LAW EXAM
Criminal Law Exam
Question 1
Having consented to have an intimate relationship with each other is of great importance when matters sexual law is concerned. As evident in R v Millberry (2002), the absence or presence of consent differentiates a loving and meaningful sexual act between two individuals from a grave infringement of personal autonomy and human dignity of one of the involved parties[1]. Despite the aspect of consent being fundamental in any sexual act, it remains astonishing as to the degree of uncertainty that surrounds the circumstances in which the law considers any party to a sexual act as to have consented. The precise conditions that define whether a person has agreed to a sexual act remain to be of importance to the law of consent for sexual offences.
The sexual offences Act 2003 (SOA) outlines all the various offences that necessitate the prosecution to demonstrate lack of consent as described in sections 1-4[2]. The offences that the Act outlines includes rape, assault by penetration, making an individual participate in any sexual act and sexual assault[3]. As it relates to the offences as mentioned above, any individual is guilty of a misdemeanour if they act intentionally, they do not sensibly believe that the other party consented. In itself, the sexual offences Act 2003 in the United Kingdom took effect on the 1st of May 2004[4]. As such, this Act covers all the different sexual offences that were committed on and after its enactment into law. The Act sought to reinforce and update the previous legislation on sexual crimes while at the same instance, bettering the protection of persons from sexual offenders.
This Act is fractionated into two parts. The first half of this law sets out all the different sexual offences. In contrast, the second part of this law outlines the notification requirements and the scope of preventative civil policies. Drawing from R v Corran and others (2005) sections 1-4 of the sexual offences Act 2003 deals with non-consensual crimes. Such offences are those that the defendant in any sexual offences case has engaged in a sexual act with the plaintiff without the plaintiff having consented to such an action. The lack of consent, as described by this Act, amounts to rape. Under section 1 of this Act, the elements of rape involve a deliberate penetration of the plaintiff’s vagina by the defendant, failure by the complainant to consent to the penetration and the defendant failing to reasonably believe that the complainant consented. When consent to any sexual activity is involved, sections 74, 75 and 76 of the sexual offences Act evaluates instances of intoxication and the different ways in which consent to sexual activity and intoxication relates[5].
According to section 74 of the sexual offences Act 2003, an individual ought to have consented to the particular form of sexual conduct ‘by choice’ and at the time of consent, such a person ought to have had the capacity and freedom to make such consent as was the case in R v Assange (2006)[6]. According to this section of SOA, sexual consent undertaken by free will or choice is the primary difference between any sexual criminal conduct and a healthy sexual relationship. S.74 holds the most fundamental definition of consent, as outlined in the sexual offences Act (2003). This section of SOA majorly revolves around the concept of capacity. When this section is concerned, capacity relates to the plaintiff’s mental capacity and their ability to comprehend the meaning and repercussion of their decision at the time of the sexual act[7].This section establishes that drunken consent can still be recognized as consent.
As witnessed in R-v- McNally (2002), any court of law will find consent to be valid if the plaintiff in question participated voluntarily in sexual activity that they would have refused on the occasion that they could have been sober. Despite this being the case, the Act also considers that there might be a point where freedom to choose and capacity might be lost. Both sections 75 and 76 of the sexual offence Act clarifies on matters conclusive presumptions. S 75 of this Act formulates an evidential hypothesis meaning that in the case that the circumstances defined are present, the court can make a presumption that consent was not granted subject to the counter-argument of the defendant. The evidential hypothesis formulated translates to the fact that after the prosecution has shown the presence of either of the presumed circumstances thereby expressing an evidential presumption, it falls entirely upon the defendant to prove that the plaintiff’s consent was indeed, in fact, present[8] This echoes s 76 of the same Act which clarifies on matters conclusive presumption. As outlined by this section, if impersonation or deception occurred, leading to sexual engagement, it is justified to conclude that there did not exist consent in sexual involvement.
Question 2
According to the criminal law in the United Kingdom, a full defence to murder exonerates the defendant in any murder case of all criminal responsibility that they might have had[9]. The case R. v Anderson and Morris (1996) proves that the concept of full defence to murder has different sections under it, including but not limited to reasonable doubt, self-defence, Automatism and necessity. Of all the sections as mentioned above under the category of full defence to murder, the prosecution in Ronnie’s case might fail to prove Ronnie’s guilt of murder under the circumstance of necessity[10]. The criminal law in the United Kingdom dictates that necessity might be present where the circumstances force the defendant to break the law to stay clear of more dire consequences as was the case in R. v Stewart (1995). Even though this is so, courts in the United Kingdom are yet to decide on Whether or not the defence of necessity applies to the principle in first-degree murder. As it is with the case of Ronnie, the prosecution requires that the element of irreparable evil and imminent peril be shown to establish the defence[11].
