English and Welsh Legal System Flashcards
Courts hierarchy and system
1 ) What are 2 main sources/bodies of law
2) what do they do?
1) Parliament and court
2)
- they are creators and implement law
- Parliament - creates statutes, acts parliament and secondary legislation
- courts - create law by interpreting legislation and development of common law precedent
- Government is the 3rd body implements law and issues more law under acts of parliament.
English and Welsh Court system is structured hierarchaly, what does this mean?
1)
Superior courts = top
Inferior courts =below
Superior court - hear more complex disputes on wider range of issues, no geographical restrictions in respect of where sit. Most importantly CREATE BINDING PRECEDENT. Binds all court below it
= Supreme Court
= Court of appeal
= High Court
Inferior court - limited by geographical restriction’s eg C and MC, local to areas. DO NOT create binding precedent
= County Court
= Magistrates Court
= Crown Court
What is the difference between appellate and trial courts.
- APPELLATE COURTS courts hear appeals from trial courts (case already heard) on points of law (sometimes facts)
- TRIAL COURTS - hear cases 1st instance - facts and law and make ruling
- Supreme court and court of appeal are ONLY appellate courts
- High court = trial court and appellate court. Trial court case 1st instance
- Crown Court - appellate and trial court
- County and MC - Trial court
What is the structure of each of these courts
1) Supreme Court
2) Court of appeal
3) High Court
4) County Court
5) Crown Court
6) Magistrates Court
1 Supreme Court
- Binds inferior courts
- Hears appeals court of appeal and by leap frog from High Court on matters public or legal importance or complexity
2) Court of appeal
- Binds inferior courts
- Hears appeals from High Court and Crown Court
- Bound by supreme court (under CPR’s)
- Hears appeals from County Court (civil)
3) High Court
- Binds all inferior courts
- Bound by supreme court and CT of appeal
- Trial and appellate court - appeals from County Court MC and CC
4) County Court
- Does not create precedent
- bound by above courts
- Hears trials only
- Mostly money trials up to 100k, bankruptcy, insolvency matters, enforcement hearings and orders, PI claims and other commercial disputes.
5) Crown Court
- Does not create precedent
- bound by above courts
- Trial and appellate court appeals from MC
- hears all cases which involve trial on indictment
- Hears appeals from MC
6) Magistrates Court
- Does not create precedent
- bound by above courts
- Trial court only - summary and some EW offences
- can send to CC if more appropriate
- hears minor civil cases
** in addition to divisions between superior and inferior courts, trial and appellate courts there is also a division between criminal and civil systems. public law is technically civil law
5 key roles of the English and Welsh Legal system
1) - Implement law ie when adjudicating dispute
2) - Holding executive to account in judicial review
3) - Uphold rule of law and constitutional principles. Supreme court can render executive action unlawful
4) - s3 HRA - obligation to interpret in line with ECHR or make s4 declaration of incompatibility. S6 courts has public authority duty to uphold ECHR.
5) - law making -
*interpret act of parliament and can create law
* defining act of parliament can create law itself
* common law case development
CIVIL COURT SYSTEM
1) Mags CT
2) County CT
3) High CT - 3 divisions
4) Court of appeal civil division
1) Mags
- do hear some civil cases - gun licence, council tax
2) County CT
- first instance trial court
- civil claims up to £100,000 mostly civil disputes
- can appeal to High court. BUT under CPR appeal should be to next superior judge eg DJ in county court would appeal to circuit judge in county CT then to high court
3) High court
- trial court over £100,000, or complex
- appellate court
- 3 divisions
*Kings Bench division
- Tort, contract & commercial law
- contains administrative. Divisional CT planning CT and Kings bench civil list (PI claims)
- Also contains certain business and property courts, the commercial court, admiralty court and technology and construction court
-NOTE - Financial list (a business and property court): a Kings bench division & chancery division partnership hears financial disputes over £50 million, complex or important.
*Chancery division
- In addition to financial list:
- deal with company and partnership law, trusts, mortgages, bankruptcy, IP, probate, property and tort within business and property courts
*Family Division - appeals family court
CHANCERY & KINGS BENCH DIVISION
- both contain business and property courts. These are specialist courts which:
- deal with commercial issues, often have international element
- trusts, probate tax
- deal with specialist issues
4) Court of appeal civil division
- appeal from High Court to court of appeal (civil division)
-REMEMBER every second appeal in DISPUTES goes to Ct of appeal eg CC before DJ, 1st appeal to Circuit judge, second appeal STRAIGHT to CT of appeal
- can have a transfer appeal from county court to court of appeal
COURT of APPEAL goes to supreme court
What is the LEAPFROG procedure?
- Go from HC straight to Supreme court
- NO LEAPFROG PROCEDURE AVAILABLE IN CRIMINAL COURTS
- essentially where matter of massive importance - important legal principle or matter of law = rare
Procedure =
1) apply to HC judge for certificate within 14 DAYS of judgement
2) Will grant if satisfied important enough
3) Apply to SC within 1 month of certificate. In SC 3 Judges decide if will grant leave to appeal straight to SC.
CRIMINAL
1) Mags
2) Crown Court
- case stated procedure
- reason to apply by way of case stated
3) Public Law
1) Mags - trial court
- Mags to CC appeal against conviction or sentence.
