GCE EXAMINERS' REPORTS
LAW
AS/Advanced
SUMMER 2012
© WJEC CBAC Ltd.
Statistical Information
The Examiner’s Report may refer in general terms to statistical outcomes. Statistical
information on candidates’ performances in all examination components (whether internally
or externally assessed) is provided when results are issued.
Annual Statistical Report
The annual Statistical Report (issued in the second half of the Autumn Term) gives overall
outcomes of all examinations administered by WJEC.
Unit
Page
LA1
1
LA2
5
LA3
8
LA4
17
© WJEC CBAC Ltd.
LAW
General Certificate of Education
Summer 2012
Advanced Subsidiary/Advanced
Principal Examiner:
Professor Iwan Davies
Unit Statistics
The following statistics include all candidates entered for the unit, whether or not they
'cashed in' for an award. The attention of centres is drawn to the fact that the statistics listed
should be viewed strictly within the context of this unit and that differences will undoubtedly
occur between one year and the next and also between subjects in the same year.
Unit
Entry
LA1
1766
Max Mark
50
Grade Ranges
A
B
C
D
E
36
31
26
22
18
N.B. The marks given above are raw marks and not uniform marks.
© WJEC CBAC Ltd.
1
Mean Mark
25.3
LA1 - Understanding Legal Values, Structures and Processes
General Comments
Many candidates are missing out whole parts of questions. Centres need to embrace the
challenge of the specification and the need to prepare candidates to answer the question
set. There is a trend of answering what candidates wanted to see in the question rather than
embrace the challenge actually set out in the question. A feature this year was poor spelling
which went beyond legal terminology. In terms of general administration errors there are still
too many rubric errors where candidates are answering only one whole question on the
paper or answering part (a) of one question and pairing it with part (b) of another question.
Q.1
This was by far the most popular question on the paper and part (a) was generally
answered well in terms of showing a range of information about the jury. However,
learners struggled with part (b). The weaker answers in part (a) focused on the
'general knowledge' aspect of juries with little legal authority or detail. They were able
to identify that juries were 12 individuals who decided guilt in criminal cases. Only a
handful of learners references outdated law in terms of selection. They noted that it
related to the concept of being tried by their peers and was an ancient tradition which
allowed greater representation. Better answers, which were in the majority, identified
the selection criteria recognising the change in the law and the role of the Central
Summoning Bureau. They discussed competently unanimous and majority verdicts
and spoke with some confidence on the need for a representative jury. Bushell was
referenced along with R v Owen, Pontin, R v Young, Juries Act and Criminal Justice
Act 2003. These answers did tend to focus on the criminal juries. The best answers
went further and discussed the role of civil juries noting their rarity and the coroner’s
court. There was also some discussion about challenging juries and vetting. This
answer was generally treated as an opportunity to discuss everything about the jury
and it was clear that most learners had not focused on the issue in the question. Part
(b) was answered poorly in general. The worst answers (although in the minority
with only a handful of learners) discussed the role of police, judges and lawyers
generally with no reference to the jury. In addition, a handful were still applying the
old law. A large proportion of learners produced common sense answers about bias,
influence and the positives of having legal knowledge. Better answers, which were in
the minority, were able to reference the change in the law, the pros and cons in terms
of bias and legal knowledge and R v Abdroikof. However, none of the answers were
a well rounded discussion and it is clear that learners struggled with the specifics of
this question and were clearly more comfortable with (a).
These answers did tend to focus on the criminal juries. The best answers went
further and discussed the role of civil juries noting their rarity and the coroner’s court.
There was also some discussion about challenging juries and vetting. This answer
was generally treated as an opportunity to discuss everything about the jury and it
was clear that most learners had not focused on the issue in the question. Part (b)
was answered poorly in general. The worst answers (although in the minority with
only a handful of learners) discussed the role of police, judges and lawyers generally
with no reference to the jury. In addition, a handful were still applying the old law. A
large proportion of learners produced common sense answers about bias, influence
and the positives of having legal knowledge. Better answers, which were in the
minority, were able to reference the change in the law, the pros and cons in terms of
bias and legal knowledge and R v Abdroikof. However, none of the answers were a
well rounded discussion and it is clear that learners struggled with the specifics of
this question and were clearly more comfortable with (a).
© WJEC CBAC Ltd.
2
Q.2
This was also a popular answer and in general it was answered well. In relation to
part (a) most learners who attempted this had some understanding of the rule of law.
There were a small handful which focused on the concept of rules and an attempt to
make it a morality question. The majority of answers were comfortable referencing
Dicey, Parliamentary Sovereignty and Separation of Power. However, learners were
focusing too much on separation of power and parliamentary sovereignty at the
expense of discussing Dicey’s principles in detail. This was a common feature and
relates to delivery. It raises a question about the resource material the learners are
receiving. Better answers (large minority) were able to discuss Dicey with examples
where the UK has breached or infringed on the rules. There was discussion about
legal aid, the role of the Human Rights Act and the Belmarsh detainees. In addition,
a number of these better answers referenced Bingham and compared and contrasted
with Dicey. Part (b) also showed promise in terms of previous years. There were still
the learners who insisted on naming articles or providing the history with references
to cases that occurred prior to the HRA. However, these were in the minority. The
majority of learners were able to identify the role of S.3 and S.4 at a minimum and
there was reference to Bellinger and Belmarsh detainees. Better answers (large
minority) went further and discussed S.10 with some reference to Parliamentary
Sovereignty and S.2. These candidates were also generally aware that S.6 existed
but did not discuss in any detail. It was disappointing that there was generally no
case law in relation to S.3 and S.19 was also generally missing.
Q.3
It was apparent that learners who attempted this question were doing so to access
the equity part. Part (a) was often answered poorly. Weak candidates named some
of the civil courts although these were often confused with the criminal courts. The
better candidates (and better is loosely used) attempted to discuss the hierarchy or
focused on describing the tracks developed following Woolf. Part (b) also varied.
Weaker candidates used this as an opportunity to summarise the development of
equity. There was also a focus on the equitable maxims rather than the equitable
remedies. This was often the case even where equitable remedies were listed and
led to little to no discussion of the remedies but a thorough discussion of the maxims.
Better candidates and there were a significant number in the answers provided were
able to name and explain injunctions, specific performance, rectification and
rescission. There was some confusion with the definitions being applied to the
incorrect name particularly with rescission and specific performance. There was also
evidence of new remedies such as Mareva and Anton Pillar. There was some case
law in the form of Nelson v Warner Brothers and some candidates referenced Ryan
Giggs and superinjunctions.
Q.4
There were some good answers in relation to this question although it was not a
popular question. Weaker candidates simply noted in (a) that this is criminal legal aid
with vague reference to means and merit tests. However the majority who chose this
were able to discuss the CDS with reference to the Access to Justice Act, duty
solicitor schemes, advice and representation, demand led and means and merit
tests. There was no reference to the PDS but the answers were thorough. Part (b)
varied in response. A small number simply discussed their opinion on legal aid and
its need but these were in the minority. The majority used this as an opportunity to
describe civil legal aid. Better answers discussed the current political climate, Carter
reforms and current opinions on the reform. These answers were the most
evaluative of all responses because learners attempted to critique the developments
rather than describe as they did in the other part (b)’s.
