GCE EXAMINERS' REPORTS LAW (New) AS/Advanced SUMMER 2009
Introduction Summer 2009 is the first award of the new AS. For all specifications there have been changes to the content of the units, and in many new marking criteria have been introduced and unit weightings altered. Also in some subjects there has been the withdrawal of internal assessment. However, the biggest change in most subjects has been the reduction from a three to a two unit assessment. In moving to the new specification awarding bodies have sought to maintain the overall United Kingdom standard for AS, as measured by the proportion of candidates achieving grade A and by the proportion achieving a pass grade in each subject. Comparability between old and new specifications is measured in terms of the overall subject outcome and not in terms of unit outcomes. Many of the units in the new specifications will bear little relation to those in the old specifications. Even where they are very similar, it is quite likely that outcomes will be different. The expectation is that the number of A grades at unit level will decrease in a specification where the number of units is reduced, whilst the number of passes will increase. The overall cash-in outcome, however, will be maintained. These same principles will apply to the new A level where a six unit assessment is reduced to a four unit assessment. Statistical Information This booklet contains summary details for each unit: number entered; maximum mark available; mean mark achieved; grade ranges. N.B. These refer to 'raw marks' used in the initial assessment, rather than to the uniform marks reported when results are issued. Annual Statistical Report The annual Statistical Report (issued in the second half of the Autumn Term) gives overall outcomes of all examinations administered by WJEC. Unit Page LA1 2 LA2 4
LAW General Certificate of Education 2009 Advanced Subsidiary Chief Examiner: Professor Iwan Davies, LLB (Cantab), LLM PhD (Wales) of Gray s Inn, Barrister, Swansea University General Comments This is the first summer report on the new two part AS Level Law structure. The performance of the candidates was a little disappointing as too many candidates adopted generalized answers with little or no particular detail. Many candidates failed to appreciate the cross cutting themes of Human Rights and the significance of the European Union Law in terms of its impact on the law of England and Wales. Nevertheless, there were some truly outstanding scripts with commendable detail as well as relevant citation. There were no particular problems relating to rubric in respect of either paper. Unit Statistics The following statistics include all candidates entered for the unit, whether or not they 'cashed in' for an award. The attention of centres is drawn to the fact that the statistics listed should be viewed strictly within the context of this unit and that differences will undoubtedly occur between one year and the next and also between subjects in the same year. Unit Entry Max Mark Mean Mark LA1 2207 50 26.0 Grade Ranges A 37 B 32 C 27 D 23 E 19 N.B. The marks given above are raw marks and not uniform marks. 1
Paper LA1 Q.1 A very popular question and generally answered well. Some students were confused by the common law element of the question and manufactured a judicial precedent answer. This is easily avoided by emphasizing that precedent is now contained in the LA2 element. The majority of the answers concentrated on the historical development of the common law by the itinerant judges of the Norman Conquest. Many students were able to cite the rigidity of the common law as a growing problem that led to the development of equity and that equity was a means for petitioning directly to the King for a fairer decision that the common law could not provide. Generally, the majority of candidates were able to cite the Earl of Oxford s Case as a significant landmark where the King held that equity prevailed. Better candidates were able to discuss the writ system as the root of the problem that made the common law inflexible and unsatisfactory. Although many candidates cited the importance of the Judicature Acts, only the better candidates identified that this allowed all courts to offer both common law and equitable remedies; and only a limited number highlighted that common law remedies were granted by right and equitable remedies by discretion. Many students were able to discuss competently the equitable maxims and the equitable remedies developed (specific performance, injunction, rectification and rescission). However, only a few better candidates mentioned the freezing order (Mareva Injunction) and Searching Order (Anton Pillar Order) as modern developments of equity. Q.2 Another popular question that varied in quality of answer. Too many candidates persist in failing to cite the changes to the selection process of juries afforded by the Criminal justice Act 2003 continuing to claim that certain professions (esp. legal) were disqualified. Most students were able to cite the different types of jury trial (Criminal, Civil, Coroner) but on too many occasions were unable to explain the differences in composition, especially in function and number of jury members. Too many candidates claimed that jury trial was an integral part of the Magistrates Court. The better candidates were able to discuss in detail the problems of civil trial when dealing with fraud cases, several candidates citing relevant case law and the Roskill Committee. Also, the better candidates were able to discuss the benefits and problems of criminal juries (e.g. perverse verdict and jury equity etc.) So far as allowing the legal profession to serve on the juries, better students referred to the guidance issued by the Lord Chief Justice and to cases such as Abdvoikov (2007). With regard to representing the general public, on too many occasions this was dealt with superficially, limited discussion to random selection and the fact that certain social groups were omitted from the electoral register (homeless, young, ethnic minorities). Most candidates were able to evaluate the benefits of the age spectrum, but too many believed the upper limit to be 65 (rather than 65-70 year olds having right of excusal). Only the better candidates extended the discussion to evaluate how this selection process achieved a representative verdict, discussing the secrecy element, the famous Ouija board, competence to deal with complicated facts, and the influence of the media. 2
