klm Mark Scheme Law 6161 General Certificate of Education against Property) or Tort or Protection of Human Rights or Consumer Protection

Transcription

1 Version 1.0: 0109 klm General Certificate of Education Law 6161 Unit 5 (LAW5) Criminal Law (Offences against Property) Tt Protection of Human Rights Consumer Protection Mark Scheme 2009 examination - January series

2 Mark schemes are prepared by the Principal Examiner and considered, together with the relevant questions, by a panel of subject teachers. This mark scheme includes any amendments made at the standardisation meeting attended by all examiners and is the scheme which was used by them in this examination. The standardisation meeting ensures that the mark scheme covers the candidates responses to questions and that every examiner understands and applies it in the same crect way. As preparation f the standardisation meeting each examiner analyses a number of candidates scripts: alternative answers not already covered by the mark scheme are discussed at the meeting and legislated f. If, after this meeting, examiners encounter unusual answers which have not been discussed at the meeting they are required to refer these to the Principal Examiner. It must be stressed that a mark scheme is a wking document, in many cases further developed and expanded on the basis of candidates reactions to a particular paper. Assumptions about future mark schemes on the basis of one year s document should be avoided; whilst the guiding principles of assessment remain constant, details will change, depending on the content of a particular examination paper. Further copies of this Mark Scheme are available to download from the AQA Website: Copyright 2009 AQA and its licenss. All rights reserved. COPYRIGHT AQA retains the copyright on all its publications. However, registered centres f AQA are permitted to copy material from this booklet f their own internal use, with the following imptant exception: AQA cannot give permission to centres to photocopy any material that is acknowledged to a third party even f internal use within the centre. Set and published by the Assessment and Qualifications Alliance. The Assessment and Qualifications Alliance (AQA) is a company limited by guarantee registered in England and Wales (company number ) and a registered charity (registered charity number ). Registered address: AQA, Devas Street, Manchester M15 6EX Dr Michael Cresswell Direct General

3 LAW5 Assessment Objectives One and Two General Marking Guidance You should remember that your marking standards should reflect the levels of perfmance of candidates, mainly years old, writing under examination conditions. The given in each case is the most likely crect response to the question set. However, this material is neither exhaustive n prescriptive and alternative, valid responses should be given credit within the framewk of the mark bands. Positive Marking You should be positive in your marking, giving credit f what is there rather than being too conscious of what is not. Do not deduct marks f irrelevant increct answers, as candidates penalise themselves in terms of the time they have spent. Mark Range You should use the whole mark range available in the mark scheme. Where the candidate s response to a question is such that the mark scheme permits full marks to be awarded, full marks must be given. A perfect answer is not required. Conversely, if the candidate s answer does not deserve credit, then no marks should be given. Levels of Response f Essay Marking When reading an essay it is useful to annotate your recognition of the achievement of a response level. This will help the Team Leader follow your thought processes. Levels of response marking relies on recognition of the highest level achieved by the candidate. When you have finished reading the essay, therefe, think top-down, rather than bottom-up. In other wds, has the candidate s overall answer met the requirements f the top level? If not, the next level? Citation of Authity Candidates will have been urged to use cases and statutes whenever appropriate. Even where no specific reference is made to these in the mark scheme, please remember that their use considerably enhances the quality of an answer. 3

4 Assessment Objective Three Quality of Written Communication The Code of Practice f GCSE, GCSE in vocational subjects, GCE, VCE and GNVQ requires the assessment of candidates quality of written communication wherever they are required to write in continuous prose. In this unit, this assessment will take place by marking the candidate s script as a whole, by means of the following criteria: Level 3 Moderately complex ideas are expressed clearly and reasonably fluently, through well linked sentences and paragraphs. Arguments are generally relevant and well structured. There may be occasional errs of grammar, punctuation and spelling marks Level 2 Straightfward ideas are expressed clearly, if not always fluently. Sentences and paragraphs may not always be well connected. Arguments may sometimes stray from the point be weakly presented. There may be some errs of grammar, punctuation and spelling, but not such as to detract from communication of meaning. 4- marks Level 1 Simple ideas are expressed clearly, but arguments may be of doubtful relevance be obscurely presented. Errs in grammar, punctuation and spelling may be noticeable and intrusive, sufficient to detract from communication of meaning. 1-3 marks Level 0 Ideas are expressed poly and sentences and paragraphs are not connected. There are errs of grammar, punctuation and spelling, such as to severely impair communication of meaning. 0 marks 4

