LW189: Law in Action
Marking Scheme (May/June 2013)
Question 1
Explain the differences between public and private law
There is an important practical distinction between public law and private law. Private Law matters are seen as matters for individuals themselves to regulate without interference from the State (the
State simply provides the mechanism for deciding the issues and enforcing the decision). This means the parties are encouraged to come to their own solution. Public Law matters are seen as issues relating to the interest of the State and general public, and as such are to be protected and prosecuted by the State. This means that if a crime is committed the State can prosecute regardless of the feelings of the victim.
Public Law - concerns laws that relate to powers possessed by State bodies and governs the relationship between these bodies. a) Human Rights – concerns rights that individuals can hold against the State. eg the right to life and liberty b) Administrative Law – laws that permit individuals to hold the State to account for its public duties. eg the limits of the powers of public authorities. c) Criminal Law – laws which govern behaviour which the Government wishes to prohibit or regulate. Eg murder, stealing
Private Law - concerns relationships between individuals. a) Family Law – law governing relationships between spouses, children etc. b) Company Law – deals with relationships between companies or between companies and individuals. c) Probate – the law that deals with the estates of dead people. ie wills. d) Property Law – the law of ownership – subdivided into real property (land), personal property or chattel (e.g. cars), and intellectual property (copyright, patents, designs).
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Question 2 a) Describe the divisions within the High Court and their functions. b) Explain the function of Judicial Committee of the Privy Council a) Queens Bench: tort & contract, recovery of land.
Most cases heard by one judge sitting alone but can have jury for fraud, defamation. Within QBD there is a Commercial Court and an Admiralty Court. It has the largest workload of the 3 divisions and has some criminal jurisdiction. The Queen’s Bench Divisional Court hears appeals by way of case stated from both the Magistrates’ Court and the Crown Court where it has heard a trial de novo on appeal from the Magistrates’ Court. The court consists of two or more judges, one of whom will be a
Lord Justice of Appeal. It can only hear appeals on a point of law or because the magistrates have acted outside their jurisdiction. Both the defendant and the prosecution may appeal.
Decisions of the Queen’s Bench Divisional Court bind all lower courts (including the Crown Court).
The Divisional Court is bound by the Court of Appeal and the Supreme Court.
Chancery Division: Deals with trusts, mortgages, revenue matters, administration of estates of deceased persons, company law, partnerships and bankruptcies. Specialist courts = Patents Ct. and
Companies Ct.
Family Division: Deals with wardship, defended divorces, adoption, and other aspects of family law e.g. proceedings under Human Fertilisation and Embryology Act 1990, Domestic Violence and
Matrimonial Proceedings Act 1976 b) The Judicial Committee of the Privy Council is the final appeal court for a number of jurisdictions beyond the UK, including some Commonwealth countries. These decisions are not binding on the
English Courts, but may be persuasive where the law is similar. However the extent of influence should not be under estimated. It also appeals from tribunals dealing with misconduct of doctors, dentists, opticians and vets
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Question 3
John has been convicted shop lifting. Explain to John the routes of appeal from the magistrates court
There are four possible routes of appeal:
 The magistrates can rectify an error they have made under s.142 Magistrates’ Court Act 1980.
The case is retried before a different bench where it would be in the interests of justice to do so and the sentence can be varied.
 A defendant who pleaded not guilty may appeal as of right to the Crown Court on the grounds of being wrongly convicted or too harshly sentenced. If the defendant pleads guilty, he can only appeal against sentence. The court will rehear the case and will either confirm the magistrates’ sentence or impose any sentence the magistrates might have imposed – which may be longer than the original sentence.
 Either the prosecution or the accused may appeal on the grounds that the magistrates have made an error of law, or acted outside their jurisdiction. The magistrates are asked to ‘state their case’ for their decision to be considered by the High Court (why it is known as appeal by way of case stated). Magistrates can refuse to state a case if they feel the appeal is vexatious or futile. The appeal will be heard by the Divisional Court of the QBD. This decision can be appealed to the House of Lords providing the question is one of public importance.

