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PAPER TITLE: PUBLIC AND CRIMINAL LAW

DATE: Thursday, 6 June 2019

PART 1

PUBLIC LAW

SOLUTION

1. What is the Sewel Convention in the UK constitution?

1. A constitutional convention stating that the UK Parliament will not normally legislate on matters within the competence of the Scottish Parliament without its consent.
2. A constitutional convention stating that the UK Parliament will not normally legislate on matters within the competence of the National Assembly for Wales without its consent.
3. A constitutional convention stating that the House of Lords will not vote to oppose the second or third reading of any government bill that was included in its election manifesto.
4. A constitutional convention stating that the Prime Minister will appear before the House of Commons to answer questions in Prime Minister’s Questions.
5. A constitutional convention stating that the Crown will give Royal Assent to any bill passed by the two houses of Parliament.

Answer - A

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2. Which of the following statements best describes devolution in the UK Constitution?

1. The sharing of power between different levels of government, in which each level has protected areas of power.
2. An administrative law mechanism that allows individuals, businesses or groups to challenge the lawfulness of decisions taken by ministers, government departments or other public bodies.
3. A supranational legal order that goes beyond obligations between states and involves the transfer of sovereignty to higher institutions that create rights and obligations for citizens, which can be accessed in their domestic courts.
4. The decentralisation and dispersal of state power.
5. The grant of power by an upper level of government to a lower one, in which the devolved government remains constitutionally subordinate to the government which gave it its power and which could in principle revoke  it.

3. In the article, what claim does Mullen use the case of Attorney General v Jonathan Cape Ltd [1976] QB 752 to support?

1. In the case, the court did not merely recognise the operation of a political convention but actually ruled on the nature and extent of the convention in question, and so the courts have used conventions to develop the law in particular areas.
2. In the case, the court ruled on the operation and scope of a convention as it was necessary to settle a disputed question of law. The Supreme Court’s decision in Miller would not allow for this.
3. In the case, the court ruled that the federal Canadian government did not need to obtain the consent of the provinces to alter their powers when requesting the patriation of the Canadian constitution, and so the consent of the devolved legislatures is not required prior to giving notice of withdrawal from the EU.
4. In the case, the court overruled an earlier decision of the High Court to find that conventions are not justiciable, and so the consent of the devolved legislatures is not required prior to giving notice of withdrawal from the EU.
5.  In the case, the court found that the government could not use its prerogative powers to give notice to leave the EU but required authority from an Act of Parliament, and so the scope of prerogative powers has been severely limited by the courts.

4. Which of the following statements best describes the conclusions Mullen reaches in terms of the incorporation of the Sewel Convention into statute law?

1. The decision in Miller that the incorporation of the Sewel Convention into the Scotland Act 1998 (by the Scotland Act 2016) has made no difference to its legal status means that it does not impose a legal constraint and is unlikely to impose a political constraint on the UK government legislating in matters devolved to the Scottish Parliament. Therefore, the courts should always rule on whether the Sewel Convention had or had not been complied with when the UK and Scottish governments were in dispute.
2. The decision in Miller that the incorporation of the Sewel Convention into the Scotland Act 1998 (by the Scotland Act 2016) has made the Convention justiciable means that the courts should always rule on whether the Sewel Convention had or had not been complied with when the UK and Scottish governments were in dispute.
3. The decision in Miller that an Act of Parliament was required to authorise the giving of notice to withdraw from the EU means that the executive cannot rely on its prerogative powers to withdraw from the EU.
4.  The lesson from the successful codification of the Sewel Convention into the Scotland Act 1998 (by the Scotland Act 2016) is that Parliament should aim to codify all conventions into statute to make them legally binding and increase legal certainty in the UK constitution.
5.  The decision in Miller that the incorporation of the Sewel Convention into the Scotland Act 1998 (by the Scotland Act 2016) has made no difference to its legal status means that it does not impose a legal constraint and is unlikely to impose a political constraint on the UK government legislating in matters devolved to the Scottish Parliament. If the Convention were treated as justiciable, however, this could involve the courts in political controversy, so in principle conventions should not be translated into statute without making them justiciable.

