Chapter 1 - The English Legal System Flashcards
1
Q
1.2 - The meaning of ‘law’
What must the law set out?
A
The law must set out a standard of acceptable behaviour, a benchmark against which people are judged.
2
Q
1.3 - Legal rules and social rules
What is law?
A
Law is a system of rules, that govern our day-to-day life at home, work, and in our relationships.
3
Q
1.4 - Law and morality
Moral principles underpin the law, but what is one difficulty with having a legal system entirely based on morality? Give an example of a law that is controversial ethically.
A
- It poses the question of whose moral standards should be adopted, especially in a diverse society where citizens may not share an identical moral code.
4
Q
1.4 - Law and morality
What are examples of controversial areas where there isn’t a clear moral consensus in society?
A
- E.g. Euthanasia is an area that is controversial and doesn’t have a consensus, as it is informed by one’s religious or philosophical beliefs.
- The death penalty, legalization of prostitution, and the classification of cannabis as a Class B drug.
5
Q
1.4 - Law and morality
How does the law protect society as a whole?
A
- By restricting the freedom of each individual, the law protects everyone else fro that person’s recklesness, violence or dishoneesty.
- The law takes away some of our personal freedoms, but in return gives us protection & security
6
Q
1.5 - Different types of legal rules
What is private law? and give an example.
A
- Private law is concerned with
the private relationship between individuals (including companies) and it is enforced by individuals taking actions against one another in the courts. - E.g. A claim by a customer against
a manufacturer under a guarantee.
7
Q
1.5 - Different types of legal rules
What is public law? and give an example.
A
- Public law is concerned with both relationships between individuals and the state, with the state enforcing certain standards of behaviour.
- E.g. criminal prosecution
8
Q
1.5 - Different types of legal rules
What is the distinction between civil and criminal law?
A
- Criminal law - laws that concern the relationship between an individual and the rest of the community as a whole
- Civil law - laws that concern the relationship between individuals in that community and don’t involve or concern the community as a whole
9
Q
1.5 - Different types of legal rules
EXAMPLE: if Sachin has parties late whilst playing loud music annoying his neighbours, is this a criminal or civil offence, and what potential claims are there?
A
- This is a civil offence.
- If it is sufficiently loud, Sachin’s neighbours can bring a private nuisance claim against him in a civil court, asking the court to grant an injunction telling Sachin to stop playing excessively loud music and award them damages.
10
Q
1.5 - Different types of legal rules
EXAMPLE: Toby orders a new toaster but when it arrives it doesn’t work. Is this criminal or civil, and then what type of law does it fall under?
A
- This is civil law, specifically the law of contract.
- Under Consumer Rights Act 2015, the goods a seller provides must be of satisfactory quality. If they’re not, the seller is in breach of contract, so toby is entitled to reject the toaster and receive a refund of the price paid including postage.
11
Q
1.5 - Different types of legal rules
What does civil law deal with? and what is the outcome measured in?
A
- Civil law deals with contracts, disputes and differences
- The outcome is measured in remedies or the payment of monies.
12
Q
1.5 - Different types of legal rules
What is the standard of proof in civil law?
A
On the balance of probabilities
13
Q
1.5 - Different types of legal rules
What does criminal law deal with? and what is the outcome measured in?
A
- It imposes restrictions and obligations on the population
- The outcome is measured in punishment for transgressions, with the public taking an interest in both the offence and the punishment
14
Q
1.5 - Different types of legal rules
What is the ultimate penalty in criminal law?
A
The loss of one’s freedom through imprisonment
15
Q
1.5 - Different types of legal rules
What is the standard of proof in criminal law?
A
Criminal matters must be proved beyond reasonable doubt
16
Q
1.5 - Different types of legal rules
What is the ‘golden thread’ of justice and what case is it stated?
A
The accused is innocent until proven guilty, as stated in the case of Woolmington v DPP [1935].
17
Q
How are criminal cases/proceedings initiated, and what role does the victim play?
A
- Criminal cases, referred to as prosecutions, are usually initiated by the State through the police, who arrest and charge individuals.
- Victims cannot prevent a prosecution or order its discontinuance; however, police typically refrain from pursuing charges if the victim is unwilling to proceed.
