DOVER GRAMMAR SCHOOL FOR BOYS

Upper Sixth Form

Oxford and Cambridge Board 
2000 - 2002

Teacher in Charge
Vincent. P. P. CROFTS
B.A., Bar., Diploma LL.M. M.PhiI.
Certificate in Education. P.E. L.S.E. FSALS.
Association of LAW Teachers.
Hon.Soc. of the Middle Temple Examiner

English Legal System - 2001
Contract Law - 2002

New Curriculum 2000
OCR

LAW
September 2000

Advanced Level LAW

English Legal System Contract LAW

Vincent P.P. CROFTS

Introduction

The Advanced Level and Advanced Supplementary LAW syllabuses have been designed
to provide students which prepares them for the following:

English Legal System
- Year 1 -

The Law of Contract
- Year 2 -

Aims of the Syllabus

• to provide a grounding in the main principles of English Law I European Law and
their developments.
• to develop knowledge and understanding of the structure, personnel and functions of
the English Legal system and Contract Law.
• to develop the techniques of ordered thinking and the skills necessary to analyse and
solve problems by applying legal rules.
• to provide and encourage critical awareness of the changing nature of Law in society.
• to develop legal arguments.

LAW at Dover Grammar School for Boys

Pupils will be encouraged to visit:

(a) Magistrates’ Courts
(b) Crown Courts
(c) The High Court (London)

There will also be visits to:

The Inns of Court

Middle Temple
Inner Temple
Lincoln’s Inn
Gray’s Inn
The Law Society

Further visits will include:

House of Commons
House of Lords

Pupils will further be encouraged to go on LAW Conferences and to actively participate
in role-playing exercises.

Pupils will further be encouraged to contribute towards

The Dover Grammar School for Boys Law Magazine

The School welcomes you to the

New Upper Sixth Form in LAW

and wish you success both here and beyond in Higher Education at University.

Law provides a suitable foundation for the study of Law or related courses in higher
education. Equally LAW is also suitable for candidates intending to pursue business
careers or further studies in business studies or further studies in business studies or
social sciences or as part of a course of general education.

In addition to the Aims of the Syllabus pupils will also gain an understanding of the
moral and ethical issues in society through consideration of legal principles, rules and
sanctions and how these are affected by changing morality and values in society.

The Syllabus supports the European dimension in education and the Resolutions of the
Council for Ministers by requiring pupils to have a knowledge and understanding of the
Institutions of and law-making processes of the European Union and of the impact of
European Law on the English Legal System.

Key Skills

Specifications in outlined required

• select and read material
• identify accurately and compare the lines of reasoning
• synthesise the key information

Key Skills

A. Communication - contribute to a group discussion about a complex matter;
make a presentation and read and synthesise information from a given text.
B. Information Technology
C. Working with Others
D. Problem Solving
E. Improving own learning and performances.

(Personal observation of the administration of the law, as by visits to courts and to
solicitors’ offices, will be of assistance in preparation for unit 2568)

(Personal observation of the administration of the law, as by visits to courts and to solicitors’ offices, will be of assistance in preparation for unit 2569)

Module 2576 Law of Contract Special Study (A2)

These modules are each based on a special study booklet sent out to centres for the following June examination which provide a starting point for study of the topics set. Each booklet contains source material, such as extracts from judgements or Acts of Parliament or academic articles on the specific area Law of Contract (Unit 2576). In this way the source material will indicate the area(s) of substantive law which will be tested. Candidates are expected to demonstrate understanding of the area(s) of law and to use legal methods and reasoning to analyse legal material, to select appropriate legal rules and apply these in order to draw conclusions.

In addition, there is source material on topics contained in the specifications for the Advanced Subsidiary Units. This material thus indicates the legal structures and/or legal processes and/or legal issues which candidates will be expected to draw together and make connections between these and the substantive law.

The following list is not intended to be comprehensive, definitive or mandatory but is
designed to provide some general guidance on material considered to be useful.

In addition to the above handouts CD-Rom - Disc and course materials will be supplied
to students by way of handouts, articles and videos on select topics like the Jury system.

The Dover Grammar School for Boys hopes that students will enjoy studying Law either
at A/S Level or ‘A’ Level for the Oxford and Cambridge Board.