The Criminal Appeal Act 1995 established the Criminal Cases Review Commission. This body is responsible for bringing potential miscarriages of justice in the Magistrates’ Court to the attention of the Crown Court.

Question 4
Provide a definition of equity and identify the types of equitable remedies available
Equity can be defined as the body of principles and rules developed and administered by the Court of
Chancery (before the Judicature Acts 1873-1875). Maitland referred to equity as
‘a gloss on the common law’
, meaning equity cannot stand alone as a separate and complete legal system.
Remedies – Are an alternative to damages. All equitable remedies are discretionary.
Injunction - an order of the court compelling or restraining the performance of some act; there are three types of injunction:

Interlocutory injunctions are designed to regulate the position of the parties pending a

 hearing.
Prohibitory injunction orders a defendant not to do something in breach of contract.
A mandatory injunction requires a defendant to reverse the effects of an existing breach.
With prohibitive injunctions, a court, in the exercise of its discretion, will not be influenced by the fact that the defendant's compliance with the injunction would be unduly onerous or that the breach would cause the plaintiff little prejudice. However, with mandatory injunctions, a court will apply the
'balance of convenience' test, refusing relief if the hardship caused to the defendant by compliance with the order outweighs the consequential advantages to the plaintiff.
The general rule is that an injunction will not be granted if the effect is to directly or indirectly compel the defendant to do acts for which the plaintiff could not have specific performance. For example, to require performance of a contract for personal services.
Warner Bros v Nelson [1937] 1 KB 209
Page One Records v Britton [1968] 1 WLR 157.
2 Specific performance - an order of the court compelling a person to fulfil a promise or agreement;
Specific Performance
.
Beswick v Beswick [1968] AC 58
3. Rescission - an order restoring the parties to their pre-contractual position; and
4. Rectification - an order rectifying a written agreement that does not correctly embody the terms agreed, so as to give effect to the agreement between the parties.
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Question 5
In order to carry out their task in accordance with the provisions of the European Union Treaties the
Council and the Commission are empowered to adopt regulations, directives, decisions, recommendations and opinions. Explain these terms with reference to the empowering articles
Art 288 TFEU provides that regulations, directives and decisions are ‘binding’ and are therefore legally enforceable.
Regulations
Under Art 288 TFEU ‘a regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States’.
Directives
Art 288(3)-‘a directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods’.
Member States are under an obligation to achieve the aim or purpose of a Directive. They are not directly applicable.
Directives are directed at M/S. Unlike Treaty Articles directives are conditional. They depend on the
M/S giving effect to them. This can cause problems as M/S sometimes either simply do not implement directives by the date required or implement them in such a way as to fail, in whole or in part, to achieve their objectives. Directives come into force on the date specified in the directive or, if no dateis specified, 20 days after publication in the Official Journal.
Decisions
Decisions are binding in their entirety on those to whom they are addressed. No further implementation is required by the M/S.
Recommendations and Opinions
These have no binding force and are not therefore legally enforceable. They do have persuasive value however and Member States are bound to take them into account when interpreting Union law measures, where they throw light on the purpose of the legislation.
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Question 6
Explain and critically analyse how recent reforms have affected the independence of the judiciary.
Most constitutional theories require that the judiciary is separate from and independent of the government, in order to ensure the rule of law - that is, to ensure that the law is enforced impartially and consistently no matter who is in power, and without undue influence from any other source.
