Learning Skills For Law-All

Learning skills for law
Howard Senter
Beverley Brown
Sharon Hanson
2007

page University of London External System
This guide was jointly prepared for the University of London External Programme by:
 Howard Senter, Consultant to the External Undergraduate Laws Programme, University of
London
 Dr Beverley Brown, Assistant Director (Academic development), External Undergraduate
Laws Programme, University of London
 Dr Sharon Hanson, Senior Lecturer in Law, Canterbury Christ Church University.
Special acknowledgements to Ms Patricia Tuitt, Law School, Birkbeck (University of London)

for specialist consultancy on the guide overall and redrafting of Part 5 ‘Writing Law’. Mary
Luckham (Assistant Director, Undergraduate Laws Programme) and Catherine Macmillan
(Queen Mary, London) provided vital revisions of material on criminal law and contract
laws respectively. This guide has developed over succeeding editions: English for law and
legal study skills (2004) by Sharon Hanson and Laws study skills guide (2006) by Sharon
Hanson and Howard Senter. We would also like to acknowledge the authors of the Student
handbook and A.D. Hughes, author of A guide to examination technique. Additional material
(charts and diagrams) and ‘reader’s advice’ on earlier drafts of this edition (2007) has been
provided by members of the Laws Consortium Office: Agnieszka Dziemba, John Ferrá and
Robert Tarbuck.
We regret that owing to pressure of work the authors are unable to enter into any
correspondence relating to, or arising from, the guide.
If you have any comments on this guide, favourable or unfavourable, please use the form at
the back of this guide.
Publications Office
The External System
University of London
Stewart House
32 Russell Square
London WC1B 5DN
United Kingdom
www.londonexternal.ac.uk
Published by the University of London Press

© University of London 2007
Printed by Central Printing Service, University of London
Design and layout by Omnis Partners, Glasgow
All rights reserved. No part of this work may be reproduced in any form, or by any means,
without permission in writing from the publisher.
Learning skills for law page
Contents
1 Preliminaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2 Getting started . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3 Reading law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
4 Analytical and critical abilities . . . . . . . . . . . . . . . . . . . . . . 91
5 Writing law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
6 Developing and demonstrating skills . . . . . . . . . . . . . . . . . 149
7 Examinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Feedback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
Part 1
Preliminaries
Sections
1 Learning skills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2 Skills requirements and a Qualifying Law Degree . . . . . . . . . . . . . 9
3 Studying at a distance . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4 Discover your learning preferences . . . . . . . . . . . . . . . . . . . . 16

Learning skills for law 1 Preliminaries page
1 Learning skills
Skills are ways of doing things: techniques. Skills are about knowing how rather than know-
ing what.
A large amount of the Laws curriculum is concerned with ‘knowing what’: gaining knowl-
edge and understanding of the substantive content of law, learning what the law says
and how the legal system works. The University of London External Undergraduate Laws
Programme is committed to providing students with the resources they need to acquire
and demonstrate:
 a comprehensive knowledge of the principal features of the English legal system, including
its institutions, procedures and sources of law
 knowledge of the rules and major legal concepts and understanding of the fundamental
doctrines and principles that underpin the core English law subjects
 in-depth knowledge of a range of specialist areas
 critical-reflective understanding.
At the same time, studying law produces the abilities and habits – skills – that add up to
‘thinking like a lawyer’. ‘Skill’ may seem a mysterious quality, and it is hard to define: we
could say that it is ‘a talent, craft or accomplishment naturally acquired or developed
through training’.† The mystery arises from the fact that skills were traditionally transmit- †
Definition found at: www.
ted in the form of ‘learning by doing’, patterns of thought and action not explicitly put into allwords.com/word-skill.html.
words, and acquired almost unconsciously through apprenticeship rather than through
academic learning.
Although it is true that skills are developed by doing, contemporary approaches try to
identify skills more explicitly in terms of distinctive techniques of legal interpretation, and
particular ways of researching and arguing. There is more of an emphasis on looking at
skills separately and being able to demonstrate that they have been acquired.
At the same time, some of the skills learnt in studying law are not totally distinctive. They
include some general – ‘transferable’ – skills that could be used in many spheres of life
and employment: skills of analysis and critical assessment of information and arguments,
as well being able to draw together different sources in a coherent way (synthesising).
Equally, in today’s world, skills of communication, information technology (IT), numeracy
and working with others (team working) are highly desirable qualities, making law gradu-
ates more employable in a competitive job market. Finally, underpinning all of your study is
‘autonomy’ – the ability to learn and think independently.
The title of this guide, Learning skills for law, has a double meaning: you will not just be
learning skills, you’ll also discover all about learning skills. What this means is that the very
process of learning itself involves students developing the ability to learn. This is a relatively
new idea in education because the process of learning has often been taken for granted.
The idea that there are learning skills, ways of learning that students can acquire and
utilise for themselves, goes with a newer approach to education called ‘student-centred
active learning’. This is the University of London’s educational stance for its external Laws
students. The idea is that when you are actively engaged with ideas, answering questions,
doing legal research and using resources, you will actually learn far more than you would
by sitting in lectures and simply repeating what you have been told. Ultimately this means
better examination results. Learning by doing remains valuable in this new context.
Skills developed during your Laws course

Skills develop over time and with practice. This guide offers initial guidance that will help
you to:
 develop and express autonomy of learning, in other words, being in charge of and reflecting
upon your study programme and being prepared to pursue independent study and research
 use a library (particularly the Online Library) and other research resources with confidence
 develop the ability to analyse a wide range of legal materials, leading to the ability to
understand and to construct legal arguments yourself
 develop the skills and self-confidence needed to deploy such arguments orally and in
writing
 develop your critical abilities
 develop a basic understanding of the uses of modern information technology

 prepare for future employment in a range of careers or reinforce skills for current employ-
ment or changing employment, or prepare for lifelong learning.
These skills are an essential part of undertaking a quality Laws programme, and this guide
will help and support you in focusing on them.
How to use this guide

This guide is intended to help you acquire the range of skills you will need to study your
Laws course successfully. Although it is oriented in the first instance to students in the first
year of their studies, many sections will be of use later on. What you use from this guide
will depend on your skills and your needs.
If you are just setting out on your law studies as a ‘new’ student, start with Parts 1 and 2. Pay
particular attention to the sections on using resources. This will help you get the most from
the materials supplied to you by the University.
Thereafter, select items as you need them. The subject guides make numerous suggestions.
A key theme here is the independent active student – you. Learning is more effective if you
are self aware (‘self-reflective’). Sections 3 and 4 ask you to reflect on aspects of yourself
and your experiences that you are bringing with you at the start of your studies. Each and
every student is different and has different needs, not only in their background and living
circumstances but also when it comes to studying. Think about the things you find easy,
and the things you find difficult, and be aware of how you prefer to learn.† Knowing yourself †
See Section 4, Discover your
is important in developing the ability to be an autonomous learner and an independent learning preferences.
thinker.
Learning skills for law 1 Preliminaries page
2 Skills requirements and a Qualifying Law Degree (QLD)

Many, but certainly not all, students who undertake the LLB seek ultimately to qualify for
legal practice either in England and Wales or in their jurisdiction of study. In common with
most common law jurisdictions, England and Wales makes a distinction between the ‘aca-
demic’ and the ‘vocational’ or ‘professional’ stage of legal training. In the past a degree was
not required to become a lawyer as entry to either the barristers’ or the solicitors’ branch
of the legal profession was controlled by the professional associations themselves. These
professional associations conducted their own examinations (usually in two sets) and
over time a Law Degree ‘exempted’ the holder from the first set of such examinations and
became known as satisfying the ‘academic’ stage of legal training entitling the holder to
undertake the vocational stage (either the Bar Vocational Course or Legal Practice Course).
Today both branches of the profession are mainly graduates: that is, most newly qualified
lawyers have a degree (but not necessarily a full law degree). A law degree that is accepted
by the legal professional bodies as satisfying the academic stage of legal training is termed
a Qualifying Law Degree (QLD). Because of the similarities in operational jurisprudence in
the common law world, an LLB from England and Wales will usually entitle the holder to
have, either completely or partly, satisfied the academic stage of training for different com-
mon law jurisdictions. Different jurisdictions, however, set different requirements, and, if
you wish to practise law you should check what the precise requirements are for practice
in your own jurisdiction.
Note: NOT ALL students who graduate with a LLB from a University in England and Wales will
have a QLD. Students seeking a QLD need to be aware of the specific requirements from the
start of their studies and make appropriate decisions.
Ensuring that your London LLB is a QLD

 While a student may take many years to complete the LLB as an academic qualification (the
first period of registration for example is eight years), the period of study for a QLD must
not be more than six years.
 While the compulsory subjects for an academic LLB normally include Jurisprudence and
legal theory (depending on the pathway), this subject is not required for a QLD.
 While the compulsory subjects for an academic LLB cover most of the core (‘foundation’)
subjects for a QLD, a QLD also requires that students pass EU law.
 While students are allowed four attempts at passing subjects for an academic LLB, for a QLD
only three attempts are permitted.
However, there are now additional skills requirements.
Skills requirements for the 2007 intake onwards † †

This affects all (and only) students
on the Diploma in Law and LLB
Many skills are already tested by the Laws Programme’s examination system.
courses registered��
��
with effect
However, the current emphasis on demonstrating skills has brought changes to both the from September 2007 onwards.
academic and QLD requirements of the University of London External Undergraduate Laws
Programme.
Common law reasoning and institutions

From 2007, the course in Common law reasoning and institutions will expect students to
undertake certain research activities:
 register with the Online Library
 do the Online legal research exercises
 complete a research essay.
There will be a compulsory part of the examination on these research activities.
Full guidance on the research expected is given in the 2007 edition of the subject guide for
Common law reasoning and institutions.
These research activities and answering the compulsory part of the examination are
required whether or not students are seeking a QLD.
page 10 University of London External System
Laws Skills Portfolio

For students seeking a QLD, who register from September 2007 onwards, there is one fur-
ther requirement: a range of skills must be demonstrated via a Laws Skills Portfolio, which
is described more fully later in this guide.† Briefly, it is associated either with taking a new †
See Part 6, Developing and
Dissertation option (to be introduced in 2008) or with undertaking a separate small-scale demonstrating skills.
research project.
The following table summarises how all the different skills are demonstrated.
The full range of skills tested in the LLB

Skill How it is tested (‘demonstrated’)
Subject-based Application and problem solving Examinations
Sources and research Common law reasoning and institutions

compulsory examination question and
General transferable Analysis, synthesis, critical judgment and evaluation Examinations

intellectual skills
Autonomy and ability to learn Laws Skills Portfolio
Key skills Communication and literacy (in English) – written Examinations
Communication and literacy (in English) – oral Laws Skills Portfolio
Team working Laws Skills Portfolio
Information technology skills Laws Skills Portfolio
Decisions for students seeking a QLD

Students who wish to graduate with an LLB that is a Qualifying Law Degree need to make
decisions year by year. The diagram below shows what these decisions are for all the differ-
ent pathways.
Scheme A Scheme B Graduate entry route A Graduate entry route B
2nd or 3rd year of study 3rd or 4th year of study 2nd year of study
Register for the optional Register for the optional Register for the optional
subject, EU Law. subject, EU Law. subject, EU Law.
Choose Skills option one

or Skills option two.*
3rd year of study 4th year of study 3rd year of study
Choose Skills option one Choose Skills option one Register for the optional
or Skills option two.* or Skills option two.* subject, EU Law.
Choose Skills option one

or Skills option two.*
*Skills option one: register for the Dissertation optional subject and complete the Skills
Portfolio. Skills option two: undertake a separate research project and complete the
Skills Portfolio.
Learning skills for law 1 Preliminaries page 11
3 Studying at a distance
By choosing to study with the University of London for a Laws qualification by external
study, you have embarked on a major project. You have given yourself the freedom to plan
your time and learn at your own pace – and to make choices that are both right for you and
appropriate to your ultimate goal of achieving the LLB or Diploma in Law.
Serious thought will have gone into making this decision, and also deciding which par-
ticular pathway to follow. But, now that you are really embarking on your studies, a useful
starting point is to think about expectations:
 What you expect: what will studying law be like? How well will you be able to live up to
your own expectations?
 What does the University expect of you? How well will you be able to live up to the
University’s expectations?
Reflecting on and articulating your expectations will help you set your goals and targets
and control your progress over a long and challenging programme. How well do your
expectations match those of the University?
This section offers some space for thinking about what skills you bring to your studies – and
also warns you about some mistaken assumptions that many students make, consciously
or not.
Review why you are taking the course
Activity 3.1
Tick each item that applies to you and write a few words of explanation for each:
1 To obtain a qualification in English law.
2 To strengthen my knowledge of law for career reasons.
3 To make a career in law.
4 To meet other people who are interested in law.
5 To strengthen my academic abilities.
6 To develop a wider understanding of an important area of knowledge, philosophy

and culture.
7 To be able to earn more money.
Feedback: see end of guide.

What do you expect the course to be like?

At the outset, what do you imagine will be involved in studying on the Laws Programme?
Activity 3.2
What will you be expected to do? Tick any of the items below that you believe to be
appropriate:
A There is a lot of information to absorb in law studies and so there will be a

¢
lot of memorisation.
B The textbook is crucial. ¢
C I am studying at a private teaching institution, so I should follow exactly

¢
what my lecturers tell me to study.
D (i) I have heard that there are ‘model answers’ for examination questions
and I should look for these.
¢
(ii) I am studying at a private teaching institution and so I expect my
lecturers to provide model answers.
E It is dangerous to take risks and present my own analysis. I should stick to

¢
‘safe’ answers in activities and assignments.
F I should give less study time to difficult topics and concentrate on what is
¢
straightforward.
G I will be expected to do extra reading outside the main texts. ¢
H I will need to search online sources for relevant reading. ¢
I Reading case summaries will not always be enough: I will need to know
¢
how to read cases in detail and understand the arguments in key cases.
J When I read I need to be thinking: how does this relate to the key ideas in
¢
this subject?
K Ideally, I will discuss issues with fellow students. If I am studying on my

¢
own, I will find online discussion forums provided by the University.
L I may be asked to give an oral presentation, summarising legal issues to

¢
other people and arguing for one interpretation of law over another.
What difficulties do you expect to face?

Although we try to help you as much as we can, this is not an easy course. It is a high quality
university-level academic course and it will pose many challenges and some difficulties for you.
This is normal – it is what higher education courses are supposed to do. Below you will find
a list of challenges that you will face.
Language
Like all students at university level, you will need to develop specialist vocabulary and a
wide competence in the English language. A further challenge with studying law is that you
will need to learn ‘legal English’ – lawyers use words and phrases that you won’t be familiar
with in everyday life. Look out for these and don’t be afraid of them or try to ignore them
– arm yourself with a good legal dictionary and look up anything that isn’t clear to you.
Ideas
You’ll come across a host of new ideas, and will need to understand them and apply them
in practical situations. Learning about the common law and its significance for political
systems and day-to-day life is an exciting challenge.
Active learning
Some people can learn solely by reading, but almost everybody learns better by doing things.
The activities in the subject guides, along with those available online, will help you to build
up your mental stamina and encourage you to think for yourself.
Communicating as a lawyer
You will need to be able to express yourself in a way which lawyers will understand. This
means both writing clearly and ‘to the point’, and also ‘speaking the law’. Try working
with a group of other students to help each other express yourselves more effectively. For
example, three of you working together on Criminal law could each spend two minutes
describing what mens rea means or the significance of a particular case.
Independence
Your independence is one of the most exciting and valuable aspects of your study.
Employers, law clients – and your examiners – do not want someone who merely ‘parrots’
what other people have said or written. They all want you to demonstrate your own ideas,
and your own approach to issues. They want you to be able to address a problem and
provide your own intelligent and well-structured answers.
Finding your own voice

This ties in with independence. In life generally – and especially in English common law
– nothing is fixed and certain. There is always a place for argument, and always a possibility
that what has happened in the past is either incomplete or just plain wrong. Judges expect
barristers to argue using new facts, new approaches and new interpretations. Top results in
LLB examinations go to candidates who can take a critical viewpoint in the questions they
are answering. (Note: ‘critical’ does not mean ‘hostile’.)
Examinations
Here comes the crunch! Apart from the Dissertation option, your course is assessed by
3-hour written examinations. All your studies will be focused on this. Success requires
a good memory for facts, and understanding of ideas, and the ability to express yourself
clearly and coherently. If you carefully follow the University’s subject guides, do the ad-
ditional reading and work through the activities, you will be well placed to succeed.
Being a ‘distance learner’

Distance learning provides access to education for vast numbers of students all around
the world who would not otherwise be able to gain university-level qualifications. But this
does not mean that it is second best. The learning strategies and techniques developed for
distance learning are at the cutting edge of educational innovation because they put the
student at the centre. In the ever-changing world of the 21st century, life-long education is
becoming the norm.
However, we do recognise that being a distance learner might be a rather lonely experi-
ence. We appreciate why many of you choose face-to-face sessions in private teaching
institutions and sometimes the intensive courses that we run from London.
What are the advantages of distance learning?

 independence, personal control, freedom
 the ability to say, when you pass your examinations: ‘Look what I have achieved!’
Distance education is based on the premise that students are at the centre of the learning
process, take responsibility for their own learning, and work at their own pace and in their
own place. It is about ownership and autonomy.† †
S. Wheeler ‘Convergent
technologies in distance learning
It will only work if you:
delivery’, Tech Trends ��
43(5)
 take responsibility for your own learning 1999, p.��
19 . ��
Quoted on Joe
��
 set your own goals and monitor your progress in achieving them Landsberger’s web site:
 are aware of your strengths and weakness, preferences and dislikes www.studygs.net/distanceed.htm.
 get used to reflecting on what you have achieved, and what you need to achieve next
 remember to check your expectations against the expectations that the University has of you
 generally, adopt a reflective and forward-looking stance.

What you bring with you to your study

You are not starting from scratch.† †
Colloquial language: In your
subject guides and other
We appreciate the diversity of our students’ circumstances: some of you are doing the
materials we try to avoid
Programme as a University qualification and are of ‘normal’ university age and attending
colloquial phrases and other
an independent teaching institution full time. Others – many of you – are fitting study in
expressions which you may
with work. Whatever circumstance you are in, you have already experienced education and
find confusing. However, it is
learning: the question here is whether your previous experience helps you or hinders you,
useful to have some knowledge
now that you are engaged in distance learning for the London Laws programme.
of colloquial English. ‘Starting
Much of the learning experience in school and even in college involved a teacher providing from scratch’ is a very common
guidance and control. However, expectations at university level are different and this is phrase. To understand it, see
intensified in distance learning. http://dictionary.cambridge.org.
Firstly, learning is not compulsory – you are a volunteer. Look up ‘scratch’, and it gives you
various phrases, one of which is
Secondly, the University and your local private teaching institution have no control over ‘from scratch’.
you. If you do not study, or do not go to lectures, no one can force you to do so.
Thirdly, school has a tight programme which fills the whole day with timetabled classes.
In university education most of your work will be private study, conducted to your own
timetable.
In school, a teacher is responsible. In higher education, you are responsible.
If you expect university-level learning to be exactly the same as school or college,† then †
See Section 4, Discover your
your past experience will be a major hindrance to your progress. Be open to change. learning preferences. Your
previous educational experience
Now is a good time to examine your feelings. Tick any statement that applies to you:
may have oriented you to surface
learning but now you need to
¢ I feel totally lost. use techniques that involve deep
learning.
¢ I don’t know how to be ‘an independent learner who is control of my own study
programme’.
¢ The level or type of English is too hard for me.
¢ I do not know how much reading I am expected to do.
¢ The Laws course is highly theoretical/intellectual and I am more used to learning

practical subjects.
¢ The things I learned in the past are no use at all in this Laws course.
If you have ticked a lot of these boxes – don’t panic! At least you have identified some issues
that you need to concentrate on. This guide will offer many suggestions as to what you can
do to tackle them.
However, it may also be that you are overlooking some of the positive and relevant skills
that you have learned in the past.
You probably have some awareness of your strengths and weaknesses in learning. Some
students, for example, prefer to learn from lists or diagrams (visual preference) and some
prefer straight text (verbal preference). Work with what suits you. In the next section
of this guide, you will have the chance to explore your preferred learning approaches
and styles. It can make sense to concentrate on your strengths, but don’t neglect your
weaknesses.
You are experienced at ‘getting things done’. However, many goals are often set by a
teacher or boss. Now you need to make those control decisions yourself.
You may be efficient at judging your priorities. This is also an important skill, because you
will need to take key decisions when planning your reading and other work.
Test yourself. What are your study priorities:

 For today?
 For next week?
You also bring with you from your earlier education:

 your skills in the English language (reading, writing and speaking – but of course you will
need to develop these further)
 your ability to recognise and solve problems
 your experience of human and social behaviour
 your information technology skills
 your background knowledge of economic and political events.
That is a substantial deposit in your ‘skills bank’ and you will need to draw on these reserves
as you work through the course. But it always pays to reflect on your skills: which skills do
you still need to develop?
Meanwhile, if you are wondering what studying law will be like, why not access the ‘Pre-
course exercises’ in the Laws programme area of the University’s web site?† †
www.londonexternal.ac.uk/
current_students/programme_
resources/laws/exercises/
index.shtml
4 Discover your learning preferences

How do you prefer to learn? This may seem a strange question, but a great deal of
educational research tries to find out about differences between learners. For example,
the previous section mentioned visual and verbal learning preferences. You may never
have imagined that there might be different ways of learning for different people. But
recognising some things about yourself and your learning early on in your studies will be
of tremendous benefit – in terms of both self-awareness (for example, why you are good at
some things and bad at others) and the ability to consider whether you are employing the
most effective learning strategies.
Some students would like to be given all the information they need – preferably by
teachers in lectures but otherwise in books or guides – and then devote their energies to
memorising it and reciting it under exam conditions. Other students prefer to be left alone
and find out for themselves, going their own way. Some students are interested only in
highest achievement measured by the highest of grades, and choose to learn only those
things necessary to score high grades. There are positive and negative aspects to all of
these approaches if taken to extremes.
In order to start investigating what your learning strategy is, try answering the questions in
Activity 4.1, and then turn to the back of the guide for very basic feedback on your preferred
approach to learning. If your answers cluster in one area, it indicates your natural approach
to studying at this time. You may find that you are balanced between approaches. And, as
you progress in your studies, you may find that your preferences change – so it will be use-
ful to come back to this section at a later point.
Activity 4.1
What is your preferred approach to learning?
Consider each of the statements below.
Mark in each blank box on a scale 1-3:
 if you strongly disagree 1
 if you moderately agree 2
 if you strongly agree 3
Then total your score in each column.
Questions Agree/disagree (scale 1-3)
1 I like to be told exactly what I need to do in any assessment I am set. (Give same
score in both boxes.)
2 My primary aim is to get a high grade.
3 I find organising my study time very easy.
4 I am here because I am bored and I want a challenge.
5 I am here to enhance my job prospects.
6 I intend to be utilitarian and not work beyond what is basically necessary to

complete my assessments.
7 I can study even if the environment isn’t right.
8 Getting a law qualification degree, any class of law qualification, is more

important to me than the course content.
9 I get easily put off if I cannot immediately understand the text I am reading.
10 I am quite competitive in class.
11 I have always been interested in these subjects.
12 I don’t like memorising work.
13 I like to spend time really understanding what I am reading.

14 I like to keep in mind what the lecturer seems to want from me when I am
doing an assessment.
15 I begin work when I have scheduled it.
16 I spend time memorising work in case it’s going to be useful.
17 I always question what I read and what I hear.
Total for each column
Do you need to modify your approach?

As you will see from the feedback, the main distinction here is between a surface approach
(SA) and a deep approach (DA). The following table† gives a broader picture of this contrast. †
This table is compiled from
the work o f J. Biggs, Teaching
Surface learning Deep learning for quality learning at university.
Definition (SHRE and Open University Press,
2003) second edition [ISBN
Accepting new facts and ideas uncritically Examining new facts and ideas critically, and
978-0335211685]; N. Entwistle,
and attempting to store them as isolated, tying them into existing cognitive structures
Styles of learning and teaching.
unconnected items. making numerous links between ideas.
(David Fulton, 1990) [ISBN 978-
Characteristics 0846414872]; and P. Ramsden,
Learning to teach in higher
Relying on rote learning: Looking for meaning: education. (London: Routledge,
Focusing on the outward signs and Focusing on the central argument or 1991)
formulae needed to solve a problem concepts needed to solve a problem [ISBN 978-0415064156].
Receiving information passively Interacting with classmates and teacher
Treating elements within subjects and Making connections between different

programmes as separate elements subjects
Not recognising new material as building Relating new and current knowledge to each
on previous work other
Seeing course content simply as material Linking course content to real life
to be learnt for the exam

Associated with: traditional teacher- Associated with: student-centred active
centred/passive learning mode learning
The University’s expectations – and hence its marking policies – are oriented to the deep
learning approach. The University strongly encourages students to cultivate a deep ap-
proach to learning on our programmes. You should always seek to understand, from a
range of perspectives, what it is that you are learning. If you scored strongly on SA (surface
approach) in the chart, and were relatively low on DA (deep approach), then you should
think about changing your approach. It is highly unlikely that students who only have a
surface approach to learning that does not extend beyond rote learning, summarising and
description, will be able to progress successfully.
But what if you scored high on HA (high achievement)? This shows that you are very de-
termined to do well and prepared to be highly pragmatic in order to achieve this, even if it
means putting to one side aspects of your studies that you find interesting or that might take
you off in unknown directions. The problem here is that it is those very pursuits that might
end up with you getting the highest grades because they are associated with deep learning.
Orienting yourself to deep learning may be difficult. It may go against all your previous – or
even current – educational experience. It may be the case that in previous study you have
engaged in only surface learning techniques – that is, you have relied heavily on memoris-
ing information provided in lectures or textbooks. This also probably means that you are
not in the habit of making connections between ideas or approaching arguments critically.
Knowledge or information without understanding is worth little.

Four styles – or stages – of learning

As well as surface vs deep learning, another classification distinguishes four learning styles.† †
Honey, P. and A.A. Mumford
Which is closest to your preferred learning style? The manual of learning styles.
(Maidenhead: Peter Honey
Pros and cons Publications, 1992)
[ISBN 978-0950844473] p.5. Like
1 The activist
much learning theory, Honey and
This is the student who prefers to learn Activists are not resistant to new ways of doing
Mumford’s work was influenced
by doing, basing learning on experience. things. A negative consequence can be the
by the work of the educational
compulsion to be constantly on the move in
theorist David Kolb in Experiential
order to experience as much as possible. It is
learning: experience as the source
vital not to fall into the trap, however, as many
of learning and development.
activists do, that the experience itself is the
(New Jersey: Prentice-Hall, 1984)
same as learning from the experience!
[ISBN 978-0132952610].
2 The reflector
This is the student who prefers to While this is an excellent style, the potential
observe, or to retrieve a variety of source negative here is that reflectors often have
material, then think about what they difficulty reaching a conclusion because they
have observed and read, coming to a keep searching for more information first.
conclusion.
3 The theorist
This is the student who prefers to The positive side is always wanting to find
construct theories and think things the bigger picture. The negative aspect is
through logically, organising their views that the theorist could jump too quickly to a
in terms of theories. conclusion without properly reflecting on and
reviewing their information.
4 The pragmatist
This is the student who learns by turning The negative side of this is that the
their knowledge (whether ideas, theories pragmatist’s natural preference for expediency
or skills) into practical experience which can lead them to act prematurely in the
they try out in different situations, to test absence of sustained analysis.
the ability of the idea, theory or skill to
work in practice.
†
Perhaps you found that you identified with more than one of these styles; this would, in On learning cycles, see the work
fact, be consistent with the view in education theory that learning is more of a cycle† that of David Kolb at
moves through all these styles or processes. The learning cycle† has four stages, which, you www.businessballs.com/
will note, have a very clear relationship to the four learning styles we just looked at above: kolblearningstyles.htm.
1 a real experience
†
There is now a more current
2 reflecting on that experience and observing it, learning from it
variation of this which, in place
3 conceptualisation (seeing similarities, or patterns, using theories and/or models to make of Kolb’s apparently closed,
sense of the experience and the reflection) one-dimensional cycle, proposes
4 experimenting, with the student learning from the experience in order to be better a two-dimensional cycle called
equipped for the next experience. the knowledge spiral. See
Bawden, D. and L. Robinson
Ideally, learning should involve all four stages, and therefore the fact that many of us use and
‘Promoting literacy in a digital
feel comfortable with only one way of learning, and uncomfortable with others, is a problem.
age: approaches to training for
So, despite your natural preferences, you will benefit if you consider, and attempt to use, all
information literacy’, Learned
of the learning styles. What you will find is that if you are flexible in this regard you will soon
publishing ��
15(4), 2002, pp.
realise that each of these learning styles is particularly suited to different learning tasks.
297–301. See also www.ukcle.
For example, the activist style is particularly useful when searching for data (doing research ac.uk/resources/tlr/theory.html.
on law cases and legal rulings or legal academic articles on doctrine and policy). The
reflector style is excellent for thinking about the tasks to be executed, for example sorting
out your overall scheme of study, reading your subject guides and notes, thinking tasks
through, or setting up an individual scheme of learning. The pragmatist is good at repeat-
ing learnt techniques and therefore is highly responsive to going through worked examples
to learn methods of problem solving. The theorist is good at working towards understand-
ing aims and objectives and also synthesising information into a bigger picture.
Memorising and memory

It is very important to be clear about the role of memorising in Laws studies.
On the one hand, it is undoubtedly true that lawyers, like doctors, do need to have a lot of
basic knowledge. They need to remember key (‘leading’) cases that set precedents for fu-
ture decision making by the courts. They need to remember controversial cases that open
questions about how law is to be interpreted. They need to know about all the current
statutes and the latest cases interpreting them. So there is a lot to remember. Practising
lawyers will need to have this basic knowledge available to them and thus law students do
need good memory techniques, not only for the sake of their future careers (if they want to
go into practice) but – more immediately – to pass examinations.
On the other hand, some students (and sometimes their teachers at private institutions)
tend to go wrong by putting all their energies into memorising, incorrectly believing that
examination success comes from memorising and repeating notes and revision materials.
On the contrary, memorising without understanding – merely repeating knowledge or
information – will lead to poor examination results. The examination is designed to encour-
age you to demonstrate that you understand what you have taken in, that you can apply it
and can organise it into arguments.
Some students have an excellent memory and are absolutely dismayed that degree-level
study does not privilege memory. You are required to remember quite a lot, but you are
also required to analyse and critique what you have leant, to evaluate the ideas of others
and to present your own views. Understanding after reflection takes time: learning is
cumulative. Each topic you learn, each unit within a topic, is constantly related back to your
existing knowledge. Sometimes a quick overview of a topic before any of it is studied in
detail can assist understanding, for we give ourselves a basic map of where we are going.
Some students may be concerned that they have a bad memory, or believe in the school of
thought that says that as you get older your ability to remember diminishes. In actual fact
the much talked about mid-life memory loss is not substantiated by much hard evidence.
Certainly it is correct to state that our mental processes change with age and there is a loss
of speed; however, we develop far more efficient methods and strategies for the manipula-
tion of data that in fact makes the loss of speed hardly noticeable! The issue is how much
the brain is used rather than the age of the user. Laziness, expecting to forget and indulg-
ing our forgetfulness is more to blame for memory loss than ageing. To remember is to
involve oneself in an active process.
Memory techniques and preferences

While your study should not privilege memory, it is an important tool and you do need to
consider ways of ensuring that material is remembered.
If we merely hear something, we will remember less than if we hear it and then read it. If we
say it as well we have increased our chances of remembering it threefold. Not only are there
these tricks, but there are also different types of memory that can be put to use: visual,
aural, oral, kinaesthetic (remembering with the body, e.g. tying shoelaces) and verbal.
Verbal memory involves, as you may have thought, dealing with words and will be your
primary tool. However verbal memory can be enhanced by uniting it with visual memory.
Making notes and using differing colours to highlight, or using different patterns in your
note taking, increases your ability to remember the text. One can also utilise kinaesthetic
memory, for example, moving around and talking over the text to yourself.
Educational research has shown – perhaps surprisingly – that if students concentrate

on understanding they are more likely to remember information years later, long after
students who rote-learnt the same information have forgotten it. Obviously there will be
moments on the course for both approaches to complement each other, for sometimes all
that is required for a brief outline of an ancillary topic is summary and description, but your
predominant approach should be deep-level learning.
Part 2
Getting started
Sections
5 Preparing to study . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6 Resources from the University . . . . . . . . . . . . . . . . . . . . . . 26
7 Orientation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
8 Using your subject guides . . . . . . . . . . . . . . . . . . . . . . . . 37
9 Using the Online Library . . . . . . . . . . . . . . . . . . . . . . . . . 45
10 Studying with an institution . . . . . . . . . . . . . . . . . . . . . . . 51
11 Making and using notes . . . . . . . . . . . . . . . . . . . . . . . . . 54
12 Plagiarism, ethical conduct and University rules . . . . . . . . . . . . . 58
13 Becoming an autonomous learner . . . . . . . . . . . . . . . . . . . . 61

Learning skills for law 2 Getting started page 23
5 Preparing to study
It is important to set up the right environment
for study. Here is a simple study matrix: Place Study Resources
Place
It is crucial to have a place to study. You need somewhere to keep your
books and materials safe and organised, and where you can work in
peace and quiet. The place where you study can be as important as Time
your timetable. Adequate light, freedom from noise and interruptions
(particularly from television), a good work surface – not cramped but
with enough space to lay out all your different study materials – easy access to books and
files, the facility to leave them in place overnight: all these may all seem obvious, but don’t
neglect this matter. Find the place where you feel most comfortable and alert and make a
habit of working there.
You should have space for writing, for storage of books and other materials, and enough
room for your computer.
Many students organise a ‘study corner’ in their home, and make sure that everyone recog-
nises that this place is dedicated to their study commitments.
If you are studying at an institution, you should also have some study space available there
and you will need to think about how to use this space: for example, if the institution has
better access to the internet, it would make sense to do your searches there and download
them, perhaps doing a skim read.† †
See Section 10, Studying with an
institution.
Time
One of the big issues in distance learning is planning and organising your time. There never
seems to be enough and you will probably have conflicting calls on your time, from family,
from your job, and from friends. Remember: the aim is not to work all the time.
 If you work all the time, you will cut yourself off from your ties in the world and all that
refreshes your soul. You should recognise that a certain amount of recreation is needed to
keep you alert and able to absorb knowledge critically: not all of your non-committed time
should be given to study.
 If you work all the time you will probably not be working very efficiently.
Effective time-management involves working back and forth between large scale land-
marks and smaller scale weekly or daily routines. The large scale gives you parameters or
constraints: dates you have to meet, key decisions to make. The smaller scale is where you
set objectives and develop timetables for meeting them.
Annual landmarks
Establish the big dates in your calendar.
 When do you take your exams?
 When do you need to communicate with the University? (exam entry, registering for the
following year etc.)
 If you are studying at an institution, note the starting dates of teaching, the revision period
and mock exam dates.
 Key landmarks in the other parts of your life: are there any clashes? How will you manage
them?
Once you have established these parameters, you can start to build up a study schedule.
Your pathway through the Diploma in Law or LLB

At this point you have already decided on a particular pathway through the Diploma in
Law or LLB. This was a major decision but it is possible that you may need to review that
decision after your exams. Generally, if you are working, the Laws Programme strongly
recommends taking the slower routes through the course.
Are you seeking a Qualifying Law Degree?

Whether you are undertaking the Diploma in Law or the LLB, you need to undertake some
steps to make sure that you will ultimately be eligible for a QLD.
If you are seeking an LLB that is recognised as a Qualifying Law Degree, you have a number of
decisions to make every year, not only in your first year of study but also in subsequent years.
Do you know what these steps are? And have you scheduled them into your annual calendar?† †
See Section 2, Skills requirements
and a Qualifying Law Degree.
Small scale goals
Most students gain from a measure of orderliness and self-discipline. But individuals differ.
Start by asking yourself:
 At what time of day do I work best? (Some people are naturally ‘early birds’, while others
are ‘night owls’.) Even if studying early in the morning before you go to work might seem to
make most sense, this will not be very effective if you are more alert at night time.
 If you are studying at an institution, how can you best use the time between lectures/semi-
nars/tutorials? This overlaps with questions of study space: do you concentrate best on
deeper work at the institution or at home?
 You will definitely need to review (possibly many times) how to integrate your studies with
your normal working life and family commitments.
Do not worry too much if you find that the early stages of a subject take you longer than
you had originally planned. Much or all of the material, the language it uses and the
methods of study may be quite new to you. It would be surprising if, early on, you did not
need to invest more time and effort in order to build up the momentum that will take you
through later stages more quickly and confidently.
You will speed up as you:

 acquire basic knowledge
 get practice in studying
 build up your legal vocabulary.
But remember that tasks and materials become steadily more challenging as you progress
– in line with your developing skills.
At the start of your studies, it is probably a mistake to do too much, and certainly a mistake to
let your initial enthusiasm lead you into attempting so much to begin with that you later have
to reduce your timetable. There may be periods when study is impossible, and there is no
need to worry about this as long as such ‘time-out’ periods are not too frequent or prolonged.
Do not worry too much if you find that the early stages of a subject take you longer than
you had originally planned. Much or all of the material, the language it uses and the
methods of study may be quite new to you. It would be surprising if, early on, you did not
need to invest more time and effort in order to build up the momentum that will take you
through later stages more briskly and confidently.
Using this part of the guide

This part of the guide introduces you to the resources on offer and gives advice on making
the best use of them.
 In Section 6 you will find an annotated list of all the resources that the University provides
to its Laws students.
 Section 7 starts from the moment you receive your box of materials and offers initial
orientation advice.
 Section 8 gives an overview of the subject guides, explaining what the different types of
headings mean and what activities are offered. The relation between the subject guides
and the reading – textbooks and study packs – is vital.
 Section 9 offers advice on using the Online Library.
 Section 10 covers practical and academic aspects of studying with an institution.
 Section 11 gives some key tips on making and using notes, important for both lectures and
private study.
 Section 12, on Plagiarism, ethical conduct and University rules, introduces some key issues
that you should be aware of.
 Finally, Section 13 looks at the two aspects of becoming an autonomous learner.
Familiarisation
As you work through these sections of the guide, you will gain a good overview of the
course. Use this familiarisation checklist to make sure you take a look at everything.
Familiarisation checklist
Have you: Yes/No
Looked over (skimmed/flipped through) at least one subject guide?
Skimmed over any of the texts in the study pack? – you don’t have to start at the beginning.
Registered with the Online Library and received your Athens password?
Explored one of the databases on the Online Library?
Located the Online legal research exercises?
Tried out the first Online legal research exercise?
Registered with the Laws VLE and received your password?
Located the formative assessments (CMAs) and had a look at them?
Identified the Regulations and looked at the course syllabuses?
Looked at the Examiners’ reports together with the assessment criteria (in the Regulations)?
Do you know the meaning of the following terms? Yes/No Need to clarify
syllabus
examination offence
learning outcome
annotated
Note any other terms to look up
Your initial period of study could be very hectic. You will need to balance different objec-
tives: starting to learn about the different law subjects – which needs focus – but also
gaining a general picture.
Setting aside time for initial familiarisation with the University of London resources will
give you a fundamental insight into the expectations and the possibilities of the Laws
Programme.
6 Resources from the University

Historically, what the University of London offered LLB external candidates was simply the
syllabus and the examinations, which, taken successfully, led to the degree being awarded.
With the examinations set and marked by the University, a University of London LLB by
external study was – and still is – highly valuable.
Over recent years, the University has built up a significant array of resources for students
to use in their studies − and it is up to you to make the best use of them. This is even more
†
true today, when active learning is valued over passive learning and autonomy in learning On active and passive learning
is identified as a skill.† see Section 4, Discover your
learning preferences.
Annotated list of resources

The list below† is divided into five categories according to function: †
This list is correct as at October
 Study materials and support: The materials are designed as aids to study. The list provides 2007. Please make sure you
a description of what they are and where they are available. (All materials are available obtain the most recent editions
both in hard copy and online.) This category also includes live face-to-face weekend ses- of all the textbooks. Note
sions offered in London. also that cover designs may
change where new editions are
 Reading: this identifies all the different types of reading resources provided by the
published.
University, in hard copy and online.
 Skills: as well as this guide itself, a number of other key resources are provided.
 Assessment and examinations: again, while this Learning skills for law guide itself offers
advice on examinations, there are other important academic and administrative resources
to be aware of.† †
See Part 7, Examinations.
 Programme information: general administrative and other information about the External
Undergraduate Laws Programme.
Because items often contain information relevant to different functions, they will ap-
pear under more than one heading below – listing only the information relevant to that
function.
At the end of this section the External Undergraduate Laws Programme web sites are
detailed:
 University of London External System website
 Laws resources web site
 Laws VLE (Virtual Learning Environment).
Study materials and support

Pre-course exercises
Designed to stimulate students’ interest in law and acclimatise them to basic legal con-
cepts, these are available to all who visit the web site. Even before students register they
can have a ‘taste’ of studying law and can reflect on the type of skills they need to develop
while studying on the External Undergraduate Laws Programme.
Availability
Online only at: www.londonexternal.ac.uk/current_students/programme_resources/laws/
exercises/index.shtml
Via the Laws VLE at: http://vle.londonexternal.ac.uk/laws/gateway.nsf
Studying English law with the University of London

This textbook provides students with a broad introduction to the study of law and the
common law system, including the relationship between English law and the British
constitution, English law within the EU, and an introduction to legal research and legal
terminology. It contains a series of study activities and English language/English for law
vocabulary building exercises.
Availability
Printed version: sent with LLB Intermediate/Diploma in Law† study materials. †
LLB Intermediate/Diploma in
Online: the first four chapters are available at: www.londonexternal.ac.uk/current_students/ Law includes LLB Schemes A and
programme_resources/laws/subject_guides/index.shtml B and Graduate Entry Routes A
and B students taking Common
The full text (all chapters) is available on the Laws VLE at: http://vle.londonexternal.ac.uk/
law reasoning and institutions,
laws/gateway.nsf
Criminal law, Elements of the law
Subject guides of contract and Public law.
Each subject has a separate guide, prepared by University law teachers who are experts in
the subject and familiar with the current syllabus. The writers work with a distance learning
advisor who ensures that the reading guidance is well structured and that the learning
activities are appropriate. Each subject guide has a companion study pack of readings.
Subject guides are not intended to be substitutes for textbooks; they are designed to
guide
students in an active process of learning by:
 leading students through the syllabus
 highlighting what is important in relation to particular topics in the syllabus (through
learning outcomes and specific discussion)
 identifying the key cases and statutory provisions
 offering specific instructions on reading, divided into Essential reading and Further reading
 providing learning activities – self-assessment questions (SAQs), activities (with feedback)
and sample examination questions (with guidance on answering) – that give students a
way of developing and testing their knowledge and understanding of the subject.
Availability
Printed version: sent annually as students complete registration.
Online: the first four chapters of the subject guides for all the compulsory subjects at all lev-
els and most of the options, including EU law, are available at: www.londonexternal.ac.uk/
current_students/programme_resources/laws/subject_guides/index.shtml
The full text (all chapters) of all subject guides is available on the Laws VLE:
http://vle.londonexternal.ac.uk/laws/gateway.nsf
Recent developments in law

These updates highlight changes in the law up to February of the current year and give
details of new editions of textbooks since the subject guides were produced. All cases and
statutes included within these updates are examinable.
Availability
Printed version: booklets sent to students in March.
Online: available before printed version arrives at: www.londonexternal.ac.uk/
current_students/programme_resources/laws/llb_diplaw/llb.shtml
Intensive weekend courses

Four intensive weekend courses for the Intermediate/Diploma in Law and Finals subjects
are organised by the External Laws Undergraduate Programme each year. Held at a venue
in central London, each weekend covers different topics in each of the subjects covered.
The courses provide an opportunity for face to face interaction with the academics from
the University of London, as well as meeting other students.
For more information and an application form, visit: www.londonexternal.ac.uk/current_

students/programme_resources/laws/laws_weekend/index.shtml

Reading
Textbooks
After registering, students receive one copy of the core textbooks for each of the four
LLB Intermediate/Diploma in Law subjects. These enable students to begin studying
immediately.
Study packs
Encouraging students to read beyond the textbook is key to their developing a critical-
reflective stance but it is not always easy to gain access to all the texts listed in the subject
guides under Essential and Further reading. The University has negotiated an extended
license with the Copyright Licensing Agency and is now able to provide printed and online
access to key readings.
Availability
All compulsory subjects plus Criminology and International protection of human rights.
Printed version: sent annually as students complete registration.
Online: on the Laws VLE at: http://vle.londonexternal.ac.uk/laws/gateway.nsf
IOLIS CD-ROM
This Windows CD-ROM offers an extensive searchable database with the full text of over
2,000 cases, statutes and articles in law subjects including English legal system (Common
law reasoning and institutions), Elements of the law of contract, Public law, Criminal law,
Law of tort, Land law, Trusts, EU law, and Public international law. Cases are extensively
cross-referenced and the resource book can be searched for any occurrence of a word or
phrase. There are comprehensive indexes, a legal dictionary and legal bibliography of key
academic articles. Through a licensing arrangement, the University of Warwick makes the
most recent edition available each year to External LLB students.
Although online access and the Athens password is needed to register at the start, after
that IOLIS can be used as a freestanding CD-ROM.†
Availability †
Some online resources require
The most recent version is sent annually to all Laws students.
passwords: see Section 9, Using
the Online Library.
Online Library
The set of resources made available via the Online Library for the LLB and Diploma in Law
courses is extensive and covers both law-specific databases and multi-disciplinary datasets.
Law-specific databases
LexisNexis: Full text case law and amended legislation for the UK, US (Federal and State), EU
and other jurisdictions.
Westlaw: Full text UK case law, amended statutes and journals.
Casetrack: Full text database of court judgments (transcripts).
HeinOnline: Law Journal Library covering over 650 titles (including older issues of journals).
Cambridge Journals Online: Includes Cambridge Law Journal.
Justis: Full text of the Law Reports and of UK statutes from 1235.
KluwerArbitration: Full text database of primary and secondary materials relating to com-
mercial arbitration, including conventions, legislation, case law and journal articles.
Multidisciplinary databases
ABI/Inform: Covers business, management, economics and a wide range of related fields. It
provides abstracts of material from 1971 onwards and over 2,000 titles in full text, from 1987
onwards.
Academic Search Premier: Updated daily. Multi-disciplinary database with full text cover-
age of almost 4,700 scholarly publications, including full text of over 3,600 peer-reviewed
journals dating back to 1975.
Business Source Premier: Full text coverage of nearly 7,600 business publications, including
over 1,100 peer-reviewed scholarly journals. Coverage back to 1922 in some cases.
IBSS (International Bibliography of the Social Sciences): Covers the core social science
disciplines of economics, sociology, politics, and anthropology. Its coverage spans more
than 50 years from 1951 to the present and draws on material published throughout the
world (NB abstracts only).
JSTOR: A digital archive collection of core scholarly journals. It is unique in that complete
archives of these journals have been digitised, starting with the very first issues, many of
which were published as far back as the 19th century.
Familiarisation with the Online Library is provided through: an Online Library tour, quick
start guides for each database and FAQs (frequently asked questions), as well as individual
support available by emailing or telephoning the library support staff. Guided and tested
familiarisation with these online databases is also provided through the online legal
research exercises.
Availability
Once students are registered, they are sent an Athens authentication password.
Web site: www.external.shl.lon.ac.uk
Online Library tour at: www.external.shl.lon.ac.uk/help/tour.php?id=law
Help and support:
Online Library Enquiry Service: Telephone: +44 (0) 20 7862 8478 Mon-Fri 9am-5pm (outside
service hours voicemail messages can be left)
Email: OnlineLibrary@shl.lon.ac.uk
Web form: www.external.shl.lon.ac.uk/help/enquiries/index.php
The licensing agreement has been renegotiated to allow access to the Online Library to
nominated ‘library’ contacts in certain categories of teaching institutions, including all
institutions with Permission to teach the Diploma in Law (PTT).
Reminder: Students cannot receive their password until they have registered.
Skills
Textbook on legal method
The essential textbook for Common law reasoning and institutions is a legal methods
textbook:
Learning legal rules: a student’s guide to legal method and reasoning by J.A. Holland and J.S.
Webb (Oxford: Oxford University Press, 2006) sixth edition [ISBN 978-1854311092].
It offers a thorough introduction to the study of law, with a clear and accessible treatment
of legal research skills and legal methods. Topics include:
 finding the law
 the doctrine of judicial precedent
 how precedent operates
 interpreting statutes – the rules
 ‘Bringing rights home’: legal method and the European Convention on Human Rights.
Availability
The latest edition is sent to all students taking Common law reasoning and institutions.
A companion web site is available at: www.oup.com/uk/orc/bin/9780199282500

This guide! The 2007 edition of this guide has been extensively revised and includes infor-
mation on the Laws Skills Portfolio.
Availability
Printed version: sent to all students receiving LLB Intermediate/Diploma in Law study materials.
Online: the first four chapters of the guide are available at: www.londonexternal.ac.uk/current_
students/programme_resources/laws/subject_guides/law_study_skills/law_study_skills.shtml
The full text (all chapters) version is available on the Laws VLE at: http://vle.londonexternal.
ac.uk/laws/gateway.nsf
Online legal research exercises

These exercises are designed to assist students in acquiring and refining their legal
research skills and carrying out legal research on the web using the legal databases in the
Online Library, including Westlaw, LexisNexis and Justis). Feedback is provided. Students
follow a systematic programme building up in stages, from a basic ability to identify and
retrieve primary legal sources and journals, to reading and understanding law reports, to
the capacity to locate the most up-to-date legal information and integrate material from
primary sources with the assistance of secondary legal sources, and ultimately to identify
and engage in contemporary debates.
The legal research exercises are a course requirement for Common law reasoning and insti-
tutions for all students registered with effect from September 2007 onwards. The exercises
are examinable in the compulsory research part of the examination.
Availability
Ten first-level exercises are available, plus further exercises for higher levels.
Online: www.londonexternal.ac.uk/current_students/programme_resources/laws/exercises/
index.shtml

Extensive information, advice on the skills outcomes and how to achieve and evidence
them will be available in 2008-09 in the form of a substantial guide, using an array of
examples.
Assessment & examinations

IOLIS CD-ROM
The IOLIS CD-ROM includes simple multiple choice self-test exercises in key law subjects
where students score ‘right’ or ‘wrong’. Useful for testing initial comprehension.
Computer-marked online formative assessments (CMAs)

Providing students with a key opportunity to receive feedback on their progress, these
assessments are multiple choice questions to be undertaken online, with extensive
feedback provided on completion of each test. There are three sets for each subject, test-
ing knowledge, comprehension and application as students work their way through the
course. Each test should take approximately one hour to complete.
Availability
All compulsory subjects plus EU law.
Online: www.londonexternal.ac.uk/current_students/programme_resources/laws/cma/
index.shtml
A guide to examination technique

The guide offers guidance on the University’s expectations of students undertaking LLB
and Diploma in Law examinations and much detailed advice.
Availability
Printed version: sent annually to all students.
Online: www.londonexternal.ac.uk/current_students/programme_resources/laws
Past examination papers and Examiners’ reports

Examiners’ reports provide an insight into how individual questions should have been
tackled and outline common mistakes made by students in previous years. Past exami-
nation papers enable students to practise for examinations. Both are key resources for
revision but their role needs to be understood. Examiners often find answers with material
that seems to be directed more at previous examination questions than the ones on the
actual paper examined! Past examination papers are indicators of what will be assessed,
but generally, students score best where they have concentrated on the learning outcomes
for the course, found primarily in the subject guides.
Availability
Printed version: sent annually to all students.
Online version: www.londonexternal.ac.uk/current_students/programme_resources/laws
Subject guides
Most chapters of every subject guide conclude with sample examination questions, plus
guidance on answering them.
Programme information
Student handbook
Revised annually, the Student handbook contains advice on matters such as study tech-
niques, planning your studies, using the study materials, bookshops, libraries, contacts
at the University, and key dates. It also contains mark descriptors giving explanations of
characteristics of answers in the different marking bands.
Availability
Printed version: sent to students annually.
Online: www.londonexternal.ac.uk/current_students/general_resources/handbooks/
laws_llb.shtm
Regulations
The Regulations contain full details of key information, including syllabuses, programme
structures, fees, how to enter for examinations, and how to transfer between Schemes and
Routes.
Schedule E contains the assessment criteria used in Laws Programme marking – detailed
descriptions of the standards used by examiners.
Availability
Printed version: sent annually to all students registered on the LLB or Diploma in Law.
Online: www.londonexternal.ac.uk/current_students/general_resources/regulations
External Undergraduate Laws Programme web sites

Laws resources web site
www.londonexternal.ac.uk/current_students/programme_resources/laws/index.shtml
The External Laws Undergraduate Programme has an

online Programme area to improve study support for
students. It provides access to a variety of resources,
including online legal research exercises, computer-
marked formative assessments, pre-course exercises,
Examination papers and Examiners’ reports, the first
four chapters of the subject guides, and information
about Laws intensive weekend courses and the in-
duction course. All are also available through the VLE.
To access the LLB and Diploma Regulations and the

Student Handbook, click on General Resources in the
left hand column. You will then find the appropriate
links in the first two lines of the main text.
Laws VLE (Virtual Learning Environment)

http://vle.londonexternal.ac.uk/laws/gateway.nsf
The Laws VLE is available to all Diploma in Law and LLB students. It is also available to
lecturers at many teaching institutions, including all of those with Permission to Teach the
Diploma in Law.
Full text version of subject guides

Thanks to the fact that the VLE password protects its content, students can access all sub-
ject guides and study guides online. These are downloadable either as the complete guide
or in chapter-by-chapter format.
Subject pages
A subject page for each LLB Intermediate/Diploma in Law subject with regular course bulle-
tins/subject newsletters for each subject is available. These are provided by legal academics
associated with the External Undergraduate Laws Programme, whether as subject guide
writers or examiners.
Discussion forums
Facilities are provided for discussion of issues relating to the courses or more generally.
They are monitored for inflammatory and defamatory statements.
Profile pages
Students may set up their own profile pages, which (because they are password protected)
can include email addresses. This is a valuable supplement to the S2S student network
database.
Links
The VLE provides access to a range of services and
information. Some of these resources are also avail-
able through the Laws Programme Resources site,
but the VLE provides an easier grouping:
 pre-course exercises
 online legal research exercises
 computer-marked formative assessments (CMAs)
 Examination papers and Examiners’ reports
 Online Library
 web sites of the Bar Standards Board (previ-
ously known as the Bar Council) and the Solicitors
Regulation Authority (previously known as the Law
Society)
 other useful web sites such as the House of Lords
homepage and the Department for Constitutional
Affairs homepage.
Technical and general support of a non-academic

nature is available for users of the VLE at:
lawsonline@lon.ac.uk.
7 Orientation
The box of materials

Your first encounter with Laws Programme resources will probably be when your box of
materials arrives from the University.† †
If there is any delay in the
arrival of your box of materials,
The box contains:
the first four chapters of the
 the introductory guide Studying English law with the University of London subject guides may be accessed
 subject guides and study packs (sets of readings) for the four Intermediate courses: without a password at: www.
 Criminal law londonexternal.ac.uk/current_
 Public law students/programme_resources/
 Common law reasoning and institutions laws/subject_guides/index.shtml.
 Elements of the law of contract
 textbooks for these four subjects

 this Learning skills for law guide
 IOLIS CD-ROM
 Examination papers and Examiners’ reports booklet
 Regulations for the current year
 Student handbook
And – the key to sorting out the box:

 a ‘kit guide’ called Getting started with English law.
We hope that this extra material will help you with your studies – but there is rather a lot
of it! It is important that you feel in control of everything and see the materials as tools for
your use. These are your materials and you will be far more confident and competent if you
feel comfortable with them and see how they all fit together.
We recommend that, when you receive the box of materials, you set aside enough time to
familiarise yourself with all of them, right from the start.† †
You should also match up the
materials in the box with the list
 First, find the Getting started with English law brochure – and use it to help you sort out the
of resources in Section 6.
various materials.
Subject guides, textbooks and study packs

 Identify the subject guides associated with each of the subjects you are taking this year.
Whether you are studying on your own or at an institution, the subject guides should form
the core of your study. They have been especially commissioned to facilitate Laws Programme
study and they reflect the expectations that markers will use in the examinations.† †
Section 8 offers detailed
guidance on how to use the
 Pick out which textbooks in the box relate to which subjects.
subject guides.
 Pick out the study packs for each subject. These contain a selection of further reading
materials that are referred to in the subject guides.
 What topics will each course cover? Check the syllabus for each course in the Regulations.
 Meanwhile, for background information, read the short guide Studying English law with the
University of London. It introduces English law and the materials you will study.
IOLIS CD-ROM
Locate the IOLIS CD-ROM. It is an important study aid. It contains:
 interactive guides to many different Laws subjects, including English legal system (also
known as Common law reasoning and institutions), Elements of the law of contract, Public
law, Criminal law, Law of tort, Land law, Law of trusts, EU law, and Public international law
 ‘self-test’ multiple choice questions that give you feedback on your progress
 a ‘Resource book’, which includes a collection of cases, statutes and articles and holds over
2,000 full-text cases
 a legal dictionary and legal bibliography of key academic articles.
Passwords
A number of Laws Programme resources require passwords and registration.
 To access the Online Library you will need the nine-digit student number that was allocated
and sent to you by the Registry when you applied for the course. (That same number will
remain with you throughout your time with the University.)
 For the Laws VLE, you will find a password on the consignment note that goes with box, or
you can email lawsonline@lon.ac.uk.
 In order to make use of IOLIS, you will need to register your IOLIS password. Locate the
password on the cover of the CD-ROM, make sure your computer is connected to the internet,
and load the CD-ROM. It will take you through the registration process. After that first step,
you don’t need to be connected to the internet to use IOLIS – it can be used as a free-standing
CD-ROM.
 Why not register for these resources now?† †

See Section 9, Using the Online
Library, for the next steps.
Thinking ahead to examinations?
 The booklet Examination papers and Examiners’ reports is an invaluable guide, especially
if you start using it early in the year. The Examiners’ reports describe where students go
wrong (and right) in the examinations in each subject.
 The Diploma in Law and LLB Regulations contain the assessment criteria – what the University
examiners look for when marking. For example, here’s how to get a 2:2 on the LLB:

Lower Second Class (50 to 59%)

A substantially correct answer which shows an understanding of the basic principles.
Lower second class answers display an acceptable level of competence, as indicated by the
following qualities:
– generally accurate
– providing an adequate answer to the question based largely on textbooks but without
evidence of much further reading
– competently presented
– no real development of arguments
– may contain a significant error or omission
– may contain some material which is not relevant to the question posed
– competent written English but may contain some grammatical errors.
Problem questions:
In addition to the above, lower second class answers to problem questions will also satisfy
the following criteria:
i) most of the major issues and minor issues must have been spotted
ii) the application of the legal rules and case law must be generally accurate and
competent
iii) there should be a conclusion that summarises the legal position of the relevant parties.