5 NOTE In the mark scheme which follows, there are two standard mark band descripts: The substantive law question mark bands question parts (a) and (b) The evaluative question mark bands question part (c). The substantive and evaluative question mark bands are supplied f both a 3 and a 2 mark scheme, to be applied as appropriate. These mark bands are set out at the beginning and are to be applied to each relevant question part. They are not repeated f each question part. Except where otherwise indicated, sound, clear and some refer to both explanation and application/evaluation. Where, f any element of potential content, one is achieved at the higher level but the other at a lower level, the overall description f that potential content will tend towards the lower level. 5

6 Substantive law question mark bands (3 ) The candidate soundly explains and applies the rules of law in two of - (max 21), and clearly explains and applies the rules of law in the other (max 23 f some explanation and application of rules of law in the other) the candidate soundly explains and applies the rules of law in one of - and clearly explains and applies the rules of law in the other two (max 21) The candidate soundly explains and applies the rules of law in one of -, and clearly explains and applies the rules of law in another the candidate clearly explains and applies the rules of law in any two of - (max ) and presents some explanation and/ application of the other the candidate presents some explanation and application of the rules of law in all three of - (max 16) The candidate soundly explains and applies the rules of law in one of - the candidate clearly explains and applies the rules of law in one of - and presents some explanation and/ application of the rules of law in any other one of - the candidate presents some explanation and application of any two of - (max 13) the answer focuses on explanation of rules of law with no significant application (max 15 if sound on two clear on three, max 13 if sound on one clear on two, max 11 if clear on one some on two) the answer focuses on application to the facts with no significant legal framewk (max 12 where the answer displays a sound understanding of the elements of the analysis) The candidate presents some explanation and/ application of any of the rules of law in The candidate merely introduces fragments of infmation unexplained examples from which no coherent explanation and application can emerge though the candidate attempts to explain and/ apply rules of law, the explanation and/ application are so fundamentally undermined by err and confusion that the answer remains substantially incoherent. 0 The candidate presents no infmation relevant to the question. 6

7 Substantive law question mark bands (3 ) list of maximum marks 25 two sound, one clear 23 two sound, one some 21 two sound one sound, two clear 20 one sound, one clear two clear, one some (explanation and/ application)) one sound, one some two clear 16 three some 15 one sound two sound explanation one clear, one some (explanation and/ application) three clear explanation 13 one clear one sound explanation two clear explanation two some 12 sound application 11 one clear explanation two some explanation 10 one some explanation and/ application 5 relevant fragments relevant but incoherent 0 completely irrelevant Note: It follows from the above that, however well the law is explained, answers which contain no application can never achieve me than 15 marks.

8 Substantive law question mark bands (2 ) The candidate soundly explains and applies the rules of law in and the candidate soundly explains and applies the rules of law in one of and and clearly explains and applies the rules of law in the other (max 23) The candidate soundly explains and applies the rules of law in one of and (max ), and presents some explanation and application of the other the candidate clearly explains and applies the rules of law in both of and the candidate clearly explains and applies the rules of law in one of and and presents some explanation and application of the other (max ) The candidate clearly explains and applies the rules of law in one of and the candidate presents some explanation and application of both of and (max 13 if one only) the answer focuses on explanation of rules of law with no significant application (max 15 if sound on two, max 13 if sound on one clear on two, max 11 if clear on one some on two) the answer focuses on application to the facts with no significant legal framewk (max 12 where the answer displays a sound understanding of the elements of the analysis) The candidate presents some explanation and/ application of any of the rules of law in and. 1-5 The candidate merely introduces fragments of infmation unexplained examples from which no coherent explanation and application can emerge though the candidate attempts to explain and/ apply rules of law, the explanation and/ application are so fundamentally undermined by err and confusion that the answer remains substantially incoherent. 0 The candidate presents no infmation relevant to the question. Substantive law question mark bands (2 ) list of maximum marks 25 two sound 23 one sound, one clear 20 one sound, one some two clear one sound one clear, one some 15 one clear two some two sound explanation 13 one some one sound explanation two clear explanation 12 sound application 11 one clear explanation two some explanation 10 one some explanation and/ application 5 relevant fragments relevant but incoherent 0 completely irrelevant Note: It follows from the above that, however well the law is explained, answers which contain no application can never achieve me than 15 marks. 8

