THIS PAPER IS NOT TO BE REMOVED FROM THE EXAMINATION HALLS

UNIVERSITY OF LONDON LA1031 ZB

DIPLOMA IN LAW / CertHE COMMON LAW

DIPLOMA IN THE COMMON LAW
LLB
BSc DEGREES WITH LAW

Common law reasoning and institutions

Friday 13 May 2016: 10.00 – 13.15

Candidates will have THREE HOURS AND FIFTEEN MINUTES in which to

answer the questions.

Candidates must answer the COMPULSORY question in PART A, TWO from

the EIGHT questions in PART B and the COMPULSORY question in PART
C.

NOTE: Candidates may detach the sections of the Anti-social, Behaviour and
Policing Act 2014 from pages 8 to 11 of this question paper for ease of
reference in answering Question 10.

Candidates should answer all parts of a question unless otherwise stated.

Permitted materials
None.

© University of London 2016

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PART A

Candidates must answer this COMPULSORY question.

Parts (a) to (d) of Question 1 are about the seen case EK (Ivory Coast) v The
Secretary of State for the Home Department [2014] EWCA Civ 1517

1. (a) What are the material facts of the case? (5 marks)

(b) What was EK’s claim before the Court of Appeal?

(3 marks)

(c) On what grounds does Sales LJ distinguish the EK case from

that of Doody? (3 marks)

(d) Explain the reasoning of Floyd LJ in his dissenting judgment.

(9 marks)

(e) Read the extract below and answer the questions that follow.

In Miah (2013) the applicant was refused leave to remain

as a Tier 2 (General) Migrant at a time when he was two
months short of the five years’ continuous residence
necessary to support a case for indefinite leave to remain
under the rules. It was argued that, in assessing whether
his removal should be permitted under article 8.2 of the
Convention, the weight to be given to the maintenance of
immigration controls should be diminished because he
had missed satisfying the rules by only a small margin.

This argument is based on a misconception. The

Secretary of State is entitled to have a policy and that
policy normally creates a legitimate expectation that it will
be applied to those falling within its scope. The law
knows no ‘near-miss principle’; those falling just outside
the policy should not be treated as though they were
within it. There is a general administrative desirability of
applying known rules if a system of immigration control is
to be workable, predictable, consistent and fair as
between one applicant and another. Good administration
and effective control is lost if a system is perceived by
applicants to be unpredictable.

(i) Explain, in your own words, what the ‘near miss’ was in
Miah and why it was significant. (2 marks)

(ii) For what reasons was the ‘near miss’ principle rejected?
(3 marks)

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PART B

Candidates must answer TWO questions in this section.

2. Using examples from relevant cases explain how section 3 of the

Human Rights Act 1998 has affected the approach of the English
judiciary to statutory interpretation.

3. “[Judges] continue to perform their vital historic role of developing the

common law responsibly, making changes incrementally only where
these are considered to be necessary to respond to changing social
conditions, values and ideas.” Lord Dyson MR (2014)

Discuss this statement with reference to relevant cases.

4. What is meant by ‘judicial independence’ and why is it thought to be

essential to the rule of law?

5. “We are persuaded that a quota system is now necessary to ensure

the fair and proportionate representation of women and other minorities
at senior level in the judiciary.”

Explain this statement and say whether you agree or disagree with the
proposal for reform.

6. Why has there been an increase in litigants in person in the courts in

recent years? What difficulties do they face and what measures are
being taken to assist them?

7. “Mediation is not about just settlement, it is just about settlement.”

Discuss this statement and the extent to which mediation contributes to

civil justice.

8. “Litigants – and the public – must have confidence that the court’s
decision will be based only on the evidence which was seen and tested
by all parties.”

Discuss this statement in light of recent cases concerning jury bias and
use of the internet.

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9. “The system for correcting miscarriages of justice is an important mark
of the quality of a criminal justice system.”

How effective is the system for correcting miscarriages of justice in

England and Wales?

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PART C

Candidates must answer this COMPULSORY question.

10. On 30 April President Oden of Odensia (a fictitious country) was due to

make an official visit to the United Kingdom and, as part of his visit, to
go to Buckingham Palace. A group of 10,000 people from Odensia
announced that they would block the road on Constitution Hill (a short
road leading directly to the Palace) to stop the President’s car reaching
the Palace. On 25 April the TV News interviews the group’s
spokeswoman who states: “Most of us are peaceful protesters but
some of us want revenge. President Oden’s regime is responsible for
the murders of our family members and seizing our lands.”