The majority of students who complete the University of London LLB by external study
achieve a 2:2 degree. If you are aiming for a higher class of degree – or if you want to avoid a
lower category – then studying the assessment criteria can be very helpful.
Don’t lose track of

 the Student handbook − this is very useful for finding out how to get support from the
University and key information related to managing your studies
 the Regulations.

Other resources you will need

A computer with internet access
You will need to have computer available to use on a regular basis, preferably your own
machine. It should have a CD-ROM drive to use IOLIS.
Online access is now a requirement for registration to the LLB Programme. You do not need
to have this through your own computer, so long as you have access elsewhere, probably
at an institution where you are studying.
Statute books
You are strongly recommended, on academic grounds, to purchase your statute books
when you begin studying, at the same time as your other books. Many publishers issue new
editions of their statute books at the start of the British academic year in September or
October and these are often no longer available by March in the year of the examinations.
Because statute books may be taken into the examination room in many courses (see the
course syllabuses in the Regulations), there are some restrictions on annotations. First, do
not buy annotated statutes if you wish to use those statutes in the examination. If you can
afford to buy two sets of statutes – the annotated version as well as the bare version – do
so, as the annotated versions provide informed and detailed legal views on the wording
and meaning of the provisions. Second, if you have ‘annotated’ the statute book yourself
– in other words, written on it! – you will not be permitted to take this into the examination
room.
For your own study purposes, why not download the relevant legislation and use that for
studying, making notes as you go along? Then you can take the clean book version into the
examination room.
A legal dictionary
The IOLIS CD-ROM offers a dictionary, but we suggest that you also buy a legal dictionary.
We recommend:
 Bone, S. and Woodley, M. Osborn’s concise law dictionary. (London: Sweet & Maxwell, 2005)
tenth edition [ISBN 978-0421900509].
 Curzon, L.B. and Richards, P. Dictionary of law. (Harlow: Longman, 2007) seventh edition
[ISBN 978-0582894266].
 Martin, E.A. and Law, J. A dictionary of law. (Oxford: Oxford University Press, 2006) sixth edi-
tion [ISBN 978-0192806987].
8 Using your subject guides

A few tutors tell their students to ‘ignore the London subject guides’.
This is a serious mistake. Here’s why:
 The subject guides use distance learning techniques to bridge the distance between you
and the lecturers and tutors of the University.
 The subject guides will take you through the syllabus† for each course. Only topics on the †
The syllabus specifies all the
syllabus are examinable. topics covered in a particular
subject (e.g. Criminal law).
 In the subject guides you find the learning outcomes for each topic or subset of the syl-
Syllabuses for all the subjects can
labus. These are highly important guide posts for your studying.
be found in the Regulations.
 The subject guides try to produce in a different form much of the culture of teaching and
learning that internal students experience in on-campus activities, They do this by indicat-
ing particular ways of seeing the subject, by organising activities and questions that could
be done in tutorials by internal students.
 The subject guides mediate between the syllabus and the assessment and we strive to
make a flow from syllabus to learning outcomes to activities to assessment.
 Your subject guides provide guidance on the subject, aiding the acquisition of knowledge
and understanding. They also engage you in activities, including reading from textbooks,
study packs and the Online Library, or undertaking online research exercises and online
formative assessments (‘computer-marked assessments’, otherwise known as CMAs).
Reading
Subject guides† are linked with major textbooks. For the four Intermediate/Diploma in Law †
The full text of the subject
subjects, the University provides you with a textbook. guides in all core subjects is also
available on the Laws VLE.
With this Intermediate subject guide… …we provide this textbook
Criminal law Criminal law (Smith and Hogan)

page 16 University of London External Programme
Public law Constitutional and administrative law (Barnett)
Introduction
Elements of the law of contract Contract law (McKendrick)
This chapter considers, in general terms, the elements of an offence which the prosecution
Common law reasoning and institutions Learning legal rules (Holland and Webb)
must establish, beyond reasonable doubt, before a defendant can be convicted.
The elements of an offence are those external elements (actus reus) and the internal – or
The subject guides are not a substitute for the textbooks and the readings in the study
mental – element of the offence (mens rea) which are contained in the definition of that
packs. offence
You need to will
which read bethe textbooks
found and study
either at common lawpacks
or in acarefully, concentrating
statute. The on the
offence of criminal
pages damage
specified in the subject guides.
contrary to section 1(1) of the Criminal Damage Act 1971 is used to exemplify analy-
sis of the actus reus and the mens rea of a criminal offence.
Thus at the beginning of Chapter 2 of the Criminal law subject guide you will see:
The issue of lawful excuse is also considered in this chapter.
Chapters 3 to 6 examine the general principles of actus reus and mens rea in more detail.
Essential reading
¢ Smith and Hogan, Chapter 4: ‘The elements of a crime: actus reus’, pp.34–44.
Learning outcomes Learning outcomes: what are

By the end of this chapter and the relevant readings you should be these for?
able to: Every chapter in your subject guides con-
u find the definition of a criminal offence tains learning objectives and reminders of
This means that you should read pages 33–44 of Smith and Hogan (the textbook) before
learning objectives.
u demonstrate an understanding of the constituent elements of
you gothat
anydefinition,
further with the subject
i.e. actus reus and guide.
mens rea Like the other features of your subject
guides, they are there to help you.
Often demonstrate
u your subjectan awareness
guide of the
will then limits
take you ofback
the terms ‘actusthe
through reus’
reading in shorter segments,
and ‘mens rea’ when used without further clarification See the section on ‘Using your subject
for more concentrated discussion. guides’ in your Laws study skills guide.
u explain in relation to ‘lawful excuse’ the difficulties of distin-
Most of the subject
guishing guides
between are pairedelements
the definitional with study packs.
of an These
offence and aare selections of particular
defence.
sources (articles, book chapters and extracts) which have been specifically chosen to widen
and deepen your understanding of the topics you are studying.
The purpose of reading

Reading beyond the subject guide should become a regular part of your study habits. It is
an absolutely basic expectation of university-level students. There is no more important
thing a student can do than get into the habit of regularly reading a wide variety of texts.
You will be exposed to a range of vocabulary, modes of expression, analysis and argumen-
tation and become adept at understanding different sorts of communication. Reading
widens your knowledge and deepens your understanding.† †
You can find more specific advice
on reading in Part 3, Reading law.
However, you will need to learn how to select what to read and at what level of detail.
Essential reading
‘Essential’ means that you must read this material, which will typically be a section of the
subject textbook but will frequently also identify key cases that you need to read in full.
Sometimes sections of alternative textbooks will be recommended, plus (more rarely)
articles from academic legal journals or chapters from academic books.
Further reading
Usually the subject guide will also specify ‘Further reading’. This may be further cases,
articles from academic legal journals or chapters from academic books, or sometimes Law
Commission reports.
Bear in mind that, of all the many thousands of possible sources you could read, these are
the ones that the authors of the subject guides think are most likely to help you pass your
exams. They have been chosen to deepen your understanding.
Approaching reading
 Read slowly. You may need to re-read a sentence or paragraph to check that you have
understood.
 Make notes, to help you remember what you have read.
 Consult the Online legal research exercises for help in finding and understanding cases,
statutes and other key law texts.† †
The Online legal research
exercises can be accessed from
Activity 8.1 the Laws VLE.
Rank these reading items in order of priority from A to H.
The main subject textbook
Further reading recommended by the subject guide
Items in your course study pack
Law cases
Online legal research exercises
Your subject guide
Reading provided by your tutoring institution
Other relevant reading that you locate yourself.
Research and information-seeking activities

Law students are also expected to be able to research law topics.† This includes being able †
See Section 27, Legal research.
to look up and read cases, statutes and other materials. Again, this should become just a
normal part of your studies and you will learn to be selective.
First and crucially, you need to undertake the Online legal research exercises (NB these are
compulsory for all students).† †
Accessible from the Laws VLE.
These exercises are designed to assist you in developing legal research skills and carrying
out legal research on the web (centring on the legal databases in the Online Library, includ-
ing Westlaw, LexisNexis and Justis.com). They offer a systematic programme of training,
building up in stages from a basic ability to identify and retrieve primary legal sources and
journals, to reading and understanding law reports, to developing the capacity to locate
the most up-to-date legal information and integrate material from primary sources with
the assistance of secondary legal sources, and ultimately to identify and engage in contem-
porary debates. Feedback is provided.
How to ‘conduct’ legal research

Legal research involves identifying relevant reading, locating it, and reading it critically. You
will need to go beyond the reading that is actually provided in your textbook and the study
pack. For example, you can use:
 the University’s Online Library
 your local community library
 the library of the institution you study with
 online book suppliers.
In the 2007 edition of the Common law reasoning and institutions subject guide, you will find
specific information and guidance on performing different types of legal research. You will
be asked to conduct a small-scale research investigation, which you will be examined on in
the final examination in that subject. This applies to all students and not only those seeking
a QLD. The examination will also include questions on the online legal research exercises.
Activity 8.2
Compile a statement of no more than 200 words on the following news item:

Police hold mother-of-three for reading ‘Independent’ outside Downing Street

By Terry Kirby, Chief Reporter
Published in The Independent: 01 July 2006
Charity Sweet, 40, and a mother-of-three, was holding a copy of Thursday’s edition [of The
Independent] which carried the headline: ‘Warning: if you read this newspaper you may be
arrested under the Government’s anti-terror laws’….

You can find this article online by ‘Googling’ the title.

You will have to research the statute which made this action possible, and describe the
material facts of the event.
(No feedback provided.)
What else do your subject guides contain?

Term What are these for?
Learning outcomes To give you targets for your learning.
Activities To help you learn.
Self-assessment questions (SAQs) To help you learn.
Sample examination questions To help you pass your exams.
Self-reflections To help you develop your understanding.
The various elements of the subject guides are designed to take you through from initial
development of a ‘knowledge base’ to a deeper understanding of law topics, as expected
by the London External Laws Undergraduate Programme. At the same time, you will be
developing a variety of skills, some of which will be demonstrated through examination
performance and some – if you are aiming for a QLD – through the Laws Skills Portfolio.† †
See Part 6, Developing and
demonstrating skills.

Introduction
This chapter considers, in general terms, the elements of an offence which the prosecution
page 40 must establish, beyond reasonable doubt, before a defendant can be convicted. University of London External System
The elements of an offence are those external elements (actus reus) and the internal – or
Remember: Learning
mental – element outcomes
of the offence (mens rea) are
whichvital guidein posts
are contained the definition of that
offence which will be found either at common law or in a statute. The offence of criminal
At the beginning of each chapter you will find a list of learning outcomes. These relate to
damage contrary to section 1(1) of the Criminal Damage Act 1971 is used to exemplify analy-
the topics
sis ofspecified in the
the actus reus andsyllabus – the
the mens rea of atopics that
criminal the course is committed to covering
offence.
and that you may be examined on. Learning outcomes not only divide up those topics into
The issue of lawful excuse is also considered in this chapter.
smaller components but also indicate the level of learning that is expected of you. Learning
Chapters
outcomes 3 to 6 examine
are crucial the general principles
to understanding of actus
assessment reus and mens rea
requirements. in more
If you havedetail.
achieved the
learning outcomes you should excel at the assessment.
Essential reading
¢ Smith and Hogan, Chapter 4: ‘The elements of a crime: actus reus’, pp.34–44.
Learning outcomes Learning outcomes: what are

By the end of this chapter and the relevant readings you should be these for?
able to: Every chapter in your subject guides con-
u find the definition of a criminal offence tains learning objectives and reminders of
learning objectives.
u demonstrate an understanding of the constituent elements of
that definition, i.e. actus reus and mens rea Like the other features of your subject
guides, they are there to help you.
u demonstrate an awareness of the limits of the terms ‘actus reus’
and ‘mens rea’ when used without further clarification See the section on ‘Using your subject
guides’ in your Laws study skills guide.
u explain in relation to ‘lawful excuse’ the difficulties of distin-
guishing between the definitional elements of an offence and a defence.
Orienting yourself to learning outcomes will be helpful in your studies because they tell
you the basic goals that you are seeking to achieve, neatly broken down into ‘sub-goals’.
Chapter by chapter, they tell you the main things you need to learn to do while studying
the topics.
Later in the subject guide chapter you will see Reminders of learning outcomes. To take a
different example, in Chapter 2 of the Common law reasoning and institutions subject guide,
one Reminder of learning outcomes says, ‘By this stage you should be able to identify sev-
eral key features of the English legal system that differentiate it from others’. Reminders of
learning outcomes are opportunities for self-reflection. That is the time to check whether
you can do what is asked. So, in this example, if you can’t identify several key features of the
English legal system you should go back and work through the chapter again until you can.
Learning outcomes and Reminders are gradually being supplemented with ‘Reflect and
review’ sections that offer more detailed guidance on self-assessment.
Activities
All the research on learning suggests that most people learn more from Listening
seeing than from reading or listening, and that they learn most of all
from doing a thing themselves.
As discussed in Section 4, everyone has different

learning styles. But in general:
 Listening is the weakest source of learning (to Ability
Reading Seeing
benefit from listening – to a lecture, for example to DO
– you have to listen actively and take notes).
If you take notes you have material to read later.
 Seeing (and reading, which is a version of seeing) is a stronger source.
Some people can learn extremely well from just reading, but reading is a
passive process. Practising/
But most people find they learn most from active learning – that is by doing
doing.
The activities in your subject guides are about doing. They also give you practice in writing,
and in developing your English language skills.
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
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 What is a waiver?
Whether you answer the SAQs by yourself or with someone else, SAQs provide you with
feedback on how well you are progressing through the course and thus provide a form of
self-reflection.
Computer-marked online formative assessments

CMAs† give you a key opportunity to receive feedback on your progress. These assessments †
Accessible from the Laws VLE.
are multiple-choice questions to be undertaken online, with extensive feedback provided
on completion of each test. There are three sets for each subject, testing knowledge,
comprehension and application as you work your way through the course. Each test should
take approximately one hour to complete.
Sample examination questions

At the end of most subject guide chapters you will find sample examination questions
(with feedback – called ‘Advice on answering the question’).
There are two types of examination questions: problem questions and essay questions.
 Essay questions are ‘discursive’, that is, they ask you to explain and often make a judgment
about a wide question, for example some aspect of legal doctrine or law reform.
 Problem questions are about applying law and are designed to test how well you under-
stand what the law actually means in practice. They take the form of presenting a fact situ-
ation and asking you to do something with the information, such as advise an imaginary cli-
ent. Problem questions occur more frequently in substantive law subjects such as Criminal
law or Elements of the law of contract.
Sample examination questions in the subject guides are similar to those that you will find
in your examination.
Answering these questions will:

 help you practise exam technique
 like activities, help you learn more about the law.
In the exam, you will have four questions to answer in three hours. In your subject guide
you have no time limit. You should therefore be able to construct an excellent response,
but, as exam time comes closer, you will also need to work on your speed and flexibility.
†
When working on sample examination questions, you can often learn more by working Note that it is an examination
with other students: offence to ‘submit work which
 pool your ideas has been written jointly by two
or more persons, unless expressly
 bring different insights to a question
permitted in the relevant
 explain things to each other − this will help you all to learn and remember. Programme Regulations’. The
However, you should write the answers yourself. † Laws Programme Regulations
do not give any such express
Essay questions permission. See also Section 12,
Chapter 4 of your Public law subject guide contains the following sample examination Plagiarism, ethical conduct and
question: University rules.

Question 1 ‘Our unwritten constitution rests upon a separation of powers. It also rests
Sample examination
upon a mutual questions
recognition of those powers. It is for Parliament to make new laws and to
amend old
Question 1 laws, including the
‘Our unwritten common law.
constitution restsItupon
is forathe courts toofinterpret
separation powers. and enforce
It also rests the
law. Itaismutual
upon for therecognition
governmentofto govern
those within
powers. Itthe law.
is for Each in itstoown
Parliament make sphere is supreme.’
new laws and to
(Lord Donaldson
amend of Lymington
old laws, including MR in M vlaw.
the common Home Office
It is andcourts
for the Anotherto (1994).)
interpretDiscuss.
and enforce the
law. It is for
Question 2 the government
Critically to govern
assess the within the
view, expressed bylaw. EachBagehot
Walter in its own in sphere is supreme.’
the nineteenth cen-
(Lord Donaldson
tury, that the ‘nearof fusion’
Lymington MR
of the in M v Home
executive andOffice and Another
legislature (1994).)
represents theDiscuss.
‘efficient secret’
of the constitution.
Question 2 Critically assess the view, expressed by Walter Bagehot in the nineteenth cen-
Here is the advice provided in the subject guide on answering the question:
tury, that the ‘near fusion’ of the executive and legislature represents the ‘efficient secret’
Advice on answering the questions
Question 1 This quotation spans all three of the major institutions of the state, and
requireson
Advice ananswering
analysis of the
the questions
role and powers of each. It also calls for a critical examination
of the degree
Question of separation
1 This between
quotation spans them.ofStart
all three the by explaining
major whatof
institutions the separation
the state, andof
powers means
requires and explain
an analysis its constitutional
of the role and powers ofimportance
each. It also–calls
perhaps
for apointing out that it is a
critical examination
concept
of of great
the degree antiquity. The
of separation next task
between is to
them. explain
Start briefly thewhat
by explaining role the
of each of the major
separation of
institutions
powers meansof the
andstate: theits
explain personnel and functions
constitutional of each.
importance The next
– perhaps – and out
pointing major – task
that is
it is a
to analyse
concept ofthe relationships
great between
antiquity. The theisinstitutions
next task and explain
to explain briefly theof
the role extent to the
each of which they
major
overlap in personnel
institutions andthe
of the state: functions.
personnel and functions of each. The next – and major – task is
to
Youanalyse
need tothe relationships
discuss between
each pairing the
of the institutionsnamely,
institutions, and explain the extent
the executive to legislature,
and which they
overlap in personnel
the executive and functions.
and judiciary, and the legislature and the judiciary. Devote an equal amount
of time
You to to
need each of the
discuss pairings.
each Too
pairing of many candidatesnamely,
the institutions, fail this the
typeexecutive
of question
andnot because
legislature,
theyexecutive
the do not have
andthe knowledge
judiciary, or understanding,
and the legislature and but
the because
judiciary.they have
Devote anfailed
equaltoamount
cover
thetime
of whole topic.of the pairings. Too many candidates fail this type of question not because
to each
they do not
Question 2 have the knowledge
This question focusesoron
understanding,
the executive but
andbecause they have
the legislature andfailed to cover
therefore more
the whole
detailed topic. of these institutions is required. Your introduction will be as above:
coverage
Question 2the
explaining rationale
This forfocuses
question separation of powers
on the and
executive the
and major
the institutions.
legislature and therefore more
detailed
The bulk coverage of these
of your analysis institutions
will is required.
be confined Your introduction
to the executive will be
and Parliament. Doasnot
above:
be
explaining the rationale for separation of powers and the major institutions.
tempted to waste valuable time discussing other aspects of separation of powers. You will
Activity 8.3
gainbulk
The no marks foranalysis
of your material that
will beisconfined
irrelevant
to to
thethe questionand
executive andParliament.
will lose marks because
Do not be
How wellyou
didhave
youdeprived
understand the
yourself of advice
timeon
thediscussinganswering
to discuss therequired.
sample examination question?
tempted to waste valuable time other what was
aspects of separation of powers. You will
You do not need to have studied Public Law to answer these
gain no marks for material that is irrelevant to the question andquestions.
will lose marks because
 Whichyou have deprived
sentences yourself
provide of theguidance
overall time to discuss what is
on what was required.
needed to answer the question
successfully?
 Which sentences tell you how to go about providing a successful answer on a step-by-
step basis?
 Which words or phrases indicate: (a) what is crucial? (b) how much attention to devote
to parts of the answer?
 Sentence 6 describes where candidates go wrong. What does ‘fail to answer the whole
topic’ refer to?
Problem questions
Chapter 8 of your Criminal law subject guide contains the following:
Sample examination question

David and Victoria had been married for several years. Victoria had suffered many years of
violence and abuse from David and as a consequence suffered from extreme depression.
Criminal
One evening 5 Actus
law whilst onreus: consequences
his way out of the house, David insulted Victoria, calling her hide- page 59
ous, and revealed that he was having an affair with her sister. Feeling extremely depressed,
VictoriaUnlawful
drank halfadministration of controlled
a bottle of whisky. A few hoursdrugs
later David returned and, with a sneer,
told herSee Smith
that andhad
he had Hogan, Chapter 4,
a wonderful pp.60–63.
evening. Victoria picked up the bottle of whisky
and intending to causethat
The principle David serious injury
a voluntary hit him
act breaks theon theof
chain head. He died
causation from
seems tothe injuries
have been
sustained.overlooked, ignored and circumvented in recent cases dealing with drug administration.
Again, itliability
Discuss Victoria’s appears for
thatthe
thehomicide
courts have been driven by policy – to punish those involved in
of David.
drug misuse. (Smith and Hogan at page 60.)
Advice onare
There answering
a numberthe question
of cases to be considered here and these cases are more fully discussed
A person who, intending
in Chapters 7–8 in thetocontext
kill or cause grievous bodily harm, kills another human being,
of manslaughter:
isuguilty of murder
Kennedy (No.1) (Vickers
[1999] Cr[1957];
App RMoloney
54 [1985]). Note that is clear from the facts that
Victoria killed David and did so with an intention to cause serious injury. Therefore she
u Dias [2002] EWCA Crim 1
Look up the
will be advice onofanswering
convicted murder unlessthisshe
question
can takein Chapterof8either
advantage of theprovocation
Criminal law subject
and/or
u Rogers [2003] 1 WLR 137
guide. diminished
Note the importance of
responsibility, pursuing
both
u Finlay [2003] EWCA Crim 3868
of whichalternatives.
reduce liability to manslaughter.
u Kennedy
There are two(No.2) [2005]
elements toEWCA Crim 685.
the defence.
Whatsubjective
you should note at concerns
this stagethe
andquestion
will consider further
the when you study manslaughter
Self-reflection
The first, element, whether defendant, as a result of
is that a line of recent cases concerning constructive manslaughter and involving the admin-
provocation, suffered a sudden and temporary loss of self control (Duffy [1949]). The jury,
The most
when istration
recent of drugs
subject
considering has proved
thisguides
issue, controversial.
include
may take In these
opportunities
into account cases the defendant
or said’ orsupplied
for ‘self-reflection’.
‘anything done Here isa an
control-
a combination exam-
led drug
of things done to a user whosaid
consumed or Homicide
self-injected
Actthe drug and then died from its effects.
ple from Chapter 5 and things
of the Criminal (s.3 of the
law subject guide. 1957; Acott [1997]). The comments
made byeffect
The David of
immediately before
the decisions Victoria
in these killed
cases him
is that may
the be considered
person by the
who provides juryfor
drugs to be
im-
the last
mediate injection to an adult user who injects himself and dies as a result may be good
straw precipitating a loss of self-control and the spontaneity of her response is guilty of
evidence that the loss
manslaughter of self-control
by an unlawful act.was sudden and temporary (Ahluwalia, Thornton).
The second element of the defence – the objective element – requires the jury to consider
Self-reflection
whether the provocation would have caused a reasonable man to do as the defendant did
(s.3 of the
Read Homicide
Smith Act 1957).
and Hogan, pp.60–63, which contain a brief account of the above cases.
Do you agree
Following Holleywith
and the proposition
James; in Smith
Karimi, Victoria’s and Hogan
depressive that ‘themay
condition issue ofbe
not whether a third
taken into
party’sby
account free deliberate
the informed
jury, nor may act is regarded
her drunkenness. in lawthe
However, as ajury
break in the
should bechain of causation
directed to
deserves
consider urgentaattention
whether by the
woman with Housepowers
ordinary of Lords’?
of self-control having experienced a his-
tory of abuse would have reacted as Victoria did.
Activity 5.4
Alternatively
Following the Victoria may be able
introduction to take
at the advantage
beginning of the
of this defence
chapter youofwere
diminished
asked toresponsi-
consider a
bility,
number which, like provocation,
of scenarios reduces liability
as a self-reflection from murder
exercise. Return to
tomanslaughter
questions a–e.(s.2(3)
Havingof the
worked
Homicide
your wayAct 1957). The
through thisburden is on would
topic, how the defendant
you now toanswer
prove, on the questions?
these balance of probabilities
(s.2(2); Dunbar [1958]), that he was suffering from an ‘abnormality of mind’ resulting from a
Self-reflection points are
Do not attempt likewith
to deal SAQs thebut they focus
offences on a higher
themselves. level –an
This is purely understanding
exercise on the−
condition of arrested or retarded development of mind or any inherent causes or induced by
whereas SAQs simply
principles check
of causation. basic knowledge. Like SAQs, there is no feedback
disease or injury, that substantially impaired his responsibility for the killing (s.2(1)).
for the self-
reflection points,John
a Should because these
be liable are issues
for Betty’s you are expected to give some thought to, over
death?
In Byrne [1960] it was held that ‘abnormality of mind’ means a state of mind so different
a periodbofShould
time. Freddie be liable for Sabina’s injury?
from that of ordinary people that the reasonable man would term it abnormal and may
c Should Anna be
include conditions liableaffect
which for Iqbal’s death?
the powers of self-control of the defendant. Victoria’s de-
pressive condition
d Should Lee be may amount
liable to an
for Sam’s abnormality of mind provided the plea is supported
death?
bye psychiatric evidence (Dix [1981]).
Should Natalia be liable for Ivan’s death?
If the jury are of the opinion that both the mental abnormality and the drink played a
Reminder of learning outcomes
part in impairing Victoria’s mental responsibility and caused her to kill David she is not
By this stage
precluded fromyou should
relying be able
on the to: but the effects of the alcohol may not be taken into
defence
account. If the
u identify jury are
when the satisfied that, despite
issue of proving the drink,
causation her depressive condition amounted
is relevant
toua mental abnormality substantially impairing her responsibility
explain the distinction between the factual cause and the legal then the defence
cause should
of the conse-
be allowed
quence(Dietschmann).
element of a result crime
The
u question whether
outline the the abnormality
reasoning impaired
behind the rules the defendant’s
relating to causationmental responsibility is
also one for the jury. In Lloyd [1967] it was held that the impairment need not be ‘total’ but
u apply the rules relating to causation to factual situations.
there must be more than a ‘trivial’ degree of impairment.
9 Using the Online Library

This section introduces you to the University’s Online Library for Laws students, your key
resource for finding cases and statues to support your study and legal research.
Registering
The University of London’s Online Library databases are available only to authorised users.
If you have not yet registered, you should do so immediately. The Online Library uses the
Athens system, which gives users a personal account, with an individual username and
password.
To register online for an Athens account, the best way is to send an email to onlinelibrary@
shl.lon.ac.uk giving your full name and 9-digit student registration number. Alternatively,
go to: www.external.shl.lon.ac.uk/res/request.asp?db=online
(Although the 9-digit student registration number first appears in your offer letter, you
cannot register for an Athens account until you have paid your fees.)
After your Athens account has been created, you will be notified by email and will receive a
username and a password. You can change the password to something easily memorised, but
unfortunately the username is assigned by Athens and can’t be altered. Usernames always
have the prefix ‘ull’ for University of London Library, followed by ‘llb’ for the qualification.
Students often mistype their username, mistaking the letter ‘l’s for numerals for instance, so
we advise you to keep your notification email and cut and paste the username from that.
Finding your way around

User’s note: If you are used to using ‘login’ sites – sites where you need to enter a username
and password in order to access the site – then you may find the Online Library site unusual.
You do not get a prompt to log in at the start of your session. Do not waste time trying
to find the login point at the start of your session – it comes up later, when you access a
particular database or link. This is explained in the ‘quick start’ guides.
Alternatively, there is a Passwords tab on the database page, which allows you to proceed
in the more traditional way, but only for each database.
For familiarisation, you should try taking the Virtual library tour:
www.external.shl.lon.ac.uk/help/tour.php
Normally, you will be starting from the home page:

www.external.shl.lon.ac.uk/index.php
 Click on the drop-down menu and select Laws from the alphabetical list of courses.
 Click ‘Go’ and you will find yourself on the Laws gateway page.

The Laws gateway page

The Laws gateway page is your central point of reference. From here you can access all the
different Laws resources in the Online Library.
The Laws gateway page looks like this:
Lists all the databases to Use the Journal

which you have access. Finder to discover
Click on the title of the da- which database
tabase and, once you have hosts the journal or
entered your username case report you are
and password, you will be looking for.
taken to the site. Guides
to each database are pro-
vided next to the login.
Links to web sites referred

to in the subject guides
Click on these links
for each of the four
for brief descrip-
Intermediate subjects.
tions of how to find
different categories
Regularly maintained of legal material.
links to free web-based
resources such as docu-
ments issued by govern-
ment departments.
Click on either of these
links to send us an email
Designed to familiarise you with some of the databases, enquiry: we guarantee a
this quiz sets tasks to complete, gives searching tips reply within two working
and then explains how you should use the databases to days, but in practice we’re
locate the answers. A useful way to spend 20 minutes! much quicker than that!
User’s note: Why not bookmark or make a link to the Laws gateway page? Then you won’t
have to type in or paste in the address every time or click through from the home page.
Entering the library on this page will remind you of all the different possible resources
available.
The Online Library Laws database page

This is the heart of the Laws library. You can reach the database page via:
 the Laws gateway page (see above)
 the Laws VLE, or
 by typing the following address into your web
browser: www.external.shl.lon.ac.uk/res/
databases.asp?id=law
User’s note: You might bookmark or make a link to

the database page. Then you won’t have to type in
or paste in the address every time.
User’s note: Casetrack uses a separate authentica-

tion system from Athens. To access it you need to
use the following:
Username: ACADEMIC
Password: 01092006.

Getting to know the Laws databases
When you start using the Online Library, have a look at all the databases and get a sense of
what they offer.
 Which databases will be relevant to your studies? Remember that these databases have
been created for all users interested in law, not just students. So some of them may be too
specialised for you, such as Kluwer Arbitration or Business Source Premier.
 But do not automatically mark as irrelevant databases that deal with the social sciences.
The Laws Programme includes orientation to the social sciences.
 Key databases are LexisNexis, Westlaw, Justis.com and Casetrack. Group them together in
your mind because they are crucial for finding cases – and many other key resources. They
do overlap to some extent but do not make the mistake of assuming that, if you can’t find
something on one database, it is not available on any of the others.
What is distinctive about other databases?

 For larger collections of journals, and older material, try HeinOnline or JSTOR. HeinOnline
and JSTOR’s archives stretch further back in time than, say, LexisNexis or Westlaw, so are
good starting points when searching for older material.
 HeinOnline is primarily oriented to American publications, with a very strong collection of
journal articles. Be aware that the law specifics will be different but the general issues may
well be very similar. It does also contain some key UK law journals.
 JSTOR is a crucial resource as it contains many key articles on legal doctrine and policy from
a variety of points of view.
User’s note: You can also access authoritative databases on UK statutes and cases by – start-
ing again from the Laws gateway page – go to:
 Law and official publications
 UK Statutory material
 UK cases
User’s note: If you are searching for articles through Google or another search engine
rather than through the Online Library itself, you may often find articles listed as being on
JSTOR. You can click onto them and fill in your Athens authentication when you are asked
for authentication.
But – this only works for JSTOR. If you try to access LexisNexis or Westlaw from outside the
University’s Online Library, your Athens authentication will not be recognised.
Generally, the library advises you to use the Laws database page to access the databases.
Entering via another route will often lead to authentication difficulties.
Search fields
Most of the databases will provide you with a search form which is made up of a series of
search boxes or ‘fields’. Make sure you put the correct information in each field in order to
retrieve what you’re looking for. A common error is to confuse the title of an article with
the title of the journal in which the article is to be found.
So a search for the following article in Westlaw, for example, would look like the screen-
shot below:
Title: The Constitutional Reform Act 2005: the politics of constitutional reform
Author: Lord Windlesham
Citation: 2005 Public Law 806−823
Examples of advanced or ‘Boolean’ searching

Most of the databases have a search box labelled ‘Advanced search’. If you use this you can
make your searches as wide or as focused as you need using the terms ‘AND’, ‘OR’ and ‘NOT’.
Below are examples of how these can be used.
 ‘murder’ AND ‘provocation’ will find documents containing both

terms. This narrows your search.
murder
murder AND provocation
provocation
 ‘murder’ OR ‘provocation’ will find documents containing either

the word ‘murder’ or the word ‘provocation’. This broadens your
search.
murder OR provocation
 ‘murder’ NOT ‘provocation’ will find documents containing the

word ‘murder’ but excluding the word ‘provocation’.
murder NOT provocation
Journal finder
This facility is useful if:
 you want to find which web site or database to go to find a particular journal.
 The Journal finder search facility can be found on the upper right hand side of the Laws
database page. Or you can go to: www.external.shl.lon.ac.uk/res/journals.asp?id=law
User’s note: The Journal finder does not do anything more than tell you which database(s)
have the journal you are looking for. Don’t expect it to track down particular articles, years
or volumes. That will be the next stage of your search.
Other key features of the Journal finder

 The Journal finder treats law reports as journals, so you can search for law reports using this
search facility.
 The Journal finder recognises abbreviations, so you could search for ‘All ER’ and find the All
England Law Reports. (This can be helpful when you have a journal or case report abbrevia-
tion but you don’t know what it stands for.)
 If you get no results with an abbreviation, try again using the full title. You can look up the
full title for abbreviations using the Cardiff Index to Legal Abbreviations: www.legalabbrevs.
cardiff.ac.uk
 If you are unable to locate a journal using the Journal finder, try searching the databases
individually or contact the law librarian.

Links
The Online Library also offers an excellent set of links to other web sites. Start from the
Laws gateway page (see above).
LLB Intermediate subjects

If you click here, you will find the four subjects listed, with links to the web sites referred to
in each subject guide. (The Intermediate subjects are also the Diploma in Law subjects.)
Law and official publications

Clicking here will open a page that includes the following links:
UK official and departmental publications

The links here include:
 Parliamentary sessions in the House of Commons (Hansard)
 Parliamentary sessions in the House of Lords (Hansard)
 Official Documents from TSO (The Stationery Office)
This is where you can find the texts of Bills that are going through Parliament.
 The Home Office
 The Law Commission† †
www.lawcom.gov.uk
This is an absolutely crucial site for all law students but especially if you are looking at new
legislation introduced as a result of activity by the Law Commission. The Reports outline
all the reasons for reform, weighing different considerations and also discuss in detail the
form of words that should be introduced. Reports go back to 1967 (although not all are
available online).
 Ministry of Justice
This new government department was created on May 9th 2007. It has taken over all
responsibilities from the Department for Constitutional Affairs and some from the Home
Office and the Cabinet Office that relate to criminal law, prisons, sentencing etc.
There you can find information on the legal system, including:
 how the Courts system in England and Wales is structured
 the Government’s programme to establish a new Tribunals Service, and information
about the tribunals that the government is currently responsible for
 information about the Criminal Justice System, including a link to the CJS Online web site.
European Union
This includes the home page of the European Court of Human Rights.
Human Rights
International law
International organisations
Law e-journals
 Electronic Law Journals project
 Journal of Information, Law and Technology
 Law, Social Justice and Global Development
 Entertainment & Sports Law
 Web Journal of Current Legal Issues

Covers judicial decisions, law reform, legislation, legal research, policy related socio-legal
research, legal information, information technology and practice.
 Directory of Open Access Journals: Law and Political Science
Links to over 100 freely available online law and politics journals. Each journal must exer-
cise peer-review or editorial quality control to be included.
Enquiries
If you have any problems logging in to any of your databases, please contact the Online
Library team.
You can send enquiries to the Online Library team by any of the following methods:
 online enquiries form: www.external.shl.lon.ac.uk/help/enquiries/?id=law
 email: onlinelibrary@shl.lon.ac.uk
 telephone: +44 (0) 20 7862 8478
The team, based in London, is available between 09.00 and 17.00 (UK time) Monday to
Friday. To help them answer your enquiry efficiently, please provide the following details:
 which database you are trying to log in to
 what happens after you enter your username and password
 what error messages appear on the screen.
Email replies from the Online Library team are sometimes interpreted as junk mail (spam)
by filters and so are missed by the student they are trying to contact. Hotmail and AOL
cause the most problems: to avoid frustration, if you are using a junk mail filter please set it
to allow email from: onlinelibrary@shl.lon.ac.uk.
If your problem appears to be technical, it’s worth trying a couple of quick fixes to see if
they help while you wait for a response from the team:
 Delete cookies from PC: open Internet Explorer and follow this trail then retry:
Internet Explorer: Tools > Internet Options > General > Temporary internet files > Delete
cookies /files
 Allow pop-ups from database sites: open Internet Explorer and follow this trail then retry:
Internet Explorer: Tools > Internet Options > Security > Trusted sites > Sites > Add this website
to the zone (this will usually be either www.justis.com or www.westlaw.co.uk) > Add
10 Studying with an institution

The University of London External Undergraduate Laws Programme resources are primarily
designed for self-study. They assume that you will be studying on your own. This may be
true: many students undertake the LLB by themselves, often at the same time as working.
However, we are aware that most of you will use the services of an independent teaching
institution.
Whether you are studying on your own or with an institution, the University seeks to promote
active learning on the part of students. You should expect your institution to treat you as a
university-level student and not ‘spoon feed’ you as if you were still at school. Your institution
should be encouraging you to be independent and offer guidance, support and feedback – as
well as access to the University online resources that are so crucial to your studies.
Institutions also have an important role to play in helping you to develop the skills that you
must demonstrate in order to gain a Qualifying Law Degree.† †
See Section 2, Skills requirements
and a Qualifying Law Degree
and Part 6, Developing and
What you can expect from an institution demonstrating skills.
The Laws Programme places a very high value on the contribution offered by teaching
institutions around the world. There are many dedicated professionals offering teaching to
students on our programme.
But you should also be aware of what the University expects of a good teaching institution
and build that into your own expectations. Here are some criteria:
 A good library. As well as textbooks, the institution should hold at least some law reports,
academic journals and non-textbook legal academic books.
 Sufficient computers with online access for students to make regular use of the University’s
online resources.
 Ideally, a resources administrator who can help students familiarise themselves with the
University’s online resources.
 Small group tutorials as well as big lectures.
 Regular submission of essays and problem question ‘homework’ with feedback.
 Core orientation to the London subject guides as the centre of teaching, including encour-
aging students to undertake the activities, perhaps using them as tutorial questions.
 An approach which encourages students to ask questions and be active.
Other points to consider† †

For a checklist of selection
 How does the timing and frequency of the tuition fit in with your other commitments at criteria, see:
home and at work? www.londonexternal.ac.uk/
checklist
 Can you borrow books from the library or is it for reference only? If you already have your
subject guides, check that there are copies of the essential and recommended texts. Is If you wish to check the
there room to study in the library and is it quiet? Are there computer facilities with a authenticity of a teaching
reasonably fast internet connection? institution’s claims, please fill in
the teaching institution check
 Are students given regular assessments and mock exams with individual feedback? form at:
 Will there be a written contract between you and the teaching institution when you enrol? www.londonexternal.ac.uk/
If not, make sure you understand the terms and conditions that apply and your liability. study_ep/local_support/check_
list.shtml.
 Check how you pay fees – in one payment or in instalments – and what the refund policy is
if you cease studying for any reason.
 Compare its services and fees with other teaching institutions in the same locality (if any).
Talk to students who are already enrolled and get their opinions.

The changing role of teachers

Students should be aware that the Laws programme is currently encouraging teachers
to move away from the old pattern of simply giving lectures. We are urging them to ap-
proach the whole business of teaching and learning in a more contemporary varied way,
emphasising student activity. Our Guide for teachers asks teachers to see themselves
as ‘no longer simply a source of the knowledge of the law, you become a facilitator guiding
students in using their learning resources.’
In our experience, one of the major forces resisting change is students. When teachers
try to adopt new teaching methods or ask students to research a topic for themselves,
students often show themselves to be very averse to change – in fact, rigid, conservative
and old-fashioned – contrary to the popular image of young people!
Getting the most from lectures

Lectures are a very useful way of taking a lot of information on board in a short space of
time. To get the most from lectures, you need to:
 Prepare (by doing the reading before the class, or any other prescribed activities).
 Listen carefully. If you drift off: wake up, work out where the lecture has got to and begin
again from there.
 Make notes on key points.† †
See Section 11, Making and using
 Ask questions about points you do not understand. notes.
 Lectures should be for an appropriate time. One hour appears best for concentration but
we realise that due to the work/study balance you may often be in lectures of 2-3 hours.
Establishing good relations with your teachers

Of course all teachers – like all students – are different. Some are formal and strict; others
are sociable and forward-looking. Teachers, like the rest of us, also have an ego. Naturally,
they take pride in their qualifications and their teaching. But, although teachers are more
experienced and better qualified than you, no teacher is a total expert on all aspects of the
law. Today, even a High Court judge would not claim such complete knowledge.
This means that you should not be too passive and ‘accepting’ about what your teachers
teach. You should be prepared to ask questions and seek clarification on things that you
do not fully understand. This is part of the active approach that we recommend – and such
an approach will be welcomed by your teachers, who actually enjoy seeing their students
really engaging with their subject.
Equally, do not be afraid to raise points with your teachers that may seem quite wide or
sweeping, or that might challenge the authority of law or its representatives – once you
have opened the question, your teacher may see that you are ready to take on higher level
issues. This could lead to a discussion of how the doctrine in a particular area is not actually
coherent, and what tensions there might be between different interest groups. Or, you
might be assuming that British lawyers always want to claim that their system is ‘the best’
and that the University’s subject guides will be defending the system. Students of Public law
are therefore often surprised to discover that Britain actually does not exemplify the ideal
model of the separation of powers – and the subject guide asks students to discuss this.† †
See the Public law sample
examination question in
The University encourages a critical approach and wants to see students carry this through
Section 8, Using your subject
into their writing. This also means that ‘the voice of authority’ – whether it is a teacher,
guides.
a textbook or a High Court judge – does not have to be taken as final. High Court decisions
can be overturned, the views expressed in textbooks can become outmoded, teachers
(occasionally) make mistakes. English law is always changing and one reason for this is that
the common law system is a regime of constant argument and challenge. An argument put
forward in a case may lose, but then be reassessed (or put in stronger fashion) at a later time
and win. Legal decisions that were monuments of settled authority for years may suddenly
be toppled and replaced. Certainly law aims for certainty, but it is its flexibility that keeps it
alive and open to the major changes of contemporary life in a globalised world.
To work as a lawyer, and to succeed as an honours law graduate, you need to demonstrate
independence of mind. This may include issuing questions and challenges to your teachers
(in a civil, respectful manner, of course). The best teachers will welcome this.
Whether you are studying with an institution or on your own, the ultimate responsibility
for your learning lies with you. Lectures, seminars and tutorials may be hugely valuable but
they are ultimately just part of the wide set of resources that you have at your fingertips.
Activity 10.1
This is not a simple checklist: you may be surprised by some of the feedback. Tick one box
in each line. (Some of these are ‘trick’ questions.)
1 The library has:

The course textbooks ¢ yes ¢ no
One or more law report series ¢ yes ¢ no
One or more legal journal series ¢ yes ¢ no
Law books that are not textbooks ¢ yes ¢ no
‘Nutshell’ books ¢ yes ¢ no
Enough space for students to study ¢ yes ¢ no
2 There are enough computers for the number of students: ¢ yes ¢ no
3 Online access is: ¢ poor ¢ unpredictable ¢ excellent
4 Students are encouraged to use:

the University of London Online Library ¢ yes ¢ no
the Laws VLE ¢ yes ¢ no
5 Students are told about the online legal research exercises ¢ yes ¢ no
6 Students are told that each course has ‘test yourself’ online
exercises with feedback (called ‘CMAs’): ¢ yes ¢ no
7 Which is more important?

¢ subject guides provided by the University ¢ handouts provided by my teacher
8 When my teachers lecture, they expect us to write down:

¢ nothing ¢ everything they say ¢ only key points
9 As well as lectures, the institution provides small group teaching (seminars, tutorials,
discussion groups) ¢ never ¢ sometimes ¢ every week
10 Our teachers encourage us to read beyond the textbooks:

¢ never ¢ sometimes ¢ always

11 Our teachers give us a lot of model answers. Should I feel

I am getting a lot of help with the examinations? ¢ yes ¢ no
12 My institution has made me aware of the Laws Programme assessment criteria

for marking examinations and final degree classification: ¢ yes ¢ no
13 Our teachers expect us to ask questions and be critical:

¢ during lectures ¢ in tutorials ¢ in essays
14 Our teachers provide detailed coverage on some topics but only outline coverage on
others, telling me I should find out for myself using the University resources. Should I:
¢ complain ¢ borrow notes from ¢ start with the subject guide and
someone at a different follow up the recommended
institution reading and activities on my own

11 Making and using notes

Learning how to make notes of lectures and reading – and how to use these notes later for
revision – are key learning skills for university-level study. You can also use more adventur-
ous forms of notes to help you think through ideas and arguments when you are writing
essays or working on problem questions.
What is the best approach to begin with?

