Monday, 30 April 2012

Z is for Zealous Witness

I realise I already covered witnesses, but my other options for this letter were 'Zebra Crossings', 'Zombi' or 'Zone'. 3 things which there was not particularly much to write about, and I don't even think 'Zombi' relates to law in any way unless it is an offence (written in statute or decided through common law) to 'mechanically drive a human corpse' (that is apparently its definition according to the website I'm using).

'Zealous Witness' is defined as a witness who demonstrates disproportionate enthusiasm while testifying.
They are quite rare as witnesses are usually well-advised by the lawyer counselling them to resort to no theatrics.

So its basically a witness who is overly confident about the party who he is testifying for, and believes that party will succeed with their claim.

It was put forward that the best way to deal with such a witness, when questioning one is to act indifferent in order to lessen the enthusiasm shown by the witness.

Well I shall have to finish here, as it turns out there's not much to write about a zealous witness either! Well I have certainly enjoyed the challenge and I'm glad to have got to the end of it successfully :) On my agenda for may will be to revise so apologies if my blog seems quite empty!

Saturday, 28 April 2012

Y is for Year-and-a-day Rule

This phrase is associated with murder within criminal law.

This phrase was used in the common law and was a rule precluding prosecution for murder where the victim had died a year and a day, or later, after the infliction of the ultimately fatal wounds. This rule has now been abolished due to the advancement in medicine, such as life support technology which can extend the interval between the murderous act and subsequent death. It was abolished in 1996 by the Law Reform (Year and a day Rule) Act.

Friday, 27 April 2012

X is for Xenophobia

This doesn't really have much significance for law, but come on, X was a very VERY difficult letter where no words actually fit. So.

Xenophobia is a fear or hatred towards foreigners, foreign countries, or anything foreign.
The significance this has with law is based on the European Union.

Xenophobia appeared in Article 67 of the TFEU and states that "The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia". As a result of this aim, a regulation (which is directly applicable in all member states, meaning that it does not need to be transposed into law and cannot be disguised as anything else) was created to deal with this.

The regulation establishes a European Monitoring Centre on Racism and Xenophobia with a view to providing  the community and its Member States with objective, reliable and comparable data at European level on Racism, xenophobia and anti-Semitism in order to help them when they took measures or formulated courses of action within their sphere of competence.

Thursday, 26 April 2012

W is for Witness

Coming up to the truly difficult letters now, and I'll just point out the obvious with this one, since we all know what a witness is.

Witness is defined as: one who testifies or is legally qualified to testify in a case or to give evidence before a judicial tribunal or similar inquiry.

A witness is often somebody who witnessed the event - commonly a crime or an accident. This is specifically known as a percipient witness, or an eyewitness. They can give an oral or written statement.

When giving a witness statement to the police, they will keep your details private to protect you.
It is against the law to intimidate a witness.

The protection of witnesses is crucial in society, without it people who witnessed crimes or accidents would not report what they saw because they are afraid of being targeted. The protection of witnesses means that people will be more likely to help the police with their investigations, which in turn will assist the police to successfully convict people and distribute justice to those who commit wrongful acts. It may have a more positive effect on the community - making people feel safer, reducing crime rate and thus benefiting the area people live in.

From the top of my head, that's all I can think on that topic. :)

Wednesday, 25 April 2012

V is for Vandalism

Got my stuff from the direct gov website again. I think vandalism would more likely come under Criminal Damage in my text books, so I may have sort of cheated a tad here, but alas, there was a lack of V's to choose from! Actually, since looking at statistics I have noticed that Vandalism and Criminal Damage are considered separate - I shall have to look into that!

So, we all know what vandalism is. It can take many forms; graffiti, smashing windows, dumping rubbish, starting fires, and doing general damage to things like buildings, or cars. It is deliberate, and usually done for no good reason. It can sometimes cost millions of pounds to repair, and as such it damages people's quality of life.

It is the kind of crime which makes you feel unsafe, even if you might be in a very safe area. The tax payers are usually the people who have to pay for the remedying of vandalism - through higher taxes and insurance premiums.

Normally, if you witness vandalism occurring, you should report it to the police. If you've noticed something has been damaged, call the council.

Tuesday, 24 April 2012

U is for Undue Influence

Undue Influence occurs where a contract was entered into as a result of being put under pressure. The party who was subject to the pressure may have a cause of action in equity to have the contract set aside on the grounds of Undue Influence (UI). UI occurs where there is a relationship between the party who has been exploited, and the party who gains the benefit. Where a contract has been found to be entered into as a result of UI, the contract may be rendered void.