© WJEC CBAC Ltd.
3
Q.5
This was not well answered. Learners were more confident with the ECJ but tended
to focus on their role in precedent. In (b) learners tended to describe all the
institutions which meant discussion on the Commission was brief at best.
Q.6
This was not a popular question which is surprising. Part (a) caused learners
problems. It was apparent that they were not as comfortable with the problems with
the civil justice system but were competent in describing the reforms. Most learners
were able to identify cost, complexity and delay as key driving forces behind the
reforms but weaker learners (in the majority) listed those points and then proceeded
to describe the Woolf reforms. These answers were competent in discussing
changes in terminology, case management, timetables, ADR and the track system.
There was some confusion in relation to the Access to Justice report and the Access
to Justice Act. A very small number of learners discussed in detail the problems but
where this happened the answers were thorough with a full discussion of the reasons
for complexity, cost and delay. Part (b) was not well answered in general. A large
proportion of learners rehashed part (a) or produced a common sense answering
theorising that costs and delay had been reduced. A small proportion of learners
were confident with the research into the success of the reforms and Zander was
referenced and there was discussion about front loading and differing opinions about
cost and whether ADR is preventing justice as people are forced out of court.
However, these answers read at lists of opinions and information and were not
generally developed into an argument which is disappointing because there was
evidence of understanding.
© WJEC CBAC Ltd.
4
General Certificate of Education
Summer 2012
Advanced Subsidiary/Advanced
Principal Examiner:
Professor Iwan Davies
Unit Statistics
The following statistics include all candidates entered for the unit, whether or not they
'cashed in' for an award. The attention of centres is drawn to the fact that the statistics listed
should be viewed strictly within the context of this unit and that differences will undoubtedly
occur between one year and the next and also between subjects in the same year.
Unit
Entry
LA2
1927
Max Mark
50
Grade Ranges
A
B
C
D
E
36
31
27
23
19
N.B. The marks given above are raw marks and not uniform marks.
© WJEC CBAC Ltd.
5
Mean Mark
25.0
LA2 - Understanding Legal Reasoning, Personnel and Methods
Q.1
Many candidates omitted part (a) completely. This was probably due to the mix in
topics. Candidates clearly expected a Statutory Interpretation question but were not
expecting it to be combined with EU Law. Very few candidates logically discussed
each source of EU Law and the impact of direct applicability on that source of law.
But rather opted for a general answer giving basic explanations and definitions of
direct applicability and what horizontal and vertical direct effect means. For this
general answer, the candidates could score no more than a top Level 2.
Part (b) produced a mixed bag of answers and a Statutory Interpretation question
can always be relied upon to produce the whole range of answers. It would seem
that candidates were put off by the presence of three "defendants" in the application
section and this was a contributing factor to poor application of the approaches and
rules. Only the strongest candidates could make reference to all four rules, with
supporting cases and strong application.
Very few candidates made reference to the purposive approach which was the
challenge posed by the application of the statute to the facts. Most candidates could
cite the literal, golden and mischief rules. Although most candidates could provide an
explanation of the rule, very few supporting cases were cited. This is unusual as
candidates are usually well rehearsed in giving explanations and supporting cases.
On a technique point, it would seem candidates are keen to come to a firm
conclusion in this answer. What would be more favourable and likely to receive more
marks is if candidates applied all rules and avoided committing to the application of
one rule only to each defendant.
Identifying the mischief or purpose of the statute was problematic with a varied range
of answers from wanting to stop cars with certain registration numbers to stopping
cars on certain days. The petrol conservation concept seems to have been lost on
all but the strongest candidates.
Q.2
Another popular question on the paper; in part due to the nature of the source, which
provides a very useful crutch for the weaker candidates who merely re-hash the data
into words. Most candidates could identify the parity issue in the data and stronger
candidates could provide useful reasons as to why recruitment had decreased and
number of women had increased. Reasons cited for the increase in women included
increased advertising campaigns in mainstream publications, and reasons for the
general downward trend for the number of magistrates included the economic climate
and people working beyond the retirement age.
Interpretation of the data was evident in only the strongest candidates, but most
candidates gained credit for giving a reasonable exposition of the role, background
and eligibility criteria of magistrates. There was also good citation of Local Advisory
Committees and the role of the Lord Chancellor in the appointment of magistrates.
These specifics were very creditworthy as the question focused on appointment only.
The changes brought about by the Courts Act 2003 were mentioned in all but the
weakest of scripts. The very strongest answers noted the subtlety of the question
asking about appointment and gave a detailed exposition of the two stage interview
process and all that this entails in terms of skills, references and application.
© WJEC CBAC Ltd.
6
Whilst part (a) was very positively marked and anything relevant to magistrates was
credited, part (b) required very specific detail on the training of magistrates and this
seemed to be problematic for the majority of candidates. The structured training
programme eluded most candidates and very few could provide substantive details
on the mentoring programme, training sessions, appraisals and the core and
developmental training. Instead, answers were often flaky and centred around the
qualities required to become a magistrate and the eligibility criteria. Really weak
answers re-hashed the data from the source as a last resort to answering the
question.
Q.3
Despite being relatively popular, this question was rather disappointing to mark
because candidates just do not seem to understand the intricacies of precedent
particularly as it relates to the House of Lords and Court of Appeal. Instead,
candidates focused on avoidance techniques rather than looking at specific
requirements for the House of Lords or Court of Appeal. Such an answer would not
have received more than a top level 2, even less if not supported with relevant case
law. Stronger answers were able to discuss the establishment of the Supreme Court
as being critical in the separation of powers theory and went on to discuss crucial
cases in the use of the Practice Statement, such as London Tramways, Conway v
Rimmer, Harrington -v- British Railway Board, R -v- Shirpuri as well as, of course, R
v R. This was then followed by an evaluation of the use of the Practice Statement
and the opportunity for judges to "usurp" the law. Positives were taken from the
source and included the ability to be flexible, modernise the law and incorporate
certainty into the law. Negatives centred around the undemocratic principle and the
lack of predictability.
Part (b) was also very poorly answered with very few candidates able to cite Youngs
as the leading case. For this, they could secure no more than a top Level 2 mark.
Many candidates saw this as an opportunity to discuss s2 Human Rights Act 1998
and the responsibility of judges to take into account human rights cases.
Q.4
Another fairly popular question with most candidates providing an outline of all forms
of delegated legislation with good use of examples including:
Orders in Council - recategorising cannabis from Class B to Class C under the
Misuse of Drugs Act.
By-laws - smoking in public places, speed restrictions, drinking laws.
Statutory Instruments - passed by the relevant Minister, for example Health and
Safety At Work Act.
© WJEC CBAC Ltd.
7
LAW
General Certificate of Education
Summer 2012
Advanced
Principal Examiners : Professor Iwan Davies
Dr Pauline O'Hara
Unit Statistics
The following statistics include all candidates entered for the unit, whether or not they
'cashed in' for an award. The attention of centres is drawn to the fact that the statistics listed
should be viewed strictly within the context of this unit and that differences will undoubtedly
occur between one year and the next and also between subjects in the same year.