9 Evaluative question mark bands (3 ) The candidate soundly evaluates relevant aspects of the rules of law in two of - (max 21) and clearly evaluates relevant aspects of the rules of law in the other (max 23 f some evaluation of the other) the candidate soundly evaluates relevant aspects of the rules of law in one of A)- and clearly evaluates relevant aspects of the rules of law in the other two (max 21) The candidate soundly evaluates relevant aspects of the rules of law in one of - and clearly evaluates relevant aspects of the rules of law in one other the candidate clearly evaluates relevant aspects of the rules of law in two of - (max ) and presents some evaluation of the other the candidate presents some evaluation of the rules of law in all of - (max 16) The candidate soundly evaluates relevant aspects of the rules of law in one of - the candidate clearly evaluates relevant aspects of the rules of law in one of - (max 13) and presents some evaluation of relevant aspects of the rules of law in one other the candidate presents some evaluation of relevant aspects of the rules of law in two of - (max 13) The candidate presents some evaluation of relevant aspects of the rules of law in any of The candidate merely introduces fragments of infmation unexplained examples from which no coherent explanation and evaluation can emerge though the candidate attempts to explain and/ evaluate relevant rules of law, the explanation and/ evaluation are so fundamentally undermined by err and confusion that the answer remains substantially incoherent. 0 The candidate presents no infmation relevant to the question. Evaluative question mark bands (3 ) list of maximum marks 25 two sound, one clear 23 two sound, one some 21 two sound one sound, two clear 20 one sound, one clear two clear, one some one sound, one some two clear 16 three some 15 one sound one clear, one some 13 one clear two some 10 one some 5 relevant fragments relevant but incoherent 0 completely irrelevant 9

10 Evaluative question mark bands (2 ) The candidate soundly evaluates relevant aspects of the rules of law in and the candidate soundly evaluates relevant aspects of the rules of law in one of and and clearly evaluates relevant aspects of the rules of law in the other (max 23) The candidate soundly evaluates relevant aspects of the rules of law in one of and (max ) and presents some evaluation of the other the candidate clearly evaluates relevant aspects of the rules of law in both of and the candidates clearly evaluates relevant aspects of the rules of law in one of and and presents some evaluation of the other (max ) The candidate clearly evaluates relevant aspects of the rules of law in one of and the candidate presents some evaluation of relevant aspects of the rules of law in both of and (max 13 f one) The candidates presents some explanation and/ evaluation of relevant aspects of the rules of law in either of and. 1 5 The candidate merely introduces fragments of infmation unexplained examples from which no coherent explanation evaluation can emerge though the candidate attempts to explain and/ evaluate rules of law, the explanation and/ evaluation are so fundamentally undermined by err and confusion that the answer remains substantially incoherent. 0 The candidate presents no infmation relevant to the question. Evaluative question mark bands (2 ) list of maximum marks 25 two sound 23 one sound, one clear 20 one sound, one some two clear one sound one clear, one some 15 one clear two some 13 one some 10 one some explanation and/ evaluation 5 relevant fragments relevant but incoherent 0 completely irrelevant 10

11 Maxima Substantive law question mark bands (3 potential content) list of maximum marks 25 two sound, one clear 23 two sound, one some 21 two sound one sound, two clear 20 one sound, one clear two clear, one some (explanation and/ application) one sound, one some two clear one clear, two some 16 three some 15 one sound two sound explanation one clear, one some (explanation and/ application) three clear explanation 13 one clear one sound explanation two clear explanation two some 12 sound application 11 one clear explanation two some explanation 10 one some explanation and/ application 5 relevant fragments relevant but incoherent 0 completely irrelevant Substantive law question mark bands (2 potential content) list of maximum marks 25 two sound 23 one sound, one clear 20 one sound, one some two clear one sound one clear, one some 15 one clear two some two sound explanation 13 one some one sound explanation two clear explanation 12 sound application 11 one clear explanation two some explanation 10 one some explanation and/ application 5 relevant fragments relevant but incoherent 0 completely irrelevant Evaluative question mark bands (3 potential content) list of maximum marks 25 two sound, one clear 23 two sound, one some 21 two sound one sound, two clear 20 one sound, one clear two clear, one some one sound, one some two clear 16 three some 15 one sound one clear, one some 13 one clear two some 10 one some 5 relevant fragments relevant but incoherent 0 completely irrelevant Evaluative question mark bands (2 potential content) list of maximum marks 25 two sound 23 one sound, one clear 20 one sound, one some two clear one sound one clear, one some 15 one clear two some 13 one some 10 one some explanation and/ evaluation 5 relevant fragments relevant but incoherent 0 completely irrelevant 11

