UK for at least 5 years from the age of 13. Students must be able to relate qualification and selection to the Juries Act They also need an awareness of disqualifications under the Criminal Justice Act 2003 for mentally disordered persons and those suffering lack of capacity. They need to understand reasons for deferral, such as illness, booked holiday, examinations, etc. They should be aware of the role of juries as arbiters of fact, and the provision for majority verdicts in both criminal and civil cases. Students should be able to weigh advantages such as jury equity, secrecy and public confidence against disadvantages such as bias, lack of understanding and perverse decisions, preferably including case law examples. Lay Magistrates Firstly, students are required to have an understanding of the selection and appointment of lay magistrates, age and residence requirements including completion of application form, the two interviews by the Local Advisory Committee and recommendation to the Lord Chancellor (Minister of Justice) of suitable candidates, who are then appointed by the Lord Chancellor. Secondly, students must gain an understanding of the role of the lay magistrate in both civil and criminal hearings, including Youth and Family Courts, applications for bail, transfer for trial, summary trials and triable either-way offences as well as licensing. Lastly, students need to be aware of the magistrates ability to hear appeals in the Crown Court alongside the judge. Students should also be able to consider some basic advantages and disadvantages of using lay magistrates such as the cost, reliance on the legal adviser, local knowledge, inconsistent sentencing. Legal Professionals Solicitors and Barristers Students will need an understanding of the training of both solicitors and barristers and to be able to outline the different stages of their training, as well as studying the work of both barristers and solicitors, their involvement in litigation, and the broad range of tasks performed by each group, along with awareness of the increased overlap that now exists between the two professions. Judges Students will require an outline understanding of the difference between superior judges (Law Lords, Lords Justices of Appeal, High Court judges) and inferior judges (Circuit judges, Recorders and District judges) and which courts they preside in. They will need to be familiar with the role of the judge in both civil and criminal proceedings and in the appeal courts. Copyright 2009 AQA and its licensors. All rights reserved. 3

6 3.1.4 Sources of English Law The making and importance of Acts of Parliament In this section, students need to have an outline awareness of the informal process of statute making and the purpose of Green and White Papers. They must be aware of the process of a public Bill from drafting to the First Reading, the subsequent stages of the Bill in both the House of Commons and the House of Lords, to the point at which it receives the Royal Assent and becomes law. They do not need to know the composition of Parliament but should be able to articulate the role of the three elements of Parliament in passing an Act. Case Law and Precedent Any explanation of the system of judicial precedent requires reference to and description of three areas: firstly, an explanation of the concept of precedent, with reference to ratio decidendi and obiter dicta, and to binding and persuasive precedents; secondly, an outline of the operation of the doctrine within the hierarchy of the courts; and thirdly, the need for law reports. In these areas, it is expected that case law will be included. Students should be aware of the basic advantages and disadvantages of judicial precedent, such as rigidity, certainty, slowness of growth, etc. Relationship between the different sources of law Students must acquire an outline understanding of the principle of Parliamentary supremacy and be able to explain the effect of EU membership and of the Human Rights Act 1998 on this doctrine. They will need an awareness of how the Human Rights Act enables judges to declare Acts incompatible with human rights. UNIT 2 LAW IN ACTION The Law of Tort Introduction to Tort Students are required to have an outline understanding of the nature of a tort and of tortious liability and of the purpose of bringing a common law action in tort based on fault. Students will need to be able to identify the main differences between crime and tort, such as the different court systems, who brings the action/prosecution and why, punishment compared with compensation, and the differences in terminology. They should have an awareness of the overlap between crime and tort and be able to identify those torts which are also crimes, such as theft, aggravated trespass and assault. Negligence Students should be able to explain what is meant by the duty of care, with reference to the neighbour principle established in Donoghue v Stevenson and the current rules under the Caparo three-part test: reasonably foreseeable harm; proximity between defendant and victim; fair, just and reasonable to impose a duty of care, especially in relation to the police and emergency services. Appropriate case law should be introduced to illustrate the Caparo test. 4 Copyright 2009 AQA and its licensors. All rights reserved.

