Tuesday, July 27, 2010

Concrete criminal...

Over the past week or so I've dug into my criminal law course and I'm pleased to report that I've hit concrete. After several weeks of focusing on common law, it seems to me that criminal is much more structured and orderly. The principles of criminal law seem straight forward, the rationales behind judgments seem to follow a logical pattern and the study is really engaging.

I understand that it is commonplace for law students to be attracted to the study of criminal law. I would imagine that we are drawn to it for a number of reasons. We are exposed to the high drama of the courtroom from our earliest years watching TV. Also so much of modern society focuses on violence that a basic knowledge of criminal law seems to be almost a prerequisite. Finally somehow we seem to be attracted to tragedy, much as we can not resist the urge to have a look when we pass a car wreck, so we seem to be drawn to the tales which unfold in the cases of criminal law.

So overall a good start, I know for sure that I will be back with rants and raves in a few weeks but for now I am content...

Monday, July 19, 2010


I'm reading once again about the various courts, their structure and jurisdiction and who presides over each. I continue to be amazed by the Magistrates Courts and the magistrates. These courts are the backbone of the court system and handle most of the legal cases (supposedly 95% of the criminal cases in England and Wales). While many come unrepresented to these courts or benefit from a McKenzie friend, in order to stand before the court and represent a client one needs years of legal training and then acceptance into the legal profession. Yet what are the qualifications to sit in judgement? The following is an extract from direct.gov.uk:

You don't need formal qualifications or legal training to become a magistrate.

However, you will need to be able to demonstrate six key personal qualities:
good character
understanding and communication
social awareness
maturity and sound temperament
sound judgement
commitment and reliability

Huh? Well let's read further...maybe there is some rigorous training program in place...

You will undertake a training programme to help you develop all the knowledge and skills you will need to serve as a magistrate. This is given locally by your Justices' Clerk (legal advisor) or a member of his or her team. You will be in a group with other new magistrates recruited at the same time as you. Training will be given using a variety of methods, which may include pre-course reading, small-group work, use of case studies, computer-based training and CCTV.

Excellent that is defiantly good to know. Sounds like it will be pretty intense...let's see if there is any information about how long a magistrate will need to undergo this course work....

The initial induction and core training will normally be for the equivalent of three days (18 hours) and may be delivered over a long weekend, in a series of short evening sessions over several weeks, over three separate week days, or as a residential course. It is recognised that magistrates are volunteers and that their time is valuable, so every effort is made to provide all training at times and places convenient to trainees.

Three days? Am I missing something here? Is that all that is required to sit in judgement?

I recognize that these are unpaid part-time positions but I would be really interested in reading about whether or not we would be better served by paid full time justices of the peace rather than part-timers with limited legal training. I am not trying to be smug and suggest a better way (I know for example that most who come before a magistrate are pleased with the justice which they receive) but still it does strike me as unbalanced that so much effort and training is required from a legal profession yet a judge may be layman. Feedback welcome...

Friday, July 16, 2010

What is this bramble bush?

Recently a friend of mine who had a look at this LLB blog asked me what exactly I meant by the subtitle about me plunging into a bramble bush...oddly enough it comes in part from a Mother Goose nursery rhyme called 'Man in Our Town':

There was a man in our town,
And he was wondrous wise,
He jumped into a bramble bush,
And scratched out both his eyes;
But when he saw his eyes were out,
With all his might and main,
He jumped into another bush,
And scratched 'em in again.

The rhyme was in turn picked up by a prominent American legal scholar by the name of Karl Llewellyn and 'The Bramble Bush' was the title of an early work of his. Still quite popular today it is intended mostly for and as a reflection on the first year of legal studies. The notion is that as you enter the study of the law, as bright as you might be, you find yourself a bit in the dark. Your eyes are "out" as the rhyme says. You feel that you can not find your way in the maze of the law and that the way is in fact quite painful. The trick is to push on, to move forward with all your might into the thicket of the bramble bush. Only by doing so will you actually be able to "see" again. Words of inspiration to the beginner like myself stumbling along...

Wednesday, July 14, 2010

Using all my senses...

I was exploring some more the online features of the school and I found a brilliant thing - they have recorded lectures from the instructors which track the study guide. Really well done. Admittedly, I think the side presentations could be a bit more robust and the voices are not exactly the most engaging, yet overall I think it is a big help in drilling the material home. I also must confess that I am getting more support and better materials from the school than I expected. So far it really seems like a good value for money.