Previous students have pursued their studies in reading for a Law degree and Master’s
Degree at University and some students have entered the Bar and the Law Society to
pursue their legal careers and the School hopes that this trend will continue here.

We therefore welcome you to the School and wish you success in your future studies
both here and beyond in Higher Education at University.

ADVANCED LEVEL LAW
ENGLISH LEGAL SYSTEM UPDATE

Vincent P.P. Crofts
Lecturer in Law
BA., Diploma., Bar., LL.M.. M.Phil
London School of Economics and Political Science
Association of Law Teachers: Middle Temple: IALS

Website Reminder (Please note, each of these links will open a new window. Don't forget to close each window after viewing as this will use up valuable memory from your machine).

Access to Justice Act 1999

I won’t goon about this much more, as I gave you in depth coverage of the Bill in last year’s handout. The LCD website keeps us up to date with developments in the new Community Legal Service regional pioneer partnerships (6 described on website). Remember the idea is to assess local need and co-ordinate all the different funders into meeting that need most appropriately. 2 Garden Court has become the first barristers chambers to win a contract from the Legal Aid Board to provide advice and representation. Lord Irvine asked the LAB to report on measures to ensure appropriate access to legal services, after the Act and to devise equal opportunity monitoring of recipients of legal services and contracted providers.

• In September the LAB announced the Quality Mark for the Community Legal Service
• In October, the Lord Chancellor announced the appointment of 12 champions of the Community Legal Service, ranging from Jenni Murray (Woman ‘s Hour) and Esther Rantzen to Lincoln Crawford QC.
• The Community Legal Service and Legal Services Commission came into existence on I April, along with a Community Legal Service badge.
• The Criminal Defence Service will be created in October.
• ACLEC was replaced by the Legal Services Consultative Panel on 1 January.

In February, Lord Irvine directed the Commission to prioritize child protection cases and cases involving loss of liberty. After that, the Commission should prioritize domestic violence, wrong doing and breaches of human right by public bodies and social welfare cases, such as employment rights.
In February, the Law Society failed to get the High Court to declare the new contracting scheme for civil legal aid unlawfU. In the 1999 Hamlyn lectures, Michael Zander accused the Lord Chancellor of rationing. The Law Society claims in Surveying Legal Aid Firms, of over 500 private practice firms (1999), a third of legal aid firms will stop providing work. Most working in employment, immigration welfare and housing have decided against getting a franchise.

The Civil Justice Council, in October, criticized the plan for a Community Legal Service as ill thought through and containing a bias towards litigation.

Patent agents have been granted higher court right of audience.

LAB produced a consultation paper on expensive criminal cases. 40% of the criminal legal aid budget goes on the mostexpensive 1% of cases!

In March, the Law Society published a blueprint to allow many more solicitors to appear in the High Court and in jury trial (Society website). Remember the Lord Chancellor expressed, in strong terms, his disappointment that there were so few solicitor advocates.

From this month, winners on conditional fees will be able to recover their success fees and insurance premiums from the loser.

Attorney General
Since 1999, is Lord Williams of Mostyn. We’ve never had a Lord AG before so I phoned to ask how they cope. Commons questions are answered by the Solicitor General, Ross Cranston. News on Hayes v AG: in June, Josephine Hayes withdrew her industrial tribunal action in discrimination against the AG in exchange for his promise to stop using secret soundings when selecting Treasury Counsel in future. He made a donation of~5,000 to the Fawcett Society.

DPP
DPP’s decision to consent to prosecution is not judicially reviewable, without dishonesty or exceptional. circumstances: R v DPP, cx parte Kebilene (The Times, 2 November).

CPS
In January, the CPS were given 3 months to tackle racism after complaints of bias were upheld.