As with the case of Ronnie, the element of irreparable evil found under the section of necessity requires the accused to have acted in a particular way to steer clear of inevitable repercussions which would have served to cause serious injuries or death upon the accused or any other persons that they had the obligation of protecting[12]. Ronnie’s landlord, Ted, his friend Matt and Steve’s death might have been collateral damage as Ronnie tried avoiding the ‘irreparable evil’ of setting his landlord’s house on fire as a result of a rent dispute. The events leading to the three deaths in Ronnie’s case proves that such deaths were not deliberate and that the accused acted in the way that he did, i.e. escaping one murder only to cause the next, to avoid the consequences of his initial crime. On the same section of the criminal law in the United Kingdom, Ronnie’s action and the murder’s that followed therein are justifiable under imminent peril as was also the case in R. v Gnango (2011).
The element of irreparable evil dictates that the defendant ought to believe on logical grounds that they were placed in an environment or situation of imminent peril that led to the murder’s that they committed[13] As such, this element requires that the defendant act in such a way that they avoid what can be termed as imminent peril. The case of St George’s Healthcare NHS Trust v SRV Collins and Others (1998) shows that the act to evade imminent risk must in itself be out of proportion to the peril that the defendant tries to avoid. It is natural for human beings to try and avoid or run away from negative situations that they have created. Any reasonable adult would have considered the same course of action that the defendant took were they in the accused shoes. The peril that the accused was running from in this case was that of burning down his landlord’s house, which later resulted in the death of the landlord. Even though at the instance of the fire, the accused had reasonable alternatives open to them, such alternatives would also have proved less useful in avoiding the imminent peril that would have ensued.
Following the proceedings and events that resulted in the deaths of the involved parties in Ronnie’s case, it is justifiable to conclude that the defendant’s case is justifiable homicide. Being a justifiable homicide, the offences in such a situation are excused by law and the defendant is not eligible to receive any type of punishment for committing the crimes of homicide[14]. The defence of necessity and Duress protects the defendant in this case as they beyond reasonable doubt proves that the deceased forced him to commit the killings. With this in mind, the defendant’s sentence might be considerably reduced but not removed owing to the fact that there was killing involved. The prosecution, in this case, ought to establish that the defendant premeditated the killings, which might prove challenging to determine. With this in mind, it is justifiable to state that Ronnie is not liable for the deaths that occurred, given that the deceased forced him into committing the murders in question.
European Law Exam
Section A
When European Union law is concerned, the aspect of direct applicability and direct effect is significant[15]. On its part, direct applicability expounds on whether an E.U. policy requires a national parliament to approve legislation to make it law in one of the member states. As such, once the council of ministers in Brussels signs any pact, it becomes effective in all the member states effectively. With this in mind, it is significant to note that all directives by the E.U. are not applicable directly[16] . Essentially, directives tell all the member states to act, but when such directives are passed, they generally require a piece of legislation to transform them into national law. On its part, the concept of direct effect, as it relates to E.U. laws, dictates whether individuals can depend on the European Union laws in domestic courts, Malacalza Investment v ECB (2015). Direct effect takes to forms, i.e. vertical and horizontal direct effect. The former means that one can use legislations by the European Union against any member state. At the same time, the latter implies that an individual might use legislations by the E.U. against other persons[17].
As it is in the European law, regulations and treaties are both horizontally and vertically directly effective[18] . The fact that regulations and treaties are horizontally and vertically effective means that individual can use them as pieces of law in any member state court against a fellow individual or the state. It is also significant to note that, on their part, directives are not directly practical as one cannot use them in a court of law unless they have been successfully enacted by the national legislation[19]. Angela’s case begs the question on what transpires if a member state fails to implement a directive by the E.U. The law dictates that if any member state does not implement a given directive within the duration issued by the E.U., a person is at free will to take the particular state to court for non-implementation. Angela has the option of taking Germany, as an E.U. member state, to court given that it failed to implement Directive 2018/840 within the duration that had been issued by the European Union. With this in mind, the German government has the obligation of explaining to the European Commission the reason as to why the directive in question has yet to be appropriately transposed[20]. Drawing from Dermavita v EUIPO-25 June 2020, the action that is available to Angela can only be taken against Germany as an E.U. member state but not on the European Commission or the E.U. itself. In the case that Angela takes the German government to court, the European court of justice (ECJ) deems this E.U. state to include the different areas of NHS trusts, local authorities, schools and the government. Regardless of this course of action that Angela has, it is significant that she refrains from perceiving this process as a one-sided process of the European Union issuing legislation over its member states.