Many cases in this area are concerned with husbands who seek a bank loan for one reason or another (more often than not its because they claim their business needs it, and subsequently goes bankrupt after the loan was taken), and as security they ask their wives to sign over their interest to the mortgagee (bank) as security for the loan. Therefore, when things go wrong, the mortgagee (bank) can claim the house.

Undue Influence is an equitable concept, and was developed to protect those who had entered into a transaction because of the inappropriate use of influence by a person whom they trusted.

The leading authority is Royal Bank of Scotland v Etridge [2002]. In this case, following a flood of claims in the late 20th century, the House of Lords gave a clear statement of steps that a third party (the mortgagee/bank), should take in order to protect itself from being affected by claims of UI.

This approach was taken as its quite obvious that when a wife signs over her interest in her house for her husbands sake, there is no benefit in it for her. The husband and the mortgagee are aware of this, and thus the bank/mortgagee should be the ones to ensure the wife does not enter into the contract without knowing its implications, and by doing so, will protect itself if it seems that there is a risk of UI.

Some of the steps include:
  • Mortgagee/bank should ensure the person who may have been influenced (in my example, the wife), is given the chance of having independent legal advice about the transaction and that he/she has had the implications explained before deciding to proceed.
    • The bank should ensure the legal advice is independent from the person who benefits from the transaction (the husband in this case) - e.g. a separate firm of solicitors should be the ones to explain it.
There are many more steps, and this is UI only briefly, and this is mainly with regards to mortgages in Land Law. UI can cover many more situations not mentioned here. (Judith-Anne MacKenzie and Mary Phillips, Textbook on Land Law, 13th edition, 2010, Oxford University Press.)

T is for Trust

Now, basically, the term is actually well suited to the concept I'll be writing about. I mean 'Trust' in terms of Land law of course.

Briefly, a trust arises when a property is held by a person 'upon trust' for another person. (It can be held by more than 1 person, and can be held for more than 1 person). E.g. A may hold property on trust for B. A will be the 'trustee', and B the 'beneficiary'. The beneficiary is the person who is entitled to the benefits of the trust, so e.g. if it is a house, B may eventually use the house, or sell the house, whereas A will be considered a bare owner and must not use the estate for his/her own benefit.

Under trusts, there are essentially two owners because of this. Historically, trusts were not recognised by common law, and if the trustee did use the property/estate for his/her own benefit, there would not be much you could do about it. Equity eventually protected the beneficiary, who has a right enforceable only in equity (not at law).

I suppose looking at it from a normal persons perspective, it lives up to its name in that if somebody uses a belonging of yours when they've been expressly told not to, or you have not permitted it, they've breached your trust, and vice versa.

(This is trusts VERY briefly, and I tried to make it more understandable to people who don't study law. I've literally taken all of this out of my law book, with the exception of the last paragraph above this one, and I've changed the examples demonstrating it ever so slightly, so here's the reference: Judith-Anne MacKenzie and Mary Phillips, Textbook on Land Law, 13th edition, 2010, Oxford University Press.)

Saturday, 21 April 2012

S is for Small claims track!

In the UK, we have three tracks available to deal with cases. These are:

  • Small claims track
  • Fast track
  • Multi track
The small claims track is for claims which do not exceed £5000. This type is more informal, and you can represent yourself as paying for legal advice/representation is not always covered even if you win the case. When deciding where to allocate the claim, the judge will consider:
  1. that the amount in dispute does not exceed £5000
  2. the case does not involve a lot of witnesses or difficult points of law 
You can still use the small claims court if it exceeds £5000, however both parties must agree and the court must be asked to allow it. 

Fast track claims are for claims over £5000, and up to £15,000. This is usually used where the value in question is high, but the legal points are not complicated. Representation is usually advised in these proceedings, and it is more formal than small claims.

Multi-track claims are for claims exceeding £15,000. This track is for the more complicated cases and will likely take the longest to resolve.

Friday, 20 April 2012

R is for Rule of Law

The Rule of Law, in its most basic form, is the principle that no one is above the law. It is a significant aspect of the British Constitution.

A.V. Dicey was a writer in the late 1800's and he emphasised how important the Rule of Law is, and summarised it under three heads:

  1. No man could be punished or lawfully interfered with by the authorities except for breaches of law. 
  2. No man is above the law, and everyone, regardless of rank, is subject to the ordinary laws of the land.
  3. The rights and freedoms of citizens are best protected under the common law.
The first and second heads insinuate that government should have restraints; they should not have discretionary powers and there should be legal controls over the governments activities. Thus no-one, not even government officials, are above the law. By controlling or restricting what the government can do, it is protecting citizens from a government who may use arbitrary power to gain what they want, rather than what is good for the country. 

