I've decided to write a small post on whether the law is too kind to criminals, particularly as they pass through the criminal justice system. I am in the process of writing a 12,500 word dissertation on the subject, and therefore any comments are very much welcomed.
The idea for my dissertation came together after some thought on the ways in which justice is achieved in our 21st century legal system. Herbert Packer proposed two conflicting models which may attempt to deal with 'justice' - the Crime Control system and the Due Process system. Much as its name suggests, the Crime Control system focuses on ensuring criminals are successfully convicted, even at the expense of breaching human rights such as the right not to be tortured. In contradistinction, the Due Process system believes human rights should be upheld and respected at all times, even at the expense of criminals walking free. Looking at these two systems caused me to question whether either system alone could, or indeed should, work in isolation to the other - and furthermore, whether a Crime Control approach to justice could ever be justifiable.
The two systems then led me to think about Utilitarian ideologies and whether it's right that one person should suffer so that the many may be happy - or in criminal respects, that one person might be treated unjustly by the system in order that a conviction is secured and society might be safe.
It has been overwhelmingly clear that, as a general principle, the UK's justice system tends to favour the Due Process approach. As the technically more 'just' of the two, I suggest that this is the safer option, particularly given the outrage and criticism that would ensue were police permitted to take more heavy-handed action with suspects. Nevertheless, it must be questioned as to whether the Due Process model has gone so far as to not only protect criminals, but aid them in their quest for acquittal.
One area of particular interest to me has been the issue of 'double jeopardy' - an 800 year old law which states that no person can be tried twice for the same crime. Whilst in principle this principle may have a number of merits including preventing the floodgates of litigation from opening, it has led to some abhorrent results. Take, for example, the murder of Julie Hogg. The 22 year old woman who was brutally murdered for refusing to have sex with a man. He then hid her body behind her bath panel, only for her mother to discover it rotting months later. Whilst her murderer should have been convicted at trial - with evidence such as his semen on the blanket she was wrapped in, his finger prints on her keys, and many of her belongings hidden under his floorboards - the jury failed twice to come to a unanimous verdict, and he was subsequently acquitted. Knowing that double jeopardy would protect him, Julie's murderer later confessed to his ex-wife and a prison officer that he had strangled her for refusing to have sex with him.
If you're interested in the facts of this case, they are readily available online; however, the important factor is that double jeopardy has since been abolished in England and Wales (although unfortunately not in Scotland) as a result of this case. Julie Hogg's murderer was given a life sentence and many others like him are now facing re-trials. Part 10 of the Criminal Justice Act 2003 now permits a re-trial where 'new and compelling evidence' is available. What I attempt to explore, inter alia, is whether reform of this law has gone far enough - for instance, is the requirement that the evidence be 'new' too high a standard or should we make it easier for suspects to be re-tried? I will also look at whether the courts are too readily dismissing improperly obtained evidence or overturning convictions based on 'unfair trials', thereby allowing many known criminals to escape justice.
Please give me your thoughts, I look forward to hearing them!
Equity and Trusts: Fully Secret and Half Secret Trusts: the difference
Fully Secret
There are no names of trustees or beneficiaries on the will, neither are there terms or any information.
Requires INTENTION, COMMUNICATION and ACCEPTANCE.
Leading case is Ottaway v Norman.
In the event of a failure of the secret trust, the intended secret trustee takes the trust property absolutely.
The trust will fail if the intended trustee dies before the testator.
Half Secret
The name of the trustee will be mentioned in the will but the terms of the trust and the beneficiaries will not be mentioned.
Also requires INTENTION, COMMUNICATION and ACCEPTANCE, however the 'communication' must be before the execution of the will and evidence will be inadmissible if it's not consistent with the terms of the will.
Leading case is Blackwell v Blackwell.
In the event of a failure to create the half secret trust, a resulting trust will be set up for the testator's legatees and next of kin.
The trust will not fail if the intended trustee dies before the testator.
Family Law: Void and Voidable Marriages
What appears to be a ceremony of marriage can either be:
1. A valid marriage
2. A voidable marriage
3. A void marriage
4. A non-marriage, a ceremony of no legal significance
The difference between divorce and nullity: where a marriage is annulled the law recognises that there has been some flaw in the establishment of the marriage, rendering it ineffective. Where there is a divorce the creation of the marriage is considered proper but subsequent events demonstrate that the marriage should be bought to an end.
The difference between a void marriage and a non-marriage: a void marriage is one where, although there may have been some semblance of a marriage, there is in fact a fundamental flaw in the marriage which means that it is not recognised in the law as valid. Distinguish from a non-marriage in which the ceremony that the parties undertook was nothing like a marriage and so is of no legal consequence. With a void marriage the court has the power to make financial orders, redistributing property between the couple. If the ceremony is a non-marriage the court has no power to redistribute property and the couple will be treated as an unmarried couple.
