Common law, equity, and the UK court system. Flashcards
Three separate branches of the Kings Court
Court of Exchequer - royal finances
Court of Common pleas - ownership and possession of land
Court of King’s Bench - emerged later dealing with serious criminal matters
The Kings Court
Cura Regis (King’s council) – dispensed central justice alongside the traditional courts in the provinces with King as central Figure. King’s judges applied law on the local customs of the country (term common law comes from this)
Kings Court was formed to deal with the legacies and disputes from the civil war and became essential to dispute resolution between citizens. Kings court established itself in Westminster and became autonomous – formed from the semi-professional clerics who were advising king on the administration of justice.
Assizes
Assizes (sittings) were from a royal commission to send royal justices to the provinces to administer the law outside of London.
Calling of the first assizes by King Henry II (1154-89) – dealing with national wounds and of the civil war – this allowed for the establishment of royal power and applied the law of the King’s Court countrywide
Common law courts and assizes were born from centralised royal power and were not thorough enough to deal with localised and individual needs - the aim was to conclude disputes rather than necessarily to resolve them in a just way.
It was not a system that developed from a concept of ‘rights’ and ‘wrongs’.
Assizes eventually ascended the local courts and expansion of Kings Court was resisted by the local barons but firmly in place and supreme over local courts by the time of the reign of Edward 1 (1272 -1307)
The Writ System developed by the Kings Court
There was no automatic right of access. Claimants had to purchase a writ from chancellor before an action could be bought before the courts.
Writs = document with a royal seal that constituted a royal demand for the defendant to appear before the Court. Set out details of the claim.
Writ system was more about process and quickly resolving disputes rather than justice. – not a long term judicial system.
Over a period of time the writ system became extremely formal and beset with technicalities and claims would only be allowed if they could fit into an existing writ.
it offered only the remedy of damages.
Problem with common law and kings courts
Insufficient in dispensing justice - Only remedy was damages and designed to resolve disputes not concerned about the individual rights and wrong.
Inaccessible – had to purchase a writ and there needed to be an a corresponding one already in existence
Stultifying effect – rules of procedure prevented the growth of substantive law
Court of Chancery
Issues with common law led to litigants feeling that justice was not served in the King’s Courts, began to petition the King to do justice in particular instances. These petitions were passed on to the Chancellor, a cleric seen to be the ‘keeper of the King’s conscience’ for a decision.
By the end of the 13th century, such petitions were dealt with through a more formal procedure by the Court of Chancery, presided over by the Lord Chancellor.
Equity
the body of principles and rules administered by the Court of Chancery before the Judicature Acts 1873-1875.
Equity sowed the seeds of the modern law of trusts and modern equitable remedies.
rules of equity were far greater in flexibility and allowed Lord Chancellor to act outside of strict rules of procedure in common law courts
Cases were decided on fairness and strong moral element deriving from the offices origins in the church.
Initially Lord Chancellors decided claims from their own conscience but overtime Lord Chancellors came from more legal backgrounds rather than clerical so adhered to the doctrine of precedent used in common law.
Equitable precedents
Lord Chancellor decisions created precedent and equity developed and maintained its own separate system of rules.
Was a system that supplemented rather than usurped common law
legal historian F.W. Maitland: Equity = ‘a gloss on the common law’.
Conflicts between common law courts and equity
Most intense at the end of 16th century and into 17th century - became one of the main sources of tension between the Stuart monarchy and Parliament.
Earl of Oxford’s Case (1615): conflict between common law and equity was referred to James I
James I: In cases of conflict, equity should prevail over common law. Equity is to supplement the common law it does not surpass it – ‘equity follows the law’.
S.25 Judicature Act 1873-1875 enshrined the rule
S.49(1) Supreme Court Act 1981 – rule is found now
Equitable remedies remain discretionary in modern law.
Problem with Court of Chancery applying equity exclusively
Until latter part of 19th Century
Presented problem for litigants. If both an equitable remedy (e.g., an injunction) and damages were required they had to bring two actions, one in common law and one in Chancery.
Duplication of legal proceedings = onerous and time consuming
Some attempts to resolve this problem in mid-19th century but not very successful
Judicature Acts 1873-1875:
Introduced fundamental reforms
Abolished the old divisions between three common law courts and the chancery
Established a single High Court and a Court of Appeal – both could apply remedies of both common law and equity
Equitable remedies
discretionary in nature and only awarded if damages would not be an adequate remedy.
Specific performance - order by the court to compel a party to perform something they have promised to do under a contractual agreement.