One of the other features of their online learning environment is a very extensive law library. While I have not explored it very much, probably not even scratched the surface, I did log in to Westlaw and completed their tutorial. A superb resource I have to say and once you get the hang of it by completing the tutorial it is easy to use. I used it a bit for my paper for that competition to dig up a few cases and it contributed a lot of value.

So far so good as we go deeper into the brambles...

Tuesday, July 6, 2010

Conflicting rights?

Recently I submitted an entry to a competition on whether equality laws trump freedom of conscience. I thought that I would share my entry with you and see what you think of it:

The recent ruling in McFarlane v. Relate Avon Ltd [2010] I.C.R. 507 gives rise to concern by many that freedom of conscience has been trumped by equality laws. Some would even claim that laws prohibiting discrimination oppress those who hold particular religious beliefs. Yet this is an oversimplification of the issue at hand. Few would argue that Thomas Hobbes’ definition of a free man “he, that in those things, which by his he is able to do, is not hindered to do what he has a will to do”[1] could be readily applied to society today. Most would agree instead with Sir John Donaldson that:

“The starting point of our domestic law is that every citizen has a right to do what he likes, unless restrained by the common law or by statute”.[2]

After the horrors of World War II, the European Convention on Human Rights (ECHR) was written to secure certain fundamental rights of citizens under the law. Freedom of conscience, religion and thought are protected by Article 9 of the ECHR and were incorporated into domestic legislation by the Human Rights Act 1998. However, Article 9 goes on to state that manifestations of those rights may be limited in a democratic society for a number of reasons. One of those reasons is to protect the rights of others. Freedom of conscience is thus a limited right.

Article 14 of the ECHR however provides an absolute right – to be protected from discrimination. Many would argue it is in fact a positive right which places obligations on the state to ensure that individuals are protected from discrimination. The increase in the number and scope of equality laws since the Human Rights Act 1998 supports this view.

It has fallen upon the courts to balance the rights protected by Articles 9 and 14. When manifestations of freedom of conscience, religion or thought conflict with equality laws, courts have found in cases ranging from Sahin v. Turkey (44774/98) [2007] 44 E.H.H.R. 5 to Ladele v. Islington LBC [2009] EWCA Civ 1357 that freedom from discrimination takes precedence. Freedom of conscience, thought and religion remain intact. It is discriminatory manifestations of a belief that may be prescribed by the state.

[1] The Leviathan, Thomas Hobbes, p 145
[2] A-G v Observer td [1960] 1 AC 109

Thursday, July 1, 2010


While I am not taking contracts this year, I am in a study group with a number of people who are so I decided in sympathy to follow along. One of the good things to come of the group is the notion that we will exchange practice essays for feedback. Here is my first, any constructive feedback is more than welcome...

Question 2:
Cyril, a stamp dealer, had a rare Peruvian 5 cent blue for sale. He wrote to Davina, a collector who specialises in Peruvian stamps, asking whether she would be interested in purchasing it. Davina wrote in reply, ‘I am willing to pay £500 for the “blue”; I will consider it mine at that price unless I hear to the contrary from you and will collect it from your shop on Friday next week.’ Advise Davina as to the legal position:
a) if Cyril disregarded Davina’s letter and sold the stamp to Eric for £600
b) if Cyril put the stamp on one side in an envelope marked ‘Sold to Davina’ but Davina decided that she no longer wished to buy it.

Question two asks us to advise Davina on her legal position, to do so we must first determine whether a contract exists between the offeree Cyril and the offeror Davina. In this case, Cyril’s letter to Davina may be taken as in invitation to treat. Davina may believe that a contract exists based upon her posted reply in which she states that she is willing to pay £500 for the stamp, however there are a variety of issues which arise from her letter. The first concern is the formation of Davina’s offer - in Felthouse v Bindley (1862) the judges held that the offeror cannot impose an obligation on another to reject one's offer and that without specific acceptance a contract is not formed. Thus when advising Davina on point “a” of the question, she would most likely not have an actionable case in the event she wished to claim she had purchased the stamp and Cyril did not have the right to sell it to Eric for £600. However, the situation in point “b” is more complex. Cyril did not communicate his acceptance of Davina’s offer which is a supporting point in Davina’s favour should she wish to revoke her offer, yet Cyril’s conduct indicated to some degree his acceptance of it. Is Davina bound by her offer? In Carlill v Carbolic Smoke Ball Co. the court held that a unilateral contract existed when one party makes an offer if the other party does something fulfilling the conditions, but the other party need not agree to do that thing. Davina needs to be able rely more strongly on the finding of Felthouse v Bindley that the key element of a contract, that of formal acceptance is of greater weight than Carlill and that this was not in fact a unilateral contract.