Taking notes may be a new experience for you – perhaps you were not expected to do this
kind of thing at school, apart from perhaps taking down notes from dictation or from the
board. Students react in different ways at first. At one extreme, some take no notes at all
during lectures or when reading, while at the other extreme some write down every word
the lecturer says or go through highlighting their texts so much that the page is covered in
colour. Neither of these approaches is very effective.
There are two basic reasons for making notes.

 The process of taking notes helps you focus. Making notes is an aid to concentration while
you are listening or reading. Focusing on what you need to note down means being selec-
tive. It is pointless trying to write down everything: are you trying to duplicate the subject
guide or the textbook or class handouts?
 Notes provide a record. You cannot remember everything simply by hearing it or reading it.
Notes give you something that you can come back to later, when preparing for seminars/
tutorials, writing essays, working on problems or revising for examinations.
Notes are of vital importance in preparing for seminars/tutorials and especially for revision.
They should be fairly brief, to the point and well organised. Reading your notes can mean
that you save a great deal of time, as opposed to wading through your textbooks yet again
in a desperate attempt to revise.
Have you considered using your subject guide as a notebook? There is plenty of blank
space in the margins, and the guides are your own property: so go ahead and use them. You
could make notes in the margins, add clarifications and points of detail, highlight key points,
or jot down what is significant about cases. This is a very effective form of note-taking
because you build on what is already specified. This might be your most useful revision tool.
The basic point about making notes, whether in lectures or when you are reading, is to
understand exactly why you are taking them.
How to organise notes

There is no point having notes if you cannot access them in an efficient way. Write notes
in whatever way suits you – but of course they must be legible. Recording the date you
made them is a good idea. Keeping your notes in a ring binder for each course is perfectly
adequate.
If you are using your subject guides to make notes in, as recommended above, you might
make lecture notes directly in the guides – certainly it is useful to have your subject guide
open on the relevant pages as you listen to a lecture on a particular topic – but it may be
less messy and better for clarifying your understanding if you take lecture notes on a sepa-
rate piece of paper and then annotate your subject guide (shortly) after. Similarly, as you
read and make notes from textbooks and further reading, you can then write key points
into the subject guide. It all helps you to learn!
Similarly, annotating statutes (noting key points of interpretation and cases where these
points have been made) is a good idea – but do not write on statute books that you intend
to take into the examination room. Instead print out the relevant sections from the web
and write on them for your own personal use.

Making notes in lectures

If you are attending an independent teaching institution supporting the University of
London External Laws Programme LLB or Diploma in Law, you will be offered a weekly set
of lectures in each subject. These lectures will ideally cover the London syllabus† and follow †
You can check the syllabus for
the order of the London subject guide. Teachers may choose to give in-depth coverage of each course as provided in the
some topics, and for other topics just offer outline coverage, indicating how students may Regulations. This will tell you
gain more detailed knowledge and understanding for themselves. The University in fact all the topics that are covered
encourages lecturers to proceed in this way: the in-depth coverage shows what is expected by the course. You may be
for full knowledge and understanding, not only of the particular topic but as a model for all examined on any topic included
topics. The outline coverage of other topics, plus student guidance for further learning and in the syllabus.
research, should encourage students to take a more active learning role.
What are lectures like?

There is no one recipe for lectures, and diversity of approach is welcomed. In an ideal
world, lectures will include time for students to undertake activities. Your lecturer may
also ask you to take part in group discussions or role play. You may not like this because it
takes much longer to get through the points, or you may find it embarrassing. But actually
the University is encouraging your lecturers to do this as these kinds of activities promote
better understanding (and better examination results) in the long run.
As students, it is interesting to think about lectures from the lecturer’s point of view. What
is the lecturer trying to accomplish? What do you think a good lecture should do?
1 Tell the students the key points in this area of law, irrespective of the London subject guide?
2 Read out everything from the subject guide and textbook so students don’t need to do the
reading?
3 Highlight the key issues and provide background explanation?
4 Focus on tricky points and explain how to work through them?
5 Identify key legal definitions and ask students to commit them to memory?
6 Ask students to undertake the University’s Online legal research exercises?
7 Tell students about new developments in the topic in question?
8 Make connections with law in your jurisdiction?
9 Give students model answers for exams?
You should be aware that 1, 2 and 9 are discouraged by the University. The emphasis should be
on encouraging students to be active and aware, and make use of all the available resources.
Lectures will take you through the basic points of knowledge/information, but their vital
contribution is doing this in a way that gives you greater insight and understanding. This is
the ‘added value’ provided by institutional support.
Preparation for lectures

Don’t be passive! Lectures are not just about lecturers packaging knowledge for you to
absorb. You will probably have been asked to read the relevant section in the subject guide
before the lecture and also the Essential reading in the textbook or course study pack
– perhaps even some of the Further reading available in the study pack.
If you have done the prior reading, you will already be familiar with the basics of what the
lecturer is saying. Think about issues that you have not been able to understand. Be ready
to ask questions.
Of course, you may not have done the reading, but you do know that the basic points are
available in your subject guide – so you do not need to painstakingly write them down in
your lecture notes. In the lecture, focus on the ‘added value’ that your lecturer is providing.
Taking notes in lectures

Come to the lecture assuming that you will take notes. Have pen and paper ready and
bring your subject guide and textbook. You should have a notebook or ring binder for each
subject guide.
Begin by noting the date and topic. Consider whether you might like to make notes in your
subject guide rather than making separate notes: this way you won’t waste time taking
notes on the basics and you can concentrate on adding extra refinements.
Remember that note taking is helpful in two ways: (a) it keeps you active in the lecture,
helping you to concentrate on the points that are made, and (b) it provides you with a
written record for essay writing, problem questions and revision.
Don’t try to write down everything the lecturer says. Listen carefully and concentrate, and
note key issues or phrases as they arise. Remaining alert throughout a lecture can actu-
ally be difficult, as the average attention span is quite limited. If you find that your attention
drifts, wake yourself up and quickly identify the current topic being discussed.
Aim to have a grasp of the overall structure of the lecture so that you don’t get lost. Your
lecturer will probably be working from notes that have been broken down into sections
and sub-headings. Listen carefully for key words and phrases.
Your lecture notes should be clearly structured, following the main issues in the topic.
However, you don’t need to write these out in detail if they are covered in the essential
reading in the subject guide and course textbook. You just need to use them to structure
your notes.
Your lecture notes should include:

 clarification of the main issues
 ‘big picture’ insights into how specific rules and exceptions relate to underlying legal doc-
trine or policy: they may guide you to seeing tensions and conflicts and attempts to resolve
them, perhaps through compromise
 points of detail, which could include: topics which the lecturer has highlighted as areas
where students often get confused because they do not grasp some precise point; key
features of cases; key features of legislation
 new developments in the case law mentioned in the lecture
 any point stressed repeatedly by the lecturer. Whether you understand it or not, be aware
that the lecturer is stressing something important. Ask questions if you do not understand
 a note of any cases that your lecturer (or your textbook) criticises
 where you don’t understand something, try to formulate the question or the puzzle in your
notes, even if in a crude form, during the course of the lecture. It doesn’t have to be elegant
(e.g. ‘I don’t get this. She just said about the previous case that the rule was X. Now she’s
saying Y. Why????’)
If your lecturer provides any quotes from written texts, including cases, make sure you also
note down the source, including the page number.
Write your notes in a way that makes it as easy as possible for you to understand and
remember them. As you get used to note taking, you might try experimenting with different
forms – pictures or graphs, or whatever helps you to get the information down quickly in a
way that shows the overall shape of the issues in a topic and how they fit together.
Leave lots of space for adding further information or ideas later.
After the lecture

Review your notes as soon as possible and correct anything that is unclear by asking your
fellow students or looking it up in the reading. Follow up any queries that you made to
yourself about points you didn’t understand. This immediate review doesn’t have to take
long and it is extremely helpful in fixing material in your memory.
Lecture notes are also an important resource in preparing for seminars/tutorials. They will
help you to answer questions that are assigned. Do use these smaller group settings to ask
about any points you were confused about in the lecture.

Taking notes as you read

Part 3 of this guide deals with reading. Here is some very basic guidance on taking notes as
you read.
The main point – and this is made over and over again in guides for students – is: do not
start taking notes as soon as you start reading.
First: Read a section of your textbook or subject guide.

 Read just enough to keep an understanding of the material in your mind.
Do not take notes at this point; instead focus on getting the material clear in your head.
It is tempting to take notes as you are reading a passage for the first time, but this is not an
efficient technique: you are likely to write down too much information and simply copy
without understanding.
Second: Mentally review the material.

 What are the main ideas?
 Can you remember any important sub-points of any of the main ideas? Or just that there is
‘something’ (e.g. re Criminal law: ‘Mens rea and intention, there’s some complications.’)
 Set the book aside.
 Paraphrase the information you can remember without looking back at the book. Putting
the textbook information in your own words forces you to become actively involved with
the material.
Third: Now check back against the textbook and make any corrections or additions (but
not too many – keep to the key points).
 Where your paraphrase includes mistakes in the key legal terms, correct these but other-
wise leave the notes in your own words.
 Do not copy information directly from the textbook.
 Add only enough detail to understand.
Fourth: Write up the paraphrased ideas, with the corrections and additions, as your notes.
Fifth: Final review, comparing your notes with the text, and asking yourself if you truly
understand.
Sixth: Compare your notes with your lecture notes and the subject guide, again making
adjustments. If you are using your subject guide as a notebook, you will want to transcribe
these notes into the subject guide.
Steps 5 and 6 do not have to be done immediately. In fact, it could be helpful to do these
slightly later – maybe at the end of the topic or group of topics when you are consolidating
your learning. Coming back, especially in view of what you have learned later, may give you
a fresh grasp.
12 Plagiarism, ethical conduct and University rules

From the start of your studies, you need to have some awareness of the University’s rules
relating to examinations and written work† submitted for assessment. These rules can be †
A Dissertation option will be
found in the Regulations and they relate to plagiarism and examination offences. offered from 2008/09.
Like laws, these are rules with penalties. But also, like at least some laws, there is a much
wider underlying ethos. As a member of the academic community – which you are, as a
student – you should appreciate the ethical and scholarly reasons behind the rules.
The academic community as an ethical community

The academic institution is a community in which broad ethical values should apply. It is
sometimes described as a ‘gift economy’ where people exchange knowledge and ideas on
a free and open basis – in contrast to the commercial economy of the marketplace. The aca-
demic community is based on relationships of trust, honour and co-operation rather than
suspicion and competition. We expect that students will be co-operative with one another,
positive and supportive in their dealings with their institutions, and will generally adopt a
civil† approach. †
As University of London
philosopher A.C. Grayling puts
A civil approach means dealing with other people politely and with consideration. If you
it: ‘civility…creates social and
disagree with an argument, dispute the reasoning but do not attack the person who makes
psychological space for people
it: avoid argument ad personam. It is acceptable to say, ‘I disagree with your position on XYZ
to live their lives and make their
because…’, but it is unacceptable to say, ‘Your position on XYZ is stupid because you’re a
own choices’ (Grayling, A. C.
woman and you just don’t have the brains’, or ‘Everything this person says must be rejected
The meaning of things: applying
because he has a criminal conviction/supports experimenting on animals…’.
philosophy to life. (London:
Even if arguments are addressed properly, do not ‘throw in’ forms of abuse. Feeling pas- Weidenfeld and Nicolson, 2002)
sionate about arguments is a good thing, far better than just rote-memorising everything. [ISBN 978-0753813591] p.12).
Passion can drive you to find out more about a topic or an issue. But passion needs to be
harnessed. It is no excuse for abuse or discrimination. Men and women, people of all ages,
and people from all ethnic backgrounds have equal rights and responsibilities in this com-
munity. Students who are abused or discriminated against should insist on their rights, and
other students should support them.
This is a community in which people are expected to work together. We are all involved
in the building of an academic body of knowledge, and you will often find opportunities
for working with other students. This is of great practical value: we learn more, and faster,
when working with other students. Co-operative values suggest that in a group you should:
 contribute your fair share
 not ‘lurk’ in silence (this often happen in online groups and tutorials)
 give proper credit to the contributions of others
 not try to dominate: be part of the team.
However, there are important limits to the way in which you should make use of the work
of others. This is where you must be very conscious of the dangers of plagiarism.
Plagiarism
All universities prohibit plagiarism by students but plagiarism is defined in different ways.
When described as ‘presenting another person’s words as one’s own’, this links plagiarism
to immoral actions: plagiarism has been compared to theft and fraud, a form of cheating or
gaining an unfair advantage over other students.
The other type of definition merely states that plagiarism is ‘using or copying the work of
others (whether written, printed or in any other form) without proper acknowledgement
in any coursework’.† This links plagiarism more to poor referencing. †
www.essex.ac.uk/plagiarism/
pages/keyterms.htm (accessed
UCL, one of the colleges that make up the Laws Consortium of the External Undergraduate
22 April 2007).
Laws Programme, states:
Any quotation from the published or unpublished works of other persons must…be
clearly identified as such by being placed inside quotation marks, and students should
identify their sources as accurately and fully as possible. A series of short quotations from
several different sources, if not clearly identified as such, constitutes plagiarism just as
much as does a single unacknowledged long quotation from a single source.
The University of London General Regulations state:

10.10 Plagiarism is the presentation of another person’s thoughts or words as if they were
the student’s own: for example, copying from text books and other sources (including
the Internet) without due acknowledgement that the passages quoted are copied and
without giving the source of those passages…Plagiarism is an examination offence.
In order to avoid plagiarism, you must familiarise yourself with the academic conventions
on referencing/citation by which the words of other writers may be clearly indicated as
such in your written work.† †
Information on referencing is
provided in Section 23, Academic
The ethics of referencing/citing writing.
The obvious cases are where a student copies someone else’s essay (even with their
permission) or buys an essay from the internet and presents it under their own name. Even
though the first would not be stealing if you had the other person’s permission and the
second would involve a lawful commercial transaction (buying the essay), when you go on
to present this work as your own, you are acting fraudulently and cheating: you are going
against the ethos of the academic community.
There is an ethical necessity to give accurate reference to other people’s work when you
are drawing on it. Not to do so weakens the general bonds of trust.
The less obvious cases – and this is why Part 4 gives you advice on referencing – are where
students are drawing on published work but fail to distinguish between what is being
quoted and what is their own contribution.
Scholarly reasons for citing

Citation and referencing is also fundamental to the way the academic community builds
up its knowledge and understanding through an ever-accumulating body of work. Scholars
do not start from the beginning each time: they need to base themselves on work already
done. Or, if presenting new facts – for example on science or empirical research – they need
to show how they reached those results. Transparency is crucial: by showing their sources,
scholars allow others to check on the reliability of those sources. Here citing/referencing
sources shows the reliability and authority that you are building on. It shows that you are
deploying sound ideas from other people in academic and/or legal argumentation and
debate – or allows you to comment when the point is more controversial or less fully estab-
lished. (You might say: ‘This ruling was by the Privy Council and so not binding on the English
courts but it shows a more enlightened approach because…’). Thus you will be participating
in the academic way of doing things, building a more solid intellectual structure and also
questioning points in others’ work where you feel that the foundations are weak. It also
allows you to say precisely where you might differ, and what you base your disagreement
on. It also allows others to build upon your work, to acknowledge your contributions and
develop the subject area.
Good practice starting points

 If your lecturer gives you a quotation – from a case or an article or a textbook (in fact any
quotation) – always record the source details: the name of the person quoted, the name of
the book or article (and the name of the journal), or the case citation.
 If, when you are reading, you write out a passage from a book or article, record the source
details as above.

Study packs: use and copyright

For many subjects we provide study packs, which contain important additional reading.
For the four Intermediate subjects (Criminal law, Public law, Common law reasoning and
institutions and Elements of the law of contract), these readings are also made available in
digital form via the Laws VLE.
These additional readings, in hard copy and online form, have been made available under
specific legal terms relating to copyright law, amounting to specified exceptions to the nor-
mal rules. These materials are reproduced under licence from the UK Copyright Licensing
Agency (UKCLA). The licence allows you to:
 access and download a copy from the VLE
 print out a copy.
This digital copy and any digital or printed copy supplied to or made by you under the
terms of this licence are for use in connection with your course of study. You may retain
such copies after the end of the course, but strictly for your own personal use. The licence
does not permit you to make copies for other people or to sell them or to make any other
use of them than for individual study.
Apart from this specified use, we remind staff and students of the External System that
copyright subsists in these extracts and the works from which they were taken.
Note that you are also subject to the copyright laws of your own country.
Legislation and copyright

So long as you do not use the materials in a derogatory way, the Crown copyright protec-
tion in all UK legislation is waived.† †
www.opsi.gov.uk/advice/crown-
copyright/copyright-guidance/
You may even reproduce the Royal Arms if they form an integral part of the material being
reproduction-of-legislation.htm
reproduced: for example, you may reproduce the cover of an Act of Parliament featur-
ing the Royal Arms in a compendium or database product if the rest of the Act is being
reproduced.
Other examination offences

These are described in Part 7 on Examination rules – and, of course in the Regulations.
13 Becoming an autonomous learner

The Laws Programme seeks to provide you with a thought provoking, challenging and stim-
ulating programme of study that encourages you to stretch your enquiring, analytic and
creative skills to the limit and guide you in putting ideas and different sources together.
The University’s core expectation of Laws students is that you set out to be dynamic, active
learners, not passive learners, engaging in deep learning rather than surface learning. We
want you to develop all areas of your intellect while pursuing this course: your imagina-
tion should be provoked, you should learn how you exercise judgment and develop your
problem solving skills as well as your written and oral communication skills. Above all, we
want you to see your chosen area of study in a broader way.
Independent thinking and study is important for a number of reasons:

 All higher education institutions expect their students to develop the ability to be inde-
pendent thinkers.
 English law is flexible and ever changing: you must be able to ‘keep ahead’.
 There is much more to learn than any textbook can teach you – but you need to be selec-
tive and have priorities.
 The world is constantly becoming more complex: to cope with any professional job or
knowledge base you need to go far beyond the minimum requirements.
 Your examiners will want you to express yourself and demonstrate your abilities.
 In working towards becoming an autonomous learner, your ultimate aim is therefore to
be able to be in charge of how you find out about law because, especially if you are plan-
ning to go into practice, this is going to be a lifelong task: solicitors and barristers have to
be constantly updating their knowledge and understanding of law.
 If you are seeking a Qualifying Law Degree, then you will be working independently on a
research project or dissertation of your own design, identifying the principal issues and look-
ing for vital sources of knowledge and understanding in order to make an overall argument.† †
See Section 27, Legal research.
There are two aspects of becoming an autonomous, independent learner. The first is associ-
ated with being organised and able to plan. Section 5, for example, explained a number of
practical techniques for managing your studies. We could call this ‘pragmatic autonomy’.
Pragmatic autonomy is associated with practical reflection.
Pragmatic autonomy
If you are an independent learner:
…you have to decide your own priorities, set your own targets and work out your own
strategies for achieving them. You decide what subjects you are interested in, what points
of view you agree with, what evidence you accept, and what opinions you will express.† †
A. Northedge The good study
guide. (Milton Keynes: The Open
From the start of your studies, you control:
University, 2005)
 how much study you do [ISBN 978-0749259747].
 how your study time is planned
 how to get work ready by deadlines
 how thoroughly you cover the course
 whether to extend your abilities beyond the basics of the course.
Planning involves ‘means-end’ thinking: setting goals and working out the best way to
achieve them. Begin with choosing what end (goal) you are seeking and then decide on the
means you are going to use in order to achieve the goal.
Setting goals
Where do goals come from? The big goals are usually set from outside, such as examination
performance and meeting the expectations of the examiners. However, this is not totally
external as you have chosen to adopt these goals as your own in becoming a student on the
course and entering for the examinations. So, for the big goals – the long-term objectives
– you need to find out what the expectations are that you need to meet. At the same time, you
need to note any limits, such as the number of attempts permitted at taking an examination.
Activity 13.1 Long term objectives

 Where would you find out the University’s expectations for examination performance?
 Where would you find out the University’s expectations for Qualifying Law Degree skills
achievement?
Realistic goals
Here is some good advice. At the start of your studies:
 Ideally, you should be working on all your year’s subjects simultaneously rather than
one after another.
 It is very important that the hours given to study, whatever they may be and even though
their timing may vary, should be given consistently.
More important is that you should work out what is realistic yourself.
 Test yourself on how long it takes you to work through all the relevant material and then
adjust your plans to that.
 You will also need to review (possibly many times) how to integrate your studies with your
normal working life and family commitments.
If you start from how long particular tasks take – and they may take you longer in one sub-
ject than another – then you can build up a realistic study timetable. But are you actually
using your time effectively?
†
See Section 3, Studying at a
Practical reflection
distance, and Section 4, Discover
Earlier sections asked you to reflect on your expectations and your learning preferences.† your learning preferences.
This same approach can be applied to your study.
The following diagram shows how you

could use self-reflection in an effective Perform an action Reflect on how Consider how
instrumental way. or task you performed it you will perform it
better next time
However, it is not necessary to turn yourself into a machine, even a machine with a self-
scoping capacity. While this type of rationality is associated with efficiency, it carries the
danger of cutting you off from other values. Remember: enjoying your studies, finding
interest and a drive to find out more is the best driver!
Creative autonomy
The other aspect of autonomy is less structured, more creative and open. Let us call
this creative autonomy. It is associated with critical reflection. ‘Being critical’ , adopt-
ing a ‘critical-reflective’ stance, is a core value of the University of London External Laws
Undergraduate Programme.† †
‘Critical-reflective’ is also
a characteristic of a good
With practical reflection you are thinking about an action performed and looking back at it
examination answer.
with hindsight. Critical refection also involves looking at things from a different angle – often
something that seems ‘obviously’ true will suddenly look different if approached from a
different viewpoint. For example, you might have learned a legal rule and think you know it
pretty well but suddenly along comes a case that makes it look different. It may not be a case
– it could even be something in your personal life that suddenly puts things in a new light.
So, critical reflection is essentially about being open to new perspectives. And that requires
its own sort of space. If we are too busy ‘doing’ – or absorbing information – we have no
time to let our minds wander down creative pathways. Independence of mind starts there.
Section 22 offers more a specific discussion of this idea.† †
See Section 22, What does it
mean to be critical?
Of course, reading and researching and listening – and discussing with others – are impor-
tant too.
Keeping a reflective learning journal

It is a good idea to keep what is called a ‘reflective learning journal’. It can help with both
pragmatic and critical reflection. A learning journal is not the same as a personal diary.
It should not describe what happened during your day. It should help you in your future
behaviour. It does this by encouraging you to reflect on what you have done.
An English literature course at Queen Mary, University of London† gives the following advice: †
www.english.qmul ac.uk/
Your journal should be kept in a notebook especially set aside for the purpose. It is not a ShakesinClass/
place to make research notes for essays but a space in which to reflect on: LearningJournalPage.html
a) what you have read – both primary and secondary texts (accessed 29 April 2007).
b) things that were said in seminars or lectures
c) feedback from discussion with other students or with me.
The word ‘reflect’ is what is most important. It involves thinking about how you personally
are relating to what is happening on the course. It is an intellectual process, but a personal
one, and it is therefore appropriate that you should write conversationally. You do not
need to worry about punctuation and spelling in your journal (although of course you do
need to proofread and go through all the normal checking procedures in your final essay).
Here are some examples of what you might write:

29 March Attended special lecture by Mr Dukes on ‘the
basis of the law of contract’. He referred to the
textbook but it was still difficult and I didn’t
understand much. I prefer the practical stuff.
Must read something about it but Mr D said it
was a special topic and we’d have to find readings
for ourselves. Will I bother?
Afterwards, Mr D arranged a small discussion

group. I said nothing at all, but when they were
talking about promises not being contracts (or
something like that) I remembered that my
father had promised me that present and never
gave it to me – why shouldn’t that be a contract?
2 April Spent 3 hours working on an essay in a handout

from Mr Dukes. Too long? Is it worth bothering?
What do I get out of writing essays?
In these two journal entries there are interesting points.
1 The lecture. Not all lectures are meant to be simple. There are many difficult things to
understand in law. The student is right to think about reading ‘some more about it’ – al-
though the lecture might have made sense if she had read the passage from the textbook
in advance. It would also have given her some questions that Mr Dukes might be able to
answer.
Will you do some research on the topic? In the first passage it sounds unlikely.
2 The discussion. In groups it is a mistake to remain silent, because others will regard you as
ineffective (sometimes you need to reflect on what other students think of you). Even if you
feel ashamed about ‘not understanding’ the subject discussed, it is sensible to ask ques-
tions. Other students are usually glad to help, and they extend their own understanding by
trying to explain things to you.
In general, if you study in groups you learn more. In groups you can give knowledge and
encouragement, and others can do the same. Group work also helps you practise your oral
communication in legal English.
But at least you were listening and suddenly that discussion of promises sparked off a line
of thought connected to your personal life…And the issue became real because you sud-
denly saw it in a different way.
3 The exam question. Is three hours too long to spend writing an essay? In an exam you
would have about 40 minutes! But when you are working hard on a difficult subject, three
hours is reasonable. What can help? Talking to other students about the essay topic, and
comparing your ideas before you write, can help speed up the process. You could of course
simply copy someone else’s essay. You shouldn’t do so because:
 it takes too long to find an essay that is good enough to copy

 you have ‘parasited’ the efforts of the person you copy from
 it is unethical (as plagiarism)† †
See Section 12, Plagiarism, ethical
 it is a waste of time. You write essays in order to learn. The amount you learn from simply conduct and University rules.
copying something is minimal, though it may improve your handwriting. You learn by |
thinking and doing mental work, and practice essays will prepare you for those vital exami-
nation essays.
Reflection is what a single individual does ‘in his or her head’. But other people can help you
reflect. It may help you to find new ways of doing this by discussing your thoughts with them.
Part 3
Reading law
Sections
14 Reading law texts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
15 Reading legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
16 Reading cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
17 Reading techniques . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Learning skills for law 3 Reading law page 67
14 Reading law texts Law texts

The law is a profession of words. Whether you are reading, writing or speaking
law, you will be encountering a specialist realm of discourse. At the same time,
in engaging with university-level study, you will be encountering more abstract Primary Secondary
and sometimes arcane forms of language. Reading and writing competence sources sources
depends on the development of your English and specialist legal vocabularies,
Sources Sources
but the issues are not merely lexical.† Really, what is at issue are complex forms
of law about law
of expression that will take some practice to master. This part of the guide will
offer some guidance on building reading skills.
Here you’ll also find a general introduction to reading legislation and cases as
Legislation Books,
well as a variety of techniques for reading more generally.
and articles,
Primary and secondary sources of law case reports commentaries
Legislation and cases are referred to as primary sources of law or primary texts.
There are four main primary sources of law: †
‘Lexical means ‘relating to
 Legislation: the law created by Acts of the UK Parliament or law created by the delegated vocabulary’.
authority of Parliament. Such delegated authority† may be held by (as specified by
†
Parliament in specific enactments): Legislation created by delegated
 local government organisations authority is called ‘delegated’ or
 professional bodies (such as the General Medical Council) ‘secondary’ legislation. Legisation
 Government ministers created by Parliament is called
 European Community institutions (in certain situations). ‘primary’ legislation. Do not
 Case law: the law as specified by judges deciding cases in the English courts. confuse this with the distinction
between primary and secondary
 Treaties and legislative enactments of the European Union, such as the European
sources of law. As discussed in
Convention on Human Rights, as well as other international Treaties.
your Public law course, while
 Case law from other jurisdictions: other UK courts, from the European Court of Justice and most delegated legislation is
courts established to adjudicate on other international law issues, such as the European concerned with relatively narrow
Court of Human Rights. technical matters, in fact quite a
Reading primary law texts involves technical mastery of key vocabulary but also specialist lot of law-making activity occurs
techniques of legal interpretation that you will encounter in the course on Common law rea- at this level and therefore is
soning and institutions. This guide introduces you to the primary texts only in a general way. more politically important than
it might seem.
In the course of your studies you will also be reading many secondary sources or secondary
texts – texts about the law. These include:
 your textbooks
 your subject guides
 academic books about legal doctrine and policy
 articles in academic law journals
 reports by the Law Commission
 commentaries on the law found in newspapers.
Textbooks and subject guides can never be a complete substitute for reading primary
sources (cases and legislation). But reading secondary texts, such as reports by the Law
Commission or legal academic texts, is the key to gaining understanding of law.† †
See Section 17, Reading
techniques.
Legal language
The words of law are drawn from many different places, including other languages (particu-
larly Latin) and earlier forms of English. Legal English has evolved over at least a thousand
years. It retains many traces of its long history. Bearing in mind that law is for citizens and
not just legal practitioners, efforts have recently been made to improve the accessibility of
legal language, especially in the civil courts.
However, in starting off your studies, you need to be aware that engaging with law will
challenge your linguistic abilities at some level or another. If you are at all weak in English
language vocabulary, grammar or comprehension, then you will need to include English-
building activities in your study routines. Even if your English language competence is
strong, there are still the specialist aspects of legal English that you will need to learn.
It is often said that we construct our lives through language: it is through language that we
present ourselves to the world, to friends, family, colleagues, teachers and employers, and
it is through language that the world is presented to us. One interesting way of exploring
legal language is to look at why it has developed in the specialist and particular way it has.
Does this mean that legal language creates a special world? Do some people feel excluded
from this special world? We’ll take a few moments to look at these issues in this part of the
guide. And prepare yourself, because this is the world that you are going to inhabit as a law
student.
Please note that this guide does not introduce you to specialist methods of legal interpre-
tation – the rules or conventions for interpreting statutes and cases – that will be central to
your induction as an ‘insider’ in the world of reading law. You will learn these techniques
in the course on Common law reasoning and institutions and you will find detailed exposi-
tions in the course textbook by Webb and Holland, Learning legal rules.
What is offered in this guide are skills for learning about legal language and legal discourse
from the point of view of building increasingly sophisticated levels of reading ability.
Characteristics of legal language

Formal and informal language
Legal language is a type of formal language and thus associated with (1) avoidance of col-
loquial or slang vocabulary and a consistent preference for ‘learned’ words, often derived
from Latin, (2) complex, complete sentences, and (3) a generally ‘impersonal’ style, with
attention to forms of expressing respect through titles.
As you study, you will see how the language of modern English law reflects its history. Legal
language thus goes beyond the general rules of formal English, in vocabulary, phrases and
even syntax and punctuation, and adopts many fixed formulae.
Formulaic writing
Formulaic writing is a response to the need for clarity and consistency in legal application.
Lawyers are careful to retain legally well established meanings in documents. It is for this
reason that words and phrases well known to the legal profession are used over and over
again: everyone within the legal community or connected to it knows what they mean
– even if the public do not. Lawyers will look back at earlier documents, or legislation, or
law cases, and re-use identical words, phrases or even large sections of text to create new
legal documents or build legal arguments. Legal formulae are thus like templates. The
consequence of this is that many legal words and phrases have been passed down from
one historical period to another, even if they no longer have any meaning outside the legal
community. Words can be used unchanged for hundreds of years in English law, despite
attempts in modern times to make the law easier for ‘lay’ people to understand.
Vocabulary
Modern law therefore contains in its vocabulary hundreds of Latin, Anglo-French and
Middle English terms, which are reflections of earlier periods in English history. Such words
in English law can be traced back to:
 Latin phrases and words left behind by the Romans that found their way into English law via
Church law, as introduced by the Norman French, who conquered England in 1066:
 mens rea (guilty mind or more properly, the mental element)
 res ipsa loquitur (the thing speaks for itself)
 nulla poena sine lege (no punishment without law).
 French, introduced by the Normans and their successors. Note that the first medieval
English kings could speak French but not English:
 estoppel
 voir dire
 chose in action.
 Middle English: these terms are reflections of earlier periods in English history. Such words
in English law can be traced back to England’s Anglo-Saxon heritage.
 witnesseth (it is witnessed by)
 aforesaid (as said, or mentioned, before).
Latin
Latin was the official (and literary) language of the Roman Empire. It is an Indo-European† †
The Indo-European family of
language, and the modern languages of Italian, Spanish, Portuguese, French, Romanian languages includes all the
and some other minor languages in Europe are descended from it. It has also had a strong European languages except
influence on other languages. The English language, for example, contains huge numbers Finnish, Estonian, Hungarian,
of words of Latin origin, which often made their way into English from French. When the Maltese and Basque, and a wide
Roman Empire collapsed in the fifth century AD, the use of Latin was retained by numerous range of ‘Middle Eastern’ and
scattered Christian religious establishments and a few government and legal bodies during South Asian languages, including
the ‘dark ages’ which followed. Many different languages were spoken in Europe (over 40 Sanskrit, Hindi, Bengali, Persian
are spoken to this day). The presence of a single language that could be understood by the and Pashto.
small numbers of educated people throughout western and central Europe was extremely
important for the revival of western civilisation.
As government, knowledge and religion were revived, Latin was the language in which they
were formulated. Vernacular languages did not start to take over this role until the 14th
century. Even then the transfer of state and legal discourse to ‘native tongue’ was slow,
because Latin had the advantage of being both venerable and a lingua franca. (If there is a
lingua franca today, it is probably English.)
Latin’s prominence in English law also derived from its links to the system of Roman Law (the
origin of civil law systems) and its use in the form of well known maxims and axioms which
could be used to summarise and short-cut discussions. Many Latin phrases, such as habeas
corpus, caveat emptor, tempus fugit and in tenebris are still part of the English language.† †
For a list of Latin maxims that
were once important in English
In your subject guides, Latin words are usually printed in italic type to indicate that they are
law see: www.swarb.co.uk/lawb/
of foreign origin. But, even today, this is by no means the rule in law texts, where Latin is
genLegalLatin.shtml
still regarded as a ‘family friend’.
For a wider list of Latin phrases,
However, legal Latin is in decline. In a speech entitled ‘Current challenges in judging’, Lord see www.yuni.com/library/
Chief Justice Woolf said (in 2003): latin.html
… I urged, as part of our reforms, the abolition of Latin and the adoption of simple English
when rewriting our Rules of Procedure and, indeed, in our courts. A recommendation
which was singularly ill received. How, it was complained, were you to make an ex parte
interlocutory application in terroram for an interim order of certiorari when the court
needs to be assisted by an amicus curiae if there is no guardian ad litem or any pro bono
representative? While no one takes it too seriously, we are making progress. On 21 March,
I received a letter from the Chairman of the venerable City of London Magistrates, saying
that from now on they are not going to adjourn sine die but adjourn without date. I had
suggested adjourn generally. I did hold a competition for the best substitute for ‘pro bono’.
Despite protests from a number of colleagues, the competition was a great success. I was,
though, extremely worried for a time because I had offered a magnum of champagne
to the winner and it looked as though the winning selection was going to be the choice
of about a dozen different competitors which would have set me back a sizeable sum.
Fortunately, however, I ended up only having to provide three magnums for ‘law for free’ …
The reforms Lord Woolf is referring to concerned not only the Civil Procedure Rules but ma-
jor reforms of the civil justice system. The name of the report recommending the reforms
– Access to Justice,† makes the purpose clear. Reforming the language of law was part of that †
You can find Lord Woolf’s Final
project. A number of changes to legal terminology were introduced, replacing Latin and Report on the Civil Justice System
other archaic terms as well as expressions that were the same as everyday English (such as in England and Wales (July 1996)
‘relief’) but had a completely different legal meaning: at www.dca.gov.uk/civil/final/
index.htm
Old term New term
The Woolf reforms of civil justice
action claim
are discussed intensively in
guardian ad litem litigation friend
the course on Common law
leave of the court permission of the court
reasoning and institutions.
plaintiff claimant
pleadings statement of case
relief remedy
subpoena witness summons
summons notice of application
writ claim form
But, as Lord Woolf’s speech indicates, much Latin remains.
The syntax of legal documents

Legal language, although formal, sometimes does not observe the normal rules of English
punctuation and grammar. As also noted above, formulaic language is more powerful in
law than formal English. In older legal documents statements have no punctuation other
than full stops and capital letters. At one time legal documents were constructed even
without paragraph breaks – so that other words could not be unlawfully added after the
document was finalised.
Consider the punctuation and grammar – or lack of it – in this extract from a legal docu-
ment used in the mid-20th century to transfer property to a new owner. Specifying condi-
tions relating to upkeep of the property, the following terms are set out in the document
(which is called a Conveyance):
The right at any time and from time to time within eighty years of the date hereof to
enter on the property with or without workmen equipment and appliances to view the
state and condition of the retained land and any buildings or erections now erected or
which may be erected within such period of eighty years and to repair clean decorate and
renew any such buildings or erections but in any such case so as to cause as little damage
as possible and making good such damage with unnecessary delay at the sole expense of
the person exercising the said rights.† †
Influence of Latin:
words of Latin origin in this
Activity 14.1 passage are shaded.
What did you make of this 102-word unpunctuated sentence? You probably needed to read
it several times. In this extract from the Conveyance above:
(a) What right is implied in addition to the rights to ‘enter’ and ‘view’?
(b) What conditions are attached to the rights to ‘enter’ and ‘view’?
(c) What apparent mistake has been made in the wording?
The immensely long sentences, containing many clauses without punctuation, were
designed so that sentences could stand alone as independent sentences that had a fixed
meaning irrespective of what came before or after. Consequently, it is usual for sentences
in legal documents to repeat all previous information instead of referring to what has come
before by means of a pronoun, as would be normal in both informal and formal English.
That is why ‘buildings and erections’ is repeated in the above extract, rather than saying
‘them’, as would be more normal.
It is often said that the reason for this formulaic, fixed mode of writing was to prevent fraud
rather than to prevent lay people from understanding the document – however much that
is the effect. Often lawyers will initial pages to indicate that they are lawfully included. Legal
documents used to be sewn together by lawyers’ clerks with ribbons of particular colours
sealed with wax in order to prevent the fraudulent insertion of extra or different pages. For
some documents this sewing service is still carried out.
Activity 14.2
‘Legal documents should always be expressed in ordinary plain English.† Lawyers make †
See the Plain English Campaign
their money by being specialist translators of unnecessarily obscure formulations.’ web site at www.plainenglish.
‘Law is a highly specialised field and needs to have a very precise language. The more it co.uk
sounds like everyday English the more confusion will result.’
Which position do you agree with? What would Lord Woolf’s position be?
Developing your capacity to understand legal language

As well as the special words mentioned above, many ordinary English words have a special-
ised legal meaning within English law. Major issues arise over the meaning of words such as
‘reasonable’, ‘intention’ and ‘worker’. Court cases may debate the meaning of these words.
Legislation may try to clarify their meaning, and articles will be written about them. It is as
well to begin recognising them now!
At the same time, legal discourse employs many highly sophisticated English terms and
turns of phrase, often expressed in a slightly old fashioned way and often in rather long
– although usually punctuated – sentences. You will encounter such language in examina-
tion papers where you are asked to comment on quotations.
The following examples of examination questions involve a mixture of formal academic

English (of a rather old fashioned variety) and specialist legal language or references.

1. ‘For all its ostentatious celebration of the “golden thread”, English law by no means
shows an unequivocal commitment to the Woolmington principle.’
Discuss.
2. ‘The principle that damages are compensatory gives rise to the question: for what is a
victim of breach of contract entitled to be compensated? The question calls for an analysis
of the various types of losses for which the victim of a breach of contract can recover dam-
ages.’ (Treitel)
How do the various types of losses seek to compensate the victim of a breach of contract?
To what extent does the possibility of an award for restitutionary losses threaten to erode
the more traditional losses measured in terms of expectation and reliance?

Don’t panic! Our students answer questions like this successfully every year and such
phraseology will become less intimidating as you work through your studies, subject
by subject. But this does raise another point: there is not just one overall legal
vocabulary: each subject area has its own specialist language.
At first you may feel overcome with too many unknown words. Do not worry: if you persist,
your vocabularies, and therefore your general comprehension of legal texts, will expand.
 You should definitely invest in two dictionaries: (1) a high quality English dictionary – free
online dictionaries are not sufficiently reliable or detailed; and (2) a dictionary of law.
 It will also be useful to bookmark† good online legal glossaries that come from relevant † See Section 29, Developing your
and reliable official sources such as gov.uk. You could start with: www.statutelaw.gov. IT skills.
uk/help/Glossary.htm.
Start a card index

One of the most useful things you can do in relation to English is increase your vocabulary
by setting up a personal card index file of new words.† † Try to add 15–20 new words a
week to your card index, and
Start with a set of small (127 x 76 mm or 152 x 112 mm) index cards and a file box: you will
make sure you look through
need more cards (and a bigger box) later.
them every day at first, and once
Keep them in alphabetical order – it makes the words easier to find when you need to or twice a week as time goes by.
double check!
You can keep both your general and specialised vocabulary in the same series if you use a
black pen for the former and red for the latter.
15 Reading legislation
Legislation is the name given to law created by Parliament. Certain procedures have to be
observed for legislation to be correctly created (legally valid). Draft legislation progresses
through the specified committee stages, debates and voting procedures in Parliament
(both the House of Commons and the House of Lords, also known as the ‘lower’ and ‘upper’
houses) and then receives Royal Assent.† †
For more detailed information
see ‘Parliamentary Stages of a
While passing through these various stages, the draft legislation is called a bill and it is
Government Bill’ at www.
printed by the government publisher – Her Majesty’s Stationery Office (HMSO). Once it
parliament.uk/documents/
has received the Royal Assent, it is printed by The Stationery Office (TSO) as a final piece
upload/l01.pdf
of legislation, and referred to as an Act of Parliament or, more simply, a statute. Similarly,
what are called ‘clauses’ in the Bill are called ‘sections’ when it has become an Act. The final
statute may be very different from the original draft Bill, due to amendments made during
its progress through Parliament.
Vocabulary: all these terms are synonyms for law created by Parliament
a statute (plural = statutes)
an Act of Parliament (plural = Acts of Parliament)
a piece of legislation (plural = legislation not legislations!)
Finding legislation
It is crucial that you know where to find the legislation referred to in your subject guides
and textbooks. Locating relevant legislation is a basic skill of legal research.
As well as consulting legislation for reading purposes, you may want to have copies that
you can annotate (make notes on) for yourself. Printing out selected passages from legisla-
tion can be very useful.
Sometimes you may be trying to find out about a particular topic but you don’t know
which piece of legislation covers it – in fact, it could be covered by more than one statute.
Here you will need to know how to conduct ‘searches’, whether in a physical library or
online.
Don’t panic about the fact that statutes may be very long. As a student you only need to
know selected portions. Your subject guides will direct you.
Statute books are the perfect source for finding the key current legislation in the different
areas of law (contract law, criminal law etc.). You might wish to buy your own, or you can
find them in law libraries.
Online resources: web sites with the text of legislation are numerous but your starting
point should be the University’s Online Library, specifically the LexisNexis, Westlaw and
Justis databases.
The search structures are different on different databases. Use the ‘quick start guides’ to
see how to conduct a search on each database.
UK Acts and Statutory Instruments since 1988 are also available on the web site of the UK
Office of Public Information (which includes HMSO): www.opsi.gov.uk/legislation/about_
legislation.htm.
You are free to download UK legislation for non-commercial use.† †

conduct and University rules.

The standard form of statutes

Statutes have a distinctive format. Most statutes also have a long title plus a short title − the † See Section 14, Reading law
short title is the title we use when we refer to an Act, and more recent statutes must also texts, for the distinction
contain an explanatory note that gives details concerning the Act’s provisions. between primary and secondary
legislation.
Primary legislation † will usually be structured into parts, sections and subsections, and may
also contain schedules at the end.
You will see most of these features in the example below.

You may also notice ‘c. 74’ in the top right hand corner.
This stands for ‘chapter’. The chapter number of this Act
tells you that it was the 74th Act passed in 1976.
Short title
Citation
Long title
Words of enactment
Part
Section
Subsection
Paragraph
Subparagraph
Parts
Parts allow a range of provisions to be grouped together to give a logically consistent
feel to the statute. For example: Part I may set out new wrongs; Parts II, III and IV may set
out different areas in which those new wrongs apply; and Part V may contain definitions.
Smaller statutes may not be divided into parts – but this does not necessarily mean that
they are unimportant. The Human Rights Act 1998, one of the most significant Acts of
Parliament to have been created in recent years, is not divided into parts.
Sections, subsections, paragraphs and subparagraphs

These are the further possible divisions of a Part.
Thus Part I of the Race Relations Act 1976 contains three sections: prescribing the civil
wrongs of direct discrimination, indirect discrimination and victimisation. Each section
contains a rule or set of rules or a procedure. One could say that each section introduces a
new but connected issue.
Race Relations Act 1976 Section 1

1.–(1) A person discriminates against another in any circumstances
relevant for the purposes of any provision of this Act if–
(a) on racial grounds he treats that other less favourably than he
treats or would treat other persons; or
(b) he applies to that other a requirement or condition which
he applies or would apply equally to persons not of the same
racial group as that other but–
(i) which is such that the proportion of persons of the
same racial group as that other who can comply with it
is considerably smaller than the proportion of persons
not of that racial group who can comply with it: and
(ii) which he cannot show to be justifiable irrespective of
the colour, race nationality or ethnic or national origins
of the person to whom it is applied; and
(iii) which is to the detriment of that other because he can-
not comply with it.
(2) It is hereby declared that, for the purposes of this Act, segregating
a person from other persons on racial grounds is treating him less favour-
ably than they are treated.

Numbering style in statutes For example:
Part large Roman numerals Part I
Section Arabic numbers s.1
Subsection Arabic numbers in brackets sub-s.(1)
Paragraph lower case letters in brackets para.(a)
Subparagraph small Roman numerals in brackets sub-para.(i)
Combined s.1(1)(a)(i)
A guide to Roman numerals

Roman numerals may not be familiar to everyone. Roman numerals have both large and
small cases, unlike Arabic numerals (1, 2, 3 etc).
Large Small Value in Arabic numerals

I i 1
II ii 2
III iii 3
IV iv 4
V v 5
VI vi 6
VII vii 7
VIII viii 8
IX ix 9
X x 10
XI, XII xi, xii 11, 12 etc.
XIX xix 19
XX xx 20
XXI, XXII xxi, xxii 21, 22 etc.
XXIX xxix 29
XXX xxx 30
L l 50
XC xc 90
C c 100
D d 500
M m 1,000
Activity 15.1
1 How should you refer to the passages of the Race Relations Act that include the following?
 ‘On racial grounds he treats that other less favourably than he treats or would treat
other persons’
 ‘Which he cannot show to be justifiable irrespective of the colour, race nationality or
ethnic or national origins of the person to whom it is applied’
 ‘It is hereby declared that, for the purposes of this Act, segregating a person from other
persons on racial grounds is treating him less favourably than they are treated’
2 Choose any statute referred to in one of your subject guides, look it up and follow the
logic of how it is split it into parts, sections etc.
Schedules
Schedules appear at the end of some statutes. They give detailed information about
matters referred to in the statute. Schedules do many things: they may amend legislation,
give powers to enact delegated legislation, repeal legislation and set out the detail of new
organisations set up by the statute. For example, Schedule 4 to the Race Relations Act
amends the Sex Discrimination Act of 1975.
‘Connectors’: small words with big consequences

‘And’, ‘but’ and ‘or’ are in bold in the extract from s.1 of the Race Relations Act on page 74.
It is extremely important that you pay close attention to these small words (known as con-
nectors) when reading statutes.
When they fall at the end of a passage,

they indicate the following:
 or: where passages in legislation are

separated by ‘or’, this is a strong ‘or’. It
means one or the other, not both. Also,
what is said in one does not carry over
into the other. (For example, if one sub-
section includes a time qualification
(e.g. ‘acts occurring at the same time’)
and the following one does not, then
there simply is no time qualification in
the second.)
 and: by contrast, ‘and’ means that

passages are additive. A number of
conditions are being specified that all
have to be met. See s.1(1)(b)(i)–(iii) of
the Race Relations Act above.
 but: this means that the passage has a

direct impact on the one that precedes
it, and therefore the passages must be
read together if the reader is to grasp
their full meaning. See s.1(1)(b) above.

Statutory words
The main linguistic characteristic of law derived from Parliamentary authority is that it has
a fixed verbal form. This means that the precise words used in the legislation must be used
to determine the scope and application of the rule. This is the wording that Parliament has
agreed on after much deliberation.
What the words of the statute mean is a different question. However carefully a statute is
drafted, language is not a precise tool. Sometimes Parliament uses words that are ambigu-
ous, or fail to describe all of the situations to which a law may apply. Words often gain their
meaning from specific contexts or may change over time. Indeed, the type of situation that
the law was originally intended to deal with may have altered radically. The drafters of law
cannot foresee everything.
When applying statutes to cases, judges in court spend a great deal of time discussing the
words and phrases used in legislation. In common law systems, judges thus have consider-
able power to determine how a statute applies. Judges do not simply have a free hand: they
must follow the conventions of statutory interpretation.† These are specifically legal tech- †
You will find out about methods
niques of reading legislation. However, there is considerable leeway and thus a potential of statutory interpretation in
gateway for the judges’ beliefs and values to influence law. the course on Common law
The current status of a statute

If your subject guide and textbook are up to date, then you can rely on them to give you
the correct picture of the current status of a statute. The Recent developments in law booklet
will update you year by year.
Law is constantly changing. When an Act is passed it ‘comes into force’ according to the
specified commencement date. But it may subsequently be amended by later legislation or
repealed, in part or in whole.
 When you look up legislation in an up-to-date statute book, the legislation will be presented
as it exists in its current form, including any amendments, as at the date of publication of
the statute book. But this information is only as good as the publication date: this is why it is
important not to rely on out of date statute books.
 When you look up legislation on the Online Library or UK government databases, you will
be accessing the Act exactly as it was passed. They do not give you its subsequent history.
 When you look up legislation in Statutes in Force or the Current Law Citator in a print-based
library, you will find the current status of the statute.
Before you begin to discuss a statute, you must know its current status. There is no point
discussing the meaning or application of a rule that is no longer law, or a rule that has been
changed in any way.
For example, the Race Relations Act 1976 has been amended by
 the Race Relations (Amendment) Act 2000
 the Race Relations Act 1976 (Amendment) Regulations 2003.
How to find out the current legislative status of a statute

If you are searching online:
 Westlaw UK. As well as entering the name of the Act in the search box, enter the section
of the Act you are interested in into the Provision box and perform your search. Select the
Related Information Tab in the left-hand panel and click on Analysis. The current law in
force and commencement information will be listed.
 LexisNexis UK contains the full text of Statutes in Force.
 The UK Ministry of Justice web site www.statutelaw.gov.uk allows you to:
 view amended legislation as it has changed over time
 see how legislation will be affected by amendments not yet in force
 see how legislation has been amended for different jurisdictions.
Case law interpretation of a statute

You must also know if the section in the statute that you are considering has been the sub-
ject of any court cases, particularly in the Appeal Courts (Court of Appeal or House of Lords).
Judgments and opinions at this level are of the highest authority. If a judge rules on the
meaning of words in a statute, this needs to be referred to in any discussion of those words.
Apart from your subject guide, textbook and Recent developments in law booklet:
 An annotated statute book will discuss significant cases.
 Check the Laws VLE newsletters, which provides update and informed discussion.
 Look at newspaper law reports such as The Times or The Independent.

