Case Law Flashcards
four sources of law within the UK
Legislation: acts of parliament
Common Law: law made in the courts, made by judges
European Union Law: our membership of the EU ensures that this law actually takes precedence over our own
European Convention of Human Rights: ensures all of our courts protect the rights identified within the ECHR
common law
The legal system within England and Wales (note that Acts of Parliament largely cover all 4 countries, CL only England and Wales) is that of a ‘Common Law’ system
It is law created by subject matter from earlier cases, and unlike Acts is a constantly evolving and adapting method of creating law
It is effectively created by Judges, using their knowledge of the law, case facts and experience of previous applications of the same law
It is an Anglo – American trend, and not replicated in countries such as Switzerland which rely on a civil code for their law
hierarchy of the courts
Supreme Court
criminal
court of appeal
crown court
magistrates courts
civil
court of appeal
high court of justice
county courts
magistrates court
Summary / Triable either way cases. Traffic offences, petty theft and minor assaults. Largest sentence: £5000 fine or 6 months imprisonment, judged by ‘Magistrates’
crown court
Indictable offences. Murder, rape, robbery. No limit on punishment. Heard by Jury and Judge
court of appeal
2 divisions (Criminal and Civil.) Hears appeals of sentences and convictions given by the Crown court. Heard by Lord Justices of Appeal or High Court Judges
Supreme Court
Hears cases of the most importance in Criminal or Civil in which the outcome could impact the public or constitution – Prorogation, Right to Die etc. Heard by Supreme Court justices who sit in 5,7,9,11
how does common law work
When making their decisions in the courts, Judges must consider the precedents used in the decisions made before them
It is development of the law on a case by case basis, by Judges
CL is built on the process of ‘judicial precedent’ which simply means the process of judges making decisions based on what has happened before
The most obvious way to demonstrate the impact of Common Law is to have a look at offences created and defined by it
For example – S1 Theft Act 1968 defined theft as ‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’
Wheras the definition of murder is not found anywhere in statute but in common law, defined as ‘’the unlawful killing of a human being in the Queen’s peace, with malice aforethought’
Pillars of judicial precedent
For judicial precedent to exist, the judges must be applying the law in a broadly similar way – the judges must follow decisions made in similar cases before them
This is defined in the Latin phrase ‘Stare Decisis’ or stand by the decision as the English roughly translates to
Stare Decisis means that judges must follow the actions of that case, regardless of their agreement in what they mean or whether they agree
Judges do not have to spend their entire time remembering g what may or may not have happened before them, everything is recovered in Law Reports:
All England Law Reports
Criminal Appeal Reports
Times Law Reports (summaries)
Criminal Law Review (summary, but w/expert opinion)
The Law Reports (read, edited and emended by the Judges)
What is binding
Not everything that a judge says is binding, the only part that will bind future judges is that ‘ratio decidendi’ or the ‘reason for the decision’
‘the ratio decidendi is the rule of law, expressly or impliedly treated by the judges as a necessary step in reaching his conclusion, having regard to the reasoning adopted by him’
Sir Rupert Cross
Whenever you read a case, the ratio will normally be there – it is the explanation for the decision of the case
As well as the reasons, judges may also discuss other issues which contributed to the issue but were not directly relevant. – these are Obiter Dicta or ‘other things said.’ it is not binding, but may be persuasive
do judges have to follow these precedents
Although the system is rigid, there are ways in which judges can ‘get away’ with not following the precedents
Distinguishing: no cases will be the same, but how different are they? Are they so different that using the same ratio would be inappropriate?
Quashing, Overruling and Reversing: If the CoA allows an appeal on conviction, then that conviction is quashed.
If CoA. Supreme Court choose not follow a precedent from court that which does not bind them, it has been overrules
If a case goes on appeal from the CoA to SC, and is allowed than the judgement of the lower court is reversed
Disapproval: a court may express disapproval at a decision, but do not want to or are unable to overrule it, but their expressly of disapproval invites dissent and allows a court with higher authority to overrule if they so wish
Decisions per Incuriam: if a court has failed to spot something which is an obvious error through legislation or precedent and therefore feel it would be inappropriate to follow
advantages of CL
Consistency: it ensures that those cases with similar material facts re treated the same and that neither received different or inappropriate treatment at the hands of a judge – a legal system is chronically unfair when people receive unequal treatment
Predictability: this allows lawyers to advise their clients as to what is a likely outcome of the case. They may know whether a plea is a good or bad idea in respect of the precedent history
disadvantages of CL
Inflexibility: every advantage has a n equal and opposite disadvantage! Where predictability can be good for clients and lawyers, the inflexibility can mean law remains the same with no changes for many years
Continual bad decisions: this can be seen where the same ideas are perpetrated and therefore result in the same old, outdated or inappropriate law remains in place – especially in times of moral and social change