The third head is less relevant in today's society, what with the passing of the Human Rights Act 1998 which provides for individual human rights such as the right to a fair trial (Article 6), freedom from torture (Article 3) etc.  Dicey's view came from his faith in the judiciary; before we had the HRA 1998 or any obligations under EU law to protect individual rights, it was our common law and case law which established and protected our human rights, e.g. presumption of innocence. 

Thursday, 19 April 2012

Q is for quid pro quo!

I am afraid there was barely anything to write about here, so again I've resorted to using a latin phrase.

Quid pro quo is associated with contract law, and is a latin phrase meaning 'this for that'. It refers to something that is given in exchange for something else. A contract is enforceable in court, and regulates literally everything in our society, from buying tickets to paying for a service (e.g. roof repairs, where you will give consideration in the form of money to someone who will provide a service to you, that being fixing your roof).

Quid pro quo is basically the same/similar to 'consideration' - one element needed when establishing whether you have an enforceable contract. This basically means that you exchange something of value (money), for something else of value (a service such as roof repairs).

So another example would be, Adam (A) goes to the shop to purchase a product, and Boots (B) sells him the product. A will provide something of value (money) for something else of value from B (the product).

Wednesday, 18 April 2012

P is for Parliamentary Sovereignty

I couldn't think of a decent enough P, then by thinking about my first year and Constitutional law, I managed to think of this topic.

Parliamentary Sovereignty is a principle of the UK constitution. It basically means that our parliament is the supreme legal authority in the UK, and can create or end any law. Our courts cannot overrule its legislation or declare it invalid, and as such the UK parliament is not subject to any legal limitation.

A.V. Dicey's view of Parliamentary Sovereignty consisted of four factors:

  • Parliament is competent to pass any law on any subject
  • Parliament's laws can regulate the activities of anyone, anywhere;
  • Parliament cannot bind its successors as to the content, manner, and form of subsequent legislation,
  • Laws passed by parliament cannot be challenged by the courts.
However, parliament has been believed to have limited its sovereignty, and the examples are:

  1. The European Communities Act 1972 - this was the act which the UK passed to enter into the European Union, and as a result directly applicable EU law applies in the UK and takes precedence over national law. 
  2. The Human Rights Act 1998 - gives the judiciary the power 'declaration of incompatibility - if a UK law is passed which is incompatible with the HRA 1998, a declaration of incompatibility can be issued, meaning the law passed will need to be amended to comply with the HRA. (This is an example of binding future parliaments)
In theory, all Acts (such as the above) which bind out future parliaments are repealable, and as such parliamentary sovereignty is deemed to remain intact. 

Tuesday, 17 April 2012

O is for Obiter Dictum

O was rather difficult to find a word for, so this post will be short and sweet as there isn't much to be said about the topic!

Obiter dictum, also known as Obiter dicta, is a Latin phrase literally meaning 'statement in passing' or 'said in passing'. It is a remark or observation made by a judge that, despite being included in the body of the court's opinion, is not binding and is not essential to the decision.

Under the doctrine of stare decisis, statements which constitute obiter dicta are not binding, however in some jurisdictions such as England and Wales, they can be strongly persuasive.

When looking through cases and judges reasoning, it is often helpful to be able to identify what statements are obiter dicta, and what statements are 'Ratio decidendi'. This means 'the reason' or 'the rationale for the decision', and basically is the principle which the case establishes. The ratio decidendi is the part of the decision which is binding on the lower courts.

Monday, 16 April 2012

N is for Negligence

Negligence is an area of Tort law. There are many different types of negligence, including medical negligence, economic loss, psychiatric illness etc. It is generally a failure to exercise the level of care which a reasonable person might exercise in the same/similar circumstances. This area is concerned with harm caused by carelessness, not intentional harm.

Before 1932 there was no Duty of Care in negligence. The case of Donoghue v Stevenson (a friend of a purchaser who had been bought a drink found a decomposed snail in her ginger beer, and sued Stevenson).

To prove a negligence claim, it must be proved that:

  • There was a duty of care
  • The duty was breached
  • The defendant's (B's) conduct caused the harm suffered (Causation)
The more recent case, Caparo v Dickman introduced a 3 part test to establish whether a Duty of care existed.
Harm must be:
  1. Reasonably foreseeable
  2. a relationship of proximity between the plaintiff and defendant
  3. It must be fair, just and reasonable to impose liability.
To prove whether a breach of duty existed, the standard of the 'reasonable person' is used - this is objective and is just an ordinary person.

Interesting part below

Skilled defendants have a different standard. Therefore someone claiming to be a specialist/professional is that of a 'reasonable professional' - e.g. a doctor or car mechanic. Here is the horrible part - if you are a junior doctor, and have just started training, you are still held to this professional standard. No allowance is given for a lack of experience. (Wilsher v Essex Area Health Authority is the case establishing the standard in relation to doctors.)