The doctrine of the "separation of powers" has traditionally proposed that the state is divided into the separate and distinct arms of Executive, Legislature and Judiciary, whereby each arm acts as a "check and balance" on the others. The origin of the concept of separation of powers can be traced back to ancient Greek philosophy, but its true origins as a recognisable principle can be traced to the work of the English philosopher John Locke and later, the French philosopher Montesquieu
However, until recently this doctrine was not strictly observed in the UK, with the Executive (the
Government) drawn exclusively from members of the Legislature (Parliament), while in the office of the Lord Chancellor the three arms were fused: the Lord Chancellor was a Cabinet Minister, a member of the House of Lords and head of the Judiciary. The Lord Chancellor’s role changed drastically as a result of the Constitutional Reform Act 2005. The Lord Chancellor is now no longer sits as a judge, heads the judiciary or is as important in the judicial appointments process.
The key changes brought in by the act include:
A duty on government ministers to uphold the independence of the judiciary, barring them from trying to influence judicial decisions through any special access to judges.
Reform of the post of Lord Chancellor, transferring his judicial functions to the President of the
Courts of England and Wales – a new title given to the Lord Chief Justice. The Lord Chief Justice is now responsible for the training, guidance and deployment of judges and represents the views of the judiciary of England and Wales to Parliament and ministers.
An independent Supreme Court has been established; separate from the House of Lords and with its own independent appointments system, staff, budget and building.
An independent Judicial Appointments Commission, responsible for selecting candidates to recommend for judicial appointment to the Secretary of State for Justice. The Judicial
Appointments Commission ensures that merit remains the sole criterion for appointment and the appointments system is modern, open and transparent.
An independent Judicial Appointments and Conduct Ombudsman, responsible for investigating and making recommendations concerning complaints about the judicial appointments process, and the handling of judicial conduct complaints within the scope of the Constitutional Reform
Act.
The independence of the judiciary has been bolstered in recent years by the enactment of the Human
Rights Act 1988 resulting in an increase in the judicial role as interpreters of legislation and, it could be argued, has significantly increased the power of the judiciary to challenge the validity of legislation.
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Section 3(1) HRA provides that:
'[s]o far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights’
. The section applies to legislation existing at the time of enactment of the HRA as well as future legislation
Section 4 - The courts have no power to strike down legislation that is incompatible with ECHR rights. However, the court may make a declaration that the provision is incompatible with an ECHR right.
For example, i n A and Others v Secretary of State for the Home Department [2004] UKHL 56 The
Judgement in A and others v Secretary of State for the Home Department (No 1) [2004] UKHL compelled the Government to withdraw a derogation lodged to Article 5 with respect to individuals detained on suspicion of involvement in terrorist activities. See the Human Rights Act 1998
(Designated Derogation) Order 2001 (SI 2001/3644)). That derogation was withdrawn in 2005 and the Government introduce new powers in the form of control orders.
Question 7
‘The outcome of mediation is not about JUST settlement it is just about settlement.’
Discuss with reference to to civil justice reforms relating to alternative dispute resolution.
The quote above refers to the opinion of Hazel Glenn(Hamlyn Lectures ‘Judging Civil Justice’ 2009) where the focus was on issues relating to developments in alternative dispute resolution.Drawing on research findings from England and abroad, she considered why the judiciary and government have been vigorously promoting mediation, and what mediation offers as compared with traditional settlement and adjudication. She observed that although the Woolf report was called ‘Access to
Justice’ some commentators (Zander) have argued that the purpose of the reforms was to provide more access and less justice. In her view modern justice reform was about neither more access nor more justice, but was simply about diverting cases from the courts and legal aid. It has been agued that ADR had been used as an excuse to save public money.Indeed legal aid may be refused if ADR has not been considered. ( Criterion 5.4.3 Funding code).
The Woolf reforms led to the introduction of the Civil Procedure Rules (CPR) in 1999. In his final report on access to justice in July 1996, Lord
Woolf referred to his reforms as creating a ‘new landscape’. People would be encouraged to start court proceedings only as a last resort and to use pre-litigation ADR instead. For example the Pre-
Action Protocol for Personal Injury Claims 2.16 states that parties are warned that if the protocol is not followed (including this paragraph) then the Court must have regard to such conduct when determining costs.’ Although ADR is not compulsory, it is clear that there are sanctions as to costs which could infer that parties may feel under pressure to undergo ADR.