12 Descripts Level Explanation Application sound clear some The answer crectly identifies and accurately explains the relevant rule(s) in the central aspects of the potential content. Where appropriate, the explanations are suppted by relevant statuty and/ case authity and illustration (which is adequately developed where necessary to explain the ratio and/ assist in the application to the facts). Where there are me marginal aspects of the rules, there may be some min omissions inaccuracies in the explanation of the rule(s) and/ suppting statuty/case authity and illustration. The answer crectly identifies and accurately explains significant parts of the rule(s) in the central aspects of the potential content, though there are omissions of some part(s) of the rule(s), errs in the explanation, in those central aspects. There may be a little overemphasis on marginal aspects of the rules at the expense of some of the me central aspects. In the higher part of the level, statuty and/ case authity and illustration are used but there may be a little confusion and err in selection and/ explanation the explanation may be limited. At the lower end of the level, there may be little evidence of statuty and/ case authity and illustration me evident inaccuracies. The answer crectly identifies and accurately explains a very limited part of the relevant rule(s) in the central aspects of the potential content. There may be a very evident imbalance between explanation of central and of me marginal aspects of the rule(s). Alternatively, the answer explains a me substantial part of the relevant rule(s) in the central aspects of the potential content but the explanations suffer from significant omission, err confusion. Explanations may emerge only out of attempts to introduce relevant case authity and illustration. If introduced at all, statuty and/ case authity and illustration may be of marginal relevance the explanation may be highly superficial subject to significant inaccuracies not properly used to suppt the explanation of the relevant rule(s). The answer selects and emphasises the relevant facts from the scenario and makes close reference to them when explaining how the rules (including any suppting statuty and/ case authity) apply to affd a solution. Where appropriate, the application exples the effect of different interpretations of the rule(s) and/ of conflicting rules and/ of different interpretations of the facts. The solution suggested is clearly based on the explanation and application of the rules and is sustainable. The answer selects and emphasises some of the relevant facts from the scenario and makes reference to them when explaining how the rules (including any suppting statuty and/ case authity) apply to affd a solution. The application, though otherwise persuasive, may fail to canvass credible alternative solutions (based on alternative interpretations of the law of the facts) there may be a little err confusion in the application to the facts. The solution suggested is broadly based on the explanation and application of the rules, though there may be some evident weakness. The answer selects and emphasises one two relevant facts from the scenario and makes reference to them without being able to suggest a coherent application. Me broad-ranging attempts to identify and make reference to relevant facts display confusion err. Alternatively, the answer tends to make simple assertions assumptions about the way in which the rule(s) apply to the facts, so that application is general and unspecific, being unrelated to particular facts. The application fails to canvass credible alternative solutions (based on alternative interpretations of the law of the facts). Little use is made of whatever statuty case authity and illustration is incpated in explanations. The solution suggested is only imprecisely related to the explanation of the rule(s). 12

13 Criminal Law (Offences against Property) 1 Total f this question: 5 marks (a) Discuss the possible criminal liability of Trev. The theft issue actus reus and appropriation; mens rea and the intention permanently to deprive The burglary issue possible offences under both s9(1)(a) and (b): actus reus and entry as a trespasser/building; mens rea and the intention to steal; actual theft attempted theft having entered as a trespasser The duress issue voluntary association; the nature and immediacy/imminence of the threat (opptunity to avoid); the application of the objective test (b) Discuss the possible criminal liability of Vinny and of Warren f property offences arising out of the incidents in the bar. The robbery issue possible theft of the 100 by Vinny involving, in particular, dishonesty and the damage to his suit jacket; further robbery aspects in threat to use fce immediately befe at time of theft and in der to steal The criminal damage issue the spilling of the beer over Vinny by Warren: the meaning of damage; the mens rea of intention recklessness The intoxication issues basic and specific intent offences in relation to Warren and Vinnie (c) Relating your answer to any one property offence, consider whether the definition of the elements of that offence may be described as satisfacty. Actus reus issues in any offence f example, in theft, nature and time of appropriation, consent and appropriation, extent of the definition of property, confidential infmation, person to whom property belongs, theft by an owner of his own property, extensions in s5(3) and s5(4) Mens rea issues f example, in theft, dishonesty and the statuty beliefs, the issue of dishonesty at large (the Ghosh test), the nature of intention permanently to deprive (conditional intention, the scope of s6) Note: and can be interpreted as aspects of either actus reus of mens rea, where the candidate engages in a detailed critical analysis of the actus reus of an offence but not of the mens rea, vice versa. In such a case, some depth and range of discussion of either element must be apparent. 13