The European Commission has to ensure that all the legislations passed by the E.U. parliament have been adequately implemented[21]. The European commission achieves this by the use of its agencies and member states. When it comes to the adaptation of various technical measures, the commission is aided by multiple committees that are made up of representatives from member states, private lobbies and members of the public. In relation to Angela’s case, the commission has a sworn duty of ensuring that all member states uphold all its policies and treaties. In the case that member states might fail to enforce some or all of the signed treaties and procedures, the European Commission can ensure that such member states uphold the mentioned treaties and policies by taking them to the court of justice as dictated by its laws.
With this in mind, the most appropriate action that the commission can take against Germany as a member state is to take it to the court of justice in a dispute[22]. The fact that the German government delayed the deadline for implementing Directive 2018/840 and improperly transposed the same directive is an infringement of the E.U. policies that the commission seeks to uphold. Even though this is so, it is crucial to note that the E.U. has limited powers under primary law[23]. This means that the commission can only suspend different rights from Germany as a member state for breach or infringement of the directive issued but cannot under any circumstance expel it as a member state. Article 7 of the treaty on the European Union provides a three-stage procedure that the commission ought to follow when it comes to taking action against a member state that has breached any E.U. law or given directive.
Section B
Question 4
The European law on the free movement of goods dictates that all the products that have been legally categorized in the internal market category of the E.U. can move freely in such a market[24]. This is one of the critical requirement for the proper functioning of the E.U. products. As such, the principle of the free movement of products in the E.U. internal market requires that all the potential trade barriers between the different member states be uplifted. Such trade barriers take into account restrictions based on tariffs and restrictions that are based on customs duties and the volume of exports and imports. It is crucial to understand that the proposition for mutual recognition as dictated by the E.U. is the foundation to the free movement of products within all the European Union member states[25]. As dictated by the principle as mentioned above, all European member states ought to allow services and products that have been legally marketed in a different member state to come into their respective markets. With this in mind, the measures that Remaynia is contemplating against fellow member state when the free movements of goods are concerned are not compatible with E.U. law on the free movement of goods. As it is, the E.U. law on the free movement of products does not allow a member state to impose customs duty on another country, or completely ban all imports of goods from such a state with no reasonable grounds. Suppose Remaynia feels that its alcohol producers might suffer a massive blow from the importation of such alcohol from Levonia and that there shall be an upsurge of alcoholism in Remaynia. In that case, the member state should look for alternative means of settling such a dispute.
With this in mind, Remaynia should seek dispute resolution from the basis of consumer protection rather than having to do so on the grounds of the ban of importation. The E.U. has a consumer protection Act that is referred to as the Estonian consumer policy[26]. The primary goal of this policy is generally to protect the welfare of consumers in member states. With this in mind, the Estonian consumer policy has three primary goals that it seeks to achieve. These goals include safeguarding the health and life of consumers in member states and raising the awareness of consumer and the trust that they have in the market they are in[27]. Additionally, the consumer protection policy seeks to safeguard the financial interest of consumers with the intent of bettering the quality of life of such consumers. These three goals collectively ensure the betterment of the overall trustworthiness and quality of the shared European Union market.
One of the challenges that Remaynia as a country is facing is the challenge of its citizens consuming more alcohol than average owing to the cheap imports to the country. Also, the state fears that its alcohol producers might also run out of business as a result of the cheap imports into the country. As such, Remaynia ought to pursue the Estonian consumer protection policies so that the imports from Levonia do not affect the lives of its citizens. The consumer protection policies have different and fundamental aspects that are reflected in the advertising Act, the Trade Act and the product conformity attestation Act[28] This being the case, rather than having to ban all alcohol imports from Levonia manually, Remaynia as a state ought to seek for strategies of conflict resolution from the advertising Act. This forms the legal process of barring a member state from advertising its products in a different state when matters of consumer protection are involved.
Rather than having to ban all alcohol imports from Levonia and imposing higher customs duty on Levonian alcohol, the county should turn to the trade Act to mitigate the existing dispute when the sale of Alcohol is concerned between both member states. The trade Act in relation to consumer protection outlines strategies and guidelines that member states should follow when marketing, importing and exporting their products from the various member states. The E.U. laws on the free movement of goods also dictate that member states should not engage in unhealthy competition as laid out in the Estonian competition policy[29] In the case that Remaynia, as a member state, might consider banning all alcohol imports from Levonia and imposing customs duty on Levonian alcohol, the E.U. law on the free movement of goods might consider this to be unfair competition in which the necessary action might be taken as dictated by E.U. laws.