16 Reading cases
When a case goes to trial, each party to the case argues his or her point, usually through a
lawyer, and finally the judge or judges sitting in court makes an authoritative statement
explaining why they consider that in these particular circumstances a particular legal rule
does or does not apply. However, it is usually only when cases are appealed to a higher
level – where again the two sides make their legal arguments but normally without proof of
facts – that cases become significant for the establishment and study of law.
Cases are the lifeblood of common law systems. For a common law lawyer, law is not actually
‘real’ until it has been tested through argumentation and decisions in court. Statutes remain
empty words until their meaning has been explored and pinned down through specific ap-
plication in case law. Some law in common law systems remains entirely without a statutory
basis and owes its origin and validity entirely to case law: so-called ‘judge-made law’.
The course on Common law reasoning and institutions explores this mystique of the com-
mon law in depth. But a few common confusions can be dispelled here.
 ‘Common law’ does not refer only to law that does not have a statutory basis.
 Of course, non-common law systems (such as civilian systems or socialist systems) also
have cases.
 The key point is the authority (and hence priority) given to cases in common law systems.
Cases do not have this status in non-common law jurisdictions. This is also related to the
difference between adversarial and inquisitorial systems.
 But is it all a myth? The vast bulk of cases dealt with in common law systems are entirely
routine and many never get to court at all …
These are issues that you will explore later in your legal studies, along with the key legal
methods of case law interpretation.
Reading cases is a core activity for every law student and practising lawyer. You should
make it part of your everyday routine.
Many students rely on case summaries, whether in their textbooks or in books that sum-
marise all the cases in any one subject. This is not necessarily a bad idea for getting basic
information, especially on cases that are not critical. But, if this is all you are relying on, it
will show in the examinations. It is always easy to spot when a student does not really
know what a case is about because they have never read it.
The simple truth is that you will never be able to ‘think like a lawyer’ unless you have
experience of reading cases – not just summaries. You will never understand how legal rea-
soning and argument works until you have sorted through some complex cases – especially
appellate cases with judgments or opinions by different judges – who often disagree with
each other on what the final decision should be, or, which is often more important, agree
on the outcome but for quite different reasons.
The section will not explain the specific legal methodology of reading cases in the common
law system, which is explained in the course on Common law reasoning and institutions.
This involves interconnections between:
 binding precedent
 hierarchy of the courts
 stare decisis
 ratio decidendi.
You might note down the above terms for further reference – or you could have an advance
look by skimming the relevant chapters in Holland and Webb’s Learning legal rules.
Vocabulary that you will come across in this section (and might like to look up) includes:
 appellate courts
 claimant
 Court of Appeal
 defendant
 High Court
 House of Lords
 judgment (note that a law judgment in English law is spelt judgment, not judgement)
 opinion
 party
 plaintiff
 prosecution
 trial court.
Finding cases
Searching for cases is a basic research activity that you are expected to undertake on a
regular basis, as directed by the subject guides or in order to answer essay and problem
questions.† †
The online legal research
exercises provide a systematic
Law reports introduction to finding and
Cases are found in law reports – publications that contain the judgments or decisions reading cases.
of court cases. The publications may be official, i.e. from the government, or unofficial,
perhaps produced by a commercial publisher. Some law reports are published in daily
newspapers, most famously The Times law reports, which give readers an almost immediate
account of the week’s activities in court.
The historical development of systematic law reporting was a key part of developing a
coherent legal system in Britain.† †
See C. Stebbings (ed.) Law
reporting in Britain. (London and
One of the essential elements in a system based on precedent is an efficient method for
Rio Grande: Hambledon Press,
making the precedents available.
1995) [ISBN 978-1852851293],
The main law report series are: and M. Zander The law making
 Weekly Law Reports (WLR) process. (Cambridge: Cambridge
University Press, 2004)
 All England Law Reports (All ER)
[ISBN 978-0521609890], Chapter 6.
 ICLR (Incorporated Council of Law Reporting) reports, which appear as:
 Appeal Court AC
 Chancery Division Ch
 Queen’s Bench Division QB
 Family Division Fam
The only constraint on the publisher is that the shorthand writer who takes the note must
be a qualified barrister, and if you look at the end of a law report you will find the name
of the barrister who took the note. In some series the judges check the final report for its
accuracy, though this is not always the case. And some reports are only summaries of what
was said and decided.
Some specialist series, for example the Employment Tribunal reports, will have a summary
to each edition critiquing and drawing attention to the cases contained in that collection
of reports. This can inform your reading of the text.
Which cases are reported?

While over 200,000 cases are heard in the courts of England and Wales each year, only
around 2,500 of these are reported (published in law reports) every year. The decision as
to whether a case is reported lies with the editors of the law report series, not with the
judge. The higher the court, the more likely it is that a case will be reported. Reported cases
include:
 all cases from the House of Lords
 around 70 per cent of the decisions of the Court of Appeal (Civil Division), but only 10 per
cent of Court of Appeal (Criminal Division) decisions
 a smaller proportion of cases from the High Court — between 20–30 per cent of decisions,
and most of these in specialised law reports.
The findings of trial courts are not usually reported. Some appeal tribunal decisions are re-
ported, but these represent a small proportion of the cases decided. The selection is made
by the Commissioners of the tribunal.
Cases are selected for reporting if they:

 introduce, or appear to introduce, a new principle or a new rule
 materially modify an existing principle or rule
 settle, or materially tend to settle, a question upon which the law is doubtful
 are for any reason particularly instructive.
Legal citations
Civil cases
The usual form of citation in civil cases is: claimant (plaintiff) v defendant (note italics):
Johnson v Phillips [1975] 3 All ER 682
‘v’ stands for versus but the case is normally referred to orally as ‘Johnson and Phillips’ or
‘Johnson against Phillips’.
Criminal cases
The usual form of citation in criminal cases is:
R v Lynch (1966) 50 Cr. App. R. 59
‘R’ stands for Rex (the King) or Regina (the Queen). This case would normally be referred to
orally as ‘the Crown against Lynch’ or just ‘Lynch’.
What citations mean

Let’s take the above two citations and break them down:
 [1975] 3 All ER 682: the case is reported in the 3rd volume of the 1975 issue of the All England
Law Reports, and begins on page 682.
 (1966) 50 Cr. App. R. 59: the case is reported in the 50th volume of the Criminal Appeal
Reports, which was published in 1966, and begins on page 59.
You’ll note that some dates are in round brackets, and some in square. This relates to the
usefulness of the date when looking for law reports. When you see round brackets, look at
the volume number next to it, as that’s all you need to find the case (because volumes of
that particular law report began with volume 1 and go up consecutively with each report,
and so the year is just for information only). Square brackets mean that the year is impor-
tant: to find the law reports containing that case, use the year. Often each year’s reports are
split up into volumes, numbered e.g. 1, 2 and 3.
Report abbreviations
These are some of the most common law report abbreviations:
 All ER All England Law Reports
 WLR Weekly Law Reports
 AC Law Reports: Appeal Cases
 QB Law Reports: Queen’s Bench Division
 ECR European Court Reports
 EHRR European Human Rights Reports
 Cr. App. R. Criminal Appeal Reports
Neutral citations
From January 2001, all cases from the Court of Appeal and all the divisions of the High Court
have been assigned ‘neutral’ citations.
 EW is applied to courts whose jurisdiction covers England and Wales.
 Court of Appeal Civil Division EWCA Civ
 Court of Appeal Criminal Division EWCA Crim
 High Court (Administrative Court) EWHC Admin
 UK is applied to courts whose jurisdiction covers the whole of the United Kingdom.
 United Kingdom Privy Council UKPC
Each case is given a unique number to identify the case, which is not tied to any law report
series, and which may be cited in court. These citations are constructed as follows:
Year Court Division Case no.
[2001] EWCA Civ 12
Cases are also given paragraph numbers (but no page numbering) so that the precise place
in the case may be cited, for example:
Smith v Jones [2001] EWCA Civ 12 at [35] † †
‘At’ is used, for example,
when citing a phrase or passage
The House of Lords (UKHL) follows the same system:
from a judgment. When just the
R v Lambert [2001] UKHL 41 number is given (without ‘at’),
This system will be extended to other divisions of the High Court in due course. this will be the first page of the
case.
The standard form of law reports

The elements of a law report
A law report will contain:
 the title of the case, e.g. Johnson v Phillips
 the year [1975]
 court level
 names of judges
 a headnote, or analytical summary stating the points decided
 a statement of the facts
 a brief case history
 the opinion (or judgment) of the court
 the judgment handed down.
It often contains:
 cases referred to
 the names of the legal representatives appearing for each side.
Here is the facsimile of the opening page of a law report

as it appears in print.
George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] AC 803
Claimant (Plaintiff) Defendant Date
Law Report
Page number
The language of cases

A law report is not a transcript of a trial. Apart from the supporting information, law reports
give the text of the speeches made by judges when deciding a case. The speeches are
reported verbatim without comment in the law reports. When printed, these speeches
may range in length from one page to well over a hundred pages. These speeches are called
judgments in the Court of Appeal and opinions in the House of Lords.
Referring to the specialist terms of case interpretation that you will encounter in your
Common law reasoning and institutions course:
 A judgment (or opinion) consists of a ruling in favour of one side or the other: a ruling
articulates a rule that covers the case and explains the reasoning that justifies that decision
(the ratio decidendi). Under the doctrine of binding precedent, decisions by judges in the
Appellate courts have to be followed by lower courts. Therefore great importance is at-
tached to their rulings.
Law reports of cases in the appeal courts (also referred to as appellate courts) will contain
a minimum of three speeches and may contain up to seven. And the judges do not always
agree…Somewhere in the text are the legal rules being used or developed. Lawyers must
find them – and so must you!
Judges are highly experienced lawyers, with good reasoning skills and an excellent grasp of
the English language. They cannot be appointed to the senior judiciary without first having
had a successful career at the Bar (i.e. as a Barrister). Their experience is demonstrated in
the calibre of their judgments. Their linguistic and legal skills will be displayed through the
use of:
 sophisticated sentence structure
 use of technical language (including some Latin)
 reference to other domestic (English) cases
 reference to cases from other jurisdictions in the UK
 references to other Commonwealth cases (from jurisdictions based on the English legal
system)
 reference to works of literature to make points or for purposes of comparison – novels,
poems, plays (usually English – but traditionally there can also be references to classical
Greek and Latin literature).
Judgments or opinions are therefore complex texts and reading them requires well-devel-
oped analytical, legal and language skills.
17 Reading techniques
What is your purpose in reading?

Many students spend a lot of time reading, yet have difficulty concentrating and feel that
they have taken nothing in once they have finished. These problems often arise because
the student is reading everything in the same way and is not used to adapting their reading
to suit different purposes.† †
With acknowledgements to the
Birkbeck Law School (University
Remember: books, articles, cases and statutes are read at different speeds and in different
of London) Guide for students.
ways and for different purposes. Also remember that it may not be necessary to read the
whole book, article or document. Many students waste time trying to read more of a text
than they need to.
Before you start reading, ask yourself: ‘Why am I reading this? What do I want to get out of
it?’ For example, you could be:
 reading for enjoyment
 reading for an overview
 aiming to understanding the basic principles of an area of law
 looking for a specific piece of information
 aiming to get detailed information or general understanding of a topic
 doing background reading for an essay
 checking details mentioned in a lecture
 setting out a line of argument for a seminar
 looking for material to criticise the logic of a judgment.
Reading for study

As a general study technique, you may find it useful to use a learning approach called
MURDER.† †
Adapted by Joe Landsberger from
Hayes, J.R. The complete problem
Mood:
solver. (Hillsdale, NJ: Lawrence
 Set a positive mood for yourself to study in.
Erlbaum Publishers, 1989)
 Select the appropriate time, environment, and attitude.
[ISBN 978-0805803099].
Understand:
 Mark any information you don’t understand in a particular unit.
 Keep a focus on one chapter or a manageable group of exercises.
Recall:
 After studying the chapter, stop and put what you have learned into your own words.
Digest:
 Go back to what you did not understand and reconsider the information.
 Contact external expert sources (e.g. other books or an instructor) if you still cannot
understand it.
Expand:
In this step, ask three kinds of questions concerning the studied material:
 If I could speak to the author, what questions would I ask or what criticism would I offer?
 How could I apply this material to what I am interested in?
 How could I make this information interesting and understandable to other students?
Review:
 Go over the material you have covered.
 Review what strategies helped you understand and/or retain information in the past and
apply these to your current studies.

The SQ3R system

SQ3R is a widely used and recommended basic approach to reading for study. In this sec-
tion, we explain how it works by showing how you can use it with your study guides.
It is true that the course subject guides are already highly structured: instructions on read-
ing textbooks and other texts, the different Activities and SAQs, the Learning outcomes and
reminders give you a very good idea of what purposes are intended.
However, the SQ3R system adds another dimension, notching up your reading and study
skills to a higher degree. And, once you have mastered the technique with your subject
guides, you can apply it to other texts as well.
The SQ3R system can thus be seen as another resource at your disposal – a simple system
that might come in useful when reading your subject guides and textbooks.
Survey, Question, Read, Recite, Review (that’s the three ‘Rs’ and before that the ‘S’ and the ‘Q’):
1 Survey the material.

This is your first look at the selected text. Do not read it in full this time around.
Focus on:
 the chapter title, section and sub-section headings
 the introduction
 the questions in the Activities.
2 Question what you are surveying, by turning the titles and headings into questions. Write
them down. For Chapter 2 of Criminal law, ‘The elements of an offence’, this would be:
Chapter title:
What are the elements of an offence?
Section headings:
2.1 What is the general analysis of criminal offences?
2.2 What are the limitations on the value of the Latin terms actus reus and mens rea?
2.3 How can the ingredients of an offence be proved?
2.4 What is a lawful excuse?
This tells you what you will be trying to understand as you work through these sections.
3 Read one section at a time.

As you read, think about the questions you have written down. In Criminal law, after read-
ing the short section 2.1, ask yourself what you now understand about the general analysis
of criminal offences.
 Stop and re-read any parts that you do not understand.
 Do the Activity at the end of the section.
 Go through the section and underline or highlight important sentence or phrases. But
not too much!
 Read only one section at a time and recite after each section.
4 Recite what you have learned.

Summarise what you have learned from the section. Say it out loud.
Ask yourself questions about what you have learned.
Here are some examples:
 where can the definitions of criminal offences be found?
 what does ‘mens rea’ mean?
 how should we define murder?
5 Review
After you have read and recited the whole chapter, leave the materials for the day.
The next day, write questions in the margin of the subject guide relating to all the impor-
tant points you have highlighted or underlined.
Later, go through the ‘Survey’ stage again and look at the headings again.
†
Then ask yourself the questions you have written down. Answer them orally or in writing You may want to get someone
without looking at the text.† else to test you – this can make it
If you can answer those questions correctly, you have learned what is in the chapter – well more fun. If a group of students
done! test each other, the likelihood is
that they will all learn more.
Taking notes
Do not take notes† until the Recall or Review phases. Most students take too many notes. †
See Section 11, Making and using
Always try to use your own words. If you want to copy out a particular sentence, such as a notes.
key quotation from a judgment, make sure you quote only the essentials, and use quotation
marks and a different coloured pen to clearly indicate to yourself that these are quoted
words (otherwise, you are likely to forget which are your own words and which are not).
Also remember to note the details of the source (author, book or article, or case or statute).
Using SQ3R more widely

Once you have had some practice with this system of reading for study, you will find that
it is a very useful approach to adopt for many texts, especially textbooks or other texts
where you are reading for knowledge.
Advanced level reading

Here we explore tactics and techniques appropriate for further reading that may require
more sophisticated skills.
Judging a book by its cover

Contrary to the popular expression ‘never judge a book by its cover’, in fact you can find out
quite a lot by looking at the external features of a book.
Check the date

 Is this a text that is so old that it is not going to give you an up to date picture? Please
don’t spend hours reading outdated textbooks or cases and materials books. Always check
whether there is a new edition – and the best way of doing this is to check the publisher’s
web site or a site such as amazon.co.uk.
 However, this could be a text that is a classic because it deals with general principles in a
particularly brilliant or influential way, such as Glanville Williams’ Textbook of Criminal Law.
 Also be aware that some older classic texts will have relatively recent publication dates
because they have been reprinted in new editions (and often edited or annotated by schol-
ars, who may be cited as authors). Consider (from the Amazon web site):
 The Republic (Penguin Classic) by Plato, Desmond Lee and H.D.P. Lee (30 January 2003)
 Leviathan by Thomas Hobbes and J.B. McPherson (28 January 2007)
If taken literally, the publication dates and authors of such texts could be highly misleading
(although the word ‘classic’ can often be a clue).
Check the table of contents and the index

The table of contents (at the front in English books) lists the chapters, while the index (at
the back) lists topics and names of authors cited in alphabetical order. Sometimes the
author index is separate. By using the table of contents and index, you can quickly see if the
book discusses the issues you are interested in, and if so, in how much detail (is just one
page reference listed, or several pages?).
Look at the bibliography

Does the index or bibliography mention a writer whose views you are researching or the
topic you are interested in? If not, put the book back on the shelf.
What’s the title?

The title of a book or article can tell you a lot. A book called ‘An Attack on Professor X’s
Theory of Contract’ would be pretty clear. However, in many cases it is the subtitle that
provides the clarity. The subtitle of Cannibalism and the common law - A Victorian yachting
tragedy, for example, tells you that the core of this book is about events in the 19th century
(but it doesn’t really tell you enough).
Apart from textbooks, many titles and subtitles are allusions that you can only understand
once you have acquired more knowledge of the field.
Read the abstract of a journal article, if there is one

The abstract provides a summary of the key ideas.
What kind of journal is the article published in?

Building up familiarity with journals will take some time, but it is definitely worth noticing
the different journals you frequently come across and getting a sense of what kind of
articles they publish. What would you expect from the Modern Law Review, for example, as
compared to the Criminal Law Review?
Recommended reading plan

The reading plan that we recommend, especially for further reading over and above sub-
ject guides and textbooks, is as follows.

1 2 3 4
Preparation Methods Reading Evaluating what
for reading for quick reading for detail you are reading
purpose for reading skimming guessing writer’s purpose
predicting scanning identification of: inferences

 main ideas writer’s attitude
 subsidiary ideas
 overall
argument
Make notes
Activity 17.1
The idea here is to read the same text in two different ways. First, read it with a view to an-
swering the ordinary comprehension exercise below. After that, follow the recommended
reading plan. Key words have been put in bold.
The text is an extract from the textbook for the course in Elements of the law of contract:
Ewan McKendrick, Contract Law seventh revised edition (Basingstoke: Palgrave Macmillan,
2007) [ISBN 978-0230018839], pp.3–4.
The Basis of the Law of Contract

1 The basis of the law of contract is also a matter of considerable controversy. Atiyah has
2 written (1986e) that ‘modern contract law probably works well enough in the great mass of
3 circumstances but its theory is in a mess’. There are many competing theories which seek
4 to explain the basis of the law of contract (on which see Smith, 2004).
5 The classical theory is the will theory. Closely associated with laissez-faire philosophy, this
6 theory attributes contractual obligations to the will of the parties. The law of contract is
7 perceived as a set of power-conferring rules which enable individuals to enter into
8 agreements of their own choice on their own terms. Freedom of contract and sanctity of
9 contract are the dominant ideologies. Parties should be as free as possible to make agreements
10 on their own terms without the interference of the courts or Parliament and their agreements
11 should be respected, upheld and enforced by the courts. But today the will theory has been
12 largely discredited. It is not possible to attribute many of the doctrines of contract law to the
13 will of the parties. Doctrines such as consideration, illegality, frustration or duress cannot be
14 ascribed to the will of the parties, nor can statutes such as the Unfair Contract Terms Act 1977.
15 The will theory has, however, been revived and subjected to elegant refinement by Professor
1 6 Fried (1981). Fried maintains that the law of contract is based upon the ‘promise-principle’,
17 by which ‘persons may impose on themselves obligations where none existed before’. The
18 source of the contractual obligation is the promise itself. But, at the same time, Fried
19 concedes that doctrines such as mistake and frustration (Chapter 14) cannot be explained on
20 the basis of his promise-principle. Other non-promissory principles must be invoked, such as
21 the ‘consideration of fairness’ or ‘the encouragement of due care’.
2 2 But Fried’s theory remains closely linked to laissez-faire ideology. He maintains that contract
23 law respects individual autonomy and that the will theory is a ‘fair implication of liberal
24 individualism’. He rejects the proposition that the law of contract is an appropriate vehicle
25 for engaging in the redistribution of wealth. But his theory is open to attack on two principal
26 grounds.

Comprehension exercise
(a) Why does McKendrick say that the ‘will theory’ is no longer useful?
(b) Why does Fried think that the ‘will theory’ is useful?
(c) Who do you agree with and why?
(d) What is ‘laissez-faire’?
No feedback provided.
Following the reading plan

1 Preparation before reading
a Reader’s purpose
What do you expect to get out of reading this text?
Let us suppose that you have already done some study of contract law and that you have
built up some knowledge of rules. You may have read this passage earlier as it comes in the
Introduction – but now you want to get some deeper understanding of the law of contract.
b Your prediction
The word ‘basis’ in the title suggests that this text will be dealing with underlying issues (a
‘base’ supports other things, a ‘basis’ provides a foundation). So this is going to be a pas-
sage that provides greater understanding.
But the first line also refers to ‘considerable controversy’ – so you should be prepared for
disagreement, views that conflict with each other.
2 Two methods for quick reading

Both skimming and scanning involve quick preliminary reading.
You skim read in order to get a general picture of the text, generally what it is about and
also its ‘shape’.
Scanning involves focus. You have one target in mind and you read quickly through, spot-
ting where it appears.
Whether skimming or scanning, start with title and headings. Headings and subheadings
are meant to send important messages about what the text is about. Other key indicators
are paragraphing – a new paragraph signals a change of direction: possibly a new idea or a
historical change – also indicated by words such as ‘but’ and ‘however’.
Note: Whether skimming or scanning, there may be many words that you don’t under-
stand, but that does not matter at this preliminary stage. Don’t stop and look them up
– and don’t give up because you think the text is going to be too hard.
a Skimming
Generally what is the extract about? The phrases that indicate what it is about are as follows:
 The heading, as you have already noted
 ‘There are many competing theories which seek to explain the basis of the law Basis of contract law
of contract’ (lines 1 and 2). This confirms the ideas of controversy and ‘theory’ Controversy – Competing theories
 ‘The classical theory is the will theory’ (line 50)
Will theory
 ‘But today the will theory is large discredited’ (lines 11 and 12)
 ‘The will theory, has, however, been revived…by Fried’ (lines 15 and 16) • Classic
 ‘But Fried’s theory remains closely linked to laissez-faire ideology’ (line 22) Discredited
 ‘his theory is open to attack on two principal grounds’ (lines 25 and 26).
• Revived (Fried)
By this point you already know quite a lot about the structure of this text.
Although you should not start taking detailed notes, you might make a Two grounds of attack on Fried
quick diagram such as the one shown here.
b Scanning
Here you are looking for specifics – but just tagging items as relevant, rather than seeking
proper understanding.
Quite often in reading you might go directly to scanning without skimming: perhaps when
you really don’t want to know the whole overall shape of the text but just some particular
item.
In this example, let us assume that you are scanning after skimming. One item that seemed
to be important in skimming because it came after a ‘but’ was ‘laissez-faire’. So you might
go back over the text and ‘tag’ other mentions of the phrase ‘laissez-faire’ (still without
looking it up if you do not already understand what it means).
3 Reading for detail

Now you are going to get down to the business of getting to grips with the text.
This reading is slower and more careful, and you should ensure that you know unfamiliar
vocabulary, although starting by guessing is good exercise for the brain and helps to con-
centrate your thinking on what the text is saying.
a Vocabulary
Guessing words that you do not know
What about ‘At the same time Fried concedes…’ ? This is a pivotal word in the paragraph. It
comes in a sentence beginning with ‘but’ and the sentence before that is a major declara-
tion by Fried that contract is centrally about creating (through promises) obligations that
otherwise do not exist. But …and yet… he ‘concedes’ and the sentence following explicitly
says that non-promissory principles have to be added to explain some aspects of contract
law. So ‘concedes’ must be a qualification, an admission, a backing down of some sort: the
promissory principle does not, after all, explain everything.
Such is the value of guessing a particular word: it improves one’s sense of the structure of
the argument, the issues and tensions. And indeed, there it is (almost) in a nutshell: if the
law of contract was based wholly and solely on the idea that a person is entirely liable for
the promises they have made, then there would be no room for mercy: make a mistake and
bear the full consequences, have your plans disrupted and bear the full consequences.
Now is the time to find out what the technical terms, doctrines named, and the foreign
words mean by consulting dictionaries and textbooks.
b Looking more closely at ‘indicators’

Now is the time to focus down on what is being pointed to.
‘But his theory is open to attack on two principal grounds’ – the last two lines – should
certainly prepare the reader for identifying two major counter-arguments. In other words,
prepare to read what follows carefully.
c Identifying the main ideas and the subsidiary ideas

Drawing together what you have learned so far, you need to use your language compre-
hension and analytical skills to get to the core of the discussion, as far as it can be grasped
in a small extract.
Here the essence is that a contrast is being made between the classical theory, in its new
and old versions and – something else. What you need to do is gather up the features that
are associated with that ‘something else’, perhaps by putting all the associations with the
will theory in one column and the ‘something else’ in another. For example: ‘interference
from courts and Parliament’ and ‘fairness’ both seem to go in the ‘something else’ bundle.
Here, identifying the subsidiary ideas (or secondary arguments) leads to a greater under-
standing of the principal ideas.
4 Assessing what you are reading

a Ascertaining the purpose of the writer
This is evident from the start in one sense: this is a textbook and therefore the author is
trying to give a clear picture of issues at a level that students can understand.
In other types of writing, you are far more likely to find an overtly argumentative stance,
with the author putting forward their argument about a particular question and respond-
ing to counter-arguments to make their case.
†
b Inferences† Inferences are an important
If the reader went on to read the passages in McKendrick immediately following this – and aspect of understanding an
why not look it up right now? – he or she might feel rather disappointed. Far from ‘compet- argument and are dealt with in
ing theories’ to the will theory being offered, there are just arguments against it. Is there no Section 18, Analysing arguments,
fully-fledged alternative theory? Or is Atiyah right (lines 2 and 3) that the theory of contract and Section 19, Assessing
is ‘a mess’? Maybe this will inspire you to find out more. Perhaps you’ll pick up a book or arguments.
article by Atiyah himself.
c Ascertaining the attitude of the writer

Again, textbook writers keep pretty neutral faces. Would you say that McKendrick was a
supporter of the will theory in either its classical or neo-classical form?
Part 4
Analytical and critical abilities
Sections
18 Analysing arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
19 Assessing arguments . . . . . . . . . . . . . . . . . . . . . . . . . 100
20 Analysing facts and applying law . . . . . . . . . . . . . . . . . . . 112
21 Working with numbers . . . . . . . . . . . . . . . . . . . . . . . . . 118
22 What does it mean to be critical? . . . . . . . . . . . . . . . . . . . . 120

Learning skills for law 4 Analytical and critical abilities page 93
18 Analysing arguments
You will spend much of your time during your law studies analysing, assessing and con-
structing arguments. In Part 3 we noted that the law is all about language. It is also all about
arguments and arguing.
In common law systems this very much includes arguments presented in court in an
adversarial mode: in both civil and criminal courts, in the trial courts and the appeal courts,
the two sides present their competing cases (arguments) to the judge, who must decide
between them on matters of law. Legal argument is therefore always oriented to disputa-
tion or dialogue. It involves a struggle, a fight: it is ‘agonistic’. ‘May the best argument win’
is the motto of the common law system.
Arguments are also made in legal academic books and journals, as well as in socio-legal and
other social science texts that you will deal with in your studies.
When students first encounter legal arguments they often find them hard to follow.
Arguments in law seem very different from arguments in everyday life, including argu-
ments presented in newspapers, on the radio or television. If you are coming directly from
school, this is partly just due to the transition to higher education. However, even if you
already have a higher education degree (for example, in literature, engineering, the social
sciences, etc) you may still find legal arguments difficult to grasp. Is it just the legal termi-
nology or are there distinctive features of arguments in law?
For example, one distinctive feature of legal argument is that it is supported by citing legal
authorities, the primary sources of law. For example:† †
The Law Commission, Partial
[Referring to the criminal law defence of provocation] Defences to Murder Summary
Paper Consultation Paper No
2.8 The requirement for a sudden and temporary loss of control stated in Duffy9 has been
173 (Summary) 31 October 2003.
reaffirmed.10
www.lawcom.gov.uk/docs/
9
[1949] 1 All ER 932. cp173sum.pdf.
10
Ibrams (1981) 74 Cr App R 154; Thornton [1992] 96 Cr App R 112; Thornton (No 2) [1996]; See Section 20, Analysing facts
1 WLR 1174; Ahluwalia [1992] 4 All ER 889. and applying law for more
While arguing with cases is a skill to master, in fact, legal arguments are not ‘a law unto discussion of the defence of
themselves’. They share the same core structures as formal or academic reasoning more provocation.
generally, as we shall explore here.
Approaching arguments
In ordinary life, when we say ‘argument’ we often mean just a disagreement:
‘You stole my book!’
‘No I didn’t!’
‘I know you did because Fred saw you.’
‘What would you know about not having enough money?’
‘That doesn’t change the fact that you took my book.’
‘But you told me I could borrow your book when you weren’t using it.’
Emotionally loaded assertions are thrown back and forth from one speaker to the other.
While arguments in court – or even academic journals – are ‘adversarial’, barristers do not
shout at each other, burst into tears or attack the judge.
Emotions to one side, are there any actual arguments being made in the everyday ex-
change above?
Activity 18.1
Identify any statements in the exchange above that you think might be classified as an
‘argument’.
No feedback is provided – but we shall refer back to this exchange at various points in the
discussion below.
A quick guide to spotting arguments

Arguments need to be distinguished from: assertion, denial and explanation.
 Assertions are not arguments.
Merely stating that something is the case – ‘You stole my book’ – is not an argument be-
cause it does not offer any support to back it up.
By contrast the following are arguments:

Legal aid provision in England is very successful. The statistics show that 90 per cent of
persons with incomes lower than the national average are able to obtain legal aid when
they seek to pursue a legal matter.† †
See your Common law reasoning
Sudden and temporary loss of self control is a requirement for the defence of provocation and institutions subject guide
because it was stated in Duffy and reaffirmed in Ibrams [and other recent cases]. for legal aid issues, where this
argument would be highly
 Denials are not arguments. contested.
Merely saying ‘No, I didn’t [steal your book]’ or ‘That’s wrong’ or ‘I disagree’ is not an argu-
ment (or a counter-argument). It is merely a type of assertion. But note: proper counter-
arguments disproving or casting doubt on claims made by the other party are important in
legal argument.
 Explanations are not arguments.

At first it may be quite difficult to distinguish between explanations and arguments. Both
offer reasons. Both often use the word ‘because’. The following are explanations:
The train is late due to signalling problems.
I handed in my essay late because my mother had to go to hospital.
An explanation is merely saying why something happened. An argument is claiming that
something is true.
Activity 18.2 Distinguishing arguments

You have been asked by your immediate manager at work to wash up after a group of you
have had a meeting, and during which you all had coffee. You refuse to do so.
Read the verbal responses to your boss (i) to (v) below.
a Which of these are arguments? (You may choose more than one.) Give reasons for your
decision.
b Why are the others not arguments? If they are not arguments, what are they?
(i) ‘NO, do it yourself!’
(ii) ‘That’s unfair! Why should I?’
(iii) ‘That’s totally unreasonable and I don’t think it’s fair.’
(iv) ‘Why don’t you ask someone else? I don’t want to do it and I won’t do it. Why should
I do it anyway? You can’t make me do it. This is really just too much. Why me rather than
someone else?’
(v) ‘Look, I do feel that this is not fair. This is the fifth time this week you have asked me to
wash up. It takes time out of my break. I’ve done it all the other times without complain-
ing but I really feel that you should ask someone else to do it – ask a man for a change.
You always ask me and I suspect that it is because I’m the only woman in the group.’
What is an argument?
There are two features of an argument.
1 An argument is a claim supported by reasons.
2 There must be a link between the claim and the reasons.† †
The second feature is examined
in the next section, Section 19 on
Assessing arguments.

A claim backed by reasons

Claims
A claim is the proposition (or thesis or point) that the speaker or writer is trying to prove.
Claims may concern:
†
 Facts. For example: ‘You stole my book!’ But also ‘Sudden and temporary loss of self control The first is an empirical fact about
is a requirement for the defence of provocation.’ † the physical world; the second is
 Definitions. For example: a fact in the world of law.
†
Sikhs…are not a race in biological terms because the biological definition of race includes Lord Denning in Mandla v Dowell
common origins. The origins of Sikhs are extremely diverse.† Lee [1982] 3 All ER 118, CA. You will
 Values. For example: Marriage is good. Violence is bad. Medicine is beneficial. Abortion is be asked to analyse and assess
immoral. arguments on both sides in this
case in the next section, Section
 Policy. For example: The law should be changed. Manufacturers should be supported.
19 on Assessing arguments.
Plagiarism should be discouraged.†
†
For this classification, see N.
The term ‘claim’ draws attention to the dynamic aspect of arguing. To argue is to seek to
Wood, Perspectives on Argument.
prove that a specific claim is true by offering supporting reasons. Or – just as in court – an
(London: Prentice Hall, 1997)
argument often includes disproving or challenging counter-arguments, that is, offering
second edition [ISBN 978-
reasons as to why a claim is wrong.
0136245940], pp.161–72.
Reasons
The word ‘argument’ in fact comes from the Latin word ‘argumentum’ which means ‘proof’.
Proof is just one of many terms that relate to reasons:
 justification
 support
 supporting proposition
 evidence
 backing
 grounds
 arguments.
Whatever the terminology, the central idea is that the claim will be proved true or more
plausible by the reason(s) offered. There could be quite a variety of different reasons all
supporting one claim.
Also, remember that you might be trying to disprove someone else’s argument. Here you
would be arguing that that the other person’s claims are false because the reasons are
unsatisfactory (erroneous, irrelevant, etc.).
Speaking of arguments in general, different kinds of claims need different sorts of reasons.
Here is a very rough guide:
Fact claims may be supported by scientific evidence or everyday empirical observation, as

in ‘I know you stole my book because Fred saw you.’
Definition claims will be backed by citing some authoritative source such as a dictionary.
Value claims may be supported by religious teachings or broad moral principles.
Policy claims – that we should act in a certain way – are often supported by the conse-
quences this would bring about.
One crucial point that may at first seem confusing is that: facts, definitions, values and poli-
cies may also be offered as reasons. Consider:
 ‘Fred saw you’ is a fact supporting a claim of fact ‘You stole my book’.
 ‘We should make abortion illegal in all circumstances because abortion is immoral.’
What makes a claim a claim and a reason a reason is the position they occupy in the argu-
ment, not the content.
When the arguments have been presented, the claim may now be termed a conclusion.
Activity 18.3
Write down the conclusion first, then note the propositions that support it.
a He must be the murderer as he is holding a gun.
b Language is a social act. Therefore like other social acts it is governed by rules, principles
and regulations. Some are explicit, others are not. It is through language that we present
ourselves to the world, to friends, family, colleagues, teachers and employers, and it is
through language that the world is presented to us.
c Who is the more powerful, the legislators who use words to draft a legal rule – or the
judges who interpret the words of the rule and say what they mean?
d It’s important to understand alphabetical order, because this is how English dictionar-
ies are arranged. The English language is extremely productive in creating variations on
existing words, each with its specialised meaning.
e Judges in court will discuss the words and phrases used in legislation, and take on
themselves the right to determine what these mean. This is an important right, as it
means that the legislation itself cannot be relied upon to be the final word; the judges’
interpretation of that word is the final word (at least for the time being). Sometimes
Parliament uses words which are ambiguous, or fails to describe all of the situations in
which a law may apply.
f If you are wet it must be raining.
Identifying the terms in an argument

Here are some ways in which you can begin to recognise arguments in both academic and Remember your purpose in
non-academic contexts, whether or not they involve law. reading. There is no point
analysing an entire chapter,
To identify the claim:
article or case if you only
 Especially at the beginning or end of the text, look for: ‘I argue here’. ‘The argument here is…’ need to know about one
 Ask, what is the speaker or writer trying to prove? segment of the argument.
To identify the reasons:

 The word ‘because’ is often – but not always – a key indicator of reasons being offered
‘Because’ often indicates the supporting proposition.† †
However, be careful. ‘Because’
 Especially in abstracts of academic articles, the reasons supporting a claim often follow may introduce an explanation
immediately after the claim. rather than a supporting reason.
 Alternatively, the reasons may be given, followed by the word ‘therefore’, ‘so’, ‘finally’, ‘to
summarise’ – what follows will be the claim (but now as a conclusion because the reasons
have been given).
Primary and secondary arguments

When you read cases or legal academic arguments, you will find far
more than simply one argument. There might be: Secondary
 A number of different claims, each supported by reasons. argument
 An overarching claim supported by separate secondary arguments.

Primary
argument
Secondary
argument
 An overarching claim supported by a chain of secondary arguments.
Activity 18.4 opposite involves secondary arguments supporting Secondary

Secondary
an overarching claim. argument Primary
argument
argument
Activity 18.4
Identify the claims and the reasons supporting them in the passage below. Write this out in
note form – or make a diagram.

In this paper I argue that the 2003 War on Iraq was illegal […]. In the first substantive part
of the paper (Section II), I consider three legal justifications that have been offered, to
varying degrees, formally and informally, for the war. These are self-defence (and its more
contentious variants, anticipatory self-defence and preventative war), collective security
under Chapter V of the United Nations Charter, and, finally, the doctrine of humanitarian
intervention. None of these provides a secure basis for going to war [i.e. in Iraq]. The most
plausible of these justifications, based on an interpretation of existing Security Council
resolutions, is arcane and unconvincing … † †
G. Simpson ‘International
Law and the War in Iraq’ ,
Feedback: see end of guide. Melbourne University Journal of
International Law (2005).
Legal arguments
Claims in legal arguments may be about:
 What the law is.
 How the law applies to a particular fact-situation.
 What the law should be.
Arguing about what the law is

Now we can return to that feature of legal argument mentioned at the start – the use
of legal citations. How do these relate to making a legal argument? Essentially, they are
reasons – support – for claims about what the law is. For example, ‘Sudden and temporary
loss of control’ is a requirement of provocation because it has been established by primary
sources of law (here: decided cases).
Secondary sources may also be offered in support of a claim but they are less authoritative.
Arguments in law may be supported by a wide variety of sources of evidence (sources),

including:
 decided cases
 statutes
 dictionaries
 Hansard (re statutory interpretation).† †
You will understand far more
about how to rank these
Law is a discourse of authority. For example, cases decided in the House of Lords have the
sources once you have studied
highest level of authority. Privy Council cases are said to be of persuasive value only since
methods of legal interpretation.
they have no jurisdiction in English law.
You will study this in the
Supporting arguments with cases is absolutely fundamental to legal argument. Legal Common law reasoning and
research consists to a large extent of finding material necessary to support legal argument institutions
and decision making. course.
 Arguing about how the law applies to a fact situation.† †

Applying the law to facts – and
In the article by Gerry Simpson (in Activity 18.4), the fact situation was the invasion of Iraq. analysing facts to see what law
He is making a legal academic argument about legal doctrine. There are three legal justi- would fit – are discussed in
fications for war, i.e. three types of reason that render a war legal. None of them, he argued, Section 20, Analysing facts and
applied to the Iraq situation. applying the law.
Applying law to facts happens every day in the trial courts. When someone is found guilty
of an offence or when a party wins a civil action then the facts ‘fitted’ the law.
Arguing about what the law should be

Law reform arguments tend to take the form of identifying problems with the existing law,
making proposals for change (new legislation), including discussing what would be the
most effective way of formulating the proposed new law. It is worthwhile trying to keep
track of different types of legal arguments that you come across, and analysing them in
more detail. (What different sorts of problems are typically identified?: Society has moved
on and the law has not kept up, etc.)
A worked example of analysing legal academic reasoning

Consider the following argument about the meaning of the Crown prerogative offered by
Colin Munro.† The Crown prerogative (also called the Royal prerogative) is a power vested †
C.R. Munro, Chapter
��
8: ‘Crown and
in the English sovereign and exercised by the government. While it is a ‘relic’ of the past prerogative’ in C.R. Munro Studies
– when there was no Parliament – it is still very important today in the UK. in constitutional law. (London:
LexisNexis UK, 1999) [ISBN
Munro discusses an important debate (i.e. two opposing arguments on the same topic). On
0406981434],
one side is the claim that the Crown prerogative is limited to ‘rules peculiar to the Crown’
– declaring war and granting royal assent to Bills. This is Blackstone’s argument. It is the ‘nar- You can find this in your Public
row’ interpretation: that the scope of the powers is limited or restricted. On the other side law study pack.
– the ‘wide’ interpretation – is the claim made by Dicey that the Crown prerogative covers
every act the executive government can do without Authority of Parliament. On this view, the
government is acting under the Crown prerogative – that is, basing its authority to act on the
prerogative – when it makes contracts or distributes information or reforms the civil service.
[Note: so far, only claims have been examined. No supporting reasons have been given.]
Which of these views is correct? In order to decide, Munro first looks at the view accepted
in the courts and claims that the second view is the one that the courts today are following.
He backs this claim with a case: R v Criminal Injuries Compensation Board, ex parte Lain [1967]
2 All ER 770. The criminal injuries compensation scheme was set up by the government in
1964 to give financial compensation to victims of crime – yet there was no Act of Parliament
establishing this. In that case, it was accepted that, when the government set up this
scheme, it was acting under the Crown prerogative.
Munro then offers a different kind of reason:

If a narrower use of the term ‘Crown prerogative’ is preferred, then it would seem to be
necessary to acknowledge that there is a ‘third source’ of authority for central government
actions… (page 115)
An analysis of the reasoning could look like this:

1 Only two sources of government power are recognised in constitutional law: Parliament
and the Crown prerogative. [This proposition was stated earlier in his chapter.]
2 If the ‘narrower’ meaning – Blackstone’s meaning – of Crown prerogative were correct,
then many actions that the government performs today could not be based on the Crown
prerogative.
3 But these actions do not derive from Acts of Parliament either.
4 Yet they are accepted as legitimate.
5 So, the consequence of holding that the narrow view is correct would be… Finish the argu-
ment for yourself.
In analysing Munro’s arguments here, the propositions could have been broken down into
even more precise steps. For example, (2) states: ‘If the “narrower” meaning – Blackstone’s
meaning – of Crown prerogative were correct, then many actions that the government per-
forms today could not be based on the Crown prerogative.’ This could be further explained
by adding, ‘because they are neither declarations of war nor royal assent (which in any case
is actually given by the Crown in person)’.
From this analysis, it is clear that what we call ‘an argument’ is often actually many nested
arguments. That is why it is important to distinguish between primary and secondary
arguments.
Overall, Munro’s primary argument (primary claim) is that the wider interpretation of the
Crown prerogative is the correct one. He offers two types of secondary argument (second-
ary claims):
1 This is the view taken by the courts (backing this up with a leading case).
Supporting arguments with cases is absolutely fundamental to legal argument. Law is
a ‘discourse of authority’. In a common law system legal truth about the meaning of the
law is the truth established in court. Once you have mastered the techniques of case law
reasoning, the deployment of cases supporting your claims will be a necessary and routine
mode of argumentation.† †
The techniques of case law
reasoning are explained in
2 If the opposite view were correct, the consequences would not fit with contemporary
constitutional legal doctrine.
Final advice on identifying arguments

 Always read an abstract of an article where available. It will provide a short summary of the
key issues and claims and also say what sort of evidence will be offered.
 When reading a case, read the headnote.

19 Assessing arguments
What makes an argument strong or weak, valid or invalid? These are the issues explored here.
The ability to analyse an argument – identify its elements, distinguish an argument from a
non-argument – was discussed in the last section. Students also need to be able to assess
whether it is a ‘good’ or ‘bad’ argument, to detect weaknesses and flaws or see strengths.
This section will touch on a number of questions:

Assessing structure
 relevance and challenges to relevance
 the nature of the link between claims and reasons: is it a formal logical link?
 some common logical fallacies.
Assessing evidence
 The strengths and weaknesses of sources
First, consider how you understand and assess arguments in the media.
Activity 19.1
a Choose a non-fiction programme on TV. Listen carefully to what is being said by the
participants.
b Listen to a non-fiction programme on the radio and listen carefully to what is being said
by the participants.
c Choose a daily non-tabloid newspaper (a quality ‘broadsheet’) and pick one of the lead-
ing stories. Read it carefully.
What was the message that the writer was trying to get across?
 Notice if there are any set phrases or words used by the participants to get their points
across (therefore, my next thought, and so, because, and, or, in conclusion, to summa-
rise) and note these down too.
 Note down primary and secondary arguments.
 Was the argument strong or weak?
 What are your criteria for judging whether the argument is strong or weak?
TV
1 What body language is being used by the speakers? How are they sitting or standing? Do
they move their arms or hands or bodies when speaking? Notice their facial expressions.
How are they listening to others?
2 Are you distracted by any images shown while someone is speaking?
Radio
3 Is it easier or more difficult to concentrate when you are just listening to voices?
Text
4 Is it easier or more difficult to concentrate on the written text?
Take a critical reflective stance

In the academic setting, critical thinking involves paying attention to the meaning
of words, the development of logical reasoning, and being able to spot inconsistencies
in arguments (ambiguity or contradiction). You will build up your ability to assess an
argument over the course of your studies, but from the outset you should adopt an
active stance and consider the following questions:
 Is the speaker/writer being consistent in what they say? Are they contradicting themselves?
 In what sense are they using technical terms?
 Are they making any unstated assumptions that are dubious?
Generally, working with arguments is an important part of critical thinking. Analysing and
assessing arguments involves taking an ‘objective’ stance. Emotional standpoints and
attitudes need to be placed to one side in favour of a neutral method of approaching texts,
to be able to take apart the positions in arguments taken by others, to weigh up argu-
ments, looking at the evidence in support of them, and to reflect on the text in a methodi-
cal way, considering logical ordering and structure of the text. Critical thinking involves
being able to determine whether the argument presented is plausible and justifiable. Then
you will be ready to present your own view in a clear, structured way, based on your read-
ing and your critical reflection of the texts you have read.
Don’t confuse your own subjective agreement with an argument with acknowledging
a well structured argument. You should be able to analyse an argument even if you do
not personally agree with it. Indeed, analysis is the first step to well conducted criticism.
Equally, you need to be able to recognise flaws in arguments that you sympathise with. It is
absolutely essential to recognise strong and weak arguments on abstract grounds without
emotional attachment to our own preferences.
Relevance
Having a grasp of relevance is one of the crucial aspects of ‘thinking like a lawyer’ – yet one
of the most difficult to explain explicitly.
In everyday exchanges, we often criticise people for talking in an irrelevant way: ‘What on
earth are you talking about?’ ‘What?!’
If we go back to the everyday exchange at the start of this section, we find the counter
claim ‘I didn’t take your book’ supported at one point by :
‘What would you know about not having enough money?’
This is in turn challenged by the other person:

‘That doesn’t change the fact that you took my book.’
This is a challenge to relevance.
Activity 19.2
1 What do you think? Is it completely irrelevant to say ‘What would you know about not
having enough money?’ And, if you think that it might be relevant, would it be relevant
in a court of law?
2 How would you assess the relevance of the statement: ‘But you told me I could borrow
your book when you weren’t using it’?
While the relevance of ‘What would you know about not having enough money?’ is debat-
able, the statement ‘But you told me I could borrow your book when you weren’t using
it’ could be highly relevant to the claim ‘I didn’t steal your book’. The issue would be the
difference between stealing and borrowing (what do the two terms mean?) and in a court
of law could only be settled by reference to the Theft Act 1968 where the key issue would
be specified as whether the person intended to ‘permanently deprive’ the other person of
the object in question (the book).
Issues of relevance are discussed in a more applied way, with legal examples, in Section 20.† †
See Section 20 on Analysing facts
and applying law.
The structure of an argument: formal reasoning

In assessing whether an argument is well put together, one key issue is the link between
the claims made and the reasons (evidence) offered in support.
Legal philosophers have frequently turned to logic to identify the characteristics of a sound
argument. What are the abstract logical features of arguments? And does it help lawyers to
look at arguments in terms of these general structures? These are the questions here.
Reading about logical argument structures, you will often come across the terms:
 deductive reasoning
 inductive reasoning
 abductive reasoning
 reasoning by analogy.
These different modes of argument structure the relation between claims and support in
different ways.
Deductive reasoning
Logicians and lawyers through the ages have sought to argue that deductive arguments
play a central role in human – and legal – reasoning. The key moment would be when a
judge presents his or her reasoning, whether in a trial court summing up or in appellate
court judgments and opinions. But equally, when lawyers present their arguments to a
judge in court, they will follow the same form.
†
The favoured deductive argument taken from the philosophy of logic is the simplest form Deductive reasoning is just one
of syllogism, which moves from a major universal premise to a minor factual premise to a type of formal logic.
conclusion:†
All humans are mortal † (major premise: a universal because it says ‘All’). †
‘Mortal’ means ‘will die’.
Socrates is human (minor premise: factual).
Therefore Socrates is mortal (conclusion).
This may also be expressed in the form ‘If è then’.† †

The ‘if’ clause is also known as the
If all humans are mortal ‘protasis’ and the ‘then’ clause is
And Socrates is human called the ‘apodosis’.
Then Socrates is mortal.
rtal beings
Expressed in terms of claims and support, this would go:
Mo ma
Socrates is mortal (claim) because (support) he is human and all Hu ns
humans are mortal. crate
So
However expressed, logically, given the first and second propositions
s
(or premises) there can simply be no other conclusion. It is the only
valid outcome of the argument.
As you can see in the diagram, the category of humans lies entirely
within the category of mortal beings and, once Socrates is identified
as a human (minor premise), his relation to mortality is inevitable.
Applied to law, the first premise is usually normative. Put extremely crudely:
1 Major premise: All persons who steal have acted unlawfully.
2 Minor premise: The accused has stolen a book.
3 Conclusion: Therefore the accused has acted unlawfully.
(In other words, the accused is guilty!)† †
But the accused may have
a defence – see Section 20,
This would be the argument made by the prosecution. In summing up to the jury, the judge
Analysing facts and applying law.
would advise along the lines: ‘If you find it proved on the facts that the person has stolen a
book, then you must find that they have acted unlawfully.’
There are a number of attractions in seeing legal decision making and arguing in terms of
deductive reasoning.
 First, if the premises are true, the conclusion cannot be challenged. It has absolute logical
validity.
 Second, this means that the decision would necessarily be properly authorised in law.
 Third, for many, this offers the perfect model of how the ‘rule of law’ † should operate. †
The concepts of the rule of law
Parliament legislates – expressing the will of the people about what laws they want – and and the separation of powers
then judges apply law in a perfectly logical way. Judges would thus have virtually no power are explored in the course on
to deviate from ‘the law’ and so the law in action, in the courts, would be exactly how the Public law.
legislature (Parliament and thus ultimately ‘the people’) wanted it to work out in individual
cases. (Similarly, if juries followed the judge’s instruction – which they do not always do!
– law would be consistently applied.)
This model also offers a guarantee of formal justice in which like cases will be treated alike:
cases with the same fact pattern will always receive identical treatment before the law.
Is this model a ‘noble dream’? † Or a vision of law as it might be administered by a computer †

