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Questions and Answers on Critical Methodology

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Critical methodology (max 800 words/20% overall marks) QUESTION 1 (i)In the context of legal abbreviations, what do the following stand for?
  1. H.R.L. Rev
  2. Yale L.J.
(ii)Please give a critical evaluation of appropriate online and offline methodologies you might use to accurately identify such items. Solution to Question 1 (i)Using Raistrict (2008), the legal abbreviations; (a)H.R.L. Rev means Human Right Law Review. (b)Yale L.J. means Yale Law Journal. (ii) A critical evaluation of appropriate online and offline methodologies you might use to accurately identify the journals are detailed below; Appropriate online methodologies that can be used to identify the abbreviation include electronic law indexes such as the Westlaw, Lexis and online legal abbreviation websites. Using this approach allows the simplicity and comfort of conducting the search electronically without limit. However, not all legal material is available online. The offline methodologies could includes searching the library manually using shelf-end index cards, using books on legal citations and abbreviation such as Raistrick and textbooks on English Legal System makes it possible to match this legal abbreviation to its meaning. This method is time consuming when compared with the online approach. QUESTION 2 (i)What is the difference between primary and secondary legal sources? (ii)Would primary or secondary sources be found in the volumes located for Q1(i)? Solution to Question 2 (i)The difference between primary and secondary legal sources is that the primary sources of law contain the actual text of law itself, they are the written rules that govern the behaviour with society, they can affect the legal rights of citizens and this includes the statutory law and the case law while the secondary legal sources are background resources that comment on law to supplement the primary sources and they provide enlightening value for the relevant primary sources of law (Gillespie, 2013). (ii)Yes, Both sources would be found in the volumes located for Q1(i) above. In Human Rights Law Review 2014 volume 14, at page 175-195, References were made to a case law of Sunday Times v United Kingdom and a journal article by Habermas on The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society which are primary and secondary source respectively. QUESTION 3> Please locate a full transcript Pusey v Somerset CC (2012) then answer the following with reference to that transcript:
  1. What is the neutral citation for this case?
  1. Which judges heard the case and in which court?
  1. What factual events have motivated the appellants to bring a case?
  1. Is the court you found for question 3(b) bound by the Supreme Court?
Solution to Question 3
  1. [2012] EWCA Civ 988
  1. The judges were Ward, Longmore and Patten LJJ in the Court of Appeal, Civil Division
  1. Nuisance alleged to have arisen from the use of a strip as a lay-by
  1. The Court of appeal Civil Division is bound by theSupreme Court of the United
Kingdomwhen making decisions, and is normally bound by its own previous decisions. QUESTION 4 Critically evaluate the following methodologies for locating statutes:
  1. Generic search engines
  1. Library Hard Copy of Public General Acts and Measures.
Solution to Question 4
  1. Generic search engines involve using the common search engine in locating statutes. This allows the search of a broad context for the relevant statute. It allows the ease and comfort of conducting the search electronically without limit and can access all that are available in the database related to the statute. However, this methodology carries some concerns; statutes located may not relate to the proper jurisdiction or may not be official and reliable. Checking the authenticity and integrity of the statutes is also a concern as some of the statutes located by this means may no longer be in their original context which might have omit important information about the law. Therefore, it is difficult to know laws that have been amended, repeal or not in force. Some online statutes are written by author without a well ground knowledge about the law. Statutes are date sensitive and generic search engine makes it difficult to verify this.
  1. Library Hard Copy of Public General Acts and Measures allows locating of statutes in their original context as they are kept in the hard copy, as they have been written with no modification. This gives more reliable and dependable laws that have been enacted. They ensure that laws located in them are of maximum integrity. Easy to locate laws that are relevant to the proper jurisdiction. Hard copy allows dates verification as legal information is often date sensitive and makes it possible to know if the law is still in force. Also, many statutes are available in printed form than the online version. The major problem of this methodology is that hard copy of Public General Acts only shows the laws that were enacted and not amended. Accessing necessary statute can be difficult, tedious and also time-consuming.