Magistrates
The Greater London Magistrates’ Courts Committee replaces the present 22 committees in April 2001. Arguments pro and con lay justices at The Times 9 November, law section and 23 November, law section. Research commissioned by the Government into the lay and stipendiary magistracy is ongoing, as is research on alternative models for ensuring justices come from a wide range of backgrounds, as most respondents to the consultation on political balance did not favour its replacement with a geo-demographic system. The Lord Chancellor increased the maximum number of provincial stipe posts to 56. The LCD issued a press release in November to reiterate their commitment to a lay magistracy. Apart from new Justices’ Clerks Rules 1999 a paper entitled “The Future Role of the Justices’ Clerk - A Strategic Steer” was published in January (LCD website). It tells us nothing new. The core job description of the JC includes:
• Direct accountability to the justices’ chief executive for the quality of legal services
• Principal legal adviser to the magistrates (including managing and training court clerks and advising the MCC when magistrates need training).
• Legal forum duties e.g. developing consistent legal advice locally.
• Exercising and delegating the power of a single justice and statutory functions.
• Bench support.
• Ensuring standards set by MCC are met.
The paper seeks views on whether there should be a new Practice Direction on the role of the clerk in court, re-emphasizing that advice should be given in open court, in view of the requirements of the Human Rights Act.

Judges
The JSB website tells you everything you wanted to know about judicial training. The new
chairman is Lord Justice Waller.

The rule against bias: In In Re Pinochet Ugarte (The Times, 18 January, the House of Lords extended the rule that a judge was automatically disqualified from a hearing in which he had a pecuniary interest to cases where the judge was involved personally, or as a director of a company, in promoting some cause. In Locabail v Bayfield Properties [2000] All E.R. 65, a civil Court of Appeal, consisting of the vliR, the LCJ and the VC laid down details of the modem rule against bias:

1. Where it is alleged that there is a real danger or possibility of bias on the part of a judicial decision-maker, the danger will be eliminated if it is shown that the judge was unaware of the matter relied upon as appearing to undermine his impartiality. A reviewing court may receive a letter from a judge, magistrate or juror specifying what he knew but must not cross-examine.
2. When members of the Bar are appointed to sit judicially, fulltime or part-time, they may ordinarily be expected to know of any past or continuing personal or professional association which may impair or be thought to impair their judicial impartiality. A solicitor is different because he is legally responsible for his partners, even though he knows nothing of their affairs so he should conduct a careful conflict search within his firm, especially before embarking on a civil trial, when sitting in a part-time capacity. The rules must not be applied in a manner which inhibits solicitors performing judicial functions.
3. A judge must recuse himself from a case before any objection is made if the circumstances give rise to automatic disqualification ~r he feels personally embarrassed in hearing a case. In any other case, if the judge becomes aware of any matter which can be said to give rise to a real danger of bias, he must disclose it in advance of trial.
4. In considering whether there is a real danger of bias, everything depends on the facts and the nature of the issue but a judge’s religion, ethnic or national origin, gender, age, class, means or sexual orientation cannot form a sound basis of an objection. Nor, ordinarily, can his, social, education, service or employment background, or that of his family, his previous political associations, membership of social, sporting or charitable bodies, Masonic associations, previous judicial decisions, etc.
5. In contrast, there may be a real danger of bias if there is personal friendship or animosity between the judge and any member of the public involved in the case, particularly if that person’s credibility may be significant in the outcome of the case.
6. Where, following appropriate disclosure by the judge, a party raises no objection to the judge hearing or continuing to hear a case, that party cannot subsequently complain.

In July, before the Law Society boycotted the system of secret soundings, in October, the Lord Chancellor asked Sir Leonard Peach to review the judicial appointments process. Lord Irvine revealed potential judges are continuously assessed by lawyers and judges for such qualities as humanity, courtesy and understanding of society. His overall assessment of the current system of appointments is favourable. His terms of reference precluded his reviewing by whom appointments are made. He recommended the creation of a Judicial Appointments Commission, purely to investigate grievances and complaints and to audit appointment processes and policies and recommend changes to the Lord Chancellor. Its membership would closely resemble other country’s commissions. For applicants of whom little is known, he recommended they nominate 3-6 consultees. The report recommended that advocacy no longer be an essential element in the selection proces and Lord Irvine has accepted that. It proposes alternative methods of assessing suitability, such as one-day assessment centres and psychometric testing. He thinks more judges should be promoted from the lower ranks. (See report on LCD website and critique by Malleson at [2000] N.L.J. 8. The Law Society still calls the system an old boy network and demands an end to secret soundings.