‘Noble dream’ refers to a famous
– ‘mechanical jurisprudence’? essay by the legal philosopher
H.L.A. Hart, ‘The Legal Nightmare
Problems with the deductive model and the Noble Dream’ Chapter 4
Whatever position is taken on the value of the model itself, there are also problems of Essays in jurisprudence and
involved with using it in practice. philosophy. (Oxford: Oxford
First, arguments that have this form are equally logically valid even if one or both of the University Press, 1983)) – also used
premises is false. Hence: as the title of a recent biography
of Hart. You will encounter
 The Theft Act states that to steal is honourable (false proposition).
this text in the course on
 The accused person has stolen a book (true proposition). Jurisprudence and legal theory.
 The accused person has acted honourably (valid but false conclusion).
Therefore, it is a central part of legal argument to establish correctly what the law actually
is (according to legislation and case law). Very frequently this is the central substance of
legal argumentation – ultimately conducted in the appeal courts (the Court of Appeal and
the House of Lords).
This is an issue of evidence (sources): make sure you establish correctly what the law says
– so far as that is possible.
Second, whether a ‘noble dream’ or ‘mechanical jurisprudence’, the model simply does not
fully work in practice. The meaning of words in statutes, the implications of rulings in cases
are constantly being interrogated, especially through appeals. The idea that Parliament
simply lays out ‘what the law is’ is not sustainable.
At the end of this section, Activity 19.2 will ask you to assess the competing arguments
made in the appeal courts about the meaning of the phrase ‘racial group’ under the Race
Relations Act in the case of Mandla v Dowell Lee.
However – in other words, the counter-argument – the deductive schema remains a

governing idea in legal argumentation and is also very much a part of routine practice in
the courts.
 Beware of ‘high courtitis’:† much of law proceeds through routine decision making in which †
‘High courtitis’ is a term coined
law is mechanically and routinely applied without any challenges. by Jerome Frank, an ‘American
legal realist’.
 Most routine cases – ‘easy cases’ – can therefore be analysed in terms of a deductive struc-
ture and therefore provide the appropriate authority structure.
 Your legal studies will focus on difficult cases, on the more complex matters of legal inter-
pretation. However, if you go into legal practice, you may well find that many of the cases
that come to your door fit relatively easily into a deductive model.
Inductive reasoning
In philosophy, inductive arguments are essentially about learning from experience: moving
from one concrete observation to another, observing a broad pattern of similarity and
drawing a broad conclusion on that basis. Outside law, this is how empirical generalisations
or even common sense opinion is built up.
In law, common law reasoning through cases is often said to be inductive, especially when
describing legal change and the development of new principles. Over a period of time
certain patterns begin to build up in the case law, and the courts (i.e. the judges) will then
often move to offer a general statement, a principle that sums up the emerging pattern.
This is how great legal precedents are created through a process of producing a principle
or generalisation out of a pattern of concrete particulars.
Consider Lord Atkin’s statement in Donoghue v Stevenson [1932] AC 562 (emphasis added):
It is remarkable how difficult it is to find in the English authorities statements of general
application defining the relationship between parties that give rise to the duty [of care].
The Courts are concerned with the particular relations which come before them in actual
litigation, and it is sufficient to say whether the duty exists in those circumstances. The
result is that the Courts have been engaged upon an elaborate classification of duties
as they exist in respect of property, whether real or personal, with further divisions as to
ownership, occupation or control, and distinctions based on the particular relations of
the one side or the other, whether manufacturer, salesman or landlord, customer, tenant,
stranger and so on. In this way, it can be ascertained at any time whether the law recog-
nises a duty, but only where the case can be referred to some particular species which
has been examined and classified. And yet the duty which is common to all the cases
where liability is established must logically be based upon some element common to the
cases where it is found to exist.
This is a very important passage. Donoghue v Stevenson is one of the most famous cases in
English law.† You will find this same kind of argument made over and over again in your †
You will be studying Donoghue
legal studies when reform of an area of law occurs, whether through case law or through v Stevenson not only in your
law reform reports leading to Parliamentary reform, so it is very useful to have a general Tort course but in Common law
sense of the genre. reasoning and institutions.
Step one
Describe the existing state of the law as focused on ‘particulars’. When Lord Atkin describes
the existing state of the law, he describes it as very particularistic because different cases
have recognised a duty of care in a variety of different circumstances. These can be mapped
in an elaborate classification system of ‘species’, i.e. specific types of situation. For example,
here the classification (following what Lord Atkin says above) would look something like
this:
Property
 If real property
 If personal property
 If property owned?
 If property in control of …
 If property occupied by …
Relations between the parties

 If manufacturer?
 If salesman?
 If landlord?
 If customer?
 If tenant?
 If stranger?
Obviously, this is immensely complicated. But why does law continue to use such elaborate
classification schemes? Lord Atkin explains that, pragmatically, this elaborate and highly
complicated system does work because the individual judge in the immediate case merely
has to see whether the case he or she is deciding fits into the existing categories. If yes, the
duty is recognised in law. If no, it is not. Ergo: case decided. Sometimes a new ‘species’ will
be added to the classification but it will still be particularistic.
Equally, solicitors and barristers merely need to frame their presentation of the case or
response in terms of one of the existing classifications. Or they might hope to persuade the
judge to recognise a new category to add to the list.
Step two
Claim that there must be an underlying principle – a common element – linking all these
different particular situations.
And yet the duty which is common to all the cases where liability is established must
logically be based upon some element common to the cases where it is found to exist.
The nature of the claim is that, if all the different situations in which the duty is recognised are
looked at more closely, more deeply, there will be something that holds them all together.
We could easily have discussed this mode of argumentation in the previous section on
‘Analysing arguments’. In terms of recognising arguments, you should add it to your list of
generic legal arguments.
However, let us ask – literally for the sake of argument:

Is step two a valid claim?
Activity 19.3
These are hard questions, but see what you think.
1 Do you agree that there must logically be one common element (principle) underlying
complicated case law?
2 Likening this process of moving from particulars to general principles to inductive
reasoning† makes it sound natural and inevitable. Is Lord Atkin finding an emergent †
For inductive (empirical)
pattern or imposing his own analysis? generalisations, see above.
Reasoning by analogy
Again, this is a method of thinking creatively in law and, especially, moving sideways in
relation to a previously highly defined sphere of law. (To use a cliché, it is thinking outside
the particular law box – but not totally out of the law box.) Argument by analogy enables
lawyers to make novel claims about how law may be interpreted and to justify these claims
by referring to a different sphere of law than would be standard. Arguments from analogy
seek to find a way out of the strict doctrine of binding precedent, not by abandoning
reasoning through legal authority but by making a ‘sideways’ move.
Arguments from analogy are most likely to be found (and be successful) in the appeal
courts, especially the House Lords. In fact they often go together with the mode of argu-
ment involved in looking for underlying principles discussed immediately above. Analogies
provide both support and templates (ways of thinking) that can be imported.
 The abstract form of analogy is: A is to B as C is to D

 Sometimes this is represented as: A : B : : C : D
 For example: Fish is to water as bird is to air.
In McPherson v Buick† – the US equivalent of Donoghue v Stevenson – the same question was †
Court of Appeals of New York,
posed by the appellate judges: is there a general underlying principle articulating the duty 1916, 217 N.Y. 382, 111 N.E. 1050.
of care? See E.H. Levi, An introduction
to legal reasoning. (Chicago:
The analogy was suggested between:
University of Chicago Press, 1962)
 (A) employer and (B) employee and [ISBN 978-0226474083].
 (C) manufacturer and (D) consumer.
The basis of the analogy was that under (newly introduced) labour law, there were some du-
ties of the employer imposed by statute that the employer simply could not avoid and specifi-
cally not by creating contracts of employment with his or her employees in different terms.
Fallacies
How not to argue! Fallacies are a constant enemy in argument. In fact, approaching
arguments through fallacies can be very instructive and entertaining. Many fallacies were
identified by medieval logicians (hence the Latin names). Here is a list of common fallacies.
Fallacies of reasoning
Modus tollens fallacy
This is logically correct but may be wrong depending on the truth of the statement. The
form is Either X or Y, Not X, Therefore Y. However, both X and Y could be wrong, so just
disproving one alternative does not in itself mean that the other alternative is right.
Fallacy of affirming the consequent/illicit converse

This is when a person wrongly assumes that an argument work both ways. Just because X
always means Y, Y does not always mean X. For example:
 Theft involves taking something. Therefore all instances of taking something are theft.
Fallacy of begging the question (petitio principii)

This occurs when the premises already assume that the conclusion is true. Wikipedia gives
the following example: During the 2002 trial of the youths originally accused of murdering
Damilola Taylor, in his closing comments to the jury the prosecuting QC made much of the
fact that the defendants had shown ‘no remorse’. But they could only be expected to show
remorse if they were guilty – the very matter before the court.
Question begging is also involved in ‘circular reasoning’ and ‘leading questions’ (‘Are
you still beating your wife?’ is the famous example).† †
In courtroom questioning of
witnesses, examination-in-chief
Appeal to ignorance (argumentum ad ignoratium)
should never involve leading
An appeal to ignorance proposes that we accept the truth of a proposition unless an op-
questions – although they are
ponent can prove otherwise. In a more everyday mode:
permitted in cross-examination.
 No one has conclusively proven that there is no intelligent life on the moons of Jupiter.
Therefore, there is intelligent life on the moons of Jupiter.
Fallacy of irrelevant conclusion (ignoratio elenchi)

Here the proponent of the argument tries to establish the truth of a claim by offering an
argument that actually provides support for an entirely different conclusion.
 All children should have ample attention from their parents.
Parents who work full-time cannot give ample attention to their children.
Therefore, mothers should not work full-time.
Here the premises might support some conclusion about working parents generally, but
they do not secure the truth of a conclusion focused on female parents and not male
parents. Although clearly fallacious, this procedure may succeed in distracting its audience
from the point that is really at issue.
These are the fallacious arguments that you are most likely to come across in academic
or legal argumentation. The fallacies below probably occur more often in everyday life or
media presentations. However, it is still worth looking out for them in legal contexts.
Fallacies of relevance
All of the following involve introducing irrelevant material designed to persuade by other
means. Colloquially, they introduce ‘red herrings’. Fallacies of relevance may nonetheless
have a logically correct form.
Appeal to force (argumentum ad baculum)

Often implicit rather than explicit, here someone in a position of power threatens the
other party:
 I am your teacher and if you do not agree with my political opinions, you will not be put
forward for the prize.
Appeal to pity (argumentum ad misericordiam)

The opposite of appeal to force:
 I am a single parent, solely responsible for the financial support of my children. If I fail this
examination I will not be able to get a good job. Therefore, dear marker, you should not fail
this exam.
Appeal to emotion (argumentum ad populum)

As the Latin word ‘populum’ suggests…
Fallacies of persons
These also concern irrelevance, but here specifically they appeal to some attribute of
persons as the basis of persuasion.
Appeal to authority (argumentum ad verecundiam)

Lawyers need to be careful because law is a discourse of authority and so makes appeals
to authority all the time. What this fallacy refers to is appealing to authority where it is
irrelevant because the matter is outside the person’s sphere of authority.
 Lord X believes that spiders are taking over the world. Therefore, spiders are taking over the
world.
Ad hominem argument
This is the opposite of the appeal to authority because here the claim is that an argument
should be rejected because of (allegedly) undesirable features of a person. For example:
‘Why listen to a person who wears such clothes?’
 Y argues that the age of voting should be lowered to 12 because children of that age have
achieved the powers of reasoning. But why should we listen to him? He’s only a child. (This
is also circular.)
Other species of ad hominem argument include:

 Imputing motive – ‘Of course you defend the actions of property developers, you are the
son of a property developer.’
 Guilt by association – ‘That’s what Stalin said.’
Assessing evidence
So far we have been looking at links between claims and reasons (evidence). But what prob-
lems of reliability might there be with the evidence (sources) per se? This might also be put
as: assessing the truth of the premises. (Especially with deductive reasoning, it was noted as
a problem that the premises could be false but the conclusion would still be logically valid.)
In law – apart from proving facts in court, which we are not dealing with here – the evi-
dence that you will be dealing with will be textual.
Lawyers deal with a range of different sources:
Primary sources of law including:

 law reports (cases)
 statutes
 statutory instruments.
But also:
 dictionaries and other reference works
 periodicals (academic journals in particular)
 theses, dissertations and research
 government publications and statistics.
Assessing the strength and weakness of the primary sources depends on knowing the
techniques of statutory and case law interpretation, and will be explained in the course on
Common law reasoning and institutions.
Empirical sources
Assessing empirical evidence† involves some simple checks. Let us imagine you are inter- †
See also Section 21, Working with
ested in re-offending rates for prisoners: you should check the sample. How many prisoners numbers.
were considered? It makes a difference if the 100 per cent sample was 10 prisoners or
10,000. The size of the sample† may affect the validity of theories based on it. †
For an explanation of how sample
size affects the reliability of
statistics, see www.statsoft.com/
textbook/esc.html
We may also want to know what methods were used to collect the data:
 Were there interviews or questionnaires or both?
 What time scales were involved before offending?
 What is the personality type, age, gender of the prisoner?
 What is the position of the researcher producing the research?
 How experienced are they?
 What method of analysis of data was used?
In other words, evidence must be subject to critical evaluation.
In a literature review, it is vital also to constantly evaluate and critique the literature you
are reviewing. Students often feel that they are not in a position to do this, if the literature
is the work of a particularly prestigious or well-known researcher. However, it is most im-
portant that we never simply accept at face value any prior research. We should always try
to ask probing questions about the robustness of research questions, models, concepts,
measures, data collection and findings.
Drawing it all together: Mandla v Dowell Lee

In Activity 19.4 below you will be asked to analyse some long extracts from a case and
consider the nature of both the reasoning and the sources used. It draws on points from
Section 18 as well as the present section.† †
See Section 18, Analysing
arguments.
Here we are dealing with the appellate courts, so the ‘facts’ involved are facts about the
meaning of law. Mandla v Dowell Lee was an important case under the Race Relations Act
1976.† Here we are concentrating on one question only: the meaning of the term ‘racial †
group’ under s.1(1)(b) of the Act s.1(1)(b) concerns indirect discrimination. legislation.
1 Racial discrimination
(1) A person discriminates against another in any circumstances relevant for the purposes
of any provision of this Act if:
[…]
(b) he applies to that other a requirement or condition which he applies or would apply
equally to persons not of the same racial group as that other but:
[…]
The case went to the Court of Appeal and then was appealed to the House of Lords. The
Court of Appeal accepted one definition of ‘racial group’, which the House of Lords ulti-
mately rejected in favour of a different one.
The issue was whether Sikhs constituted a racial group.
Activity 19.4
1 (a) Express the opposing arguments in an if è then form, using the following template:
If ‘racial group’ means [fill in] then Sikhs may/may not suffer racial discrimination within
the meaning of the Race Relations Act.
(b) Express these opposing arguments in the form of a syllogism.
2 (a) Both judgments use a number of secondary arguments supporting their primary
claim. Identify these for each judgment and put them in the form of a diagram.
(b) Is any of these a ‘chain of inference’?
3 (a) What evidence (sources) does Lord Denning offer in support of his preferred defini-
tion of racial group?
(b) What evidence (reasons) does Lord Fraser offer in support of his preferred definition
of racial group?
(c) Which do you think is the stronger evidence? Why?
4 Do you detect any underlying attitudes on the part of Lord Denning or Lord Fraser – if so,
what phrases lead you to think this?

Court of Appeal (Civil Division) hearing

Mandla (Sewa Singh) and Another v Dowell Lee and Another [1982] 3 All ER 118, CA.
Lord Denning MR, Oliver LJ and Kerr LJ.
Extracts from the judgment of Lord Denning MR
Sewa Singh Mandla is a Sikh and rightly proud of it. He is a solicitor of the Supreme Court,
practising in Birmingham. In 1978 he applied to send his son Gurinder to a private school in
Birmingham called the Park Grove School. Gurinder was then aged 13.
[….]
[Mr Dowell Lee states that] To make my position quite clear, the boy was not rejected because
he was a Sikh since we do not make racial distinctions and we have several Sikhs in the School.
It was the turban that was rejected, and I believe your Acts cover people, not clothes.
The law
The case raises this point of great interest: what is a ‘racial group’ within the Race Relations
Act 1976? If the Sikhs are a ‘racial group’ no one is allowed to discriminate against any of
their members in the important fields of education and employment and so forth. No
matter whether the discrimination is direct or indirect, it is unlawful. But, if they are not a
racial group – discrimination is perfectly lawful. So everything depends on whether they
are a ‘racial group’ or not.
The statute in s3(1) of the 1976 [Race Relations] Act contains a definition of ‘racial group’. It
means a ‘group of persons defined by reference to colour, race, nationality or ethnic or na-
tional origins’. That definition is very carefully framed. Most interesting is that it does not
include religion or politics or culture. You can discriminate for or against Roman Catholics
as much as you like without being in breach of the law.
[….]
It is not suggested that the Sikhs are a group defined by reference to colour or race or
nationality. Nor was much stress laid on national origins. But it was said most persuasively
by counsel for the plaintiffs that the Sikhs are a group of persons ‘defined by reference to
ethnic origins’. It is so important that I will consider each word of that phrase.
‘Ethnic’
The word ‘ethnic’ is derived from the Greek word ‘ethnos’ which meant simply ‘nation’. It
was used by the 72 Palestinian Jews who translated the Old Testament from Hebrew into
Greek (in the Septuagint). They used it to denote the non-Israelitish nations, that is, the
Gentiles. When the word ‘ethnic’ was first used in England, it was used to denote peoples
who were not Christian or Jewish. This was the meaning attached to it in the great Oxford
English Dictionary itself in 1890.
But in 1934 in the Concise Oxford Dictionary it was given an entirely different meaning. It was
given as: ‘pertaining to race, ethnological’. And ‘ethnological’ was given as meaning: ‘corre-
sponding to a division of races’. That is the meaning which I, acquiring my vocabulary in 1934,
have always myself attached to the word ‘ethnic’. It is, to my mind, the correct meaning.
It means pertaining to race.
But then in 1972 there was appended a second supplement of the Oxford English
Dictionary.† It gives a very much wider meaning than that which I am used to. It was relied †
Note the research that counsel
on by counsel for the plaintiffs: and judges – and law students
“Also, pertaining to or having common racial, cultural, religious or linguistic character- – are willing to undertake: in this
istics, especially designating a racial or other group within a larger system; hence (US case, consulting various long
colloquial), foreign, exotic”. books, and consulting many
different editions of dictionaries.
[…]
Why are ‘the Jews’ given as the best-known example of ‘ethnic grouping’? What is their
special characteristic which distinguishes them from non-Jews? To my mind it is a racial
characteristic. The Shorter Oxford Dictionary describes a Jew as ‘a person of Hebrew race’.
Some help too can be found in our law books....If a man desires that his daughter should
only marry ‘a Jew’ and cuts her out of his will if she should marry a man who is not ‘a Jew’,
he will find that the court will hold the condition void for uncertainty.
[…]
‘Origins’
The statute uses the word ‘ethnic’ in the context of ‘origins’. This carries the same
thought. I turn once again to the Shorter Oxford Dictionary. When the word ‘origin’ is used
of a per-son it means ‘descent, parentage’. I turn also to the speech of Lord Cross in Ealing
London Borough Council v Race Relations Board [1972] 1 All ER 15 at 117, [1972] AC 342 at 365:
“To me it suggests a connection subsisting at the time of birth... The connection will nor-
mally arise because the parents or one of the parents of the individual in question are or is
identified by descent...”
So the word ‘origins’ connotes a group which has a common racial characteristic.
‘Ethnic origins’
If I am right in thinking that the phrase ‘ethnic origins’ denotes a group with a common
racial characteristic, the question arises: why is it used at all? The answer is given by Lord
Cross in the Ealing London Borough case ([1972] 1 All ER 15 at 117-118, [1972] AC 342 at 366):
“The reason why the words ‘ethnic or national origins’ were added to the words ‘racial
grounds’ which alone appear in the long title was, I imagine, to prevent argument over the
exact meaning of the word ‘race’.”
In other words, there might be much argument whether one group or other was of the same
‘race’ as another, but there was thought to be less whether it was a different ‘ethnic group’.
‘Racial group’
This brings me back to the definition in the statute of a ‘racial group’. It means ‘a group of
persons defined by reference to colour, race, nationality or ethnic or national origins’.
The word ‘defined’ shows that the group must be distinguished from another group by
some definable characteristic. English, Scots or Welsh football teams are to be distinguished
by their national origins...The wandering Jew has no nation. He is a wanderer over the face
of the earth. The only definable characteristic of the Jews is a racial characteristic. I have no
doubt that, in using the words ‘ethnic origins’. Parliament had in mind primarily the Jews.
There must be no discrimination against the Jews in England. Anti-Semitism must not be
allowed. It has produced great evils elsewhere. It must not be allowed here.
But the words ‘ethnic origins’ have a wider significance than the Jews. The question before
us today is whether they include the Sikhs.
The Sikhs
The word ‘Sikh’ is derived from the Sanskrit ‘Shishya’, which means ‘disciple’. Sikhs are the
disciples or followers of Guru Nanak, who was born on 5 April 1469. There are about 14 mil-
lion Sikhs, most of whom live in the part of the Punjab which is in India. Before the parti-
tion of the province in 1947 half of them lived in that portion which is now Pakistan; but on
the partition most of them moved into India. There was tragic loss of life.
There is no difference in language which distinguishes the Sikhs from the other peoples
in India. They speak Punjabi or Hindi or Urdu, or whatever the vernacular may be. There is
no difference in blood which distinguishes them either. The people of India are largely the
product of successive invasions that have swept into the country. They have intermingled
to such an extent that it is impossible now to separate one strain from the other. The Sikhs
do not recognise any distinction of race between them and the other peoples of India.
They freely receive converts from Hinduism, or vice versa. Not only from outside, but even
within the same family. The outstanding distinction between the Sikhs and the other peo-
ples of India is in their religion, Sikhism, and its accompanying culture.
[…]
Sikhs, most obviously, are not a race in biological terms. Their origins are extremely
diverse, probably more diverse than us English...I think they are a classic example of an eth-
nic group because of their distinctive cultural traditions... We are busy coining lots of new
words here. I think ethnicity is the proper word to coin...
The evidence shows that Sikhs as a community originate from the teaching of Guru Nanak.
About the fifteenth century he founded the religious sect.
[…]
It is sometimes suggested that the Sikhs are physically a different people. But that is not
so. In an important book on The People of Asia (1977) p. 327 Professor Bowles of Syracuse
University, New York, says:

House of Lords hearing

Mandla v Dowell Lee [1983] 1 All ER 162, HL.
Lord Fraser of Tullybelton, Lord Templeman, Lord Edmund-Davies, Lord Roskill, and Lord
Brandon of Oakbrook.
Extract from the opinion of Lord Fraser of Tullybelton

...My Lords, I recognise that ‘ethnic’ conveys a flavour of race but it cannot, in my opinion,
have been used in the 1976 Act in a strict racial or biological sense. For one thing it would
be absurd to suppose that Parliament can have intended that membership of a particular
racial group should depend on scientific proof that a person possessed the relevant dis-
tinctive biological characteristics (assuming that such characteristics exist). The practical
difficulties of such proof would be prohibitive, and it is clear that Parliament must have
used the word in some more popular sense. For another thing, the briefest glance at the
evidence in this case is enough to show that, within the human race, there are very few, if
any, distinctions which are scientifically recognised as racial...
I turn, therefore, to the third and wider meaning which is given in the Supplement to the
Oxford English Dictionary vol I (A-G) (1972). It is as follows: ‘pertaining to or having common
racial, cultural, religious, or linguistic characteristics, esp. designating a racial or other
group within a larger system…’ Counsel for the appellants, while not accepting the third
(1972) meaning as directly applicable for the present purpose, relied on it to this extent,
that it introduces a reference to cultural and other characteristics, and is not limited to ra-
cial characteristics. The 1972 meaning is, in my opinion, too loose and vague to be accepted
as it stands. It is capable of being read as implying that any one of the adjectives, ‘racial,
cultural, religious or linguistic’ would be enough to constitute an ethnic group. That cannot
be the sense in which ‘ethnic’ is used in the 1976 Act, as that Act is not concerned at all with
discrimination on religious grounds. Similarly, it cannot have been used to mean simply
any ‘racial or other group’. If that were the meaning of ‘ethnic’, it would add nothing to the
word’ group’, and would lead to a result which would be unacceptably wide. But in seeking
for the true meaning of ‘ethnic’ in the statute, we are not tied to the precise definition in
any dictionary. The value of the 1972 definition is, in my view, that it shows that ‘ethnic’ has
come to be commonly used in a sense appreciably wider than the strictly racial or biologi-
cal. That appears to me to be consistent with the ordinary experience of those who read
newspapers at the present day. In my opinion, the word ‘ethnic’ still retains a racial flavour
but it is used nowadays in an extended sense to include other characteristics which may be
commonly thought of as being associated with common racial origin.
For a group to constitute an ethnic group in the sense of the 1976 Act, it must, in my
opinion, regard itself, and be regarded by others, as a distinct community by virtue of
certain characteristics. Some of these characteristics are essential; others are not essential
but one or more of them will commonly be found and will help to distinguish the group
from the surrounding community. The conditions which appear to me to be essential are
these: (1) a long shared history, of which the group is conscious as distinguishing it from
other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own,
including family and social customs and manners, often but not necessarily associated
with religious observance. In addition to those two essential characteristics the following
characteristics are, in my opinion, relevant: (3) either a common geographical origin, or
descent from a small number of common ancestors; (4) a common language, not neces-
sarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common
religion different from that of neighbouring groups or from the general community
surrounding it; (7) being a minority or being an oppressed or a dominant group within
a larger community, for example a conquered people (say, the inhabitants of England
shortly after the Norman conquest) and their conquerors might both be ethnic groups...
The result is, in my opinion, that Sikhs are a group defined by a reference to ethnic origins
for the purpose of the 1976 Act, although they are not biologically distinguishable from
the other people living in the Punjab. That is true whether one is considering the position
before the partition of 1947, when the Sikhs lived mainly in that part of the Punjab which is
now Pakistan, or after 1947, since when most of them have moved into India.

20 Analysing facts and applying law

Analysis is not only a matter of taking apart the elements of an argument. Much legal
practice starts with the client coming to see their lawyer seeking a legal remedy. The client
will present you with the set of circumstances that concerns them. It is your task to work
out how the law might help them. What area of law would be relevant? Which particular
statutes and cases? Does your client have a case? Equally, your client may be the defendant
in an action that has been raised by someone else and your are asked to defend them. Here
the issues are more pre-defined by the terms of the law suit. But you still need to be able to
look at the facts and, this time, determine whether the law allows them to be viewed in a
different way, one that is favourable to your client.
Being able to analyse facts from the point of view of relevant law is a key attribute of ‘think-
ing like a lawyer’. ‘Problem questions’ are essentially training you for this aspect of legal
practice. A problem question is a favourite method of assessing law students.† †
See Section 25 on Dealing with
problem questions.
While Section 25 offers an extended example from contract law, the two examples in this
section concern criminal law. The issues of analysis are the same.
The Theft Act: a worked example

We will look at a problem question involving an application of section 1 of the Theft Act 1968.
Amanda was in Richard’s bookshop. She had a coffee in its coffee bar and was reading a
book she had picked off of the shelf. She was seen by the waitress in the coffee bar area to
put the book in her bag and walk out of the shop. Outside the shop she was approached
by the shop’s security and asked to go back inside. She was asked if she had taken anything
out of the shop that had not been paid for. She replied that she had not. She gave the
security officer her bag and he produced a book that had not been purchased. Amanda
had no receipt for it. Amanda was extremely embarrassed and said she had forgotten that
the book had not been paid for. She had fully intended to buy it. She explained that she
had suddenly noticed the time, realised that she was running late, and quickly left to col-
lect her child from school and, without thinking, had put the book in her bag.
She offered to pay for the book immediately. As the store had a policy of prosecuting all
shoplifters, the police were called immediately. Amanda was charged with theft of the
book contrary to section 1(1) of the Theft Act 1968.
The first stage of analysis involves a consideration of the facts in the context of the legal
rule alleged to have been infringed. Remember you have been told that Amanda has been
accused of theft of the book. Theft is a criminal offence.
Having established the facts, what we need to do next is to look more closely at all of the
elements of the particular rule which Amanda is alleged to have infringed. Sometimes you
might have to search for that rule, but in this scenario we have been told that the question
involves section 1(1) of the Theft Act 1968.
We now need to look at section 1(1).
The law: section 1(1) of the Theft Act† †

For offences under the Theft
We need to find out exactly how section 1(1) defines the offence. We need to examine the Act 1968, see your Criminal law
constituent elements of that offence in order to consider whether Amanda’s conduct is subject guide, Chapters 16 and 17.
prohibited conduct within the terms of the statute. In other words, we need to do this in
order to consider whether she may be guilty of the offence of theft.
Section 1(1) of the Theft Act 1968 states:

A person is guilty of theft if he dishonestly appropriates property belonging to another
with the intention of permanently depriving the other of it.
Let us take the time to look at this section of the Act in detail, examining the constituent
elements which make up the precise rule. This is a useful exercise that you can repeat with
any legal rule that you encounter. This technique is especially invaluable when dealing with
problem questions.
Breaking the legal rule into its parts

We will concentrate on criminal rules, as we are dealing with theft. All offences are defined,
either in a statute or at common law. Remember: rules can be made by Parliament (statu-
tory rules) or by the courts (common law rules). Most English criminal law rules creating
criminal offences contain two elements:
Actus reus
The actus reus† of an offence defines the particular conduct which is prohibited by the law. †
See the Criminal law subject
It can be an act, i.e. a physical action, or, less frequently, it might be an omission (a failure guide, Chapter 4, and Smith and
to act) or, very rarely, a state of affairs. In the case of theft, the conduct is ‘appropriation’ Hogan’s Criminal law, Chapter 4.
(which can include ‘taking’).
The actus reus also includes the circumstances element of the offence. With theft:
 that it is, in fact ‘property’ (which would obviously include a book)
 that the property ‘belongs to another’ – not generally difficult to prove, here it belongs to
the shop).
(The actus reus also may have a consequences element of the offence. This is not relevant to
theft but relevant to some offences, e.g. murder – as somebody actually has to die!)
Mens rea
This is the mental element requirement, which will be stated in the definition of the
offence (the rule). You must pay particular attention to the definition of the offence you
are considering as it will tell you what this requirement is in relation to that offence. For
example, if you look at the definition of theft (above), you will see that the words in the
definition that describe what mental state the prosecution must prove are ‘dishonestly’
and ‘with the intention to permanently deprive’. So if you go into a bookshop and, when
nobody is looking, you slip a book into your bag intending, without having paid for it, to
take it home and keep it, then it is not difficult to see that you acted dishonestly and that
you intended to permanently deprive the shop of the book.
The terms actus reus and mens rea are shorthand for a Latin maxim: ‘Actus non facit reum
nisi mens sit rea’, which translates as ‘An act does not make a man guilty unless his mind be
also guilty’.
(In your Criminal law course, however, you will learn that some offences do not require
proof of a mental element – it is sufficient that the defendant’s conduct was negligent and,
for many (usually, but not always, minor) crimes, it is sufficient that the defendant simply
behaved in a way that was prohibited without even any negligence on his part (strict liability
offences). You do not need to worry about any of this yet!)
The complexities of actus reus and mens rea, which are core to criminal law, are laid out in
detail in the Criminal law subject guide, and in Chapter 4 of Smith and Hogan’s Criminal law.
To summarise:
1 Most crimes require both an actus reus and a mens rea.
2 The actus reus consists of the conduct of the defendant, the relevant circumstances and, in
some cases, the consequence.
3 Some crimes do not require a mental element – the prohibited conduct is sufficient with-
out the mens rea; this is reflected in the way the rule is drafted.
4 There are no crimes in English law that consist only of mens rea.
It will be useful to try to remember all of this as you consider section 1(1) of the Theft Act
1968, as you will need to develop expertise in analysing the constituent elements of a
number of offences as you go through the course.
The law: section 1 of the Theft Act

‘A person is guilty of theft if he dishonestly appropriates property belonging to another
with the intention of permanently depriving the other of it.’
Actus reus
1 Appropriates The Theft Act defines the meaning of ‘appropriates’ (in

section 3) but you also need to be familiar with a number
of cases decided by the Court of Appeal and the House of
Lords which further explain the various meanings of this
word.
2 property The Theft Act defines the meaning of ‘property’ (in section
4) but you also need to be familiar with a number of cases
decided by the Court of Appeal and the House of Lords.
3 belonging to another The Theft Act defines the meaning of ‘belonging to

another’ but you also need to be familiar with a number
of cases decided by the Court of Appeal and the House of
Lords.
Mens rea
4 dishonestly The Theft Act does not define ‘dishonestly’ but it explains,
in section 2, in what situations conduct is to be deemed
not to have been dishonest — so you must ensure that
you are familiar with the Appeal cases which define the
meaning of this word.
5 [with] the intention of The Theft Act in section 6 describes a number of situations
permanently depriving where an intention permanently to deprive is to be
the other of it. deemed and you should be familiar with the appeal cases
which further clarify this provision. Note, however, that
generally this is a straightforward issue and one for the
jury to determine on all the evidence.
General comment: As the specific comments above demonstrate, no word or phrase in a

statute can be said to stand alone, nor can they be analysed alone. They may need to be
analysed in the context of other parts of the statute, and judicial attempts to clarify and
explain them.
As you can see, the actus reus is covered by items 1–3 and the mens rea by items 4–5. You
should also note that the mens rea is connected to the actus reus by:
 the word ‘with’, linking the act to an intention to permanently deprive
 the attachment of the word ‘dishonestly’ as an adjective to describe the verb
‘appropriates’.
For now, while we concentrate on analysing the rule by looking at the language used, we
will be looking at the words of the statute. (We will look later at the relevant cases that
flesh out what the words in the statute might mean.)† †
Learning how to deal with cases
is covered in the Common law
Returning to our problem scenario above, you will recall that the scenario refers to Amanda
reasoning and institutions subject
being stopped leaving a shop without purchasing a book found in her possession. She says
guide.
she forgot to pay and offers to pay there and then.
Now, let us consider the connector words, which as we noted earlier are very important.† †
See Section 15 on Reading
Unless all five elements of the crime (1–5 in the table above) can be proved, Amanda cannot legislation.
be found guilty of theft and the prosecution case fails. To put this another way, if we can
prove that just one of these elements is missing, the prosecution case fails.
In relation to the elements of the crime, the prosecution must systematically set out to prove
that ‘Amanda stole a book’, and the defence to prove that ‘Amanda did not steal a book’.
There are a number of ways in which Amanda’s defence team can respond to an accusation
of theft: for example, Amanda might say any or all of the following in her defence:
‘I did not intend to take the book. I meant So she did not ‘dishonestly appropriate’ the
to buy it but I forgot.’ book (element 1).
‘I did take the book but it was an accident So she did not intend to ‘permanently
and I offered to pay for it as soon as I deprive’ the owner of his or her property
knew.’ (element 5).
‘I did take the book but it belongs to me.’ So the book was not ‘the property of another’
(element 3).
‘I thought the book was mine.’ S.2(1) Theft Act statutory defence.
Defending Amanda
The arguments of both prosecution and defence will depend on the defence that Amanda
offers. The prosecution has to prove that Amanda did intend to permanently deprive the
owner of the book, i.e. the mens rea, in the face of Amanda’s denial.
The defence will need to attack the prosecution case at one of the other points, i.e. contest-
ing the claim that:
 Amanda dishonestly appropriated the book with the intention to permanently deprive.
These matters all relate to the factual aspect of analysis. Notice that this is not merely a
common sense analysis of facts but an analysis from a legal point of view, considering the
facts in terms of their potential relevance to legal issues. Faced with a fact scenario, you will
be expected to recognise the relevant legal area – here theft – and also relevant legislation
and cases. (In this example, some of the work was already done for you when we told you
that it was the Theft Act that was relevant.)
When the factual detail is organised and the defence knows which aspects of the situation
demand attack, it is time to look at issues of legal analysis proper.
Legal analysis
Amanda is saying ‘she did not intend to permanently deprive’, so what does the law say?
The first place we should look is the statute itself: does it define the relevant words? Next it
is necessary to find relevant law reports. You can ask yourself:
 Are there cases where the judges have laid out what can be argued in relation to appro-
priating without an intention to permanently deprive? For example, ‘borrowing without
permission’?
 Does the law give any legitimacy to borrowing without permission? If it does, can it be
argued to offset a charge of theft?
If there were relevant cases you would need to refer to them, stating the case, the court,
and the nature of the precedent – was it strong, weak, binding or persuasive?
In your legal studies you will be dealing with cases in the Appellate courts.† For example, †
See Section 16 on Reading cases.
if Amanda is found guilty of stealing a book and allowed to appeal, she may do so. However
the normal situation is that she cannot appeal unless she does so with regard to a point
relating to the law. Appeal courts will not usually entertain any appeals about the finding in
relation to facts. Points of law could be brought here, perhaps with regard to the meaning
of a phrase of word used in section 1 of the Theft Act.
When dealing with cases, your argument construction will involve a clear understanding
of the facts of the case, and the legal rule or rules involved, and if the matter is on appeal a
clear understanding of the issue that is the subject of the appeal.
If you can understand the following basic connections between…
1 2 3
facts and legal rules elements within a legal rule law reports and the meaning
(whether it is a statutory rule of words making up a statutory
or a common law rule) rule
…then you can then move on to understanding the connections between:

 a range of law reports developing a line of reasoning
 an article critiquing a law report, or a line of reasoning, or the way in which judges engage
in statutory interpretation, or problems with drafting statutory rules to convey meaning.
You thus steadily add to your ability to think critically and argue effectively.
Summary
In building a legal argument for or against conviction, it is also necessary to present the
elements of the case in a rational order. A legal argument sets out to prove or disprove a
proposition such as ‘X is guilty of Y’. Therefore, deductive reasoning, based on the logical
format of ‘Y is a crime, X did Y, therefore X committed a crime’ plays a key role.
In building a legal argument for or against conviction, it is also necessary to present the
elements of the case in a rational order.
You should be able to formulate an argument which demonstrates, beyond reasonable

doubt (in the case of criminal trials) or on a balance of probabilities (in civil trials), that X
did indeed do Y. In criminal trials it is necessary to prove all the essential elements that
the legal rule says must be present. This particularly involves both the criminal act (the
actus reus) and the criminal intention (mens rea). If any one of these cannot be proven, the
person cannot be convicted.
Arguing relevance
Often it is accepted in legal argument than an item is relevant but there is a question as
to how. One well known example is the story of a sheriff chasing an outlaw. The sheriff has
heard a rumour that this outlaw will instantly kill anyone who tries to capture him. One
night the sheriff finally catches up with the outlaw and confronts him. The outlaw puts his
hand in his pocket and the sheriff shoots him dead. The sheriff is charged with murdering
the man. At the trial, the defence wants to bring in the rumour. But is it relevant to the
defence of self-defence? What if it turns out that the rumour was false and the sheriff was
not objectively in danger? The defence would fail. Alternatively the defence might be – also
based on the rumour – that the sheriff, mistakenly but with good reason, believed that his
life was in danger. This is a completely different defence and might succeed:
 Lesson 1: always be clear about the different implications that an item might have.
 Lesson 2: always keep alternatives open.
The above example concerns the different possible relevance of facts. More important here
is the different possible relevance of issues. In the following short (edited) extract from R
v Ahluwalia [1992] 4 All ER 889,† what is in issue is ‘delay’ and how it may affect (i.e. how it is †
The full extract can be found in
relevant to) the defence of provocation, which is defined in terms of requiring ‘sudden and your Criminal Law study pack.
temporary loss of self control’.
Background information
Provocation is a defence to the charge of murder. A murder conviction carries an automatic
life sentence. A successful defence of provocation reduces the charge and conviction to
manslaughter and hence gives the judge much more scope in terms of sentencing, includ-
ing the possibility of a non-custodial sentence. The delay in question is a time gap between
the alleged provoking act or acts and the fatal response by the defendant. The issue of
delay has been particularly controversial in so-called ‘battered women’ cases where the
defendant has suffered a long period of violence or other domestic abuse from her partner
and has killed him after a provoking act.
The passage comes from the judgment of Lord Taylor of Gosforth. ‘Mr Robertson’ is acting
for the defendant, Mrs Kiranjit Ahluwalia. So the situation is that one of the judges is noting
arguments put to him by the defence and giving his response. The language and mode of
expression in this passage are quite difficult. There are also some background issues that
we will not go into here about what directions the judge should give the jury and also the
distinction between fact and law.
(Paragraph numbering and emphasis have been added.)

[1] The phrase ‘sudden and temporary loss of self-control’ encapsulates an essential ingre-
dient of the defence of provocation in a clear and readily understandable phrase. It serves
to underline that the defence is concerned with the actions of an individual who is not, at
the moment when he or she acts violently, master of his or her own mind. Mr Robertson
suggested that the phrase might lead the jury to think provocation could not arise for
consideration unless the defendant’s act followed immediately upon the acts or words
which constituted the alleged provocation. …
[2] Nevertheless…Time for reflection may show that after the provocative conduct made
its impact on the mind of the defendant, he or she kept or regained self-control. The pas-
sage of time following the provocation may also show that the subsequent attack was
planned or based on motives, such as revenge or punishment, inconsistent with the loss
of self control and therefore with the defence of provocation. In some cases, such an inter-
val may wholly undermine the defence of provocation; that, however, depends entirely
on the facts of the individual case and is not a principle of law.
[3] Mr Robertson referred to the phrase ‘cooling off period’ which has sometimes been
applied to an interval of time between the provocation relied upon and the fatal act. He
suggests that although in many cases such an interval may indeed be a time for cooling
and regaining self-control so as to forfeit the protection of the defence, in others the time
lapse has an opposite effect. He submits, relying on expert evidence not before the trial
judge, that women who have been subjected frequently over a period to violent treat-
ment may react to the final act or words by what he calls a ‘slow-burn’ reaction rather than
by an immediate loss of self-control.
[4] We accept that the subjective element in the defence of provocation would not as a
matter of law be negatived simply because of the delayed reaction in such cases, provided
that there was at the time of the killing a ‘sudden and temporary loss of self-control’
caused by the alleged provocation. However, the longer the delay and the stronger the
evidence of deliberation on the part of the defendant, the more likely it will be that the
prosecution will negative provocation.
Activity 20.1
Read the passage above and answer the following questions, which all concern the pos-
sible relevance of delay.
1 In paragraph [1], Lord Taylor summarises a concern expressed by Mr Robertson and in
paragraph [4], he returns to the same issue, saying that he accepts the point. Would this
point be best expressed as (more than one may be correct):
(a) If there is a delay, then obviously the defence of provocation cannot be made.
(b) The word ‘sudden’ in the formulation ‘sudden and temporary loss of self control’
might lead a jury to think that, if there is any delay between the allegedly provoking act
and the response by the defendant, then the defence of provocation is automatically
ruled out.
(c) It would be wrong to think that the relevance of delay is automatically to negative a
defence of provocation.
2 There are two opposite ways in which delay might be relevant to a defence of provoca-
tion in any particular case.
What is the difference between delay as a ‘cooling off period’ and delay as a ‘slow burn’?

21 Working with numbers

Perhaps you think numbers (and numeracy) are not important in law? Think again. Criminal
law policy and government spending on the legal system are heavily dependent on statis-
tics. It is important to be able to use numbers and statistics.
Try the following questions, which are based on state information from the Home Office
Statistical Bulletin Violent Crime Overview, Homicide and Gun Crime 2004/2005 (data for
England and Wales). Feedback to all of the activities below is provided at the end of the
guide.
Activity 21.1
In 2004/05, 839 deaths were initially recorded as homicide, a decrease of 2 per cent from the
previous year. Of these offences, 19 were no longer recorded as homicides by 28 November
2005. Court proceedings had resulted in findings of guilt in respect of 264 victims and
proceedings were pending for a further 401. The suspects responsible for the deaths of 29
victims had committed suicide or died. For 99 victims, no suspects had been identified. In
the remaining 27 offences, proceedings were discontinued, not initiated or the suspect
found to be insane. There were 77 homicides by shooting, compared with 69 in 2003/2004.
a What percentage of the deaths had resulted in court cases?
b What percentage of the homicides were by shooting?
c What is the mortality rate among homicide suspects, per 1,000 suspects?
1
d These statistics show the change on annual homicide figures:

2
Years Homicides Homicides 6
per million population

8
1997/98 608 11.8

1998/99 646 12.5
1999/00 674 13.0
20
18
2000/01 771 14.9 16
14
2001/02 804 15.4 12
10
Series1
2002/03 953 18.2 8
2003/04 793 15.0 4
2004/05 820 15.5 0
1 2 3 4 5 6 7 8
What would be the best way to display the homicides per million figures? Pie chart (top),
bar chart (middle) or line chart (bottom)? 20
18
16
14
12
10 Series1
0
1 2 3 4 5 6 7 8
e Using the line chart, what can you say about the movement in homicide figures?
200
f This scatter plot is based on the number of homicides.

What does it represent? 150
100
50
Series1
0
1 2 3 4 5 6 7
-50
-100
-150
-200
Activity 21.2
Here are some (imaginary) data about magistrates’ courts.
Court Cases heard Fines issued Annual cost Population of
each in 2005 area covered
Lawminster 5,260 £907,500 £2,893,000 1.95 million

St Asbo’s 2,975 £875,200 £1,722,525 0.76 million
Paxton 4,126 £760,550 £2,157,818 1.05 million
Collarfield 6,190 £1,645,650 £3,095,000 0.95 million
Twockerby 4,244 £1,350,700 £2,291,760 1.5 million
Holloway 5,452 £2,257,900 £3,085,832 2.6 million
What grounds are there for considering:

a Holloway to be the most efficient court?
b Collarfield to be the most efficient court?
c Lawminster to be the most efficient court?
d Which court is the average one?
Activity 21.3
Here is another section from the Statistical Bulletin Violent Crime Overview, Homicide and
Gun Crime 2004/2005: ‘Risk of becoming a victim’.
Read it and answer the question that follows.

According to the 2004/05 British Crime Survey (BCS) the risk of becoming a victim of violent
crime is 3.6 per cent. Young men aged 16 to 24 are most at risk; 14.6 per cent experienced
some sort of violent crime in the year prior to their BCS interview in 2004/05. Women are
at greater risk of domestic violence; 0.7 per cent of women experienced domestic violence
in the year prior to their BCS interview compared with 0.2 per cent of men. The risk of vio-
lence victimisation decreases with age. For men, the risk decreased to 0.4 per cent for 65 to
74 year-olds and 0.2 per cent for men over the age of 75. For women, the risk decreased to
0.5 per cent for those aged 65 and over.
The unemployed are also a high risk group with a violence victimisation rate of more than
three times the national average (11.7 per cent). People living in hard pressed areas
were twice as likely to be victims of violence as those living in wealthy achiever areas...
Private renters had a higher risk of victimisation than owner occupiers and those living in
terraced houses or maisonettes a higher risk than those living in detached houses (4.7 per
cent against 2.3 per cent). Adults who are the single adult in the household with child[ren]
have a much higher risk of domestic violence than other adults (with or without children);
3.5 per cent compared with 0.4 per cent for adults in households comprising two or more
adults with children and 0.5 per cent for adults in households without children.

Mrs Watson, is a 75 year old widow, is afraid of being attacked by the people she calls
‘the young hooligans in this area’. Mrs Watson lives in a detached bungalow, which she
owns, in the residential suburb of Barnsfield.
Imagine you are a local policeman. What information from the BCS could you use to help
persuade her not to be unnecessarily fearful?
Put together your answer as a spoken statement.
If you can make sense of the examples in the activities in this section, you will be well
placed to incorporate numerical material in your writing.† †
For further useful information on
using numbers and charts, see
Chapter 8 of J. Northedge
The good study guide. (Milton
Keynes: Open University, 2005)
[ISBN 978-0749259747].
22 What does it mean to be critical?

Adopting a critical stance is a key value that runs throughout the University of London
External Laws Undergraduate Programme.
You will encounter this through a cluster of terms: ‘critical’, ‘critical study’, ‘critical perspec-
tive’, taking a ‘critical-reflective stance’, ‘critique’, ‘critical analysis’, ‘critical reasoning’ etc.
Sometimes you may feel that these terms are being used rather vaguely and you may become
tired of being asked to ‘think critically’ without knowing what this is supposed to mean.
Does ‘critical’ have a simple core meaning? Is it a bundle of related themes? This section
offers some answers.
What ‘being critical’ does not mean

Being critical is not the same as ‘criticising’ or ‘criticism’, i.e. making negative comments,
being ‘against’ something. In asking students to ‘be critical’, we are not saying that they
should always be expressing censure or disapproval. The meaning of ‘critical’ in the aca-
demic context is thus different from everyday language, as for example, ‘the President
was heavily criticised for his attitude to judges’.
 Being critical may lead to criticism but being critical is the step before criticism, the point
of standing back, considering, observing, assessing.
Being critical does not mean adopting any specific political position.
 For example, you do not have to be a radical leftist or a neo-liberal conservative in order to
be critical. Having a political position yourself – of whatever variety – may lead you to take a
critical stance, but there is no requirement or expectation on the part of the University that
students align themselves with any particular position. However, the principles of education
adopted by the Programme evidently espouse the values of liberalism in the broadest sense.
Being critical is not the same as being rude.

 Being critical is no reason to depart from the normal rules of civility in conducting debate.
To be critical in the academic sense is not to be hostile and destructive of other people’s
ideas. The critical approach helps to refine and extend ideas. Both the person who raises
a critical point and the person who receives it can learn from it. This is both necessary and
normal in the academic world. It is also necessary and normal to conduct these exchanges
in a polite and mutually supportive manner. There should be an atmosphere of civility.
Being critical does not mean adopting a ‘trashing’ attitude.

