This piece provides practical advice and guidance on how to cope with your law examinations and more specifically how to use your Blackstone’s Statutes book in your exam.
No matter how straightforward an exam question appears, take time and care to analyse it. In general, essay questions will take one of two forms; either a direct question or instruction ('Critically assess the mechanisms designed to prevent the abuse of delegated legislative power') or a quotation followed by a question or an instruction ("The courts provide the only effective form of control over the abuse of delegated legislative power.' Discuss'.). The former type of question is generally wider ranging and may be easier to answer. It is important, however, to consider the specific instruction. In the question above, you are asked to assess the available controls. It is insufficient, therefore, simply to outline the controls since you are asked to make an assessment of the mechanisms in terms of the job which they are designed to do - namely preventing abuse of power - and you are invited to be critical. This does not simply mean that you are required to find fault, rather you are invited to play the role of critic, and form a value judgment on a particular issue.
One of the reasons why the question based on a quotation may prove more challenging is that it may leave a certain amount unsaid. Take the example of the question in the paragraph above. Although it refers to the role of the courts, since there are also non-judicial controls over delegated power, an answer which failed to deal with parliamentary control (for example) would not be complete. You have to consider carefully the question before answering that the courts are not the only means of control, and, after outlining the others, stating that judicial control in your view is the most effective check on abuse - or whatever else it is that you wish to argue. Some examiners may acknowledge the source of the quotation on the examination paper, if the quotation is taken from a book or a judgment. In such cases you may gain an insight into the quotation by your knowledge of its author. To take an example, suppose the question was: "Someone has to be trusted. Let it be the judges." (Denning.) Consider the implications of this view for British constitutional law.' At first sight this seems highly confusing. However, it may be that you know that the former Master of the Rolls, Lord Denning, in his Dimbleby Lectures, was a proponent of a Bill of Rights. Indeed this question enquires whether judges ought to be the final arbiters of the constitutionality of executive action - as they would be under a Bill of Rights. Since Lord Denning’s time, although we have not yet developed a Bill of Rights, the Human Rights Act 1998 has incorporated the protection guaranteed by the European Convention of Human Rights into UK law. Where it is not possible to interpret an Act of Parliament in accordance with the Convention, judges could declare the Act incompatible though a sovereign Parliament could still insist on retaining the legislation on the statute book. The question then is one about the balance between the courts and Parliament.
Another advantage of a quotation being accredited is that it may give you an indication of the authority of the view put forward. Thus, if the quotation is from a standard law textbook, the chances are that it reflects mainstream thinking on a particular topic. On the other hand, beware of those quotations on the paper which are not attributed to a source where it is customary to cite the author. In such circumstances, the view expressed is probably that of the examiner, and it may have been concocted especially for the paper – perhaps because the examiner could not find so unconventional a view expressed elsewhere. Let us take examples of each type of question:
- The whole ethos of our legislation on official secrets has been described by Munro as 'absurdly wide, oversevere, unacceptably obscure and inconsistently applied'. Discuss.
- 'The retention of primary legislation protecting official secrets continues to justly restrict only those activities clearly detrimental to the interests of the state.' Discuss.
In the first question, the statement is attributed, and you may be sure that Munro will not have written it without giving the matter some thought and probably offering evidence to support this view. This leaves you free to depart from the statement, nonetheless, and to argue along the line of argument contained in question 2. On the other hand you may decide that discretion is the better part of valour and that, since Munro, as a (recently retired) law professor, will know more about the subject than you do, your answer will broadly follow his lead. Imagine, however, that you have not seen the first question. In the second, the source is not acknowledged. You may know enough about official secrecy to know that it has been subject to strong criticism, and you may be puzzled by the statement because it does not coincide with what you have read in books (such as those by Munro!). It seems likely that this is a view expressed provocatively by the examiner and amounts to little more than a thinly disguised invitation to depart from the quotation by pointing out the shortcomings of the approach to official secrets legislation in the UK.
One difficulty which causes grave concern to all examinees is the fear that they will be unable to understand the question. Examiners are assiduous in avoiding ambiguity since their aim is not to confuse but to direct attention to the issues demanding discussion. However, unwittingly they may choose a quotation containing a word which is clear enough to them, but unknown to the student. More probably the student may miss some of the issues implied by a question. Let us take question 1 above. Taken alone, what the quotation says is quite simple, if we break it down bit by bit.