The case of Nettleship v weston requires a novice driver to show the same standard of care as a reasonably confident driver. So, if you're a learner on your first few lessons or even possibly your first lesson and you cause a crash, you could be sued for failing to meet the required standard of a 'reasonable person', which I think is a bit harsh (but alas, it is the law!).

Back to the boring bits
There are other requirements that can be looked at, but i'm just going through this briefly and as such shall proceed onto causation.

To establish causation, first you test for factual causation, known as the 'but for' test.
But for D's conduct, would A have suffered the consequences? (in short).
It must not be too remote (unforeseeable).
Without my text book I cant go into too much detail (for fear of being wrong) so I shall leave it there :) Hope its not been too boring!

Saturday, 14 April 2012

M is for Magna Carta 1215

The picture may not be clear, and you won't be able to read it (unless you have uber eyesight and can understand Latin), however this is an example of England's Magna Carta. There are only four originals left, and one happens to be in Lincoln Castle (where I have bought this nice fake one and took a picture of it from my wall).

Most of the following info will be taken from my Constitutional law book: (Hilaire Barnett, Constitutional and Administrative Law (8th edn, Routledge 2011)

The Magna Carta of 1215 represented a formal settlement between the Crown and the Barons. It is considered an important part of the UK's unwritten constitution. Although it is not particularly significant legally today, it symbolised the limitation of monarchical power and the protection of liberties.

The most relevant part more connected to today's legal system is clause 39, where the king promised "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

It must be noted that as the document was created by the barons, for the barons, to protect their rights and property, they did not have the rights or well-being of the commoners in mind.

Hope this was mildly interesting! Wrote it before bed, and I'm a tad tired, so hope its all up to scratch :)

Friday, 13 April 2012

L is for Legal Aid

Legal aid is aid provided by an organisation established to serve the legal needs of the poor. It is a scheme which helps people pay for legal aid. However, there are certain conditions which must be met to be eligible for legal aid. These include:
  • the type of problem you have
  • your financial circumstances
  • how much help you need
Legal aid doesn't always cover the cost of your case, and sometimes you may have to pay back the money you received if you win your case.

Here are a few main areas where you can get legal aid for: 
  1. Welfare benefits, e.g. jobseekers allowance
  2. Debt - legal advice if you're declared bankrupt
  3. employment - for claims of unfair dismissal or discrimination
  4. Family, for separation or divorce
  5. Housing - if you're being threatened with eviction or homelessness
  6. Mental health - if you're being detained in a hospital.
There are many more areas where legal aid is applicable, to see more visit

You can't get legal aid for personal injury claims, or legal representation at an employment tribunal, or conveyancing. 

There are different types of legal aid including criminal claims, family assistance, legal representation etc. Getting legal aid if being accused of a crime is different than getting legal aid for a civil case.

The Citizens Advice Bureau is one place where you can get a lot of information and advice regarding a large variety of problems, whether financial or personal. They often have recommendations of who to see if you require a representative or a meeting with a particular person, or they can usually give you a list of solicitors who would be useful to ask advice.

Hope this covers the basics of legal aid, and hope it was more understandable than all of the in-depth legal stuff I post :)

Thursday, 12 April 2012

K is for King's Bench.

Admittedly, there were very few words I could use for K, so I've cheated a tad. I got most of my information from the following website:

King's Bench (KB) refers to the Kings Bench Division of the High court. However, this changes depending on who the monarch is - if it is a male, it is the King's Bench Division, however we currently have a female monarch, which makes it the Queen's Bench Division.

There are three divisions in the high court; Queens Bench Division, Chancery Division and the Family Division. The main work of the Queen's Bench Division, not including specialist courts, consists of the following claims:

  • Personal Injury
  • Negligence
  • Breach of Contract
  • libel and slander (defamation)
  • non-payment of a debt, and
  • Possession of land or property.
There are certain claims that may only be brought in the Queen's Bench Division:
  1. Enrolment of deeds
  2. Applications for bail in criminal proceedings
  3. Registration and satisfaction of bills of sale
  4. Election petitions
(There are many more, however I've just listed 4 examples.)

Here is an updated court structure for the UK, found on google images (many old structures show the House of Lords as being the court at the top, however these are outdated as the Supreme Court is now our highest appeal court):

J is for Joint Enterprise!

Sorry, as a result of my internet going down yesterday, this post is a day late! I used my main textbook to write this one, which is what the reference is for below.

Joint enterprise has come into the spotlight in recent years, as offences of violence involving groups of young individuals has increased. The crime is often done with a weapon. So, in the circumstances that you are in a gang or group of individuals, and you know that one of your friends/companions is carrying a knife on him and that he 'might' use it against another individual - you can very well be guilty of an offence.