Unit
Entry
LA3 01
LA3 02
LA3 03
Max Mark
34
766
220
50
50
50
Grade Ranges
A*
A
B
C
D
E
LA3 01
43
38
33
28
23
19
LA3 02
44
39
34
30
26
22
LA3 03
45
40
35
31
27
23
N.B. The marks given above are raw marks and not uniform marks.
© WJEC CBAC Ltd.
8
Mean Mark
24.8
29.4
33.4
LA3 - Understanding Substantive Law: Freedom, The State and the Individual
Option 1: Contract and Consumer Law
Q.1
This was a popular question. Most candidates were able to apply the Unfair Contract
Terms Act 1977 and in particular the issue of exclusion of implied terms. Better
candidates were able to draw a distinction between limitation clauses and exclusion
clauses. Some candidates were able to refer to the Common Law approach to the
construction of exclusion clauses. Part B of the question was straightforward and
some of the better candidates were able to refer to arbitration, even outside of a
Court context potentially through, for example, trade association bodies.
Q.2
This was the most popular question. Candidates were able to refer to the need for
communication and were able to discuss the force of the general rule by reference to
appropriate case law. Some candidates provided full answers particularly by
reference to the appropriateness of the postal rule in the context of modern methods
of communication. Part B of the question was more challenging as many candidates
were unable to make the formal connection between the work of the Law
Commission in the context of promoting reform in Contract Law.
Q.3
Again, a popular question. Candidates spotted the doctrine of Promissory Estoppel.
Many candidates were able to refer to the doctrine of economic duress and credit
was given for relevant citation. Only the best candidates were able to discuss the
doctrine of Estoppel and its relationship to past consideration. Part B for some
candidates, proved challenging because of its application to the particular contractual
context. The development of the doctrine of Promissory Estoppel within the context
of the case law should have been fully discussed and especially the role of Lord
Denning in developing the doctrine further which is an example of judicial activism.
Q.4
Surprisingly, this was not a popular question. The legal issues related to the doctrine
of frustration and also common mistake. The best candidates could refer to the
nature of frustrating events and the doctrine of impossibility. In addition, the limits of
rescission should have been discussed. Part B proved to be more challenging. The
better candidates were able to refer to Section 6 and Section 7 of the Sale of Goods
Act 1979 (as amended) and the Law Reform (Frustrated Contracts) Act 1943 and
lastly the Misrepresentation Act 1967.
© WJEC CBAC Ltd.
9
LA3 - Understanding Substantive Law: Freedom, The State and the Individual
Option 02: Criminal Law and Justice
General Comments
The overall performance of candidates was satisfactory. Candidates generally performed
better on Paper LA4 than on Paper LA3. Several factors seemed to contribute to this. One
was that candidates did not always read the problem scenarios accurately and therefore had
difficulty identifying the salient facts and applying the relevant law. Even the part (b)
questions were sometimes misread, or else left out altogether. By contrast, candidates
appeared much more at ease with the straightforward essay format of Section A on Paper
LA4, and often performed very well on these questions. This suggests that some candidates
need to work on their examination skills, particularly with respect to relevance and timing.
Candidates also need to be prepared to meet questions which vary from those which have
been set in the past and to adapt their responses accordingly. More positively, there was a
noticeable improvement in candidates’ ability to connect their answers to part (b) with the
questions in part (a) in true synoptic fashion. However, the quality of spelling and grammar in
some scripts is becoming a real cause for concern. By way of a request to centres, it would
be extremely helpful if candidates could be asked to write the numbers of the questions
answered, in the order in which they were answered, in the box provided on the front cover
of the examination booklet.
Q.1
(a)
This was a popular choice as a first question. Many candidates produced
logical and well structured answers, starting with the actus reus and mens rea
of murder and then explaining how the rules of causation would apply to
Duncan’s unsuccessful attempt to kill Leah (which most candidates compared
to White). It was widely recognised that if Duncan’s attempt to dispose of
Leah’s “body” contributed to her death, then he would be treated as having
the requisite mens rea for murder throughout the whole sequence of events,
in accordance with the “single transaction” principle established in Thabo
Meli, Church and Le Brun. This prompted a considerable number of
candidates to state that Duncan would also be guilty of murder in respect of
Noel’s death, on the basis of transferred malice. There is no authority for
extending the single transaction principle to cover the unintentional killing of a
third party, but at least it showed that candidates were making a serious
attempt at legal reasoning. Negatively, however, it meant that involuntary
manslaughter was discussed briefly or not at all. Stronger candidates usually
set out the elements of constructive manslaughter, and a few also argued for
gross negligence manslaughter, on the basis that Duncan owed a duty of
care to anyone who might be in the vicinity of the car. Otherwise, this was
generally one of the weakest aspects of many answers, with limited
discussion and few references to case law. On the other hand, voluntary
manslaughter was frequently discussed, with many candidates explaining
diminished responsibility and loss of control in some detail before concluding
that there was no evidence for either. This more or less exemplified the
dilemma which many candidates face when it comes to achieving a balance
between focusing on what is relevant to the question and the temptation to
write down everything they know. Another example is the tendency to begin
any homicide question with a detailed discussion of every single aspect of the
actus reus, including the meaning of the Queen’s Peace, the abolition of the
year and a day rule and the definition of a human being. (Ironically, although
candidates often referred to the cases of Malcherek and Steel and Airedale
NHS Trust v Bland , they hardly ever related them to the problem.) Obviously
no candidate wants to risk leaving out anything important, so probably all that
can be said is that candidates should try to keep their answers within the
bounds of relevance. Irrelevant material is not penalised by any loss of marks,
but of course the danger is that candidates can become sidetracked into
wasting time.
© WJEC CBAC Ltd.
10
Q.2
(b)
This was a straightforward question about how a jury is selected in the Crown
Court. Most answers were at least adequate, and many were sound. The
majority of candidates referred to the Jury Act 1974 and the Criminal Justice
Act 2003, and provided information about eligibility to serve as a juror. A
number of candidates were able to discuss recent cases on the
appropriateness of a police officer or member of the legal profession serving
as a juror in certain circumstances. Some of the stronger answers made
reference to jury vetting and Khan and Abdroikov by way of discussion of the
selection criteria. There was also some discussion of Ford and whether
random selection should ever be compromised to achieve a balanced jury.
Answers on the whole were impressive, although sadly there are still a few
candidates who are not aware of the reforms in the Criminal Justice Act 2003.
(a)
This question was also a popular choice. The overall standard was good, with
virtually all candidates able to recognize and explain the common law
offences of assault and battery, together with the more serious statutory
offences under s.47, s.20 and s.18 of the Offences Against the Person Act
1861. It was the common law offences which were usually described in the
greatest detail, perhaps because some of the cases are quite memorable.