Hudson v Leigh [2009] 3 FCR 401, Bodey J: list of factors indicating a void or non-marriage:
(a) Whether the ceremony or event set out or purported to be a lawful marriage;
(b) Whether it bore all or enough of the hallmarks of marriage;
(c) Whether the three key participants (man, woman, officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage;
(d) The reasonable perceptions, understanding and beliefs of those in attendance.
The difference between a void and a voidable marriage: A void marriage is one that has never existed in the eyes of the law. A voidable marriage exists until it has been annulled by the courts; until then it is valid. NB: a child born to parties of a void marriage would be ‘illegitimate’. NB: any person may seek a declaration that the marriage is void, but only the parties to the marriage can apply to annul a voidable marriage.
Grounds on which a marriage is void: set out in the Matrimonial Causes Act 1973 s.11.
(a) that is it not a valid marriage under the provision of the Marriage Acts 1949 to 1986 (that is to say where- (i) the parties are within the prohibited degrees of relationship; (ii) either party is under the age of 16; or (iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage);
(b) that at the time of the marriage either party was already lawfully married;
(c) that the parties are not respectively male and female;
(d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales.
Referring to s.11(c) in which the parties must be male and female, a person can apply for a Gender Recognition Certificate where they wish to legally change gender.
Gender Recognition Act 2004 s.9(1) – “Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is female gender, the person’s sex becomes that of a woman).”
Gender Recognition Act 2004 s.2(1) – “(a) has or has had gender dsyphoria, (b) has lived in the acquired gender throughout the period of two years ending with the date on which the application is made, (c) intends to continue to live in the acquired gender until death.”
Grounds on which a marriage is voidable: set out in the Matrimonial Causes Act 1973 s.12.
(a) That the marriage has not been consummated owing to the incapacity of either party to consummate it;
(b) That the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it;
(c) That either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;
(d) That at the time of the marriage either party, though capable of giving a valid consent, was suffering from mental disorder within the meaning of the Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage;
(e) That at the time of the marriage the respondent was suffering from venereal disease in a communicable form;
(f) That at the time of the marriage the respondent was pregnant by some person other than the petitioner.
When considering lack of consent, this may be due to duress. Hirani v Hirani suggested that the test for duress should be based on the effect of the threat rather than the nature of the threat. In other words, the threats can be of any kind, but it must be shown that ‘the threats, pressure or whatever it is, is such as to destroy the reality of the consent and overbear the will of the individual.’ P v R (Forced Marriage) followed Hirani and held that severe emotional pressure could be such as to mean that there was no genuine consent to marry.
Approbation: Matrimonial Causes Act 1973 s.13(1) – “The court shall not... grant a decree of nullity on the ground that a marriage is voidable if the respondent satisfies the court- (a) that the petitioner, with the knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and (b) that it would be unjust to the respondent to grant the decree.”
NB: a decree of nullity will normally not succeed unless bought within three years of the date of marriage (unless the petitioner suffered from some mental disorder).
Effects of a decree of nullity: Matrimonial Causes Act 1973 s.16 – “A decree of nullity granted after 31st July 1971 in respect of a voidable marriage shall operate to annul the marriage only as respects any time after the decree has been made absolute, and the marriage shall, notwithstanding the decree, be treated as if it had existed up to that time.”
Reform of nullity: in 2008 only 200 annulments were granted out of the 331 petitions. The tiny numbers involved have raised the question as to whether we need such complex law on the area. There have been some debates over whether the concept of voidable marriage should be abolished. The Law Commission argued that voidable marriage should be retained as to some couples, it’s very important that annulment end their marriage and not divorce; e.g. for religious reasons.
Forced marriages: defined as where one person forces another to enter into a marriage without their ‘full and free consent’. Article 12 ECHR protects the right to marry; this includes the right not to be forced into a marriage against your will. A marriage of this type can be annulled on the grounds of no consent but forced marriages do not have their own legislation governing validity. In Re B; RB v FB and MA [2008] 2 FLR 1624 Hogg J described forced marriage as ‘abusive’.
It should be emphasised that there are no legal objections to arranged marriage, where the parents of the parties have a choice in who their child marries.
The Forced Marriage (Civil Protection) Act 2007 enables the court to make ‘forced marriage protection orders’ (FMPOs)
(Notes based on the Herring, Family Law text book)
Succession: Formalities for making a valid will
The formalities provide a safe-guard against forgery, undue influence and also hasty or ill-considered dispositions. Formalities can be justified by the need to provide reliable evidence of a person’s intentions.