18
Q
What standard of proof must the prosecution meet in a criminal case, and what happens if they fail?
A
The prosecution must prove its case beyond reasonable doubt. If it fails to do so, the defendant must be acquitted.
19
Q
What is the primary objective of a criminal prosecution, and what types of punishment can be imposed?
A
The objective of criminal prosecution is to punish the defendant, who may face imprisonment, fines, or community sentences.
20
Q
What are civil proceedings otherwise known as?
A
Actions or claims, not prosecutions
21
Q
What is the standard of proof in civil proceedings, and how does it differ from criminal cases?
A
In civil claims, the case must be proven on the balance of probabilities, which is a lower standard than beyond reasonable doubt used in criminal prosecutions.
22
Q
What is the primary objective of a civil claim, and what form of relief does the claimant seek?
A
The primary objective of a civil claim is to compensate the claimant for losses suffered. Compensation (damages) is awarded to the claimant and is not intended to punish the defendant.
23
Q
What term was used before 1998 for the claimant in civil cases, and when did it change?
A
Prior to the Civil Procedure Rules 1998, the claimant was referred to as the plaintiff.
24
Q
What were the main sources of law in England and Wales historically?
A
Law in England and Wales developed from local customs and judges’ decisions.
25
What are the main modern sources of law in England and Wales?
The modern sources of law include **Parliament** (legislation), **European Union (EU) law** (prior to Brexit), and the **European Convention on Human Rights** (enforceable via the Human Rights Act 1998).
26
How has Brexit affected the sources of law in England and Wales?
Brexit has changed the legal landscape by removing EU law as a source of law, leading to new legal developments and challenges in England and Wales.
27
How was the law administered in England before the Norman Conquest in 1066?
Before the Norman Conquest, England had no unified legal system. Each region had its own customs, which were administered by local courts.
28
How did William the Conqueror establish control over the legal system after 1066?
William the Conqueror established control by traveling around England with his court, personally hearing grievances and imposing his authority. This led to the establishment of the **Court of King’s Bench**, which still exists today as the **King’s Bench.**
29
How did monarchs delegate the responsibility of hearing legal cases after the Norman Conquest?
Monarchs delegated judicial responsibilities to commissioners known as itinerants, who traveled the country to hear cases. These commissioners eventually became known as justices and held Assizes to hear serious cases.
30
What role did Henry II play in the formal development of common law?
Henry II formalized the system of circuit judges and divided the country into circuits to be visited regularly by justices. This helped standardize the application of law across England.
31
How did the common law develop from local customs?
Initially judges travelled the country & use local customs to decide cases. Over time, judges began discussing their cases and applying the best local rulings uniformly across England. This led to a legal system that was common to the whole country, and the King’s courts eventually gained dominance over local courts.
32
What is the doctrine of stare decisis, and how did it contribute to the development of common law?
The doctrine of stare decisis means standing by previous decisions. When a judge decided a new legal problem, their decision would be followed in subsequent cases, gradually leading to judicial precedent becoming binding on the courts.
33
What problem arose with the common law regarding the use of writs?
In the common law system, an action could only be brought if there was a pre-existing writ covering the facts of the case. This led to the principle of "no writ, no right", where a person could not start a legal action without buying an appropriate writ (a common law right only existed if there was a procedure for enforcing it).
34
What was the role of the Chancellor's Office in the common law system?
The Chancellor's Office was responsible for issuing writs, which were sealed letters in the name of the King ordering someone to take specific action, such as the sheriff or defendant.
35
How did the system of writs develop in common law, and what limitations arose by the 13th century?
The number of writs grew slowly, with around 50 writs existing by the 13th century. Many were minor variations of basic writs. The Statute of Westminster (1285) attempted to address these limitations, but its impact was limited.
36
37
What issues did plaintiffs face with common law writs?
Common law procedures were inflexible and formal. Plaintiffs could plead only one cause of action, and even a small error in the writ could collapse a case, forcing them to restart with additional expense and delay.
38
What was the main remedy available in common law, and why was it insufficient?
The main remedy in common law was damages (payment of money), which was often inadequate. It did not compel someone to stop wrongful actions or fulfill obligations, and it did not address rights like trusts or fair mortgage terms.