7 In examining the breach of duty of care, students should first of all understand the concept of the reasonable person (the objective test) and the standards expected from professionals, children and learners. Secondly they should be aware of risk factors such as the magnitude of the risk and the cost and practicality of taking precautions against the risk, as well as the potential seriousness of the harm or potential benefits of the risk. Cases such as Bolton v Stone and Paris v Stepney Borough Council should be used to illustrate these points. Students need to understand the operation of res ipsa loquitur (obvious negligence) as a rule of evidence and how the burden of proof shifts from claimant to defendant. Case law such as Byrne v Boadle and Ward v Tesco should be used to illustrate the operation of the rule. For the third element of damage, students should understand the but for test for factual causation and the test for remoteness developed in the Wagon Mound, along with the thin skull rule. Students need to understand the concept of occupiers liability with reference to the Occupiers Liability Act 1957 relating to lawful visitors and the Occupiers Liability Act of 1984 relating to trespassers. Finally, students must have understanding of the meaning of vicarious liability and its main uses, including the various tests used by the courts to decide whether the tortfeasor is an employee or an independent contractor. Students also need an understanding of liability lying with the employer, provided the tort took place within the course of the employment and was related to the contracted work. This section lends itself to extensive use of case law examples and students will also be required to evaluate the concept and its use. Trespass Students require an understanding of the three different heads of trespass, namely trespass to land, trespass to the person and trespass to goods. For trespass to land, students will be required to define the tort as direct intentional unlawful interference to land without permission of the owner or occupier, and to be able to compare this tort with private nuisance. An ability to identify remedies and defences such as damages and/or injunction and the self-help remedy of ejectment, along with the defences such as act of a third party, would be useful. For trespass to goods, students need an awareness of the difference between conversion (also theft) and trespass to goods and the Torts (Interference with Goods) Act Trespass to the person should be understood in its three forms of assault, battery and false imprisonment. Students should understand and be able to recognise the differences between assault and battery and be able to give examples. They should be aware of the crossover with the criminal law and the purpose of bringing an action in tort for such civil wrongs. Students need to understand the concept of false imprisonment and be aware of appropriate case law. Nuisance For this tort, students need to understand the difference between public and private nuisance and the circumstances under which a nuisance becomes a public nuisance which is also a crime. They need to understand the term indirect and be able to compare this with direct interference under the tort of trespass to land. Copyright 2009 AQA and its licensors. All rights reserved. 5

8 For public nuisance, students should be able to recognise the kind of situations which would give rise to a public nuisance such as noise, fumes, vibrations, etc, which affect a defined community, and they should have an awareness of appropriate case law. They also need to be able to recognise that if one person suffers more than the general community affected, then that person also has a claim in private nuisance. For private nuisance, students need to understand the various factors that the court will consider to determine liability, such as duration, location, reasonableness, malice, etc, and students will need to be able to recognise such factors in a case scenario. These factors should be illustrated with appropriate case law. General Defences in Tort Students need to have an outline understanding of the main defences in tort including statutory authority, consent, inevitable accident, necessity and Act of God. They do not need to know the rule in Rylands v Fletcher. They should recognise which defence is appropriate for which tort, such as consent being suitable for trespass to the person and inevitable accident being raised when the defendant is not culpable. The rules relating to rescuers and appropriate case law such as Haynes v Harwood would be useful to aid understanding. Remedies in Tort These will probably be covered when examining the specific torts. Students will need to be aware of the right to common law damages and also when it may be appropriate to award the equitable remedy of an injunction, for example for trespass to land and for public and private nuisance Criminal Law Introduction to Criminal Law Students should understand the need for the actus reus (guilty act or conduct) to be voluntary and be aware where liability may lie for acts or omissions (in specified circumstances). Although knowledge is required in outline only, students should show an awareness of the concept of causation, ie that the defendant is a significant and operative cause of the victim s injury or death in offences against the person. It is also important that students acquire an understanding of the concept of mens rea (guilty mind) and know that this can be by intention or subjective (Cunningham) recklessness, ie a conscious taking of a risk. Knowledge of objective recklessness is not required. Students will also need to have an awareness of crimes of strict liability, where no mens rea needs to be proved, and to understand that these are mainly statutory. An awareness of why some crimes are classified as strict liability (to maintain high standards and public safety) would aid understanding. Fatal Offences It is necessary for students to be able to define the crime of murder (common law definition) and understand the actus reus and mens rea of the crime. The Nedrick/Woollin virtual certainty test for oblique intention will assist understanding of malice aforethought. Students should also be able to identify and explain the specific defences to murder, namely diminished responsibility and provocation under the Homicide Act 1957 leading to the lesser charge of voluntary manslaughter. 6 Copyright 2009 AQA and its licensors. All rights reserved.

