Examiners’ report 2012

Examiners’ report 2012

LA1031 Common law reasoning and institutions –

Zone B

Introduction
Good marks were awarded to those candidates that attempted to engage with the
question and produce a coherent argument that supports its conclusions. Those
candidates that deployed model answers, simply wrote out their notes or listed
detail were not awarded such good marks. Indeed, most of those who deployed
these methods failed or received a bare pass mark. Candidates are reminded to
work on essay writing skills or risk receiving low marks.
The main problem with CLRI examination answers is the repetition of model
answers; or, an approach to answering examination questions that involves writing
out notes verbatim in the hope that some of it is relevant.
The spread of marks saw a large banding around thirds and fails. This is not good,
and reflects the ongoing reliance on model answers, and a general failure to
understand what Section A requires. There were not enough good 2.2s and 2.1s,
and no firsts.
Answers to the first part of Part A tend to be universally poor. See below for some
tips as to how to approach this part of the examination. In terms of Part B, again as
mentioned above, people tend to rely on model answers and have poor essay
writing technique. The April 2007 newsletter hosted on the VLE outlines good essay
writing technique. Please take a look at this document:
https://laws.elearning.london.ac.uk/mod/page/view.php?id=1477. You must answer
the question to get good marks. On the whole Question 8 was well done. It is
necessary to point out (and to stress) that this question does not require an analysis
of the literal rule/mischief rule/golden rule. It can best be understood as a
comprehension exercise. See further notes below for guidance on how to approach it.

Specific comments on questions

Part A
Question 1
Candidates must answer this COMPULSORY question.
1. (a) Answer all questions
i. How would you find out which database contains a specific journal?
The Online Library's Journal Finder allows you to search a catalogue of the journal
titles where you can get the full text of articles. You will see a search box for the

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LA1031 Common law reasoning and institutions

Journal Finder on the right side of every page in the Online Library. Simply enter the
journal title and click on go. If your search finds any journal titles, for each title in the
results list there will be a link to the database where you will find the journal.
ii. Give two examples of databases you might use to find journal articles on a
topic.
The main examples are: JustCite, Justis, Lexis Library and Westlaw.
iii. How would you go about finding the following case in a database: Al-
Khawaja and Tahery v the United Kingdom [2011] ECHR 2127?
Use the Cardiff Index to Legal Abbreviations to find the full title of the law report
series. Then, you can check either the finding case reports online table or the
Journal Finder, to find out which database (Justis, LexisLibrary or Westlaw)
contains the full text of that particular law report.
iv. On which freely available database will you find the revised text of all
statutes since 1267?
Legislation.gov.uk
v. What does the abbreviation ER stand for?
English report.
(5 marks)
(b) Answer all questions
i. On which of the six topics was the essay which you submitted via the VLE?
What were your initial impressions of the issues posed and to what extent did
your understanding of the issues change as you carried out your research?
A good answer would outline the candidate’s first response to the topic (the
research question) and then go on to show how their thinking developed. Good
marks were awarded to detailed discussion of how the research changed first
impressions.
We will examine the responses to this question from a candidate who was reflecting
on the following research question:
‘Attaining a representative judiciary is difficult but necessary to ensure
confidence in the rule of law and to avoid decisions partial to any group in
society’ Assess the validity of this statement in relation to a jurisdiction other
than England and Wales.
Student extract
‘My initial impression was that given the prominence of the judicial issues
ongoing in Libya there would be sufficient material in addition to that
already identified for UK judicial issues. The impression changed over the
course of composition where it became apparent that the turbulence in
Libya meant that there was comparatively little academic or journal writing
on the proposed makeup of the not just the judiciary, but all areas of
government. Relatively few commentators were able to write due to the
ongoing nature of the Libyan revolution.’
Comment on extract
Note how this candidate has engaged with the specific problems of research in the
Libyan judiciary. They provide a clear description of how their initial understanding
of availability of resources changed, given the problems inherent in the area of
study. This theme is picked up in their answer to 1(b)(ii), where the candidate offers