In Halsey v Milton Keynes General NHS Trust [2004] 1WLR 3002 the factors to be taken into account in determining whether a party has unreasonably refused to mediate were set out. These include the nature of the dispute; merits of the case; use of other settlement methods; costs of mediation; risks of delay; and whether the mediation has a reasonable prospect of success.
In Rolf v De Guerin
[2011] EWCA Civ 78, which Rix LJ referred to as “a sad case about lost opportunities for mediation”, the Court of Appeal exercised its discretion to make no order as to costs on the basis that the defendant’s refusal to participate in settlement negotiations or mediation was unreasonable (CPR 44(5)) and ought to bear materially on the exercise of the court’s discretion.
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By contrast, in Swain Mason v Mills & Reeve [2012] EWCA Civ 498 the Court of Appeal held that the defendant had not been unreasonable in refusing to mediate, finding that where a party reasonably believed it had a watertight case that might well be a sufficient justification for refusal to mediate, even if on some issues the defence did not in fact succeed.
In a speech in March 2012 on the role of ADR and the aims of his civil litigation costs review, Lord
Justice Jackson pointed out that the Halsey factors have been considered in a decreasing number of cases since 2005 because more parties are willing to mediate. However it remains that That ADR is strongly encouraged through the risk of costs sanctions. A new initiative, the Court of Appeal’s automatic referral to mediation pilot scheme for personal injury, clinical negligence or contract claims worth £100,000 or less, stop short of compulsory ADR, however it could be considered as robust shifting away from courts which favours settlement rather that just outcomes. There is no doubt that there are many benefits relating to the use of ADR (see below for examples to discuss), however there are also risks (see below for examples to discuss). As Hazel Glen argues, the risk of encouraging settlement rather than achieving justice must be considered when promoting a shift away from the court system.
Student may discuss some of the benefits and risks as below
Benefits
 Courts can risk making a bad situation worse. Using mediation, where you talk to each other to find a solution you can both live with, can help preserve an ongoing relationship. This might be useful if you have a dispute with your neighbour, your ex-partner, your child’s school, or your landlord.
 There is a much wider range of outcomes with ADR than with courts. Mediation or an ombudsman investigation may well be more appropriate than court if your main aim is an apology, an explanation, or a change in policy or practice by an organisation.
 ADR processes are more flexible than the court process. Most ombudsmen will investigate your complaint through letters and documents, without a formal hearing. Mediators will usually bring both parties together for a face to face discussion. Acas will try to negotiate a deal through a series of phone calls.

When it works, mediation can produce a win/win solution. Mediators try to generate creative discussions about a range of options. Rather than just aiming for an acceptable compromise, they will try to end up with an agreement which reflects the best possible outcome for all involved. This can have an effect on what happens afterwards. Research on family mediation indicates that agreements reached through mediation are more likely to work out in practice, and to last longer, than those imposed by a court. Virtually all of the mediated agreements made in small claims cases are complied with - hardly any need enforcement action by bailiffs.

Ombudsmen have the power to investigate problems in depth, and, like courts, can require information to be provided by the organisation complained about. Unlike courts, they are free to the user. Poorly performing local authorities and government departments can be named and shamed by the public services ombudsmen. If your problem is a symptom of much wider problems with a particular council or public body, then the ombudsman can investigate one complaint, and suggest wide-ranging changes in practice to make things better for everyone.

Some ADR options provide a remedy where there are few other practical, affordable options; this could include issues such as neighbour disputes about noise or low-level anti-social behaviour, or complaints to the Financial Ombudsman Service about financial service providers.