Injunction – (started as equitable remedy but now has statutory footing) An injunction is an order that requires a party to legal proceedings either:
To do something (a mandatory injunction).
To refrain from doing something (a prohibitory injunction).
Declaration – Courts can make a legally binding statement by a court about any of the following:
Legal rights of the parties;
The existence of facts;
A principle of law.
Recission – the setting aside of a contract, available at common law and in equity and granted at courts discretion.
Rescission is only available where the parties can be put back to their pre-contractual position, i.e., as if the contract had never been entered into.
Rectification – corrects a document to reflect the parties contractual intention. Main purpose is correcting mistakes made in recording agreements – therefore only applies in the case of written contracts.
The Crown Prosecution Service
The body that initiates criminal proceedings in England and Wales. This is independent from the Police and other investigative authorities.
Guilty plea
A defendant my wish to plead guilty the court will go on to sentence. Once the Defendant has pleaded guilty, they are treated as being convicted of the offence, and cannot appeal that conviction. They can, however, apply to “vacate” their plea.
Criminal cases Review Commission (CCRC)
Statutory body responsible for reviewing alleged miscarriages of justice in the UK.
The commission is the only body in its area of jurisdiction with the power to send a case back to an appeals court if it concludes that there is a real possibility that the court will overturn a conviction or reduce a sentence.
To refer a case for appeal the CCRC usually has to identify new evidence or a new legal argument that makes the case look significantly different.
Applications are made in writing by people with criminal convictions or by their representatives. It is not necessary to have a lawyer to apply to the commission
Appeals from the Court of Appeal criminal division to the UKSC:
Possible but in practice, not common.
Appeals to UKSC = being on a “point of law of general public importance”. This test is rarely met in individual criminal cases.
Example of successful UKSC appeal – R v R [1991] – House of Lords confirmed that no ‘Marital defence’ to the crime of rape existed in English law.
Appeals from the Crown Court
With permission from the Court of Appeal (Criminal Division), a defendant may appeal their: conviction, their sentence, or both.
The prosecution may appeal to the Court of Appeal
Appealing a conviction = Court of Appeal will quash a criminal conviction of the Crown Court if satisfied the conviction is ‘unsafe’ – if conviction is quashed any sentence is automatically quashed with it
Appealing a sentence = far more common for a defendant to appeal a sentence. Permission to appeal is required.
If you lose your appeal your original sentence or conviction will not change but you might have to: restart your sentence from the beginning or pay the court costs
Appeals from the Magistrates Court
Defendant can appeal to Crown Court against their conviction, or their sentence, or both.
Appeals against sentencing = The Crown Court can allow the appeal (meaning, in effect, the court will reduce the sentence) or dismiss the appeal. If the appeal is dismissed the court will usually simply decide not to change the sentence.
Risk of Appeals against conviction = trial will be heard ‘de novo’ (heard afresh). Crown Court have greater sentencing powers and their sentence may be increased if the appeal is unsuccessful.
Decision was legally flawed appeal – if prosecution or the defence consider decision legally flawed it may appeal to the Administrative Court.
Magistrates Court
The lowest level of court in the criminal court system (they have some civil jurisdiction)
Vast majority of criminal cases start in the magistrates and the 95% end there.
Court tries all summary criminal offences (minor offences) and some triable either way offences (mid-range offences). When a defendant is accused of an indictable offence (or trials on indictment) they will go straight to the Crown Court.
The magistrates may try and sentence the defendant at first instance, or (triable either way offences) the defendant may elect or the court may decide to commit the defendant to the Crown Court for trial instead of in the magistrates
The power to impose a fine of up to £5,000 and/or impose a maximum prison sentence of six months for a single offence
Magistrates do not create precedent but are bound by The Administrative Court, The Court of Appeal, and The Supreme Court
A case will be heard by: a bench of 3 lay magistrates, or a single district judge.
Crown Court
The magistrates will generally decide whether to grant the defendant bail, consider other procedural issues such as reporting restrictions, and then pass the case on to the Crown Court for trial.
The defendant may wish to go before trial in the Crown Court for trial and sentencing rather than stay in the magistrates – these are the triable either way cases.
Trials in the Crown Court involve juries in almost all cases. The judges who normally sit in the Crown Court are High Court judges, circuit judges and recorders.
It is the senior court of first instance in criminal law – indictable only offences (too serious for the sentencing powers of the magistrates)
The Crown Court may hear cases on appeal from the magistrate’s court (summary only cases and triable either way cases that started in the magistrates)