 Being critical does not mean automatically rejecting everything you hear or read. It means
assessing the value of what is offered and also looking for other approaches or perspectives.
Information seeking vs being critical

As a student on the Laws Programme, much of the time you will be reading or listening to
lectures for the purpose of gathering information: mastering the basic knowledge that you
need for a particular topic. Here the reader or listener is primarily concerned with what he
or she will carry away as information from the text or lecture or seminar.† †
L. Rosenblatt, ‘The Aesthetic
Transaction’, Journal of Aesthetic
This information-seeking stance has been compared to that of a car mechanic who uses
Education, 20, (4) 1986, p 124.
the manual to work out how to repair a carburettor. This is not a bad comparison to much
of what lawyers do in practice and it is strongly linked to problem solving. It is the lawyer
as technician. The information seeker (mechanic or lawyer) reads (or listens) in order to
extract the information necessary to accomplish a particular task.
In the study of law, the skills of reading or listening for information are important, but the
information-seeking stance has its limitations. For example:
 ‘Following the manual’ – to continue the analogy – means that you are not interested in
how the car works: you just want to get the task done, the immediate problem solved.
 ‘Following the manual’ means assuming that it is absolutely right. Of course, as a good
technician, you will make sure that you are using an up-to-date version of the manual.
 ‘Following the manual’ means that the technician gets irritated if complex terms are used.
Accurate and simple language is all that a technician wants. If a complex term is used, it
ought to have a simple definition supplied.
‘Being critical’ is different from seeking information. It is one aspect of moving from knowl-
edge to understanding.
Being critical = being an active student

The starting point for being critical is simple: ask questions. Try to read texts actively, and
engage in questioning the texts you are reading. Follow the prompts in your subject guides.
If you are attending lectures, be prepared to ask questions and seek clarification on things
that you do not fully understand.
The continual practice of questioning will not only refine your knowledge and problem
solving skills; it will also lead to understanding the subject at a deeper level. As you
progress through your studies, adopting a questioning stance will enable you to enter into
discussions concerning increasingly complex topics.
Asking questions will also attune you to change. In academic study, new questions
constantly arise and cannot be resolved by an internet search. Old understandings need
to be applied to new questions and anomalies resolved – or new understandings may be
evolving to meet the new situations. Being critical means being aware of what is happening
in the world of law.
Being critical = being able to analyse

The ability to analyse is a key gateway to higher level understanding of arguments, critical
judgment and evaluation and also to applying legal knowledge and problem solving.
Analysis allows you to use your knowledge and not just recite it as a fixed formula.
Put in the abstract, analysis involves taking things apart, finding the different individual
components and seeing how they fit together. A chemical analysis identifies all the differ-
ent elements making up a particular substance and also looks at how they produce certain
effects when combined.
Terms associated with analysis are:

 identification of components
 organisation of parts
 seeing patterns
 examining structure and arrangement of elements for logic and clarity
 comparing, contrasting, classifying
 ordering material in terms of relevance
 ordering material in terms of importance.
In this part of the guide, we have examined analysing and assessing arguments and analys-
ing fact scenarios.
Being critical = ‘seeing the bigger picture’

Being critical – developing understanding – involves the ability to make connections between
the immediate situation or task (a legal rule, a set of facts, etc.) and a wider vision or context.
 It could be the immediate context of legal doctrine: how does this particular rule or excep-
tion relate to the broad principles of this area of law?
 It could be the context of legal policy – linked to social pressures or concerns influencing law.
 It could be the wider social context.
The key point is that you should be able to situate yourself not only in relation to the im-
mediate but also adopt a wider perspective.
Being critical = awareness of conflict

Being critical means being open to the idea that there may be tensions or conflicts in the
law. Legal doctrine frequently involves trying to reconcile different principles. Legal policy
often conflicts with doctrine.
None of this should be surprising if you think about how law operates in the world and how
law comes to be created and refined through legislation and judicial interpretation.
There are of course tensions within law, and it takes a sophisticated learner to be aware of
them. Further reading is vital to developing this awareness. But, from the start, you should
at least be open to the idea that law is not a perfectly coherent and consistent field but is
actively trying to balance and manage a variety of different and competing dynamics and
interests.
Look out for conflicting sets of cases on the same rule or point of law. Don’t just recite them
as separate cases: group them together as illustrating conflicting approaches.
Being critical = awareness of bias and point of view

Being critical means having an awareness that texts, facts, information – newspaper articles,
material on the internet, but also legal materials – are generated from a particular point of
view. For example, the news on Al-Jazeera is often very different from the news on CNN.
Any point of view, perspective or specific context is by definition limited – it is the view of
one single person or body. Emotion may also be involved (although not always visibly) in
perspectives and contexts. Being critical involves awareness that the perspectives are not
value-free.
However, being able to recognise a point of view is not at all simple, especially if the point
of view coincides with your own. One starting point would be to begin with media sources
and compare how different news channels present the same story. Because news is always
presented as ‘the facts’, it is instructive to analyse what is included and excluded in differ-
ent accounts. You may, of course, already have a general awareness of these differences,
but try making a systematic comparison.
Equally, you might try to reflect on something that you have written yourself – or a piece by
a fellow student – to see if you can see what perspective it is written from. What has been
highlighted? What has been excluded or minimised?
There is also what is called ‘systematic bias’. This is not a matter of an individual person’s
point of view but a collective outlook that may exclude or maltreat certain other groups of
people. Let us look at a debate about the ‘neutrality’ policy of Wikipedia, the online ency-
clopedia where entries may be are created by anyone who wishes to contribute – so long as
they maintain a neutral point of view (NPOV):
All Wikipedia articles and other encyclopedic content must be written from a neutral
point of view, representing views fairly, proportionately and without bias.† †
http://en.wikipedia.org/wiki/
Wikipedia:Neutral_point_of_view
However, on the page where this policy is discussed, one question is:
Wikipedia seems to have an Anglo-American focus. Is this contrary to the neutral point of
view?
This is discussed as a question of ‘systematic bias’.

The fact that only about 30 of 1480 featured articles (2%) are about topics related to Africa,
a continent that accounts for 14% of the world population and 20% of its land area, is an
indication of systemic bias, but is not directly a neutrality issue.
So the editors accept that there is a systematic bias – but then claim that it is not a neutral-
ity issue. Would you agree?
More directly relevant to your legal studies, similar questions have been asked about law.
Does law see the world from a masculine perspective, a capitalist perspective, and so on?
For example, it has been argued that human rights represent a Western point of view. To
be able to appreciate such arguments, you thus need to be able to stand back and consider
whether seemingly neutral legal definitions and doctrines are not so neutral after all. You
don’t have to agree with the criticism. But you need to be able to ‘try it out’ in your mind
and write about it, and to offer counter-arguments if you disagree. That is a critical-reflec-
tive point of view.
Part 5
Writing law
Sections
23 Academic writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
24 Writing essays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
25 Dealing with problem questions . . . . . . . . . . . . . . . . . . . . 141

Learning skills for law 5 Writing law page 127
23 Academic writing
As a university student, you will be required to do a lot of academic writing. You will be
drawing on the reading skills – from vocabulary to comprehension to more advanced
reading techniques – and also the analytic and argumentative skills that you will have been
building. But now these abilities are going to find expression in your own work. Writing will
also engage you more actively with researching.† †
For general advice on writing
conventions, see the web site
At the outset, here are a few very basic pointers. You should:
produced by Andy Gillett of the
 Avoid using contractions: it’s, don’t, …: use ‘it is’, ‘do not’ … University of Hertfordshire:
 Avoid using slang and colloquial expressions. www.uefap.com/writing/
 Use complete sentences. writfram.htm.
 Use paragraphs. The basic rule is: new idea = new paragraph. This is important in essays
but also in dealing with problem questions. Paragraphing helps you to focus.
 Think about overall structure: beginning, middle, end. Briefly introduce what you are going
say, say it, and then conclude.
Academic writing as a style

Preferred forms of expression
Clarity and brevity. It is always possible to say something in a longer and more complicated
way, so that it becomes impractical for your readers.
Steve Gould of the University of Central England advises:

The most important thing is to keep your writing clear and concise and make sure that
you get your ideas over in a comprehensible form. It’s clear expression of these ideas that
will impress your tutor, not a string of long, inappropriate words found in your dictionary.
A wide range of vocabulary is of course important, but you must use the right word, and
shorter ones are often better than longer ones.† †
www.ssdd.uce.ac.uk/learner/
writing/guidstyl.htm
Balance, impartiality and avoiding emotiveness. You may feel very strongly about an issue,
and want to express yourself vigorously in favour of one side. If you do so, you may have
created an excellent polemic but will not have followed acceptable academic conventions
of writing.
Here are two versions of a particular set of information that you would find discussed in the
option on Employment law. Compare them and see what you think:
†
Vocabulary: does the meaning
(A) The original academic text: of ‘strikers’ in these passages
Successive governments tried to protect strikers† by rendering trade unions immune from relate to:
tortious liability† and by granting protection against existing tortious liability for strikers. (a) ‘He struck the child’
The courts subsequently created new torts and the legislature enacted fresh protections. (b) ‘Going on strike is not the
This continued until the 1980s when successive Conservative administrations rendered only form of industrial action’
trade unions once more liable in tort and gradually reduced and subjected to severe pro- (b) ‘The Appeal Court struck
cedural restrictions the legal defences to tortious liability. down the lower court’s ruling’?
(B) A polemical version: †

‘Tortious liability’ means liability
Many governments tried to protect strikers by protecting the unions when they took ac- under the law of tort: that there
tion against employers. From 1980 right wing Conservative regimes took the side of the would be the basis of a legal
employers and made a series of attacks on trade unions’ defences in tort. They succeeded action against the party, or more
in severely damaging workers’ rights and wages. crudely that they could be sued.
What is the difference between these two versions? You will study the Law of tort
after you have completed the
1 Which is the more emotional? A B
Intermediate subjects.
2 Which one shows more partiality? A B
3 Which is the more measured? A B
Do you see a different use of words in the alternative version? There are more ‘emotive’
words, such as ‘protect’, ‘attacks’, ‘damaging’. Note also that version B does not distinguish
between unions acting against employers (employers as liable) and strikers being liable.
Similarly suppressed is the role of the courts in the different areas and how they stand in
relation to the government.
Polemical writing does add liveliness to your work, and examiners certainly won’t mark you
‘up’ or ‘down’ depending on whether they share your views. However, broadly, you should
try to follow the style of version A in your academic writing. (If you do include a more
polemical introduction, make sure to move on to the more academic, analytical style in
subsequent paragraphs.)
Techniques of academic writing

Synthesising
Synthesis involves:
 bringing together information and materials from a variety of different sources
 focusing on relevant doctrinal and policy issues in relation to a topic.
When you analyse, you break down a text or argument into its parts. When you synthesise,
you look for connections between ideas and materials. This intellectual exercise requires
that you create an umbrella argument – some larger argument under which several obser-
vations and perspectives might stand.
Synthesis is a crucial skill: it involves bringing together a range of ideas, information, mate-
rials and sources in a single piece of writing – which could be an essay, an analysis of a legal
problem, a research project report or dissertation.
The material brought together could include material studied in lectures, seminars and
wider reading, or material from different assigned reading or your own independent
research.
The outcome needs to be a coherent written presentation, typically in an essay giving an

overall picture of relevant doctrinal and policy issues that bear on a specific topic. In a
problem question you need to have a crisp focus, issue by issue, using appropriate cases to
support your points.
In order to draw this material together, the following techniques will be important.
Summarising
Summarise what the primary text is saying. This means writing
a very concise account of the key issues and lines of argument.
Consider how you might summarise material in different ways by:

 classifying
 comparing and/or contrasting
 giving examples or illustrating
 interpreting
 quantifying.
Evaluating the texts you are discussing

It is normally expected that academic writing involves some element of critical
assessment and evaluation/judgment. These critical capacities were discussed in Part 4,
but here it is a question of being able to present this in writing. Critical assessment means
being able to talk about strengths and weaknesses of an argument or application of law.
Beyond that, a student is expected to go on to make critical evaluations, that is, to be able
to make a reasoned choice between alternative solutions or conclusions, offering reasons
for this choice. The more you are able to develop your own point of view of an area of law,
the higher the quality of your work will be.
Critically assessing and evaluating is different from simply reacting to a text, so, if you have
a strong ‘yes’ or ‘no’ response, try to stand back first and consider what in the text is leading
you to respond. But do consider the reasons as well. In fact, it would not do you any harm
to articulate this in an exam: ‘I feel very strongly in favour of the view expressed in the
quote as a matter of justice but I recognise the reasons on the other side…’
Communicating
In general, your aim is to communicate. Is your work clear? Have you highlighted the main
points and structured your work so that everything will come over to the reader?
All writers need to have an idea of their audience. Who are you talking to? Have you
presented the matters you are concerned with in a way that this imaginary audience can
understand? Students often think ‘But my tutor – or the examiner – knows all this already
so what can I tell them??’ Perhaps it is better to imagine your audience as your fellow
students or an intelligent layperson. Your teachers and examiners want to see how well
you can explain.
Remember that, whether it is an essay or a problem question, you are presenting an

informed argument. This means that it needs to be informed – you must make sure you
have sorted out what you know about a subject from what you think about a subject, and
that you have checked all the sources you are relying on.
The most important point in academic communication is to take the reader through the
steps in your thinking. If your paper fails to inform, or if it fails to argue, then it will fail to
meet the expectations of the academic reader.
Assessing your own work

 Read your work over in the various stages of draft.
 Read it out loud (even to yourself).
 Explain an essay or problem to your friends or family orally. Then read it (or some of it) to
them. Did they understand it better when you were speaking? Ask them what made the
difference and try to incorporate that in your writing.
 Practise sample examination questions from the subject guides, using the advice on
answering the examination question to structure your answers – or, late on, try to plan the
question first and then check the advice.
 Look back at feedback from your teachers on previous work submitted. Don’t just file it
away and forget about it.
 Use the spellcheck facility on your word processing program – and don’t forget the final
spellcheck at the end.† †
See Section 29, Developing your
IT skills.
The process of academic writing

So far we have been merely describing the end product. How do you set out to produce a
piece of academic writing?
1 Begin by deciding your goals For example:† to explain changes in †

This relates to the example
government policy towards tortious liability of industrial action discussed
for workers going on strike in the years above.
19…to…’
2 Legal research Years of new statutes and their principal

content, and background political debate
3 Decide the line of your argument… This might be that changes have taken place in
line with economic development, or according
to the political perspective of the government
4 Write out your material using the Step by step…

above points
5 Check and correct your text Try to find the time for a final read through.
Why spoil a good essay with spelling or
referencing mistakes?
1 Deciding your goals

Students often have seemingly little choice: you are answering questions set by your teach-
ers or by the examiners. However, responding to a set question does involve analysis in
terms of breaking down the elements of the question, and there may be more choice than
you imagine when it comes to deciding how to answer it. Certainly with essay questions,
you often have the choice whether to agree or disagree.† †
See Section 24, Writing essays.
However, even where the goals are pretty well dictated by the question, you should
identify what they are. What do you need to do to answer the question? Often there is an
overall (primary) argument and a number of secondary sub-arguments.
†
2 Legal research This relates to the legal research
skills needed for the Laws Skills
Collect the information you need Portfolio (for the QLD):
The question here† concerns sources: do you have the facilities† and the abilities to access 1 Identify the principal issues for
relevant and important items to respond to the question? Further, can you deal with the research in a legal problem.
source material in a critical and reflective way? 2 Use sources in a critical and
reflective way.
What are the principal sources of legal knowledge? It is important that you understand at
See also Section 27, Legal research.
the outset how legal texts are classified. As explained in Section 14, legal texts are organised
into two principal categories: primary and secondary sources. Primary sources are so called †
From 2007 onwards, it is a course
because they are the original source of legal rules and principles. In this category you
requirement that students have
would find legislative Acts of the UK Parliament as well as legislation that arises following
online access.
a delegation of law-making powers by Parliament to an authorised body, such as a local
authority. Primary texts also include Treaties and legislative enactments of the European
Union, such as the European Convention on Human Rights, as well as other international
Treaties. Another important original source of legal rules and principles is case law. Case
law can come from the English courts and other UK courts, from the European Court of
Justice (the body empowered to decide on issues relating to European law), and courts
established to adjudicate on other international law issues, such as the European Court of
Human Rights. Secondary texts tend to explain, comment upon or critically review primary
texts. These include your various study guides, textbooks, academic treatises and journal
articles. So, primary sources are the law, secondary sources are about the law.
For any serious research study, you should rely strongly on primary sources of law.
Secondary sources such as textbooks – and especially your subject guide – will help you to
get a general picture or give you key references to follow up. But the primary sources are
the law and you need to engage with them directly.
However, other sorts of secondary sources are extremely important, especially when it
comes to writing essays: for example, legal academic articles discussing the doctrine in an
area can give you new perspectives and help you to see how arguments are constructed.
Finding the right material

A great deal of material is available – too much, you might say! The first step to controlling
quantity is to make sure that you have a reasonably narrow research question to answer.
Think back to the case of Amanda (charged under the Theft Act for taking a book) in
Section 20, Analysing facts and applying law.
How not to research: Your first idea might be to ask the question:
‘What are the defences to a charge of theft?’
However, this would be far too wide. There are many general defences available to all
or most crimes, including theft, which would not apply to the particular issue you are
researching. If you set out to search for material on this basis, you would be overwhelmed
by the huge number of cases and other materials.
Let us suppose that you respond by downloading a random selection of these cases from
the Online Library or, if you are working in a land-based library, photocopying ones that
seem interesting.
Next, you consider ways to narrow your search. You might think that the term ‘shoppers’
would be the key, perhaps searching online using the terms ‘shoppers’ AND ‘theft’ AND ‘de-
fences’.† While the technical search technique would show mastery of advanced/Boolean †
searching, it would be legally wrong-headed to use ‘shoppers’ as a search term. Defences Library.
are defined in terms of legal issues, not types of situations.
To summarise: good research techniques include:

 downloading or photocopying cases (but they should be key cases)
 considering ways of narrowing an initially wide search question
 using advanced/Boolean techniques.
Here are some poor research techniques:

 simply responding to the facts and recognition of the general area of law in framing the
initial question
 random downloading or photocopying of cases
 basing search terms on fact situations. Search terms should relate to legal issues, not types
of situations.
Let’s start again. The main problem is finding the cases that relate to your topic. Here
secondary sources, starting with your subject guide, will help.
First, consult your subject guide. This will help to clarify the legal issues that could be raised by
the facts given. This would yield the three possible lines of defence suggested in Section 20.
1 ‘I did not intend to take the book. She is claiming that she did not ‘dishonestly
I meant to buy it but I forgot.’ appropriate’ the book.
Second, your subject guide will identify key cases on the specific issues. Make sure you read
these first. Some may be in your study pack. Others you will need to search for. Here your
secondary sources guide you towards appropriate cases, but you are strongly urged to
‘skim and scan’† cases for relevance and importance. Use a case’s headnote to give you an †
initial idea of its relevance and importance in deciding whether you need to be reading it in techniques, for an explanation of
detail (and citing it). What if you find a case hundreds of pages long that is not mentioned ‘skimming’ and ‘scanning’.
in your subject guide or textbook? Is this a wonderful research discovery or a waste of
time? Do you need to skim or scan to decide? (Probably not.)
When you are looking for legal academic articles on a topic, you will probably – again – find
a wealth of material. How should you narrow them down? First of all, if an article is recom-
mended reading in the subject guide, then read it. If it is recommended – or given a lot of
attention – in a recommended text, then track it down. To go back to the reading exercise
on the textbook in Elements of the law of contract (McKendrick, discussed in Section 17 on
Reading techniques), reading Atiyah or Fried would obviously be a next step in an essay or
research project on the theory of the law of contract.
Second, make sure any such article is discussing the relevant jurisdiction (i.e. England
& Wales), unless you specifically want to make a comparison with a different approach
adopted elsewhere or you are dealing with very abstract questions.
How relevant is it to your topic? Skimming and scanning are – again – the reading tech-
niques to use here. Do not waste time and effort on a text that simply is not on your topic.
Your teachers or examiners may be impressed that you have made the effort to find the ar-
ticle, but then feel pity that you worked so hard on something that is completely irrelevant.
Use sources in a critical and reflective way

Is it possible to be critical of primary sources? To some extent. There may be errors. Often,
in your subject guides, you will find criticism of statutes for not being worded very clearly.
There may also be examples of cases that were decided wrongly, according to subsequent
judicial decisions or legal academic commentators.
It is easier to be critical of secondary sources. Authors of textbooks or articles may have a lim-
ited or biased view. More likely, what will be at stake is identifying weaknesses in arguments.† †
arguments, and Section 19,
3 Decide the line of your argument…

Yes, you will often be asked to make an argument, assess arguments and decide between
alternatives. Essay questions frequently take the form of offering a quotation that expresses
an opinion and your job will ultimately be to agree or disagree. First of all, you need to
analyse exactly what the quotation is actually saying – i.e. what opinion is being expressed,
what argument is being put, whether explicitly or implicitly. In answering the question, you
first need to present the view expressed in the quotation. Usually this means putting the
argument in a more expanded way (‘spell out’ the points) before you go on to assess the
premises and conclusions in a systematic way.
Conventions of referencing
In academic writing you will need to refer to and quote from other people – from text-
books, articles, and so on. The key thing is to quote, cite and refer accurately. This is so that
other writers can consult the sources and decide whether they agree with them – and with
you. It is equally important to give the original writers credit for the work they have done.
In legal writing, it is also important to cite cases and statutes. The conventions of case cita-
tion were given in Section 16, Reading cases.
Reasons for referencing/citing

You should always give references where you expressly or impliedly draw on the work of
another person or where you are citing for authority.† †
conduct and University rules.
Academics are collectively building an edifice of learning. Each person contributes building
blocks to this edifice – through articles, research, chapters in books, dissertations, web
sites and so on. Everyone builds on these pieces of work when creating their own academic
building blocks.
There is therefore an ethical necessity to give accurate acknowledgment to other people’s

work when you are drawing on it. Citation and referencing is a fundamental part of show-
ing how the academic community builds up its knowledge and understanding through an
ever-accumulating body of work. Here citing/referencing sources shows the reliability and
authority that you are building on. It shows that you are deploying sound ideas from other
people involved in academic and/or legal argumentation and debate. This is academically
respectable, because it helps to build a more solid intellectual structure. It also allows you
to say precisely where you might differ, and what you base your disagreement on.
In legal writing, citation of cases and legislation is also very much about reliability and
authority – especially legal authority. If you are making a statement about what the law on
a particular issue is, you need to back it up. If you are discussing controversial issues, where
lines of authority differ (i.e. some cases run along one line of interpretation and others
along another), then you need to offer at least some examples.
Academic writing generally has another reason for referencing, and that is acknowledg-
ment of originality: when you make a point that is not original to you – not something you
have thought of yourself – then you need to make a reference to the author or authors you
are drawing on. Failing to do this is plagiarism.
So, you should always give a reference to the source when you:
 quote directly from a writer’s text (put the quoted passage in quotation marks and give the
page number in the reference)
 paraphrase a writer’s text. That is, if you rephrase their points (summarising), then, even
though you have put their thoughts in different words, you still need to provide a reference
to the source, including the page number(s)
 refer to other people’s ideas or theories, even without paraphrasing (e.g. ‘Fried’s revival of
classical will theory’). Here it will usually be sufficient just to give the name of the book or
article and not a page number
 provide facts, figures, statistics, research findings, or examples from anywhere.
The content of an academic citation

The minimum information required in a citation is:
 the author’s name (and the name of the editors if the work you are citing is included in a
collection of works by several authors)
 the title of the article or book
 the page number (or chapter number if the reference cannot be precisely located to par-
ticular page numbers – often the case when you are drawing on an idea or concept)
 the name of the publisher and the date of the publication. References to books (whether
edited volumes or single authored) should include the place of publication
 the URL (web address), in the case of publications on the internet.
Styles of referencing: footnotes and endnotes

It is essential that you adopt acceptable styles of academic referencing. There are two
systems: footnotes or endnotes. You will find that most modern computer word-process-
ing programmes include a footnoting or endnoting option, which you can access by click-
ing the insert menu.
Footnotes
In the text put a number (usually superscript or it may be in brackets) immediately next to
the text you are referencing.
Put the footnote at the bottom of the same page as the text referenced.
Footnoted references contain all the necessary bibliographical information in the footnote.
Therefore you do not need a separate bibliography at the end of your essay.
The general style is:

Author (surname + first name or initials), Title (+ subtitle), edition, editor, translator, etc.
as appropriate, (place of publication: publisher, year of publication), page number(s) if
relevant.
(You will come across many variations on this.)
Here is a rather complicated footnote:

1. D.S.J. Clegg, ‘Where now after Maastricht?’ (1994) 19 EL Rev 884 (reprinted in Stephen
Broadstairs, Law and Integration in Europe (Oxford: Hart Publishing, 1985) p.85).
Endnotes – referencing at the end of the text

This style of referencing is sometimes called the ‘Harvard’ system, or the ‘author:date’
system. It is more common in social sciences publications.
Endnoted references, where they appear in the text, include the author’s name, date and
page number in brackets in the body of the text, immediately following the part of the text
that expressly or impliedly draws upon the work of another. They appear as follows:
(Davies 1953:14)
Clearly, not all the information is included in the body of the text, so the remainder goes in
a full bibliography that will appear at the end of the piece of academic writing. A bibliogra-
phy entry will appear as follows:
Davies, E. (1953) The mythology of feminism. (London: Menton Books.)
24 Writing essays
Essay writing is an important skill that allows you to enter into general discussions of legal
doctrine or policy, drawing together your knowledge of law and focusing on specific issues,
as informed by wider reading.
In examinations, essay questions may occur in different styles, such as:

 a direct question
 a quotation that you are asked to critically evaluate
 a quotation followed by a specific question.
‘Discuss’ is an instruction that often appears. In an essay question you may take it as mean-
ing ‘critically evaluate’.
All essays employ a deceptively simple structure:

 introduction
 main central discussion setting up arguments and proofs
 conclusion.
In the examination situation, many students opt for as many essay questions as possible,
thinking that they are easier than problem questions. This is not true.† You need to have †
However, it is true that,
read a good number of cases as well as some legal academic articles or chapters in books depending on your learning
for an essay question. You need similar skills of analysis and argument construction – as you preferences (see Section 4), you
can see by comparing the discussion of the postal rule (from the law of contract) in this may, as an individual, find either
section and the next section. Indeed, you should revise topics from both an essay and essays or problems easier.
a problem question perspective.
Writing an essay addressing a quotation

This is such a common type of essay question that it is a useful place to start.
A quotation may be real or hypothetical.

 A real quotation will cite the source, naming at least the person who made the statement,
and sometimes giving more detail.
Where the source is a well known writer on doctrine in an area of law, your background
knowledge of the subject should provide you with a good starting point, as you will be
familiar with his or her stance.
Where the quotation is a citation from a judge in a particular case, then, again, your back-
ground knowledge will give you important knowledge about viewpoints that he or she is
likely to adopt.
 A hypothetical quotation is simply a debating point or argumentative claim, stated as a

proposition. Here you simply address the point.
In either case, quotations are selected or constructed as strong statements, often pro-
vocative statements. Especially with a hypothetical quotation, it may be a half-truth or
an incomplete statement of the law. In cases such as this, the examiner is waiting to see
whether you will answer robustly, saying ‘No! This proposition is inaccurate, because it
takes no account of X, Y, Z’, or whether you will tamely try to agree with the proposition.
Even where the quotation is less provocative, you should assume that you are expected to
discuss it ‘critically’, assessing the case for and against.
Sometimes a quotation will not so much advocate one position as express a conflict or ten-
sion or dilemma. For example, should the criminal justice system be oriented to efficient
control of crime, even at the cost of civil liberties? Or (similar dilemma, in a wider – Public
law – context), do concerns with security and anti-terrorism outweigh the right to a fair
trial? Then deal with the two sides of the dilemma. If you can illustrate this by showing that
the case law reflects the dilemma, this shows considerable sophistication.
There is a huge difference between:

 a confused answer that just says the cases are inconsistent (this usually goes with giving
too many details about their facts); and
 showing that there is a systematic difference between cases following one principle (for
example, civil liberties) and cases following the other principle or policy (security or crime
control).
What if you find yourself agreeing 100 per cent with the quotation? Check that you have
not missed something. But if you are sure that the quotation cannot be faulted, treat it as
though the question read:
Explain to me why, in the light of the authorities, this proposition can be said to be an
accurate statement of the law; and if you want a really good mark tell me what arguments
have been – or might have been – advanced against the proposition and what are the
weaknesses of those arguments.
Analyse the quotation

Always analyse any question that you are offered for a writing task. With a quota-
tion, you already know (see above) that it has been chosen or designed by the ex-
aminers to be a strong statement articulating a particular position on an issue (or a
dilemma/conflict/tension).
 You should start your essay by simply outlining what the quotation means, and what impli-
cations it has for the area of law in question.
 Describe what issue – or issues – are being addressed.
 Language may present difficulties, especially in the case of real quotations. You ought to be
familiar with the legal terminology involved, but the mode of expression may be flowery,
ornate and old-fashioned.† If this is a homework assignment, look such words up and add †
See Section 14, Reading law texts.
them to your vocabulary card. Inside the examination: Guess. You can work out a lot from
the context of the overall quotation if you concentrate.
 Explain what position is being taken by the author of the quote (real or hypothetical). If a
conflict or dilemma is presented, then articulate both sides.
Address the quotation

 The quotation will obviously relate to a specific area. But many students make the mistake
of just discussing everything they know about the issues in that area.
 Instead, treat the quote as opening a debate – with you.
 It is not a totally normal debate because first you have to fill in the arguments supporting
the quotation, drawing on primary and secondary sources of law to presented reasoned
arguments.† But then you can… †
 Respond! Present counter-arguments, marshal evidence (usually cases), test the argu- arguments, and Section 19,
ments. Assessing arguments.
Come out on one side or the other in your conclusion. Be critical.
Public law example

The Public law subject guide Chapter 4: ‘The separation of powers’ contains the following
sample examination question:

Question 1 ‘Our unwritten constitution rests upon a separation of powers. It also rests
upon a mutual recognition of those powers. It is for Parliament to make new laws and to
amend old laws, including the common law. It is for the courts to interpret and enforce the
law. It is for the government to govern within the law. Each in its own sphere is supreme.’
(Lord Donaldson of Lymington MR in M v Home Office and Another (1994).) Discuss.
Question 2 Critically assess the view, expressed by Walter Bagehot in the nineteenth cen-
tury, that the ‘near fusion’ of the executive and legislature represents the ‘efficient secret’
Analyse the quotation: What is Lord Donaldson saying? There are two aspects to it.
Advice on answering the questions
Question 1 This quotation spans all three of the major institutions of the state, and
requires an analysis of the role and powers of each. It also calls for a critical examination
of the degree of separation between them. Start by explaining what the separation of
powers means and explain its constitutional importance – perhaps pointing out that it is a
concept of great antiquity. The next task is to explain briefly the role of each of the major
institutions of the state: the personnel and functions of each. The next – and major – task is
to analyse the relationships between the institutions and explain the extent to which they
overlap in personnel and functions.
First, he speaks of the separation of †

Parliament Courts Government
powers. This is a crucial theme in
constitutional law, representing the
ideal model of how government Makes new laws and Interpret and Governs within
should work. Obviously you will learn amends old ones enforce the law the law
about this in the Public law course but
Lord Donaldson virtually spells it out
here: Each in its own sphere is supreme
†
Alternative terms are:
Second, Lord Donaldson speaks of ‘mutual recognition’ of these powers: courts, parliament parliament: legislature
and government all recognise each other’s powers, he claims, thus reinforcing the idea that courts: judiciary
‘each in its own sphere is supreme’ – because each keeps within its proper boundaries. government: executive.
In both instances, you might also note that Lord Donaldson is speaking in an affirmative
way: this is clearly his view of things as they ought to be and also how they actually are.
Look up the advice on answering this question in the Public law subject guide†. †
You can find it easily on the Laws
VLE:
Much of this advice will naturally be beyond your knowledge before you have studied the
http://vle.londonexternal.ac.uk/
course, but when you do study it, you will discover that the UK far from matches up to this
laws/gateway.nsf.
ideal model of the separation of powers.
Locate the list of ‘modules’ (right
However, apply the general advice above. Begin by elaborating on (spelling out) the quota- hand side of the page), click
tion: in other words describe in more detail the model of separation of powers. Since all Public law, then – in the left hand
three institutions are mentioned, the
��
authors of the guide advise that they
��
should be given margin, choose ‘subject guide’,
equal weight. and, within that, Chapter 4.
Go straight to the end. (Sample
Failure to give appropriate weight to the various elements or issues raised by a question examination questions, when
is a common reason why students do not perform well in examinations. offered, are always located at the
end of chapters.)
But then, turning to the realities of how the roles and powers of these institutions overlap
and intersect (as you will have studied in the course) – here is where you might begin to
criticise Lord Donaldson’s view as rather idealistic. Yes, he is a judge and, yes, his views are
open to criticism – by you. Do this carefully and systematically and you will do well.

‘Reluctance to offer a critical perspective’ is a common reason why students do not

perform well in examinations.

Overall, the term ‘separation’ of powers gives the overarching theme: Why are they sup-
posed to be separate in the ideal model? – and how are they not separate in practice?
Why is this a problem? Don’t hesitate to spell out the political consequences and conflicts
about power – does government (the executive) have too much power over the other
spheres? Are the courts (the judiciary) merely bound to follow what Parliament lays down?
– remember debates touched on earlier† about the significance of judicial powers of †
interpreting law. arguments, and Section 19,
Answering the question

Year after year, examiners’ reports note that the major reason for failure or poor marks is
failure to answer the question. This is especially true of essay questions.
Do what the question asks you to do.
If it says ‘support your answer with reference to case law’, you can be confident that failing
to refer to suitable cases will earn you a low mark. For example, a question on a recent
European Union law examination paper stated: ‘Making reference to the case law of the
domestic courts and the European Court of Justice, assess the view that…’. This means you
need to bring in both English and EU cases.† †
You can find the Post-Examination
papers and examiners’ reports at:
resources/laws/llb_diplaw/
exam_reps_papers_07.shtml.
It is true that questions are not always explicit. But ‘smart’ answers do not win points. A
question in the Jurisprudence and legal theory exam asked: ‘Has Weber contributed to your
understanding of law?’ Just saying ‘Yes’ (or more probably ‘No’) will not do. The question
is inviting you to explain what Weber’s contribution to the understanding of law has been
(or might have been). In particular, it is asking for your personal view. Tell the examiners
what Weber’s work has meant to your understanding. You can also take a negative view
– explaining in what areas Weber’s views have not helped you. Weber was a very famous
figure, but that does not mean that students are obliged to agree with him.
Terms used in essay questions

In order to answer the question, you need to understand it – and not just the major legal
terms. Study the meaning of these ‘question’ terms. They are instructions from the examin-
ers telling you what they want you to do.
Analyse Break down the elements of an argument, quotation or case, perhaps with critical
evaluation. This may amount to the same as ‘discuss’.
Compare Examine qualities, or characteristics, to discover resemblances. ‘Compare’ is usu-

ally stated as ‘compare with’: you are to emphasise similarities, although differences may
be mentioned. In an examination you would never find a question that asked for this and
nothing more.
Contrast Stress dissimilarities or differences between things, qualities, events, or prob-

lems. In an examination you would never find a question that asked for this and nothing
more.
Consider (or ‘critically consider’). Think about (critically) and discuss.
Criticise Express your judgment of correctness or merit. Discuss the limitations and good
points or contributions of the plan or work in question.
Define Definitions call for concise, clear, authoritative meanings. Details are not required
but limitations of the definition should be briefly cited. In an examination you would never
find a question that asked for this and nothing more.
Discuss This term, which appears often in essay questions, directs you to examine, analyse
carefully, and present pros and cons regarding the problems or items involved. This type of
question calls for a complete and detailed answer.
Distinguish between This is like ‘compare and contrast’, except that you are primarily
looking for differences, not similarities. In an examination you would never find a question
that asked for this and nothing more.
Evaluate In an evaluation question you are typically expected to choose between two op-
posing lines of argument. You are expected to present a careful appraisal of each position,
including both advantages and limitations. Evaluation implies authoritative and, to a lesser
degree, personal appraisal, coming down on one side or the other overall.
Explain In explanatory answers it is imperative that you clarify and interpret the material
you present. In such an answer it is best to state the ‘how or why’, reconcile any differences
in opinion or experimental results, and, where possible, state causes. The aim is to make
plain the conditions that give rise to whatever you are examining. You may be asked to
‘identify and explain’ or ‘explain and evaluate’.
Illustrate As a supplement to the main question, you may be asked to illustrate your
answer by reference to specific examples, usually case law.
Interpret An interpretation question is similar to one requiring explanation. You are ex-
pected to translate, exemplify, solve, or comment upon the subject and usually to give your
judgment or reaction to the problem. Essentially you are being asked: ‘What does it mean?’
Justify When you are instructed to justify your answer, you must prove or show grounds
for your decisions. In such an answer, evidence should be presented in convincing form:
e.g. ‘Justify the continued existence of the royal prerogative’.
Outline An outline is organised description. You should give main points and essential
supplementary materials, omitting minor details, and present the information in a system-
atic arrangement or classification. In an examination you would never find a question that
asked for this and nothing more.
Support Like ‘illustrate’, a question that requires support is one which demands confirma-
tion or verification. In such discussions you should establish something with certainty by
evaluating and citing cases or arguments from legal academic sources.
Relate or What is the relation between…? When answering a question that asks you to
show the relationship between two things, your answer should emphasise connections
and associations in descriptive form and also offer deeper explanatory links.
Review A review implies a critical examination. You should analyse briefly and comment
upon the major points of the problem, in an organised sequence. In an examination you
would never find a question that asked for this and nothing more.
State In questions which direct you to specify, give, state, or present, you are called upon
to express the main points in brief, clear, narrative form. Details, and usually illustrations or
examples, may be omitted. In an examination you would never find a question that asked
for this and nothing more.
Summarise When you are asked to summarise something, you should give the main
points or facts in condensed form. In an examination you would never find a question that
asked for this and nothing more.
Trace When a question asks you to trace a course of events, you are to give a narrative of
historical sequence, or development from the point of origin. Such a question might typi-
cally come up as a way of asking about law reform, e.g. why a particular reform was
introduced. If so, you would usually be expected to go on to assess its success in practice.
Other terms you may find:

 Critically assess…
 To what extent has…
 In what sense, if at all, is it correct to say…
 What is meant by…
 Write a critical assessment of…
 Explain and reconcile X and Y…
A worked example from the law of contract

As a way of getting a very clear grip on the issues posed in a question, a tree diagram can be
a very useful form of initial analysis. Such a diagram could be used in planning the answer
to an examination question, whether in advance or in the examination hall. Then, when †
Section 25 tackles this same
you have the structure clear, you can fill in the content.
area of law, but as a problem
The question here is:† question.
Should the postal rule be abolished as an unworkable exception to the general rule concerning acceptance?
Defines the Your conclusion Is it unworkable? What is the general rule?

areas. Why has to deal with When might it be
do we have this specific unworkable?
a postal rule? issue.

The key word here is ‘unworkable’. Of course, you must have the basic knowledge about
what the general rule is and in what sense the postal rule is an exception, and also the
reason or reasons why this exception has been made. But everything in the question turns
on how you deal with the issue of what ‘unworkable’ could mean (there may be differ-
ent senses: unworkable for whom?). And then you need to take a position for or against
abolishing it on the grounds of unworkability.
In approaching this essay you should have a view, because the question is asking for your
considered opinion. Your view could be one of the following:
 The postal rule should not be abolished as an unworkable exception…
 The postal rule should be abolished as an unworkable exception…
 The postal rule should be abolished, not as an unworkable exception but as an outdated
exception.
Sometimes it can be acceptable to say that the evidence is divided and it may be a good idea
to take some course of action. This essay is not the place to take this approach as the main
part of your response, as there is quite a lot of agreement that the postal rule is unworkable
in today’s society. However, after giving the dominant view, you might wish to go on to
offer some support. On the other hand, you may take the view that the postal rule should be
retained as long as a significant proportion of the population remain obliged to rely
on postal, rather than instantaneous electronic, communications. To support this argument,
you would need to give a reliable indication of what proportion of the population this is.
Here is a tree diagram analysis of essay question 5:
‘The postal rule should be abolished as an unworkable exception to the general rule’
Introduction
Set out the general rule and the
postal rule exception. Discuss shape
of essay and signal conclusion
Main text, arguments and proofs
It is outdated. Overtaken by see: Gardner ‘Trashing with Trollope:

technological advances a deconstruction of the postal rules in
contract’ (1992) 12 OJLS 170
It can lead to unjust results
Gives rise to practical difficulties
What happens when a letter is lost?

It has been continually
narrowed What happens about withdrawing
acceptance?
It can lead to absurd

results Byrne v Van Tienhoven 1880
It is unpopular with
the judiciary
The instantaneous/
non-instantaneous
distinction is difficult Henthorn v Fraser 1892
to substanciate
Rule not used in other

Conclusion common law states
Common problems in writing essays/answering essay questions in

examinations
Here are the two most common problems in answering essay questions in examinations.
The wholly indiscriminate answer

In other words: ‘Here is everything I know about…the topic. But examiners never ask ques-
tions along the lines ‘Write down everything you know about this area of law.’ Questions
are always directed and focused. They are always specific. Consider this question from the
law of contract:

‘Damages are not an adequate remedy for a breach of contract.’ Discuss.† †

Chapter 16 of the Elements of the
law of contract subject guide.
The answer also involves issues
What the examiners do not want to hear about is: from a later chapter on equitable
 everything you can think of about breach of contract remedies.
 everything you can think of about damages.
Like many of the examples in this section, you may not yet be familiar with the specific
subject matter, depending on where you are in your studies. But, equally, you can still map
out a shape for your answer simply on the basis of English language comprehension:
1 Describe how damages function as a remedy for breach of contract.
2 Identify the problems with this, specifically why damages might not be adequate.
3 Are there any other remedies available? (This would take you to restitution – discussed
near the end of the course on Elements of the law of contract.)
‘Here is my answer, whatever the question’

In other words: the model answer, the stock answer, the answer that you learned off by
heart, the answer that your teacher may have told you should be used whenever a question
on a particular topic appears in an examination question.
To repeat: questions are always directed and focused. They are always specific. Consider
the odds against the answer that you have memorised actually answering the specific
question on the examination paper.
Failing to answer the actual examination question – and providing instead some rote-
memorised stuff – is a major cause of poor examination performance.
25 Dealing with problem questions

A problem question sets out a factual situation, and may simply ask you discuss the issues
arising in the particular area of law. Alternatively, the instruction may be to advise one or
more party in the scenario.
Problem questions in examinations are set mainly in substantive law courses where the
entire course revolves around cases, common law and legislation.
What type of skills do problem questions test?

A problem question will be testing several of the following:
 the current state of your knowledge of the law in a given area
 the current state of your ability to use a factual situation and apply the law to it
 the current state of your ability to apply case law and legislation
 the current state of your memory (remembering the names, courts and dates of relevant
cases, and the name, date, sections, and subsections of relevant legislation)
 the current state of your understanding of the relationship between cases and statutes and
†
the methods of arguing according to the doctrine of precedent † The doctrine of precedent is
 your ability to organise the facts in a problem and systematically apply the law to those central to understanding case
facts law interpretation in common
law systems. It is explained in
 your ability to identify the legal issue or issues raised by the factual scenario
 your knowledge of the grey areas of the law surrounding the cases decided in the area reasoning and institutions.
under consideration
 your knowledge of available defences
 your knowledge of any more specific interpretational issues arising in the law under
consideration
 your ability to construct an argument.
Above all, a problem question is looking for an ability to extract legal issues from fact situa-
tions and apply the law to them, as explained in Section 20, Analysing facts and applying law.
However, in addition, you will be expected to discuss situations where there are conditions
of doubt, whether about facts, legal issues, or interpretation of the law.
Some examples of problem questions

In the course of your studies you should take every available opportunity to practise
dealing with problem questions. Here are some examples drawn from current or earlier
versions of your subject guides.

Problem question 1 (Criminal law)

James, aged 14, was timorous† because he had been battered as a child. Keith, a house †
Timorous = anxious, fearful. From
father in the home where James lived, had threatened James with a beating on a few occa- Latin timor = fear.
sion when James had misbehaved. Such threats usually caused James to withdraw inside
himself, unable to speak with the other children. Sometimes James was unable to go out of
doors for a number of days until his confidence returned.
One evening, James was playing his record player in his bedroom and the noise could be
heard throughout the house. Keith went to James’ room to remonstrate with him: James
was startled and, believing Keith was going to hit him, stabbed Keith with a penknife which
at the time James had been using to sharpen a pencil. Keith put up his arm to protect
himself from further stabbing, and James, who was completely terrified, jumped out of the
window and broke a leg.
Advise James and Keith. How would your advice differ if James had been taking unpre-
scribed (i.e. illegal or illegally obtained) drugs at the time of the incident?

Problem question 2 (Elements of the law of contract)

Alice wrote to Bill, offering to sell him a block of shares in Utopia Ltd. In her letter, which ar-
rived on Tuesday, Alice asked Bill ‘to let me know by next Saturday’. On Thursday Bill posted
a reply accepting the offer. At 6 pm on Friday he changed his mind and telephoned Alice.
Alice was not there but her telephone answering machine recorded Bill’s message stating
that he wished to withdraw his acceptance.
On Monday Alice opened Bill’s letter, which arrived that morning, and then played back the
message on the machine.
Advise Alice.
General advice on dealing with problem questions

Answering a problem question can be divided into two stages.
Stage one: analyse the question

1 Identify the facts given:
 do not deal with any facts not given
 do not invent or imagine facts
 identify any inconsistencies.
2 Consider the laws that may apply.

 Identify the relevant legislation and case law. Is there any relevant European law on the
issue? The sources of law most often used will vary according to the particular subject.
3 With reference to the relevant sources, identify the legal issues raised by the facts as given:
 identify primary and secondary issues
 identify any defences that are relevant
 identify any interpretational issues known to circulate around the application of the law
to the issues
 you might want to draw a rough tree diagram of the issues
 quickly list the facts under the issues.
Stage two: decide the outcome of the questions asked

Problem questions may ask you:
(a) to discuss the legal issues raised In (a) you raise all relevant issues without
privileging one party.
(b) to advise one or more of the parties In (b) you raise all relevant issues but focus
your argument on the effect of those issues
on the party (or parties) you are asked to
advise. This includes discussing in detail the
likely chances of the other party (or parties)
being successful.
(c) to do either (a) or (b) above and also In (c) you extend your answer as given by
then offer you a one-line change of facts applying the new facts to the answer you
and ask you if your answer would be any have given. The new part will invariably say
different if these new facts applied. ‘would your answer be any different if…’

Let us now take Problem question 2 (above) as an example.
Answering problem question 2

†
Problem question 2 above is a Sample examination question in Chapter 2 of the Elements See also Section 8, Using your
of the law of contract subject guide. Chapter 2 concerns ‘Offer and acceptance’ and so our subject guides and study packs.
approach to the problem question should be, first, to situate it in the wider context.†
In the box opposite you will find general General advice on offer and acceptance
advice on this area of law being given by the The detailed rules of offer and acceptance provide a ready source
authors of the subject guide. This advice is of problems and difficulties on which an examiner can draw. Some
directing the student to key areas that are examples of these are:
likely to come up in examinations. Where
 Is a statement an offer or an invitation to treat?
such advice is offered, please do not ignore
it. You are being given invaluable guidance  Is there a counter-offer or is it merely an enquiry?
on the type of areas within a topic that can  Does a posted acceptance fall outside the postal rule?
come up in an exam.  Was the offeror or offeree free to have second thoughts?
In terms of exam preparation, then, you  When is a telephone call recorded on an answering machine
should make sure you have a clear under- actually received?
standing of the issues identified by the  When are the contents of an email communicated?
questions listed in the box.
These difficulties can also be combined with each other in the
The authors of the guide then go on to say same problem question
(emphasis added):
There are also several everyday transactions where the precise contractual analysis is not im-
mediately apparent – the motorist filling up with petrol (gas), the passenger riding on a bus,
the tourist buying a ticket for the Underground (subway) from a machine and so on. The fact
that some of these problems are not covered by [legal] authority does not make them any less
attractive to an examiner – indeed, the opposite might well be the case.
The key to most problems of offer and acceptance is the idea that the law should give
effect to actual communication wherever possible.
Here the authors are telling you that often an examiner will create a question – and prob-
ably a problem question – in an area that is uncertain in law. This may be surprising if you
expect examinations to be all about stating ‘what the law says’. Here you are being explicitly
told that examiners want you to consider and resolve areas of confusion or uncertainty in
law, where the issues are not clear or the cases run in divergent directions. Addressing areas
of uncertainty will of course prove very quickly whether a student understands that topic!
Bearing all of this in mind, let us turn our attention to problem question 2 and apply the
general advice above.
Analyse the question

It is important to break the question down into its constituent issues.
If your revision† has been competent you will know the main issues that can arise (as well †
Your revision is your ‘database’,
as the relevant cases and statutes). If you are answering a problem question in an examina- but a database is useless if you
tion, remember that the quality of your answer will depend strongly on the quality of set up it wrongly with missing
your revision. information or do not use it
properly.
A quick read through should tell you that this question revolves around whether there is a
contract. The answer to that depends on whether there has been:
 an offer
 an acceptance.
Annotate the question.† The next thing you can do is annotate your problem question to †
By ‘annotate’ here, we mean
identify the issues, and this has been done below. simply make diagrams (especially
tree diagrams), filling in key points.
In an exam, time is of the essence and many students therefore launch straight into an-
swering the question by discussing the first things mentioned in the question. Sometimes
this works out, but not often. You have to construct an argument in answer to the issues
raised and since the question says: ‘Advise Alice’, approach the issues from the point of
view of the likelyhood of her success.
This requires thought and time; planning in an exam is never time wasted if it is done
efficiently.† †
See Section 32, Preparing for
examinations.
Annotating problem question 2

The annotations suggested here arise from the guidance in the subject guide on answering
the question.
A signal that postal rules may

be invoked Alice wrote to Bill, offering to sell him a block of shares in Here is a prospective offer
Utopia Ltd. In her letter, which arrived on Tuesday, Alice
Time scales can be very asked Bill ‘to let me know by next Saturday’. On Thursday
important Bill posted a reply accepting the offer. At 6 pm on Friday
Here is the postal rule in he changed his mind and telephoned Alice. Alice was not This time could be important.
operation there but her telephone answering machine recorded It is the only specific clock time
Bill’s message stating that he wished to withdraw his mentioned. Why?
The revocation acceptance. Are we to take it that it is after
What is the current thought On Monday Alice opened Bill’s letter, which arrived that office hours?
on the role of answer machine morning, and then played back the message on the If it is to be tied to Saturday
in the conclusion of contracts? machine. acceptance it is of course Friday.
Does this make a difference?
You are considering each of these issues with a view to determining whether or not a
Bill’s acceptance letter opened
contract has been formed. Remember that, in advising Alice, you also need to discuss
(but it’s Monday) before the
the likely chances of the other party being successful. Therefore you need to consider
message is heard on the answer
that Bill will need to argue that he is not obliged to purchase the shares because no
machine. Is Saturday’s request an
contract has been formed. The issues are:
override of postal rule?
 (a) What is the effect of Alice writing to Bill to offer to sell him shares?
 (b) What is the effect of Alice’s stipulation as to the time the offer is open?
 (c) What is the effect of Bill’s posting a reply?
 (d) What is the effect of Bill’s change of mind? Is there effective communication when a
message is left on an answering machine?
 (e) Which of Bill’s two communications is determinative?
When the issues are listed in this way, it is apparent that the biggest issue is whether or not a
contract has been formed. This is dependent upon whether Alice’s offer has been accepted.
This, in turn, depends upon whether Bill has communicated his acceptance or his first
rejection. More precisely, the real problem is which is first communicated and is therefore
binding: Bill’s acceptance or rejection of the offer?
Of course, in an examination you need to spot these matters in minutes! However,

although identification of the relevant issues is of vital importance, this alone is not the
answer to a problem question. If you recall the discussion in Section 20 on Analysing facts
and applying law, you will realise that we need to construct a final argument, or a range of
arguments made up of propositions backed by proofs.
In relation to problem question 2, the basis of our proposition and the proofs for our
propositions on the key issues of acceptance and communication are contained in case
law, which gives us the following:
Proposition: Acceptance must be communicated.

Supporting authority: Feldhouse v Bindley (1862)† †
Warning: Knowing the name of
the case is just the beginning:
Proposition: However, there is an exception to the general rule that states
you also need to know the
that when it is reasonable for an acceptance to be put into the
outcome and the reasoning!
post a contract is concluded at the time of posting.
Supporting authority for the general rule: Adams v Linsell (1818)
for the exception: Household Fire insurance v Grant (1879)
Proposition: The postal rule as a means of acceptance can be overridden by the

express wish of the offeror for communication in a certain way.
Supporting authority: Holwell Securities v Hughes (1974)
This problem question involves an answering machine, which has not so far been decided
upon in cases; however there is another proposition that may be of use:
Proposition: The postal rule is confined to non-instantaneous communication.

Supporting authority: Brinkibon Ltd v Stahag Stahl (1980)
Proposition: Telephoning is an instantaneous communication, therefore

acceptance has to be communicated.
Supporting authority: Entores Ltd v Milnes Far East Corporation (1955)
All the decisions in boxes about the problem question should flow from your initial iden-
tification of issues when you did a rough analysis of the case. The decisions laid out above
should be primarily ‘mental calculations’.
We have taken several pages to outline this, but in the exam you need to be at this point
after five minutes or so. Which is why your revision needs to be thorough and ordered so
that you can retrieve it quickly.
In the exam you could consider just jotting down the evidence for and against the proposi-
tion to reason to an answer in a simple summary table, as shown below.
There is a contract There is not a contract
1 The offer (i) It is open until Saturday. (i) It is open until Saturday.
(ii) The wording of the offer determines acceptance.