39
How did common law handle mortgages, and what problems arose for borrowers?
Under common law, if the borrower missed the repayment deadline, the lender took ownership of the land. Borrowers were unable to reclaim the land, even if they could repay the loan later, leading to unfair loss of property.
40
How did dissatisfied litigants seek justice outside of common law in the 14th century?
* The common law was rigid and dogged by technicalities.
* Dissatisfied litigants petitioned the **King** to exercise his royal prerogative as the **"fountain of justice"**. Eventually, this function was delegated to the **Lord Chancellor**, who became known as the **Keeper of the King’s Conscience.**
41
What role did the Lord Chancellor play in the development of equity, and when did the Court of Chancery form?
The Chancellor began issuing decrees in his own name by 1474, leading to the creation of the Court of Chancery, which developed equity as a separate legal system. The Chancellor could adjudicate cases based on fairness, without being bound by rigid common law procedures
42
How did equity differ from common law in terms of procedure and remedies?
* Wasn't that equity in the sense of natural justice was completely absent from common law, but it was rigid.
* Equity allowed for new rights and remedies to be developed based on the facts of individual cases. It was more flexible and quick, as it was not bound by the rigid writ system of common law.
* Chancellor could inquire into the facts of a case
43
How did equity evolve from the application of fairness into a separate legal system?
Over time, principles of equity emerged, and it became a separate branch of law with its own rules and procedures, rather than merely applying natural justice to individual cases.
44
Eventually over time, judges developed a set of equitable principles: What does the equitable principle "Equity looks on that as done which ought to be done" mean?
This principle means that equity enforces the intention of the parties, ensuring justice even if rigid procedures are not followed.
45
What does the equitable maxim "He who comes to equity must come with clean hands" mean?
This maxim means that a claimant seeking an equitable remedy must have acted fairly and without wrongdoing.
46
What does the equitable maxim "Delay defeats equity" mean?
This maxim means that a claimant cannot wait too long before bringing a claim, as excessive delay may prejudice the other party and result in the denial of an equitable remedy.
47
What does the principle "Equity will not suffer a wrong to be without a remedy" mean?
This principle ensures that **equity provides remedies **for wrongs that cannot be addressed by common law, ensuring justice is served.
48
How did the law of trusts develop through equity?
Trusts originated in the 13th century when crusaders would transfer property to trusted friends to manage for their families. The Court of Equity intervened to protect the families' interests, as the common law did not recognize their rights.
49
How are trusts still relevant today?
Trusts are important in taxation, shared ownership of property, provision for dependants, and in managing pension funds and charities.
50
How do equitable remedies differ from common law remedies?
Equitable remedies are **discretionary** and depend on the court's judgment, while common law remedies, such as **damages**, are a matter of **right** if the claimant proves their case.
51
What are the 2 equitable remedies which are still important today?
1. **Injunction** - a court order compelling a person to either perform an action or refrain from an action, such as demolishing a building constructed in breach of a promise not to build on land.
2. **a decree of specific performance** - a court order compelling a party to fulfill their obligations under a contract or trust, used when damages would not be an adequate remedy.
52
What was the key case that resolved the conflict between common law and equity, and what was the ruling?
The conflict was resolved in **Earl of Oxford’s Case (1615)**, where **King James I** ruled that equity should prevail over common law in cases of conflict.
53
What were the main disadvantages of equity by the 19th century that led to the need for reform?
By the 19th century, equity had become inflexible, similar to common law, and the legal system was slow, expensive, and had overlapping jurisdictions with a poor appeals system.
54
What did the Supreme Court of Judicature Acts of 1873 and 1875 achieve?
The Acts **merged the separate court systems **of common law and equity into a **single court structure,** allowing civil courts to grant both **common law** and equitable remedies in the same proceedings.
55
What is an example of a court granting both common law and equitable remedies in the same case?
A court can order an injunction to stop ongoing unlawful behavior alongside awarding damages for losses that have occurred up to that point.
56
How is common law most commonly defined today?
Common law today refers to case law or judge-made law, as opposed to law created by Parliament (legislation).
57
What role do law reports play in the common law system?
Law reports summarize the decisions made in actual cases, and they are compiled by specialist journalists called court reporters.