The First Judicial Appointments Annual Report appears on the website. Among new High Court judges are Heather Hallett and Anne Rafferty. This makes 9 women in the High Court, including Lady justice Butler-Sloss, President of the Familiy Division. Of all judicial appoinments, April 98 to March 1999, 23.5% were women and 5.4% ethnic minority. The LC increased the statutory ceiling of High Court judges to 106 because of the Human Rights Act.

Judges are cross about a Court Service consultation document, Transforming the Crown Court, which suggest they should have a working day of 9-5 and some High Court judges should sit permanently on circuit. The first All-UK judges’ conference was held in April 1999. A Justice Report recommended that judges should not continue to sit in the House of Lords (see Human Rights Act below).

Lawyers
Rebecca Edmonds, pupil. barrister, lost her case in the court of Appeal, to establish the national minimum wage applies to pupils Edmonds v. Lawson and Others ,The Times 16 March 2000. Her pupillage contract is not one of apprenticeship.

The Office for the Supervision of Solicitors is still in a mess. In June, the Legal Services Ombudsman said it was spiralling out of control. An Ernst and Young report said they’ could clear the 17,000 complaint backlog by December 2000 if they throw a lot of money at the problem. The Ombudsman congratulated the Bar on the speed of complaints handling and found 92% of cases referred to her were satisfactorily handled. A Law Society survey, published in September, showed that women, mothers and people from ethnic minority groups continue to face difficulties when entering the law.

The Collyear Report (June) recommended strengthening training for the Bar with more continuing professional development. The Lord Chancellor will amend the Criminal Legal Aid Regulations to restrict the use of silk and more than one advocate, in the Crown Court (not before time! Go and watch the Crown Court for yourself). He is also concerned about the disparity in fees paid to prosecution and defence. He thinks defence lawyers are overpaid compared with other professions.

The Bar has developed BarMark, a kitemarking system based on best practice. BarDirect opens up direct access to the Bar by Trade Unions, insurers, banks and non-profit agencies. The Lord Chancellor warned the October Bar conference that the Bar must drop their conviction for “gladiatorial conflict in open court”, in favour of helping clients settle earlier. He praised the Bar for helping build the Community Legal Service in 2 of the pioneer areas, Southwark and Ealing. The Bar has succumbed to conditional fees and published extensive guidance. For the second year running, in 1999, the highest ever number of ethnic minority Q.C.s was appointed - five.

The Privy Council
There is growing dissatisfaction among Carribbean countries at the liberal performance of the judicial committee of the Privy Council in death penalty appeals. As each country’s constitution allows it to abolish the jurisdiction of the PC over them, this may happen. Notice the Privy Council has gained jurisdiction in devolution matters: The Scotland Act 1998, The Government of Wales Act 1998 and The Northern Ireland Act 1998. This may include questions of compatibility with the ECHR.

Civil Procedure
An idiot’s guide is The Court User's Guide to the Civil Justice Reforms.
There was a 35% fall-off in civil cases in April-October 1999, possibly because tighter timetables and the availability of A.DR encouraged people to settle. In January, the court service published a consultation paper on fees, saying a predicted shortfall of £1 8m in 2000-2001 necessitated an increase. The Woolf philosophy has permeated family proceedings in relation to case management, experts and cost.

An expert who would not comply with the Woolf philosophy, would not comply with court orders, co-operate with other experts or say he understood his overriding duty to the court was debarred by the trial judge from giving evidence. The CA., led by Lord Woolf, unsurprisingly declined to overrule the trial judge (Stevens v. Gullis, The Times, 6 October).

An excellent evaluation of Woolf by the Senior Master of the High Court, Robert Turner, appears at [2000] N.L.J. 49. He says the new rules have not cured cost, delay and complexity, in these respects:

• New system front-loaded and costly
• Procedures with pre-action protocols, allocation and listing questionnaires, case management and summary assessment of casts are more complex and
• County courts are finding implementation difficult so delays occur but benefits include:
• Settlements achieved earlier
• Procedures define the real issues between the parties
• Solicitors will find a quicker rate of disposal.
• The overriding objective has changed the culture. Lawyers co-operate and have stopped their adversarial attitude.
• At case management conferences, the case summaries and pre-reading of the papers allows really creative directions to be given.
• Lawyers used to think the idea of a single expert was laughable but they now “feature as a normal vehicle for presenting technical advice to the court”.