Most of the words are readily apparent in themselves. However it is possible that, wide though your vocabulary is, the word 'ethos' is entirely new to you. Of course you will go home and look it up, never to forget again after today, but that is little use in the present examination, and you begin to panic. One possible way ahead is to ask yourself if you can make a guided guess at the word by considering words which may be similar to the one proving problematic. In this case 'ethics', that is the study of the principles of human duty, or sometimes simply moral principles, would bring you close. 'Ethic' in the singular derives from a Greek word for 'character' and 'habit' or 'custom' - as in the phrase 'work ethic'. 'Ethnic' too bears a similar meaning and as an adjective refers to 'characteristic of a race'. This might lead you to conclude that 'ethos', in the context in which it is used above, means either 'moral tone' or 'custom' or 'character'. Of the three the latter is to be preferred, since 'ethos' means 'disposition' or 'spirit' or 'nature'. However, whichever you decide upon, you would not go far wrong. There may, however, be a simpler solution, provided by asking yourself how significant the word 'ethos' is. Suppose the question began with 'The whole of our legislation...'. It would read just as well. Worrying too much may be unnecessary.
On the other hand, it is important to consider each and every word of the quotation. The adjectives which Munro uses give you splendid leads on what to say by way of criticism. Why is the legislation 'absurd'? As Munro explains this is because of its width. Perhaps you could offer examples of minor and frivolous government information which might be considered officially secret. By working through the quotation in this way considering the severity of the legislation, its ambiguity (obscurity) and inconsistent application, you will find your essay plan is virtually written for you. You might also point out that the longstanding criticisms of the catch-all nature of the Official Secrets Act 1911 have only partly been assuaged by the 1989 Act: for example, there is no defence on the basis of disclosure in the public interest. If you have a statute book to hand, you may quickly quote from each piece of legislation to support your argument.
To take another example, one common type of question directs you to compare A with B - for example: 'Compare and contrast the royal prerogative and parliamentary privilege'. This is straightforward and should present little difficulty. Unfortunately, however, many students will write about the two topics in turn, and any comparison that is made will take the form of a concluding paragraph. Only a slight improvement is the essay which alternates paragraphs on each, sometimes with no conclusion. Although this type of question appears easy in the sense that it is essentially descriptive, it may take some organisation and planning. However, the examiner will be delighted by the answer, which makes a clear attempt to amalgamate both issues from the outset. For example:
“The most obvious similarity between the prerogative powers and the parliamentary privileges is that both form a recognised part of our constitutional law. This is so in spite of the fact that the courts have shown a traditional reluctance to challenge the exercise of prerogative powers or to question proceedings in the Houses of Parliament attracting privilege. However, the courts have shown that they are prepared to determine the ambit of each concept. This was made clear as long ago as 1610 in the Case of Proclamations, concerning royal prerogative. As to parliamentary privilege, the constitutional crisis surrounding the case of Stockdale v Hansard is instructive. This followed a claim by Stockdale that he had been defamed in a Hansard publication...”.
Later you may wish to qualify what you have said about the 'traditional reluctance' for, as judges have grown more assertive in relation to the review of the prerogative. But this can be brought out later, upon drawing contrasts. For now, you have said enough to locate accurately the similar constitutional status of the two concepts.
Another point which arises out of this is the use of case law. First of all you will notice that there are no references to reports of the Case of Proclamations ((1610) 12 Co Rep 74, or to Stockdale v Hansard ((1839) 9 A & E 1). You should not try to remember case references, and it is not generally necessary to remember dates of cases. However, you will notice above that the date 1610 is given. It is sometimes useful to know of a date because it illustrates the long-standing nature of the rule (as above) or because a recent case has overturned earlier authority, or because the date is linked to some other event. Thus the case of Stockdale v Hansard in 1839 led to the passage of the Parliamentary Papers Act 1840. In general it is helpful to give dates of statutes because, for example, you may have to draw a distinction between the 1911 and 1989 Official Secrets Acts. The date of a statute will allow you a convenient abbreviation since once it is mentioned you can refer thereafter to the 1911 Act. Again having a statute book with you in the examination room can mean that you do not need to memorise the date of every statute to which you might wish to refer. The index will quickly find the date.
