examenvragen common law
GOLDEN RULE (+ LINK MET BIGAMY OF ADLER V GEORGE)
→ The rule essentially requires a court to look at the words in their context if the literal rule
leads to an absurd result.
“The grammatical and ordinary sense of the words is to be adhered to unless that would lead
to some absurdity or some repugnance or inconsistency with the rest of the instrument in
which case the grammatical and ordinary sense of the words may be modified so as to avoid
the absurdity and inconsistency, but no farther.”
- R v Allen (1872)
Section 57 of the Offences Against the Person Act 1861 defined Bigamy as being
married more than once. If you are already married, you cannot lawfully marry again
so you cannot commit the offence. This interpretation would be absurd, the courts
applied the golden rule and held that the word marry meant to go through the
ceremony of marriage. Allen was convicted.
Facts: Allen, having a wife, went through a ceremony of marriage with another
woman. He was charged as guilty of bigamy. He argued that he could not validly
“marry” another person while being married.
- Adler v George (1964)
Section 3 of the Official Secrets Act 1920, it was an offence to obstruct HM Forces (
= the British Armed Forces, Her Majesty’s Armed Forces) in the vicinity of a
prohibited place. Mr Adler had been arrested whilst obstructing such forces within
such a prohibited place (Marham Royal Air Force Station, Norfolk). Mr Adler argued
that he was not in the vicinity of a prohibited place as he was actually in a prohibited
place.
Literal rule interpretation would lead to absurdity, golden rule interpretation led to
conviction.
ELEMENTS CRIME (ACTUS REA & MENS REA)
→ THE CRIMINAL CONDUCT: Actus Reus
You must always have criminal conduct (you can’t convict for a criminal intention/thought). If
there is no criminal conduct, there is nothing done, there is no act, you can’t prosecute. As
long as you don’t act on your criminal intentions, you can’t be prosecuted for it. It is
important in the adversarial system, particularly the criminal system; If you are prosecuting
someone, you have to prove they committed the act, you have to know what the act is, that
is criminal, that needs to be proven.
→ THE MENTAL ELEMENT: Mens Rea
Very few criminal offenses don’t need this element. Negligent, wreckless, it doesn’t mean
you intended to achieve what has happened. There has to be a mental element, which
relates to people who don’t have the mental capacity to form an intention (psychiatric illness
and so).
Ignorance or mistake of law is no defence: fact that you didn’t know something was illegal,
doesn’t matter, because you did intend to do the act.
- E.g. smoking a joint, you did intend to do so, do it in front of children in the middle of
London, give one to your friend and you did want to get high.
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The Prosecution needs to prove the elements of the crime ‘beyond reasonable doubt’.
- The proposition being presented by the prosecution must be proven to the extent that
there could be no ‘reasonable doubt’ in the mind of a ‘reasonable person’ that the
defendant is guilty.
FIRST PAST THE POST SYSTEM
→ Voters elect individual MP’s, not parties.
→ An MP is the person who receives the largest number of votes cast in their constituency.
→ voting is by paper ballot
→ There are currently 533 constituencies in England; 59 in Scotland; 40 in Wales; 18 in
Northern Ireland. → The number of people able to vote differs by constituency
→ In order to vote
- one has to register to vote, and voting is optional.
- One has to be 18 or over on the day of the election (polling day)
- a British, Irish or qualifying Commonwealth citizen
- resident at an address in the UK or a British citizen living abroad who has been
registered to vote in the UK in the last 15 years
- not be legally excluded from voting
Large answer:
→ Voters elect individual MPs, not parties. You can not vote for prime minister.
- You vote for someone to represent you in parliament. . The job of an MP is to do
things for their local constituency. If someone has a problem, an MP should do
something about it. That’s the way the British system works. You get elected to
represent you constituency and it’s your job to do things for your constituency. You
got 650 of those and they form parliament. Each are chosen individually. The point is
you have person who’s got elected, you know him and you have access to him. ( Not
al the MP’s do it by the way) Diffrence with Belgium: Who would go to their MP if they
had a problem? class: nobody so there is a clear difference between the two
systems.