He thinks the time is now ripe for a single civil court.

In September, the LCD published a consultation paper proposing new unified rules for civil appeals.

Criminal Procedure and Courts
On 1 April 1999, the new disclosure regime, under the Criminal Procedure and  investigations Act 1996, came into force. The scheme has been criticised by the CPS Inspectorate (see Panorama, March 6) for disclosing too little prosecution material. The CPS blame the police. After one appalling collapse of a £14m police corruption and cannabis dealing trial in February. where the judge handed down a 42 page ruling blaming the police and CPS, the AG published draft guidelines on disclosure, on his website. See Human Rights, below. The Narey reforms (fast-tracking cases through the magistrates’ courts, are being implemented nationwide), since November. The 6 pilots showed they reduced time between between charge and disposal from 85 days to 30 for adults and 89 to 38 for youths. (Ernst and Young Report on Home Office website.) They found that some pilot courts abandoned single justice court or single clerk courts but E & R commented that this may have been because they did not use their frill new range of powers, under s. 49 of the Crime & Disorder Act. The Justices’ Clerks’ Rules authorise justices’ clerks and court clerks authorised by the J.C. to exercise powers of a single justice for these case management courts. They also replace the Justices’ Clerks Rules 1970.

In January, Lord Justice Auld began a year long review of the criminal courts. See website, above. The criminal justice system also has a website. Like me, Lord Bingham wants to see the option of bench trial. The Court Service has published a consultation document, Transforming the Crown Court. It is disapproved of, as driven by the civil service, by Lord Justice Rose, who chairs the Criminal Justice Consultative Council. The new Sentencing Advisory Panel gave its first advice to the Court of Appeal in March. The Criminal Justice Business Quarterly reports, on the CJS website, make fascinating (and brief) reading.

Youth Justice
The new Youth Justice Board has its own website. The Board’s objectives are:
• Preventing youth offending by “early intervention”
• Overseeing reforms to the new juvenile secure estate
• Confronting young people with the consequences of their offending
• Encouraging reparation to victims
• Reinforcing responsibilities of parents
• Ensuring appropriate punishment

This month the new Youth Offending Teams bring together police, probation, health and social and educational services. The first youth justice plans were published in December. The board will produce national standards for the teams and train youth offending managers. By this month, 5O0/a of cases are meant to meet the target of 71 days from arrest to sentence for persistent young offenders. The best now is North Wales, 69 days. Worst is Surrey, 147 days. The average in 1996 was 142 days. The Youth Justice and Criminal Evidence Act 1999, s.6 states that, when one or more referral orders have been made by the court, it is the duty of the YOT to establish a youth offender panel, which will

A new Practice Direction was issued in February (see LCD website), on the conduct of trials, following the European Court of Human Rights’ decisions in Tv UK and Vv UK (1999). The Direction says the proceedings should take account of the age, maturity and development (intellectual and emotional) of the young defendant on trial”, e.g. removal of wigs and gowns, restructuring courtroom and limiting public access. Young defendants should sit near their families and lawyers.

Criminal Appeals
Where a trial judge wrongly rejected a submission of "no case to answer" at the end of the prosecution case, the Court of Appeal should judge the case at this point, as producing an unsafe conviction, regardless of the fact that D. admitted guilt on cross-examination later. The AG thinks the prosecution should be able to appeal against an unfair acquittal, e.g. where a judge directs a jury to acquit on grounds of abuse of process or rules against admissibility of evidence.