Q.3 A popular question, although many students struggled with the concept of adjudicative and consensual resolution. This was a general comprehension failure. As a consequence too many students were content upon giving a descriptive list of the different forms of ADR. Too many candidates insisted upon including Tribunals in this question. Unfortunately, this led to too many candidates believing that the four ADR methods (negotiation mediation, conciliation and arbitration) were a stage by stage exercise, and if all four failed led to litigation. There was no mention of mediation and conciliation being forms on conciliatory ADR to avoid litigation and that this is encouraged by the Civil Procedure Rules. Better candidates gave practical examples of ADR, such as Formalised Settlement Conferences, and the importance placed upon ADR by the Family Law Act 1996. They also mentioned Scott v Avery clauses and the Arbitration Act when discussing arbitration. As far as advantages and disadvantages were concerned, basic answers concentrated on time and cost whilst highlighting the difficulty in enforcing the resolution. Better candidates also discussed the fact that ADR often ensured that the parties maintained good relationships due to the informal and consensual nature of ADR. Good scripts also emphasized the importance of having an expert deal with the issue, especially in arbitration, whilst also highlighting the potential problems of lack of legal expertise and the lack of precedent. Most students were able to explain the implications of ADR failing to time and cost, but few linked this to the Civil procedure Rules and adverse costs. Only a handful of candidates noted the fact that ADR could not be compulsory as it contravened the ECHR regarding a fair trial. Q.4 On too many occasions the requirement of the question was misunderstood and students discussed law reform. Those who did attempt this question did so superficially discussing the importance of ensuring that all have access to legal representation without elaborating how this was achieved within the legal system. Almost all candidates who attempted this question were able to identify not for profit organizations that offered legal assistance, most notably the Citizens Advice Bureau. Only a few students mentioned the Community Legal Service set up to manage the provision of legal aid. Better candidates discussed the Clementi reforms and the tendering process currently attracting attention in the media. Q.5 The majority of students who attempted this question were able to mention the importance of equality before the law and refer to the Separation of powers and Dicey. Better discussions introduced current affairs to the discussion, notably Zimbabwe. Answers would have benefitted with greater discussion of judges and their role in promoting the Rule of Law through their independence. Also, there was scope to broaden the discussion to consider the Hart-Devlin debate and the morality of law. Not many candidates discussed the recent Constitutional Reform Act 2005 and changes relating to the role of the Lord Chancellor/Lord Chief Justice and the creation of the Supreme Court. Q.6 Unfortunately too many students treated this as a Source of European Law question it should be noted that this is now contained in unit 2 and the LA2 paper. Students should be made aware that under the new specification that LA1 concentrates on the EU institutions and LA2 on the Sources of EU Law. This resulted in the quality of answer not being as high. Many students were able to accurately outline the different EU institutions and their role. Many also were able to explain how the institutions create new EU Law. Better students were able to describe in some detail the co-operation and co-decision. More discussion of the different procedures is required. On too many occasions the discussion regarding the democracy of the EU was superficial and unstructured. Many students were able to discuss the impact on Member State Sovereignty, but the discussion as to how the difference institutions within the EU were selected was not as strong. Better students were able to highlight that the directly elected and most democratic institution in the EU is the Parliament. 3
Unit Statistics The following statistics include all candidates entered for the unit, whether or not they 'cashed in' for an award. The attention of centres is drawn to the fact that the statistics listed should be viewed strictly within the context of this unit and that differences will undoubtedly occur between one year and the next and also between subjects in the same year. Unit Entry Max Mark Mean Mark LA2 2341 50 23.6 Grade Ranges A 34 B 30 C 26 D 22 E 18 N.B. The marks given above are raw marks and not uniform marks. 4