All participants are usually found to be guilty in joint enterprise cases. Joint enterprise cases are often where the parties are doing the same act together (i.e. beating someone up, to put it bluntly) or having a plan to commit a crime. When someone exceeds this plan, i.e. takes it one step further, the other party members will be liable under something called parasitic accessorial liability. (Smith & Hogan, 13th edition, 2011, OUP). Liability as joint principles arises where each has done his own act which is a part of the actus reus.

An example would be the case of R v Powell - Powell (the defendant) (P) and another had a plan to buy drugs. P knew the other had a gun, and knew it might be used to cause serious harm or kill, and as such, his appeal to the House of Lords was dismissed and he was found guilty to have committed a crime (murder) after the other used his gun to kill the drug dealer.

Tuesday, 10 April 2012

I is for Involuntary Manslaughter

Involuntary Manslaughter is basically when the defendant has the actus reus of murder (the unlawful killing of another human being) but does not satisfy the mens rea requirements of murder (an intention to kill or cause Grievous Bodily Harm (GBH).

There are different categories of Involuntary manslaughter:
  • Constructive Manslaughter
  • Gross negligence manslaughter
  • Reckless Manslaughter
  • Corporate manslaughter
These all have different requirements with regards to proving liability.

Constructive manslaughter is a common law offence, meaning all of the principles are established using case law. It has 3 requirements:

  1. The act must have been unlawful
  2. It must have been dangerous
  3. The unlawful and dangerous act must have caused the death
Gross Negligence Manslaughter is based on negligence - a concept associated with civil law, and here in the UK, Tort. This offence occurs where D has been so negligent that criminal liability is appropriate. It has 4 requirements:

  1. Does D have a duty of care towards the victim?
  2. Is D in breach of that duty?
  3. Did the breach of duty cause death?
  4. Should that conduct be classed as criminal?
The other two types, I'm not as familiar with and will need to look up more! However, I did originally type a post which went into far more detail than the above, but my Google chrome decided then would be a good time to crash, so apologies! Here is the I post.

Monday, 9 April 2012

H is for Habeas Corpus

Habeas Corpus is a fundamental principle of English Constitutional Law. It originated through the common law and was regulated by a number of statutes dating back to the Magna Carta, however its origins are somewhat archaic and therefore it is difficult to determine when or where it came from or how it came to be. It is still available to use in the UK today, and has been inherited by many places such as the United States and Australia. It has been used as a safeguard of individual freedom against arbitrary state action.

It is a Latin term, which basically means "May you have your body" or "You have the body". The writ of Habeas Corpus provides a remedy in cases of unlawful detention, where the detention is lacking sufficient evidence. The writ can be issued by the prisoner or by a third party acting on his/her behalf.

A writ of Habeas Corpus is essentially a summons, requiring the prisoner to be taken before court to see whether the persons detainment is legal. If the custodian does not have evidence or authority to detain the prisoner, an immediate release is ordered.

The Habeas Corpus Act 1969 guaranteed this right in law.

In 1772 there was a landmark case which invoked this right. James Somersett was a black slave who had been brought to the UK from Jamaica. He was freed after a debate brought by his demand for Habeas Corpus. Lord Mansfield had successfully argued for his release.

Habeas Corpus is rarely used today, and there have been multiple occasions of Parliament suspending the right. It was suspended in response to the French revolution, and again using DORA (The Defence of the Realm Act 1914) during WWI and also during WWII. The most recent was in response to the IRA in the 70's.

There was worry that the anti-terrorism legislation which was put into place over the last 12 years has curtailed the right to Habeas Corpus in the UK. Anti-terrorism legislation was put into place to deal with potential terrorist suspects where there is not enough evidence to prosecute, or when they are unable to be deported. Potential terrorist suspects can be detained for a certain period of time under these acts (I think it was 14 days, but I will have to double check).

Saturday, 7 April 2012

G is for Good Samaritan Laws.

So, here is something I know absolutely nothing about. This post will be largely made up from sources on the internet and my own opinion, and so may actually be something which you readers find interesting.
There are a couple of concepts that I think you need to get your head around before I begin.

A duty to rescue is a concept in tort law which arises in circumstances whereby a party can be held liable for failing to come to the rescue of another party in peril.

There is no such duty in English Law.

In some countries, there is a legal requirement for citizens to assist people in distress, unless doing so would put themselves or others in harms way.
The Good Samaritan Law in France creates a legal obligation upon onlookers or passers-by to help someone in danger unless doing so would put themselves in danger or harms way.

