Appellate Courts
SOURCE OF LAW
Instructions:
MA 02
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TMA 02
TMA 02
The cut-off date for TMA 02 is 12:00 midday (UK local time) on 1 February 2017.
This is the latest date by which your TMA must reach your tutor. You must submit your TMA using the online TMA system.
TMA 02 consists of three questions. You are expected to answer all questions in this TMA. Your answers should be written in your own words. You do not need to use additional resources to complete your answers. All the information you require is provided in the module materials.
It is important that your answers are written in full sentences and in clear and concise language. You should write in formal English and you should take care to ensure that your language is grammatically correct. Your work should be arranged into paragraphs and you should avoid using bullet points and other types of lists. Please write your answers in the third person except question 3(b) which should be written in the first person.
It is important to write in your own words. This means that you should explain the content of the module materials by reformulating the words within them. The OU Law School Undergraduate Assessment Guide contains guidance on writing in your own words.
The total word limit for TMA 02 is a maximum of 1250 words. Remember, all the words you use to answer the questions, including quotations and citations, count towards the overall word limit.
We would suggest that you use the following number of words for each question:
Question 1 300 words
Question 2 Essay plan 100 words
Essay 700 words
Question 3 150 words
You must provide a reference list and a word count. The reference list is not included in the word count.
Questions
Question 1
a.Explain the main differences between EU Directives and EU regulations.
b.Explain the main differences between absolute and qualified human rights, and why some human rights must be qualified.
(25 marks)
Question 2
One way of classifying courts is that they are either ‘courts of first instance’ or ‘appellate courts’. Explain these terms with examples of these courts.
a.Provide an essay plan setting out how you will address the question.
b.Provide your answer to this question in the form of an essay.
(55 marks)
Question 3
a.Explain the advantages of preparing an essay plan.
b.Explain the challenges you have encountered in writing your essay plan and what steps you have taken to overcome them.
(20 marks)
Learning outcomes
TMA 02 tests the following learning outcomes:
Knowledge:
•explain an EU Directive and an EU Regulation and identify the main differences between them
•explain what is a qualified and what is an absolute human right
•explain the reasons why some human rights might be qualified
•explain the hierarchical structure of the courts.
Skills:
•prepare an appropriate essay plan
•summarise the key points of a piece of written material in your own words
•present and structure information clearly and make accurate use of the English language and legal terminology.
Advice
The OU Law School Undergraduate Assessment Guide contains definitions of words used in TMA questions. It also gives advice on referencing and the reference list that you must produce and include at the end of your work. You should read this guide before attempting TMA 02.
This TMA is designed to test your knowledge and understanding of Units 7, 8, 9 and 10.
Question 1
This question is in two parts. The first part requires you to explain what is an EU Directive and what is an EU Regulation. You will then need to explain the main differences between EU Directives and EU Regulations. You should answer this part of the question from your study of Unit 8.
The second part of the question requires you to explain the difference between qualified and absolute human rights. You will need to define a qualified human right and an absolute human right. You will then need to explain the main differences between a qualified human right and an absolute human right. Additionally you need to explain why some human rights have to be qualified. You should answer this part of the question from your study of Unit 9.
Question 1 (a) and (b) are not essay questions but are short answer questions. You may find it helpful to consider the feedback your tutor provided on TMA 01 on answering short questions. You need to ensure that you are writing in your own words.
Question 2
Essay Plan
Planning your essay requires several stages, and although people have different ways of working, we suggest that you work through the following stages systematically.
•Read the essay question several times, so that you are sure of what you are being asked to write about. Remember, if you are not sure, you can always contact your tutor to help you work through the requirements of the essay question.
•Identify the material you need to use, including the web links for any study materials that you will need to reference.
•Identify the main points that relate to the TMA question.
•Organise the material into a logical order to answer the question.
•Create your plan with an introduction, a main body consisting of a number of paragraphs (each paragraph relating to an aspect of the topic) and a conclusion.