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further reflections on the difficulties of researching a ‘live’ topic. However, they use
their initiative and discover a study of the Libyan judiciary published by Chatham
House. They then present further reflections on the fact that they had to rely on
journalistic material; and the relationship of newspaper reports to academic writing.
To return to this first and main point: this is not a general reflection on the
weaknesses inherent in ‘Google searches’ (a point most candidates make). It is a
real engagement with problems that come out of researching a particular topic.
Thus, their main point in response to 1(b)(iv) is that the ‘essay was written around
six months too early.’ The candidate concludes with comments on the efforts of the
Libyan NTC to ‘attain a representative judiciary’ that stress the difficulties of thinking
and writing about ongoing policy changes in a revolutionary situation.
ii Explain how you found source material. Which sources were of most use in
constructing your essay? Rank these sources in terms of their authority and
ease of understanding.
The marks in this question are for analysing the sources. For instance, the
discussion of any theme in a text book is necessarily general; and should thus be
linked to the way in which journal articles allow a more focused consideration of key
issues. To get good marks on this part of the question, a candidate needs to
discuss the articles they used and precisely how they were illuminating or not. Good
answers will also contain some reference to sources of law and the problems
experienced in understanding them.
iii Outline your conclusions and explain the extent to which they are justified
by arguments from the sources you have identified.
This part of the question is about relating conclusions to sources. Good marks for
precision and detailed analysis. There has to be a clear sense of how conclusions
and sources are linked.
iv. If you were to undertake the same research exercise tomorrow what, if
anything, would you do differently?
Most people approach this part of the question in a very mechanical way; repeating
something about starting their research process in a more timely fashion or reading
more material. To get good marks a candidate needs to be absolutely precise about
the questions that remain open after they have finished their research, and how
these questions might suggest a different way of thinking about the relevant area of
research.
(20 marks)
General remarks
The main problem (alongside not realising that this part of the examination is about
research method) is that of providing formulaic answers.
For general advice on Part A, see the May 2011 newsletter on the VLE:
https://laws.elearning.london.ac.uk/mod/page/view.php?id=1477.
Part B
Question 2
“The only real issue in the modern practice of precedent is the status of the
Court of Appeal.”
Discuss.

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General remarks
This question calls for sustained discussion of Schorsch Meier, Miliangos v George
Frank, Young v Bristol Aeroplane and Davis v Johnson. A good answer would
probably agree with the statement that forms the question. It would go on to review
the cases and take the 1966 Practice Statement as its key point of reference.
Clearly, the main issue raised relates to the Court of Appeal. An outstanding answer
might extend this argument, and qualify it a little, by reference to the relationship
between the domestic courts and the European Court of Human Rights in the wake
of the Human Rights Act 1998. It would then engage with Lord Denning’s reasoning
in Schorsch Meier, and the response of the House of Lords in Miliangos which
explicitly rejected Lord Denning’s approach. The next major focus for an intelligent
answer would be Davis v Johnson, and in-depth consideration of Lord Denning’s
reasoning, and his arguments in relation to Bristol Aeroplane and the claim that
‘every court of justice possesses an inherent power to correct an error into which it
had fallen.’ It would be necessary to conclude with some consideration of the House
of Lords in Davis and the final refutation of Lord Denning’s campaign to enlarge the
powers of the Court of Appeal.
Student extract
Note the following discussion:
‘Since the House of Lords issues their Practice Statement in 1966, they
have largely followed and enforced their own position. Despite repeated
attempts by Lord Denning to widen the scope of deviation from existing
precedent, they have maintained the position that the powers of the Court
of Appeal and the House of Lords are different. The Court of Appeal can
depart from its own decisions as elaborated in Young, but only on very
limited grounds.’
Comment on extract
This paragraph has the merits of pithy and focused analysis. It comes from the
beginning of the essay, and we can see how the candidate is dealing directly with
one of the major issues raised by the essay question. If one reads on in the essay,
these points are then developed in more detail. The reader thus gets the sense of a
carefully organised answer that responds directly to the question asked.
This answer draws on material in Chapter 3 of The politics of the common law.
It also makes reference to the online lecture at
https://laws.elearning.london.ac.uk/course/view.php?id=23 and material in Chapter
3 of the subject guide, The decision making of the courts and the doctrine of
precedent (in particular Section 3.4.4.).
Question 3
“Although it is impossible to ignore the fact that there are no minority judges
and only one woman on the UK Supreme Court, not much can be done about
this problem. The Judicial Appointments Commission has opened up the
process of appointment so that it is fair and transparent; the problem is that
there are not yet sufficient numbers of women lawyers or lawyers from
minority backgrounds who are ready to become judges.”
Discuss.
General remarks
An answer to this question needs to focus on the essential claim: although the
Judicial Appointments Commission (JAC) has opened up the process of judicial
appointments, it will take time for sufficient lawyers from minority backgrounds to be
appointed. It would be worth briefly outlining the way in which the JAC works, but,