Good Samaritan Laws are criticised heavily - if anything they can be seen to put a duty on the passer-by and restrict his freedom and what he can do. Furthermore, omissions (failure to act) are not supposed to give rise to liability as they do not in themselves cause harm. It was argued that a duty to rescue is a forced altruism, and that this is wrong. - the link on this argument is found here.
Many good Samaritan statutes are criminal statutes, and they are there to punish undesirable behaviour. (use the link above to find a more detailed argument.) Many people are unaware of the position they are in when they see someone in distress - would a statute not morally point individuals in the right direction?

Arguments, however, can go both ways with regards to the good Samaritan concept. Is this a legal duty, or is it a moral duty?
There are arguments that suggest that morality and law should not be intertwined. In many cases, the law should be independent from morality, otherwise even the smallest white lie would be prosecutable. Adultery, for example, would be prosecutable. (Don't think I condone adultery, as I don't, I'm just unable to think of a better example currently.)

As my laptop is on the verge of dying, I shall have to leave this argument here. I hope it has given you something to think about - do you believe the UK or other countries should have a Good Samaritan Law, and why?

F is for Fraud.

This is largely based on internet stuff and notes I've made previously, need to look it up in more detail so it might not be 100%, but this is my basic understanding of it. Again, I have a criminal law exam in May so this will largely be used in relation to revision :)

Fraud comes under Criminal Law, and up until recently (2006) we had a complex system designed to deal with cases of Fraud. Cases to do with Fraud before 2006 were originally dealt with under the Theft Act 1968 and 1978, and these old deception offences were called:
  • Obtaining property by Deception
  • Obtaining a Pecuniary Advantage by Deception
  • Obtaining Services by Deception
Several problems occurred with these two acts. Firstly, the above three offences were criticised for being complex and difficult to prove in court. Secondly, most cases which fell under these acts, people who should have been prosecuted for deception offences ended up being prosecuted for theft instead, which of course was the wrong offence. There was also considered to be a loophole in the law in that it was not modernised - you couldn't commit these offences on a machine, they had to be in person and you had to get a result from it. 

The 1978 act was supposed to cure the problem, however it didn't, and as a result of the above, the Fraud Act 2006 was introduced. This created a single general fraud offence carrying a maximum sentence of ten years.

Fraud can be committed in three ways under the Fraud Act:
  • False Representation is dealt with under Section 2 of the act. A person is in breach of the section if he dishonestly makes a false representation, and intends, by making the representation to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss.
A representation is false if it is untrue or misleading, and the person making it knows it is, or might be untrue or misleading. "Representation" means any statement of fact or law and it can be express or implied, and can be regarded as such if it is submitted into any system or device.
  • Failure to disclose information is dealt with under Section 3 of the act. This is covering situations where a person is under a legal duty to disclose information - e.g. insurance. To be in breach of this section, a person must dishonestly abuse their position, intend to make a gain for themselves or another, or cause another loss or expose them to the risk of loss. Job applications would be included here.
  • Abuse of position of trust. This is covered by section 4 of the act. This covers a wide range of relationships - director/company, solicitor/client, agent/principal, employee/employer, and between partners. It doesn't define what is meant by abuse on the basis that they want it to cover a wide range of conduct or omissions. The same requirements in the above 2 offences apply to this one; a person must dishonestly abuse their position, intend to make a gain for themselves or another, or cause another loss/expose them to the risk of loss. 
Dishonesty is a requirement for a breach of the act to occur - there has been case law determining the test for dishonesty.
  • R. v Ghosh - this, briefly, involved a surgeon claiming fee's from the NHS which he wasn't entitled to. The dishonesty test was laid out as follows:
    • was the act objectively dishonest by the standards of ordinary people
    • Did the defendant realise the act was so dishonest?
Thats about it with regards to proving/ general info on any fraud based offences. There are a few more offences under the act, but I'd need to go do far more research on them to write anything on them. As usual, thanks for reading (if you got this far) - the topics such as this one and my previous post (Equality) are potential topics for exams, so I'm making myself look through the statutes etc for revision purposes, so apologies for them being so boring! I'll try and make the rest readable :) 

Thursday, 5 April 2012

E is for Equality.

I will give you a slight warning here, after studying sociology at A level I had sympathy for feminists (not particularly the radical ones, mind). I would go as far as saying at some point through my education, I became a bit of a feminist. However that time is pretty much gone now, and whilst I think they have some good arguments, they can also go too far.

Sociology is not what I'm basing my post on today. Today's post will be focused on Equal treatment between the two sexes, with regards to equal pay - mainly because this particular topic is far too large to write about all in 1 post. This particular topic originates from European Union (EU) law.

Now, I've had so many conversations with people (such as my flatmate, who also studies law, and says she doesn't feel part of the EU) and even my sister and family, who don't actually know anything about what the EU does for us here in Britain. Let me give you a couple of examples, excluding equality, which I will go on to talk about after these.