14 2 Total f this question: 5 marks (a) Discuss Maddy s possible criminal liability. Fraud Act 2006 issues fraud by false representation and by abuse of position; obtaining services dishonestly Theft and burglary issues initial dishonest appropriation of sums of money/s5(3); dishonest appropriation of jewellery; entry of bedroom as trespasser with intent to steal/actual theft (b) Discuss the possible criminal liability of Nick and of Sam f property offences arising out of the incidents involving the scooter. Theft issues in particular, the dishonesty issue in relation to the finding of property (the mini-scooter). The issue of intoxication (note intoxication applies both to the theft and to the aggravated criminal damage (below). An answer which treats only one is max clear f this potential content) The criminal damage issues aggravated criminal damage by Nick in relation to the use of the scooter (damage to points/scooter), mens rea as to endangering life; basic criminal damage to the scooter by Sam but subject to the defence of lawful excuse (c) Relating your answer to any one property offence, consider whether the definition of the elements of that offence may be described as satisfacty. Actus reus issues in any offence f example, in theft, nature and time of appropriation, consent and appropriation, extent of the definition of property, confidential infmation, person to whom property belongs, theft by an owner of his own property, extensions in s5(3) and s5(4) Mens rea issues f example, in theft, dishonesty and the statuty beliefs, the issue of dishonesty at large (the Ghosh test), the nature of intention permanently to deprive (conditional intention, the scope of s6) Note: and can be interpreted as aspects of either actus reus of mens rea, where the candidate engages in a detailed critical analysis of the actus reus of an offence but not of the mens rea, vice versa. In such a case, some depth and range of discussion of either element must be apparent. 14

15 Tt 3 Total f this question: 5 marks (a) Consider the rights and remedies of Andrew s neighbours in connection with the noise, and of Brian in connection with the damage caused by the explosion. The tt of private nuisance in relation to the noise interference with use and enjoyment, facts in reasonableness of user (in particular, location, duration, malice), damage, remedies of damages and (especially), injunction. Public nuisance in relation to the traffic problems on the narrow lanes B) The tt in Rylands v Fletcher in relation to the damage caused by the explosion nonnatural use, escape, damage, remedy of damages. Possible alternative in negligence (b) Consider the rights and remedies, if any, of Derek, of Ellie and of Fran against Colin in connection with the incidents involving the collision. In relation to Derek and Fran possible tt of negligence committed by Colin. Possible contributy negligence on Derek s part. Damages In relation to Ellie possible liability f psychiatric injury: need f recognised psychiatric injury; distinction between primary and secondary victims; restrictive rules applicable to recovery by secondary victims. Damages 15

16 (c) Choose one of the following: Consider the suggestion that the law concerning compensation f psychiatric injury is unsatisfacty. OR Consider the suggestion that the law concerning compensation f economic loss is unsatisfacty. OR Consider the suggestion that the law on vicarious liability is unsatisfacty. Psychiatric injury/economic loss Evaluation of the relevant rules in the light of the issue of how unsatisfacty they are in achieving recovery of compensation (in psychiatric injury meaning of psychiatric injury, distinction between kinds of victims, need f shock, proximity in relation to event ( aftermath ), sufficiently close ties; in economic loss distinction between wds and acts, consequential and pure economic loss, rules in relation to misstatement) Discussion of the broader issues concerning policy in either case, as they contribute to the assessment of whether rights to recovery of compensation are unsatisfacty floodgates, chance incidence of liability as against need to ensure compensation (general issue of distribution of losses) Vicarious liability Evaluative comments on the requirement f the relationship of employer and employee and f commission of a tt within the course of employment, in the light of the suggestion that the law on vicarious liability is unsatisfacty Evaluative comments on the rationale f vicarious liability, in the light of the suggestion that the law on vicarious liability is unsatisfacty Credit will be given f framewk explanations where appropriate. 16

