A-level LAW 7162/3B Paper 3B Human Rights Mark scheme June 2022 Version: 1.0 Final Mark Scheme

AQA A-level LAW 7162/3B Paper 3B Human Rights Mark scheme June 2022 Version: 1.0 Final Mark Scheme Mark schemes are prepared by the Lead Assessment Writer and considered, together with the relevant questions, by a panel of subject teachers. This mark scheme includes any amendments made at the standardisation events which all associates participate in and is the scheme which was used by them in this examination. The standardisation process ensures that the mark scheme covers the students’ responses to questions and that every associate understands and applies it in the same correct way. As preparation for standardisation each associate analyses a number of students’ scripts. Alternative answers not already covered by the mark scheme are discussed and legislated for. If, after the standardisation process, associates encounter unusual answers which have not been raised they are required to refer these to the Lead Examiner. It must be stressed that a mark scheme is a working document, in many cases further developed and expanded on the basis of students’ reactions to a particular paper. Assumptions about future mark schemes on the basis of one year’s document should be avoided; whilst the guiding principles of assessment remain constant, details will change, depending on the content of a particular examination paper. Further copies of this mark scheme are available from Level of response marking instructions Level of response mark schemes are broken down into levels, each of which has a descriptor. The descriptor for the level shows the average performance for the level. There are marks in each level. Before you apply the mark scheme to a student’s answer read through the answer and annotate it (as instructed) to show the qualities that are being looked for. You can then apply the mark scheme. Step 1 Determine a level Start at the lowest level of the mark scheme and use it as a ladder to see whether the answer meets the descriptor for that level. The descriptor for the level indicates the different qualities that might be seen in the student’s answer for that level. If it meets the lowest level then go to the next one and decide if it meets this level, and so on, until you have a match between the level descriptor and the answer. With practice and familiarity you will find that for better answers you will be able to quickly skip through the lower levels of the mark scheme. When assigning a level you should look at the overall quality of the answer and not look to pick holes in small and specific parts of the answer where the student has not performed quite as well as the rest. If the answer covers different aspects of different levels of the mark scheme you should use a best fit approach for defining the level and then use the variability of the response to help decide the mark within the level, ie if the response is predominantly level 3 with a small amount of level 4 material it would be placed in level 3 but be awarded a mark near the top of the level because of the level 4 content. Step 2 Determine a mark Once you have assigned a level you need to decide on the mark. The descriptors on how to allocate marks can help with this. The exemplar materials used during standardisation will help. There will be an answer in the standardising materials which will correspond with each level of the mark scheme. This answer will have been awarded a mark by the Lead Examiner. You can compare the student’s answer with the example to determine if it is the same standard, better or worse than the example. You can then use this to allocate a mark for the answer based on the Lead Examiner’s mark on the example. You may well need to read back through the answer as you apply the mark scheme to clarify points and assure yourself that the level and the mark are appropriate. Indicative content in the mark scheme is provided as a guide for examiners. It is not intended to be exhaustive and you must credit other valid points. Students do not have to cover all of the points mentioned in the indicative content to reach the highest level of the mark scheme. An answer which contains nothing of relevance to the question must be awarded no marks. 01 Select the false statement about the European Convention on Human Rights. [1 mark] Marks for this question: AO1 = 1 B The European Court of Human Rights has generally interpreted Convention obligations very restrictively. 02 Select the true statement about the effect on English law and the English legal system of the European Convention on Human Rights. [1 mark] Marks for this question: AO1 = 1 C An excessively large award of damages by a court may violate the right to freedom of expression under Article 10 of the Convention. 03 Select the false statement about the rule of law. [1 mark] Marks for this question: AO1 = 1 C Public officials should be given maximum freedom to make decisions affecting the legal rights of citizens. 04 Select the true statement about the independence of the judiciary. [1 mark] Marks for this question: AO1 = 1 C Judges in superior courts cannot easily be removed from office. 05 Select the false statement about delegated legislation. [1 mark] Marks for this question: AO1 = 1 B It is generally well-publicised. 06 Explain two characteristics of the common law as a source of law and provide an example to illustrate one of those characteristics. [5 marks] Marks for this question: AO1 = 5 Levels of response mark scheme 5 marks – AO1 only Mark range Description 4–5 Band 3 Knowledge is good and demonstrates a good understanding of the English legal system. Where appropriate a good example of a case to illustrate suggested reasons. 2–3 Band 2 Knowledge is satisfactory and demonstrates a satisfactory understanding of the English legal system. Where appropriate a satisfactory example of a case to illustrate reasons. 1 Band 1 Knowledge is limited and demonstrates a limited understanding of the English legal system. Where appropriate a limited example of a case to illustrate reasons. 