THIS PAPER IS NOT TO BE REMOVED FROM THE EXAMINATION HALL

DIPLOMA IN LAW/CertHE COMMON LAW LA1031 ZB

LLB
BSc DEGREES WITH LAW

Legal system and method

Friday 10 May 2019: 10.00 – 13.15

DO NOT TURN OVER UNTIL TOLD TO BEGIN

Candidates will have THREE HOURS AND FIFTEEN MINUTES in which to

answer the questions. Candidates must answer all parts of a question unless
otherwise stated.

Candidates must answer the COMPULSORY questions in PART A, TWO from

the SIX questions in PART B and the COMPULSORY question in PART C.

Answer Questions 5 to 7 by writing the letter you think is the correct answer in
the answer booklet.

NOTE: Candidates may detach the sections of the Guardianship (Missing

Persons) Act 2017 from pages 6 to 9 of this question paper for ease of
reference in answering Question 14.

Permitted materials
None.

© University of London 2019

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PART A

Candidates must answer these COMPULSORY questions about the seen case
Swift v Secretary of State for Justice [2013] EWCA Civ 193.

1. Explain the claimant’s (Ms Swift) Convention claims under the European
Convention on Human Rights.

2. What reasons does Lord Dyson MR give for his conclusion that ‘a wide
margin of discretion should be accorded to the legislature’ in this case?

3. Describe the ‘proportionality’ issue as explained by Lord Dyson MR.

4. What is the ratio decidendi of this case?

5. In his judgment, Lord Dyson MR says: ‘The Act contained no provision

for the right to claim damages for loss of dependency by cohabitants’.

Which ONE of the following Acts is he referring to?

a. The Fatal Accidents Act 1976

b. The Administration of Justice Act 1982
c. The Civil Partnership Act 2004
d. The Human Rights Act 1998

6. Eady J (the judge at first instance), cited by Lord Dyson MR, made a
number of comments about the two-year period. Which ONE of the
following did he NOT say?

a. The two-year period is a bright line which provides a practical means

of achieving a legislative objective.
b. The two-year period is disproportionate and arbitrary.
c. Where the balance should be struck is a matter of social policy.
d. The two-year period is well within the broad margin of appreciation
allowed in the context of decisions on social policy.

7. Which of the following, according to Lord Dyson MR, is the legitimate

aim of section 1(3) of the Fatal Accidents Act?

a. To confer a right of action on dependents of primary victims of fatal

wrongdoing to recover damages in terms of their loss of dependency.
b. To confer a right of action on dependents of primary victims of fatal
wrongdoing to recover damages in terms of their emotional distress.
c. To confer a right of action on dependents of secondary victims of
fatal wrongdoing to recover damages in terms of their emotional
distress.
d. To confer a right of action on dependents of secondary victims of
fatal wrongdoing to recover damages in terms of their loss of
dependency.
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PART B

Candidates must answer TWO questions in this section.

8. Describe the sources of English law and explain which takes precedence
or primacy over the other.

9. ‘Only if judges follow the reasoning and decisions of their judicial

colleagues will the common law become certain and predictable.’

Explain how judges follow the reasoning of other judges and discuss the
benefits of having certainty in the law.

10. ‘If the words of an Act are clear, you must follow them, even though they
lead to a manifest absurdity. The court has nothing to do with the
question whether the legislature has committed an absurdity.’ (Lord
Esher MR.)

Explain why the literal rule has generally been abandoned by the courts
and discuss how approaches to statutory interpretation today have
improved statutory interpretation.

11. ‘The Judicial Appointments Commission, the senior judiciary, and the
legal professions have all expressed their commitment to a diverse
judiciary, but despite this commitment, little has changed.’

Describe the attempts by the Judicial Appointments Commission and

others to create a diverse judiciary and discuss why these have not
resulted in significant changes.