On 26 April, in response to the planned protests, Inspector Percy

issues the following written authorisation:

The public are excluded from all roads leading to Buckingham

Palace from 2.00am to 3.00pm on 30 April. This is for national
security reasons and for the prevention of crime. Having regard
to articles 10 and 11 of the Convention, peaceful protests will be
permitted on pavements and public spaces.

On 30 April at 5.00am, Quillic, an Odensian national, attempts to drive

down Constitution Hill on his motorcycle but is stopped by PC Risham,
a police constable in uniform. Strapped across his back, Quillic is
carrying a hollow metal tube with the words ‘Death to Oden’ written on
it. PC Risham tells Quillic that he cannot enter the area and asks him
to surrender the metal tube. Quillic gives PC Risham the metal tube
and she makes a record of, and then gives Quillic, the following written
direction:

You are immediately excluded from all roads leading to

Buckingham Palace for a period of 36 hours. It is an offence not
to comply with this direction. You may collect surrendered items
from Westminster Police Station after 8.00am on 1 May.

That evening PC Risham watches the TV News. In the crowds, on the

pavement outside Buckingham Palace, she recognises Quillic as one
of the protestors shouting at President Oden’s car as it drives down
Constitution Hill.

On 2 May at 9.00am Quillic sends his fourteen-year-old daughter,

Tasmina, to Westminster Police Station to collect the metal tube.
Sergeant Stephen gives her the metal bar saying “Be careful with this
young lady, it’s a bit heavy”.

PLEASE TURN OVER

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 (a) Explain and discuss the extent to which the authorisation signed
by Inspector Percy complies with the requirements of the Act.
(9 marks)

(b) Explain to Quillic the extent to which the direction he was given
by PC Risham complies with sections 35 and 38 of the Act.
(10 marks)

(c) Explain to Quillic the consequences of his return to Constitution

Hill on 30 April after 5.00am. (3 marks)

(d) Discuss whether Sergeant Stephen complied with section 37 of

the Act in returning the metal tube to Tasmina. (3 marks)

END OF PAPER

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Anti-social Behaviour, Crime and Policing Act 2014 (c. 12) 19
Part 2 — Criminal behaviour orders

Deliberately blank – section omitted

PART 3

DISPERSAL POWERS

34 Authorisations to use powers under section 35

(1) A police officer of at least the rank of inspector may authorise the use in a
specified locality, during a specified period of not more than 48 hours, of the
powers given by section 35.
“Specified” means specified in the authorisation.
(2) An officer may give such an authorisation only if satisfied on reasonable
grounds that the use of those powers in the locality during that period may be
necessary for the purpose of removing or reducing the likelihood of—
(a) members of the public in the locality being harassed, alarmed or
distressed, or
(b) the occurrence in the locality of crime or disorder.
(3) In deciding whether to give such an authorisation an officer must have
particular regard to the rights of freedom of expression and freedom of
assembly set out in articles 10 and 11 of the Convention.
“Convention” has the meaning given by section 21(1) of the Human Rights Act
1998.
(4) An authorisation under this section—
(a) must be in writing,
(b) must be signed by the officer giving it, and
(c) must specify the grounds on which it is given.

35 Directions excluding a person from an area

(1) If the conditions in subsections (2) and (3) are met and an authorisation is in
force under section 34, a constable in uniform may direct a person who is in a
public place in the locality specified in the authorisation—
(a) to leave the locality (or part of the locality), and
(b) not to return to the locality (or part of the locality) for the period
specified in the direction (“the exclusion period”).

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20 Anti-social Behaviour, Crime and Policing Act 2014 (c. 12)
Part 3 — Dispersal powers

(2) The first condition is that the constable has reasonable grounds to suspect that
the behaviour of the person in the locality has contributed or is likely to
contribute to—
(a) members of the public in the locality being harassed, alarmed or
distressed, or
(b) the occurrence in the locality of crime or disorder.
(3) The second condition is that the constable considers that giving a direction to
the person is necessary for the purpose of removing or reducing the likelihood
of the events mentioned in subsection (2)(a) or (b).
(4) The exclusion period may not exceed 48 hours.
The period may expire after (as long as it begins during) the period specified
in the authorisation under section 34.
(5) A direction under this section—
(a) must be given in writing, unless that is not reasonably practicable;
(b) must specify the area to which it relates;
(c) may impose requirements as to the time by which the person must
leave the area and the manner in which the person must do so
(including the route).
(6) The constable must (unless it is not reasonably practicable) tell the person to
whom the direction is given that failing without reasonable excuse to comply
with the direction is an offence.
(7) If the constable reasonably believes that the person to whom the direction is
given is under the age of 16, the constable may remove the person to a place
where the person lives or a place of safety.
(8) Any constable may withdraw or vary a direction under this section; but a
variation must not extend the duration of a direction beyond 48 hours from
when it was first given.
(9) Notice of a withdrawal or variation of a direction—
(a) must be given to the person to whom the direction was given, unless
that is not reasonably practicable, and
(b) if given, must be given in writing unless that is not reasonably
practicable.
(10) In this section “public place” means a place to which at the material time the
public or a section of the public has access, on payment or otherwise, as of right
or by virtue of express or implied permission.
(11) In this Part “exclusion period” has the meaning given by subsection (1)(b).