Paper - LA2 Q.1 (a) This was a very popular question and was on the whole poorly answered. The majority of students rehearsed the rules of interpretation rather than addressing the impact of the Human Rights Act. A large proportion of students attempted to address the European element of this question by discussing the approach taken to interpreting European Union law and referencing the role of the European Court of Justice. A minority of students resorted to a common sense discussion of morality and delegated legislation. A few students did demonstrate a grasp of human rights and were able to reference some Articles with the most popular being the Right to a Fair Trial, Right to Life, Freedom from Cruel and Inhuman Treatment and the Right to Liberty. They were able to briefly discuss Declarations of Incompatibility. Better students made reference to case law with Ghaidan v Goden-Mondoza and R v A being the most popular. However, even the better students were limited in their use of case law and the discussion of the impact, preferring to briefly reference the Human Rights Act as a side issue to a description of the rules of interpretation. (b) On the whole this was answered better by students who attempted this question. The majority of students were able to identify and outline the four rules of statutory interpretation but there are still a minority of centres where the students are unaware of the purposive approach to interpretation. A range of case law was cited the most popular being Whitely v Chappel, R v Allen, Berriman, Re Sigworth, Cheeseman, Smith v Hughes and Royal College of Nursing v DHSS. The cases for the purposive approach were rarer. Most students were confident identifying the issues of interpretation and there were some good discussion about whether the tent was open to the air and whether the holiday makers were local inhabitants. The better students were able to identify aids to interpretation, both intrinsic and extrinsic, although this was more a rehearsed answer with very few students identifying they were using the short title and interpretation section provided by the question. The Rules of Language were well explained where they were referenced. Weaker students adopted a common sense literal approach but these were in the minority and a few students focused exclusively on the mischief and literal approach. Q.2 (a) This was also a popular question and was, on the whole, well answered. Most students were confident identifying the role of the court structure, types of precedent, ratio and obiter. However, some answers were lacking legal authority. Better students were confident in using case law and popular examples include Hunter and Others v Canary Wharf, Balfour v Balfour and Merritt v Merritt, R v Howe and R v Gotts, R v R, Herrington, R v Shivpuri, Pepper v Hart. Students were more confident describing precedent than discussing how judges could avoid them but a large number of students were able to discuss overruling, distinguishing and the implications of the Practice Statement. However, a small proportion seemed to separate overruling and the Practice Statement as completely different powers or noted that you needed different facts in order to use the Practice Statement. Reversing caused the students greater difficulty and only a very small number of students correctly identified the power. 5
(b) There was a range of answers to this question. Weaker students were unable to identify that the 19 th century case set a precedent for the 2007 case and proceeded to consider whether the judge should depart from both cases. Alternatively there was a soap box answer with common sense discussion about morality. Average students were more comfortable discussing distinguishing but they often referenced the Practice Statement as a side issue. These students were comfortable outlining both powers but were weaker applying the powers and using case law to support their answer. Q.3 (a) This was another popular question but the answers given were varied. Students reverted to describing the statistics shown in the graph and some basic conclusions were drawn. They were able to discuss the lack of representation in relation to BME and disabled applicants. A significant proportion of students wanted to widen applications from people from outside the legal profession believing too many barristers and solicitors were being appointed. Better students were able to draw on lessons to make basic observations about the public perception of the judiciary. Only a very small proportion of student referenced the historical position of appointing the judiciary and the role of JAC in achieving a more representative judiciary. However, even these answers were basic with little consideration given to the process of appointment and the qualities needed. (b) On the whole this was poorly answered. Some students reverted to describing the different types of judges rather than discussing their role. Other students discussed their work in the courtroom identifying their role in directing juries, deciding civil cases, deciding the sentence or outcome and making reference to case management. A very few students referenced the separation of powers but it was usually a side issue. The answers lacked depth and evaluation. Q.4 (a) This was not a popular question with only a handful of students attempting it. Of those that did the majority were able to identify pressure groups, the judiciary, Royal Commissions and the media with the better students providing descriptions and examples such as the Runciman Commission and R v R. Some students described the role of the Law Commission exclusively but they were in the minority. (b) This question was well answered. Students identified the role of the Law Commission and provided statistics outlining its success. Better students used examples and were able to discuss the fact that new procedures such as the Jellicoe Procedure had been introduced to deal with some lack of success. GCE Law (New) Examiners Report (Summer 2009)/WP Section/ALM/09/09/09 6
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