In this case it must be made known to Alice (she says
‘let me know’).
2 Acceptance (ii) Posted Thursday and therefore under the postal

rule it is effective on Thursday.
(iii) If postal rule does not apply the general rule is (iii) Posted Thursday but because of 1(ii) not covered
that acceptance must be communicated and that by the postal rule, as it was not made known to Alice.
was done on Monday morning.
(iv) Can Alice say that as it was not communicated (iv) The general rule is that acceptance must be
by Saturday there is no contract? communicated, and that was done on Monday
morning, after the offer lapsed on Saturday.
(v) Can Bill say that the offer only stayed (v) Can Bill say that the offer only stayed open until
open until Saturday and therefore the acceptance Saturday and therefore the acceptance was out of
was out of time, being communicated on Monday? time, being communicated on Monday?
3 Rejection/ ... ...

withdrawal of
acceptance
(vi) If the postal rule applies, it may be displaced (vi) If the postal rule applies it does not matter if the
where a rejection of an offer (or the withdrawal of rejection/withdrawal of the acceptance was received
an acceptance) is actually communicated to the at 6 pm Friday as the acceptance was complete on
offeror before the posted acceptance reaches him. Thursday.
In such a circumstance, the reasonable expectation
of the offeror is that no contract has been formed.
(vii) If the postal rule does not apply, can it (vii) Can it be said that the answering machine
be said that the answering machine message was message left at 6 pm was communication of
sufficient communication of the acceptance? rejection/withdrawal of the acceptance?
(viii) If it can be argued that a telephone message

on an answer machine is sufficient, then is it not
outside working hours to leave a revocation at 6
pm on a Friday evening? This would depend on
working hours for that office and how well those
hours were known.
Of course, this way of laying out the argument contains no supporting authority. You need
to align the various propositions with case law.
In addition you need to decide how to lay it out. When drafting your answer in an exam
you should use rough notes and abbreviations in your draft. Then you read it as you quickly
write† your actual answer. The reason for setting it out again is that students often just put †
Make sure your writing is legible,
in the above propositions without reference to cases, or to texts. That is inadequate and because if the examiner cannot
will lead to a fail. It is not a legal answer backed by law, or a good answer backed by law and read your work, he or she may
texts. You then need to align the cases. For our current purposes we will just set out the simply fail it.
diagram again, filling in more detail – see below. This would form an excellent draft for you
to look at as you write out your answer.
1 The offer General rule: an offer must be communicated. General rule: an offer must be communicated.
(i) It is open until Saturday. (i) It is open until Saturday.
(ii) The wording of the offer determines acceptance. (ii) The wording of the offer determines acceptance.
In this case it must be made known to Alice. In this case it must be made known to Alice.
Comment Alice’s stipulation that the offer is open for one Alice asked Bill to let her know by Saturday – and
from the week is not binding (apply the criteria in Offord v this ‘let me know’ means that there must be actual
subject guide Davies) unless there is a separate binding contract knowledge of his acceptance – that it must really
to hold the offer open. There does not appear to be be communicated. This necessity for actual
such a separate binding agreement. communication means that Bill’s acceptance is not
…an offer within the criteria of Gibson v Manchester good until Monday when Alice actually opens the
City Council and Storer v Manchester City Council. You letter. To apply this counter argument, one needs
should outline these criteria and apply them to the to consider the criteria set out in Holwell Securities v
facts – sometimes the designation of an ‘offer’ in a Hughes. One might also note that since that decision,
problem or in everyday life turns out not to be an courts are reluctant to extend the ambit of the postal
offer in the legal sense. acceptance rule.
2 Acceptance Must be communicated. An exception is the postal Must be communicated. An exception is the postal
rule – see Adams v Lindsell (1818). rule – Adams v Lindsell (1818).
(i) Posted Thursday and therefore under the postal (i) Posted Thursday but because of 1(ii) above not
rules effective Thursday. covered by the postal rule.
Comment Because Bill posts his letter of acceptance, we need In addition, given the reservations of the court in
from the to consider whether or not the postal acceptance Holwell Securities v Hughes, it seems unlikely that
subject guide rules apply. Consider the criteria in Household Fire a court would rely upon the postal acceptance
Insurance v Grant. Does the case apply here? In the rule, an unpopular exception to the necessity for
circumstances, it probably does. Alice has initiated communication, to produce an absurd result. No
communications by post and thus probably contract could be formed until Alice opened
contemplates that Bill will respond by post. In these the letter. Since she received the rejection at almost
circumstances, the acceptance is good when Bill the same time, she is no worse off (see reasoning
posts the letter – it is at this point that a contract is above) by not having a contract.
formed. It does not matter that the letter does not
arrive until Monday (at which point the offer will
have expired, given Alice’s stipulation as to the time
period).
(ii) If the postal rule does not apply the general rule (ii) The general rule is that acceptance must be
is that acceptance must be communicated, and communicated and that was done on Monday
that was done on Monday morning. morning, after the offer lapsed on Saturday.
(iii) Can Alice say that as it was not communicated (iii) Can Bill say that the offer only stayed open until
by Saturday there is no contract? Saturday and therefore the acceptance was out of
time, being communicated on Monday?
(iv) Can Bill say that the offer only stayed open until
Saturday and therefore the acceptance was out of
time, being communicated on Monday?
3 Rejection/ Must be communicated. It was not communicated Must be communicated. It was not communicated
withdrawal of until Monday. until Monday after acceptance was communicated
acceptance by the opening of the letter.
(i) If the postal rule applies it does not matter if the (iii) If the postal rule applies it does not matter if the
rejection/withdrawal of acceptance was received rejection/withdrawal of acceptance was received
at 6 pm Friday as the acceptance was complete on at 6 pm Friday as the acceptance was complete on
Thursday, and rejection/withdrawal of acceptance Thursday.
must be communicated before the contract is
concluded.
(ii) If the postal rule does not apply can it be (iv) Can it be said that the answering machine
said that the answering machine message was message at 6 pm on Friday was communication of
sufficient communication of rejection/withdrawal rejection/withdrawal of acceptance?
of acceptance?
Comment You need to consider the application of the rules

from the for instantaneous communications in Entores v Miles
subject guide Far East Corp and Brinkibon v Stahag Stahl. Should
the communication made by telephone be deemed
to have been the first received? If so, there is no
contract.
(iii) If it can be argued that a telephone message (iii) If it can be argued that a telephone message
on an answer machine is sufficient, then is it on an answering machine is sufficient then is it
not outside working hours to leave a rejection/ not outside working hours to leave a rejection/
withdrawal of acceptance at 6 pm on a Friday withdrawal of acceptance at 6 pm on a Friday? This
evening? This would depend on working hours for would depend on working hours for that office and
that office and how well those hours were known. how well those hours were known.
Comment ‘Bill changes his mind.’

from the There is no authority as to the effect of his change of mind. Two possible outcomes exist. If the postal
subject guide acceptance rule applies, then a contract has been formed and Bill’s later change of mind cannot
upset this arrangement. However, this seems a somewhat absurd result, since Alice learns almost
simultaneously of the acceptance and the rejection. Bill has attempted to reject the offer by a quicker
form of communication than the post. In these circumstances, you could apply the reasoning of Dunmore
v Alexander and state that no contract has been formed between the parties.
For the reasons stated above, the rejection should be determinative. Accordingly, no contract arises in
this situation and Bill is not obliged to buy the shares in Utopia Ltd.
Note: It is always an excellent idea to memorise the dates of key cases and it is essential to
memorise the level of court† deciding them. †
The significance of this is
explained in the course on
Check through the cases here: do you know the dates of all, even roughly, and the level of
Common law reasoning and
court the case was decided in? Do you know if any judgments in these cases are considered
institutions.
particularly important?
Here is some more advice from examiners concerning problem questions:

Students must remember to advise on all of the issues expressly raised and to address
each of the parties in the problem scenario.

Problem questions expect you to apply your knowledge of legal rules on a number of issues
in each question, including alternatives, arising from the fact situation presented.
In a Contract question on the existence of a contract, for example, the facts may suggest
arguments based on mistake as well as on misrepresentation – bring them both in. Or in an
offer-and-acceptance problem it may be debatable whether the first letter is an offer or an
invitation to treat. You may conclude that it is an offer but, if so, you also need to consider
what will happen if the other alternative (invitation to treat) is preferred. You can then deal
with this briefly:
However, if contrary to my submission, A’s letter is found to be an invitation to treat, then
the position will be as follows…
Part 2 – The current law of homicide, paragraphs 2.1–2.20
Part 4 – The defects of the current law, paragraphs 4.1–4.7 and 4.38–4.41
Part 5 – A new framework for the law of homicide, paragraphs 5.1–5.5.
a How does the Law Commission propose that the criminal law relating to homicide be
restructured?
page 148 b How would first degree murder be defined? University of London External System
c Why did the Commission decide against restricting first degree murder to premeditated
killings?
In Criminal law, the list of alternative possibilities may be quite long. Consider this sample
d How
question would
from second7degree
Chapter of themurder belaw
Criminal defined?
subject guide.
e How would manslaughter be defined?
Sample examination question

Nicola wanted to frighten Susan and so poured some petrol through her letterbox and ignit-
ed it. The fire spread throughout the house. Susan, who was asleep in bed, breathed in the
fumes. She was taken, unconscious, to hospital and placed on a life support machine. After a
few days the doctors diagnosed that as a result of breathing in the fumes, she was suffering
from irreversible brain stem death and switched off the machine. Susan was declared dead.
Discuss Nicola’s criminal liability.
Which of these offences may Nicola have committed?

 murder
 grievous bodily harm
 manslaughter
 damaging or destroying property by fire (arson)?
In your answer, you will need to discuss Nicola’s potential criminal liability for each of these
– and you will need to link the possibilities together. If her mens rea suggests that murder
will not be charged, then manslaughter must be considered, along with the role that an act
of arson might or might not play in this.

Students often fail to adequately answer questions that invite an alternative solution.

Problem questions often end by asking: ‘how would your advice differ, if at all, if…?’
Many candidates lose marks by ignoring this part of the question.
The ‘what if’ question should be approached as if it carries as much weight as the main part
of the question.
Part 6
Developing and demonstrating skills
Contents
26 The Laws Skills Portfolio and the Qualifying Law Degree . . . . . . . . . 151
27 Legal research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
28 Oral communication skills . . . . . . . . . . . . . . . . . . . . . . . 161
29 Developing your IT skills . . . . . . . . . . . . . . . . . . . . . . . . 167
30 Team working . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

Learning skills for law 6 Developing and demonstrating skills page 151
26 The Laws Skills Portfolio and the Qualifying Law Degree

†
In Section 2 of this guide, the skills requirements for a Qualifying Law Degree were dis- See the diagram in
cussed. Most skills are demonstrated simply by taking the subject examinations.† Section 2, Skills requirements
and a Qualifying Law Degree.
In addition, the Common law reasoning and institutions examination now has a two-part
compulsory question† on legal research. The first part asks about the online legal research †
Note: This question is
exercises, while the second asks you about a small piece of research that you have under- compulsory for all students
taken in the course of the year. registered with effect from
September 2007, whether or not
The Laws Skills Portfolio they are seeking a QLD.
The final component of skills demonstration for a QLD is the Laws Skills Portfolio (or simply
‘skills portfolio’), which you will complete in your final year of study.
There are two ways of undertaking the skills portfolio. On Skills Option One, you choose
to do a new Dissertation subject option† (being introduced in 2008), which will involve †
The Dissertation option counts as
significant research and submission of a dissertation. a substantive subject (i.e. gains
a mark like all other options).
On the alternative route – Skills Option Two – you do not take the Dissertation option
Undertaking the Dissertation and
but instead you will undertake a small scale research project.
other activities also generates
The Dissertation is a final year option only. Similarly, the research project will not be under- evidence for the purposes of the
taken until the student’s final year. skills portfolio.
For either of these skills options, you will, in addition:

 perform a range of activities focused around the dissertation or project
 create a skills portfolio and submit this online
 sit a short portfolio examination.† †
For further clarification, see the
2007–08 LLB Regulations at:
The skills portfolio and examination do not receive a mark that plays a role in your degree
classification. Instead they are assessed on a satisfactory/not satisfactory basis and this is
current_students/general_
recorded on the Degree Certificate Transcript Supplement.
resources/regulations/regs_pdfs/
The Laws Skills Portfolio is supported with extensive guidance in its own right. Therefore, regs_0708/E9360llb_regs07_web.
remarks made in this Learning skills for law guide are not intended to be a substitute for pdf.
that. Rather, the aim here is to provide some sense of what will be involved and also to
give some guidance on developing the specific skills that are demonstrated in the skills
portfolio. In fact, you will find that many of them – especially legal research – have already
been discussed extensively earlier in this guide.
The Laws Skills Portfolio has been carefully designed to enable you to demonstrate the
skills listed below. It operates through a set of structured activities built around the task of
undertaking a dissertation or short research project in law, as described above.
For the portfolio, you need to produce a short report, and provide evidence showing how
you went about identifying and researching that project or dissertation. Through this proc-
ess you will see for yourself – and explain to others – how you have developed five basic
skills areas:
 Learning independently – by showing that you can think of an interesting question of
your own to research, and, through your own skills and knowledge, construct a legally
plausible answer.† †
See Section 13, Becoming an
 Doing research – by identifying and using research techniques and strategies that enable autonomous learner.
you to find, analyse and record information appropriate to your chosen topic.
 Communicating information and ideas about your research orally to others – for example,
by leading a discussion or making a formal presentation on your research.
 Working effectively in teams – for example, by taking part in a real or virtual team who will
provide evaluation and feedback on aspects of your research.
 Using information technology – to undertake legal research, to communicate with
students and/or teachers, and to produce electronic documents and upload them to a
web-based learning environment.
Skills outcomes
More formally stated, the specific outcomes are as follows:
You should be able to: Main skills areas:
1 Identify the principal issues for research in a (1) Legal sources and research
legal problem. (2) Autonomy and the ability to learn
2 Locate and retrieve relevant information on
a specified topic using appropriate primary
and secondary paper sources, and electronic
sources including the world-wide web.
3 Use sources in a critical and reflective way.
4 With limited guidance, plan, research and
produce an original report, some of which
may address areas of law already studied,
using a range of standard legal sources.
5 Make an accurate assessment of your
progress and quality of work on a task and,
using feedback, identify areas in which
changes and help are needed.
6 Word-process the text of a short report, (3) Information technology skills
with footnotes, using appropriate formatting (You will also develop and demonstrate
tools, and communicate and exchange IT skills through outcomes 2 and 4, and
documents by e-mail. probably other outcomes.)
7 Briefly and accurately present and discuss (4) Oral communication
orally in English legal information from
standard textbooks, leading cases or statutes
in a way that responds relevantly to the
question asked or topic set and is understood
by the audience.
8 Work as an active and effective member of a (5) Team working
team that accomplishes broadly what it sets
out to achieve.
Outcome 1
Identify principal issues for
research in legal problem
Outcome 2
Locating and retrieving
Outcome 8
relevant information using
Teamwork primary and secondary paper
and electronic sources
Project report
Outcome 4
Outcome 7 Planning, researching and Outcome 3
Oral communication producing an original report Using sources in a critical
including PowerPoint and reflective way
Outcome 5
Outcome 6 Making accurate
IT skills, i.e. word processing assessment of progress and
and exchanging documents quality of work, and using
While this Learning skills for law guide by email feedback
offers some advice on meeting the re-
quirements of the Laws Skills Portfolio,
it is not intended to be a definitive statement.
Students will need to consult the separate Laws Programme
guide to the Laws Skills Portfolio at the appropriate time.
27 Legal research Material here is derived from

the Laws Programme guide to
While you will be undertaking a research project for the Laws Skills Portfolio, or undertak- small scale research project
ing the Dissertation subject option, you should realise that, by the time you do this in your and associated Skills Portfolio
final year, you will already have had considerable experience in conducting legal research prepared by Professor Julian
as part of your everyday studies and in the process of writing essays and dealing with Webb and Dr David Baume.
problem questions. Legal research is a normal part of legal studies – although it is difficult Sample report by Agnieszka
to demonstrate in conventional examinations. Dziemba.
It is important to know how to locate relevant source materials efficiently, and you must
be able to summarise materials, compare materials, classify them and evaluate them. You
need to be able to judge how relevant located material is for the work you are doing.
†
Also, remember that you will have undertaken a small research essay in preparation This question is compulsory for
for the compulsory legal research part of the Common law reasoning and institutions all students registered with effect
examination.† from September 2007, whether
or not they are seeking a QLD.
One main difference in the case of the research project or dissertation is that you must
devise your own topic.† †
Note that, in conducting this
research, you will be using not
The skills portfolio outcomes for legal research are as follows:
only legal research skills but also
1 Identify the principal issues for research in a legal problem. IT skills and your ability as an
2 Locate and retrieve relevant information on a specified topic using appropriate primary autonomous learner.
and secondary paper sources, and electronic sources including the world-wide web.
3 Use sources in a critical and reflective way.
4 With limited guidance, plan, research and produce an original report, some of which may
address areas of law already studied, using a range of standard legal sources.
5 Make an accurate assessment of your progress and quality of work on a task and, using
feedback, identify areas in which changes and help are needed.
6 Word-process the text of a short report, with footnotes, using appropriate formatting tools,
and communicate and exchange documents by e-mail.
Keeping a research record

It is vital to bear in mind that the research project for the Laws Skills Portfolio is about
research skills – the process more than the product. Therefore it is vital to keep track of the
decisions you make and the reasons for them, and also some of your experiences in search-
ing for sources and the basis for selecting some and rejecting others. This is primarily what
your research report (see below) will be about.† †
See also Section 11, Making and
using notes.
For those undertaking the Dissertation option, you do receive a mark for the ‘product’ – the
dissertation as a substantive piece of work. But the research skills that you have deployed
in performing that research are captured – for those of you seeking a Qualifying Law Degree
– by doing the Laws Skills Portfolio.
Devising a research question

Any piece of research starts with a research question. It is called a research question for the
seemingly obvious reason that it is a question to which you intend to find the answer, and
this process requires you to do your own research.
So, you need to consider the difference between a research topic and research question. A
research topic is just a general area – such as ‘defences to murder’ or ‘the jury’ or ‘breach of
contract’ or ‘separation of powers’ – whereas a research question asks something specific.
A topic does not have a potential answer but a research question. In working towards
finding a research question, thinking about possible research topics is a very useful starting
point, but you need to go further than that.
A well-formed research question is likely to start with one of just six questioning or ‘inter-
rogatory’ words, or their equivalent:
 Who?
 What?
 When?
 Where?
 Why?
 How?
These six key words together are often identified as ‘5WH’. Memorise them – it will only
take you a few seconds. They are very powerful research tools.
Each of them can perform a different function in the context of legal research. Let us
explore each in turn:
‘Who?’ questions, which look rather simple and descriptive, can be used to focus usefully
on problems of power or authority. For example, ‘Who appoints the judges?’ can raise the
question about the exercise of that particular power in theory and in reality. Some ‘who’
questions by themselves are sometimes not particularly powerful, but they can lead us onto
some interesting further issues about how power is exercised and why, for what purpose.
‘What?’ questions often focus on processes or developments – for example, on what is hap-
pening or what might happen in the future in an area of law. ‘What?’ questions can also just
ask what the law is on a topic. This may seem too obvious to count as a research question;
but in areas where the law is uncertain, or where it changes rapidly, the ‘What?’ question
can be an important one to ask.
‘When?’ and ‘How?’ questions are a common part of legal analysis, and perform similar
functions. Whenever we are trying to understand the scope and application of the law, or
considering the ways in which law gives effect to government policy, we must consider the
circumstances in which the law operates – when and how it will apply in different factual
situations. Another variant on the ‘How?’ question involves asking ‘How much?’. You need
to be quite careful about asking ‘how much?’ questions, because they may require very
specific data, or even new original research, to produce an answer.
‘Where?’ questions tend to be the least useful in formulating legal research topics. They
tend to be descriptive. Of course, in actually doing research the ‘where’ questions can be
very important, e.g., in thinking about the location of sources (‘where could I find statistics
showing changes in the numbers of law firms operating in England and Wales over the last
five years?’).
‘Why?’ questions, like ‘How?’ questions, are significant in exercising skills of analysis and
evaluation. A question like ‘Should English law allow same-sex marriages?’ is implicitly a
‘why’ question. You are really asking why the law should advance one policy, or take one
approach, rather than another. Likewise, when we do comparisons between legal princi-
ples in different legal systems, or when we look at the ways in which the law on a topic has
changed over the years, we usually want to go beyond mere description of what happened:
we want to know why those changes took place, or how local legal cultures have differ-
ently influenced the shape and direction of the law.
Do all research questions have to begin with a 5WH word?

No. 5WH is a good way of getting started. It will often help you focus on things that really
are questions and help you move beyond simply describing what the law is. But there are
other words and phrases that can have the same effect as a 5WH word, and may fit better in
a research question, such as:
 to what extent…
 in what circumstances…
 should…
Examples of research topics

Here is an example of a research question based on the Legal Services Act 2007, which for
the first time allows non-lawyers to own law firms in England and Wales.
 To what extent has the introduction of non-lawyer ownership of law firms by the Legal
Services Act 2007 reduced access to justice?
‘To what extent…’ is, of course, a kind of ‘how much?’ question. It requires you to evaluate
change, perhaps even to find ways of quantifying the effects of that change. For example, if
you could show that, say, 200 small law firms have closed in the year following the introduc-
tion of the reforms as opposed to only 67 in the previous year, that would provide at least an
indication that something has changed in the economic environment of those firms.
Here are some other examples of research questions from published journal articles:
 In ‘Inducing breach of contract: one tort or two?’ (2004) 63 (1) CLJ† 132, Andrew Simester †
CLJ stands for Cambridge Law
and Winnie Chan begin by presenting two scenarios that are said to constitute different Journal.
ways of inducing another person to breach their contract with a third party – usually to
the benefit of the person encouraging or causing the breach. They then summarise their
research question thus:
Are there…two different species of the tort of inducing breach of contract, or are these
scenarios merely different instances of a unitary tort?
This is a clear research question. The answer is clearly of legal importance. It may look as if
it will lead to a one-word answer – either ‘yes’ or ‘no’! In fact, of course, it leads to an inter-
esting exploration of cases and judgments before reaching a reasoned conclusion.
 Similarly, in another article published in the same year, Donald McRae’s opening paragraph
states:
The WTO [World Trade Organization] dispute settlement system seems a permanent part
of the international economic law landscape, and it is difficult to conceive of the multi-
lateral trading system without it. But is its future secure? The adoption of binding dispute
settlement by the WTO was not inevitable; it resulted from a particular congruence of
circumstances. Why, then, should the continuation of WTO dispute settlement be taken
for granted?
Here McRae sets the context for a research question, which he formulates twice (in slightly
different language) in that paragraph. In fact in this instance his straightforward research
question is neatly captured by the title of his paper: ‘What is the future of WTO dispute
settlement?’ (2004) 7 JIEL 3.† †
Use the Journal Finder facility
within the Online Library to find
How to choose a research topic out what JIEL stands for.
First, make sure you choose something interesting rather than easy. Identifying a topic that
is controversial provides scope for argument, especially looking at issues from more than
one point of view.
For example, Andrew Simester and Winnie Chan (see above) say in their opening
paragraph:
But the rationale for this tort is controversial, and its legitimacy has been doubted by a
number of commentators.
Such topics will normally be quite challenging. Do not choose a topic that is beyond your
abilities (and remember that the Laws Skills Portfolio is marked on a satisfactory/unsatisfac-
tory basis only).† †
Remember: the new Dissertation
option will be available from 2008.
Second, the research must be feasible. What material is available?
For example, let us look again at the topic concerning the Legal Services Act 2007. Above
we said: ‘if you could show that, say, 200 small law firms closed in the year following the
introduction of the reforms as opposed to only 67 in the previous year…’. But can you show
this? It is not impossible, but where would you get the information? Try using Google to
search for small law firms + England + closure (and closed). You might find many articles on
small law firms but not much on the exact question. Do you change your topic to suit the
material? Then you have to decide which you are interested in: legal services/legal aid or
small law firms.
So, it is clear that you should avoid choosing a topic where there might not be enough
material available to research. But the same goes for the opposite problem: if you define
a question that is so general that it is going to yield a huge quantity of material, you could
end up with an impossible task on your hands. For example, if you were interested in the
research topic of defences to a charge of murder, this would involve a huge number of
cases. Even narrowing the topic to provocation would still be involve massive amounts of
material. Thus in moving from the idea of a research topic to formulating a research ques-
tion, bear in mind the quantity of material that you can feasibly deal with. For example,
take the question ‘Would the recommendations of the 2006 Law Commission Report on
Murder, Manslaughter and Infanticide improve the position of battered wives who kill their
husbands and seek to use the defence of provocation?’† While there would still be a lot of †
Discussed in Section 18, Analysing
material to process – including getting to grips with the Law Commission Report itself, this arguments.
would be a potentially manageable research question.
Third, find a topic that you are genuinely interested in. After all, you will be spending many
hours working on it! The danger to guard against here is that, if you already have strong
views on the issue, you may let your personal views distort your assessment of the argu-
ments and sources.
Identify the principal issues for research

What is involved here is essentially analysis – breaking down your research question into
the different parts that need to be investigated. Indeed, since you have devised the ques-
tion yourself, you will already have been engaged in preliminary analysis – so this stage
should be relatively straightforward.† †
See Part 4, Analytical and critical
abilities.
‘Principal issues for research’ means ‘How does the overall research question break down
into sub-questions that I need to gather information about?’ In other words, the purpose of
analysing the research question is to drive or refine your research activities.
One of the examples given above concerned the law of tort – but you do not need to know
anything about tort law to appreciate the structure of the question:
‘Are there…two different species of the tort of inducing breach of contract, or are these
scenarios merely different instances of a unitary tort?’
The question poses an either/or – two possibilities that will each be explored. The authors say:
First, we explore the possibility that current law implicitly recognises two different types
of inducing breach of contract, because it imposes different criteria for the two forms of
the action.
Second, we consider the justifying rationale behind each of the two forms, by investigat-
ing what harm, and what wrong, the torts protect against.
Finally, we discuss how the different justifying rationales behind each form of the tort
might help to explain some of their doctrinal aspects, including the unfortunate distinction
that is sometimes drawn in the cases between ‘direct’ and ‘indirect’ modes of prevention.
Locate and retrieve relevant information

Throughout this guide, extensive advice has been given on finding cases, statutes and other
legal material, both primary and secondary sources.
To refresh your memory, see:

 Section 9 Using Online resources
 Section 15 Reading legislation
 Section 16 Reading cases
 Section 21 Academic writing.
Undertaking the online legal research exercises† will also build your abilities. †
Online legal information services are used more and more widely, and you need to be
resources/laws/exercises/index.
competent and feel comfortable using them.
shtml
But lawyers still need to be confident and capable when using paper-based sources, and
this will be the case for many years to come. Different paper sources require quite different
research techniques, both from each other and from the search techniques used with
electronic resources.
It may be tempting to rely on secondary sources – such as textbooks or the subject guides
– to give you information on cases and statutes. It may seem quicker to do so. But using
primary sources, like all of the skills in your portfolio, is a core professional skill, and one
that the University assesses. Such secondary sources give you a useful starting point, direct-
ing you in terms of what to read and helping you to select priorities. But they should not be
used as a substitute for reading primary sources.
Other types of secondary sources – legal academic articles on doctrine and policy or Law
Commission reports – are a different matter. Here you are strongly advised to consult ap-
propriate secondary sources that may deepen your understanding.
Continuing the tort example discussed above, the research strategy might look something
like this:
The general question

 Starting with the overall question, search for leading cases on the tort of inducing breach of
contract. Use your subject guide and textbook as a starting point, check Recent developments
in law, see which cases are referred to in other cases.
 Similarly find the leading writers on this subject. Again the subject guide and textbook will
provide a starting point. By looking at one key commentator, you will be able to find out
who the other major players are in this area: by noting whom this writer refers to.
At this point you will invariably have found too much. Download or photocopy a few key
texts and keep notes of others that look potentially useful. You can return to this big list
when your research questions have become more refined by generating the ‘primary issue’
subquestions.
Primary issue subquestions

 The authors chose to look for different criteria being used in the case law. This is not a mat-
ter of finding new cases but carefully reading the ones already collected.
 The second and third areas of focus are doctrinal. The first concentrates on the specific
question of harms, while the second looks at the distinction sometimes made between di-
rect and indirect modes of prevention. Each of these might involve further searching, now
on very specific issues. It is possible that there are articles written exactly on these topics,
or it might involve scan reading† of writing on wider topics. †
For ‘scan reading’ see Section 17,
Reading techniques.
Use sources in a critical and reflective way

Being critical and reflective is not some mysterious abstract skill. It is a technique that can
be learned.† Being critical and reflective starts with questions, such as: †
See Part 4, Analytical and critical
 How do the authors justify their view? abilities.
 What other productive ways are there to approach this issue?

 How might these judgments be interpreted to mean something different?
 When might it be appropriate to depart from this principle?
 Why is this a good – or bad – policy for the courts to adopt?
Activity 27.1
As we say many times in this guide, you learn by practice and feedback, and by undertaking
tasks of steadily increasing complexity.
Suppose you work with a group of other law students. They are less experienced than you. You
have been asked to advise them on where and how they can locate primary sources of law.
Develop a short spoken response, and if possible make a recording of it.
Gauging your progress

One of the skills requirements is that you assess your progress and the quality of your work
on a particular task. A number of activities can help you to achieve this, including:
 describing in your project/dissertation report how you refined and developed your
research topic
 comparing different drafts of your report, and explaining what you have changed and why
 obtaining feedback on your research question and project report and reflecting upon the
comments you receive.
Getting help from others

Examples of support from other students might include:
 offering and receiving feedback on draft research questions
 sharing brief presentations with other students about your progress, or the problems you
have encountered in doing research
 circulating project plans or outlines (in paper or electronically) for comments and discussion.† †
Subject to avoidance of
If you are keeping a learning journal, ensure that any such activities are properly docu- plagiarism – see Section 12 on
mented (e.g., by taking notes of meetings, making copies of email correspondence, scan- Plagiarism, ethical conduct and
ning paper documents, etc.). University rules and Section
23, Academic writing – you can
These documents can provide evidence of team working and other skills to support your support, and be supported by,
portfolio claims, and, by making the collaborative elements of your work visible to the as- other students in developing
sessors, they should help to show the assessors that you have not colluded with anyone in your project. See also Section 30,
the production of your portfolio. Team working.
Writing your project report

When the time comes to write up your project report,† you must consult the guidance †
Everything said here about a
documents on the Laws Skills Portfolio, which will give you precise information as to what ‘project report’ applies equally
is required. Here we will simply give you an overall sense of the expectations. to the report that a Dissertation
option student would write for
The purpose of the report is to describe your research activities, and in a way that allows
the Laws Skills Portfolio.
you to claim that you have met the skills outcomes.
As emphasised above, process is more important than product: it is research skills that are
emphasised more than the content of your answer to the question. Or, to put it a different
way, while the content is assessed, it is always assessed in the context of research issues.
As far as content is concerned, you will be expected to include: †

An executive summary is
†
 an Executive Summary, including a brief statement of why you selected your research an overview. The purpose of
question an executive summary is to
 a conclusion (around 300–400 words), summarising your answer to the question, based on summarise the key points of a
your findings. document for its readers, saving
them time and preparing them
Showing that you have met the prescribed skills outcomes will be done systematically,
for the upcoming content.
outcome by outcome, describing your research decisions and activities.
Here is an example,†where the research question was: †

This relates to skills outcome 2:
Does the Human Rights Act 1998 undermine the principle of Parliamentary sovereignty? Locate and retrieve relevant
information on a specified topic
I started my research into this project by looking at my subject guide and textbook on using primary and secondary
Public law, and also my legal methods textbook [Holland and Webb]. These were helpful in paper sources, and electronic
getting an initial overview of my topic and a sense of the sort of keywords I should use in sources including the world-wide
my research. web. (See page 152.)
From this preliminary reading I was also able to identify some cases, notably R v A and
Ghaidan (see the list of primary sources at the end of this report) as important to the topic.
I used LexisNexis to begin the research process properly. I chose this because it is an
extensive and powerful electronic database, containing both reported and unreported
English cases for the whole period I had to research. I needed to focus on the case law, as
it was important to see how the judges themselves described the relationship between
sovereignty and the HRA.
To do this, I tried several search terms. First I looked for all cases on ‘sovereignty and
Human Rights Act’ after 1998. This produced a case list of 133 cases. By scanning the case
list in ‘expanded view’ it was obvious that many were not really relevant to the issues I was
researching. I then tried narrowing this by adding references to ss.3, 4 and 6 of the Act, but
this only gave me one case! I had forgotten how literal LexisNexis is; instead of giving me
all the cases where one of these sections was cited, it gave me the only case it could find
where all three appeared together. I then amended the search again to look for references
to sovereignty and s.3 of the Act. This gave me a much more manageable 21 cases. Nine of
these were House of Lords decisions, which I chose to focus on as the most authoritative. A
copy of the expanded list for these nine is included in the evidence for my portfolio.
I know that there is some time delay in cases being reported by LexisNexis (and Westlaw),
so I looked on the House of Lords website at www.parliament.uk/judicial_work/judi-
cial_work.cfm to check that my search was up to date. This search brought up two possible
cases that I had not otherwise found (Jones v Ministry of Interior Al-Mamlaka Al-Arabiya AS
Saudiya (the Kingdom of Saudi Arabia) and others [2006] UKHL 26 and Regina v Immigration
Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre
and others [2004] UKHL 55). Neither of them in fact added anything of significance to my
analysis. In Jones, sovereignty was discussed in a completely different context. The main
reference to sovereignty in the European Roma Rights Centre case just approved an earlier
statement in R v Secretary of State ex parte Simms [2000] 2 AC 115.
I also used the Parliament website to locate an electronic version of the Human Rights
Act 1998 itself and to take my own copies of ss.1, 3, 4 and 6, which were the likely relevant
sections at this stage. As I read the cases it became increasingly obvious that s.3 was central
to the issue, though the argument that the Act was drafted to ensure consistency with
traditional approaches to sovereignty is to some degree reinforced by statements in ss.4(6)
and 6(2) which emphasise the distinction between judicial and law-making functions.
I worked through the other nine decisions, using either LexisNexis transcripts or paper
versions. I found these more useful than the online versions of the cases, because they
included helpful editorial material such as the headnote and a list of cases referred to.
The case list in particular was a useful additional research resource because it enabled me
to compare the authorities on which the decisions I had found were based, and let me
identify any other cases that were frequently being relied on, but had not come up as part
of my original search.
As a final check on the cases, I went through the paper indexes of the All England Law
Reports for 2006 and those available for January and February 2007 in my college library.
This search came up with the case of R (Hooper) v Secretary of State for Work and Pensions
which was again of limited assistance in this context because it only reaffirmed the argu-
ment that s.6(2) HRA was also drafted to preserve the sovereignty of Parliament.
I also did a LexisNexis journals search for ‘sovereignty’ within five words of the phrase
‘Human Rights Act’. The articles I found are listed in my bibliography. Two of these articles
were particularly helpful. Bradney reinforced the significance of Bellinger v Bellinger to my
analysis, and also introduced me to the idea of a “bi-polar sovereignty of the Crown in
Parliament and the Crown in its courts”…
As a result of this research I decided to focus my project primarily on the following cases:
 R v A (2001), Lambert (2002) and Bellinger (2003) which illustrate and discuss the different
interpretative approaches being taken by the House of Lords in compatibility cases;
 Jackson v A-G (2006), A and others (2005), Ghaidan (2004) and Ex parte Kebeline (2000) where
there is also relatively detailed discussion of sovereignty in the context of compatibility issues.

You will also need to:

 make a list of all primary sources used, i.e. cases, statutes etc.
 make a bibliography identifying secondary sources: books, articles and internet sources
read in the research process and drawn upon in the final analysis
 collect together other documents, such as saved Westlaw or LexisNexis searches, feedback
from peers or tutors on your research question, email chains, and any other documents
which help to illustrate or authenticate the research process you have described in the
research report.
While this Learning skills for law guide offers some advice on meeting the requirements
of the Laws Skills Portfolio, it is not intended to be a definitive statement. Students will
need to consult the separate Laws Programme Guide to the Laws Skills Portfolio at the
appropriate time.
28 Oral communication skills

Legal practice, whether courtroom work or office work, requires an ability to ‘speak the
law’. Sometimes, as in the courtroom or in legal negotiations, it will be to a specialist
audience of other lawyers. Sometimes, as in meetings with clients, you need to be able to
discuss law-related matters with laypeople. Even those of you who are not thinking of go-
ing into legal practice but still want to draw upon your legal studies will need to be able to
talk about law in a variety of contexts.
The ability to express yourself clearly when discussing legal topics is a vital part of your
law studies and, if you are seeking a Qualifying Law Degree, you will need to demonstrate
your oral proficiency in discussing legal matters.† This section presents a few ideas on how †
If you are seeking a QLD, you
to improve your ability to understand and use spoken English proficiently in relation to
may make a presentation on
legal matters. It also includes a few very general remarks about oral presentations for the
your research project or
purpose of the Laws Skills Portfolio.
dissertation, in order to
demonstrate your competence
Speaking the language of law in oral communication in legal
matters. Mooting or debates may
Reading law books and writing essays and answers to problem questions builds up your also be evidence.
ability to understand and write about law. But speaking the language of law may still feel
uncomfortable. As with any language, practice is the best method of improving.
Remember that you are encountering both legal language and academic, University-level
English† at the same time, so you might think of ways of working on these separately. You †
See Section 14, Reading law texts.
will need a third capacity as well because in your future professional life, you will probably
need to be able to speak about law in a way that is intelligible to your clients or colleagues
without a legal background.
While communicating successfully with other people is the goal, you might also:
 Listen to English-language radio or television programmes, especially where there are in-
depth discussions about news, politics, books – or even law. If you watch TV courtroom or
police dramas, it can also be entertaining to spot the legal mistakes.
 Practise reading short texts out loud to yourself, perhaps a page from a law report or a
textbook. Choose a passage where an argument is being made and see if you can make it
sound like your own.
 Read out material that you have written. Does it make as much sense when you speak it as
when you read it silently? This is a good way of checking over your work and practising your
legal English at the same time.
Addressing an audience
Oral communication is ultimately about the audience – have you made yourself clear to the
person or persons listening? Have you persuaded them of your case, that your arguments† †
See Section 18, Analsying
are sound? arguments, and Section, 19,
Informal settings
An audience does not have to be formal and it might just be one person. It could be your
friends or family (try not to strain their tolerance!). Students studying at an institution
could work together in groups, taking it in turns to present legal material to each other.† †
See Section 30, Team working.
One of the interesting things about addressing an audience is that takes the focus away
from yourself and your inner thought processes. Instead you are focused on the other
person. How can you best convey what you want to say to that particular person or group?
What do they know already? What are their concerns and interests?
When you present legal ideas to others, often you discover that you have learnt a lot more
than you thought you had. It may also reveal gaps in your knowledge or understanding,
which can be very instructive. But what if your audience simply has no idea what you are
talking about? Don’t blame them! Don’t even blame it on the law – although it is certainly
true that in many, many ways the legal approach to everyday life seems to go against com-
mon sense or at least familiar ways of looking at the world. Instead, consider how you could
go back and make it clearer. Ultimately you will be the beneficiary.
Getting feedback from your audience is immensely helpful. Another idea is to make a tape
recording and listen to it later.
Addressing an audience in more formal settings

Tutorial student presentations
If you are studying at a private teaching institution, the ideal way to get regular practice
in speaking about the law is student presentations in tutorials or seminars. This practice is
very common in the University of London colleges. In each tutorial one or more students
gives a short presentation (five or ten minutes) on one of the topics being considered that
week. There may be more than one presentation, with different students addressing dif-
ferent topics. The class then asks questions – to the student(s) who made the presentation
– or comments on the topic. The teacher oversees the process and, of course, clarifies and
deepens the discussion. Presentations could take up half or more of the time allotted.
This is an ideal model because students are regarded as adult, active and responsible.
Problems with legal research may also come up (e.g. ‘How did you find that case? I couldn’t
find it when I tried to search for it on the Online Library’).
Remember:
 Your primary audience is your fellow students. Make matters clear to them. You could even
present your puzzles – this will open up discussion.
 Make use of the subject guide as your point of reference but do the Essential and Further
reading as well and make sure to read the key cases and sections of legislation.
 If it is just a five-minute presentation, don’t be overambitious. You may now be the world’s
leading expert on the question but remember that there is only so much that can be said in
a short time.
If your institution does not use student presentations, why not suggest it?
Mooting
Many private teaching institutions do have moots† and, in some countries, take part in †
The word ‘moot’ is an archaic
national mooting competitions. English language term that
originally meant ‘meeting’ (or
Mooting is based on argumentation in the appellate courts – essentially, arguing about the
sometimes ‘an attack’).
interpretation of law. (A moot is not like a trial court in that no proof of facts is involved.)
In a moot there will be student ‘barristers’ representing the two sides and presenting their
arguments before a ‘judge’. Usually there are two student barristers for each side and the
judge is the teacher who specialises in the legal topic being mooted. In national moot-
ing competitions, the judge will often be an eminent legal practitioner. Similarly, where
colleges or institutions organise their own mooting competitions, the final moot is often
presided over by a distinguished legal practitioner.
The issues set for moots will be hypothetical but they will usually be controversial and
†
require a thorough knowledge of the topic as well as some intensive legal researching by Skilled use of legal precedents
the student barristers.† – which you will be learning
about in the course on Common
From the point of view of speaking the language of law, mooting provides a great opportu-
law reasoning and institutions
nity to gain a powerful fluency. What might once have seemed a bundle of disparate cases
– is fundamental to mooting. The
suddenly becomes ‘yours’ to argue with – and dispute with the other side. You will certainly
experience of researching for
improve both your fluency with the vocabulary of law and your ability to make persuasive
precedents ‘on your side’ makes
statements. Moots also familiarise you with formal modes of address to judges and fellow
the adversarial mentality of the
barristers.
common law system come alive.
Even if your institution does not have any moots, or you are studying on your own, there
are other ways of organising moots.† †
See Section 30, Team working.

Making oral presentations

An oral presentation is a formal spoken exposition made by a person to a group.
 An oral presentation is not reading out a written speech.
 An oral presentation is not reciting a speech that you have memorised word for word.
Topics
If you are making a presentation in a tutorial, this will probably be assigned to you but
would tend to be one topic of subtopic of the chapter of the subject guide that you are
studying.
If you are working with other students in an informal study group, you can work out the
topics between you – maybe focusing on areas that you collectively find more difficult.† †
See See Section 30, Team
working.
Generally scale your topic to the time available and the capacity of your audience. Don’t try
to get too complicated.
For a Laws Skills Portfolio presentation (see below) you will be discussing your project or
dissertation.
Preparation/planning
You need to consider:
1 what the topic is
2 what your key points will be
3 who the audience is (how many there will be, what sort of language they will expect, and
how much knowledge of law they already have)
4 how long you have to talk (keep it short and simple!)
5 the physical arrangements (place, time, layout, electricity supply, available software
and equipment, if you need to use it).
Terminology
In thinking about both your own mastery of the topic and your audience you should spend
some preparation time thinking about the terminology that you will be using.
Make sure you have identified all the legal vocabulary terms relevant to your topic and that
you know exactly what they mean.
But can you use these terms comfortably and fluently when you are speaking? Do you know
how to pronounce them? (There is still a lot of Legal Latin in use, for example.) Can you use
them in a variety of sentence constructions? When you are preparing your presentation,
try out some variations.
It is equally important to consider your audience’s likely familiarity with the terms you are
going to use. Are they fellow students? Your mother and her friends or work colleagues?
Your teacher? A legal practitioner?
Depending on the audience, you may need to spend more or less time explaining legal
terminology.
Notes
You will probably want to use notes to speak from – these should just be reminders.
Many people use small cards, with a different card for each major set of points.
Visual aids† †
See Section 29, Developing your
Are you going to use a PowerPoint presentation, a flipchart, video, a blackboard? This is IT skills.
especially useful if you want to present diagrams or models.
As indicated above, you need to make sure the logistics are in place for this, but more
important from the point of view of oral communication is how you structure in such visual
aids to your talk.
In the UK and the US, the use of MS PowerPoint or similar programmes to provide compu-
ter visuals is almost universal these days. While these can be very useful, for instance in
showing a list of key cases, there are also major criticisms of the way the PowerPoint format
reduces arguments and evidence to the lowest common denominator.† The criticism most †
The most consistent and
relevant to oral communication is that PowerPoint is used mainly to reassure the speaker intelligent critic is Edward
rather than enlighten the audience. Tufte, especially in his essay The
cognitive style of PowerPoint.
Structure your presentation To see his views as presented to
1 Begin by explaining what you’re going to tell them. a popular audience see: www.
2 Present your main ideas in a logical sequence. wired.com/wired/archive/11.09/
3 Use visuals to help explain. ppt1.html and www.wired.com/
wired/archive/11.09/ppt2.html.
4 Finish with a short review and summary.
5 Leave time for questions.
Using a Beginning/Middle/End structure is simple and effective. It will help you to formulate
your arguments, and help your audience to understand them.
 At the beginning: explain what you are going to be talking about, and the main points of
your argument.
 In the middle: present the main elements of your argument.
 At the end: describe your conclusions, and briefly summarise the reasons you have given in
your arguments.
The beginning and the end obviously involve the capacity to summarise, to present the
key ideas in a brief yet intelligible way. The beginning and the end can actually be the most
challenging because complexity has to be condensed and presented in simple, effective
terms appropriate to the audience.
The middle will be the largest part of your presentation, but the beginning and especially
the end may have the most communication impact.
The main part of the presentation

Be clear about your task. Are you:
1 Conveying information about what the key legal issues are in a particular area of law, or an
aspect of the legal system?
2 Ordering information into underlying themes (for example, policy issues, doctrinal de-
bates, the need for law reform)?
3 Making an overall argument for a particular approach?
You could see these as layers: while you could give a very good presentation simply on the
first (1), if you wanted to present an argument (3), you would probably need to go through
layers (1) and (2).
‘Be clear’ and ‘Keep it simple’ is advice that is always given to people making presentations.
This might be put better by saying that simplicity is an achievement. You cannot give a sim-
ple presentation until you really have a grip on what you are saying. Some professors would
say that it is only after many years that they can put the key questions in a simple manner.
So don’t feel that you have to impress by making your presentation over-complicated and
full of abstruse points.
Do give some evidence for your points (as time allows). You might list key cases and have a
more detailed discussion of one or two of them.
Order of presentation
The order of presentation does not have to be the same as the logical order. If you are mak-
ing an argument, the beginning of your talk might start with a brief mention of that.
Delivery
The success of a spoken presentation depends greatly on the way in which you deliver it:
 do not speak too quickly
 check your pronunciation
 check your ability to use meaningful and logical phrases and sentences
 speak clearly and ‘project’ your voice so that everyone present is able to hear and under-
stand you
 rehearse your presentation until you are comfortable with it.
Discussion after a presentation

When you have finished presenting, you may be very happy and relieved. But it is not over
yet! Your audience will want to ask questions. In fact, the better the presentation, the more
questions and discussion are likely to follow.
Responding to questions and comments is another test of your abilities in oral communica-
tion. In fact it is even more of a test because you will not have had the chance to practise
beforehand.
If you are confident and know your subject well, discussion should not pose a problem and
you will enjoy going into more detail or having the chance to clarify.
Hints for success

1 Rehearse your presentation.
2 Use a conversational and friendly tone.
3 Make eye contact with several members of the audience (it will make them feel that you
are talking to them personally).
4 If you choose to use visual aids, talk to your audience, not your visuals.
5 Give a summary handout after the presentation, not before. You want your audience to
be listening to you speaking.
6 Don’t think that you are finished when you have completed your presentation. The
discussion afterwards with your audience is a vital part of the process.
7 Get feedback on your performance from the audience.
Feedback or self-reflection
 Did I introduce my topic clearly and effectively?
 Did I explain the legal issue(s) I intended to discuss clearly and accurately?
 Did I conclude my presentation effectively?
 Was I able to present in fluent English without relying on a script?
 Did I demonstrate in my responses to questions that I understood the question(s) asked
and had a sufficient understanding of the topic to respond appropriately?
Now consider what steps you could take to improve your performance in any of these
areas.
Activity 28.1
This will work best if you are studying at an institution. If you are in your second year or
above in your legal studies, why not organise some presentations to the first-year stu-
dents? A good topic would be where and how they can locate primary sources of law.† †
If possible make a tape recording of it, including the questions and discussion. Library, Section 14, Reading law
texts, and Section 23, Academic
writing.

Oral communication skills and the Laws Skills Portfolio

Here are a few brief guidelines on making a presentation for the purposes of the Laws Skills
Portfolio (for a Qualifying Law Degree).
In your presentation you will be expected to demonstrate your ability to talk fluently about
a legal topic related to your project or dissertation.† †
See Section 26, The Laws Skills
Portfolio and the Qualifying Law
You might:
Degree.
 explain how you arrived at the research question, and why the answer to that question is
important as a matter of law or legal policy
or:
 identify and discuss at least one of the main findings of your research, and explain either
what changes to the law you would propose in the light of your research, or why you think
any particular change(s) would not be appropriate.
29 Developing your IT skills

Law students are expected to use and develop their IT (information technology) skills, just
as professional lawyers are. It is impossible to succeed in the modern world without the
ability to write and store text on computers, send and receive emails, download material
from remote sources, and search the internet.
No doubt you already have some significant IT skills. Here is your chance to assess them.
IT literacy
It is essential that students today get to grips with basic IT skills. From 2008, online access
is a requirement for all Laws students and will be your primary means of accessing primary
and secondary source materials.
Demonstrating IT skills is also required as part of the Laws Skills Portfolio for the Qualifying
Law Degree (see below).
Use this checklist to test your skills at the start of your studies – and then at regular
intervals.
Current abilities
(test again after 6 months)
Skill Limited Average Good Excellent
Know your way around the computer
monitor
printer
keyboard – especially keyboard layout and special

keys (e.g. Escape, Delete)
Engage in basic word processing
opening files
printing files
saving files
different file formats
basic text formatting
accessing Windows
using Windows
the mouse & double clicking
accessing the Windows File Manager
basic file management
use of directories , sub directories & folders
copying files, moving files & deleting files
continued on next page>

Current abilities
(test again after 6 months)
Skill Limited Average Good Excellent
Email basics
accessing email
downloading files from your mailbox
sending email
working with email attachments
accessing networks – basics
file servers (if appropriate)
logging-on
relevant menus
Internet basics
open and close a web browser
understand the main navigation buttons and

hyperlinks
understand what uniform resource locator (URL)

means
use bookmarks or favourites
understand what a PDF document is and how to

open it
understand the main navigation buttons and

hyperlinks
Access and understand how to use the Law

Programme e-learning software
VLE
IOLIS CD-ROM
Online Library databases

IT skills and the Laws Skills Portfolio

Working on the research for the Laws Skills Portfolio† will also demonstrate two IT skills †
See Section 26, The Laws Skills
requirements: Portfolio and the Qualifying Law
 Word-process the text of a short report, with footnotes, using appropriate formatting tools. Degree.
 Locate and retrieve relevant information on a specified topic using appropriate primary
and secondary…electronic sources including the Internet.
You also need to show competence in:

 communicating and exchanging documents by email.
Writing letters and emails

You may find it useful to consult the following advice on etiquette and standard forms
of expression.
In any writing you should keep to the basics. The rule is: Keep it short and simple.
This applies to both written and spoken communications. The more concrete and direct
your style of language, the more likely your messages are to get through clearly.
The style of written communications should vary in line with their purpose. This includes
the degree of formality.
Activity 29.1
Number these in order of formality, starting with 1 for the most formal.
Post-it note Business letter Thank you letter Email
Business report Graffiti Business memo
Begin business letters with a formal salutation:

Dear Sir / Dear Madam For people you do not know
Dear Mr/Miss/Ms/Dr Davis When you know someone’s name
Dear David For people with whom you are on more relaxed terms.
Finish the letter with ‘Yours faithfully’ (very formal, and somewhat ‘distant’) where you do
not know the name of the person you are writing to. Or use ‘Yours sincerely’ (slightly less
formal) when you do know the name of the person. In a business letter you should ex-
press yourself politely and carefully. With personal letters, of course, different rules apply.
Remember that all business letters go ‘on the record’ somewhere. People at both ends of
the correspondence will keep copies on file. Anything you say can be read by others.
What can go wrong in letters?

 errors (spelling and grammar) Wyrards Processing Ltd.
 omissions
 inappropriate use of language
 too long 29 March 2007
 too complex
 too much use of old-fashioned formulas.
Remember, too, that a certain level of polite-

ref CN2/CDR500
ness is appropriate for letters. Here is an
example of a civil letter.
An uncivil letter might simply have said ‘Dear

Sir, We will not be ordering the CDQ900 as it is
Dear Colin
unsuitable. Yours faithfully…’.
CDQ900 unit
Notice that the topic of the letter is put under
Thank you for your phone call this morning. I under-
the salutation, usually in bold or capital letters. stand that you were upset to hear that we had rejected
This makes it clear to the recipient what the let- your CDQ900 unit. We think that the unit has many
ter is going to be about (and helps filing!). positive points, but unfortunately the inability of the
CDQ900 to function in temperatures of over 33º C
makes it unsuitable for our needs.
If in future you succeed in overcoming this difficulty, we
will be interested to hear from you. I attach an
engineer’s report detailing the problems.
With best wishes
Yours sincerely,
Peter Painter
Writing emails
Emails are less formal than letters. For this reason they are often composed carelessly.
Quick typing and failing to check the text can result in many small mistakes, and sometimes
big ones. The usual problem is too much haste. Be careful with emails. Run a spell-checker
and read them through before you send them. Like letters, emails go on record (even when
we think we have deleted them).
Openings and endings can be simpler and less formal than for letters. Many emails to me
are headed ‘Hi, Howard’ or simply ‘Howard’. ‘Dear Howard’ might come from a more formal
personality!
Here is an example of a perfectly polite email.