Land Law
Section A
Question 1
The law of real property in the United Kingdom is referred to as the English land law[30]. In the United Kingdom, i.e. England and Wales, the law of real property requires that an individual purchase land through sale or contract. In the case of acquiring land utilizing purchase, the buyer is required by the English land law to legally register their interest with HM land registry[31]. HM land registry is generally a non-ministerial department that handles matters of land ownership and property registration in both England and Wales. In the United Kingdom, matters land are commonly viewed as matters of utmost importance and thus considered a significant aspect of the English property law[32]. Other than purchasing land on both sales and contractual basis, individuals may opt to acquire land via means of contributions to a home’s purchase price or family life.
To determine who legally owns property rights in the United Kingdom, the English land law depends on three fundamental sources[33]. The sources that the English land laws draw upon to establish property rights are the equitable principles formulated by the courts and the common law[34]. The third and most significant source of determining property rights is the system of registering land and an ongoing system for unregistered land. The English land law serves to protect the acquisition and conflict of citizens’ rights to equitable and legal land. As evident in the case of Lloyds Bank PLC v Rosette, it is not lawful to possess land or land rights that are unregistered under one’s name[35]. Before the enactment of the land Registration Act of 2002, persons claiming to be in adverse possession of the land would acquire the legal rights to be registered as proprietors of registered land if such squatters had owned the land in question for more than 12 years. As witnessed in Striet v Mountford, the enactment of land registration Act 2002 nullified the doctrine of adverse possession. In itself, the doctrine of adverse possession did not merge readily with the idea of indefeasibility of title, which was generally the foundation of land registration. The enactment of the land registration Act of 2002 brought about a new regime that is only applicable to registered land[36]. The new rule brought about by the enactment of the land registration Act 2002 is defined by schedule 6 of the same Act. Schedule 6 of the land registration Act ensures that a registered proprietor will be in a position of preventing an application for possession of their property/land. To avoid losing land that she has already added value to, Jane requires proving to the court about his adverse possession of the land in question.
In light of Jane and Ned’s case, Jane has not adversely possessed the land in question for ten years as required by law. The fact that Jane has not owned the property in question for the mentioned time frame means that she does not qualify for adverse possession of the same. In the case that Jane was willing to possess the land adversely and without the owner’s consent, she should prove to the court that as a settler and any other predecessors before her have owned the land for more than ten years or not less than 60 years for crown foreshore[37]. Jane also requires proving to the court that she had been evicted by the registered owner or any other person purporting to own the land, not more than six months before the date of the application. She also requires proving to the court that the eviction by the alleged owner was not pursuant to a judgment for possession as was the case with Crabb v Aron DC.
Even though Jane is not the rightful owner of the land in question, the English land law considers her to be the factual owner of the mentioned land under the virtue of factual possession[38]. In the case of Powell v McFarlane, (1977) 380 & CR 452, the court ruled that in any instance that the land under dispute as initially open ground, fencing of such a land proves to be strong evidence of factual possession[39]. Even though fencing an open ground is secure prove of factual possession, it remains to be neither conclusive nor indispensable. Even though the circumstances surrounding the control of the mentioned land by the alleged possessor signifies actual possession, the purported possessor and the registered owner cannot be both in possession of the land in dispute at the same instance.
In the case of Jane and Ned, Jane requires heeding to Ned’s request to vacate his property given that according to the land Registration Act 2002, she is not the rightful owner of the possessed land. Additionally, Jane can be considered by the English land law to be an illegal settler, given that she has no documentary titles to the land that she currently possesses. What’s more, Jane cannot apply for adverse possession, given that she has no alteration to her or her neighbour’s title plan that can show the general boundary more accurately.
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[1] M. J. Allen and I. Edwards, “11. Sexual offences,” Criminal Law, 2017, 33-41, doi:10.1093/he/9780198788676.003.0011.
[2] Allen and Edwards, “Sexual offences,” 33-41.
[3]. T. O’Malley and E. Hoven, “Consent in the law relating to sexual offences,” Core Concepts in Criminal Law and Criminal Justice, 2019, 170-189, doi:10.1017/9781108649742.005.
[4] O’Malley and Hoven, “Consent in the law,” 44-56.
[5] A. D. Renteln, The cultural defence (Oxford University Press, USA, 2005), 200-280.
[6]. J. G. Murphy, “Kant on three defences in the law of homicide,” Reason, Value, and Respect, 2015, 65-120, doi:10.1093/acprof:oso/9780199699575.003.0009.