9 Students will also need to be able to recognise and know the definitions of the two types of involuntary manslaughter, namely unlawful act manslaughter (constructive manslaughter) and gross negligence manslaughter and be able to distinguish between them. They will be required to distinguish between voluntary manslaughter where intention is required and involuntary manslaughter where no intention to kill or cause grievous bodily harm is required. Non-fatal Offences Students will need to identify both the statutory and common law offences of assault, battery, assault occasioning actual bodily harm, and both Section 20 and Section 18 grievous bodily harm and malicious wounding. They should be aware of the actus reus and mens rea of each of the offences and be able to distinguish between assault and battery and also the difference between a Section 18 and Section 20 offence. Students will need to be able to recognise specific offences in a given scenario. Property Offences In this section, students will need to understand the definitions of three offences from the Theft Act 1968, namely theft, robbery and burglary. They require an awareness of the actus reus and mens rea of each of the offences and be able to illustrate their understanding with some case law examples. They will need to be able to distinguish between Section 9(1)(a) and 9(1)(b) in the offence of burglary. In addition, students are required to be able to recognise and define the offence of Making Off Without Payment under the Theft Act 1978 and to be able to give examples of when the offence may occur, eg leaving a restaurant without paying the bill, alighting from a taxi without payment, failure to pay a hotel account. General Defences The specification requires an outline understanding of several general defences to criminal offences, namely insanity, automatism, intoxication, duress and duress of circumstances/necessity, self-defence and consent. Students should acquire an awareness of the definition of each of the common law defences, eg M Naghton rules, voluntary and involuntary intoxication, etc. Students will need to be able to apply the appropriate defence to possible offences in a scenario; for example, if alcohol or drugs are mentioned in the stem material, then intoxication would be an appropriate defence to raise Family Law Marriage In this section, students should understand the requirements of a valid marriage, namely age, sex, marital status, voluntary nature, etc, and could examine Lord Penzance s definition in Hyde v Hyde. They will also need to understand the formalities of a valid marriage for a church and civil ceremony. The converse of a valid marriage is a void marriage and students will need to be able to recognise and explain the difference between a void and a voidable marriage and give examples of each. Students will also need to have an awareness of the Civil Partnership Act 2004 whereby civil partnerships between same sex couples can be registered. Divorce The law on divorce requires an understanding of the nature of the irretrievable breakdown of the marriage based on one or more of the five facts, namely adultery, Copyright 2009 AQA and its licensors. All rights reserved. 7

10 unreasonable conduct, desertion, consent after two years separation, or without consent after five years separation. Students should be able to explain each of the five facts and be able to apply them to a given scenario. They should be aware of the origin of the law from the Divorce Reform Act 1969 and the Matrimonial Causes Act 1973 (as amended). Students should understand the difference between a decree nisi and a decree absolute. Students will also require an outline understanding of maintenance for a divorced spouse where appropriate and for child support, and must be aware of the role of the courts in dealing with ancillary matters and the purpose and use of mediation under the Family Law Act Succession In this section, students will require an understanding of the elements of a valid will under the Wills Act 1837 as amended by the Wills Act 1968, namely age of testator, capacity, in writing, signed by testator with the signature attested by two valid witnesses. They will also need to understand the place of privileged wills under the Wills (Soldiers and Sailors) Act 1918 and the circumstances when these can be valid, ie on active service or at sea, and understand the difference between such an informal will, which may be oral or in writing, and formal wills. Case law examples such as Re Jones 1971 should be used. Students are also required to know the rules relating to the making of a will in contemplation of marriage and the validity of a will after a divorce, as well as the rules on revocation of a will by burning, tearing or otherwise destroying. With regard to intestacy, students will need to understand the term and the rules of intestacy under the Administration of Estates Act They may be required