With regard to the statutory offences, candidates generally took care to
specify the kinds of injury that would come under each section and distinguish
them with examples from case law and the CPS Charging Standards. When it
came to the mens rea, candidates often referred to the requirement of
intention or recklessness, but omitted to say in relation to what. However, the
stronger answers were more specific and used cases, including Roberts,
Savage and Parmenter and Mowatt, to explain and distinguish between the
mens rea of s.47 and s.20 and the mens rea required for s.18. Oddly,
although many candidates recognised that an intention to resist arrest would
suffice for s.18, quite a number treated Tyrone’s punch as a common law
battery in spite of the degree of injury caused to PC Mac. A few candidates
briefly discussed manslaughter in case Myra had actually died. The
intoxication issue was dealt with extremely thoroughly by a small number of
stronger candidates, but a considerable number of answers either left it out
altogether or else dealt with it very superficially. It was hard to tell whether
candidates had simply not noticed that Percy and Tyrone were drunk or
whether they considered intoxication not worth pursuing as a defence on
these facts. Other defences were sometimes discussed, such as consent
(horseplay between Percy and Tyrone) or self-defence.
(b)
The majority of candidates were able to explain the role of the Criminal
Defence Service, including the Duty Solicitor Scheme in the police station and
the magistrates’ courts, and to provide at least an outline of the current
provisions for criminal legal aid. Many answers were complicated by
discussions of the Carter and Jackson reports and the Legal Aid, Sentencing
and Punishment of Offenders Bill 2012. Although this information was
generally more relevant to civil legal aid, it would have been unfairly harsh not
to allow credit to those candidates who were keen to discuss the potential
limitation on access to legal advice at the police station and the generally
tougher funding regime which the Bill appears to signal. Consequently, the
overall standard of answers to this part was satisfactory. However, there were
also a number of answers which revealed little or no understanding of criminal
defence arrangements, and offered suggestions such as that Tyrone and
Percy should enter a no-win no-fee arrangement, or seek advice from on-line
sources of legal advice.
© WJEC CBAC Ltd.
11
Q.3
Q.4
(a)
Candidates seemed to find this a challenging question, to judge from the
relatively low take-up and the generally weak responses to part (b). Although
part (a) asked candidates to consider whether Noah’s confession would be
admissible, it was usually approached as a general question about the
powers of the police under the Police and Criminal Evidence Act 1984, with
the admissibility of Noah’s confession being discussed by way of a
conclusion. The stronger answers were able to explain the grounds upon
which a confession can be excluded under s.76 or s.78 of PACE, and relate
these to the various breaches on the part of the police in the scenario.
However, these were outnumbered by answers which gave an (often very
detailed) account of the powers of the police in relation to stop and search,
arrest and detention, followed by a rather brief and general appraisal of
whether Noah’s confession should be admitted by the court. Most candidates
were able to give some examples of the kind of breaches which could lead to
exclusion, such as the failure to provide a detainee with access to legal
advice, interviewing a juvenile without an appropriate adult being present and
the use of deception or oppression to extract a confession. Only a minority,
however, were able to relate such breaches to the grounds for exclusion
under s.76 and s.78, and only the strongest answers included examples
drawn from case law.
(b)
It was clear that the selection of magistrates had not been widely revised, and
that some candidates were racking their memories for details. Most
candidates were able to explain the volunteer basis of the lay magistracy, and
that individuals may apply on their own initiative in response to advertised
vacancies. Most also knew that magistrates must be between 18 and 65
when appointed and must retire at 70. However, many answers omitted to
mention the role of the Local Advisory Committee and the six key qualities
required from applicants. Candidates sometimes referred to the 15 mile rule,
apparently unaware that this was replaced by the Courts Act 2003 with a
more flexible requirement that magistrates should come from the local area.
(a)
This was a popular second question, although its appeal probably rested
more on part (b) than part (a). A number of candidates managed to subtly turn
the question away from possible defences and towards a more general
consideration of Harry’s liability, which enabled them to write copiously about
the actus reus and mens rea of murder. However, the majority of candidates
sooner or later engaged with the issue of defences, and on the whole
demonstrated good application skills. The defence which was most often put
forward for Harry was private defence, in the form of self defence and/or
defence of another. This defence was generally well explained, with many
candidates noting the relationship between self defence and the defence of
prevention of crime under section 3 of the Criminal Law Act 1967. Most
candidates referred to the requirement that the force used must be
reasonable in the circumstances as the defendant believed them to be. The
case of Tony Martin was often referred to in this connection, which might
account for the fairly widespread misapprehension that the use of excessive
force in self defence has the effect of reducing murder to manslaughter. Many
of the stronger candidates cited Palmer and Clegg as authority that force
cannot be reasonable where it is not necessary, and that once Harry had
seized the gun it was not necessary to use fatal force against Evan. The
second most popular defence suggested for Harry was loss of control under
sections 54 and 55 of the Coroners and Justice Act 2009. It was widely
known that this provides a partial defence to murder, and many candidates
were able to explain the elements of the defence in detail. Other possible
defences were also canvassed by some candidates, including duress by
threats and duress of circumstances, although it was usually noted that
duress is not available as a defence to murder. A few scripts examined an
even wider range of defences, including insanity, automatism and intoxication
before concluding that they would not apply.
© WJEC CBAC Ltd.
12
(b)
Part (b) was almost always answered well. Candidates explained the
evidential test and the public interest test, and provided examples of the
factors which would be considered under each test. This in itself would have
been sufficient for a level 3 mark, but in fact the majority of candidates
provided a great deal more. Answers frequently explained that these tests
make up the Full Code test contained in the Code for Crown Prosecutors, and
discussed the reasons for the introduction of the Code and its various
modifications. Some answers provided a review of the Crown Prosecution
Service and its effectiveness. However, the most encouraging feature of
many answers was that candidates were able to explain how the tests would
be applied in the particular circumstances of Harry, thereby producing
answers which were genuinely synoptic.
© WJEC CBAC Ltd.
13
LA3 - Understanding Substantive Law: Freedom, The State and the Individual
Option 03: Freedom of the Individual and Protection of Human Rights
General Comments
The overall performance of this cohort was very satisfactory, with many candidates
demonstrating excellent knowledge and understanding of the law relating to human rights.
On the whole, however, candidates performed less well on Paper LA3 than on Paper LA4.
The reasons for this appeared to be specific to Paper LA3, and in particular to the choices of
questions made by candidates. Questions 1 and 2 were both very popular and generally well
answered in both parts. However, the trend was for candidates to pick one or the other as
their first question, and it was fairly unusual for candidates to answer both. Question 3 was
not popular, perhaps because candidates were put off by part (b) on parliamentary
sovereignty. Question 4 was a straightforward question on police powers which would
normally attract a large number of candidates, but in this instance it happened to be
combined with a question on appeal from the magistrates’ court. It appeared that not many
candidates had revised this topic, with the result that the marks for this question were
brought down by weak or even non-existent answers to part (b). By contrast, candidates
seemed to find Paper LA4 much more to their liking with only one synoptic question, and
produced scripts in which the performance was generally more even across all three
questions.
