BESY Flashcards
Definition of law
The principles and regulations established in a community by some authority and applicable to its people whether in the form of legislation or of custom and policies recognised and enforced by judicial decision.
Sources of law
- Case law (Judicial Precedent)
- Common law
- Case law
- Equity
- Statute law:
Direct legislation: - Acts of Parliament
Delegated legislation:
- Statutory instruments
- Byelaws
- Orders in council
Classifications of law
- Common law and equity
- Private law and public law
- Criminal law and civil law
Common law and Equity
- Common law:
- Developed from local customs
- Introduced the system of precedents
- Only remedy is damages - Monetary compensation
- May be rigid and inflexible.
- Equity
- Developed as a petition by a party who felt the common law had led to injustice.
- More flexible than common law.
- Introduced new discretionary remedies
- Not granted if undue delay in presenting the case. The claimant has acted unfairly.
Public and Private law categories
- Public law:
- Criminal law
- Constitutional law
- Administrative law
- Social welfare law
- Everything that deals with matters relating to the whole country.
- Private law: (Law enforced between individuals)
- Contract law
- Family law
- Areas deals with intellectual property rights (Copyrights, designs and pattens)
- Land law (The way it’s transferred)
- Probate (Dealing with wills and property after someone died)
- Company law (Deals with how companies are created and operated)
Criminal law
1) Form of PUBLIC LAW. Conduct or behaviour of which the State disapproves and which it seeks to control.
2) Purpose - Enforcement of particular forms of behaviour by the state, which acts to ensure compliance
3) The case is brought by the State in the name of the Crown. A criminal case will be reported as Regina versus …… (Defendant), where Regina means the Latin for Queen/King
4) Burden of proof - On the prosecution (State).
5) Standard of proof - Beyond reasonable doubt
6) Object - Regulate society by threat of punishment
7) Guilty - Fined or imprisonment
Innocent - Acquitted
Civil Law
1) Form of PRIVATE LAW. Involves the relationship between individual citizens.
2) Purpose - Settle disputes between individuals and to provide remedies.
3) Brought by the claimant. The case will be referred to as ……… (Defendant) v ………. (Claimant)
4) Burden of proof - On the claimant.
5) Standard of proof - Balance of probability
6) Object - Usually financial compensation, claimant back to where h would have been.
7) Pay damages or other remedies.
The civil court appeal system
1) Magistrates or County Court (First instance)
2) High court of justice
3) Court of Appeal (Civil division)
4) Supreme Court (Previously House of Lords)
The criminal court appeal system
1) Magistrates’ Court
2) Crown Court
3) Court of Appeal (Criminal division)
4) Supreme Court (Former House of Lords)
or
1) Magistrates’ Court
2) Divisional Court of the Queens Bench Division
3) Supreme Court
3 Divisions of the High Court of Justice
- Queen’s Bench Division
- Chancery Division
- Family Division
Magistrates vs County court
Magistrate Court:
Jurisdiction is mainly criminal does have jurisdiction in family matters as contact order, adoption and maintenance.
County Court:
First instance civil claims in contract, tort (Damage another person), landlord and tenant, probate and insolvency. Deals with small claims and majority of fast track and some multitrack, all other claims are dealt with by the High Court.
County court -> Three-track system
1) Small claims - up to £10 000
Informal process
2) Fast track - Between £10 000 and £25 000
Formal process, expected to not last no more than a day.
3) Multitrack - Over £25 000 or complex claims
Court v Tribunal
- Court:
- Expertise: May not be heard by specialist in the area of law.
- Speed: Slow process
- Cost: Legal aid available, but can be costly
- Proceedings: Strict rules relating to evidence, pleading and procedure.
- Decision: Are consistent bound by judicial precedent.
Tribunal:
- Expertise: Will be heard by expert in the field.
- Speed: Quickest process
- Cost: Legal aid not available, can be much cheaper.
- Proceedings: Much less formal and can be less intimidating.
- Decision: Not bound by judicial precedent and risk of making inconsistent decisions.
Sources of the law
- Legislation takes precedence over case law
- Equity prevails over common law
Three factors deciding if a judicial precedent is binding or persuasive
- Hierarchy of the court
- Ratio decidendi and obiter dicta
(Rational for the decision) and (Opinion of the judge) - Material facts of the case
Judicial precedent is not binding
- Overruled by a higher court
- Overrule by statute law
- Made without proper care or because the judge was misinformed by the law.
- If it can be distinguished from a earlier case.
Advantages & disadvantages of judicial precedent
Advantages:
- Consistent outcome
- Adaptable & Flexible
- Clear process as only ratio decidendi is followed
- Decision is bases on actual events
Disadvantages:
- Law is complex
- Law can be rigid & inflexible
- Reactive rather than proactive
Act of parliament
- The House of Commons
- The House of Lords
- The Monarch
Stages for a Bill to become an Act of Parliament
1) First reading: Name of Bill and proposer
2) Second reading: Debates takes place on the principle of the Bill and then voted upon.
3) Committee stage: Smaller no. of MP’s consider the wording of the Bill. This stage can last 7 months (Depending on how complicated and contentious the Bill is)
4) Report stage: The Bill is amended by the Committee and is reported back to the full House.
5) Third reading: Bill is read to final time.
End of this process in both Houses, the Bill must receive the Royal Assent.
Doctrine of sovereignty of Parliament
Parliament is sovereign. In theory, Parliament can make new law and can make any law it wishes. However, it cannot pass an Act which can never be repealed.
Delegated legislation
- Statutory instruments: made by Government Ministers
- Bye-laws: Made by local authorities
- Orders of Council: Made by the Privy Council in the name of the Monarch on the advice of the Prime Minister.
Advantages and Disadvantages of Delegated legislations
Advantages:
- Saves Parliament time
- Parliament to vote on the principle
- Flexibility
Disadvantages:
- Difficult to keep up with changes
- Considered undemocratic
