Choose ONE of the following cases to write your case commentary on:
- Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24
The case commentary MUST include the following subheadings (see below for further guidance on
what the sections under each of these subheadings should contain):
- Summary of key facts
- The point(s) of law
- Analysis of the decision
- Social policy and political context
Please do not use headings other than these.
The case commentary should include AT LEAST ONE reference to another case and AT LEAST ONE reference to an academic book or article. The majority of your analysis should be based on your reading of the case and the other case(s) and academic work(s) you’ve read. However, when setting the case in its social policy and political context, you may also find it useful to draw on relevant work by other commentators, e.g. journalists, legal practitioners and NGOs.
The case commentary must be properly referenced and include a formal bibliography and list of the cases you cite.
Assessment guidance
The ability to summarise the key elements of a case in a case commentary is an essential skill for law students and lawyers. A good case commentary requires clear structure and analysis. In order to do this, you need to work through the legal reasoning carefully, make sure you understand it and plan your answer before you start writing.
As you know from Legal Systems and Methods so far, cases are vital in the common law system, as it is through cases that statutes are given their specific meaning and, where statutes do not cover an area of law, cases give the primary definitions. Much law is also developed incrementally through case law.
When preparing to write a case commentary, identify the court level at which a case is decided. This is crucial as you need to think about the hierarchy of the courts and the doctrine of precedent throughout the commentary. The system of the hierarchies of courts should be familiar to you by now. If you need a refresher, review the lecture on court structure in England and Wales in Week 3 and corresponding materials. Equally, you must make yourself aware of any subsequent over- rulings, appeals or decisions at a higher level. You can use Westlaw to help you with this.
Identifying the case
Make sure you record the official citation of the case in full. This is so that you or anyone else can find the case again. You will usually be making a record from a written source – so note it. Examples of case citations:
- Airedale NHS Trust v Bland [1993] 1 ALL ER 821
- Donoghue v Stevenson [1932] UKHL 100
Likewise, for any other cases you cite in your discussion, you should include the full citation.
Subheadings
Summary of key facts:
- Identify what happened and who was involved – you need to focus on the facts that were key in leading to the claim being brought
- This should not be too long – 4- 5 sentences maximum – as the emphasis here is on ‘key’ facts; your ability to be succinct and to the point here is essential
Identify the point(s) of law:
- Identify the question(s) of law the court was required to answer
- Consider what the central legal issue is that the court has to address. Are there secondary
legal issues as well?
Analysis of the decision:
- Identify the ratio in the case, its outcome, the legal reasoning used by the judges to reach their decision, and why any alternative outcomes were rejected by the judges
- Discuss any relevant obiter dicta
- Sometimes there may be only one judgment. However, if there is more than one judgment,
you may like to compare and contrast the reasoning in different judgments
- You may find it helpful to identify whether the individual judgment/opinion falls into one of
the following categories: Majority, Minority, Leading or Dissenting judgment/opinion
- If there is a dissenting judgment, you may like to summarise it and use it to analyse/criticise
the majority judgment(s)
Social policy and political context:
- Identify the implications of the case. This section requires you to think beyond the doctrinal legal arguments in the case itself. Questions and issues you might like to consider include:
o Whobenefitsfromthedecisionandwhomightnotdoso?
o Identify any historical, political or sociological observations about the decision which
might help explain why the case might have been heard at a particular time and might help explain the outcome
Writing
o Who the judges were (so that the decision can be placed in relation to the seniority and authority of the judge)
o The court (so that it can be located in the hierarchy of the courts) and structure
o How does this case impact the overall area of law in which it is located? o How does it relate to the wider concepts and doctrines of law?
o Doesitleavequestionsunansweredorcreatevagueness?
o Are there problems in the judges’ reasoning? Would adopting a different
perspective (e.g. feminist) have led to a better decision?
• When considering the implications of the case, you may also find it helpful to consider:
- Your commentary should be in prose and paragraphs – so avoid using tables and boxes.
- Make sure your structure, analysis and argument are clear and logical
- Use clear and concise language. For example, avoid long sentences, use plain English where
you can (there is no need to use complicated language to sound legalistic!)
- Edit your work carefully before you submit it and remember to re-read it to check to sense,
mistakes etc. It helps to read it out loud. Referencing, sources, quotes and evidence
- Your references need to be accurate. Use OSCOLA for guidance on how to reference. For a refresher on referencing, review the lecture in week 2 from Peter Williams, the law librarian.
- When you make a point, make sure you support it with evidence, for example by including a reference to a case, article, book etc. in a footnote (remember to include the relevant page or paragraph number)
- It is fine to include short quotes from cases and other sources. When you do, in order to avoid plagiarism, put the quote in quotation marks and include a reference. Do not rely too heavily on quotations. The majority of your case commentary should be in your own words. Therefore, instead of including long or multiple quotes, you should paraphrase or explain the point in your own words. This is likely to earn you more marks than simply quoting.
Points of law
The case raises fundamental issues of law of Tort of Negligence and the concept of duty of care . The main issue at both the High Court and the court of Appeal was a determination on whether there was duty of care or not. The High Court found that there was no duty of care between Brooks and the police, the court of Appeal found to the contrary. The claimant premised his action under section 20 of the 1976 act which guarantees that victims of crime and eyewitnesses to a crime shall be protected, assisted, and supported. The second point of law raised by the claimant was weather he had been discriminated by the police for failing to consider him as a victim of crime and offering the requisite protection, the claimant informed the court that the discrimination was as a result of racism which is prohibited under the laws .
Analysis
The court of Appeal made its analysis and its own findings which contrasted the findings of the lower Court. The court of Appeal considered the strength of the case in view of the different elements that are considered when there is breach of duty of care. The first element that was analyzed as per the case was possibility the court of Appeal found that breach of duty of care to a person who is subjected to racial discrimination is likely to cause traumatic stress disorder which resulted from the experience of the eyewitness seeing the attack that was done on his friend Stephen Lawrence. The conduct of the police of discrimination had high chances of exacerbating the condition of the claimant. The finding was also analyzed in view of the report of Dr Turner who supported the claimant’s arguments. Due to the possibility nature of a possibility of suffering post-traumatic stress disorder, the court of Appeal ruled in favour of the Appellant.
On the aspect of proximity the court of Appeal agreed with the decision of the lower Court found that the police were in close proximity with the Claimant for about 7 hours and even continued to contact him after that, therefore the claimant’s arguments were meritorious, similar holding was also seen in the case of Ashley v Chief Constable of Sussex Police [2008] UKHL 25 where the Police were found culpable of fatal shooting of the deceased .
On the issue of false imprisonment, the court of Appeal found that indeed there can be a successful claim for self-imprisonment even in the instance that there was no physical restraint of the claimant. The court stated that the claim for false imprisonment may be successful in the instance where the claimant was confined for a short period of and such claimant shall be entitled to the modest award of damages. As a result the decision of the lower Court Judge was set aside since the Claimant had sufficiently proved aspects of false imprisonment.
Social policy and political context
Analysis and decision of the court of Appeal impacted on the social policy on how national discrimination is handled especially by the police and they need to exercise democratic values and principles in exercise of public duty . The decision in the case forms a fundamental jurisprudence on how they approach matters of racial discrimination especially by the police and the approach to false imprisonment is perceived in the United Kingdom. It emphasizes on the need to uphold the law and strictly follow the statutory duties that are imposed on public offices .
Lola Smith
Birkbeck, University of London
07503614783
londonsway4@gmail.com
