Q1a)ECHR rights are incorporated into UK law through the Human Rights Act 1998 (HRA 1998). There are four main aims of the HRA 1998. Firstly, to develop the culture of human rights across the UK. Secondly, to increase the international standing of the UK. Penultimately, to strengthen the representative and democratic Government, and lastly, to create a better relationship between the Government and its people (The Open University (‘OU’), 2017a, 5.2). Key sections of the HRA 1998 when considering how ECHR rights are incorporated into UK law include sections 3, 4 and 2.
Section 3 is important due to the fact that it demonstrates how UK courts have to actively consider and interpret new legislation to ensure it is compatible with the ECHR (OU, 2017a, 5.2). Section 4 is linked to section 3 in its importance as it states that should the UK courts find that new legislation does not fit with the ECHR a declaration of incompatibility must be made. By declaring a new legislation is incompatible it allows Parliament to take action and correct the legislation (OU, 2017a, 4.3.1). Finally, section 2 is key as it reinforces how UK courts must continue to consider the ECHR when passing new legislation.Q1b)The preliminary ruling procedure in the Court of Justice of the European Union (CJEU) is the process in which the CJEU decide on the interpretation of specific European Union (EU) law.
The ruling that is made is taken as the final interpretation of that EU law. The preliminary ruling procedure is started when a member state’s court request assistance from the CJEU in understanding the meaning of certain EU law. The CJEU will assist the member state by holding a preliminary ruling and determining how the EU law should be interpreted. Once the ruling has been made the member state’s court will then apply it to the facts of the case before it (OU, 2017a, 5.2). A legal effect that a preliminary ruling has is that after a ruling has been made by the member state that requested guidance from the CJEU is now bound to it.
Furthermore, all member state’s courts are then bound by Article 4(3) in the Treaty of the European Union in ensuing cases. Moreover, the United Kingdom passed the European Community Act in 1972 which means that the UK courts must take notice of all rulings made by the CJEU and apply them (OU, 2017b, 5.4). Q2a)Intro – A vs DFast track claim (County Court) above £10,000 but below 25,000.
(S2.2)Shoplifting’Trialable either way’ – magistrates’ courtDefendant can insist on right to trial before jury.Most likely magistrates court – small offence. (S3.1)Body -County courtJudge hear evidence + legal argument (both sides)Claimant proves to judgeJudge decides if liable (decision maker).claim proved on balance of probabilities(S2)Magistrates Courtmagistrates + or district judge (decision makers)crown must prove defendant guilty to the standard of beyond reasonable doubt.(S3.1/3.
2)Conclusion -summarise civil case pointssummarise criminal case pointsQ2b)Firstly, the court of first instance to hear the case arising from Audrey’s civil case against Darren will be a county court. This is due to the fact that all straightforward civil cases are seen as a fast track claim if they are over £10,000 but below £25,000 (Ou, 2017c, 2.2). Audrey’s action against Darren amounts to £14,000 so fits within the limits of a fast track claim. Moreover, it can be seen in the facts of the case that it is clear Darren has caused the damage, meaning that it is a straightforward case.
Seeing as the second case involving Audrey shoplifting is considered criminal, it will most likely be magistrates’ court that is the court of first instance. However, theft is seen as an offence which is ‘trialable either way’, this is due to the fact that theft can vary in seriousness, and therefore, gives the magistrates’ court the right to pass a case on to the Crown Court should it be too serious. This is because the Crown Court can give tougher sentences should the defendant be found guilty (OU, 2017c, 3.1). What’s more, theft being classed in this way also means that, as the defendant, should Audrey wish she can insist on her right to trial before a jury and in that instance, the case will be heard in the Crown Court.Within the county court where Audrey’s action against Darren will be heard, thejudge hears the facts of the case, the evidence and a legal argument from both sides (the claimant and defendant). Although both the claimant and the defendant must present evidence and a legal argument, it is only the claimant who must prove the defendant’s liability.
The judge will then make the decision as to whether the claimant has proved the defendant’s liability on the balance of probabilities (OU, 2017c, 2). The procedure within the magistrates’ court when hearing Audrey’s shoplifting case differs to that of the county court due to it being a criminal case. Either two or three magistrates or a judge will be presented with the facts of the case, evidence and a legal argument from both sides. In cases such as this, the court prosecutor must prove the defendant’s guilt to the judge beyond reasonable doubt. In this specific case, the court prosecutor would first present the evidence taken from the supermarket and a legal argument to the judge or magistrates. Then the defendant (Audrey) or her legal team, would present evidence and a legal argument also (OU, 2017c, 3.2). This, in turn, allows the judge or magistrates to come to a decision as to whether the defendant is guilty.
In summary, straightforward civil cases such as Audrey’s action against Darren which amount to over £10,000 but are under £25,000 will be dealt with in a county court. Furthermore, the claimant, in this case, Audrey, must prove to the judge on the balance of probabilities that the defendant is liable (OU, 2017c, 2). Whereas criminal cases such as Audrey being caught shoplifting can be dealt with in either magistrates’ court or the Crown Court depending on its seriousness (OU, 2017c, 3.1).
Moreover, in criminal cases, it is the court prosecutor that must prove the defendant’s guilt beyond reasonable doubt to either the magistrates or a judge.Q3a)The first step I took in preparing for my answer to question 2 was to review unit ten and read through the relevant civil and criminal court sections. After doing so my next step was to make a note of the facts and information that linked directly to the question. The third step I took was to organise the points I was going to make into an order that fit within the constraints of how a problem question should be answered.Q3b)A step which I felt particularly difficult when preparing my answer was when I began to look for specific facts which I needed for the body of the answer. The next time I write a problem-style question I will make sure to read the materials required a few times before even beginning the plan.
This way I will not waste time rereading material numerous times whilst planning the answer.Secondly, another step which I found especially difficult was when I was organising in which order I should write each point. I will correct this in future questions by spending more time thinking about which answer format would work best with the question (IRAC or introduction, main body, and conclusion).