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Risks in using ADR

There are some situations when ADR may not be appropriate, and may even carry a degree of risk for one of the parties. It is a good idea to get some independent legal advice about this. It is important for solicitors and legal advisers to use their professional judgement in each case, but these are some of the factors you should think about:
 There may be an imbalance of power between the parties, which could make face-to-face mediation unfair. This could include family or neighbour mediation where there has been violence or the threat of violence; or mediation between an individual and a large organisation such as a local authority, where the size and resources of the organisation could put the individual at a disadvantage.
 There may be an urgent need (for example to prevent eviction) which requires an immediate legal remedy.
 Mediation and ombudsmen do not provide a legally binding, enforceable outcome, so if the aim of court action is to force a debtor to pay up, or to compel a local authority to meet its obligations, then court may be a better option.
 Agreements reached in mediation do not act as precedents in future cases. They are private, confidential, and not open to public scrutiny. If you need to establish a point of law that other people can rely on, you may need to go to court.

You cannot rely on legal rights and human rights in ADR processes.

Ombudsmen investigations can be very slow.

Although ombudsmen can make compensation awards, they are often lower than is likely to be achieved in court. If you need a significant sum of money in compensation, then you are likely to get a higher award through the court.

There are no consistent quality standards or regulation for ADR providers, so it can be hard for advisers or their clients to know how to choose a good service.
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Question 8
“The duty of the courts is to interpret the words that the legislature has used; those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited.
Lord Simonds in Magor and St. Mellons R.D.C. v Newport Corporation [1952] A.C. 189 at 191
In the light of this statement, examine the rules of statutory interpretation and provide an analysis of the extent of the power of judges when interpreting statutes.
Constitutionally, statute law is the supreme form of law within the United Kingdom, subject to compatibility with European Union law and the Human Rights Act 1998. Hence, once a statute is properly enacted it is accepted as authentic. The principles of parliamentary sovereignty dictate that all the courts can do is to interpret and apply it, ie, give effect to the plain meaning of the statute, however much the court may disagree with the result. Once Parliament has passed an Act, it then falls to the courts to apply the statute in a particular case. This can lead to difficulties where the facts of the case may not have been envisaged by Parliament or where there exist drafting errors or ambiguity in the statute.
In general, it can be said that the courts do what they can to make sense of the text which may have been poorly drafted or interfered with in Parliament. If this occurs, the judiciary is presented with a problem they must try to resolve. The Interpretation Acts 1889 and 1978 are designed to help and standardise interpretation, but are of limited scope. Therefore judges use a variety of aids to help them find the plain meaning of words.
The judiciary has formulated various tools (or, rules) which they use to interpret ambiguous statutory provisions. However, it must be borne in mind that these rules are merely optional tools. It is not unreasonable to assert that judges reach their decision about what result they want (consciously or not) and then select the rule which will support, or justify, that result.
The Literal Rule
If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expund those words in their natural and ordinary sense. The words themselves alone do, in such a case, best declare the intention of the lawgiver. (Lord Tindal CJ, in Sussex Peerage Case (1884) 8
ER 1034).
Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they consider the consequences of doing so would be inexpedient, or even unjust or immoral. (Lord Diplock, in Duport Steels Ltd v Sirs [1980] 1 All ER 529 at 541).
Under this rule the literal meaning must be followed, however this can lead absurd results, as can be seen in the following cases:
Whitely v Chappell (1868) LR 4QB
London and North Eastern Railway Co v Berryman [1946] AC 279
Fisher v Bell [1961] 1 QB 394
R (on the application of Haw v Secretary of State for the Home Department (2006)
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The Golden Rule
There was a feeling among members of the judiciary that application of the literal rule produced results which were plainly unsustainable. Thus, an ‘escape route’ was developed in the form of the golden rule. Thus, where the literal rule would produce an absurdity, common sense would be used instead. It must be noted that this rule is not used just because the literal interpretation is unfair; application of the literal rule must create absurdity or inconsistency within the statute. The assumption is that it could never have been the intention of Parliament to enact a statute which would create this result.