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what would distinguish an answer is up to date figures on the ethnic composition of

the judiciary. Figures published in 2010 show that there are no justices from ethnic
minorities in the Supreme Court, serving as heads of divisions or lord justices of
appeal; 4 per cent of high court judges, 3 per cent of circuit judges and 7 per cent of
recorders, 4 per cent of County Court judges and 6 per cent of deputy district
judges were from ethnic minority backgrounds (annual ethnicity statistics 2010 at
www.judiciary.gov.uk/publications-and-reports/statistics/diversity-stats-and-gen-
overview/annual-ethnicity-statistics/stats-annual-diversity-statistics-2010). Given
that ethnic minority groups make up about 8 per cent of the population of the UK as
a whole, it would appear that the judiciary – especially the higher judiciary – are
some way from being representative. A good answer would also consider the
‘counter argument’, that today’s judiciary ‘reflects the type of person qualifying as a
solicitor or barrister ten or perhaps 20 years ago, because both types of lawyer
must gain a certain level of experience before applying to join the judiciary’ (ibid). A
good answer would offer some further meditations on this fact. To what extent, for
example, is it thus a question of ensuring meaningful equal opportunities in both the
professions and legal training more generally? Good answers will also make
reference to similar points to those discussed above drawn from the May 2011
discussion of the House of Lords Constitution Committee.
Question 3 draws on material in Chapter 9 (see, in particular, 9.5) of the subject
guide, Chapter 5 of The politics of the common law and the March 2012 newsletter
(https://laws.elearning.london.ac.uk/mod/page/view.php?id=1477).
Student extract
Commenting on the pace of reform, one candidate argues:
‘...we must embrace pragmatic evolution. There has been slow progress
so far. Solutions to the problems of judicial appointment will ultimately
depend on sufficient women lawyers or lawyers from minority backgrounds
entering the profession and making progress in their careers. We will
ultimately perhaps see significant changes in the composition of the
judiciary if such groups and encouraged and supported. It is unlikely that
simply ‘appointing’ to high office lawyers from such backgrounds would be
anything more than a quick fix; changes in the English legal system come
slowly, and thus the judiciary will not change overnight; it will, however,
change over time.’
Comment on extract
This paragraph comes from near the end of the candidate’s essay. Note how they
are providing a focused argument that deals with the issues raised by the essay
question. The analysis is interesting as it relates the issue of change in the judiciary
to the wider question of how legal institutions change.
Question 4
“The aims and objectives of the civil justice system are not best served by
solely emphasising efficient and well managed court processes or by solely
emphasising easily available alternative dispute resolution (ADR); instead a
balance of both is required. The trick is getting the balance right.”
Discuss.
General remarks
This question calls for an engagement with Lord Woolf’s reforms of civil justice. An
intelligent answer will start with the discussion of principles in the overview of the
final report, focusing on the idea of access to justice. These general principles can
then be read into, and used to assess more specific areas of reform. The question