Once a full case name has been cited, then it is sensible to adopt an abbreviation as it re-occurs. This ought preferably to be the name of the first party, e.g., 'Stockdale', which reads better than e.g., 'S v H'. As to other abbreviations, it may be permissible to shorten the Parliamentary Commissioner for Administration to PCA by making it clear after the first full mention that you shall do so. Even here, however, the word 'ombudsman' can form a convenient shorthand and will be easier to read. On occasions it seems that students must spend as long devising their own shorthand as it would take to write the material out in full. Generally shorthand is not advised, as it can be infuriating to try to follow:
The main features of admin. law are jud. rev. of admin. actn and jud. con. of deleg. leg. thro' the doc. of U.V. As regards nat. j., since the case of R v B, the crts have...
In short, examination essays must be readable. They ought to be carefully structured in order to cover all of the points in a logical order and without repetition. Above all they must be relevant and answer the question set. Where possible they must follow any invitation to provide a critical and informed analysis of the topic. This can only be done by reference to case law, statutes and legal writings. An authoritative answer is all-important, and this will not be achieved by a series of half-baked and unrelated ideas thrown together without any support from substantive law.
Too many students treat problem questions as though they are a quiz. That is to say they believe that if they spot the correct answer, they will obtain full marks no matter how badly or even inaccurately expressed their answer is. This is certainly not the case. Let us suppose there is a problem in which a police officer stops a pedestrian (Arnold) who is aged 19 and is walking home late at night. He searches Arnold on the street, forcing him to remove his footwear and he finds a small bottle of vodka pushed down his socks. Arnold earlier smuggled this into a club to avoid buying the expensive drinks on sale there. The officer confiscates the bottle which is only half full. Although not inaccurate, it would be totally inadequate to write:
“The police officer should not have done this. Arnold has the right to walk the street and the police are in the wrong here. They should not persecute people just because they have had a drink.”
Yet this is the type of answer given all too frequently. In fact the examiner is seeking something of this type:
“Ageneral stop and search power, short of arrest, is available to the police officer under s. 1 of the Police and Criminal Evidence Act 1984. Another power of stop and search under s. 60 of the Criminal Justice and Public Order Act not available as the police officer can have no anticipation of serious violence on the facts given. Moreover the s. 1 power is limited to a search for stolen or prohibited articles (as defined in s. l (2)) so that the police officer ought to have had reasonable grounds for suspecting that these would be found. There is a power to seize articles under s. 1(6) but this only applies to prohibited articles or those suspected to be stolen. The hidden bottle may have seemed suspicious though as it was only half full, it does not seem to have been recently stolen. In addition, s. 2 of the Act makes no provision for removing footwear in public. It follows that the officer may be acting outside the execution of his duty, and Arnold may have been within the law to have resisted the search - see Collins v Wilcock [I984] 1 WLR 1172.”
The difference between the two answers is striking. In the second example, the student uses the statutory material to deliver a precise and exact answer. In the first example, we can only conclude that the student had no real conception of what was required in the answer. This ought not to be a problem, since questions are normally quite specific in their demands and generally end by saying, e.g., 'Advise Arnold'. The only way to answer the question is by offering Arnold the relevant advice. Imagine that you are a solicitor and that Arnold walks into your office, having undergone the indignity of the search. If you simply turn to him and say, 'Oh dear! They ought not to have done that' or 'That was very wrong of them', is your client going to leave quite satisfied? On the contrary, he is likely to become pretty angry and ask what you are going to do about it.