The plan itself can be produced in any form that will be clear to your tutor. Tables, flow charts, spider diagrams and concept maps are also ways of presenting an essay plan.
In question 2 of TMA 02, your tutor will be looking for you to:
•present a coherent plan which is reflected accurately in the essay
•choose a format to set out the key elements of the arguments outlined as part of this plan.
Essay question
This question is designed to help you demonstrate your knowledge and understanding of the structure of the court system. In particular it requires you to show your knowledge and understanding of the hierarchy of the courts. You should ensure you have carefully studied Unit 10 and so understand the structure of the court system. You will need to explain ‘courts of first instance’ and ‘appellate courts’.You should give examples of ‘courts of first instance’ and ‘appellate courts’.
An essay should be structured with an introduction, main body and a conclusion. You should ensure that you have worked through the essay writing guidance in Unit 7, which looks at the different elements involved in writing a legal essay and how to plan your work.
Question 3
This question encourages you to think about why you would use an essay plan, and what the challenges of creating such a plan are. You may want to reflect on how you overcame the challenges you encountered.
In question 3 (b) you may write the answer in the first person.
Finally
•You must demonstrate the ability to find and select relevant material.
•You must demonstrate the ability to address the questions asked. This is very important – you must be clear about exactly what you are being asked to address.
•Every sentence in your TMA must in some way or another contribute to your overall answer.
•Your TMA should be checked prior to submission so that you have addressed any spelling or grammar mistakes.
Once your TMA has been marked and returned, you should reflect on your tutor’s comments and make notes on anything you want to do differently for the next TMA.
TMA 02
Copyright © 2016 The Open University
Solution.
SOURCE OF LAW
EU Regulations versus Directives
The European Union applies an extensive legal framework with different types of legal acts. These acts include regulations, directives, decisions, and recommendations. Each of these acts is different, particularly in terms of their application, and the obligations of the different member states towards each. Regulations and directives have the widest applicability, as they target all European member states. The key difference between the two, however, is that regulations providing both the framework and the objective to be achieved, whereas directives merely dictate the objective to be achieved (EU, 2017). An EU regulation is applicable to all member states, dictating the results to be obtained, and the means through which member states are to achieve these results. Member states must then adapt their legislative frameworks so that they are able to meet these aims. An EU regulation, on the other hand, takes immediate effect, but member states must decide on their own how they are to meet the set targets.
Absolute versus Qualified Human Rights
Every individual is entitled to certain rights, which apply to all individuals regardless of their nationality, citizenship or other differentiating factors. Human rights can be categorized as either absolute or qualified rights. Absolute rights are those which the courts or government cannot interfere with at any given time or for any given reason (Gillespie, 2007). Qualified rights can, however, be interfered with under certain circumstances. Typically, the constitution or convention setting out the human rights will also set out the circumstances under which it is allowable to interfere with the said rights. Examples of qualified rights include the right to freedom and the freedom of thought, religion, and expression (Arden, 2015). It is necessary that some human rights be qualified to safeguard the rights of others. This is because sometimes the exercise of a particular right results in the interference of the rights of another individual.
Courts of First Instance versus Appellate Courts
Essay Plan
The essay questions requires an identification of the differences between courts of first instance and appellate courts. In order to answer this question, the following essay plan has been derived. First, the essay will introduce courts and describe their role in the judicial process. The aim will be to provide the reader with a general understanding of courts. Next, courts of first instance will be discussed, while giving appropriate examples of the same. This will then be followed by a discussion of appellate courts with examples. Finally, the essay will conclude by recapping on the main differences between courts of first instance and appellate courts.