Prior to the enactment of s.9 Wills Act 1837, there were different formalities for wills relating to different types of property; thus a will could be invalid for one type of property and valid for another. The idea behind s.9 was to create one system which was easily and generally understood. S.9 has been amended by the Wills Act Amendment Act 1852 and also by the Administration of Justice Act 1982 (s.17).
Thus s.9 now applies to all testators who die on or after Jan 1 1983. There are 5 requirements
1. The will must be in writing – although there are no restrictions as to the materials on which or by which it is written. It may be handwritten or typed. No particular form of words must be used. May be in pencil or ink or a combination (although ink is preferable).
2. The will must be signed – the testator does not need to sign his name, he may just mark the will in some way. Thus initials, stamp or a mark are sufficient if intended to be the signature. This is the case even if the testator’s hand was guided by another person in making the mark. The will may also be signed by another person in the testator’s presence and by his direction – that person may be one of the witnesses. If the will is written on more than one page, all the pages must be attached in some way so as to constitute a single testamentary document; the pages should be securely attached to reduce risk of fraud or accidental loss. The signature may be anywhere on the will document, following the authority of Wood v Smith [1993] Ch. 90 and the Administration of Justice Act 1982; originally it had to have been “at the foot or end” and thus nothing written after it would have been considered.
3. The testator must intend by his signature to give effect to the will – the original s.9 did not expressly state this, it was only implied. Now, the Act requires it to APPEAR as though the testator intended his signature to give effect to the will, but no proof is required.
4. The testator’s signature must be made or acknowledged in the presence of witnesses – two witnesses must be present at the same time; this requirement has not changed since 1837. The witnesses do not need to know that the document is a will, but they must be aware that the testator is writing – being in the same room is not sufficient on its own. The requirement is also not satisfied if the witness leaves the room before the testator completes his intended signature. If the witnesses were not simultaneously present during the testator’s signing of the will, they must subsequently acknowledge it in the presence of one another. For this acknowledgement: the will must have already been signed, the witnesses must see the signature or have the opportunity of seeing it (thus if the signature is covered up this won’t count), and the testator must acknowledge the signature by words or conduct (express acknowledgement is desired but gestures will count). NB: a blind person cannot be a witness or be mentally incapable – when the requirement says the witnesses must be present, this means body and mind.
5. The witnesses must sign or acknowledge – the witnesses need not sign in the presence of each other but must sign in the presence of the testator. The testator must be physically and mentally present and must have at least had the opportunity to witness the sign if he had chosen to look – without this requirement being met before both witnesses have signed the will becomes invalid. As stated above, a marking is sufficient as a signature and the signature may be anywhere on the will. Originally s.9 required ‘attestation and subscription’ i.e. attest (witness the signature) and subscribe (sign it at the foot/end). Now the witness must either attest and sign, or acknowledge his signature.
OTHER:
Attestation – if he acknowledges his previous signature, he is not required to attest and sign; but if he signs and does not acknowledge, he must ‘attest and sign’.
Presumption of due execution – where a will appears to have been duly executed but there is no proof of due execution, it may be inferred. Harris v Knight (1890) 15 P.D. 170, 179 used the maxim “omnia praesumuntur rite esse acta” meaning of a reasonable probability, and of the proprietary in point of law of acting on such probability.
Attestation clause – s.9 says no form of attestation is necessary although is highly desirable as it facilitates grant of probate. In the absence of an attestation clause, the district judge/registrar must require evidence of due execution of the will.
EU Law: Free movement of workers
Directive 2004/38 and Article 39 EC (now Article
45 TFEU)
No definition of a worker; allows the court to give it a
broad meaning and means that member states can’t interpret it restrictively.
The courts have said that, with regards workers, any definitions should be
given their ordinary meanings and that individuals should be doing ‘genuine’
and ‘effective’ work.
Common law
definitions of a worker have been set out in Lawrie-Blum, which said
that a worker is someone who provides services for another, for a set length of
time, in exchange for money; and Levin which said that part time workers
may still be regarded as workers as long as the work isn’t minimal or nominal.
Moving in search of
work is an issue not covered by Article 39 (now Article 45) but has been
dealt with by the common law. The authority of Royer established that
there is a right to reside in search of work, presumably drawing upon general
citizenship principles of the EU, drawing on Articles 20 and 21 TFEU. Levin
was slightly harsher in ruling that citizens should only be granted a maximum
period of 3 months in which to work, on the condition that they can provide for
themselves, without being reliant on the host member state’s finances. Finally Antonissen
was much more generous in ruling that individuals should be granted the right
to reside for a sufficiently long length of time, such that they have a good
chance at creating a link with the employment market. The current law in this
area is that member states must allow a minimum for 3 months residence for EU
citizens to look for work, however the UK is more generous and allows 6 months
residence.
