Legal Method and Legal Writing

1. Legal Method and Legal Writing • What we cover today falls into 3 main categories • 1. Style or features of a Public General Act or Statute and a Statutory Instrument • 2. Features of reported decisions – law reports • 3. Computerised information retrieval, to give it its formal name, but which simply means using computers instead of printed copies of material to locate relevant information

2. Statutes and statutory instruments

3. Feature / styles of Public General Acts or Statutes Coat of Arms You'll notice that the term act is interchangeable with the word statute.

4. Short title Acts are usually referred to by a shortened version of their title proper and the year in which it was published, so here we have the Human Organ Transplants Act 1989

5. Citation Each statute has an official reference or citation. These are the chapter numbers which appear below the short title. This reference consists of the year in which the act was passed and a running chapter or act number. So the act in front of you was the 31st Act passed in 1989. When writing, the chapter number can be abbreviated to c., as you'll see on the top right hand corner of the first page. See over........

6. This system began in 1963 • Prior to this statutes were referred to by the regnal year (that is the appropriate year of the monarch's reign), and the chapter number. So, for example, the official citation of the Highways Act 1959 would appear as:- • 7 & 8 Eliz.2.c.25 • i.e. the 25th Act passed in the 7th and 8th years of Elizabeth II's reign. The year is calculated from the date of accession, and so a parliamentary session can span more than one regnal year. However, it's quite in order to refer even to a pre-1963 act using the modern terminology, i.e by its short title. However it is useful to know what these references are if you see them.

7. Long title Describing the Act in more detail Date of Royal Assent A bill on receiving the Royal Assent becomes an Act of parliament, but as we'll see shortly, the act does not necessarily become operative or "in force" on that date

8. The final part before the text proper are the word of enactment or the enactment formula, although in very old Acts you may find the preamble before this. This would outline the evil the act was supposed to remedy. Then the text proper begins.......

9. Section Numbers Then the text proper begins. The numbers in bold type without brackets are the section numbers, written s.1. Subsections Section 1 has 5 sub-sections indicated by numbers in brackets e.g. s.1 (2) is section 1 sub-section 2. These sub-sections can be further broken down as again you can see in section 1; so s.1.(2) (a) is section 1 sub-section 2,a. Some Acts have further subsection (i)

10. Marginal Notes You will notice notes in the right hand margin. These are imaginatively called marginal notes, and are useful guidelines when scanning through an Act. Part Numbers Something we don't have in this Act, but which is common in longer Acts are part numbers. Sections on similar subjects are grouped together in parts... see, for example, the Companies Act 2006: 47 Parts Over 1300 Chapters 16 Schedules

11. Towards the end of an Act (in this case, s.7) is usually contained information as to when the act is to come into force, what it is to be called, and to which territories it extends (many do not apply to Scotland or Northern Ireland.) In this case (see s.7 (3)) as is often the case, the act will be brought into force by statutory instrument, but look at the added detail in s.6 as to Northern Ireland.

12. Interpretation In longer acts, you sometimes find what is called an interpretation section, which defines terms used in the act. There is a very short interpretation section in this act at s.7 (2). See over......

14. The final part of the act usually consists of schedules and tables • The Human Organs Transplant Act is so short it doesn't have this feature • The schedules contain the fine detail of the act, and the tables show how this act has affected other acts • Some very substantial acts have destination tables showing what has happened to re-enacted legislation • Schedules have paragraphs and not sections and can be very complex in structure

15. Statutory Instruments • I think at this point, we’ll look briefly at Statutory Instruments – • The one we are going to look at is SI 1998 No, 1428 - the Human Organ Transplants (Establishment of Relationship) Regulations 1998

16. Statutory instruments – a form of delegated legislation, • Parliament delegates the power to make this type of legislation to another body, in the case of this SI, the other body is the Secretary of State • SIs are therefore a type of secondary legislation whereas the Act governing them is primary legislation • They have to be made under the specific auspices of an Act, but allow considerable flexibility due to the speed with which they can be passed compared with a piece of primary legislation • In this case, the use of an SI means technological developments can be accommodated swiftly into the legislation