36 Restrictions
(1) A constable may not give a direction under section 35 to a person who appears
to the constable to be under the age of 10.
(2) A constable may not give a direction under section 35 that prevents the person
to whom it is given having access to a place where the person lives.
(3) A constable may not give a direction under section 35 that prevents the person
to whom it is given attending at a place which the person is—

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Anti-social Behaviour, Crime and Policing Act 2014 (c. 12) 21
Part 3 — Dispersal powers

(a) required to attend for the purposes of the person’s employment, or a

contract of services to which the person is a party,
(b) required to attend by an obligation imposed by or under an enactment
or by the order of a court or tribunal, or
(c) expected to attend for the purposes of education or training or for the
purposes of receiving medical treatment,
at a time when the person is required or expected (as the case may be) to attend
there.
(4) A constable may not give a direction to a person under section 35 if the person
is one of a group of persons who are—
(a) engaged in conduct that is lawful under section 220 of the Trade Union
and Labour Relations (Consolidation) Act 1992 (peaceful picketing), or
(b) taking part in a public procession of the kind mentioned in subsection
(1) of section 11 of the Public Order Act 1986 in respect of which—
(i) written notice has been given in accordance with that section, or
(ii) written notice is not required to be given as provided by
subsections (1) and (2) of that section.
(5) In deciding whether to give a direction under section 35 a constable must have
particular regard to the rights of freedom of expression and freedom of
assembly set out in articles 10 and 11 of the Convention.
“Convention” has the meaning given by section 21(1) of the Human Rights Act
1998.

37 Surrender of property
(1) A constable who gives a person a direction under section 35 may also direct the
person to surrender to the constable any item in the person’s possession or
control that the constable reasonably believes has been used or is likely to be
used in behaviour that harasses, alarms or distresses members of the public.
(2) A direction under this section must be given in writing, unless that is not
reasonably practicable.
(3) A constable who gives a person a direction under this section must (unless it is
not reasonably practicable)—
(a) tell the person that failing without reasonable excuse to comply with
the direction is an offence, and
(b) give the person information in writing about when and how the person
may recover the surrendered item.
(4) The surrendered item must not be returned to the person before the end of the
exclusion period.
(5) If after the end of that period the person asks for the item to be returned, it must
be returned (unless there is power to retain it under another enactment).
(6) But if it appears to a constable that the person is under the age of 16 and is not
accompanied by a parent or other responsible adult, the item may be retained
until the person is so accompanied.
(7) If the person has not asked for the return of the item before the end of the
period of 28 days beginning with the day on which the direction was given, the
item may be destroyed or otherwise disposed of.

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22 Anti-social Behaviour, Crime and Policing Act 2014 (c. 12)
Part 3 — Dispersal powers

38 Record-keeping
(1) A constable who gives a direction under section 35 must make a record of—
(a) the individual to whom the direction is given,
(b) the time at which the direction is given, and
(c) the terms of the direction (including in particular the area to which it
relates and the exclusion period).
(2) A constable who withdraws or varies a direction under section 35 must make

(a) the time at which the direction is withdrawn or varied,

(b) whether notice of the withdrawal or variation is given to the person to
whom the direction was given and if it is, at what time, and
(c) if the direction is varied, the terms of the variation.
(3) A constable who gives a direction under section 37 must make a record of—
(a) the individual to whom the direction is given,
(b) the time at which the direction is given, and
(c) the item to which the direction relates.

39 Offences
(1) A person given a direction under section 35 who fails without reasonable
excuse to comply with it commits an offence.
(2) A person guilty of an offence under subsection (1) is liable on summary
conviction—
(a) to imprisonment for a period not exceeding 3 months, or
(b) to a fine not exceeding level 4 on the standard scale,
or to both.
(3) A person given a direction under section 37 who fails without reasonable
excuse to comply with it commits an offence.
(4) A person guilty of an offence under subsection (3) is liable on summary
conviction to a fine not exceeding level 2 on the standard scale.

Deliberately blank – section omitted

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