12. ‘The Legal Aid and Advice Act 1949 was designed to provide legal
advice for those of limited resources, so that no one will be financially
unable to bring a just and reasonable claim or defend a legal right.’

Briefly describe the civil justice system in England and Wales and
discuss the extent to which it can still be said to fulfil the aims of the
Legal Aid and Advice Act 1949.

13. ‘Juries that are not representative of society weaken public confidence
in the criminal justice system. The defence should be able to insist that
three members of the jury are from the same background and ethnicity
as the defendant.’

Describe the way in which juries are selected and discuss the arguments
for and against allowing the defence to demand a jury include jurors
selected on the basis of background and ethnicity.

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PART C

Candidates must answer this COMPULSORY question.

14. Eric works in the timber industry and frequently travels to South America
for work. On 6 March 2019 Eric travelled to Brazil, he was last seen in
his company’s office in the city of Boa Vista, Brazil on 10 March 2019.
On 20 March 2019 Eric’s employer received a letter from an
environmental group opposed to the deforestation caused by the timber
industry stating that they had kidnapped Eric and demanded $1 million
for his safe return. The Brazilian police believe that Eric is being held in
a remote part of the Brazilian Amazon.

Eric usually lives in Cardiff, Wales with his mother Freda and his son
Giles (aged nine). Eric, Giles and Freda live in a large family home that
Eric also shared with Holly, his wife. Holly separated from Eric and left
the family home six months ago, she lives in a small apartment in Cardiff
and Eric pays the monthly rent. Freda is unable to pay Giles’s school
fees, which are due on 20 May 2019, as well as the household gas,
electricity and property tax bills. Holly owes two months’ rent on her
apartment.

(a) Is Eric a “missing person”?

(b) On 10 May 2019 could Freda and/or Holly apply for a

guardianship order and, if so, could the court make such an
order?

(c) Can the court make a guardianship order in respect of:

(i) Giles’s school fees;

(ii) the household bills;
(iii) the rent for Holly’s flat?

END OF PAPER

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THIS PAGE IS INTENTIONALLY BLANK

UL19/0353
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NOTE: This is an amended version of the Act and the section numbering does not
exactly follow the original; you should assume that the Act as provided is in force.
*Minor amendments were made to Ss. 6(4) and 6(5) on 22 November 2018.

Guardianship (Missing Persons) Act

2017
2017 CHAPTER 27

An Act to make provision about the property and affairs of missing persons;
and for connected purposes. [27th April 2017]

B E IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Missing persons
1 Missing persons

(1) For the purposes of this Act, a person is “missing” if—

(a) the person is absent from his or her usual place of residence, and
(b) the person is absent from his or her usual day-to-day activities, and
(c) the first or second condition is met.

(2) The first condition is met if the person’s whereabouts—

(a) are not known at all, or
(b) are not known with sufficient precision to enable the person to be
contacted for the purposes of decisions relating to his or her property
and financial affairs.

(3) The second condition is met if—

(a) the person is unable to make decisions relating to his or her property
and financial affairs or to communicate such decisions with a view to
their implementation (or both), and
(b) the reason for that is something beyond the person’s control, other
than illness, injury or lack of capacity in relation to a matter.

(4) A person who is detained, whether in a prison or another place, is to be treated

for the purposes of this Act as absent from his or her usual place of residence
and usual day-to-day activities.

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2 Guardianship (Missing Persons Act) 2017 (c. 27)

Guardianship orders

2 Applying for a guardianship order

(1) A person may apply to the court for an order appointing a guardian in respect
of some or all of a missing person’s property and financial affairs (a
“guardianship order”).

(2) The court has jurisdiction to hear and determine an application under this
section in relation to property or financial affairs of a missing person only if—
(a) the person was living in England and Wales on the day before he or she
was first known to be missing, or
(b) the application is made by the person’s spouse or civil partner who is
living in England and Wales…

(3) If a person is missing for two or more separate periods, the reference in
subsection (2)(a) to the day before he or she was first known to be missing is to
be read as a reference to the day before the latest period began.