  • Without the EU, crossing borders between countries such as France, Germany, Spain, Italy, - your favourite holiday haunts, would be much more difficult. Thanks to the EU, all we require is to show our passports at airports, relevant borders or docks (ferry ports, whatever they are called).
  • Further to the above point, thanks to the EU requiring member states to open up housing markets to foreign EU Citizens, it has made it possible to purchase holiday homes in other countries. 
  • Working abroad is now encouraged, and much easier thanks to Worker's rights and the Citizenship directive which the EU has implemented. It's now easier to go and live in other countries, so you might gain employment there.
  • Without the EU, we would not have the Human Rights Act 1998, which was transposed into UK law and was taken from the European Convention on Human Rights. This particular act gives individuals a lot more protection than most people realise. However, I will take into account on this point that using the Human Rights Act to protect potential terrorists & stop them being deported is wrong, particularly when they can be proved to be extremely dangerous individuals.  
I shall leave it here, as I'm going off topic, but remember that it does much more for the UK than those listed above.


Equality between men and women is one of the fundamental principles of community law. The EU's objectives on gender equality are to ensure equal opportunities and equal treatment of men and women and to combat any discrimination on the grounds of gender.

Firstly, there are 2 core functional treaties which lay out how the EU operates. The TEU (Treaty on European Union) and the TFEU (Treaty on the Functioning of the European Union).

(This is where it gets boring)

Article 8 of the TFEU states the following: "In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women."
Article 19 focuses on the general power to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation. 
Art 153(1)(I) is focused on the equality of men and women in the work environment 
Article 157 is interested with equal pay and now the promotion of equality between the sexes. 

Article 157 is considered the cornerstone of EU Employment law. The CJEU (Court of Justice of the European Union) has used this provision to initiate the development of EU sex equality legislation. This particular article is worded in such a way as to impose an obligation onto Member states. Article 157 (1) states that "Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied." 

Article 157 has vertical and horizontal direct effect:
  • Vertical direct effect - Concerns the relationship between EU law and National law; specifically, the states obligation to ensure its compatibility with EU law, enabling citizens to rely on it in actions against the state.
  • Horizontal direct effect - concerns the relationship between individuals - horizontal direct effect with regards to provisions means that individuals (including companies) can rely on it in actions against eachother.
2nd para of article 157 defines pay - it gives a broad definition and it has to be linked to the employment relationship directly or indirectly. It is defined to include bonuses or perks of the job, and doesn't necessarily have to be whilst you're in employment - it can be after redundancies or after you're retired.

Directive 2006/54 covers equality in employment & working conditions, social protection, parental leave (maternity & paternity leave).

Moving swiftly on - the burden of proof lies with the complainant - they have to prove that they've been discriminated against - that they receive lower pay than a colleague of the opposite sex, and that they perform the same work of equal value.

NOTE there's a lot of case law in this area which I've omitted as I'm quite aware that most readers are not law students and this is a very large and confusing area. Furthermore, this is literally the basics of the particular area, and I haven't gone into too much detail. Any more info can be found on the European Union website here. If you got this far - well done, this ones taken me like 4 hours to write so I'm concluding here :) 

Wednesday, 4 April 2012

D is for Doctrine of Notice.

This is a topic involved with Land Law which I need to look up a little more for my revision, however what I post today will be largely based on internet research as I find myself without my trusted Land Law bible (A.K.A. my textbook). So please excuse anything that you believe to be wrong (or point it out so I might learn from it after looking it up).

There are currently two systems of land conveyancing in England and Wales: Registered and Unregistered. The doctrine of notice does not apply to registered land.

The doctrine of notice applies to equitable interests made before 1925, and is a method of protecting third party interests in land.

The doctrine stems from the concept of 'Equity's Darling' (mentioned in my 'B' post).  If a purchaser did not know about an equitable interest having made full inquiries and investigations, and so did not have actual, constructive or imputed knowledge of the interest, he/she was known as a 'bona fide purchaser for value without notice' (I will break this down into simpler terms momentarily), and could therefore acquire the legal title of the property free of the equitable interests (one example being a holder of an easement, for example having a right to light over their own property or access to their own home).

Bona fide purchaser for value without notice:

  • Bona fide purchaser - the purchaser must act in good faith. 

E.g, in the past, purchasers have been known to purposely turn a blind eye to the investigations, claiming that they did not know of the other interests, so that they might gain the property without being subject to equitable interests of third parties. If you fail to inspect the property thoroughly enough, the court will hold that you have constructive notice of those interests - so, you would be deemed to have notice of all interests, charges and easements that you would have known about had you made a reasonably thorough inspection.