The Right to Elect Trial By Jury
As I’m sure you know, the Lords kicked out the Criminal Justice (Mode of Trial) Bill in January. Remember, the Government’s reasons for withdrawing the right to elect are set out in their consultation paper on mode of trial on the Home Office website and see press release 155/99, quoting Jack Straw, from the Home Office or Central Office of Information website. Useful reading, because it explains the background to the procedure. It was introduced as a money saving measure in 1855, giving magistrates a power to try offences previously triable only on indictment, where the defendant consented. Research for the Bar Council by Collette Chesters shows average waiting time for trial in Crown Court is five weeks but nine in the mags! By far the most intelligent discussions are D. Wolchover and A. Heaton-Armstrong, “The Right to Jury Trial” iVe~.v Law Journal, Feb. 11, at p. 158 and Peter Duff, “The Defendant’s Right to Trial By Jury: A Neighbour’s View” [2000] Crim.L.R. and M.Zander, “Why Jack Straw’s jury reform has lost the plot” New Law Journal march 10 2000, which discusses the Criminal Justice (Mode of Trial) No. 2 Bill. The difference between the defeated Bill and the New Bill is that the latter does not give the defendant a right of appeal against the magistrates’ mode of trial decision and does not permit the magistrates to take into account defendant’s potential loss of reputation. The Magistrates’ Association and the LCJ had been unhappy about that element of the previous Bill.

The Criminal Cases Review Commission
Between March 1997-April 1999, they received over 2,400 applications, 7% of which elated to summary cases. Difficulties are caused by the fact that magistrates’ courts are not courts of record.

The Human Rights Act 1998
Many predict chaos when this comes into force in October. For a start, it is argued that we fall short of the fair trial requirements of Article 6 in several ways. Think about jury trial. The article requires a reasoned decision and an automatic right of appeal!! On the right of silence, ss 34-3 7 Criminal Justice and Public Order Act 1994 may offend because, when the identical Northern Irish provisions were challenged, in the ECHR, they were only spared because the NI legislation contained a number of safeguards, which English law lacks, such as a reasoned decision by the judge. Article 6 may also require advance disclosure in magistrates’ court cases. The ECHR has already ruled, in Saunders v UK (1997) that compulsory question by DTI inspectors breached Art. 6 and we have not yet changed the law accordingly. We did amend the 1994 CYPO Act on bail in the 1996 CPI Act, in line with Article 5, to lift the ban on bail for convicted murderers and rapists. The Convention decides what proceedings are criminal so it matters not that our Court of Appeal has decided that enforcement proceedings for the non-payment of fines and community charge are not criminal. (See Ben Emmerson’s articles in the New’ Law Journal (January and Feb). On disclosure, the Court spelled out just what is required to meet Article 6 in Rowe and Dcn’ies, The Times, 1 March. The prosecution must disclose to the defence all material in their possession, both for and against D. Any attempt by the prosecution to assess the importance is unacceptable.

Because of the Act, the Government seem keen to promote open justice, in several contexts. The Bar is spending £600,000 this year in training for the Human Rights Act.

McConnell v. United Kingdom (ECHR The Times February 22 2000) decided that the Deputy Bailiff of Guernsey’s position in the legislature cast doubt over his judicial independence, under Article 6 of the Convention — this has interesting implications for our own H.L.!

Also re. Article 6: the Scottish High Court of Justiciary decided the Lord Advocate had breached the Convention by bringing prosecutions in the criminal courts before temporary sherrifs who held office in the gift of the Lord Advocate, an party interested in the outcome of a criminal case.

The ECHR has a backlog of over 12,000 cases.

Mediation
The Government will not implement Part II of the Family Law Act, after pilots since 1997 revealed that only 7 per cent of those attending “information meetings” prior to divorce had been diverted into mediation. In February, the Law Society launched a consultation on a protocol to encourages defamation parties to consider arbitration and mediation.

Tribunals
Legal aid available at Immigration Appeal Tribunal since January. Expert Determination
Even quicker than arbitration. The expert doesn’t have to give reasons for his decision. His decision can only be challenged for “manifest error”.

Public Opinion
Hazel Genn’ s survey, What People Do and Think A bout Going to Law, 1999, shows most people think of courts as criminal, think lawyers too expensive and judges are old and out of touch. Only 53% were confident of a fair hearing.

EC Law
I know you have a separate lecture but I just want to point Out Factortame 5 (HL) is  reported in The Times, November 3 1999, at p.31.

Statutory Interpretation
It is permissible to read words into a statute where the draftsmen had not use language apt to achieve the intention of the legislature: Inco v. First Choice March 10 2000. See also Ashworth Holdings v. Ballard: court defines limit of statutory right by reference to purpose.

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