Equally, suppose that you then advised Arnold that he has various common law remedies against the police, and also that he may make a complaint against the police, but you neglect to deal with the legality of the charges which might be brought against him, or the admissibility of the bottle as evidence of those charges. Arnold may leave your office quite pleased, assuming right is on his side. When, however, his next appointment is due, Arnold fails to appear, and further enquiries reveal that he was sentenced to a short term of imprisonment by the Crown Court the week before for the theft of the vodka. It is fair to assume that when you visit Arnold in the cells to advise him on his claim against the police, he will feel a little peeved. What was the use, he might argue, of advising that he could sue for trespass to person and goods implicit in an unlawful search and seizure, but not advising as to the admissibility of the goods seized as evidence. Yet this is not an uncommon fault in examination answers. If you are asked to advise Arnold, you must do so fully. Ask, quite simply, what does he want? It will vary from question to question. In our example it may be (a) advice on the likelihood of being convicted of the offences for which he is charged on the evidence available, and (b) the possibility of any remedies against the police. In other cases the parties may wish for other remedies - a fair hearing perhaps, damages in defamation, or compensation for property seized by the Government.
This method of asking yourself what would be the most appropriate and practical redress open to the party, and then searching for an available legal remedy, is the easiest way of ensuring your answer remains relevant. Do not spend too much time on unlikely or highly inventive actions. As with legal practice, it is the obvious solutions that are likely to prove the most effective. Relevance is no less vital in answering problem questions than in writing essays. It will be easier to achieve, however, if you stick strictly to the facts of the problem set. Most problem questions insert specific words to indicate particular legal issues, and additional detail is kept to a minimum. By far the best guide, therefore, is to direct your attention to the facts of the problem as set out. It may be possible to illustrate your knowledge quickly by varying the issue slightly but you must also deal with the question set. To take an example, let us suppose that, in a question on parliamentary privilege, an MP has written a letter to a newspaper containing defamatory remarks. It would be quite legitimate to answer:
“If the letter had been addressed to the Minister responsible for such matters, it seems likely that it would attract qualified privilege on the rather inconclusive evidence of the Straussaffair. Here, however, the letter is to a newspaper...”
On occasions it will be necessary to advise more than one party, or the parties (X, Y and Z) may have competing claims and you are instructed to 'discuss' the problem. In such cases, deal with all parties. Even if you cover many of the issues relating to other parties in your discussion of the remedies open to X, try to recap the law as it applies to Y and then Z in turn. Similarly, if one issue is dependent on another, discuss both issues. In the above example suppose you conclude that the MP is not covered by qualified privilege in the letter to the newspaper. However, if the question goes on to say that the person defamed complains that the MP has acted maliciously as his remarks in an earlier parliamentary debate prove, you should deal with this point also. Malice would disapply qualified privilege if it was in place. Technically if you are right and the letter is not protected even by qualified privilege, then the issue of malice is irrelevant. Nonetheless you should write:
“Although the issue of malice is redundant in the absence of qualified privilege, the case of Church of Scientology of California v Johnson-Smith makes it clear that matters arising in parliamentary proceedings cannot be relied upon to support legal action.”
In this way you provide evidence of wider knowledge, and if you are wrong on the privilege issue (which seems unlikely), you are able to redeem yourself to a large extent. You will rarely be penalised for reaching a conclusion with which your examiner happens to disagree, if your argument is logical and supported by authority. Remember that few problems are likely to be directly in line with previous case law. Often they cover 'grey' areas of law, where right or wrong answers may not be easily available. Bearing this in mind you should cover both sides of an argument if possible, but be brave enough to reach your own conclusion. In general, however, it is unwise to begin with your conclusion, although many students make this mistake. Thus if you begin by writing, 'in this case X can sue the MP for defamation of character' the danger is that you will change your mind during the course of the next half-hour in which you consider the question more carefully.
The most important point of all in answering problem questions is to cite authority for your propositions. Time and time again examiners see answers which do not refer to even a single case or statute as authority for the proposition stated. Some students happily write that 'the MP is not covered by privilege' as though the fact that they have said it is sufficient in itself. Your answer is only as good as the authority which it cites. Answers which fail to refer to the authorities are poor answers and are destined to failure. It seems incredible that students struggle to remember case names or statutory references during revision and then neglect to refer to this precious information in the examination. You should imagine that you are going to debate with an examiner who will not readily be persuaded.
Statutes may prove less troublesome to cite as authority since many institutions allow these to be taken into the examination room. If so, however, the statutes should be a point of reference only. You can only make use of statutory material in answering problems if you are fully familiar with the legislation in advance of the examination and know where to look and what to look for.