Courts of first instance and Appellate courts
Introduction
Courts also referred to as courts of law, play an important role in the judicial process. They are an implicit component of the legal jurisprudence process, whereby they usually serve the role of adjudicating legal disputes. Through this process, courts also serve to administer justice, in accordance with the law. To a certain extent, courts are also involved in the creation of new laws. At the higher level, courts also play a role in the interpretation of laws, whenever a dispute requiring such interpretation occurs. One of the ways in which courts can be categorized is either as courts of first instance or appellate courts. Each of these categories of courts is now discussed.
Courts of first instance are referred to as such because this is where cases are first heard. This includes both civil and criminal cases. These courts are also referred to as trial courts (Huxley-Binns & Martin, 2014). Because they are the first courts where an appeal is heard, trial courts possess original jurisdiction over the matters that they are adjudicating (Tangl, 2014). According to the unit 10 module, courts of original jurisdiction mainly deal with matters of fact in the determination of cases. In the UK, examples of courts of first instance include the magistrate’s courts and the County courts. Many of the trial courts have general jurisdiction, meaning that they hear and decide cases related to a wide range of issues. Some of the courts, however, have a jurisdiction that is limited to a particular amount of money or to a particular subject matter. Examples include traffic courts, juvenile courts, and probate courts. These courts are also referred to as courts of limited jurisdiction (Tangl, 2014).
The second category of courts is the appellate courts. They are so referred to because they listen to appeals for cases in which determination has already been made. Usually, the appeal is lodged by one of the parties who feels disgruntled by the decision made by a court of first instance. The most elaborate example of appeal courts are the Court of Appeal and the Supreme Court. Appellate courts normally consider the decision made by the court of first instance, and then make a decision based on whether they agree with the decision made. Unlike the courts of first instance where determination is made mainly with regard to the facts of the case, appellate courts mainly focus on issues of law (Unit 10 Module). Indeed, (Tangl, 2014) notes that appellate courts only deal with issues of law.
Despite the classification of a court as either a court of first instance or a court of appeal, several courts have both types of jurisdictions. This is to mean that these courts can both hear cases for the first time, and hear appeals. The best illustration of this dual jurisdiction is the High Court. According to Huxley-Binns and Martin (2014), the High Court is usually the court of first instance for major civil cases. Huxley-Binns and Martin (2014) further note that the High Court sits as an appelate court in the presence of two or three judges.
Conclusion
The Judicial system can be described in terms of categories of courts. One such categorization is courts of first instance, which hear cases for the first time, and make a determination primarily based on facts, versus appellate courts. Appellate courts listen to appeals on cases that have already been determined in the lower courts. These courts mainly deal with matters related to the law rather than matters of fact. Some courts have both original and appellate jurisdiction, such as the Crown courts and the High Court.
Essay Plan
While writing an essay, one can prepare an essay plan beforehand. Preparing an essay plan makes it easier to write the actual essay, since one is already aware of what they would like to write. The structure of the essay has already been determined. One can then determine what information will be necessary, and what materials will be required to develop the actual essay. Thus, one is able to deliver an essay that is logical in its flow of ideas.
While an essay plan has many advantages, it is also
challenging to develop. One of the challenges I encountered when developing my
essay plan is that I had difficulties determining exactly how I wanted to
structure my ideas. While I knew what I wanted to write, I found it a bit
challenging to determine what would go where. To overcome this challenge, I
simply noted down all the ideas I had and then tried an assortment of
combinations. I then settled on the one that I felt was the most suitable.
References List
Arden, M., 2015. Human Rights and European Law: Building New Legal Orders. Oxford: Oxford University Press.
EU, 2017. Regulations, Directives and other acts. [Online] Available at: https://europa.eu/european-union/eu-law/legal-acts_en [Accessed 28 January 2017].
Gillespie, A.A., 2007. The English Legal System. Oxford: Oxford University Press.
Huxley-Binns, R. & Martin, J., 2014. Unlocking the English Legal System. Revised ed. London: Routledge.
Tangl, A., 2014. English for Lawyers and Law Students: With a Short Introduction to the US Legal System. Berlin: Linde Verlag GmbH.