Public service jobs
are not included under Article 45(4) TFEU as MS maintain the right to reserve
certain jobs for their own nationals. But Sotgiu said only the court
could determine which jobs are ‘public service’ jobs.
Right of residence
will be granted where the individual successfully secures employment. A
residency permit lasts for 5 years and is renewable. However, failure to find
work or a voluntary unemployment will result in a loss or lack of permit, as
demonstrated in Williams where the UK national was denied residency in
the Netherlands for unemployment.
Right to reside after
employment – concerns the retired and incapacitated workers. Those who have
retired from work are allowed the right to continue residing in the host member
state on two conditions. Namely, that the individual has reached the
retirement/national pension age of that member state, and that the individual
has resided in the host member state for the last 3 years, the final year of
which he was in employment. Incapacitated workers are subcategorised into those
who are incapacitated as a result of work undertaken in the host member state,
and those who are incapacitated due to a reason unrelated to the member state.
If the condition is the result of work in the member state then the individual
is automatically entitled to residency for life and a state pension; whereas if
the condition is from some other means, the individual must prove that he has
resided in the host member state for the last 2 years.
_________________________________________________________________________________
Dependants of workers
have been given rights as an extension of the principle of non-discrimination
on grounds of nationality. They are defined in Article 2 Directive 2004/38
to include the following family members: spouses, partners in a registered
partnership, direct descendants (children) who are under 21 or who are dependant,
and direct relatives in the ascending line including those of the spouse or
partner.
Family members does not include co-habitee although in Netherlands
v Reed the court made an exception as the national law of the Netherlands
did not distinguish between spouses and co-habitees, and therefore they could
not deny the right to a non-national where it would have been afforded to a
national.
Non-EU national
dependants - The case of Metock gave more rights to workers and
their families by providing that ANYONE who fell within the scope of Article 2
of the Directive was entitled to reside with the worker, whether they were an
EU or NON-EU NATIONAL. Furthermore, it changed the law which had previously
required dependants to have prior residence in another member state, and said
that the host member state could NOT LOOK AT PREVIOUS RESIDENCE.
The journal by C Costello on Metock said that
“...the ECJ’s rights-based approach supports a vision of residence rights in
which origins and belonging in the EU are decoupled.”
The journal by S Currie on Metock said that
“...the ruling enshrines a more equitable approach to third-country national
family members...”
Rights of dependants
include the right to EDUCATION, HOUSING, WELFARE and TRAINING. These are
particularly advanced by Regulation 1612/68.
Loss of rights
will occur either when the worker loses his rights, the dependant is separated
from the worker by divorce, or for example the child marrying off.
Death of the worker
won’t always result in the dependant losing his rights. He will retain the
right of residence if: 1) He had been residing with the worker in the host
member state for the past 2 years; 2) The worker was killed by an occupational
disease or industrial accident; or 3) He had previously had the nationality of
that member state but lost it on becoming a dependant of the worker.
NB: the rights earned in one member state won’t necessarily
transfer over if the dependant moves country. For example, pension schemes may
be lost on movement abroad.
_________________________________________________________________________________
Limitations on
workers and dependants are on grounds of public security, public health and
public policy. They are listed in Article 27 of Directive 2004/38. This means
that a citizen may be expelled from the host member state if he threatens any
of the above. The authority of Rutili has established that a member
state will only be able to export a citizen where “his conduct or presence
constitutes a sufficiently serious threat to public policy”. This now codified
in Article 27.
Van Duyn demonstrated that a country may only deport
or refuse entry to individuals, not groups of people. In this case a member of
the Church of Scientology was refused entry based on their beliefs and
intention to join other members in the host member state.
Finally, criminal convictions won’t always lead to
deportation. In Bonsignore the defendant had accidentally shot and
killed his brother with an illegally possessed gun. The courts said his
presence did not amount to a threat - unlikely to reoffend. However, in Bouchereau
the court said it was legitimate to deport the defendant as he had a long
history of drug convictions and had demonstrated a willingness to reoffend.
Article 28 of the Directive provides citizens with
additional protection by setting out criteria that a member state must consider
before authorising deportation.