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clearly requires a focus on case management and ADR. More specifically, the
question requires a consideration of the way in which principles of reform can
balance streamlining civil justice, with alternative ways of resolving disputes with the
traditional adversarial culture of civil litigation. Some disputes are not suitable for
ADR, and need to be resolved within a court. Does this lead to conclusions that are,
in Lord Woolf’s words, both just, fair and responsive to the needs of those who
make use of the civil courts? In assessing whether or not a balance has been
achieved, a good answer will make use of independent assessment of the reforms.
Even if a candidate does not do so, credit should be given to any answer that at
least raises the issue of how the ‘balance’ of the reforms can be assessed.
This answer refers to material in Chapter 9 of the subject guide; in particular, see
Section 11.2 and the relevant sections of The politics of the common law on ADR.
Question 5
“The Coalition government has used the need for fiscal austerity as a cover to
cut legal aid more deeply than New Labour ever tried. It would not be wrong
to say that there simply is no future for legal aid.”
Discuss.
General remarks
This relatively straight forward question is about the relationship between the
Supreme Court and Parliament. A good answer will make use of the House of Lords
Constitution Committee’s discussion of this issue that featured in the Recent
developments 2012 publication. Lord Phillips drew attention to the fact that the
Supreme Court does not just scrutinise executive action; it scrutinises parliamentary
legislation to see whether it is compatible with the human rights convention. Has
this produced a public perception of a more confrontational position between the
judges and Parliament? The quotation from Lord Sumption suggests that it has;
moreover, it is necessary to return to a more conventional position that stresses the
sovereignty of Parliament. Some discussion of the HRA is necessary – and a good
answer will also look at cases on prisoners rights and perhaps even the Otthman
ruling by the European Court of Human Rights (ECtHR). Outstanding answers will
also include some engagement with the idea of democratic legitimacy; perhaps
contrasting human rights-based arguments with those that are more focused on the
sovereignty of Parliament.
This question draws on material in the April 2012 newsletter
(https://laws.elearning.london.ac.uk/mod/page/view.php?id=1477), The politics of
the common law Chapter 5, the subject guide Chapter 9 (in particular Section 9.3),
and Recent developments 2010.
Question 6
"To understand the role of the Supreme Court, one has to see that
parliamentary scrutiny is generally perfectly adequate for the purpose of
protecting the public interest in the area of policy-making..[and]..It is also the
only way of doing so that carries any democratic legitimacy." (Lord
Sumption).
Discuss.
General remarks
A good answer has to begin with an assessment of the statement that forms the
basis of this question. Whether or not there is a future for legal aid means thinking
about the objectives of coalition legal aid reforms in the context of those of the
previous government. It is thus necessary, as part of the answer, to offer some

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assessment of New Labour approaches to legal aid. Given the constraints of the
question, this must be focused on a general assessment, and cannot go into too
much detail. Whether or not the candidate is more or less pro or anti New Labour
reforms, the fundamental point is that they at least tried to balance access to justice
with limitations to the legal aid budget. There is not much room – and nor is it
probably necessary – to talk about the shifting of the ‘burden’ of legal aid to the
individual and the insurance industry, as the Legal Aid, Sentencing and Punishment
of Offenders Bill does not strictly concern such matters. The Recent developments
2012 quotes Kenneth Clarke: The fundamental objective of the Bill is to ‘[reconcile]
the reduced but generous funding that fiscal reality requires, with the protection of
fundamental rights of access to justice for critical issues that no civilised society can
do without.’ In other words, this seems to be a continuation of New Labour
concerns. A good answer should perhaps go into some of the changes the Bill
attempts to achieve: amending the Access to Justice Act 1999 to limit the
availability of legal aid for civil cases. The Bill also ‘abolishes the Legal Services
Commission’ and builds on the findings of the Jackson review.
How are these reforms to be assessed? One might argue that they extend the New
Labour approach; legal aid is not ‘over’; rather the point is to re-focus provision.
The main concern behind the Bill is that costs have risen out of line with the issues
that the court is resolving (the Jackson review could also be mentioned). More
critical assessments that agree with the question could make use of other
information published in Recent developments 2012. For instance, the Trafigura
toxic waste ‘litigation’; the limitation of the ‘no win, no fee’ system that will affect up
to 600,000 ordinary people each year – the same number again as the legal aid
cuts.
This question draws on material in Recent developments 2012, Chapter 12 of the
subject guide (particularly Section 12.9) and Chapter 16 of The politics of the
common law.
Question 7
EITHER
(a) "The trial of the ‘Heathrow heist four’ and subsequent rulings by the Court
of Appeal show that a criminal trial can successfully take place without a jury
and still command public respect provided that we acknowledge that trial
without jury is an exceptional event."
Discuss.
OR
(b) "Fairness requires that decisions are made by adjudicators who, however
described, are independent and impartial."
Discuss with reference to Article 6 of the European Convention on Human
Rights.
General remarks
(a) Both Zone A and Zone B questions focus on ss.44 to 50 of the Criminal Justice
Act (CJA) 2003, R v Twomey, Blake, Hibberd and Cameron [2011] EWCA Crim; J,
S, M v R [2010] EWCA Crim 1755; KS v R [2010] EWCA Crim 1756. These cases
and the relevant information were featured in the Recent developments publication
earlier this year. In other words, a good answer will be focused on the issues raised
by ss.44 and 50 of the CJA 2003, and will not be framed at a general overview
level. A good answer will consider the development of the case law in relation to