If you are not allowed the facility of statutes in the examination room, it is unnecessary to memorise statutes or even sections, but you will need a close working knowledge of them in order to answer problems. You will not be permitted to annotate your statute book, but you may be allowed to use markers pointing to the relevant statutes. You can also be assisted by thinking what you may wish to use for a particular question - e.g., sections 2 and 3of the European Communities Act 1972 might prove useful for a question on parliamentary sovereignty. Similarly you can work through the relevant provisions of the Human Rights Act 1998. In a question on Parliamentary Sovereignty, you are more likely to refer to Sections 3 (interpretation of legislation) and 4 (declarations of incompatibility) whereas in a question on judicial review, you may be more concerned with (e.g.) Section 6 and what is meant by a public authority. Thinking in this way about how you will navigate your way through an important statute will save time and reduce stress in the examination.
If you are allowed to take a statute book into the examinations, buy it at the beginning of the year. Take it to lectures and tutorials, and mark or highlight the relevant sections of statutes as you use them. In general terms, the statutes that you will need will be those referred to in class, but do not neglect provisions discussed in reading that you have undertaken.
Reference to statutory or case authority should be concise and give only as much detail as is necessary to support your argument. One approach adopted by some students is to present a detailed account of the facts of a particular case, followed by a consideration of the judgments spread over a couple of paragraphs. Whether or not the content is good, this approach allows for discussion of perhaps three cases at most, and often the point of the question is lost in the detailed review of the case. It is by no means always necessary to recount the facts of cases. Sometimes it is helpful to do so because the facts bear a close relationship to the issue in a problem question. At other times, however, the only point of a case is that it proves the accuracy or veracity of what you have just written. In such instances the name of the case may be sufficient. Knowing how much detail to present to the examiner is a sign of your ability to deal selectively with a large body of legal material - an immensely important quality in practice.
The same is true for the selection of statutory material. The great danger of having a statute book in the examination is that you may simply want to copy from it, particularly if you feel stuck for something to say. Avoid this temptation. Ask yourself whether it is necessary to quote from the statute rather than merely refer to a section. If it is, do so as briefly as possible: for example “under s. 6(3)(b) of the Human Rights Act 1998, a public authority included bodies whose functions are ‘of a public nature’”. If the statute contains a list such as a list of conditions to be met, rather than copying out of the list, ask yourself which of the conditions are relevant to your question, and present only these, perhaps, in your own words. The examiner knows that you have a statute book with you. It is there to assist you in applying statutory provisions to answer questions in the examination. It can be an invaluable aid, but blindly copying out provisions from the book is hardly likely to you gain you marks.
Whether your examination question is of the problem or essay type you are going to need to formulate an argument. The better structured and more logical this is, the higher the marks awarded. It will be easier for the examiner to follow if it is concise and unambiguous. If you can show that you have rejected irrelevant considerations and stuck to an accurate analysis of legal principle, this will doubtless impress the examiner. If you can go further and exercise a critical analysis of the particular area, citing authority by using case law and statutes to support your argument, and if you can do so in a measured and considered manner, you should obtain a high mark.
Pay attention to your written style. Aim for strong introductory and concluding remarks which make an impact or leave an impression on the examiner. It is unwise, however, to spend too long on this. Time is precious in examinations. Plan ahead which statutes you will rely on and make sure you know your way around the book. In spite of time pressures, avoid slang and make a careful attempt to weed out legal inexactitudes in your writing - e.g., using 'prosecute' when you mean 'sue'. It is also a good idea to avoid wit or sarcasm. What seems enormously funny to you may not be so humorous to an ill-tempered examiner on the fortieth script at 2 a.m. Remarks such as 'I advise X to see a solicitor' are rarely original. It helps to remember that examiners are only human, and that marking is a dreadful chore. The only way in which to use this to your advantage is to produce the type of script that makes the examiner sit up and read attentively for the next 15 minutes. Half-baked ramblings or dull repetition of facts or legal rules are unlikely to do the trick, but legible, concise and carefully developed answers throughout the whole script might just make an impression on even the most hardened and cynical marker.