58
What is the declaratory theory of law?
The declaratory theory posits that judges do/should not make or create law but merely declare what the law is and apply it to the case. This theory holds that law should originate from Parliament, not judges.
59
Why is case law still a major source of law in the English legal system?
Case law remains a major source of law because much of modern English law has never been codified in statutes and is still found in judicial decisions, some of which date back centuries.
60
How has the role of judges as law-makers evolved in recent times, and which judge commented on this?
* In modern times, it is accepted that judges, especially in the **Court of Appeal **and **Supreme Court**, do make new law.
* **Lord Browne-Wilkinson** stated in Kleinwort Benson Ltd v Lincoln City Council [1999] that "the whole of the common law is **judge-made**," ensuring that it remains relevant in a changing world.
61
What are the facts and decision in *Re A (Children)* [2001]?
* In Re A (Children), the Court of Appeal had to decide the legality of an operation to separate conjoined twins, Jodie and Mary. The operation would result in the death of the weaker twin, so judges had to decide whether the doctors would be guilty of murder.
* The judges ruled that the operation should proceed despite there being no legal precedent, demonstrating the need for judicial decision-making in novel cases.
62
How has the role of judges in law-making changed in recent times?
While judges still play a role in developing the law, their influence as law-makers has diminished. Nonetheless, they retain the ability to shape legal developments in certain areas, especially when no precedent exists.
63
What is the main political objection to judges making law?
The primary objection is that judges are not democratically elected. Since they are not accountable to the electorate, it is argued that judges should not create legal rules that hold society together, as this could undermine democratic principles.
64
How are senior judges in England and Wales appointed?
* Senior judges in England and Wales are appointed by the **Lord Chancellor** based on the**** recommendation of the Judicial Appointments Commission.
* Supreme Court justices are appointed by the **Prime Minister** following the recommendation of a special appointments commission.
65
Why do judges sometimes need to make law, despite political objections?
Judges sometimes need to make law because they are confronted with novel situations where no existing legal precedent applies, requiring them to make decisions to resolve new legal issues.
66
What limitation do judges recognise when it comes to law-making?
Judges recognize that they ought not to develop the law in a direction contrary to the expressed will of Parliament, as confirmed in R (Miller) v Secretary of State for Exiting the European Union [2017].
67
What is the most important source of law in the English legal system today?
**Legislation** is the most important source of law in the English legal system, surpassing common law. Parliament passes laws that apply to England, Wales, Scotland, and Northern Ireland.
68
How has the volume of legislation passed by Parliament changed over time?
The amount of legislation has increased significantly over time. For example, Parliament passed 220 pages of legislation in 1921, compared to 4,911 pages in 2006, which is the highest recorded figure.
69
What are the main functions of legislation?
The main functions of legislation are **making**, **changing**, and **repealing** the law.
70
What is the difference between "legislation" and "statute"?
1. **Legislation** is a broad term that includes statutes and other types of law, such as delegated legislation and EU-originated legislation.
2. A **statute** specifically refers to an Act of Parliament.
71
Do statutes apply only to England and Wales?
No, unlike case law which only applies to England & Wales, in the absence of specific provisions, statutes apply to England, Wales, Scotland, and Northern Ireland.
72
What are the three components of Parliament in the UK?
Parliament consists of the **Monarch**, the **House of Commons** (democratically elected), and the **House of Lords **(not elected).
73
What is the difference between a Green Paper and a White Paper in the legislative process?
1. **Green Paper** - consultation document on a possible new law
2. **White Paper** - incorporates the Government's firm proposals for the new law
74
What is the initial form of an Act of Parliament, and what must happen for it to become an Act?
An Act begins as a Bill, and it must pass through all required stages in both Houses of Parliament and receive royal assent to become an Act of Parliament.
75
Give an example of a Bill that took a long time to become an Act of Parliament?
The Hunting Act 2004 took seven years and 700 hours of Parliamentary time to become law.
76
What is the doctrine of parliamentary sovereignty?
This doctrine states that Parliament is the supreme law-making body in the country.
* Parliament can make laws on any subject.
* No other body, including courts, can invalidate an Act of Parliament.