17 4 Total f this question: 5 marks (a) Consider whether Harry has any rights and remedies against Jim and against Index Services in connection with the advice about the wk to strengthen the ceilings. In relation to Harry and Jim - the tt of negligence in relation to misstatements: the distinction between acts and wds; the special rules involving special relationships and reliance. Remedy of damages In relation to Harry and Index Services possible vicarious liability f any tt committed by Jim. Discussion of both employer/employee relationship and of course of employment (b) Consider whether Lennie, Kris and Manjit have any rights and remedies in connection with their various injuries. Lennie breach of the Occupiers Liability Act 1984: elements which must be proved to establish duty (s1(3)), nature of the duty (s1(4)). Possible reference to age. Possible contributy negligence. Possible alternative in common law negligence. Damages. Possible suggestion that Kris may be an occupier, too. Kris breach of the Occupiers Liability Act 195: elements which must be proved to establish duty, nature of the duty, position of those with special skills. Possible contributy negligence. Possible alternative in common law negligence. Damages Manjit possible liability f psychiatric injury: need f recognised psychiatric injury; distinction between primary and secondary victims; restrictive rules applicable to recovery by secondary victims. Damages 1

18 (c) Choose one of the following: Consider the suggestion that the law concerning compensation f psychiatric injury is unsatisfacty. OR Consider the suggestion that the law concerning compensation f economic loss is unsatisfacty. OR Consider the suggestion that the law on vicarious liability is unsatisfacty. Psychiatric injury/economic loss Evaluation of the relevant rules in the light of the issue of how unsatisfacty they are in achieving recovery of compensation (in psychiatric injury meaning of psychiatric injury, distinction between kinds of victims, need f shock, proximity in relation to event ( aftermath ), sufficiently close ties; in economic loss distinction between wds and acts, consequential and pure economic loss, rules in relation to misstatement) Discussion of the broader issues concerning policy in either case, as they contribute to the assessment of whether rights to recovery of compensation are unsatisfacty floodgates, chance incidence of liability as against need to ensure compensation (general issue of distribution of losses) Vicarious liability Evaluative comments on the requirement f the relationship of employer and employee and f commission of a tt within the course of employment, in the light of the suggestion that the law on vicarious liability is unsatisfacty Evaluative comments on the rationale f vicarious liability, in the light of the suggestion that the law on vicarious liability is unsatisfacty Credit will be given f framewk explanations where appropriate.

19 Protection of Human Rights 5 Total f this question: 5 marks (a) Igning the Human Rights Act 1998 and the European Convention on Human Rights, discuss the rights and remedies, if any, available to Debbie and to Gege against Charlotte and The Daily Eye. In relation both to Debbie and Gege (if the sty is true): the duty of confidentiality possibly imposed upon Charlotte and The Daily Eye; nature of potential breach (disclosure to repter and proposed publication), conditions f imposition of obligation of confidence (also the issue of photographs), detrimental disclosure, public interest, injunction to restrain publication In relation both to Debbie and Gege: the tt of defamation (libel) issue of truth and whether injunction to restrain publication can be obtained. Damages if publication goes ahead and the sty is untrue Possible actions such as harassment of Debbie arising out of the newspaper s activities (b) Discuss the effect of the Human Rights Act 1998 and of the European Convention on Human Rights on your answer to (a) above. NB The requirements of the Human Rights Act 1998 in relation to domestic law and the European Convention on Human Rights taking into account the jurisprudence of the Convention, public authities and private bodies/individuals Article 8 implications in relation to the rights and duties discussed in - in part (a) above Article 10 implications in relation to the rights and duties discussed in - in part (a) above though discussion of either may be classified as sound, discussion of both can be classified as sound only if the discussion at some point analyses the relationship, and particularly the balance struck, between them on the facts of the scenario. 19