0 Nothing worthy of credit. Indicative content AO1 Explanation of any two characteristics and use of one supporting example: • common law has been made by judges, when making and following decisions in cases (may contrast with statutes) • common law is subservient to statute law by which it can be abolished or amended • as the foundation of common law, precedent operates on the basis of stare decisis in relation to key elements in a judgment and employs a hierarchy of courts • common law represents rules based on decisions that have been developed over a period of time and have traditionally been the basis of important areas of law • common law deals with actual, concrete instances and so is practical in its application and reach • common law is limited in scope by the (relatively) narrow issues raised in individual cases and so is not particularly suitable in achieving large scale change or reform in the law • common law applies retrospectively to incidents which have already occurred or issues which have already arisen • common law, since it is based on precedent, promotes predictability and, perhaps, confidence in interpretation and application to future cases • suitable examples to illustrate any of the above – for example, significant areas of criminal law (such as unlawful homicide) continue to be based on common law; significant areas of tort, such as negligence, are based on common law; the requirements for a valid contract rely on common law; in some areas, rules of common law have been completely replaced by statute (for example, defences to murder, occupier’s liability in tort, consumer protection in contract). Credit any other relevant point(s). Answers which do not explain two aspects cannot achieve marks higher than band 2, even if an eg is provided for one characteristic. Answers which do not provide an example cannot achieve maximum marks. 07 Suggest why, despite the threat of violence and disorder, the action by the police was probably a violation of the rights of Ava, Brett and Cian under Article 11 of the ECHR (the right to freedom of assembly and association). [5 marks] Marks for this question: AO1 = 2 and AO2 = 3 Levels of response mark scheme 5 marks – AO1 (2) and AO2 (3) Mark range Description 4–5 Band 3 Good outline explanation of legal rules and principles and good application to the scenario in order to present a legal argument using appropriate terminology. Good explanation of a relevant case to support the application. 2–3 Band 2 Knowledge is satisfactory and demonstrates a satisfactory understanding of relevant legal rules and principles. Satisfactory application of legal rules and principles to the scenario. Satisfactory explanation of a relevant case to support the application. 1 Band 1 Knowledge is limited and demonstrates a limited understanding of legal rules and principles. 0 Nothing worthy of credit. Indicative content AO1 • Explanation that Article 11.1 requires a state to ensure that there is freedom of peaceful assembly, and that it particularly supports the right to freedom of expression in making protests and the like. • Explanation that Article 11.2 provides a justification for interference with the right under Article 11.1, inter alia, for the prevention of disorder or crime but that ECtHR interpretation insists that this must not be used to permit counter-protesters to threaten disorder and crime so as to stifle protest. • Possible reference to/use of a case such as Plattform ‘Artze fur das Leben’ v Austria, Ollinger v Austria, Faber v Hungary. AO2 • Application to argue that Ava, Brett and Cian were exercising the right to freedom of assembly (with possible reference to its relationship with the right to freedom of expression). • Application to argue that, in view of their apparently entirely peaceful conduct, Ava, Brett and Cian should not have been denied their right to protest about the proposed plans for the ‘fast food’ shop. • Application to suggest that the intervention against their protest by the police, though prima facie justified by Article 11.2, would probably amount to a violation of Article 11.1 since the police misdirected their actions and should have controlled the counter-protest. Credit any other relevant point(s). Reference to a case is not required but may enhance explanation and/or application. 08 With regard to Article 2 of the ECHR (the right to life), advise Dora of her rights and remedies against the police under the Human Rights Act 1998 ss 6–8. [10 marks] Marks for this question: AO1 = 3, AO2 = 4 and AO3 = 3 Levels of response mark scheme 10 marks – AO1 (3), AO2 (4) and AO3 (3) Mark range Description 7–10 Band 3 Knowledge is good and demonstrates a good understanding of relevant legal rules and principles. Good analysis of legal rules and principles leading to good application of the correct rules and principles to the scenario. Good explanation of relevant legal authority to support the application. A good legal argument is presented using appropriate terminology to support advice. 3–6 Band 2 Knowledge is satisfactory and demonstrates a satisfactory understanding of relevant legal rules and principles. Satisfactory analysis of legal rules and principles leading to satisfactory application of the correct rules and principles to the scenario. Satisfactory explanation of relevant legal authority to support the application. A satisfactory legal argument is presented using some appropriate terminology to support advice. 1–2 Band 1 A limited demonstration of knowledge. Limited analysis of legal rules and principles in relation to the scenario but rules and principles are not applied correctly to the scenario. 0 Nothing worthy of credit. Indicative content AO1 • Outline explanation of the scope of the right to life under Article 2. • Outline explanation of the interpretation of Article 2 by the ECtHR, imposing not only a negative obligation on states not to take life but a positive obligation on states to protect and preserve life. • Explanation of the provisions of the Human Rights Act 1998 ss6–8. • Reference to, and use of, relevant cases: Osman v UK, Oneryildiz v Turkey, Opus v Turkey, Commissioner of Police of the Metropolis v DSD and another.