18. The numbering of SI is simple - they start in January of any given year at no 1 and carry on till December 31st! • So the one we have in front of us the 1,428 created in 1998 • It will always tell you the legislative power conferring the right to make this type of legislation (in this case, the 1989 Act) and you will also have the dates of the procedural steps taken before this came into force. • “In exercise of the powers conferred by section 2(2) of the Human Organ Transplants Act 1989 and of all other powers enabling him in that behalf, the Secretary of State hereby makes the following Regulations:” • On a practical note, SIs have paragraphs and not sections like an Act

19. Reports and judgements

20. Style of reported decisions • This covers features of the reported decisions of the courts or law reports • The case we are going to look at is, British Amusement Catering Trades Association v. Westminster City Council [1987] 2 All ER 897 • We are not going to look at the law in this case, but at its structure.

21. The names

22. The name • British Amusement Catering Trades Association v. Westminster City Council • The names of the parties involved in the case • Here, it is a civil case in the Court of Appeal • The first name, British Amusement Catering Trades Association is the name of the appellants (i.e those appealing against an earlier decision). These would be the plaintiffs in the original action • Westminster City Council is the respondent (i.e. those defending the appeal); it would have been the defendant in the original action. You can often only figure this out by reading the details of the case •  The v. is an abbreviated form of versus. In this case, being a civil case, the v. is pronounced "and", in a criminal case, it would be pronounced "against" as in R. v. Smith. This is Regina or the Crown against Smith.

23. The court and the judges The dates of the hearing and decision

24. The italicised words are the keywords, and are a summary of the main issues of law in the case. These are very brief and will always contain the statutory provisions relied on. Their order is very specific, with the more general matter appearing first.

25. The following section is the headnote, which is a slightly more detailed resume of the case. • This summarises the facts of the case, and also the court's ruling where the word "held" appears, together with a summary of the reasoning. • You'll notice several points here:- • The headnote quite clearly sets out what the main questions involved in the case are (‘held’) • Reference is made to parts of the opinions using page and letter; for example, look at page 897, at g.

26. You will also see notes in this case. These refer to 2 encyclopaedic works; Halsbury's Laws and Halsbury's Statutes. Halsbury’s Laws is available in print and electronic format and is a sort of legal encyclopedia.

27. The section "cases referred to in judgments" is exactly that; cases referred to by the judges in giving their opinions. Often there is a further section of cases referred to by counsel (barristers representing the parties)

28. If you look at the reference to the case of Jackson v. Hall [1980] 1 All ER 177, [1980] AC 854, [1980] 2 WLR 118, HL • This gives the date of the case, 1980, in square brackets as the date is an essential part of the reference • The rest of the reference tells you to look at volume 1 of the All England Reports for that year at page 177. • The date is an essential part of the reference because in this series of reports 3/4 volumes are published each year, and the numbering starts afresh each year, so if you only knew the case appeared in volume 1 of the All E.R., you'd never be able to trace it from that alone. • Note also that for this case an alternative reference is given to the Appeal Cases Reports, that is AC, and the Weekly Law Reports, that is W.L.R., as important cases may appear in several different series of reports many of which are produced by commercial publishers (the nearest thing we have to “official” series of law reports are those by the Incorporated Council of Law Reporting – i.e Appeal Cases, Queen’s Bench Division, Family Division, Chancery Division reports of the series called The Law Reports). Provided you're looking at the report of the same level of court in each set of law reports, you'll find exactly the same material in each separate series.

29. One new type of abbreviation some of you have may already come across is what is called a neutral citation. These are of the form:- Smith v. Jones [2001] EWCA Civ 10 or (after 2002) [2002] EWHC 124 (QB) – i.e. the position of the name of the court has altered position in the citation. These came into being in 2001 and are to facilitate electronic reporting of judgments on the Web. Every division of the High Court and the Court of Appeal will use these references and there are no page numbers. They consist of the year, the court and the judgment number. You will see them in tandem with the regular type of reference such as I’ve mentioned above, and these must always be quoted when the judgment is cited in a later judgment. These do not exist in print so please don’t waste time searching for them! There is a library guide available on the Web which gives common abbreviations of law reports and periodicals, but please note this is not exhaustive; you will find a more exhaustive list from the University of Wales which can be found bookmarked on the Law part of the library home page.