The Legal Services Act
Check out this article on the effect of The Legal Services Act...
http://www.lawyer-monthly.com/media/Huthwaite.pdf
http://www.lawyer-monthly.com/media/Huthwaite.pdf
10 ways to boost a 'Law CV'
1) Join clubs and societies at university or college. They do not have to be related to practices in the legal profession, although your university's Law Society might be a good place to start. Showing an interest in sport or debating will also be useful at showing a potential employer your character outside of the working environment.
2) Visit your local Magistrates' Court (or, of course, any of the larger courts). This might sound tedious as many of the trials that occur in the lower courts concern petty theft, assaults and breach of a restraining order. However, as well as boosting your understanding of how the law works in practice, it should also give you a chance to show employers that you have an enthusiasm for developing your knowledge of the law outside of your studies.
3) Learn an instrument. Showing dedication to a particular interest will tell employers that you're a focused and well-rounded individual. Whether you teach yourself or decide to pay for professional music lessons, your new skill may make you stand out from other candidates - which can be particularly useful where the competition is fierce! Remember, you don't have to write your level musical ability on your CV, although many employers may ask in interview so you cannot lie!
4) Do some volunteer work. There will always be a huge range of opportunities in every town or city, you just need to know where to look. Working in a charity shop is an obvious way to get volunteering onto your CV, however you may wish to choose a project which best uses your skills, for example, artistic students may wish to help run an arts and crafts afternoon for the disabled. Volunteer work, as well as being a fantastic addition to your CV, is extremely rewarding and helps to build personal character. For those students who feel particularly passionate about volunteering, there are many -albeit more expensive- opportunities to help abroad in third-world countries.
5) Join your university's mooting or debating team. Mooting is the practice of 'playing barrister' in a mock trial. The activity is great for enhancing team work and public speaking skills, both of which are highly sought after by employers! For those students hoping to become barristers, mooting is a must. Most universities will offer both internal and external competitions, if not friendly moots. Alternatively, debating also looks great on CVs!
6) Get some legal work experience. Applying for placements with solicitors or mini-pupillages with barristers can be extremely tedious and disappointing. However, this reflects the state of the legal industry and unfortunately the process will be equally as difficult when you are applying for real jobs after graduation - making it even more essential that you secure your work experience placement! Applying to a range of firms is a great idea because although many of the larger firms will offer paid work, it's often easier to get some 'shadowing' work with smaller firms to start off with. For best chance at success, apply to firms throughout the year. Securing that placement will show employers that you have taken the initiative to learn more about the profession and also that you're sure about your career choice; it may also come in handy as a reference so be sure to make the most of each placement by being helpful and asking insightful questions.
7) Get some paid employment! It's always helpful to show an employer that you have a good understanding of general working life - from things as simple as being able to work with other employees, turn up for work on time and dress appropriately. Having a good reference from a former employer will impress any potential employers.
8) Go and see your university's careers and employability adviser who can help you make the most of your CV. A good CV should be clear, concise and should stand out from the crowd (see my earlier post on CV advice for help with what to include); it can often be hard to achieve this on your own so use the resources that are provided for you! Most employers will also want to see a covering letter - you should be able to get help with writing this too! A good covering letter should explain why you are applying, why you think you'd be suitable for the job or work experience, and finally why you chose to apply to that particular firm - this means tailoring each letter to specific firms which sounds tedious but is definitely worth it (employers can tell a unique letter from a blanket letter!)
9) Choose a lay out which best shows off your skills! For example, if you achieved a high over-all year mark by doing very well in some subjects but badly in others, you should not list what grade was achieved in each module, but simply state the over-all mark. If an employer wants to know specific grades then he/she will ask! If you have done lots of volunteering as well as paid employment and legal work experience, then put them all under separate headings rather than one broad category - you don't want an employer to miss something vital! You must state your A-levels but may choose to omit your GCSEs if they don't enhance your CV, although again, you may be asked in interview and cannot lie.
10) Double check everything before sending to a law firm! Your CV should be grammatically correct and should not exceed 2 sides of A4. It's a good idea to include an explanation of brief duties from each role, as well as any skills learnt, but do not waffle!
Good luck!
2) Visit your local Magistrates' Court (or, of course, any of the larger courts). This might sound tedious as many of the trials that occur in the lower courts concern petty theft, assaults and breach of a restraining order. However, as well as boosting your understanding of how the law works in practice, it should also give you a chance to show employers that you have an enthusiasm for developing your knowledge of the law outside of your studies.
3) Learn an instrument. Showing dedication to a particular interest will tell employers that you're a focused and well-rounded individual. Whether you teach yourself or decide to pay for professional music lessons, your new skill may make you stand out from other candidates - which can be particularly useful where the competition is fierce! Remember, you don't have to write your level musical ability on your CV, although many employers may ask in interview so you cannot lie!