QUESTION 5 What is unusual about the enacting formula of the Hunting Act 2004 c.37? Solution to Question 5 An occasionally used legislative device: the Parliament Acts 1911 and 1949, which allows the Commons to over-rule the Lords where agreement cannot be reached, was invoked in enacting the Law. QUESTION 6 Provide, verbatim, the long title of the Data Retention and Investigatory Powers Act 2014 c. 27. Solution to Question 6 “An Act to make provision, in consequence of a declaration of invalidity made by the Court of Justice of the European Union in relation to Directive 2006/ 24/EC, about the retention of certain communications data; to amend the grounds for issuing interception warrants, or granting or giving certain authorisations or notices, underPart 1of theRegulation of Investigatory Powers Act 2000; to make provision about the extra-territorial application of that Part and about the meaning of “telecommunications service” for the purposes of that Act; to make provision about additional reports by the Interception of Communications Commissioner; to make provision about a review of the operation and regulation of investigatory powers; and for connected purposes” Bibliography
  1. Data Retention and Investigatory Powers Act 2014, c.27 Available at: http://www.legislation.gov.uk/ukpga/2014/27/contents/enacted (Accessed: 27 November 2014)
  1. Gillespie, A. (2013) the English legal system, 4th edition, Oxford: Oxford University Press
  1. Raistrict, D. (2008) index to legal citation and abbreviations, 3rd edition, London: Thomson/Sweet & Maxwell
Case Review (max 1,500 words/40% overall marks) Please produce a review of the salient legal points of the following case Lord McAlpine of West Green v Bercow [2013] EWHC 1342 (QB), which should include the court in which the case was heard; who heard the case; what you perceive the key arguments in the case to be; whether you consider the case to be correctly decided and the reasons for this conclusion.
Social media offers unique opportunities to share information, ideas, and opinions. It is fast becoming the preferred mode of communication and interaction[1]. It promote freedom of expression by empower people to freely express themselves. This freedom of expression needs to be exercise with prudence as some expressions could have serious legal implications. This essay reviewed a case between Lord McAlphine v Sally Bercow which originated from a post on twitter. It was a libel case heard by Mr. Justice Tugendhat in the High Court of justice Queen’s Bench Division. It shows how words can be said to be libellous even without it clearly defames someone or having the intention of making it to be. The essay is structured into four sections; section two discusses the facts of the case, section three explains the judgement, and the last section analyses this judgement based on the key arguments of the case.
  1. FACTS
A BBC current affair programme Newsnight, broadcasted a report on the 2nd of November, 2012, about an undisclosed “leading Conservative politician from the Thatcher years” who was involved in a serious allegation of child abuse. This later turned out to be a case of mistaken identity where the accuser has misidentified his abuser[2]. On the 4th of November 2012, Bercow posted a tweet which reads: “Why is Lord McAlpine trending? *Innocent face*” [3] the claimant said that the tweet defame him and brought proceedings for libel against the defendant. The court was asked to determine what the statement means and whether it really defames him[4]. The next section explained how Mr. Tugendhat came into conclusion based on the facts of this case using the legal principle.
The judge inferred that there were considerable number of viewers of the Newsnight report and by “4th November 2012, many people had read” one or more media reports about it which included a considerable “readers of the tweet”[5]. He quoted some legal principles governing the interpretation of words in the law of libel. He referred to the case of Jones v Skelton[6], where the court stated that the “ordinary and natural meaning of words” may contain any implication or assumption which a reasonable reader guided by only the general facts and not restrained “by any strict legal rules of construction would draw from the words”[7]. He explained that a defamatory meaning is one inferred on the basis of other external facts which the claimant has to establish that they are well known to the readers[8]. Also, the governing principle for meaning is reasonableness, where the reader can indulge in loose thinking and “some inference is allowed but the reasonable reader is not keen for scandal and the intention of the writer is irrelevant” as explained in the case of Jeynes v News Magazines Limited[9]. Mr. Tugendhat said that most followers of the defendant were interested in politics and current affairs and even without previous knowledge of the claimant, a reasonable reader would have linked him to the Newsnight report since the tweet named him by his title Lord which is used for people that have held prominent position in public life. In addition to his situation where he had little publicity at that time and there was rumour about the identity of an undisclosed politician who had been prominent some years back[10] The parties disagreed on “what the words innocent face should mean” in which the claimant submitted that it is contrary to its exact meaning, while the defendant argued that it should be read in a literal way. Mr.Tugendhat concluded that sensible reader would interpret the words “innocent face” as being deceitful as there was no explanation for adding them if the defendant was simply asking a factual question[11]. It was decided that the defendant does not have any good reason as to why someone whose name and career is not well known publicly, will be trending without her knowing why. But where “the defendant was telling her followers on twitter that the claimant was trending and there is no other justification, then, it is sensible to infer that he is trending for the reason that he fits the description of the undisclosed abuser[12]. Therefore, taking into consideration the repetition rule which states that a “person who repeats a libellous allegation made by others is treated as if the allegation were made by him”[13], in this case, the defendant would be treated as if she made the allegation on Newsnight and other media report which is an allegation of guilt[14]. As a result, the judge concluded that: “The Tweet meant, in its natural and ordinary meaning, that the Claimant was a paedophile who was guilty of sexually abusing boys living in care[15]. In other words, that the tweet bore an innuendo meaning to the same effect but one that was understood by a small number of readers.”[16]
