CAPE Law Unit 1 cheat sheet

Sources of law ranked: Constitution > statute (Acts of Parliament/legislature) > subsidiary legislation > common law and equity > custom; a statute inconsistent with the Constitution is void to the extent of the inconsistency.

Equity prevails over common law where they conflict (settled by the Judicature Acts and reproduced in Caribbean Judicature/ Supreme Court Acts); equitable remedies are discretionary and maxim-based (he who comes to equity must come with clean hands).

The doctrine of precedent rests on ratio decidendi (binding) versus obiter dicta (persuasive); a lower court is bound by a superior court in the same hierarchy, and Privy Council decisions bind Caribbean courts below it unless distinguishable.

Caribbean court hierarchy (typical): Privy Council (or CCJ as final court where adopted) > Court of Appeal > High Court (Supreme Court) > Magistrates'/District Courts; specialised tribunals sit outside this ladder with statutory appeals to the High Court.

The CCJ has an Original Jurisdiction under the Revised Treaty of Chaguaramas for Community law matters and an Appellate Jurisdiction for states that have acceded; the two jurisdictions are separate and not all member states accept the appellate role.

Constitutional supremacy is enforced through entrenched sections requiring special majorities (commonly two-thirds or three-quarters of all members of each House) plus, in some states, referendum; ordinary legislation cannot amend entrenched provisions.

Fundamental rights chapters protect life, liberty, security of the person, fair trial, freedom of expression, assembly and association, and property; most Caribbean constitutions include a savings/ derogation clause allowing legislation reasonably justifiable in a democratic society.

The three branches: legislature makes law, executive implements (Cabinet responsible to the legislature under Westminster conventions), judiciary interprets independently; judicial independence is secured by security of tenure, salaries charged on the Consolidated Fund and removal only by an address/ tribunal procedure.

Classification: public law (constitutional, administrative, criminal) governs state-citizen relations; private law (contract, tort, property, trusts) governs citizen-citizen relations; criminal matters use beyond reasonable doubt, civil matters use balance of probabilities.

Actus reus requires a voluntary act or omission (omission only where a duty exists: statute, contract, special relationship, assumption of responsibility, or creation of danger); mens rea is the mental element.

Mens rea standards: intention (direct intent plus oblique intent where the result is a virtual certainty and the accused appreciates it), recklessness (conscious taking of an unjustified risk), knowledge, and negligence (objective reasonable-person standard).

The coincidence principle requires actus reus and mens rea to occur at the same time; a continuing act can bridge the gap (Fagan-type continuing act reasoning) but a completed act followed by later intent cannot.

Murder: unlawful killing of a human being with malice aforethought (intent to kill or intent to cause grievous bodily harm); the death penalty is discretionary/ subject to constitutional challenge in most Caribbean states.

Manslaughter: voluntary (mitigating circumstances reducing murder, e.g. provocation/ diminished responsibility where statutorily recognised) and involuntary (unlawful act manslaughter requiring an unlawful dangerous act, or gross negligence manslaughter requiring a serious and obvious risk of death).

Partial defences reduce murder to manslaughter: loss of control/ provocation (sudden loss of self-control caused by qualifying trigger, judged partly objectively), diminished responsibility (abnormality of mental functioning substantially impairing the accused) and suicide pact.

Complete defences: self-defence (reasonable force proportionate to the threat, including defence of another or prevention of crime), duress by threats (threat of death or serious injury, no safe avenue of escape), necessity, automatism, intoxication (involuntary or voluntary where the offence requires specific intent), infancy and insanity.

Theft/ larceny elements: dishonest appropriation of property belonging to another with intention permanently to deprive; robbery adds force or threat of force at the time of the taking; burglary adds trespassory entry with intent to commit an offence.

Inchoate offences: attempt requires an act more than merely preparatory with the requisite intent; conspiracy requires agreement between two or more with intention that the offence be carried out; incitement/ encouraging is complete even if the substantive offence is not committed.

Negligence requires: (1) a duty of care, (2) breach of that duty measured against the reasonable person, (3) factual causation (but-for test), (4) legal causation (remoteness - reasonably foreseeable type of damage) and (5) actionable damage.

Duty of care: established categories (road users, doctor-patient, employer-employee, occupier-entrant) apply directly; novel categories use the neighbour principle - reasonable foreseeability of harm plus proximity, with policy considerations able to negate the duty.

Breach: the standard is that of the reasonable person; for professionals it is the ordinary skilled person exercising that special skill (Bolam-type test), and children are judged by the standard of a child of like age; special skill of the defendant does not raise the standard.

Factual causation uses the but-for test; where multiple causes exist, material contribution or, for cumulative diseases, material increase in risk may substitute; an intervening act (novus actus interveniens) breaks the chain of causation.

Remoteness: the defendant is liable only for damage of a reasonably foreseeable type (the thin-skull rule still applies to the extent of the injury); economic loss is generally recoverable only for negligent misstatement causing reliance loss.

Defences to negligence: contributory negligence (apportionment under statute, commonly Law of Contributory Negligence legislation), volenti non fit injuria (voluntary assumption of risk with full knowledge), illegality (ex turpi causa) and statutory exclusions.

Intentional torts to the person: assault (apprehension of immediate unlawful force), battery (actual unlawful application of force), false imprisonment (complete restriction of liberty without lawful justification); to land: trespass (unauthorised entry) and nuisance (unreasonable interference with use and enjoyment).

Strict liability: Rylands v Fletcher-type rule - escape of a dangerous thing brought onto land in the course of a non-natural use causing foreseeable damage - plus statutory strict liability (e.g. defective products under consumer protection legislation) and vicarious liability for employees acting in the course of employment.

Remedies: damages (special, general, nominal, aggravated, exemplary) aim to restore the claimant to the pre-tort position; injunctions (prohibitory or mandatory) restrain continuing wrongs; contributory negligence reduces damages by the claimant's share of responsibility, not by a fixed percentage.