30. One further point on citation - often a textbook will give a reference with a comma after the page reference, followed by a further page number. This is a shorthand way of referring to a specific page in a case report So the reference [1984] 1 All E.R. 836, 838 refers to something appearing on page 838, but the case begins on page 836.

31. "Appeal" gives a summary of the previous action, followed by which counsel appear and for which party. The court here took time to think about their decision, (cur ad vult or curia advisarevult – “the court will consider the matter”) which accounts for the difference in the date at the very beginning of the case; they heard the argument on the 5th and 6th March, but actually delivered judgment on the 26th.

32. Next appears the date of the judgments, and the judgments themselves. These are probably the most important part of the entire report. You'll notice that Lord Justice Balcombe delivers the first judgment, and we have Lord Justice Nourse delivering a dissenting judgment. As they decide on a majority verdict it is important to read all these dissenting judgments if they exist, as it is, of course, to read all the judgment. Don't be tempted to rely solely on the details in the headnote, tempting though it might be if you have a number of cases to work through. You’ll never learn about the processes involved in legal reasoning from the headnote alone.

33. At this point I want to mention a couple more Latin tags: • Ratio decidendi: “reason of deciding” • Obiter dictum (or dicta): “by the way” • In terms of a judgment the Ratio is the logical basis for the judicial decision and the Obiter is more of a reasoned aside. • See later

34. Electronic sources

35. What you have in front of you is hardcopy, but in law, as in many other fields, there are computerised methods of finding information. We have several electronic products in the School of Law; LexisLibrary and Westlaw are the two major ones we use and indeed you may have already seen what these look like if you’ve been adventurous or spoken to any of the second or third year students A database is simply a fully searchable electronic collection of material usually geared towards a specific subject You will have demonstrations of both databases and of a third called justis.com, but do use them in advance of this session; don’t wait – they’re not that hard to use.

43. Lies, damn lies and wiki-nonsense • Timesonline August 25, 2009 : “Wikipedia to end editing free-for-all” • “Wikipedia, the online encyclopedia, plans to introduce a new editing process to combat vandalism on the site. In response to growing instances of false information being deliberately inserted, particularly into entries connected to living people, the Wikimedia Foundation, the charitable trust that runs Wikipedia, will soon instigate an editorial approval process that appears to fly in the face of its open-access policy.”

44. Timesonline: “The 10 biggest Wikipedia hoaxes” • Robbie Williams was briefly listed, before Wikipedia enthusiasts excised the somewhat surreal slur, as “eating hamsters for a living in and around Stoke". • Relatively unknown in Britain, John Siegenthaler Snr, a USA Today journalist, acquired an undeserved notoriety in 2005 when he was the victim of one of the longest-running examples of Wikipedia vandalism. For about 132 days the encyclopedia listed him as having had a hand in the assassination of his former employer, John F Kennedy. • The teenage Tony Blair had, it was fleetingly asserted in February 2006, posters of Hitler on his bedroom wall. • The claim that David Beckham kept goal for an 18th-century football team is one of the most-quoted examples of wiki-vandalism, but its sheer silliness meant that it fooled no one. • It isn’t always individuals that are targeted: The village of Denshaw in Greater Manchester fell victim to a Wikipedia contributor with a grudge who wrote that it was "the home to an obese population of sun-starved, sheep-hurling yokels with a brothel for a pub and a lingering tapeworm infection".

45. Any questions?

46. Essay Writing and Referencing

47. Essay Writing – The Basics • Choosing the question • Collecting materials • Reading and making notes • Planning and structuring • Presentation, style and referencing

48. Choosing the Question and Collecting Materials • If you have a choice, choose your questions carefully – do some initial reading as this will help you AND will give you an idea of how much research you need to do • Collecting material – use databases such as LNB and Westlaw – use footnotes in books and articles for more sources using the web is rewarding but risky – make sure you check the validity of your sources (are they current?) – if in doubt, leave it out! http://www.vts.intute.ac.uk/detective

49. Reading and Making Notes • Takes notes on your materials – THINK about the material – have your own ideas • Keep accurate information on all the sources you’ve used (more about that later)

50. Planning and Structuring • Do an outline of your essay: what is the main topic covered by the question? what are the specific concepts, theories or principles demanded by the question? what conclusions can be drawn?