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ss.44 and 50, and come to a considered conclusion on whether or not there are
sufficient safeguards for a trial to take place without a jury.
For information relevant to this question, see Recent developments 2012 and
Chapter 8 of the subject guide (see Section 8.8).
(b) A good answer will engage with the idea of fairness and link it to the notion of an
independent and impartial tribunal. The relevant cases are Incal v Turkey, Le
Compte, Findlay v UK and the subsequent cases on military justice. It would also be
necessary to consider the modification of the Gough test in Porter v Magill, and
offer a sensible assessment on the degree to which the Strasburg jurisprudence
has impacted on the common law. Good answers will also attempt to engage with
either what is ‘fair right and just’ – or what is entailed by the concept of ‘independent
and impartial’ – rather than just summarise the case law or offer a general overview.
This question draws on information from Chapter 10 of the subject guide, and
Chapter 11 of The politics of the common law.
Question 8
Read the following sections of The Search Warrants Act 2010 (a fictitious Act)
and advise on the situations that follow.
1 In order to obtain a search warrant, a constable has to show to a Justice of
the Peace that there are reasonable grounds for believing that an offence has
been committed.
2 A constable must also show that there is material on premises to be
searched which is likely to be of substantial value to the investigation of the
offence, and that:
(a) it is not practicable to communicate with any person entitled to grant entry
to the premises; and
(b) entry to the premises will not be granted unless a warrant is produced;
and
(c) the purpose of a search may be frustrated or seriously prejudiced unless a
constable arriving at the premises can secure immediate entry to them.
3 Search under a warrant must be at a reasonable hour unless it appears to
the constable executing it that the purpose of a search may be frustrated on
an entry at a reasonable hour.
4 When any person is present at the premises to be searched, the constable
shall identify himself to that person unless there are reasonable grounds to
suspect that notification of the fact of the search would lead to the
destruction or concealment of the evidence named in the warrant.
5 Search under a warrant may only be a search to the extent required for the
purpose for which the warrant was issued.
6 Items subject to legal privilege cannot be the subject of a search warrant.
7(1) Items subject to legal privilege are defined as communications between a
professional legal adviser and his client or any person representing his client
made in connection with the giving of legal advice to the client.
7(2) Items held with the intention of furthering a criminal purpose are not
items subject to legal privilege.