20 (c) EITHER How far do you consider that English law (including the Human Rights Act 1998 and the European Convention on Human Rights) has established an acceptable balance between the protection of freedom of expression and the protection of interests in privacy? OR How far do you consider that English law (including the Human Rights Act 1998 and the European Convention on Human Rights) has established an acceptable balance between the protection of freedom of expression and the preservation of public der? Potential content Explanation and evaluation of the imptance of the protection of privacy and of freedom of expression and of the extent to which existing domestic law actions (f example, confidentiality, defamation, harassment) fail to protect ( protect) privacy and restrict freedom of expression OR Explanation and evaluation of the imptance of the preservation of public der and of the protection of freedom of expression, and of the extent to which existing domestic law rules in relation to public der (f example, control of marches and demonstrations, breach of the peace, stop and search, harassment) fail to protect ( protect) the interest in preservation of public der and restrict freedom of expression Explanation and evaluation of the effect on the above of the provisions of the European Convention on Human Rights (Articles 8, 10 and 11) Credit will be given f framewk explanations where appropriate. 20

21 6 Total f this question: 5 marks (a) Taking account of the Human Rights Act 1998 and the European Convention on Human Rights, discuss Richard s rights and remedies, if any, in connection with the infmation supplied to Malcolm by Phoebe, and with Malcolm s proposed leaflet. The duty of confidentiality possibly imposed upon Phoebe and Malcolm; nature of potential breach (disclosure to Malcolm and proposed publication), conditions f imposition of obligation of confidence, detrimental disclosure, public interest, injunction to restrain publication The tt of defamation (libel) issue of truth and whether injunction to restrain publication can be obtained. Damages if publication goes ahead and the sty is untrue Brief indication of the requirements of the Human Rights Act 1998 in relation to domestic law and the European Convention on Human Rights. Articles 8 and 10 implications in relation to the rights and duties discussed in - (b) Taking account of the Human Rights Act 1998 and the European Convention on Human Rights, discuss what legal steps the police might take to limit the risks to public der arising out of the planned march and demonstration. Preventive measures by the police to ban control marches and demonstrations Public Order Act 1986 ss11-14 powers, common law powers in connection with breach of the peace Stop and search powers (PACE Act 1984, Criminal Justice and Public Order Act 1994). Public Order offences under the 1986 Act Brief indication of the requirements of the Human Rights Act 1998 in relation to domestic law and the European Convention on Human Rights (reliance may be placed on any relevant explanation provided in answering question 6(a)). Assembly (Article 11), Expression (Article 10) and public der (viewed as the limitations on the Articles) issues arising out of the protest march and demonstration the balance to be struck between rights to assembly and of freedom of expression and the need to preserve public der/protect the integrity of the individual 21

22 (c) EITHER How far do you consider that English law (including the Human Rights Act 1998 and the European Convention on Human Rights) has established an acceptable balance between the protection of freedom of expression and the protection of interests in privacy? OR How far do you consider that English law (including the Human Rights Act 1998 and the European Convention on Human Rights) has established an acceptable balance between the protection of freedom of expression and the preservation of public der? Potential content Explanation and evaluation of the imptance of the protection of privacy and of freedom of expression and of the extent to which existing domestic law actions (f example, confidentiality, defamation, harassment) fail to protect ( protect) privacy and restrict freedom of expression OR Explanation and evaluation of the imptance of the preservation of public der and of the protection of freedom of expression, and of the extent to which existing domestic law rules in relation to public der (f example, control of marches and demonstrations, breach of the peace, stop and search, harassment) fail to protect ( protect) the interest in preservation of public der and restrict freedom of expression Explanation and evaluation of the effect on the above of the provisions of the European Convention on Human Rights (Articles 8, 10 and 11) Credit will be given f framewk explanations where appropriate. 22

23 Consumer Protection Total f this question: 5 marks (a) Consider Cara s rights and remedies against Biggarides in connection with her disappointment about both the failure to get the free priity rides and the non-availability of half of the rides. The issue of privity of contract and the operation of the Contract (Rights of Third Parties) Act Fmation issues in relation to the free priity rides The terms issues the nature of the obligations in relation to the provision of rides Breach and remedies issues, including the possible exclusion clause and the effect of the Unfair Contract Terms Act 19 where reasonableness is in issue. Loss of enjoyment (b) Consider Cara s rights and remedies against Biggarides in connection with the selfassembly, wking model. Issues in relation to Sale of Goods Act 199 (as amended) terms description, satisfacty quality, and fitness f purpose Issues in relation to remedies rights in connection with replacement, rejection, and loss of the right to reject. Damages The effect of the purpted exclusion clause in terms of incpation and under the Unfair Contract Terms Act