Karen
Could you please send me a copy of the engineer’s report on the CDRQ900 so that I can
pass it on to the manufacturer. Is there anything in the report that we ought to delete?
Thanks
Peter
Academic communication
In communicating with your teachers or the University of London, it is probably best to
keep to the more formal modes of address discussed above, at least initially.
In the academic context, the title ‘Dr’ is more likely to refer to an academic doctorate such
as a PhD degree (Doctor of Philosophy) than a medical degree.
In the UK, it is quite common for lecturers and professors nowadays to be on a ‘first names’
basis with their students, at least after a while. Certainly, calling lecturers ‘sir’ or ‘ma’am’
would be regarded as very old-fashioned and more associated with school than university.
(In the days when university academics were normally addressed by their formal titles,
students were also addressed formally as Mr X or Miss Y.)
The best advice is to take your lead from your teacher: they will indicate how they wish to
be addressed.
The same protocol applies when communicating with the University.
In emails to your teachers or the University, it is preferable not to adopt an informal mode.
Especially for long-distance communication, email has virtually replaced letters and so
should be written like letters.
In letters, you should include the topic under the salutation (as with business letters), and
in emails the equivalent is a clear topic in the subject line.
You should follow through by writing as clearly as possible, keeping to the point. The ‘new
point=new paragraph rule’ applies.
Activity 29.2
What forms of address would be appropriate in writing:
 a letter to your Criminal law lecturer?
 an email to the University?
Writing a CV
A CV (Latin curriculum vitae, meaning an ‘outline of your life’) can be used for different
purposes. I once had to write one when the firm I was working for was being taken over.
The new owner wanted to know about every piece of ‘human property’ they had acquired.
This particular CV was long and detailed.
There are many web sites offering help with CVs, including this one:
www.learndirect-advice.co.uk/featured/writecv.
Most CVs are for recruitment purposes. Often you will be asked to fill in a CV form. If this is
the case, make sure you provide all the information you are asked for.
Think about a CV from the recruiter’s point of view. He or she may receive hundreds of
them. Reading through them becomes a colossal task. Therefore recruitment CVs should be
brief and ‘to the point’. For most CVs, you need to provide:
 name, address and contact details
 details of education, with most recent education first
 details of employment, with the most recent first
 other information as requested
 name and contact details of referees.
Activity 29.3
What do you think is wrong with this extract from a CV?
From April 2005 to October 2006 I worked at CCV International in an administrative capac-
ity. I was responsible for the collation of data from transport contracts.
30 Team working
Distance learning was originally designed to suit the needs of people who were isolated
from the academic environment. We often used to talk about how we would deliver study
materials to genuinely isolated students, such as lighthouse keepers.
However, although a few students may like to study in isolation, most of us do not. And it is
true that there are distinct benefits to studying with others.
What do you think these benefits might be?
One benefit may simply be that just talking through a problem with someone can go a long
way towards solving it. As the old English proverb says, ‘two heads are better than one’.
 Another member of the group may have knowledge or experience that can help you.
 Discussing a subject with others can often increase your understanding.
 Others can help you get to grips with things you find difficult.
 By helping others, you may develop your own understanding.
In fact, you might even see other students as ‘learning resources’. Here are some comments
made by students about the usefulness of working with others.† Read through them and †
Adapted from D. Rowntree
during the course of the year try to identify with some of them: Learning how to study: a guide
There’s always someone who has understood a point that I have missed and who can for students of all ages. (London:
explain it to me better than the tutor can. And I often do the same for others. Time Warner Paperbacks, 1998)
[ISBN 978-0751520880].
Whenever I have looked at an issue from every possible angle there is always someone
else who has got an alternative approach.
Just finding out that I am not the only person who is having difficulty has been a great
relief to me.
I find it useful to compare different approaches to study: how other are people timeta-
bling their study, how they tackle essays, and so on.
The commitment to talking to other students has helped me keep up with my work.
It has been very useful to compare each other’s performance on sample examination
questions.
We help each other take a broader view of the course, because we have all got our differ-
ent interests.
Revising together for the exams – that’s when it really paid off.
Working with a group of other students, either through online contacts or face-to-face, can
also give you opportunities for team working and for developing your speaking skills in law.
If you take part in a learning team, you:

 develop and share a common goal
 contribute your understanding of the problem: questions; insights and solutions
 respond to, and work to understand, others’ questions, insights and solutions. Each mem-
ber empowers the others to speak and contribute, and to consider their contributions
 are accountable to others, and they are accountable to you
 are dependent on others, and they depend on you.
You might be worried that working in a group could prove to be a waste of time. Is it pos-
sible that you could learn less in a group? It is very unlikely.

Group work
Mooting was discussed in Section 28, Oral communication skills. But you do not have to
‘moot’ in the formal way described there. Try working with a small group of other law
students, and take it in turns to speak – one of you could even act as ‘judge’ (although this
could be a bit dangerous!).
Or why not organise small study groups or discussion groups? You could meet on a regular
basis, perhaps describing a topic law or working through a tough judgment. You could also
take it in turns to speak a suitable introduction to a sample exam question, or take different
sides on a question.
Talking things through and arguing within the context of a legal question can be fun:
you will certainly improve both your vocabulary and your ability to make persuasive
statements.
For students studying on their own, why not set up an online group – a ‘virtual’ team. The
VLE suite is also a good way to ask questions and share views.
By taking part in a real or virtual team who will provide evaluation and feedback on each
other’s ideas or presentations, you will improve your knowledge base and oral skills, and
make some useful allies along the way.
Team working and the Laws Skills Portfolio

Demonstrating team-working skills is also an element of the Laws Skills Portfolio.
Specifically, you will be asked to show that you have ‘worked as an active and effective
member of a team that accomplishes broadly what it sets out to achieve’.
Probably the simplest form of teamwork to engage in with respect to the Laws Skills
Portfolio is to set up a real or virtual team who will provide evaluation and feedback on
aspects of each other’s research, such as:
 offering and receiving feedback on draft research questions
 sharing brief presentations with other students about your progress, or the problems you
have encountered in doing research
 circulating project plans or outlines (in paper or electronically) for comments and
discussion.
You will need to keep a record of team meetings and communications and also how you
took account of the feedback received – but you should also record briefly the feedback
that you gave to others.
The question is how effectively you functioned as a member of the team, not just how well
you produced your own work.
Does team working run a risk that you will fall foul of the University examination offences
concerning plagiarism or collusion? You can be assured that we shall not ask you to do
anything that is contrary to our rules.
While this Learning skills for law guide offers some advice on meeting the requirements
of the Laws Skills Portfolio, it is not intended to be a definitive statement. Students will
need to consult the separate Laws Programme Guide to the Laws Skills Portfolio at the
appropriate time.† †
See Section 12, Plagiarism,
ethical conduct and University
rules, and Section 23, Academic
writing – you can support, and be
supported by, other students in
developing your project.
Part 7
Examinations
Contents
31 Examination awareness . . . . . . . . . . . . . . . . . . . . . . . . . 177
32 Preparing for examinations . . . . . . . . . . . . . . . . . . . . . . . 183
33 Examination rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

Learning skills for law 7 Examinations page 177
31 Examination awareness
Examinations have always been at the heart of the External Undergraduate Laws
Programme. The University of London opened exams for the LLB to external students any-
where in the world in 1858. The first exams were held (in Mauritius) in 1868.
The University’s aim was to provide educational opportunities for people whose personal
circumstances did not allow them to undertake a traditional course of study at the
University. The criterion for eventual completion of the LLB is success in the exams.† †
Students registered from
September 2007 and who seek a
The University’s Laws qualifications are of the highest quality. The Statutes of the University
Qualifying Law Degree must also
expressly provide that:
satisfy the examiners of the Laws
candidates granted degrees and other awards shall have attained the same academic Skills Portfolio.
standard irrespective of mode or place of study or examination. (Statute 66(23))
Preparing for the exams externally therefore means being prepared to be judged by the
same standards as full-time students at the Colleges of the University in London. This is
what gives the Diploma in Law and LLB by external study their high reputation and prestige.
We recognise that it is difficult for students studying on their own or even at private teach-
ing institutions to meet these high standards. This part of the Learning skills for law guide
helps you to make yourself ready for the examination process.
What do examinations test?

Examinations may be looking to test a range of different skills and abilities, as shown in the
checklist below.
What do examinations test?

Highlight the answers you consider to be correct:
1 How much you can remember
2 The quality of your reasoning powers
3 How well you can analyse an examination question
4 How many cases you have memorised
5 Whether you have memorised large segments of statutes
6 Whether your knowledge of law is up to date
7 Whether you are aware of current proposals for law reform
8 How quickly – and how much – you can write in the time allowed
9 How clever you are
10 Whether you would make a good lawyer
11 How well you can argue.
1 How much you can remember

To a limited extent, examinations are indeed a test of what you can remember. As you
can only make links between the question and what you know, your knowledge base is an
important aspect of your examination performance. However, your marks will be achieved
by using your remembered information properly and applying it to the question asked.
Examiners are looking for understanding and not just surface information.
2 The quality of your reasoning powers

The examiner is extremely interested in the way you think. The examiner wants to see
you demonstrating how well you understand something by analysing and constructing
arguments and applying your knowledge to particular fact situations. The examiner wants
to see you demonstrating that you can choose appropriate cases, rules and texts from your
storehouse of knowledge and use them to back your argument.
3 How well you can analyse an examination question

Being able to take apart an examination question is vital. Analysis is an essential skill and,
without it, you will be unable to answer an examination question properly because you will
not have a grip on the questions.
You will miss issues, discuss irrelevancies or write down everything you have learnt without
customising it to suit the question asked. Examiners dislike this. Examiners want to be
assured that you know how to recognise legal issues, and that you can think, write and
construct appropriate arguments.† †
See Section 33, Examination
rules.
4 How many cases you have memorised
The common law system is a case law system, with a strong doctrine of judicial precedent.
It is therefore inevitable that most of the question papers for the LLB and the Diploma in
Law require you to demonstrate that you know how to read and apply the cases. But it is
not as simple as just memorising a lot of cases.
The examiner naturally wants you to support your legal arguments with key cases.
However, quality rather than quantity is the determining feature here. A list of cases that
are not relevant to the question in fact demonstrates a lack of understanding. So you could
actually lose marks by just ‘throwing in’ every case you can remember in the general area.
It is always a good idea to
Generally try to avoid heroic but useless feats of memory.
take a special note of any
A few leading cases, relevant to the issue and appropriately applied, argued and discussed, cases that the textbooks (or
demonstrate confident understanding and application of knowledge to the problem in your lecturers) criticise.
hand. To put it in numerical terms, it is unlikely that more than six to eight cases will be
relevant to your answer.† †
The number may be greater in
Criminal law.
How important is the full case citation?
You are not expected to give law report references. Even the date is not expected, although
you should definitely show that you know which are older or more recent cases.
What happens if your mind goes blank and you cannot remember case names even of key
cases? Do the best you can in identifying the cases you want to use to support your argu-
ments: mention key facts and the ratio decidendi. If you have really studied – and actually
read – the case and tried to understand it for yourself, the likelihood is that you will remem-
ber the name.
 Ultimately the most important thing to say about a case, apart from the ruling itself, is
which court made the decision, i.e. where the case fits in the hierarchy of authority.
 Being able to discuss dissenting judgments/opinions and obiter dicta is a bonus, but only
where relevant: try not to use these purely for decoration (to show how clever you are).
5 Whether you have memorised large segments of statutes

Just as with cases, being able to cite relevant sections from statutes will lend important
support to your arguments. Similarly, if you cannot remember the exact part, section, etc.
this is not fatal. Just try to make it clear – briefly – what you are referring to.
In many subjects you will be permitted to take statute books into the examination room.
Therefore students who write out large segments of legislation as part of their answer will
get no credit for this. It may well be that you actually spent time and effort memorising the
legislation: another heroic but useless feat of memory. The time and effort could have been
far more productively spent reading legal academic articles or law reform reports.
What is desired is that you show your understanding of what the words of the statute
actually mean, including any ambiguities or points in dispute. You should demonstrate
competence in using techniques of statutory interpretation, and illustrate your answer
with relevant cases interpreting the statute.
6 Whether your knowledge of law is up to date

At one extreme is the student who has no awareness of timelines, dates or chronology.
He/she:
 does not realise that the statute he/she is relying on has been replaced by a new one
 does not realise that new legislation has rendered obsolete some of the cases he/she is
relying on
 can discuss new legislation but has no awareness of the pre-existing legal situation.
Evidently such a student will not do well in the examinations.
At the other extreme is the student who is very keen to impress examiners by citing the
most recent cases, perhaps even a case reported in The Times on the morning of the exami-
nation. Take care.
Which of the following statements do you think is true:

 recent decisions are more important
 recent decisions are more representative of the law
 the legal value of recent decisions may not yet be clear
 the examiner will be impressed that you have read The Times.
The balanced position is that your knowledge is expected to be up to date as at 15 February

of the year of the examination. This is the cut-off date for the annual Recent developments in
law booklets, also posted on the Laws VLE.
Certainly it is true that examiners like to test students by setting questions that relate to
current cases, so make sure you read and reflect on the Recent developments publication,
which draws attention to important cases and statutory changes since the latest edition of
the subject guides were published.
7 Whether you are aware of current proposals for law reform

In all subject areas, examiners are also often interested in proposals for reform – usually
originating from the Law Commission for England and Wales.† †
www.lawcom.gov.uk
Developing awareness that new legislation is ‘in the pipeline’, and why, will give you a
good perspective on legal doctrine and policy, which will help you considerably in your
examinations.
8 How quickly – and how much – you can write in the time allowed
Part of the mastery of examination technique is being able to answer the question in the
time allowed. There is no point aiming for 20 pages in your head if you know you can only
write 4 pages per question under examination conditions. The lesson here is to practise
your writing under exam conditions, starting from the fact that you have three hours to
answer four questions.† †
See Section 32, Preparing for
examinations, for detailed advice
Three maxims are crucial:
on time management.
 You must allow time for reading the examination paper intelligently and planning your
answers. Examiners know that the
 Quantity does not necessarily mean quality. Be concise and focused. best answers are unlikely to
be the longest – so do not
 No matter how much you write in the time allowed, it is useless if it cannot be read by the
strive to ‘write a little more’.
examiner. So practise writing legibly and quickly.
The University will not – under any circumstances – make arrangement for illegible scripts
to be transcribed into a form which the examiners can read.
9 How clever you are

Examinations measure a range of skills, from memory, through rule handling to rule
application.
10 Whether you would make a good lawyer

The wider and narrower aspects of this are discussed at length below.
11 How well you can argue

This is definitely part of the test, as the competency of your argument in relation to the
question asked, measured together with the breadth of your materials, clarity and accuracy
of expression, determines your grade.
What are the examiners looking for?

The University’s law examinations are intended to test:
 whether candidates have ‘lawyer-like quality of mind’
 whether these qualities have developed to a point that can reasonably be expected at that
stage of their experience of the subject.
In other words, are you starting to think (and write) like a lawyer?
More specifically, they are looking for a range of skills:

 sustained focus on the task in hand
 correct identification of the issues raised by questions
 the support of argument by cases, relevant legislation, and articles or texts of authority
 a clearly identifiable argument
 evidence of critical thinking and understanding
 clear presentation (well structured work in paragraphs, written in sentence rather than
note form in legible handwriting)
 reference to material referred to in the course
 reference to material that demonstrates some independent research
 evidence of knowledge, understanding and appropriate application of that knowledge and
understanding to the questions asked.
So, as you can see, exams are not unknown events that cannot be planned for. On the
contrary, it is essential to plan for them well in advance.
What are lawyer-like qualities?

The primary hallmarks† of a lawyer’s approach are: †
Hallmark – a typical characteristic
 a keen desire to be both precise and concise in the use of language or feature of a person or thing
(based on the system of marking
 a sharp eye for the uncertainties and ambiguities that may remain in a much thought-over
the quality of gold and silver
text
artefacts).
 a willingness to discard irrelevant material and concentrate on what is relevant to the mat-
ter in hand.
Behind this approach lies a critical (and self-critical) turn of mind, always ready to question,
for example:
 why a particular word or phrase has been chosen in a statutory provision when others
would seem to do just as well
 whether a new decision of the courts is seeking to expand or restrict a principle for which
the previous authorities are thought to stand.
Moreover, the need for a critical approach is not limited to choice of words and the em-
phasis of your conclusions. There must also be a willingness, when necessary, to question
whether the law, though clear, fails to produce results that are desirable in terms of wider
policy or whether there are conflicts in the underlying doctrine.
†
Assessment criteria† For advice on answering essay
and problem questions, see
The LLB and Diploma in Law Regulations provide a detailed account of the assessment Section 24, Writing essays, and
criteria used by the Laws Programme markers. We strongly recommend that you consult Section 25, Dealing with problem
them. They concretise many of the comments and recommendations made in this section. questions.
The following are merely extracts, to provide a general sense.
First Class (70% +)

A first class answer has a thoughtful structure and follows a clear argument displaying
personal reflection informed by wider reading of articles and/or other commentaries and
a good grasp of detail (as evidenced by the choice of relevant examples which are well
integrated into the answer’s structure)…
and which excel in several of the following criteria:† †

You will find the full set of
 comprehensiveness and accuracy assessment criteria in the
Diploma in Law and LLB
 clarity of argument and expression
Regulations and also in the
 integration of a range of materials Student handbook.
 evidence of wider reading
 insight into the theoretical issues
 excellent and fluent use of written English containing very few, if any, grammatical errors.
Upper Second Class (60 to 69%)

An upper second class answer generally shows a sound understanding of both the basic
principles and relevant details of the law, supported by examples which are demonstrably
well understood and which are presented in a coherent and logical fashion. The answer
should be well presented and structured, display some analytical ability and contain no
major errors or omissions…
One essential aspect of an upper second class answer is that it must have competently
dealt with the question asked by the examiner.
Problem questions In addition to the above, upper second class answers to problem
questions will also satisfy the following criteria:
(i) all the major issues and most of the minor issues must have been spotted
(ii) the application of the legal rules and case law must be accurate and comprehensive
(iii) the application of the legal rules must be insightful (i.e., the candidate must demon-
strate that s/he can both distinguish cases on their facts and argue by analogy)
(iv) there should be a conclusion that summarises the legal position of the relevant parties.
Lower Second Class (50 to 59%)

A substantially correct answer which shows an understanding of the basic principles.
Lower second class answers display an acceptable level of competence, as indicated by the
following qualities:
 generally accurate
 providing an adequate answer to the question based largely on textbooks but without
evidence of much further reading
 competently presented
 no real development of arguments
 may contain a significant error or omission
 may contain some material which is not relevant to the question posed
 competent written English but may contain some grammatical errors.
Problem questions In addition to the above, lower second class answers to problem
questions will also satisfy the following criteria:
(i) most of the major issues and minor issues have been spotted
(ii) the application of the legal rules and case law is generally accurate and competent
(iii) there is a conclusion that summarises the legal position of the relevant parties.
Third Class (45 to 49%)

A basic understanding of the main issues but not coherently or correctly presented.
Such an answer:
 displays an inability to follow an argument throughout
 is poorly structured
 reveals evidence of lack of wider reading
 is descriptive only
 does not answer the question directly
 misses key points
 contains important inaccuracies
 covers material sparsely, possibly in note form
 contains assertions not supported by authority or evidence.
Problem questions In addition to the above, third class answers to problem questions
will also satisfy the following criteria:
(i) misses a relevant legal issue
(ii) fails to apply every relevant legal rule
(iii) fails to make good use of the case law
(iv) is poorly structured.
Pass (40 to 44%)

A pass represents the minimum acceptable standard for the award of a degree below the
third class category.
There is just sufficient information to indicate that the student has a general familiarity
with the subject area…
Problem questions In addition to the above, an answer worthy of a pass:

(i) misses an important legal issue
(ii) fails to apply every relevant legal rule
(iii) fails to make good use of the case law
(iv) is poorly structured.
Fail (0 to 39%)
Fails to meet the minimum requirements of the assessment criteria.
Such answers typically demonstrate one or more of the following:

 evidence of a lack of basic understanding
 many errors or omissions
 evidence of a lack of understanding or appropriate reading
 failure to answer the question posed, by, for example, answering a different question from
that set by the examiner
 disorganisation
 very poor use of English, such as poor grammar and spelling and incoherent statements
 fails to complete the examination by answering too few questions.
32 Preparing for examinations

Few students like examinations. But although there is a big debate within education about
whether examinations are a good or a bad method of assessing students, they are the
primary means of assessment that you will encounter on the University of London External
Laws Programme Diploma in Law and LLB.† †
Students seeking a Qualifying
Law Degree will also need to
Therefore you need to train yourself to be in the best frame of mind to sit the examinations.
complete a Laws Skills Portfolio.
There are strategies to taking examinations that begin with a consistent study plan for the
See Part 6 of this guide.
year. Revision is only as good as the basic studying that you did, because you are revising
what you have already studied and understood. So the first point to note is that the founda-
tion for good exam results is built by your approach to studying throughout the year.
Examiners realise that examinations place pressure on students, and the ability to deal with
this pressure is a skill you need to work on. Exams require you to display your knowledge in
a specific area on a specific day at a specific time – and within specific time limits – which is
why it is often said that exams require you to perform just as someone performs in other
areas such as sport or dance or singing. It does not matter, for the purposes of the exam
grade, how good you are before and after exams. All that counts is what happens during
the exam.
That fact naturally causes pressure. Everything rests on your performance on the day. You
need therefore to get in training and practise, defuse excessive stress, remain in good
health, work consistently and develop a good examination strategy that works for the
person you are. It’s also a good idea to face your fears – if any – about failing the exam head
on. What happens if you fail? Well, life goes on, and you will plan for when you will take the
exam for a second time.
You need to carefully plan your revision time and use it efficiently and effectively. If you
pace yourself you will find that you avoid the dangers of exhaustion, overstretching and
overstressing yourself. Competent revision is the only route to success in examinations.
Gather all the relevant resources for each subject

Here is the start of a checklist:
Subject: Elements of the law of contract
Subject guide
– noting all sample examination questions and advice on answering them
ü
Contract textbook (McKendrick) ü
Regulations re
– assessment criteria
– examination offences
Statute book
Key cases
– downloaded from Online Library
– summarised from lectures notes, reading…
Recent developments in law

How to stay motivated and focused on revision

You may find that even though you know that revision is important you find it boring – and
not only that, you cannot remember anything that you revise. Did you know that the brain
literally ‘switches off’ if it is bored? So what you need to do if you get bored is find ways of
revising without becoming bored.
You may find that you relate better to:

 answering lots of practice questions
 switching topics several times in one revision session
 revising using a lot of small sessions (say 20 minutes each) rather than a marathon session
every few days
 listing key points
 using diagrams to connect knowledge
 reading, thinking, and then summarising
 summarising notes, and then re-summarising
 writing answers to past examination questions
 reading past examination papers
 reading case notes that you have made.
All of the above strategies make revision active. You have been encouraged to engage in
active learning. You should therefore engage in active revision too. Break up revision into
a range of activities, all of which assist you in the process of internalising knowledge, and
above all begin early enough to get the revision done. Revision, like other skills connected
to studying, is about quality.
Your exam success depends on revision. The important matter here is that it is re-vision,
re-seeing. You should already have put the effort in and methodically worked through the
syllabus before you revise it. This is not the time to be learning work for the first time. It is
not the time to be struggling to understand something.
It is essential to plan revision and see it in the following sections:

 the main revision programme
 recapping† in the days before the exam. †
‘Recapping’ = a short version
of ‘recapitulating’, meaning to
Make sure you spend enough time writing practice answers to past exam questions, and
go over something in summary
above all start your revision early enough.
form.
When to start revising?

This entirely depends on you: how fast you work, how consistently you have studied during
the year, how many topics you are revising, how much work on them has already been put
in place through active learning prior to revision. It also depends on the timing and level of
your other obligations outside of study.
Do not underestimate how much you need to do, or over-estimate what you can do in the
time you have.
Pace your revision. You can become anxious, stressed and even depressed from overwork-
ing as the examinations approach. If you push yourself too much and become too tired
your brain will also react and will ‘switch off’, warning you to look after yourself. Ensure that
you have enough sleep. Your mind is your major asset to be used to pass the exams. When
you are designing your revision plan do not leave too much to the days before. And stick
to the plan you draw up, so do make it realistic. You need to know yourself, act wisely and
plan effectively. Time management of revision plays a vital part in ensuring peak examina-
tion performance.

Topic picking
Many students will select only some topics to revise rather than trying to cover everything.
This process is part of the exam ‘game’ – guessing what may, and may not, come up in the
examination that you are taking. Making sensible choices about the number of topics that
you can revise in each of the subjects that you are studying is part of your exam strategy.
However, only you can decide the number of topics to pick. You can study past exam
papers but remember that decisions about what may and what may not come up are only
guesses, not accurate predictions. A certain type of question may come up for many years
in a row and then disappear the next year. If you need to answer four questions on the
paper, you certainly should not decide to learn only four topics. Have some extra topics
as ‘insurance’. Also, if you are convinced that a certain topic will come up but it is a topic
that you struggle with and have never really understood, think carefully before choosing to
revise it. What guarantee do you have that you’ll suddenly be able to understand it before
exam day? Finally, remember that problem questions typically raise more than one issue.
Practising writing examination questions

In your subject guides you will find ‘sample examination questions’ at the end of most
chapters. These are often taken from previous years’ examinations.
These questions are intended to help you practise your answering techniques.
But remember that the exam conditions will be different:
When answering questions before the exam During the exam

You have plenty of resources Your only resource is your memory and
understanding
You have plenty of time You have limited time
You have access to subject guides and You do not have access to texts,
textbooks except statute books
You have access to your own notes You have no access to your own notes
You have access to the internet You have no access to internet resources
You are able to consult other students You have no access to other people
and tutors
Outside the exams you to learn to write essays using all the resources you can. You should
be concentrating on three key areas:
 organising and structuring your answer
 being simple and ‘to the point’
 writing effectively in good legal and academic English.
But for the examinations you also need to practise doing all this in a limited time frame.
Remember, you will have three hours in which to write four answers. This means you have
a little less than 45 minutes for each question – and you must spend some of this time read-
ing carefully through the examination paper before you decide which questions to answer.
For each question, you then need to spend at least 5 minutes preparing your answer.
That leaves 35 to 40 minutes per question.
You must practise meeting this requirement.

On the day of the examination

 Keep cool and relaxed.
 Arrive in good time; check the venue and details of your journey before the day of the exam
and allow time for late trains, traffic jams, etc.
 Make sure you know the date and time of your examination. You will be surprised to learn
how common it is for students to get the day or the time wrong. Even arriving 30 minutes
late can be fatal. You could miss a grade – or even worse, fail.
 Make sure you have a supply of pens, pencils, etc.
 Don’t overwork the night before, or the day before the exam. You do not want to fail the
exam because you are too tired to perform well.
 Eat and drink normally before the exam.
 If you are very nervous, try not to wait near the exam room and pick up on the anxieties of
others, or be within hearing distance of students discussing what may or may not come up.
They could have been thinking differently to you and this will worry you.
 Try to take a mental step back from being stressed by telling yourself that you have revised
to the best of your ability, you have prepared well, you have good strategies and you will
do your best. It is a good idea not to study in the hours immediately before an examination.
Some stress is normal so do not worry about feeling a little anxious.
Tactics during the examination

Making a plan
A detailed plan for each answer will save time and lead to a better result. In your plan list the Remember that the time
points you want to make, and the cases and statute sections you intend to cite. Exclude dis- spent making a plan must
cussion of points that are not relevant to the problem. Examiners will normally look at plans. come out of the total time
allowed for your answer.
 The aim of an examination is to score as many points as you can in the time available. To
ensure this you have to allow the same time for each question that you have to answer. The
following is based upon an examination in which you have to answer 4 questions in three
hours. Here is one possible time map – but you need to work out what is best for you.
 The first 5–8 minutes: read the whole paper through, carefully deciding which questions
you will answer. You should spend a little time here deciding what the examiner is asking
in each question you have identified. The emphasis is on careful reading as the question
may be hidden in the language used to ask the question. If you race though the paper in a
panic just looking for key words to jump out at you, you might miss the very question that
you could answer well.
 Essays are sometimes regarded as an easy option, but the opposite is nearer the truth.
Essays call for more initiative in planning and a greater discipline in execution. Really,
the decision depends on what you are best at – and of course whether the topics you have
revised come up on the exam paper.
 The next 20 minutes could be used to plan answers to all four questions. Or you could just
start question 1, and plan each question as you go.
 While you are writing your answer keep looking back to the question to ensure that your
answer remains relevant, and keep looking at your plan to make sure you write everything
you have pre-planned. Make sure each of your answers has a brief introduction, a middle
and a conclusion. So many examination answers finish abruptly – make sure you finish with
a summing up conclusion to the question asked.
 Present your work so that it is easy for the examiner to follow, underlining cases, statutes, etc.
In the last 5–10 minutes – if there is any time remaining: go back over your entire answer
paper and check that you have underlined relevant words or phrases, and check for spell-
ing and grammatical errors and neatly correct them. Draw a neat line through all rough
work. Make sure you have numbered the answers; if a question is in parts, make sure each
part is labelled and you have not missed any parts. Ensure the question numbers you have
filled in on the front of the examination script booklet are correct.
A final note
For peace of mind you may wish to avoid others at the end of the exam. Dissecting the
paper to see what everyone else did and whether they are wrong or right can sometimes
needlessly upset students if they think they have made a mistake. If you discover that you
have made a mistake, don’t blow things out of proportion – it’s probably only worth a small
fraction of the total marks.
33 Examination rules
Make sure you are aware of these rules so that you are not taken by surprise on the day of
the exam – or later.
Material permitted in the examination room

The Regulations make clear what materials you are permitted to take into the examination
room.† †
Check the current Regulations
well in advance.
For some subjects, but not for others, you are allowed to take a statute book into the
examination room:
For Criminal law:

 Blackstone’s statutes on criminal law
or
 Sweet and Maxwell’s criminal law statutes
For Public law:

 Blackstone’s statutes on public law and human rights
or
 Cracknell’s statutes: Constitutional and administrative law
or
 Sweet and Maxwell’s statutes series: Public law and human rights.
For Elements of the law of contract:

 Blackstone’s statutes on contract, tort and restitution.
or
 Sweet and Maxwell’s statute series: contract, tort and restitution.
or
 Law Matters Publishing core statutes on contract, tort and restitution.
No statute book is permitted (or needed) for Common law reasoning and institutions.
If you bring materials which are not permitted, the invigilators will take them away from
you. There is no way round these regulations.
For example, it may happen that you have left it too late to buy the permitted statute book,
and the booksellers only have another title, just as good, but which is not authorised. If so,
bad luck. Only the permitted statute book will be allowed in.
Photocopies cannot be used
This is a breach of the publisher’s copyright, and the University cannot authorise it.
You cannot write on the materials
You may underline or highlight, but adding words is not permitted.
Other examination offences

Again, you need to consult the Regulations for full details. Here are key aspects.
Students must not pass any information from one to another during an examination of a
written paper. A student may not act in collusion with another student or any other person,
nor copy from another student, nor engage in any similar activity. Any of these activities
constitutes an examination offence.
As noted earlier, it is an examination offence to submit work which has been written
jointly by two or more persons, unless expressly permitted in the relevant Programme
Regulations. (There is no such provision in the Laws Programme Regulations – but note that
team-working is encouraged in situations other than writing examination answers.)
Students found to have committed an offence may have the results of their examinations
withheld, and may be excluded from all future examinations of the University.
Feedback
Contents
Part 1 Preliminaries . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
Part 2 Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
Part 3 Reading law . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
Part 4 Analytical and critical abilities . . . . . . . . . . . . . . . . . . 194
Part 6 Developing and demonstrating skills . . . . . . . . . . . . . . . 198

Learning skills for law Feedback page 191
Part 1 Preliminaries
3 Studying at a distance
Activity 3.1
Some good reasons for studying law:
1 To obtain a qualification in English law:
The English common law system has been very influential, even in countries where English
common law is not central. Increased globalisation is increasing its value still further.
2 To strengthen my knowledge of law for career reasons:
Perhaps you are working in industry, commerce, education, or a leisure industry. A qualifi-
cation in English law will be of practical use in most of these areas.
3 To make a career in law:
You need to ensure that you fulfil all the requirements of the profession in your own
jurisdiction. Meeting the QLD requirements of the legal professions in England and Wales
also fulfils (wholly or in part) the requirements of other jurisdictions. Find out the require-
ments of the jurisdiction where you seek to practise.
4 To meet other people who are interested in law:
An active course of academic study may well bring you into contact with many people
with similar interests, even if you are studying entirely on your own. Check the Laws VLE
discussion forums and the S2S database.
5 To strengthen my academic abilities:
This course is a rigorous and highly rated academic university course. By completing it
successfully you will demonstrate wide academic abilities and a competence for learning
– both of which will be of value, not just to you personally but also to potential employers.
6 To develop a wider understanding of an important area of knowledge, philosophy and
culture:
English law is highly relevant to events in the modern world. It has implications for the way
people behave in societies, in politics, and in international affairs.
7 To be able to earn more money:
A University of London LLB by external study or Diploma in Law is a signal to any employer
that you have much to offer, and can offer more in future.
Activity 3.2
Scoring: for any tick in A-F, score -2. For any tick in G-L score +2. In other words, if you have
+ marks, you are thinking along the right lines.
4 Discover your learning preferences
Activity 4.1
Left hand column: the Surface Approach to learning. Reproducing is seen as the main object
of learning. In the surface approach, memory is privileged over understanding, and the
student is not interested in the subject for itself, looking only for the qualification. He or she
keeps narrowly to the syllabus, with no follow-up interest.
A score of 12–18 in this column could indicate that you are primarily a surface learner.
Middle column: the High Achievement approach to learning. This represents students who
value success, are competitive and have well organised study methods.
A score of 15–21 in this column could indicate that you are primarily a high achiever.
Right hand column: the Deep Approach to learning. For these students, meaning is
privileged. The student values understanding and reflection, reads widely in the area of the
subject, and takes interest in areas outside the narrow assessment bands.
A score of 10–15 in this column could indicate that you primarily have a deep approach to
learning.
Part 2 Resources
8 Using your subject guides
Activity 8.1
A Your subject guide is top priority, because it guides you through the syllabus.
B Read the sections of your textbook recommended by the subject guide.
C Your study pack is the next priority.
D The Online legal research exercises will then take you through key basics in finding and
reading key law materials, cases and statutes. Note! you will be asked questions on these
exercises in the Common law reasoning and institutions examination.
After that comes anything else recommended by your subject guide.
10 Studying with an institution
Activity 10.1
1 ‘Nutshell’ books are the odd one out. Otherwise these are all items that your institution’s
library should have.
2 Students need computers for producing their written work. Online access is (sine 2007) a
requirement of the Laws Programme.
3 The quality of online access may or may not be within the power of the institution, de-
pending on local conditions.
4, 5 & 6 Your institution should be making you aware of these resources.
7 The subject guides should be the centre point for you studies because they are designed
by the University. However, since they are not updated every year, your institution should
alert you to the need to check the Recent developments in law booklet for all years after
the publication date of the subject guide. Handouts from your teachers offer a potentially
valuable supplement but they should not be taken as the primary point of reference.
8 There are different institutional cultures. In some institutions, students seem to have no
idea at all that note taking might be important. In others they try to write down everything
in the lecture. Neither of these extremes is helpful. Your institutions should be offering
advice on note-taking and how to take key notes.
9 Small group teaching is vital. These should not be mini-lectures. Ideally, there should be
student presentations on the topics each week.
10 Reading beyond the textbooks is vital in order to develop understanding. Textbooks do
touch on all core issues but present arguments in a very condensed form.
11 No, you should not. A major criticism made in the Examiners’ reports year after year,
explaining why students get low marks, is that they have failed to answer the question.
Parroting model answers is a key reason for this problem.
12 These assessment criteria provide quite detailed information on what marks you can
expect to get on different levels of achievement. They are found in the Regulations. Your
institution should be using these as a point of reference in marking your assignments.
13 Asking questions and trying to look at matters from different viewpoints (part of being
critical) should be a normal part of your learning.
14 You may be surprised to discover that the University is actually encouraging teachers to
do this. Giving detailed coverage of some areas provides a model of what is expected.
Supporting students in taking responsibility in other areas encourages independent learn-
ing and autonomy.
Part 3 Reading law
14 Reading law texts
Activity 14.1
a The text refers to building or erections ‘which may be erected within such a period of
eighty years’, which implies the right to erect such buildings, though it does not make
clear who has this right (this may be dealt with in a different paragraph).
b The conditions are that the person who enters and views must (i) cause as little damage
as possible, (ii) make good such damage at his or her own expense, and (iii) do so ‘with
unnecessary delay’.
c ‘With unnecessary delay’ appears to be a mistake: it should presumably read ‘without un-
necessary delay’.
Note the right to enter and view ‘at any time’, which if taken literally could be very unpleas-
ant for the occupier; note also that there is no requirement to give notice of such an entry to
the occupier.
Part 4 Analytical and critical abilities
18 Analysing arguments
Activity 18.2
It is possible that you chose items (iv) and (v) above as arguments. However, please reconsid-
er (iv) in the light of the text in Section 18 immediately following this activity. Is there a claim
backed by a reason? (iv) is a vigorous protest but it is not really an argument. (v), however,
clearly is an argument, containing both a claim and reasons.
Activity 18.3
a Conclusion: ‘He is a murderer’. The proposition supporting this is the fallacious idea that
holding a gun makes someone a murderer.
b Conclusion: ‘Language is governed by rules, principles and regulations’. This is supported
by the proposition that language is a social act, through which our contacts with the world
are mediated.
c Conclusion: This is not stated explicitly, but we can think of it as ‘[we need to consider
whether] judges’ interpretations or legislators’ words are more powerful’. No evidence is
given.
d Conclusion: ‘It’s important to understand alphabetical order’. The evidence proposed is
that there are many English words which are similar, and that alphabetical order is the
only way to arrange them.
e Conclusion: ‘The words used in legislation are not the final word’. The propositions sup-
porting this are that (a) that the wording of legislation is often ambiguous, and (b) that the
Judges have the important right to determine the meaning of the words and phrases used
in legislation.
f Conclusion: ‘If you are wet, it is because you have been rained on’. This is another fallacious
argument: I was wet when I got out of the bath this morning, and it had not been raining.
Activity 18.4
Self defence does not apply
There are only three Therefore, there is no

legal justifications Collective security does not apply legal justification for
for war the 2003 War on Iraq
Humanitarian intervention does not apply

19 Assessing arguments
Activity 19.3
1 As Lord Atkin says, law can and does operate with very complicated specific rules. The
reason judges decide to simplify them may be more to do with a changing social climate,
rather than ‘logic’.
2 One perspective is that, in making the reasoning sound natural, judges make it sound as if
change emerges from the law itself rather than from their own decisions. In other words,
the issue is changing the law without going through Parliament. By contrast, it is argued by
others that Lord Atkin is right to say that underlying principles may always be found in law,
even if they are not stated explicitly.
Activity 19.4
1 (a) Note that both arguments are offering an interpretation of the statutory formulation
in s.3(1) of the 1976 [Race Relations] Act: a ‘group of persons defined by reference to
colour, race, nationality or ethnic or national origins’.
If ‘racial group’ means ‘biological race’ à then Sikhs are not a racial group within the
meaning of the Race Relations Act.
If ‘racial group’ means ‘ethnic origins’ à then Sikhs are a racial group within the meaning
of the Race Relations Act.
(b)
All racial groups are based on biological All racial groups are based on cultural
(‘blood’) ties characteristics
Being a Sikh is not defined by blood Being a Sikh is defined by cultural

characteristics
Therefore Sikhs are not a racial group Therefore Sikhs are a racial group
2 (a) Secondary arguments of Lord Denning

 Sikhs are defined by religion and the Race Relations Act does not protect religious
identities.
 The RRA does not define race by reference to nation: Jews are protected by the RRA.
 ‘Ethnic’ means ‘corresponding to a division of races’.
Secondary arguments of Lord Fraser

 Parliament cannot have intended the RRA to refer to biologically defined racial groups
because it would not be practicable to apply such a test.
 Agreeing with Lord Denning, racial group is not a religious group.
 Disagreeing with Lord Denning, ‘Ethnic origins’ involves a number of elements, two of
which are ‘essential’ and others are ‘relevant’.
(1) a long shared history, of which the group is conscious as distinguishing it from other
groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, includ-
ing family and social customs and manners, often but not necessarily associated with
religious observance.
In other words, following (1), a group’s self-identification is crucial, including the ways in
which it keeps alive its sense of a shared history.
Secondly, although the RRA does not protect religious groups per se, religion may be an
important element of cultural identity.
Both of these are true of Sikhs. In addition, one of the other relevant elements – common
geographical origins – applies, as Sikhs predominantly come from the Punjab (whether
post-Partition in India or Pakistan).
2 (b) A chain of inference exists when secondary arguments depend on each other, and are
thus like links on a chain.
Lord Fraser’s arguments involve a chain of inference: If racial group is defined by ethnic
origins AND if ethnic origins entails the two essential elements and the other relevant
elements, then the “result is, in my opinion, that Sikhs are a group defined by a reference
to ethnic origins for the purpose of the 1976 Act, although they are not biologically distin-
guishable from the other people living in the Punjab.”
3 (a) Lord Denning invokes the following as evidence:

The wording of the statute itself (“Most interesting is that it does not include religion or
politics or culture.”)
 The 1934 edition of the Oxford English Dictionary: ‘pertaining to race, ethnological’. And
‘ethnological’ was given as meaning: ‘corresponding to a division of races’. He goes on
to say “That is the meaning which I, acquiring my vocabulary in 1934, have always myself
attached to the word ‘ethnic’. It is, to my mind, the correct meaning. “
 The Sanskrit meaning of Sikh as ‘disciple’ (to support his view that Sikhs are essentially a
religious and not a racial group).
 Lord Cross in the Ealing London Borough case ([1972] 1 All ER 15 at 117-118, [1972] AC 342 at 366)
 The People of Asia (1977) p.327 by Professor Bowles of Syracuse University.
Lord Fraser invokes the following as evidence:

 Supplement to the Oxford English Dictionary vol I (A-G) (1972) – in a qualified way.
No feedback provided for questions 3 (b) , (c) and 4.
20 Analysing facts and applying rules
Activity 20.1
1 Statements (b) and (c) are both correct. Statement (c) is a correct statement of the law
and therefore statement (a) is incorrect: a time delay between the provoking act and the
response is not held to rule out the possibility that the response may still be ‘sudden’. (You
will be studying this in Criminal law.) Statement (b) is concerned with the need for the
judge to make this clear to the jury in his or her summing up on matters of law.
2 The other problem with a delayed response is factual: we tend to think that, if someone
has not responded ‘in the heat of the moment’, then they have had a chance to ‘cool
down’ and therefore the subsequent killing would be murder. However, especially in cases
with a background of domestic abuse, it has been argued that a victim of such abuse may
finally get to the point where one act by the abuser triggers memories of all the others
and, rather than ‘cooling down’, they become incensed and lose control.
21 Working with numbers
Activity 21.1
a 839 deaths, but 29 not recorded as homicides = 810; 264 offenders found guilty and 401
cases pending = 665. Percentage 665 of 810 = 82.1 per cent (rounded up).
b 810 homicides, 77 by shooting. Percentage 9.5 per cent.
c 810 homicides, 29 suspects committed suicide or died. Percentage = 3.6 per cent (rounded
up). This equals 36 per 1,000 suspects.
d The ‘pie chart’ (i) is not useful, as it gives us no useful information. The bar chart (ii) is quite
informative, because it shows the size of the homicide toll. The most useful is probably the
line chart (iii), which gives an impression of the ‘movement’ of the figures.
e Two phenomena appear to be visible. The first is an increase in the homicide rate during
2000/2001 and 2002/2003, with a ‘peak’ in 2002/2003. The second is that in 2004/2005 the
rate of homicides per million was restored to the same line of growth as was the case up to
1999/2000. It may be that this is the line of growth that we can expect.

If this line were to be carried forward into the future, we might expect the number of
homicides per million to increase by roughly 0.5 a year. This represents a figure of about
30 more victims per year. However, there is no reliable way of predicting future data from
past statistics.
f The scatter plot is the difference between each year’s number of homicides and the
previous year’s. The four blobs in the 0-50 area represent the ‘typical’ 30-or-so additional
homicides per year.
Activity 21.2
The magistrates’ courts
a Holloway issues the largest fines per case, and recovers the highest proportion of its costs
(73 per cent).
b Collarfield has the lowest costs per case, and also processes the most cases per head of
population.
c Lawminster has the lowest costs per head of population.
d It is difficult to identify a ‘middle of the road’ example among this group of courts, though
possibly Twockerby is the closest to the average figures.
Cases Fines Fines Annual cost Cost Population Population Cost

per case per case per case per pop
Lawminster 5,260 £907,500 £173 £2,893,000 £550 1,950,000 370.72 0.47

St Asbo’s 2,975 £875,200 £294 £1,722,525 £579 760,000 255.46 1.15
Paxton 4,126 £760,550 £184 £2,157,818 £523 1,050,000 254.48 0.72
Collarfield 6,190 £1,645,650 £266 £3,095,000 £500 1,550,700 250.52 1.73
Twockerby 4,244 £1,350,700 £318 £2,291,760 £540 1,500,000 353.44 0.90
Holloway 5,452 £2,257,900 £414 £3,085,832 £566 1,600,000 293.47 1.41
Average 5,649 1,299,583 £275 £2,540,989 £543 1.401,783 296.00 1.00
Activity 21.3
‘Dear Mrs Watson, older people are not the main victims of violent crime. A man of 20 is
nearly 30 times as likely to suffer a violent crime as you are. Owner occupiers like you with
a detached house are attacked less than half as much as people who live in rented accom-
modation. People living in poor areas are twice as likely to be attacked as people living in
Barnsfield. The “ideal” candidate for a violent crime is young, male, poor, unemployed, and a
single parent.’ (90 words)
Part 6 Developing and demonstrating skills
28 Oral Communication skills
Activity 28.1
Some pointers:
 Bring some examples with you: a statute book, a law report, a legal academic journal.
 Don’t forget to mention online resources – in fact why not have the session near a compu-
ter with online access? (You might remind them that if they haven’t yet registered to use
the Online Library and the VLE, they should do so as soon as possible).
 Don’t forget to mention the subject guides, textbooks and study packs.
 Identify where they can find hard copy case reports, full sets of statutes and legal academic
journals and books.
29 Developing your IT skills
Activity 29.1
The most formal is probably a business report, with the business letter second. Post-it notes
and graffiti are at the bottom of the list.
Activity 29.2
It does include some factual information, but it is not telling the recruiter what he or she
would like to know. Employers are interested in what you have experience of, and what you
have achieved. Saying that you worked in ‘an administrative capacity’ tells them nothing,
except perhaps that you are not used to manual labour. Nor is it useful for you to say what
you were ‘responsible’ for. The person should say what he or she actually did, and if he or she
was responsible, how that responsibility was fulfilled. Compare this version:
From April 2005 to October 2006 I led a three-person team at CCV International which col-
lated data from transport contracts. I was able to present new analyses which led to some
substantial reductions in international transport costs.
Which candidate would you rather call for interview?
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Learning skills for law

Special acknowledgements to Ms Patricia Tuitt, Law School, Birkbeck (University of London)

Published by the University of London Press

4 Analytical and critical abilities . . . . . . . . . . . . . . . . . . . . . . 91

5 Writing law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

6 Developing and demonstrating skills . . . . . . . . . . . . . . . . . 149

2 Skills requirements and a Qualifying Law Degree . . . . . . . . . . . . . 9

4 Discover your learning preferences . . . . . . . . . . . . . . . . . . . . 16

Skills developed during your Laws course

 develop a basic understanding of the uses of modern information technology

How to use this guide

2 Skills requirements and a Qualifying Law Degree (QLD)

Ensuring that your London LLB is a QLD

However, there are now additional skills requirements.

Skills requirements for the 2007 intake onwards † †

Common law reasoning and institutions

There will be a compulsory part of the examination on these research activities.

Laws Skills Portfolio

The full range of skills tested in the LLB

Sources and research Common law reasoning and institutions

General transferable Analysis, synthesis, critical judgment and evaluation Examinations

Communication and literacy (in English) – oral Laws Skills Portfolio

Team working Laws Skills Portfolio

Information technology skills Laws Skills Portfolio

Decisions for students seeking a QLD

Scheme A Scheme B Graduate entry route A Graduate entry route B

Choose Skills option one

3rd year of study 4th year of study 3rd year of study

Choose Skills option one

Review why you are taking the course

1 To obtain a qualification in English law.

2 To strengthen my knowledge of law for career reasons.

3 To make a career in law.

4 To meet other people who are interested in law.

5 To strengthen my academic abilities.

6 To develop a wider understanding of an important area of knowledge, philosophy

7 To be able to earn more money.

Feedback: see end of guide.

What do you expect the course to be like?

A There is a lot of information to absorb in law studies and so there will be a

B The textbook is crucial. ¢

C I am studying at a private teaching institution, so I should follow exactly

E It is dangerous to take risks and present my own analysis. I should stick to

G I will be expected to do extra reading outside the main texts. ¢

H I will need to search online sources for relevant reading. ¢

K Ideally, I will discuss issues with fellow students. If I am studying on my

L I may be asked to give an oral presentation, summarising legal issues to

Feedback: see end of guide.

What difficulties do you expect to face?

Finding your own voice

Being a ‘distance learner’

What are the advantages of distance learning?

What you bring with you to your study

In school, a teacher is responsible. In higher education, you are responsible.

¢ The level or type of English is too hard for me.

¢ I do not know how much reading I am expected to do.

¢ The Laws course is highly theoretical/intellectual and I am more used to learning

Test yourself. What are your study priorities:

You also bring with you from your earlier education:

4 Discover your learning preferences

Questions Agree/disagree (scale 1-3)

2 My primary aim is to get a high grade.