Q.1
(a)
This was a very popular question, and the quality of answers was generally
high. It was clear that candidates were well prepared to write about
defamation, with many candidates providing a textbook account of the various
elements of the tort. The elements of defamation were explained in some
detail, with reference to a broad range of cases including Sim v Stretch, Byrne
v Dean, Tolley v Fry, Charlesworth, Huth Cassidy and Watt v Longsdon.
Quite a number of answers recognised the presence of innuendo in the
problem, although not all candidates referred to it by name. The stronger
answers carried their knowledge over into application, and were able to show
the particular grounds on which Odie might bring actions against Celebrity
Trash and Terry Cotter. Other answers were more general in their
descriptions of the elements of defamation, but nevertheless demonstrated
some skill in application when it came to considering potential defences. As
would be expected, candidates recognised that Terry Cotter could rely on the
defence of absolute privilege with respect to his comments in Parliament, but
that this privilege would be lost when he repeated the comments in a
television interview. Some consideration was given to a possible defence of
justification, but it was generally concluded that this would fail due to the
faking of the photograph. This left candidates with qualified privilege on the
basis of Reynolds, and fair (or honest) comment. There were some very
sound applications of Reynolds, as well as many less detailed answers which
simply referred to the standard of responsible journalism, but the general
opinion was that the defence would fail on that very ground. With respect to
fair comment, quite a number of candidates were aware of the developments
resulting in the defence becoming rebranded as “honest” comment, although
hardly anyone referred to Spiller v Joseph by name. These candidates
appreciated that honest comment might be a viable defence for Celebrity
Trash provided Ryan and his editor could point to facts (e.g., Rose’s claim)
which supported an honest subjective belief that Odie was having an affair
with Rose. However, many candidates were clearly not aware of these
developments, and relied on the former position that fair comment had to be
based upon facts which could be shown to be true. Although plans to change
the law have been in the air for some while, the decision of the Supreme
Court in Spiller is too recent for it to be reasonable to expect all candidates to
have been aware of it. Therefore, equal credit was given for either version of
the defence.
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Q.2
(b)
This part was also generally well answered. Candidates explained the role of
the jury in the High Court, the country court and in the coroners’ courts as
well. Some of the weaker answers focused mainly on how juries are selected
rather than the role of civil juries as such, but most answers discussed the
comparative rarity of civil juries and the reasons for this. It was well known
that the Supreme Court Act 1981 gives a qualified right to jury trial in cases of
defamation, malicious prosecution, false imprisonment and fraud, but that
even this may be refused if the judge is of the opinion that the trial will involve
prolonged examination of documents or accounts, or any scientific or local
investigation that cannot conveniently be made with a jury. The practical
abolition of juries in personal injury cases after Ward v James and the high
levels of damages awarded by civil juries were also given as reasons for the
decline. Many candidates predicted that the civil jury will disappear altogether
owing to the great reduction in funding for civil litigation.
(a)
This was also a very popular choice. Candidates generally showed extensive
knowledge of public order law, including the powers of the police under the
Public Order Act 1986 and the Criminal Justice and Public Order Act 1994,
and also the common law powers of arrest and detention relating to breach of
the peace. Weak answers were few and far between, and seemed to be due
to candidates misunderstanding the question and assuming, for example, that
the problem related to police powers of arrest and detention under the Police
and Criminal Evidence Act 1984 rather than public order. The rest identified
the powers of the police in relation to the banning of processions and
trespassory assemblies, the powers to impose conditions upon processions
and assemblies under sections 12-14A of the Public Order Act 1986, the
offences under sections 4A and 4 of the Public Order Act 1986, and the
powers at common law in relation to breach of the peace. Not all answers
covered all of these elements in depth, but the stronger answers were
extremely knowledgeable and included references to cases such as Moss v
McLachlan, Howell, Percy, Laporte and Austin and Saxby, as well as such
fine details as the exemption from the notice requirement for spontaneous
processions in s.11 of the Public Order Act 1986. Given that candidates by
and large succeeded in covering a broad expanse of law in considerable
detail, it seems unfair to criticise the quality of application. Nevertheless, it
has to be said that many good answers could have been improved still further
if the links between the law and the scenario had been made more explicit. As
it was, the dominant approach was to set out the law and simply state that a
particular power was available to the police, rather than considering whether it
had been used appropriately in light of the rights to freedom of expression
and assembly under the Human Rights Act 1998 and the European
Convention on Human Rights. Some of the stronger answers did this
successfully, and thereby attained full marks.
(b)
Answers to this part were also of a high standard. There were a small number
of weak answers which relied more on urban myths than legal knowledge, but
for the most part candidates were able to explain the powers of the custody
officer to grant bail under sections 37 and 38 of the Police and Criminal
Evidence Act 1984, the grounds on which bail can be refused, street bail
under the Criminal Justice Act 2003 and the power to impose bail conditions
since the Criminal Justice and Public Order Act 1994. Numerous examples of
bail conditions were provided, including surrender of passport, curfew and the
use of tags. Some answers also referred to the Police (Bail and Detention)
Act 2011 which retrospectively empowers the police to keep a suspect on bail
for as long as they consider necessary, reversing Hookway v Greater
Manchester Police.
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Q.3
Q.4
(a)
Very few candidates attempted this question, in spite of its straightforward
character. This may have been because the category of protected information
in the scenario amounted to a variation on the category of defence which has
appeared regularly in previous years’ questions concerned with official
secrets, or it may be that candidates were disappointed by part (b). Whatever
the explanation, it attracted only candidates who had a good understanding of
how the Official Secrets Act 1989 works. These candidates were able to
reference sections 3 and 5 of the Act, and discuss the need for a damaging
disclosure together with the possible application of the statutory defences. On
the whole, this was a good performance by a small minority of the stronger
candidates.
(b)
Answers to this part went beyond an AS level explanation and provided a
genuinely synoptic account of parliamentary sovereignty. Candidates
explained the fundamental constitutional principle of parliamentary supremacy
within the separation of powers, and illustrated this by showing how the
Human Rights Act 1998 preserves parliamentary sovereignty. They also
discussed the impact on parliamentary sovereignty of the UK’s membership
of the EU, the devolution of certain powers to the Parliaments of Scotland and
Northern Ireland and the Welsh Assembly, and the influence of the European
Convention on Human Rights through the Human Rights Act 1998.
(a)
The question on police powers was less popular than in previous years. To
judge from the quality of responses to both parts, it was part (b) which put
candidates off. Answers to part (a) were very strong. All candidates were able
to explain and apply the powers of the police to stop and search under
sections 1-3 of the Police and Criminal Evidence Act 1984, with additional
references to Code A and DPP v Orum. The power of arrest under s.24 was
well explained by all but a few of the weaker candidates, and the conditions of
detention were discussed in detail, including the role of the custody officer,
time limits on detention under s.41, the right to have someone informed of the
arrest under s.56 and the right to legal advice under s.58 (referencing R v
Samuel), and the power to take fingerprints and DNA samples. Codes A, C
and G were referenced throughout. The strongest answers also discussed
Marper, Castorina, detention reviews and the admissibility of evidence. Of all
the problem questions, this was the one in which candidates demonstrated
the greatest skill in application of the law to the facts.
