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PAPER TITLE: PUBLIC AND CRIMINAL LAW
DATE: Thursday, 7 June 2018
PART 1
PUBLIC LAW
SOLUTION
(a) The grounds of judicial review.
(b) The relationship between key principles of the UK constitution.
(c) The scope of policies issued by the executive under prerogative powers.
(d) The application of the judicial review principle against fettering of discretion
in relation to statutory decision making, to the exercise of prerogative powers.
(e) The relationship between irrationality and proportionality as categories of grounds of judicial review.
Answer- D
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2. Which of the following cases specifically concerns the judicial review ground of fettering of discretion?
(a) Jackson and others v Attorney General [2005] UKHL 56, [2006] 1 AC 262
(b) British Oxygen Co Ltd v Board of Trade [1970] UKHL 4, [1971] AC 610
(c) Council of Civil Service Union v Minister for the Civil Service [1985] AC 374
(d) R v Gough [1993] AC 646
(e) R v IRC, ex p Rossminster Ltd [1980] AC 95
3. According to Huntley, which three categories of grounds of judicial review were potentially raised by the issues considered by the UK Supreme Court in the Sandiford case?
(a) Illegality, irrationality, and proportionality
(b) Illegality, irrationality, and procedural impropriety
(c) Ordinary domestic law provisions, fundamental common law constitutional
rights, and European Convention on Human Rights rights incorporated by
the Human Rights Act 1998.
(d) Ultra vires, the rule of law, and prerogative powers.
(e) Fettering of discretion, legitimate expectations, and irrelevant considerations.
4. According to Huntley, what legal decision did the court reach in the Sandiford case in relation to the common law issue under consideration that is the main subject of the article?
(a) The rule against fettering of discretion is a general principle of judicial review that applies equally to statutory and prerogative powers, on the basis of the fair and lawful exercise of power.
(b) Prerogative powers are not amenable to judicial review because they relate to the exercise of high policy.
(c) The rule against fettering of discretion does not apply to powers exercised either under statute or under the prerogative.
(d) The applicant’s application for judicial review was dismissed.
(e) Prerogative powers, when justiciable, are subject to ordinary public law principles of review, but their different nature and origin means that the rule against fettering of discretion does not apply to them.
5. What key objection does Huntley anticipate would be made to the application of the rule against fettering of discretion to prerogative powers?
(a) The prerogative powers of the executive should not be limited in any way by the courts.
(b) It would appear to require the executive to consider using its prerogative powers in any case when requested to do so, which would impose a very burdensome duty because of the broad range of possible prerogative activities.
(c) It would undermine the sovereignty of parliament as the supreme principle of the UK constitution.
(d) It would be an inappropriate application of the principles of European human rights law to domestic UK law.
(e) It would unlawfully extend the principle of the rule against fettering beyond its application to statutory powers.
QUESTION 6
‘Primarily…the grounds of judicial review are creatures of the common law; they have been created and developed by the courts’.
(Loveland, 2015, p.445)
Explain the various grounds of judicial review in the UK constitution. Evaluate the consequences of the grounds of review being ‘created and developed by the courts’.
QUESTION 7
In your own words, briefly explain the argument made by Huntley in the article in relation to how the rule against fettering of discretion could be applied to prerogative powers, and the main objection to it that she highlights. Make your own argument about whether the rule should be applied to prerogative powers.
PART 2
CRIMINAL LAW
8. What is the second ground of appeal in R v Brady [2006] EWCA Crim 2413?
(a) It is not fair to convict someone of falling off a balcony.
(b) The act of falling was not deliberate and must therefore have been accidental.
(c) There was new and relevant expert evidence which rendered the conviction unsafe.
(d) The actus reus of assault used in the case was inappropriate.
(e) The defence case was poorly argued.
9. What case did the crown use in written submissions to support the argument that there did not have to be physical contact between the accused and the victim?
(a) R v Dica [2004] QB 1257
(b) R v Cunningham [1982] A.C. 566
(c) R v Powell (Anthony) [1997] UKHL 45, [1999] 1 AC1
(d) R v Ireland [1998] AC 147
(e) R v Caldwell [1982] AC 341
10. The trial judge’s direction on the legal meaning of maliciously is subject to appeal. Which of the following words does the appeal court examine in detail and is central to their reasoning?
(a) Intention.
(b) Serious harm.
(c) Recklessness.
(d) Voluntary act.
(e) Indifference.
11. There remained a doubt in the Court of Appeal’s mind as to whether the summing up was sufficiently clear to the jury. In reaching this decision the court makes it clear that the accused was not on trial for one of the following. Choose the answer that most reflects the issue the court identified as not being relevant to the case.
(a) The appellant was not on trial for causing actual bodily harm.
(b) The appellant was not on trial for drugs offences
(c) The appellant was not on trial for murder.
(d) The appellant was not on trial for getting drunk and/ or behaving stupidly.
(e) The appellant was not on trial for inflicting grievous bodily harm
12. In what case did the courts define recklessness in relation to the offence of criminal damage as follows: -
“it is clearly not blameworthy to do something involving a risk of injury to another if … one genuinely does not perceive the risk’”.
(c) R v Ireland [1998] AC 147
(d) R v Caldwell [1982] AC 341
(e) R v G and Another [2003] UKHL 50, [2004] 1 AC 1034
13. Shakira and Dom think they may have broken the criminal law. Each of them wishes to be advised by you regarding whether they have committed a criminal offence. Advise each of them as to their potential criminal liability. Include in the advice an examination of the requirements of the most likely criminal offence with which they might be charged. Then assess the arguments that may be made to defend Shakira and Dom against such a criminal charge.
14. Briefly explain and analyse the reasons why the Court of Appeal in R v Brady [2006] EWCA Crim 2413 found that Brady’s conviction was unsafe.
[END OF QUESTION PAPER]
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