4) Do some volunteer work. There will always be a huge range of opportunities in every town or city, you just need to know where to look. Working in a charity shop is an obvious way to get volunteering onto your CV, however you may wish to choose a project which best uses your skills, for example, artistic students may wish to help run an arts and crafts afternoon for the disabled. Volunteer work, as well as being a fantastic addition to your CV, is extremely rewarding and helps to build personal character. For those students who feel particularly passionate about volunteering, there are many -albeit more expensive- opportunities to help abroad in third-world countries.
5) Join your university's mooting or debating team. Mooting is the practice of 'playing barrister' in a mock trial. The activity is great for enhancing team work and public speaking skills, both of which are highly sought after by employers! For those students hoping to become barristers, mooting is a must. Most universities will offer both internal and external competitions, if not friendly moots. Alternatively, debating also looks great on CVs!
6) Get some legal work experience. Applying for placements with solicitors or mini-pupillages with barristers can be extremely tedious and disappointing. However, this reflects the state of the legal industry and unfortunately the process will be equally as difficult when you are applying for real jobs after graduation - making it even more essential that you secure your work experience placement! Applying to a range of firms is a great idea because although many of the larger firms will offer paid work, it's often easier to get some 'shadowing' work with smaller firms to start off with. For best chance at success, apply to firms throughout the year. Securing that placement will show employers that you have taken the initiative to learn more about the profession and also that you're sure about your career choice; it may also come in handy as a reference so be sure to make the most of each placement by being helpful and asking insightful questions.
7) Get some paid employment! It's always helpful to show an employer that you have a good understanding of general working life - from things as simple as being able to work with other employees, turn up for work on time and dress appropriately. Having a good reference from a former employer will impress any potential employers.
8) Go and see your university's careers and employability adviser who can help you make the most of your CV. A good CV should be clear, concise and should stand out from the crowd (see my earlier post on CV advice for help with what to include); it can often be hard to achieve this on your own so use the resources that are provided for you! Most employers will also want to see a covering letter - you should be able to get help with writing this too! A good covering letter should explain why you are applying, why you think you'd be suitable for the job or work experience, and finally why you chose to apply to that particular firm - this means tailoring each letter to specific firms which sounds tedious but is definitely worth it (employers can tell a unique letter from a blanket letter!)
9) Choose a lay out which best shows off your skills! For example, if you achieved a high over-all year mark by doing very well in some subjects but badly in others, you should not list what grade was achieved in each module, but simply state the over-all mark. If an employer wants to know specific grades then he/she will ask! If you have done lots of volunteering as well as paid employment and legal work experience, then put them all under separate headings rather than one broad category - you don't want an employer to miss something vital! You must state your A-levels but may choose to omit your GCSEs if they don't enhance your CV, although again, you may be asked in interview and cannot lie.
10) Double check everything before sending to a law firm! Your CV should be grammatically correct and should not exceed 2 sides of A4. It's a good idea to include an explanation of brief duties from each role, as well as any skills learnt, but do not waffle!
Good luck!
Police Powers: The right to peaceful protest
The right to peaceful protest
is protected under the Human Rights Act 1988. Britain has a long and distinguished
history of using peaceful protests to gain rights and change laws. In recent
years the police have been granted additional powers regarding public protests. Protesters should be aware of the rights, restrictions and legal consequences
of protesting.
Peaceful Protests
Peaceful protests are used
around the world to take a stand on issues that the public find important.
These protests range from civil rights marches against discrimination to
protests supporting nuclear disarmament. Protests and campaigns can make a very
real difference in changing policies and laws. Peaceful protests allow people
to come together to stand up against oppression from governments and can prove
to be a very effective way of promoting change.
The Convention of Human Rights
The Convention of Human Rights
contains a number of articles recognising the right to freedom of expression
and thought. It also recognises the right to assembly and for individuals to
come together to freely express themselves. The Convention also forbids
interference from governments and public bodies such as the police to interfere
with these rights. If the government or police do interfere then it is the
public’s right to use legal processes such as the courts to enforce their
rights.
The Police and Protests
Security measures in Britain
are a concern for the government especially with growing fears over terrorist
attacks. New criminal laws have been brought in that provides the police with
extra powers when it comes to terrorist activities and anti-social behaviour.
Peaceful protests in public space are a right but more and more public spaces
are being restricted. It is now easier for the police to make the peaceful
protest process difficult for demonstrators.
Key Factors to Peaceful Protests
There are a number of rights
and regulations that pertain to peaceful protestors. These rights include:
- The
right to assemble and protest on the public highway without permission
from the police, council or other authorities.