(b)
In view of what was said above, it was sad to find that many candidates either
performed poorly on this part of the question or else left it out altogether. This
inevitably meant that many marks were lost by candidates whose
performance on part (a) had been sound. It was also rather surprising that
these candidates were not better prepared, as the process of appeal from the
magistrates’ court is a standard topic. However, a minority of candidates
provided convincing answers which explained the routes of appeal from the
magistrates’ court to the Crown Court and the Divisional Court, and the
further route of appeal to the Court of Appeal (Criminal Division) and the
Supreme Court. Candidates were also able to discuss the procedure involved
in appeals, including the notice requirements, the need for leave to appeal to
the higher courts and the composition of the courts when hearing appeals.
Some candidates also referred to the Criminal Cases Review Committee, and
a few were aware of the power of magistrates’ courts under the Criminal
Appeals Act 1995 to rectify an error in their own decisions by means of a
retrial in front of a different bench.
© WJEC CBAC Ltd.
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LAW
General Certificate of Education
Summer 2012
Advanced Subsidiary/Advanced
Principal Examiners: Professor Iwan Davies
Dr Pauline O'Hara
Unit Statistics
The following statistics include all candidates entered for the unit, whether or not they
'cashed in' for an award. The attention of centres is drawn to the fact that the statistics listed
should be viewed strictly within the context of this unit and that differences will undoubtedly
occur between one year and the next and also between subjects in the same year.
Unit
Entry
LA4 01
LA4 02
LA4 03
42
835
228
Max Mark
75
75
75
Grade Ranges
A*
A
B
C
D
E
LA4 01
61
54
47
40
34
28
LA4 02
68
62
54
46
38
30
LA4 03
70
65
56
47
38
30
N.B. The marks given above are raw marks and not uniform marks.
© WJEC CBAC Ltd.
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Mean Mark
38.2
49.1
56.2
LA4 - Understanding Law in Context: Freedom, The State and the Individual
Option 1: Contract & Consumer Law
Q.1
This was a popular question. It required a straightforward book type answer. Most
candidates were able to refer to human rights as a source of English and Welsh law
and also the principle of declaring legislation as being incompatible. The significance
of the reform introduced by the Consumer Credit Act 2006 was also widely
discussed.
Q.2
Surprisingly, this was not a popular question. Better candidates were able to refer to
the definition of loss; the rule of mitigation; the need to approach loss from the point
of view of compensation. Only the best candidates referred to the interaction
between civil law and criminal law. Many candidates were able to refer to other types
of relief, for example, specific performance.
Q.3
This was a straightforward question. The Enterprise Act 2002 is an immense piece
of legislation covering both Competition Law and Consumer Law enforcement.
Candidates were able to focus upon the scheme for approving codes of practice and
also the new injunction regime. The role of the Office of Fair Trading was discussed
by a number of candidates. The best candidates were also able to refer to Part 8 of
the Act.
Q.4
This was a very popular question. Most candidates were able to refer to the
Common Law position and also, some were able to refer to the theory of the freedom
of contract and the development of welfare principles. The emergence of
consumerism and consumer protection legislation was widely discussed.
Q.5
Part A was a straightforward question. Candidates were able to refer to UCPD
implemented by the Consumer Protection from Unfair Trading Regulations 2008. A
number of candidates were able to refer to OFT guidance on Consumer Protection
from Unfair Trading Regulations and were able to make the connection with
misleading adverts in the context of the Consumer Protection Regulations. Part B
was also very accessible for candidates. However, only the best candidates referred
to the role of new consumer councils and also the various Ombudsman schemes.
Q.6
Again, a straightforward question. Candidates were able to refer to licensing of
consumer credit as being an important element of the Consumer Credit Act 1974 and
in particular the role of the Office of Fair Trading. Better candidates were able to deal
completely with the issues with led to the reform of the Consumer Credit Act and the
nine categories of business under the 2006 Act. The fitness test in applying for a
licence was discussed in detail by a number of the better candidates. Part B proved
to be challenging for some candidates. The general framework for EU activities in
favour of consumers in the five year strategy related to the need to empower
Europe's consumers or to enhance the economic and non-economic welfare of
Europe's consumers in terms of price, choice, quality and affordability were not well
treated by candidates. Very few candidates referred to the Green Paper from the
European Commission on Policy Options for the progress towards European
Contract Law for Consumers and Businesses (2011).
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LA4: Understanding Law in Context: Freedom, The State and the Individual
Option 2: Criminal Law & Justice
Section A
Q.1
This question was very popular and usually well answered. Candidates were
thoroughly prepared for this topic and produced long, detailed answers which were
often of sound quality. The background and reasons behind the creation of the
Crown Prosecution Service were well explained, with many candidates citing the
JUSTICE Report and the Philips Commission. Most answers described the various
problems encountered by the CPS in its early years, including the internal difficulties
linked to its structure and funding as well as its relationships with external bodies
such as the police and the courts. There were widespread references to the Narey
Report, the Glidewell Report and the Denman Report, together with explanations of
how their recommendations were implemented. As well as describing the historical
context, candidates provided information about the modern CPS, including the
acquisition of full rights of audience and eligibility for appointment to the judiciary, the
transfer of responsibility for charging in all but minor cases to the CPS by the
Criminal Justice Act 2003, the creation of CPS Direct and the introduction of the CPS
Inspectorate. It was good to see many candidates concluding their answers with a
well reasoned evaluation of how far the modern CPS is fulfilling the functions
originally intended for it, and indeed whether those original aims are still relevant. Not
all answers were able to achieve this degree of focus, but the high levels of
knowledge demonstrated by candidates generally made this the best answered
question on the paper.
Q.2
By contrast, this question was much less popular. It was mainly chosen by
candidates from certain centres who had clearly been very well prepared for this
topic. These candidates produced well rehearsed answers which addressed the
issue of whether necessity can be said to exist as a defence in its own right,
discussed the relationship between necessity and duress of circumstances, and were
fully supported with case law. Outside of this category there were also a number of
answers which varied in content. Some candidates interpreted the question as
relating to any situation in which a defendant might be said to be acting out of
necessity. Usually this involved discussion of private defence and duress by threats,
although some answers included loss of control and even intoxication. Answers
which gave prominence to private defence and duress tended to overlap with the
notion of necessity as a distinct defence. They cited a similar range of cases,
especially Re A (Conjoined twins), and on the whole provided a convincing response
to the question. There were also a number of answers which brought together
various defences such as consent, automatism, intoxication, and loss of control,
apparently on the basis that by allowing such defences the courts are recognising
that the defendant was unable to act otherwise. These answers had the appearance
of an attempt to construct a response out of material which had only the most
tenuous connection to the question, and were generally much less convincing.
Q.3
This was another extremely popular and well answered question. A substantial
number of candidates produced very sound answers, some of which obtained full
marks. Most answers in fact were of at least “adequate” standard, and made a real
effort to address the question by showing how the law of bail upholds the
presumption in favour of bail yet allows bail to be refused in certain circumstances.