As explained in Sarah Thornton v. Telegraph Media Group[17],a defamatory allegation must name the claimant and they must largely affect in an adverse way the behaviour of other people toward the claimant or have the probability to do so[18]. It is well established “that the tweet refers to the claimant”, since it named him. The argument is what the statement means and whether it really defames him[19]. Natural and ordinary meaning of words covers both the words themselvesandinferences which can be drawn from them. But the meaning must be detected by a person using the common knowledge as explained in the case of Jones v Skelton[20]. In deducing the meaning of words, the personal intention of the writer is irrelevant as a reader would apparently work out what the writer is trying to say. In this situation, a reader would try to find out the reason for the defendant question. Mr. Tugendhat was right to have concluded that a reader would understand the words innocent face to be insincere because there is no basis for adding those words if the defendant was simply asking an honest question. In a circumstance where readers have background knowledge of the Newsnight broadcast, the media reports and claimant position as a formal senior Conservative politician from the Thatcher years, they can also have inferred that the Tweet meant the claimant is trending for the reason that he is the paedophile who was the subject of the media report.Considering the numbers of the defendant followers that share her interest in current affairs and politics, with a number of them re-tweeting the words, it is very clear that some of the defendant’s followers on twitter would have the relevant knowledge of the extrinsic facts. These opinions support the Judge’s conclusion on assigning an innuendo meaning to the tweet. Nevertheless, there is ground for arguing about the issue of lack of alternative explanation mentioned by Mr. Tugendhat [21] because, it is complicated to see how a reader of the Tweet who had paid no attention to the broadcast and media report could have probably understood the tweet in a defamatory way. Also, the failure to determine the number of followers that understood the tweet in a defamatory meaning affects the conclusion. In Jameel v Dow Jones & Co[22], the court decided that “if the number of readers who can be proved to have read the words complained of is very small, then, it can be one of the factors which may lead the court to conclude that there has been no real and substantial tort alleged”[23]which was not considered here. CONCLUSION I do not think that Mr. Tugendhat could have come to any other conclusion on the facts of this case. The decision can be accepted on the ground that the reliance on an inference to establish that some readers had the required information of the special facts can be complicated as not all the readers of the tweet paid attention to the broadcast and media. But on the condition, that the tweet named the claimant and technically bore an innuendo meaning which would substantially affect people’s attitude towards the claimant. Bibliography Hammond, 'The Telecommunications Act of 1996: Codifying the Digital Divide' (1997) 50 Federal Communication Law Journal 179 at 185. Jameel v Dow Jones & Co [2005] 2 W.L.R. 1614 Jeynes v News Magazines Limited [2008] EWCA Civ. 130 Jones v Skelton [1963] 1 WLR 1362at 1370-1371 Lord McAlpine v. Bercow [2013] EWHC 1342 (QB) Sarah Thornton v. Telegraph Media Group [2010] EWHC 1414 (QB) Tully, Stephen ‘A Human Right to Access the Internet? Problems and Prospects’ Human Rights Law Review 2014, 14, 175-195. Critical analysis of journal articles (max 3,500 words/40% overall marks) Your articles to find (available online) and critically analyse are: (i) Tully, Stephen ‘A Human Right to Access the Internet? Problems and Prospects’ Human Rights Law Review 2014, 14, 175-195 (ii) Frantziou, E ‘Further Developments in the Right to be Forgotten: The European Court of Justice’s Judgment in Case C-131/12, Google Spain, SL, Google Inc v Agencia Espanola de Proteccion de Datos’ Human Rights Law Review 1-17 Your critical analysis should consist of a consideration of the key issues addressed in the articles; consideration of how persuasive and illuminating the authors’ analysis and argument appears to be; where the arguments could be clarified; further contextualised or developed, and potential linkages between the articles.
[1] Hammond, ' The Telecommunications Act of 1996: Codifying the Digital Divide' (1997) 50 FCLJournal 179 at 185. [2] LORD MCALPINE V. BERCOW [2013] EWHC 1342 (QB) at paragraph 15 [3] Ibid. at paragraph 3 [4] Ibid. at paragraph 1 [5] Ibid. at paragraph 30 [6][1963] 1 WLR 1362at 1370-1371 [7]LORD MCALPINE V. BERCOW [2013] EWHC 1342 (QB) at paragraph 48 [8] Ibid. at paragraph 50 [9] [2008] EWCA Civ. 130at paragraph 14-15 [10] LORD MCALPINE V. BERCOW [2013] EWHC 1342 (QB) paragraph 83 [11]Ibid. at paragraph 84 [12]Ibid. at paragraph 85 [13] Ibid. at paragraph 44 [14] Ibid. at paragraph 88 [15] Ibid. at paragraph 90 [16] Ibid. at paragraph 91 [17] [2010] EWHC 1414 (QB) [18] Ibid. at paragraph 51-59 [19] Ibid. at paragraph 37 [20] [1963] 1 WLR 1362at 1370-1371 [21] LORD MCALPINE V. BERCOW [2013] EWHC 1342 (QB) at paragraph 85 [22] [2005] 2 W.L.R. 1614 [23] Ibid. at paragraph 74
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