to make simple calculations of the distribution of an intestate s estate under these rules and also recognise the right of both family members and those treated as family members and wholly or partly financially dependent upon the deceased to make an application under the Inheritance (Provision for Family and Dependants) Act Students are also required to understand the role of personal representatives, both executors and administrators Rights and Responsibilities Introduction Here, students need to appreciate the need for rights to be balanced by responsibilities as a citizen, for example, the right to bring an action in law balanced by the responsibility not to break the law. Another example would be the right to a fair trial balanced by the responsibility of jury service and responsible citizenship. Students will acquire understanding of the balance between various rights and freedoms and the need of the law to restrict those freedoms in order to protect both society and the individual, eg freedom of expression balanced by the laws on defamation, obscenity and state security. For buyers and sellers In this section, students need an outline understanding of the rules relating to offer and acceptance in contract law with particular reference to the consumer contract. They will need to have an understanding of the term invitation to treat and the difference between this and an offer, and be able to give a case law example. 8 Copyright 2009 AQA and its licensors. All rights reserved.

11 Students will require a more in-depth understanding of the key sections of the Sale of Goods Act 1979 providing statutory rights and should be familiar with sections 13 and 14 thereof, relating to description and quality, and also with the appropriate sections of the Sale and Supply of Goods Act l982. It is expected that students will be able to recognise the appropriate section in a scenario, and case law will aid understanding. It is also essential that students understand that the provisions of the Consumer Protection Act 1987 protect the consumer who has been injured by a defective product. Students will also require knowledge of how claims may be brought under the above legislation using the small claims track in the County Court for claims under the sum of In employment The general principles of an employment contract need to be understood in outline only, but reference should be made to the duties of both an employer and employee. Students will acquire an understanding of the various types of discrimination which could occur in employment and should be able to refer to the appropriate legislation such as the Equal Pay Act 1970 (as amended), the Sex Discrimination Act 1975 (as amended), the Race Relations Act 1976 (as amended) and the Disability Discrimination Acts 1995 and They should also be aware of how redress may be sought by a wronged employee, including the role of tribunals in an employment context. Students will also need to understand the need for health and safety of employees as covered by the Health and Safety at Work legislation. Finally in this section, students will require an outline understanding of the place of vicarious liability in the employment setting (see section Tort). As a citizen Students will need an outline understanding of the impact of the Human Rights Act 1998 emanating from the European Convention on Human Rights. They will need to know the main rights embodied within the Act such as freedom of expression, the right to a fair trial, the right to marry, the right to life, etc, and to be able to give examples of the rights. Finally, students will need to understand the rights and restrictions relating to personal liability: freedom of communication and the right to a fair trial. Personal liability will relate to both criminal responsibility and civil liability in contract and tort based on the element of fault. The rights and restrictions relating to freedom of communication would cover such areas as defamation and privileged occasions, the free press and the need for state security, the right to privacy balanced with the Freedom of Information Act Students will need to understand the mechanisms in place to ensure that a defendant has the right to a fair trial such as habeas corpus, the rules of natural justice such as audi alteram partem (let the other side be heard) and nemo judex in causa sua (no-one can be a judge in his own case) to ensure a fair trial. Here also, the previous work on the jury system may be utilised. Restrictions will include reporting restrictions on cases involving young offenders. This section would also include the right to a trial within a reasonable period of time, in a language which the defendant can understand and the provision for translators if this is not possible. The Woolmington rule of a presumption of innocence until proved guilty should also be a key issue here. Copyright 2009 AQA and its licensors. All rights reserved. 9