Virtually every candidate referred to the statutory embodiment of the presumption in
s.4 of the Bail Act 1976, and a large number pointed out that the presumption is a
vital element of the general principle that every individual must be presumed to be
innocent unless found guilty. Many candidates linked this to the right to a fair trial
under Art.6 of the European Convention on Human Rights, either as part of their
discussion of the principle or later in connection with the Caballero case. Both police
© WJEC CBAC Ltd.
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bail and court bail were explained in some detail. Candidates set out systematically
the circumstances in which a custody officer can grant bail under the Police and
Criminal Evidence Act 1984, covering bail pending further enquiries, bail following
arrest under s.37 and bail following charge under s.38. They also explained the
grounds on which a custody officer may refuse bail, and the need in that case to
bring the detainee before the magistrates at the earliest opportunity. Street bail under
the Criminal Justice Act 2003 was also mentioned by most candidates. The process
of applying for bail before the magistrates’ court was well described, with appropriate
references to the circumstances in which bail can be refused under the Bail Act 1976
and the factors to be taken into account when making the decision. Candidates then
discussed the extent to which the presumption of bail has been modified by specific
provisions such as s.25 of the Criminal Justice and Public Order Act 1994 (as
amended by the Crime and Disorder Act 1998 in light of the Caballero case), the right
of the prosecution to appeal against a grant of bail under the Bail Amendment Act
1993, and the need for the decision to be made by a Crown Court judge where the
charge is murder, under the Coroners and Justice Act 2009. The granting of bail
subject to conditions was also covered in detail, with a good range of examples of
bail conditions. Most candidates provided a strong element of evaluation by referring
to cases where a bad bail decision has resulted in disastrous consequences, and
hence the need for some restrictions on the presumption of bail in order to protect the
public. All in all, this was a very well handled question.
Q.4
The responses to this question were more mixed, but for the most part candidates
provided strong answers which highlighted the defects of the current law and
addressed the issue of reform. Answers were often very detailed and included, for
example, an explanation of each of the elements of the M’Naughten Rules complete
with illustrative cases such as Bratty, Kemp, Clarke and Windle. Some weaker
answers ran into difficulties as a result of mixing up the rules on insanity with the
separate defence of diminished responsibility. However, almost all answers provided
an accurate explanation of automatism, illustrated with a range of cases including
Broome v Perkins, Hill v Baxter, Bratty, Lipman, and Burgess. Even the weakest
answers were usually able to explain the differences between insane and non-insane
automatism, citing Quick, Sullivan and Hennessey, and this ensured that all
candidates were able to identify and discuss at least one major area for reform. In
fact the majority of answers went further and criticised some procedural aspects,
such as the problem faced by defendants who wish to introduce medical evidence to
show that they lacked mens rea, but run the risk that the judge may rule their defence
to be one of insanity. There was widespread criticism of the rule that automatism
requires a complete absence of voluntary control, and some discussion of selfinduced automatism. A number of candidates referred to the Law Commission’s
proposals for reform of the law of insanity in the Draft Criminal Code.
Section B
Q.5
(a)
This question was very popular, and the majority of candidates responded
with detailed answers containing a wealth of case law. The quality of answers
suggested that candidates had prepared for a 25 mark question on this topic,
with the result that many candidates earned full marks. It was good to see
candidates focusing their answers squarely on the question and explaining in
detail the principles in Gammon v A-G of Hong Kong as to when the
presumption of mens rea can be displaced. The relatively few weak answers
tended to concentrate on the concept of mens rea itself, with detailed
explanations of the meaning of intention and recklessness, which may
indicate that some candidates misread the question.
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Q.6
(b)
Candidates who provided high quality answers to part (a) also tended to
demonstrate the same high standard in part (b), and often gained full marks
for the question as a whole. It was evident that statutory interpretation had
been thoroughly revised so that candidates were able not only to describe the
various approaches and illustrate them with case law, but to provide a
detailed evaluation of the relative advantages and disadvantages of each. It
was particularly pleasing to find candidates discussing the purposive
approach with reference to the Human Rights Act 1998 and the obligation
which it places on judges to interpret legislation in a manner compatible with
the European Convention on Human Rights. A further indication that the
topic had been well revised was that candidates often included references to
the rules of language and to internal and external aids. Although this was not
strictly demanded by the question (meaning that full marks could be achieved
without it), the overall impression of expertise was enhanced by the presence
of Latin terms correctly spelt and the discussion of when it may be
appropriate to refer to Hansard. Sadly, a small number of candidates
confused this topic with judicial precedent.
(a)
This question was nowhere near as popular as Question 5, and it was rare to
find an answer which was able to explain the work of the Sentencing Council
or even the Court of Appeal guidelines for the sentencing of adult offenders.
Instead, candidates concentrated mainly upon the aims of sentencing and the
types of sentences available for fulfilling those aims. This was all highly
relevant and was fully credited in the marks, but it did not entirely satisfy the
terms of the question. Consequently, the overall performance on this question
was lower than for Question 5.
(b)
This part of the question was sometimes omitted altogether, perhaps because
candidates were running short of time. There were a number of rather weak
answers which showed only a very superficial knowledge of the Rule of Law.
Generally, candidates were able to refer to the work of A.V. Dicey, and
occasionally to other theorists such as Lon Fuller or Joseph Raz, and to
describe some aspects of the Rule of Law which are of significance in a
modern society. These typically included the theory that governments are
bound by the ordinary law of the land, the principle that there should be no
punishment without a crime, and the principle that everyone is entitled to a
fair trial. The stronger answers also explained the rules of natural justice and
the separation of powers, and discussed the importance of the Rule of Law in
the context of events such as the policing of mass protests and the
accountability of the police generally, the detention of suspected terrorists
without trial, and other contemporary issues. However, these answers were in
the minority.
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LA4: Understanding Law in Context: Freedom, The State and the Individual
Option 03: Freedom of the Individual and Protection of Human Rights
Section A
Q.1
This was a moderately popular question which was usually answered well. The
majority provided convincing explanations of what a Bill of Rights would mean for the
UK, drawing upon comparisons with other jurisdictions such as the USA and Canada.
Most candidates referred to the intentions of the Conservative Party to introduce a
Bill of Rights and discussed the arguments for and against a UK Bill of Rights.
Candidates pointed out that the Human Rights Act 1998 is not entrenched and can
be repealed at any time just like any other piece of legislation. For many candidates
this was a reason why the UK needs a new constitutional document to uphold human
rights which would be immune to short-term political interests. Against this, it was
argued that an entrenched Bill of Rights would be too difficult to change, and that it
would violate the doctrine of the separation of powers by giving too much power to
the Supreme Court. There was also widespread discussion of the value of the HRA
1998 in protecting human rights within the UK, with candidates pointing to such flaws
as the lack of any mechanism to compel governments to uphold human rights, the
age of the European Convention on Human Rights on which the HRA 1998 is based,
the fact that the HRA 1998 upholds mainly civil rights but not social rights, and the
desirability of having a Bill of Rights specifically tailored to the circumstances of the
UK. Some of the stronger answers argued that the UK’s membership of Europe
made it unlikely that the UK could leave the Council of Europe, and that therefore a
UK Bill of Rights would not diminish the rights which are currently enjoyed and would
continue to allow UK citizens access to the European Court of Human Rights.
