Chapter 1 - Legal Principles & International Law Flashcards
What is civil law?
Civil law regulates disputes between private individuals and organisations.
What is criminal law?
Criminal law regulates with behavior that is or can be construed as an offense against the law
Compare the following with regards to the similarities and differences between civil and criminal law: i) Terminology to describe involved parties, ii) Aim of legal action, iii) Settlement iv) Standard of proof, v) Burden of proof, vi) Main remedies, vii) Who brings the action?, viii) Who decides the outcome?
Summarise the difference between criminal and civil law
Under both laws it is the legal consequences which are different, not the cause
The same event may give rise to both criminal and civil actions. However, the former may lead to punishment of the responsible individual by the state and the latter compensation of the injured party - criminal law does not give redress to individuals and aims to punish whilst civil law does not punish but aims to give redress to affected parties.
What are the two main sources of laws that judges will refer to?
- legislation
- case law
What is legislation?
Legislation (or statute law) is law created by Parliament
What is primary and secondary legislation?
Primary legislation’ is the term used to describe the main laws passed by the legislative bodies (i.e, Parliment)
Secondary legislation (or delegated legislation) is designed to add further detail or amendments to primary legislation and is created by specialist individuals as directed by an Act of Parliament - enables Parliament to focus on the purpose of the statute while leaving the detail to experts
What powers do parliemnt have with regards to legislation? (4)
- Repeal earlier legislation
- Overrule case law
- Make new law
- Codify case law - convert case law into legislation
What is case law?
Case law (or common law) is a law that’s based on judicial decisions from previous cases, rather than statutes, constitutions, or regulations.
Should case law be followed?
Generally, yes.
Many judgements are precedent for future cases which means that they must be followed unless superseded by legislation or the decision of a higher court.
What is important to remember about legislation regarding developments in society, business and technology?
The more changes we see in society, business, and technology, the more our laws need to evolve to
respond to them. Case law can, to some extent, set new precedents. However, when there are clashes
or inconsistencies, legislation changes are likely to be required
What is the structure of the court system in the UK? Explain, with a suitable diagram, the hierachy of the courts and which types of cases are heard in each court
It is divided into the civil courts (which deals with civil cases) and criminal courts (which deals
with criminal cases).
At the bottom of each hierarchy you have the ‘courts of first instance’ (county courts for civil and magistrates court for criminal) which hears the case when it first enters into the court system. From that point the cases can progress up the chain of hierachy depending on the complexity, up to the high courts.
Decisions in courts can be appealed, where these appeals can progress up through the court systems up until the supreme court.
What are the alternative ways civil disputes can be settled outside of court?
- Tribunals
- Alternative Dispute Resolution
What is a tribunal? What are them main differences to court proceeding
A tribunal is a specialist judicial body that hears disputes in specific areas of law.
- Tribunals are often less formal and more accessible than courts
- Decision is binding on those involved in the case but not future cases, but they will be recorded and may be taken into consideration in the future.
What is Alternative Dispute Resolution?
Alternative Dispute Resolution is a process where parties with a dispute use any type of procedure, or a combination of procedures, to resolve their differences, rather than go to court.
What are the key procedures in Alternative Dispute Resolution?
- arbitration
- mediation & conciliation
What is the process of arbiration?
Arbitration is when an independent third party (chosen by the parties, usually lawyers) makes a decision on a dispute to resolve it. They act in a similar way to a judge in a court case.
What must be agreed upon for arbiration to take place?
An arbitration agreement which sets out what the process involves as well as rights and obligations of the parties (e.g being able to appoint an arbitrator).
What is the process of mediation & conciliation?
Mediation & conciliation is when an independent third party (chosen by the parties, usually lawyers) the parties to resolve their dispute. In these cases, the third party does not act like a judge, instead they work to assist the parties in coming up with their own solution to the issue.
What are the advantages and disadvantages for ADR for the following points: i) Expertise, ii Cost, iii) Privacy, iv) Solutions, v) Speed
Are the decisions made in ADR or tribunals legally binding?
Tribunals: yes but only for that case - does not set case law precident
ADR - no, these can still end up in court if a decision cannot be made or one party chooses to dispute the result
What are the two main sources for law for human rights in the UK?
- The European Convention on Human Rights
- Human Rights Act 1998.
What does the European Convention on Human Rights set out? What has the UK signed up to?
It sets out a number of rights and freedoms that a human should have
The UK has signed up to 16 of these:
What is the final appeal court for the European Convention on Human Rights
The European Court of Human Rights (ECHR) in Strasbourg.