24 (c) EITHER To what extent do you consider that the law has succeeded in establishing an acceptable balance between the interests of consumers of goods and services and the interests of those who supply them? OR How satisfacty is the current law in relation to exclusion clauses in consumer contracts? Balance between interests of consumers and interests of suppliers Evaluation of the protection provided by statutes such as the Sale of Goods Act 199 and the Supply of Goods and Services Act 1982 Evaluation of the remedies available, including an evaluation of protection provided by statuty and common law restrictions on the use of exemption clauses, and issues of enfcement (including knowledge of rights, access to, and funding of, advice and other assistance) Evaluation of the contribution of the criminal law to the protection of rights available to consumers Exclusion clauses Evaluation of the common law approach Evaluation of the statuty approach in UCTA and UTCCR to liability which cannot be excluded Evaluation of the statuty approach in UCTA and UTCCR to liability which can be excluded subject to a requirement of reasonableness Note: (1) Credit will be given f framewk explanations where appropriate. (2) Answers to this question can be marked accding to the 3 potential content the 2 potential content scheme. Answers which deal with all three of - can, therefe, be marked as 2 potential content with the treatment of the third enhancing the treatment of either both of the other two. In any case, answers which deal with all three of - may be expected to be a little less detailed in the treatment of all any than those which deal with two only. 24

25 8 Total f this question: 5 marks (a) Discuss the rights and remedies of Emma and of Helen against Gerry s ste and against Fastclean in connection with the bottles of stain remover. In relation to Emma the obligations imposed by the Sale of Goods Act 199 (as amended) in terms of description, satisfacty quality, and fitness f purpose In relation to Helen - the issue of privity of contract and the rights under the Consumer Protection Act 198 against Fastclean (possible alternative in negligence) Remedies, in relation both to and damages and rejection, including loss of the right to reject (b) Taking account of both criminal and civil law, discuss the rights, duties and remedies applicable to Emma and to Surestitch, arising out of the Surestitch advertisement and of the alterations to Emma s clothes. Potential content In relation to the Surestitch advertisement possible breach of the Trade Descriptions Act 1968 concerning the provision of services In relation to the alterations undertaken the effect of the Supply of Goods and Services Act 1982 in respect of reasonable care and skill and reasonable time f perfmance The remedies f breach damages, and the effect of the purpted limitation clause, including the issue of reasonableness 25

26 (c) EITHER To what extent do you consider that the law has succeeded in establishing an acceptable balance between the interests of consumers of goods and services and the interests of those who supply them? OR How satisfacty is the current law in relation to exclusion clauses in consumer contracts? Balance between interests of consumers and interests of suppliers Evaluation of the protection provided by statutes such as the Sale of Goods Act 199 and the Supply of Goods and Services Act 1982 Evaluation of the remedies available, including an evaluation of protection provided by statuty and common law restrictions on the use of exemption clauses, and issues of enfcement (including knowledge of rights, access to, and funding of, advice and other assistance) Evaluation of the contribution of the criminal law to the protection of rights available to consumers Exclusion clauses Evaluation of the common law approach Evaluation of the statuty approach in UCTA and UTCCR to liability which cannot be excluded Evaluation of the statuty approach in UCTA and UTCCR to liability which can be excluded subject to a requirement of reasonableness Note: (1) Credit will be given f framewk explanations where appropriate. (2) Answers to this question can be marked accding to the 3 potential content the 2 potential content scheme. Answers which deal with all three of - can, therefe, be marked as 2 potential content with the treatment of the third enhancing the treatment of either both of the other two. In any case, answers which deal with all three of - may be expected to be a little less detailed in the treatment of all any than those which deal with two only. 26

27 ASSESSMENT GRID (to show the allocation of marks to Assessment Objectives) A Level Law (LAW5) (One question to be answered from 8) UNIT 5 AO1 AO2 AO3 Question 1 (a) Question 1 (b) Question 1 (c) Question 2 (a) Question 2 (b) Question 2 (c) Question 3 (a) Question 3 (b) Question 3 (c) Question 4 (a) Question 4 (b) Question 4 (c) Question 5 (a) Question 5 (b) Question 5 (c) Question 6 (a) Question 6 (b) Question 6 (c) Question (a) Question (b) Question (c) Question 8 (a) Question 8 (b) Question 8 (c) Total marks % of the A % of the A Level