- Protestors
are not committing any crime as long as they are peaceful and do not use
violence or threatening behaviour
- Protestors
can assemble on the public highway as long as they do not completely block
rights of way
- Trespassing
on private land without permission is not a criminal offence
- Protestors
can be removed from private land forcibly but should not be arrested
unless they have used intimidation or aggravation
- Peaceful
protests are not unlawful providing conduct is kept reasonable
Protest and Police Powers
There are a number of ways
that the police will use their powers to keep crowd control during a protest.
These can take the form of “stop and search” if they have reasonable suspicion.
Recent changes have been made to stop and search laws so that the police can
stop and search people in certain circumstances without the need for reasonable
suspicion. The police can designate an area where people can be stopped and
searched without suspicion under section 44. This process has been used to
disrupt demonstrators, and the whole of London has been designated as a stop
and search area under section 44.
Breach of the Peace
The police also have the power
to arrest people if they feel a breach of the peace has been committed. The
police can also stop demonstrators if they suspect that a breach of the peace
may be about to occur. The use of anti social behaviour orders and dispersal
orders have also been used to either prevent individuals from protesting or to
break up protests. It is very important for protestors to use reasonable
conduct during protests to ensure that the police are not given any reason to
use force to break up a protest.
Injunctions
If demonstrators are
protesting in front of a company building or corporation then the company may
use an injunction to stop the protest. The injunction is a civil order and
there can be criminal penalties for protestors that breach the injunction.
Protestors can apply to the court and contest injunctions.
Peaceful protests are not
unlawful, and it is the public’s right to assemble and mount a protest in a
public place. So long as reasonable conduct and common sense are used during a
protest there should be no reason for the police to intervene and disrupt a
protest.
Contract Law: Basic principles of Duress
Duress refers to illegitimate pressure such as physical
threats, which is used for an improper objective – sufficiently serious enough
to gain the consent of the other party.
Threat of personal injury. Barton v Armstrong [1976] AC 104
concerned threat of death towards the managing director of a company, if he did
not arrange for the company to buy shares from the defendant. The court said
this was duress and the contract was voidable.
This case said that for duress to be established, it must be
shown that the claimant entered into the contract as a result of illegitimate
threats from the defendant (at least in part if not wholly).
Attorney General v R [2003] UKPC 22 was concerned with a
former SAS solider who published his experiences of the Gulf War despite having
signed a confidentiality agreement to say that he wouldn’t. The soldier claimed
that he only signed since he was threatened with removal from the SAS. Although
he originally won his case, on Appeal to the Privy Council it was held that the
Army were within their rights to restrict disclosure of information and the
pressure was not improper. Thus the confidentiality agreement was enforceable.
Lord Scarman identified two elements to duress:
1.
Pressure amounting to compulsion of the will of the victim.
2. The
illegitimacy of that pressure.
The threats do not need to be the sole reason for the
claimant’s agreement to the contract although they do need to be a part of that
reason. It is important to note that if a strong-willed claimant has shrugged
off the threats, duress cannot be accepted as a reasonable claim even if a
reasonable person might have been affected by them.
2 QUESTIONS: Were the
threats illegitimate? Was the claimant’s behaviour affected by these threats?
IF THE ANSWER TO BOTH OF THESE IS YES THEN THE CONTRACT MAY BE SET ASIDE. The
claimant may voluntarily enter into the contract, but it is still duress if
they have only done so as a result of the threats.
Did the claimant have any real alternative but to submit? The word ‘threat’ obviously carries some serious
connotations suggesting physical harm however its modern usage usually simply
means that the claimant is aware that to not enter into the contract will
result in a particular action by the defendant. Threat must not be mistaken to
mean ‘deliberate wrongdoing’ because in many circumstances, that is not the
case.
The terms ‘illegitimate’ and ‘improper’ also carry
connotations which suggest some deliberate wrongdoing on the part of the
defendant, however a more helpful term is ‘inappropriate’ and this allows us to
examine the reasonableness of the defendant’s conduct in the circumstance.
ECONOMIC DURESS – In commercial dealings, threats may often
be made as a means of encouraging the other party to contract but this does not
mean they will always be ‘improper’. E.g. “if you don’t contract we will take
all our business elsewhere.” However for there to be duress, the threat must
usually be unlawful. CTN Cash and Carry
v Gallaher [1994] 4 All ER 714.
North Ocean Shipping Co v Hyundai Construction [1979] QB 705
was concerned with the devaluation of the dollar and how this led to the demand
of more money for the construction of a tanker from the defendants. The court held
that this was duress because the defendant’s threat to break the contract had
no legal justification and left the claimants with no realistic alternative.