The classic expression of the golden rule is found in River Wear Commissioners v Adamson (1877) 2
App Cas 743:
Examples of this rule can be seen in the cases below:
Re Sigsworth [1935] Ch 89
Maddox v Storer [1963] 1 QB 451
R v Allen [1985] AC 1029
Adler v George [1964] 2 QB 7.
The Mischief Rule
The mischief rule examines the original purpose of the particular provision under consideration. It is known as the rule in Heydon’s Case (1584) 3 Co Rep 79 because that is the case which sets down four questions for the interpretation of the provisions of a statute
1. What was the Common Law before the making of the Act?
2. What was the mischief and defect for which the Common Law did not provide?
3. What remedy the Parliament hath resolved and appointed to cure the disease of the
Commonwealth.
4. The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress continuance of the mischief … according to the true intent of the makers of the Act.
Examples include the case below:
Smith v Hughes [1960] 1 WLR 830
Elliott v Grey [1960] 1 QB 367
Royal College of Nursing v Department of Health [1981] AC 800
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The identification of the mischief is done by reference to matters in the preamble to the statute, reference to any interpretation using sources outside the statute was traditionally disliked, even
Hansard (the official report of Parliamentary proceedings), However, recent trends in statutory interpretation demonstrate a willingness to depart from such constraints. In Pepper v Hart [1993] AC
593, one issue for their Lordships was whether, where a piece of legislation was ambiguous or obscure, the court could use Hansard (the official transcript of Parliamentary proceedings) as an aid to interpretation. It was held that the rule prohibiting courts making reference to parliamentary material as an aid to statutory construction should be relaxed so as to permit reference to parliamentary materials where: a) the legislation was ambiguous or obscure or the literal meaning led to an absurdity; b) the material relied on consisted of statements by a minister or other promoter of the Bill which lead to the enactment of the legislation together if necessary with such other parliamentary material as was necessary to understand such statements and their effect; and, c) the statements relied on were clear.
The Purposive Rule
The purposive rule of interpretation is sometimes linked with the Mischief rule as both take a similar approach; there is, however, a distinction in that the Purposive rule is slightly wider than the Mischief rule as it looks at the social and economic context of the Act, and is in part influenced by European
Union jurisprudence. In R v Secretary of State for Health exp Quintavalle [2003] UKHL 13, Lord
Steyn (at para 21) observed that:The pendulum has swung towards purposive methods of construction. An example can be found in Pickstone v Freemans plc [1989] AC 66. The case concerned an appeal on the provisions of the Equal Pay Act 1970, which was derived from the principle of equal pay contained in art. 141 [ex. 119] EEC Treaty.
Further it is clear that European Union legislation demands that all parliamentary legislation must be applied in accordance with European law. (S2(4) European Communities Act). Also Section 3 of the
HRA 1998 obliges the judiciary to interpret legislation, ‘so far as it is possible to do so’, in a manner that is consistent with Convention rights. This may well involve a strained interpretation of the Act under consideration:
R v A (Complainant’s Sexual History)
[2001] 2 WLR 1546. If a higher court feels unable to interpret legislation compatibly with Convention rights then it may make a declaration of incompatibility under section 4 of the HRA
Students may also discuss policy issues --
Bromley London Borough Council v Greater London Council [1983] 1 AC 768
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Question 9
The principal aim of the youth justice system is defined, in statute, as the prevention of offending by children. Critically discuss whether the youth justice system is achieving this aim?
The Crime and Disorder Act of 1998 provided the legal framework for substantial changes to how youth justice services were managed and delivered. These changes included:
 Establishing the National Youth Justice Board for England and Wales (Section 41(1)) an executive non-departmental public body whose responsibilities include monitoring the youth justice system
 Setting National Standards for the provision of youth justice services (Section 41(6)) and responsibility for the commissioning and purchasing of secure facilities for juveniles on remand and under sentence (Section 41(1)).