Answers were usually well supported with references to the HRA 1998 and examples
of relevant cases. All in all, this was a well rehearsed topic which produced very few
weak answers, and demonstrated the ability of many candidates to engage in
sophisticated argument.
Q.2
This question was not so popular, but it produced some good answers. Candidates
often like to introduce this topic with some historical background, and so many
answers began with interception of communications and the cases of Malone and
Halford. A small number of candidates seemed not to be aware that the Interception
of Communications Act 1985 has been repealed, and treated the Regulation of
Investigatory Powers Act 2000 as an addition. Generally, however, candidates
provided detailed explanations of the offence created by s.1 of RIPA, the need for a
warrant under s.5, and the role of the Commissioners and the Tribunal. Answers
usually went on to discuss surveillance, with the stronger candidates covering both
the “bug and burgle” provisions of the Police Act 1997 and Part II of RIPA. Most
answers included explanations of the different kinds of surveillance and the
authorisation provisions, while the stronger answers highlighted the flaws in the
system such as the powers of self-authorisation, the lack of judicial oversight, the
editing of reports to Parliament, and the defects of the RIPA Tribunal as a
mechanism of redress.
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Q.3
This was by far the most popular question. Candidates have become familiar with the
Equality Act 2010, although quite a large number still seem to think of it as simply the
latest measure which amends rather than replaces the previous jumble of provisions.
However, the majority of candidates identified the Race Relations Act 1976, the Sex
Discrimination Act 1975 and the Disability Discrimination Act 1995 as forerunners to
the Equality Act 2010, and were able to point to the need for consolidation and
simplification of the law. Almost all candidates were able to identify and explain the
protected characteristics, and to explain the meaning of direct and indirect
discrimination, victimisation and harassment. The stronger answers also explained
the meaning of perceptive and associative discrimination and dual discrimination.
Together, all these elements provided the central focus for the majority of answers,
and were usually accompanied by cases such as James v Eastleigh BC, Mandla v
Dowell Lee, Aziz v Trinity St. Taxi and Ahmed v LBC. There was also some
perceptive evaluation, with many candidates commenting on the lack of financial aid
and the practical difficulties of obtaining any kind of redress.
Q.4
This was another very popular question. Candidates wrote confidently about the
absence of a specific law to protect privacy, as shown by Kaye v Robinson, and the
potential conflict between the right to private life and the right to freedom of
expression given by Arts. 8 and 10 of the European Convention on Human Rights.
The development of the law of confidence as a way of protecting privacy was
generally explained through the use of case law, including Albert v Strange, Argyll v
Argyll, Stephens v Avery, Theakston, Campbell, Mosely and Douglas v Hello! In
addition, some of the stronger answers referred to the judgment in Venables., and
the impact of Mosely v UK and the refusal to allow prior notification. In the light of
current events, many candidates discussed the use of “superinjunctions” and how
these were easily undermined through the social media and Parliamentary immunity.
There was also some discussion of the Leveson Inquiry as a potential source for a
future law of privacy. Answers in general were evaluative and well informed about
current affairs, but it has to be said that many answers relied more upon the sheer
volume of case law cited than the ability to explain the reasoning behind the
judgments. For example, candidates often seemed unaware that the need for an
obligation of confidence has been relaxed in post-HRA case law. This seemed to be
related to the use of a particular formulaic description of the elements of breach of
confidence. Centres may wish to know about this, in case candidates are accessing
some source which is out of date.
Section B
Q.5
(a)
This was the less popular of the two-part questions, and it seemed that
candidates were attracted by part (a) rather than part (b). Part (a) was usually
answered well. Candidates worked their way logically through the Human
Rights Act 1998, explaining the contents of sections 2, 3, 4, 6, 7, 10 and 19,
and providing examples of case law including R v A, Bellinger, A and Others,
Poplar Housing, Aston Cantlow and YL v Birmingham. The weaker answers
tended to be much less detailed, but even here candidates were usually able
to explain the interpretative obligation under s.3 and the power to issue a
declaration of incompatibility under s.4.
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Q.6
(b)
This part was much less well answered, and in fact a number of candidates
simply did not attempt it. Most candidates were able to identify the literal rule,
the golden rule and the mischief rule, but the purposive rule was commonly
missed out. The stronger answers included illustrative case law such as
Whitely, Allen and Smith v Hughes. Some candidates drew on their
knowledge at A level to provide examples of cases where a particular
approach to interpretation had been overturned by a higher court, such as
Mandla v Dowell Lee. The strongest answers discussed the effect of the
Human Rights Act 1998 on the courts’ approach to interpretation and the
adoption of an explicitly purposive and human rights oriented approach in
such cases as Ghaidan v Mendoza and R v A. These candidates also took
note of the need to protect Parliamentary sovereignty against judicial lawcreation under the guise of interpretation. However, these answers were in
the minority, and many candidates were able to provide only a very general
description of the rules of interpretation, often without any reference to case
law.
(a)
This question was much more popular. Part (a) was usually answered well,
with a range of examples supported by legal authority. It seemed that all
candidates are now aware of the abolition of the crime of blasphemy, and had
turned their attention to more current issues including religious dress,
discrimination on grounds of religion, incitement to religious hatred and the
problem of offensive speech through the social media. Almost all answers
referred to Art. 9 of the European Convention on Human Rights and noted the
difference between the unqualified right to freedom of belief and the qualified
right to freedom of religious expression. Candidates also discussed the
prominence of Christianity in a multi-cultural society with reference to
education, the Monarchy and Parliament. Most answers were rich in case
law. Cases which featured in nearly every answer included Whitehouse v
Lemon, Wingrove v UK, Norwood, R v Denbigh High School, Nadia Eweida,
Azmi v Kirklees and Sarika Singh. In addition, some candidates
demonstrated sound knowledge with the inclusion of Ghia v Newcastle City
Council, Lillian Ledelle, McClintock and Surayanda v the Welsh Minister.
Generally speaking there were no weak answers to this question, and the
difference between levels reflected the breadth of knowledge and the quality
of discussion.
(b)
By comparison, part (b) was disappointing and answers generally lacked
substance. The majority of answers focused on the history of the European
Convention on Human Rights, and produced common sense-based
evaluations of its importance. However, a minority of stronger candidates
succeeded in developing good answers by focusing on the impact of a range
of cases. These included the on-going proceedings of Abu Qatada, Cahal v
UK, Malone v UK, McCann v UK, Khan v UK and Sunday Times v UK. Other
candidates, again in a minority, examined the incorporation of the ECHR into
UK law through the Human Rights Act 1998, and provided an evaluation of its
impact with the aid of such cases as R v A, YL, A and Others, and Bellinger.
This approach often developed into a discussion of the weaknesses of the
HRA 1998 as a method of delivering access to Convention rights, including its
lack of entrenchment, arguments about the power of the judiciary and the
sovereignty of Parliament
GCE Law Examiners Report/Summer 2012/ED
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