* Parliament cannot bind future Parliaments, so any law can be repealed or amended.
77
What are the different types of legislation?
Public Bills: address matters of general public concern, such as the Stalking Protection Act 2019.
* Private Bills: affect specific individuals or localities, like authorizing a new railway line.
* Consolidating legislation: combines existing laws on a topic into a single statute without changing the law.
* Codifying legislation: brings together all law on a subject, including common law, custom, and statute, and may change the existing law.
78
What is delegated or subordinate legislation?
It is law made by bodies other than Parliament, such as government departments or local authorities, but authorized by Parliament through a 'parent' Act.
79
Give examples of delegated legislation.
* Statutory instruments: the most common form, often used to fill in details of a broad Act. For instance, the Education Reform Act 1988 gives the Secretary of State power to detail the National Curriculum through statutory instruments.
* Byelaws: local laws made by local authorities on issues specific to their area, such as park usage or alcohol bans in public spaces.
80
What are the advantages and disadvantages of delegated legislation?
* Advantages: Saves Parliamentary time, allows for technical expertise in drafting, enables quick responses to emergencies.
* Disadvantages: Reduced Parliamentary scrutiny, potential for complexity making it difficult to track and comply with, potential for abuse of power by ministers ('Henry VIII' powers).
81
What was the impact of EU membership on the English legal system?
During the UK’s membership in the European Union (EU), EU law applied throughout the UK. To incorporate EU law into UK law, the European Communities Act 1972 was enacted. Membership significantly affected various areas of law, particularly commercial, consumer, employment, environmental, and immigration law.
82
What happened to EU law after Brexit?
Following Brexit, EU law ceased to apply directly in the UK. However, the European Union (Withdrawal) Act 2018 retained applicable EU law as 'retained EU law', preventing a legal vacuum. The Retained EU Law (Revocation and Reform) Act 2023 has changed the status of retained EU law, renaming it 'assimilated law'.
83
Describe the main institutions of the European Union (EU).
* Council of the European Union: Represents national governments of member states and makes major decisions.
* European Commission: Develops policy and proposes legislation, working independently of national interests.
* European Parliament: Composed of elected members, it scrutinizes and amends legislation proposed by the Commission.
* Court of Justice of the European Union (CJEU): Ensures EU law is observed, with the European Court of Justice (ECJ) as its highest court.
84
What are the types of EU legislation?
Primary legislation: Found in treaties like the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), binding on all member states.
Secondary legislation: Includes:
* Regulations: directly applicable in all member states.
* Directives: set objectives to be achieved by member states, leaving implementation to national authorities.
* Decisions: binding on those to whom they are addressed, whether member states or individuals.
85
How did EU law impact the doctrine of parliamentary sovereignty?
During the UK's EU membership, EU law, particularly directly effective law, took precedence over domestic law, including Acts of Parliament. This was a recognized limitation on parliamentary sovereignty, demonstrated in cases like R v Secretary of State for Transport, ex p Factortame (No 2) .
86
Explain the role of the European Convention on Human Rights and the Human Rights Act 1998 in the English legal system.
The Human Rights Act 1998 (HRA) incorporated the European Convention on Human Rights (ECHR) into UK law. The ECHR defines fundamental human rights. Under the HRA, courts must interpret legislation to be compatible with the ECHR and can issue 'declarations of incompatibility' if legislation conflicts with Convention rights.
87
What are the key provisions of the European Convention on Human Rights?
It protects fundamental rights like:
* Right to life
* Freedom from torture
* Right to a fair trial
* Freedom of expression
* Freedom of assembly.
88
What are absolute, limited, and qualified rights?
* Absolute rights: Cannot be restricted under any circumstances, e.g., freedom from torture.
* Limited rights: Can be restricted in specific, defined situations.
* Qualified rights: Can be interfered with in certain circumstances to protect public interests, e.g., freedom of expression can be limited to protect national security.
89
What are the main sources of law in England and Wales today?
* UK Legislation
* Retained EU Law/Assimilated Law
* The Human Rights Act 1998
90
What are the key takeaways about the development of the English legal system?
The legal system constantly evolves, balancing individual freedoms with societal needs. Understanding the sources of law and the principles of interpretation is crucial for applying the law effectively.