- an appeal from mags by way of case stated goes to High Court - (administrative court)NOT CC. Pros and def can appeal by way of case stated.
- Procedure
* apply to administrative court
* divisional court will be at least 2 judges sitting.
-Reason to apply
* appeal on point of law
* appeal fact mags allowed such evidence to be heard in trial which should have been excluded
2) Crown Court - trial and appellate court
- appeal from CC to CT of appeal criminal division then to Supreme court
- appeal by way of case stated only where sitting as an appellate court. Appeal to HC - administrative court
** appealing administrative court by way of case stated goes straight to supreme court. Would think go to HC then CT of appeal. BUT NO if case stated straight to supreme court**
- Procedure
- apply to administrative court
- divisional court will be at least 2 judges sitting.
-Reason to apply - appeal on point of law
- appeal fact mags allowed such evidence to be heard in trial which should have been excluded
3) Public Law
- Judicial review claim, claim made to administrative court of HC - CT of appeal civil division - Supreme court
UK PRIVVY COUNCIL
= judicial committee of privy council
- it is the appeal court for some commonwealth countries
-CT of last resort some countries, on issues such as death penalty
- outside of our court system
- BUT Supreme CT judges sit on privvy council, so whilst decisions not binding will be highly persuasive - same judges same court
- if case uk privy council and supreme court case like each other, privy council case will be persuasive.
Human Rights Court - ECHR
- can be brought by individual if exhausted all other domestic avenues
- ECHR has own admissibility requirements which have to be passed
- not binding precedent on our system
- BUT under s2 must take into account their decisions
The judiciary =
1) Supreme Court
2) Court of appeal ( civil division)
3) Court of appeal (criminal division)
4) High Court
5) Crown Court
6) County Court
7) Magistrates Court
1) Supreme Court
- Justices of the Supreme CT
- Headed by - President
2) Court of appeal ( civil division)
- Lord and Lady Justices of appeal
- Headed by - Master of rolls
3) Court of appeal (criminal division)
- Lord and Lady Justices of appeal
- Headed by - Lord/lady chief justice (also head of judiciary)
4) High Court
- High Court Judges
- Headed by
KBD - president
Chancery division - Chancellor
Family - President
5) Crown Court
- High Court Judges, Circuit Judges and recorders (part time judges )
6) County Court
- Circuit judges, recorders and district judges (lowest ranking)
- If appealing judgement of DJ you then appeal to next highest judge within County Court, which would be circuit judge
7) Magistrates Court
- Magistrates & DJ
Barristers DAY 1 have rights of audience
1) What is Doctrine of Precedent
2) What is a decision made up of?
3) Procedure to go through to see if doctrine of precedent applies
1) Once a principle of law has been laid down by a superior court, future cases with the same material facts or legal principle, must be decided in the same way IF that court is bound by that superior court
2)
-Ratio decidendi = Binding part - decision made in relation to the material facts by the majority
- Obiter Dicta - Non binding part - known as because factor which can be widened or limited over time.
3)
- What are the material facts of the case
- Have similar material facts appeared before the court
- Was that court a superior court
- Did that superior court make a decision in relation to the material facts
- If yes that decision is law and must be applied to the facts of the case.
**NOTE - can make an argument each time. May see case is made up of same facts, but can be distinguished - could try and argue facts different enough and therefore different ratio applies
eg:= ratio man driving car whilst texting
- next case driving VAN whilst texting - can be distinguished and ratio extended
- BUT may then go to supreme court and ratio may again be limited
Key terminology for case law
1) - Applied
2) - Approved
3) - Overrule
4) - Overturn or reverse
5) - Distinguish
6) - Per incuriam
1) Applied -ratio applied in later case, inferior court follows, superior court follows decision like court
2) Approved - superior court follows decision of inferior court
3) Overrule - Superior CT disagrees with ratio of inferior CT and overrules it. overruled case will then not be good law, in relation to ratio.
4) Overturn or reverse - On appeal appeal court rejects first instance courts decision
5) Distinguish - Facts or legal principle of current case are said to be different to previous cases, meaning previous cases not binding on current case
6) Per incuriam - some fundamental mistake affects ratio of case. This equals ground for court of appeal to depart from the case
Rules when court can depart from own decision?
1) Supreme Court - Only in exceptional circumstances
2) Court of appeal - only if 1 of 3 grounds applies
- 1- Decision of CT appeal conflicts with decision of supreme court ( but previous decision is still law ie not technically been overturned
- 2 - 2 conflicting court of appeal decisions- one must be chosen
-3- Per incuriam - CT of appeal decision based on legal mistake
3) High Court - if by way of case stated or appeal IS BINDING, ISN’T if trial and can depart from previous decision
- High court is not binding on itself unless by way” of case stated
NOTE Crown Court does not make binding decisions*
Primary Legislation
1) Why is parliament so important?
2) Structure of ACT - key points?
1) Because can create whatever law it likes and overturn whatever law it likes
2)
- “chapter 42” - 42nd act to be passed that yr
- Long title - describes purpose act (1st paragraph)
- Date (brackets) date got royal assent
- enacting formula - indication validly created act- through part signed by king
- Body of Act - dividing in parts - chapters, sections, sub sections, paras, sub paras, schedules
- commencement - date becomes law