Atlas Express Ltd v Kafco Ltd [1989] QB 883. – Kafco were a
tiny company with a valuable relationship with Woolworths. Kafco employed Atlas
to deliver goods to Woolworths but Atlas made a miscalculation as to the
quantity of goods they could fit onto one lorry. Kafco were demanded to pay
more money for the extra journeys Atlas was going to have to make, or else
Atlas would not deliver at all. Kafco could not risk their relationship with
Woolworths and thus agreed to pay the extra but later refused to give the
additional sum under the defence of duress. They succeeded with their claim as the
courts held their relationship with Woolworths too valuable to jeopardise, and
said they had had no other choice.
Remedies for duress: The remedy the victim will be seeking
is ultimately to escape from the contract – RESCISSION (unmaking of a contract
or unwinding of a transaction). Damages are never available for duress, even if
the contract is rescinded.
EU Law: Gender equality and pregnancy - has the EU done enough?
The EU has undoubtedly made substantial progress with regards to the laws on gender equality, moving from ensuring equal pay for work of equal value, to equal treatment in the work place and most recently pregnancy. The Pregnancy Directive 92/85/EEC has provided additional rights for those women already in work
as opposed to those looking for work. The Dekker case, which occurred prior to
the creation of the Directive, certainly demonstrates why further law was
required in the area, as a woman was simply refused employment after interview
on grounds of being pregnant.
However, since the enactment of the Directive, there have
still been examples of discrimination. Webb for example, concerned an
employee on maternity leave who was replaced with another female, who turned
out to be pregnant. The employer dismissed the replacement woman on discovery
of her pregnancy. Tele-Danmark concerned a lady who was successful at
interview and was hired for the job, but later dismissed when the employer
found out she was pregnant. Interestingly, the job in this case was only
scheduled to be for a 6 month period, therefore it seems strange that the
employer would dismiss the woman, unless she was in the last stages of her
pregnancy, because she’d be able to complete most (if not all) of the work. In Melgar
the woman had worked for the company for approximately 15 years, having had her
contract renewed after each year of employment. However, on discovery of her
pregnancy, the employer refused to renew her contract and the courts said that
the employer must prove that the refusal to renew was based on some other
reason (e.g. no longer needed her or she was no longer fulfilling her duties)
other than pregnancy, otherwise he would be liable for discrimination.
Additionally, the case of Hertz demonstrated that the Pregnancy
Directive will not protect women outside of their pregnancy or maternity leave.
The woman was suffering from a pregnancy-related illness which caused her to
take considerable absences from work after her maternity leave. The courts said
that the employer was within his rights to dismiss her as the illness could no
longer be related to the pregnancy and the time limit fell outside of the scope
noted in Article 10 Pregnancy Directive.
However, whilst the laws on pregnancy discrimination may be deemed far from perfect when attempting to protect women, it is in the area of paternity leave that the law shows a serious lack of development. Indeed, every child has two parents and it seems puzzling that whilst the EU has shown an intolerance to all other forms of discrimination, they would not show due concern for the fact that women are legally allowed time off work to bond with their new child, but men must continue to work.
Cases such
as Hoffman, in which a father was refused the state maternity benefit whilst on unpaid
paternity leave, have demonstrated the severity of the situation. The court in Hoffman said that it had no interest in altering the gender roles from woman as mother and father as breadwinner. Similarly, Commission v Italy concerned a father who was refused the right to paternity
leave; again demonstrating that fathers were being discriminated against. Thankfully, the recent case of Roca-Alvarez
has shown a drastic change of heart with regards equal parenting rights; encouraging the notion of fathers gaining more and more rights. The Spanish
authorities in Alvarez said that fathers were able to use part of the mother’s remaining
maternity leave, when the mother returned to work. Interestingly, this is a
topical issue in current news (May 2012) as the UK government have proposed to extend the
rights of new fathers, allowing mothers in the UK to transfer the remainder of
their maternity leave to their partners, where previously UK law
had shown no interest in swapping gender roles.
Thus, whilst the EU has largely ignored the entitlement of males to take time off work to spend time with a new-born child, progress is finally being made some 10 years after the enactment of the Pregnancy Directive. However, whether that's down to the EU or individual member states is still under debate. Either way, it's clear that reform is still needed if men are to be given the same rights as their female counterparts; the benefits for men and women, were this to materialise, would be substantial. For males, the advantages speak for themselves - the chance to bond with their child, above all else! For females, the opportunity to return back to work following birth - it is often not fully acknowledged that women also have powerful and important roles aside from motherhood. It is also reasonable to assume that many of the on-going issues with discrimination against women on grounds of pregnancy would be combated if males were given the same rights to leave from work.
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