3 Making a guardianship order

(1) The court may make a guardianship order on an application under section 2 if
subsection (2) or (3) of this section applies.

(2) This subsection applies if the court is satisfied that—

(a) the person whose property or financial affairs are the subject of the
application is missing,
(b) the person was missing throughout the period of 90 days ending with
the day on which the application was made.
(and in this Act the condition in paragraph (b) is referred to as “the absence
condition”).

(3) This subsection applies if the court is satisfied that—

(a) subsection (2) does not apply because (and only because) the absence
condition is not met, but
(b) a decision is needed, or is likely to be needed, in relation to property or
financial affairs of the missing person before the day on which that
condition would be met,
(and in this Act the condition in paragraph (a) is referred to as “the urgency
condition”).

4 Choice of guardian

(1) The court may only appoint a person as a guardian in respect of property or
financial affairs of a missing person if it is satisfied that the person—
(a) is an individual aged at least 18,
(b) consents to the appointment,
(c) is suitable to act as the guardian of the property or financial affairs, and
(d) if appointed, will act in the missing person’s best interests.

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3 Guardianship (Missing Persons Act) 2017 (c. 27)

5 Guardian’s role: property and financial affairs

(1) A guardianship order must appoint the guardian in relation to—

(a) all of the missing person’s property and financial affairs, or
(b) property or financial affairs of the missing person specified or described
in the order.

(2) A guardianship order may not relate to the property and financial affairs of
more than one person.

(3) A guardianship order may be made in respect of any property or financial

affairs of the missing person, whether or not mentioned in the application,
subject to subsection (4).

(4) A guardianship order may be made only in respect of property or financial

affairs in respect of which the court is satisfied that—
(a) the absence condition in section 3(2)(b) is met, or
(b) the urgency condition in section 3(3) is met.

6 Guardian’s role: rights and powers etc

(1) A guardianship order must appoint the guardian to exercise on behalf of the
missing person—
(a) all of the missing person’s rights and powers in relation to the property
or financial affairs to which the order relates, or
(b) such of those rights and powers as are specified or described in the
order,
(but see subsections (5) to (8)).

(2) A guardianship order may—

(a) impose duties on the guardian;
(b) include conditions and restrictions.

(3) The rights and powers that a guardian may be appointed to exercise include—
(a) selling, letting or mortgaging the missing person’s property;
(b) making investments;
(c) executing deeds and other documents;
(d) recovering money owed to the missing person;
(e) discharging debts and other obligations of the missing person;
(f) resigning trusteeships held by the missing person;
(g) bringing or conducting legal proceedings;
(h) making a gift out of the missing person’s property.

(4) A guardianship order has effect subject to the restrictions in subsections (5) to
(8).

(5) A guardian may not—

(a) execute a will for the missing person, or
(b) exercise a power vested in the missing person as a trustee in relation to
another person’s property.

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4 Guardianship (Missing Persons Act) 2017 (c. 27)

(6) A guardian may only make a gift out of the missing person’s property if the
guardianship order expressly authorises the making of the gift, the making of
gifts of a description which includes the gift or the making of gifts generally.

(7) Subsection (6) does not apply in relation to a gift made for the maintenance of,
or otherwise for the benefit of, a dependant of the missing person.

(8) “Dependant”, in relation to a missing person, means an individual who, if the

missing person were not missing, would reasonably rely on the missing person
to provide for his or her maintenance.

7 Period of guardianship

(1) A guardian is appointed for the period specified in the guardianship order.

(2) The period specified in a guardianship order must end before the end of the
period of 4 years beginning with the day on which the order is made.

(3) Subsections (1) and (2) do not prevent the court from making further
guardianship orders in respect of some or all of the missing person’s property
and financial affairs, including orders reappointing a person as a guardian.

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