[7]. H. Boutellier, “Sexual offences and mutual consent,” A Criminology of Moral Order, 2019, 78-89, doi: 10.1332/policy press/9781529203752.003.0006.
[8]. T. O’Malley and E. Hoven, “Consent in the law relating to sexual offences,” Core Concepts in Criminal Law and Criminal Justice, 2019, 100-113, doi:10.1017/9781108649742.005.
[9]. J. G. Murphy, “Kant on three defences in the law of homicide,” Reason, Value, and Respect, 2015, 12-32, doi:10.1093/acprof:oso/9780199699575.003.0009.
[10] H. Boutellier, “Sexual offences and mutual consent,” A Criminology of Moral Order, 2019, 150-187, doi: 10.1332/policy press/9781529203752.003.0006.
[11] A. D. Renteln, The cultural defence (Oxford University Press, USA, 2005), 98-120.
[12] K. Braun, “Till death us do part”: Homicide defences for defences abusive relationships—Similar problems—Different responses in Germany and Australia,” Violence against Women 23, no. 10 (2016): 160-179, doi: 10.1177/1077801216656832.
[13] Braun, “Homicide defences for women,” 117-130.
[14] Murphy, “three defences in the law of homicide,” 67-92.
[15] Lorna Woods, Philippa Watson, and Marios Costa, “5. Principles of direct applicability and direct effects,” Steiner & Woods EU Law, 2017, 75-120, doi:10.1093/he/9780198795612.003.0005.
[16] Woods, Watson, and Costa, “Principles of direct applicability,” 115-125.
[17] Andrew L. Sueur, Maurice Sunkin, and Jo E. Murkens, Public Law: Text, Cases, and Materials (New York: Oxford University Press, USA, 2019), 120-155.
[18] Neill Nugent and Mark Rhinard, the European Commission (London: Macmillan International Higher Education, 2015), 160-178.
[19] Nugent and Rhinard, the European Commission, 170-185.
[20]. Sueur, Sunkin, and Murkens, Public Law, 56-78.
[21] Carl F. Bergström and Dominique Ritleng, Rulemaking by the European Commission: The New System for Delegation of Powers (New York: Oxford University Press, 2016), 120-156.
[22] Bergström and Ritleng, Rulemaking by the European Commission, 125.
[23] Lorna Woods, Philippa Watson, and Marios Costa, “5. Principles of direct applicability and direct effects,” Steiner & Woods EU Law, 2017, 131, doi:10.1093/he/9780198795612.003.0005.
[24] Lorna Woods, Philippa Watson, and Marios Costa, “18. Free movement of goods,” Steiner & Woods EU Law, 2017, 506, doi:10.1093/he/9780198795612.003.0018.
[25] Lorna Woods, Philippa Watson, and Marios Costa, “5. Principles of direct applicability and direct effects,” Steiner & Woods EU Law, 2017, 507-602.
[26] Paul Craig and Gráinne De Búrca, “18. Free Movement of Goods:” Law Trove, 2015, 170-192, doi:10.1093/he/9780198714927.003.0018.
[27] Craig and De Búrca, “short title,” 131-156.
[28] Lorna Woods, Philippa Watson, and Marios Costa, “18. Free movement of goods,” Steiner & Woods EU Law, 2017, 151-162, doi:10.1093/he/9780198795612.003.0018.
[29]. Carl F. Bergström and Dominique Ritleng, Rulemaking by the European Commission: The New System for Delegation of Powers (New York: Oxford University Press, 2016), 162-187.
[30] A. Stroud, Making sense of land law (Macmillan International Higher Education, 2018), 130-240.
[31] C. Bevan, “4. Adverse possession,” Land Law, 2018, 86-94, doi:10.1093/he/9780198789765.003.0004.
[32] Bevan, “Adverse possession,” 130.
[33] M. P. Thompson and M. George, “7. Adverse possession,” Thompson’s Modern Land Law, 2017, 25-37, doi:10.1093/he/9780198722830.003.0007.
[34] C. Bevan, “4. Adverse possession,” Land Law, 2018, 12-17, doi:10.1093/he/9780198789765.003.0004.
[35] Bevan, “Adverse possession,” 15-17.
[36] Thompson and George, “Adverse possession,” xx.
[37]. C. Bevan, “4. Adverse possession,” Land Law, 2018, 78, doi:10.1093/he/9780198789765.003.0004.
[38] Bevan, “Adverse possession,” 68-98.
[39] M. P. Thompson and M. George, “7. Adverse possession,” Thompson’s Modern Land Law, 2017, 85-89, doi:10.1093/he/9780198722830.003.0007.