→ An MP is the person who receives the largest number of votes cast in their constituency.
- It has to be a valid vote. “Valid”: it has to be a clear expression. By example: if you
write: Idiot, idiot, idiot, YAY, idiot.. If they look at it, it is a clear expression of what you
vote. Also you HAVE to vote for someone, there is no option like “none of the above”.
You actually can but then it will be a “spoiled ballot”. Voting in the United Kingdom is
not an obligation, it’s entirely up to you. Being on the electoral register is not an
obligation. If 20% of the people turn up to vote, then parliament will be elected by
20% of the people. That’s the way it goes, that’s democracy. The largest number of
votes cast by the people who are on the electoral register allegeable to vote and
turned up in that constituency.
→ Voting is by paper ballot.
- Obviously it’s a secret ballot and it’s done by paper. Then people sit in count. Then
there is a control mechanism, people sit in teams and everything gets checked and
double checked and triple checked. In some parts of the country the counts come in
really late, in some really early. It’s phenomenal how they count the votes. It’s an
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unoUcial race to be the first and It’s nearly always Sunderland who’s first. Northern
Ireland always comes in the day after because of the logistics of the ballot boxes.
→ Registering to vote, and voting are optional.
- There is no ID check at the polling station – current government wants to change
this. This freaks everyone else out, expects us. The government wants to change it
because of electoral fraud, but statistics show that numbers of electoral fraud are so
tiny, it’s stupid. In the United Kingdom they don’t have id carts ( compared to
Belgium). The Uk does have certain things and services that require photographic
prove of ID. This is obviously the case. And If something do not require photographic
ID there are some things that require prove of ID. By example: your electricity bill
example of photographic ID: driving license and passports. Minute 15.32 If there is
an electoral fraud statics show that is not at the polling station. There is no
compulsory ID-check.
→ One person one vote, first past the post
→ In order to vote in a general election someone must be:
- registered to vote ( registration deadline for the election on the 12 th of December
was the 26 th of November, compared to Belgium it’s relatively close to the actual
election.)
- 18 or over on the day of the election (‘polling day’) ( for the general election)
- a British, Irish or qualifying Commonwealth citizen
- resident at an address in the UK (or a British citizen living abroad who has been
registered to vote in the UK in the last 15 years)
- not be legally excluded from voting That’s the bare minimum.
→ The Prime Minister is appointed by the monarch, they are the leader of the party with the
majority of MPs ( reminder: not the biggest number of votes!!), and will form Her Majesty’s
Government. Why would it not be the biggest number of votes? Let’s imagine that a party
gets the largest number of seats from the constituencies with the smallest population and
the lowest turnout. Just to give you a very extreme example to make it simple.
So you have the party with the largest number of votes, that party has the prime minister and
the prime minister is the leader of the party.
The leader of the party with the next largest number of MPs becomes Leader of Her
Majesty’s Most Loyal Opposition (OUcial Opposition). Which is currently the labor party.
Obviously every other party is in the opposition, but they are not the oUcial opposition. And
because of the way parliament works the oUcial opposition can do certain things etc. If no
party has a majority there is a ‘hung Parliament’, and the leader of the largest party can form
a minority government or they can form a coalition government. In 2015 the conservatives
have majority. Theresa May decided ‘im going to call an election to get a bigger majority and
get the Brexitthing done, she lost a whole bunch of seats she then had to concluded that
was called a confidence and supply agreement with the Democratic unionist party.
WHAT IS THE CONCEPT PRIVITY OF CONTRACT (+exceptions) + WHAT ABOUT THIRD
PARTIES + WELKE ACT DAAROP GEBASEERD IS (exceptions en voorwaarden
exceptions)
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