 Requiring local authorities and key partner agencies, including the police, probation and health to establish multi-agency youth offending teams (YOTs) in order to deliver a range of youth justice services.
The Crime and Disorder Act of 1998 defined the youth justice system in England and Wales as the system of criminal justice insofar as it relates to children and young people (Section 42(1)). It also defined that the principle aim of the youth justice system was to prevent offending by children and young people and required all persons and agencies working in the youth justice system to have regard to that aim (Section 37 (1) and (2)). The Criminal justice Act 1991 created the youth court - a purely criminal court for young people aged ten to eighteen, the objective of this was to create a separate system which would differentiate young offenders.
The Crime and Disorder Act 1998 Section 65(1) established that A first offence may result in a reprimand, warning or a prosecution. A first offence will often warrant a reprimand; however a warning rather than a reprimand will be given where the first offence is considered too serious to justify a reprimand. If the offence is viewed to be of a more serious nature it may result in prosecution. However there is no requirement that either the child or young person or his/her parent or guardian consents to the administering of the reprimand or warning. If the offender is under the age of 17, it must be administered in the presence of an appropriate adult.
Police and Criminal Evidence Act 1984 Section 34(5)(b)Before deciding on whether to charge or make a reprimand or final warning, the police have the power to bail a young person in order to refer the case for assessment to a youth offending team. The YOT are required to undertake an assessment of the offender, and unless it considers it inappropriate to do so, arrange a rehabilitation programme
(Crime and Disorder Act 1998 section 66(1) and(2)). The purpose of a rehabilitation programme is to rehabilitate participants and to prevent them from re-offending (Crime and Disorder Act 1998 Section
66(5).
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A young offender can be subject to a trial in the Crown Court if the offence is a grave crime. This is conducted in the same way as an adult trial, however the trial process for young offenders has recently been reformed due to a ruling of the European Court of Human Rights T v UK & V v UK (2000) 30
EHRR. A grave crime is defined in section 91(1) Powers of Criminal Courts (Sentencing) Act 2000.If a youth is convicted on indictment of a grave crime, the Crown Court may pass a sentence of detention under section 91(3) Powers of Criminal Courts (Sentencing) Act 2000 for a period that does not exceed the maximum period of imprisonment that can be imposed on a person aged 21 or over.
Where a youth offender is jointly charged with an adult, the charge shall be heard in the adult magistrates court: Section 46 (1) CYPA 1933. In every either-way or indictable only case, the court must only commit or send the youth offender to the Crown Court for trial with an adult where it is necessary in the interests of justice to do so. In considering whether or not a youth offender should be committed for trial to the Crown Court with an adult co-accused, prosecutors should assist the court to exercise its discretion to commit the youth by making representations.
The age of criminal responsibility, aged 10 years within England and Wales is one of the lowest internationally. The UN Committee on the rights of the child has recommended on two occasions, most recently in 2007, that the age of criminal responsibility in the UK breaches the UN Convention on the Rights of the Child and should be raised.The presumption of doli incapax was abolished by section 34 of the Crime and Disorder Act 1998 for 10 to 14 year olds. Recent case law has considered whether the concept of doli incapax is a free standing principle at common law it was suggested that, although the presumption of doli incapax had been abolished by the 1998 Act, the concept survived and could be raised by a child as a defence.
Crown Prosecution Service v P [2007] EWHC (946) Admin,
Lady Justice Smith (obiter)
The issue has now been reconsidered by the Court of Appeal in:
R v T [2008] EWCACrim 815
The Court considered Parliament’s intention in passing section 34 of the 1998 Act. The Court ruled that, since the government had rejected an option of reversing (as opposed to abolishing) the presumption, the abolition of the presumption was intended to abolish the concept of doli incapax entirely. See R. v JTB 2009] 3 All E.R. 1
There have been many criticisms that the age of responsibility is too low.
Statisitic show a very high rate of re offending with regards to young offenders.
Students may reach their own conclusion
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