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8 A constable legally on premises can seize any property provided that there
are reasonable grounds for believing that the evidence relates to an offence,
and it is necessary to seize it to prevent it being lost or destroyed.
Advise on these situations:
(a) Constable Arnold wants to obtain authorisation to search and seize
property in Brian’s premises. There are strong suspicions that Brian has been
involved in handling stolen goods. Brian has access to a warehouse and a
private home address. The Police have evidence that the property is being
stored at the warehouse. Advise Arnold of the argument he needs to make to
the Justice of the Peace.
(b) Constable Clive has obtained a warrant to search the premises of Edith for
stolen computers. The warrant specifies that the search must be made in the
morning, but Clive suspects that this will alert the occupier of the premises
and so he enters the premises late at night. When Edith challenges Clive, he
states ‘get out of my way’ and pushes past her. He then proceeds to tear up
Edith’s floorboards as he believes that he will also find drugs that have been
concealed. Advise Edith as to the legality of the search.
(c) Constable Frank has a search warrant for the property controlled by
Graham. Frank serves the warrant at the correct time, and identifies himself to
Graham. Frank is searching for a stolen vehicle. He goes through desk
drawers in the premises and confiscates a folder of correspondence that
includes letters from Graham’s solicitor, as well as letters to Graham’s co-
accused, Helen. When searching another desk drawer, Frank finds a bag of
white powder, which he confiscates believing it to be drugs. Advise Graham
of the legality of Frank ’s search.
General remarks
(a) Under s.1 A needs to show to the Justice of the Peace that he has reasonable
grounds for believing that an offence has been committed. As the question states
that ‘there are strong suspicions that Brian has been involved in handling stolen
goods’ we can presume that this ground has been satisfied. The next issue is that
the search warrant must be for the warehouse rather than the private address.
Under s.2, A must also show that there is material on premises to be searched
which is likely to be of substantial value to the investigation of the offence, and that
it has not been practicable to communicate with B and that entry to B’s premises
will not be granted unless a warrant is produced. Finally, A must also show that ‘the
purpose of a search may be frustrated or seriously prejudiced unless a constable
arriving at the premises can secure immediate entry to them.’ It is worth reminding
A that the search must be at a reasonable hour (s.3); and that he should bear in
mind s.4. Furthermore, items subject to legal privilege cannot be subject to a
search. Any further discussion extends into the next two parts of the question, and
is thus probably not worthwhile.
(b) The focus of this part of the question is on s.3. C can enter the premises later
than the time specified on the warrant to the extent that ‘the purpose of a search
may be frustrated on an entry at a reasonable hour.’ A good answer would stress
that the language of the relevant section is rather vague: C does not have to have a
reasonable belief/suspicion: it merely has to ‘appear’ to C that the search would be
frustrated by the time specified on the warrant. This part of the question also raises
a s.4 issue. C does not identify himself, and it does not appear that there are
‘reasonable grounds to suspect that notification of the fact of the search would lead
to the destruction or concealment of the evidence named in the warrant.’ A good
answer will contain some analysis of this point. There also appears to be a breach
of s.5. This specifies that ‘search under a warrant may only be a search to the

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extent required for the purpose for which the warrant was issued.’ C appears to
believe that he will find drugs. However, C may be acting under s.8: so far as he is
legally on the premises, he ‘can seize any property provided that there are
reasonable grounds for believing that the evidence relates to an offence, and it is
necessary to seize it to prevent it being lost or destroyed.’ A good answer would
have to show that this section applies to the facts of the case.
(c) This part of the question is focused on issues relating to items subject to legal
privilege. There are clearly no issues about the service of the warrant, or F’s
identification of himself to G. There is a possible breach of s.5, but it depends
whether or not F is searching for documents relating to the vehicle. As far as the
white powder is concerned, it may raise a s.8 point, and a good answer would ask
questions about whether or not F was legally on the premises. As far as the seizure
of the correspondence is concerned, the starting point of analysis is s.6. To the
extent that the correspondence is subject to legal privilege it clearly cannot be
subject to a search warrant. The real issue relates to the definition of items subject
to legal privilege at s.7(1); a good answer will speculate as to whether or not the
correspondence might fall under s.7(2).
Student extract
Consider the following response from a candidate to this question:
‘While F can probably make a case for searching the for documentary
evidence relating to the theft of a car under s. 8 of the Act, he appears to
go beyond his authority in confiscating privileged items if they are in
connection to legal representations and the provision of legal advice. This
element of the matter will thus be determined by the contents of these
letters, and as a point of caution, if they contain material held with the
intention of furthering a criminal purpose, they will not be afforded legal
privilege and have been seized legitimately. This rationale extends to
letters to the co-accused Helen, in as much as their content and status
being subject to seizure under the terms of the Act.’
Comment on extract
This paragraph from 8(c) deals well with one of the central points raised by this part
of the question. The candidate identifies the issue and deals with it succinctly. As
they argue, whether or not the correspondence can be seized depends very much
on their content. It might have been worth going into some more detail on the s.8
point. How would F make a case for the search of the desk drawers? The point is
that they may contain documents that relate to the car or its whereabouts.
For guidance on answering this kind of question, see the January and February
2011 newsletters: https://laws.elearning.london.ac.uk/mod/page/view.php?id=1477.
Feedback on similar questions from the 2011 CLRI examination can be found on
the May 2012 newsletter.

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