  • For value - the purchaser must have given some consideration for the land - they would not be a purchaser for value if the land was left to them in a will, or as a gift, or through adverse possession.
  • Without notice - the purchaser must not know of the equitable right actually or constructively. 
Most interests are now protected by entry on a register, meaning the purchaser is deemed to have knowledge of them & they are therefore binding upon him/her. As a result, this doctrine applies only to a few interests. 

Acts such as the Land Charges Act 1972 and the Land Registration Act 2002 produce a more coherent system of land registration as they record all of the various land charges, interests and other rights held over each piece of land. 

That, without my bible, is about all I can say about this topic! :)

C is for Common Law

I had to pick a nice and basic one as I have chosen to write about this topic after a night out, so any inconsistencies I will attempt to amend on the morrow!

Common law is defined as "a body of law that is based on custom and general principles and embodied in case law and that serves as precedent or is applied to situations not covered by statute"

In my own interpretation, it is the decisions which the judiciary have applied to deal with cases and situations which parliament/the legislature has failed to cover with a statute. These decisions are generally followed and considered precedent by lower courts, unless parliament intervenes and creates a statute to cover the particular situation.

Interesting fact for you, I do believe murder is one such crime. Murder, as a general crime, has never been codified and put into a statute within the UK, and murder is thus a Common law creation. Seems unusual that one of the most heinous and inhuman crimes in the world hasn't been made illegal through statute, and it remains so.

Well this area has not provided too much to write about, so in the meantime I hope it has given you something to think about. 

Monday, 2 April 2012

B is for Bona fide purchaser

I'm finding the old, Latin phrases used in law quite useful today with regards to awkward letters that hardly cover anything to do with Law.
This particular phrase is concerned with good old Land Law, an area which blesses me with an exam I will be sitting this coming May.

Bona fide is the Latin phrase meaning 'in good faith'.
Bona fide purchaser (BFP) refers to an innocent party who purchases property in good faith without notice of any defect in title of that property. They must purchase for value, which means that they must pay for the property, rather than being the beneficiary of a gift. They are also known as 'Equity's Darling', and the complete term for a BFP is a bona fide purchaser for value without notice.
A BFP will not be bound by equitable interests which he/she has no actual or imputed notice, as long as they made such inspections as ought reasonably to have been made. 
Under certain circumstances the BFP can retain the property free and clear of the claims of others. The other party will have a right of action against the fraudulent party for compensation. 

Well after reading and re-reading, I can't help but conclude that my B is a very boring topic. We can always hope C will be a much better read!

A is for Actus Reus.

Apologies for the fact that this post is a day late, I have had a busy schedule but I will be participating in this challenge hopefully every day from now on :) I will try to make them all as law-related as I possibly can, however in the circumstance that I can't think of a law-related topic or word for the letter, I shall have to pick something random.

Some general info - the basis for imposing liability in criminal law is that the defendant must be proved to have committed a guilty act with the requisite 'guilty mind'.
This essentially breaks down into 2 elements. The physical elements are known as the 'actus reus' (guilty act) and the accompanied mental element is known as 'mens rea' (guilty mind).
The standard of proof to be reached in criminal law is that it must be proved beyond reasonable doubt. The prosecution is under a duty to prove both of these elements of the offence to the judge/jury. If the elements cannot be proved beyond reasonable doubt, then the defendant will be acquitted (not guilty).

So firstly, what is 'actus reus'?
Actus reus is the Latin term for 'guilty act'. It is the physical element of committing a crime. It can be a positive act, or an omission (failure to act), and it must be a voluntary act which causes the damage/harm. It can also be a state of affairs, but I am not going to get side-tracked into elaborating today, maybe on my 'S' day.

So a voluntary act means that basically it has to be 'free-willed' - there are many reasons as to why it could be involuntary:

  • Automatism. This is generally where the defendant performs a physical act, but he is either not in control of his actions or he is not aware of what he is doing due to some external factor.
  • Physical force - if the conduct is physically forced by somebody else there will be no actus reus. E.g. if your best friend takes your arm and punches someone using it, you won't be guilty, although I'd recommend looking into getting a new best friend.
I am going to move onto omissions and causation and then conclude, as this is becoming quite lengthy.

SO, as covered above, omissions are a failure to act, and the general rule is that there is no liability for a failure to act, unless at the time of the failure to act, the defendant was under a legal duty to take positive action.
These legal duties arise from:
  • Statutes
  • Contract 
  • Public duty
  • Voluntary assumption of responsibility/reliance 
  • duty due to defendants prior conduct (e.g. if you set a house on fire, do yourself a favour and put it out or at least try to!)
Causation is basically the concept which states that in order for the defendant to be guilty of an offence, he must have caused the consequence (damage/harm). (I shall explain this on day C probably)

If I didn't bore you to death, then congratulations, lesson 1 of law is over. Time to find a B post!