5. According to the Mullen Article, what did the court rule in the Miller case (R. (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2018] A.C 61) in relation to whether the consent of the devolved institutions was required to give notice to leave the EU?

1. That the UK’s relationship with the European Union (EU) was a reserved matter and there was no legal requirement to obtain the consent of the devolved legislatures before giving notice to leave the EU.
2.  That the executive could not give notice to leave the EU using its prerogative powers, but an Act of Parliament was required.
3.  That the consent of the devolved legislatures was required because withdrawal from the EU would change the competence of the devolved institutions.
4. That the consent of the devolved legislatures was required because the recognition of the Sewel Convention in statute law made it legally binding and enforceable.
5. That the courts can only recognise the operation of conventions but cannot enforce them or rule on their scope.

QUESTION 6

QUES: Explain and evaluate whether there are any legal limits on the power of the UK Parliament to legislate.

The principle of parliamentary sovereignty is a fundamental principle of the UK Constitution which states that the Parliament is a supreme legal authority, capable of making and putting an end to any law. The UK Parliament is so supreme that the court cannot generally overrule its legislations. The laws enacted by the UK Parliament are regarded as Statute Laws...

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QUESTION 7

QUES: Analyse the reasoning Mullen uses in the article about the incorporation of the Sewel Convention into statute law. In your view, should the Sewel Convention be enforced by the courts, because of its recognition in s2 Scotland Act, 2016?

PART 2

CRIMINAL LAW

8. The appellants in R v F(J) and E(N) [2015] ECWA Crim 351 were appealing against their conviction for which offence?

(a) Murder.

(b) Gross negligence manslaughter.

(c) Unlawful act manslaughter.

(d) Arson with intent to endanger life.

 (e) Arson being reckless as to whether life was endangered.

9. Which case did the appellants use to argue that their special position under the Convention on the Rights of the Child should be taken into account?

(a) R v M(J) [2012] EWCA Crim 2293

(b) Director of Public Prosecutions v Newbury (1976) 62 Cr App R 291

 (c) R v Lamb (1967) 51 Cr App R 417

(d) R v G [2003] UKHL 50

(e) R v Caldwell (1981) 73 Cr App R 13

10. Which of the following most accurately describes the defence arguments on appeal in relation to dangerousness?

(a) The objective test should be adapted to take into account the appellants’ ages and mental capacity.

 (b) The objective test should be adapted to take into account the appellants’ mental capacity. (c) The test for dangerousness should always be subjective.

(d) The jury did not consider that the appellants’ act was dangerous.

(e) The appellants’ act was not objectively dangerous because of their ages and mental capacity.

11. The Court of Appeal referred to in R v Larkin (1994) 29 Cr App R 18 as authority for which principle?

(a)  An accidental wounding causing death will be manslaughter.

 (b) A negligent act causing death can be manslaughter.

 (c) Death must result from an objectively dangerous unlawful act.

(d) Only negligence of a very high degree will amount to manslaughter.

(e) There is a clear distinction between gross negligence manslaughter and unlawful act manslaughter

12. According to the Court of Appeal, was the trial judge correct to tell the jury that the defendant had to have foreseen the possibility some persons might be in the building?

(a) No – the test for dangerousness is objective.

(b) No – the defendant only had to foresee one person might be in the building.

 (c) No – the defendant needed to be certain some persons were in the building.

 (d) No – the judge was going into too much detail.

(e) Yes, this was a correct statement of the law.

13.        Aisha and Bernice realise that they have committed an arson offence. They think they may have broken other criminal laws. Each of them wishes to be advised by you regarding whether they have committed other criminal offences.

Advise each of them as to their potential criminal liability. Include in the advice an examination of the requirements of the most likely criminal offences with which they might be charged. Then assess whether any defences may be available to Aisha and Bernice against such criminal charges.

14.       Analyse the reasons why the Court of Appeal in R v F(J) and E(N) [2015] ECWA interpreted the test for dangerousness as it did. Evaluate whether you agree with the court.

[END OF QUESTION PAPER]

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Last updated: Sep 02, 2021 10:51 AM