English Legal System Flashcards
What is criminal law?
Criminal law set out the type of behaviour which is forbidden at risk of punishment and a person who commits a crime is said to have offended against the state so the state has the right to prosecute them.
What is civil law?
Private dispute between individuals and/or businesses
What are the differences between criminal law and civil law in: purpose of the law, person starting the case, courts, standard of proof and outcome of case
-Purpose of the law
Criminal- aimed at trying to maintain law and order
Civil-uphold the rights of individuals and courts can order compensation in an effort at putting the parties back to the position They would’ve been if there had not been any breach of the law.
Person starting the case
Criminal- the Crown prosecution service
Civil- the individual or business which has suffered
Courts
Criminal- magistrates or crown
Civil- High Court or County Court
Standard of proof
Criminal-beyond reasonable doubt
Civil-on the balance of probabilities
Outcome of case
Criminal- defendant is either convicted or acquitted
Civil-defendant is either liable or not liable
What is a custom?
A rule of behaviour which develops in a community without being deliberately invented
What is statute law?
An act of parliament that has been passed by both houses of Parliament and received Royal assent
What is common law?
Unwritten law that developed from customs and judicial decisions
What are the three concepts of the rule of law?
-no person shall be sanctioned except in accordance with the law
-There is equality before the law
-There must be fairness and clarity of the law
What are the three appellate courts in our legal system?
Supreme Court
Court of Appeal
Divisional courts
What is the Supreme Court?
The most senior national court in the English legal system and its decisions bind all other courts in the legal system. It replaced the House of Lords in 2009. The Supreme Court is not bound by its own past decisions nor by decisions of the House of Lords, although it will generally follow them
What is the court of appeal?
The court of appeal has two divisions, criminal and civil. Both divisions are bound to follow decisions of the Supreme Court and in addition they must usually follow past decisions of their own although there are some limited exceptions to this rule.
What are the divisional courts?
The 3 divisional courts (Queens bench, chancery and family) are bound by decisions of the Supreme Court and the court of appeal. They are also bound by their own past decisions.
What are courts of first instance and give examples
Refers to any court where the original trial of a case is held
High Court
Inferior Court
What is the High Court?
This is bound by decisions of all the courts above and intern by the lower courts. High Court judges do not have to follow each other’s decisions but will usually do so. In Colchester estates v carlton industries plc 1984- it was held that where there were too early decisions which conflicted then provided the first decision had been considered in the later case the later decision should be followed
What are inferior courts?
Crown Court, County Court and magistrate Court
They are bound to follow decisions by all higher courts and it is unlikely that a decision by an inferior court can create precedent
What are the two types of judges and list examples?
Superior judges- Supreme Court, court of appeal, High Court
Inferior judges- crown Court, County Court, magistrate
What is the role of justices of Supreme Court?
-They hear around 100 cases a year
-A minimum of 3 judges to hear a case
-Decisions become precedent for all lower courts to follow
What is the role of Lord Justice of appeal?
-On the criminal side they hear 7000+ cases to appeal against sentence or conviction and only 1/4 has leave to appeal
-on the civil side they hear around 3000 cases- finding of liability or remedy awarded
-Normally a panel of 3 and on important cases there will be a panel of five
What is the role of High Court judges?
-They try cases at first instance- they hear evidence and decide what law is and make decision on which side has won case
-If money is involved, the judge decides how much
-They sit on their own
-Hear some appeals
What are the roles of inferior judges?
-Circuit judges-county court for civil cases and crown court for criminal. They decide law and facts
-Recorders-appointed for a period of five years and mainly in crown court but can sit in county court for civil
-District judges-county court-small claims case under £10,000
-District magistrates-criminal cases in magistrates court and they sit on their own and decide sentence
What is security of tenure?
-superior judges cannot be dismissed by government and this originated in the act of settlement 1707-they can only be dismissed by monarch following a petition presented by both houses of Parliament
-For inferior judges-Lord Chancellor with consent of Lord chief justice has power to dismiss inferior judges for incapacity or misbehaviour
What is immunity from suit?
Judges are given immunity from prosecution for any act they carry out in performance of their judicial function
-they also have immunity from being sued in a civil case and this was confirmed in SIRROS v MOORE 1975
How do judges have independence from the executive?
Superior judges cannot be dismissed by government so they can be truly independent. They can make decisions which may this government without threat of dismissal.
What law sets out the relevant qualifications for a different judicial posts?
The courts are legal services act 1990 amended by tribunal courts and enforcement act 2007
What are the four things that are important for the independence of the Judiciary?
-security of tenure
-Are immune from suit
-are independent from executive
-are impartial in all cases
Why is it important that judges have judicial independence?
-It is needed to protect the liberty of the individual and for judges to be able to act without pressure and without fear of repercussions
For example -in 2016 following the referendum in which the people voted to leave the EU the government announced that in 2017 it will start the process for leaving. There was then a challenge as to whether the executive could do this without consulting parliament and the challenge was heard in the court and it was held that the government could not start the process for leaving without consulting parliament. This decision was attacked by some who felt that the Juda series should not interfere.
What are the three advantages of judicial independence?
-Ensure fairness in all cases
-Protect citizens against unlawful acts of government
-Public confidence
What is a magistrate and how many are there?
17,500
-They are unpaid part-time judges in the magistrates court with no legal qualifications
What are the six key qualities a magistrate should have?
-good character
-Understanding and communication
-Social awareness
-Maturity and sound temperament
-Sound judgement
-Commitment and reliability
What is retribution
Based on the idea of punishment. Aim of sentencing does not seek to reduce crime or alter the offenders future behaviour. A judge using this aim is only concerned with the offence that was committed and giving a sentence in proportion to that offence
What is deterrence
Individual deterrence- intended to ensure the other offender does not reoffend through fear of future punishment.
General deterrence- aimed at preventing other offenders from committing crimes
Example- Rioting in summer 2011. Many offenders were given custodial sentences for relatively minor theft offences as they took place during the riots and this was sending a clear message that offenders committing offences during riots would be given severe sentences
What is rehabilitation
Trying to alter offenders’ behaviour so they will conform to community norms and not offend in the future
What are 3 aims of sentencing
Punish offenders
Protect public
Justice for victim
2 cases for the independence of jury
R v bushell 1670
-jurors refused to convict Quaker activist of unlawful assembly and trial judge would not accept not guilty verdict so he ordered jurors to resume their deliberations without food or drinks. When they still refused to convict, the court fined them and committed them to prison until they paid the fines
-stated that jurors can not be punished for their verdict
R v McKenna 1960
Trial judge threatened jury if they didn’t make a decision within 10 minutes they’d be locked up all night. Jury returned with guilty verdict however d’s conviction was quashed on appeal due to judges interference
What are 3 basic qualifications a jury needs
-Between ages 18 and 75
-registered as parliamentary or local gov electorate
-resident of UK
Who are disqualified from becoming a juror
-convicted prisoners
-detained during her majesty’s pleasure
-member of court service or police
What are 5 advantages of a jury trial
Public confidence
-many people have confidence in the impartiality and fairness of a jury trial
Jury equity
-since they aren’t legal experts they aren’t bound by previous set precedents and do not have to give reasons for their verdict
Open system of justice
-use of jury is looked at as making legal system more open and involving public
Secrecy of jury room
-jurors are free from pressure and protected from outside influence
Impartiality
-jurors are impartial as it isn’t connected to anyone in the case
8 disadvantages of jury trials
Perverse decisions
-juries have refused to convict in other clear cut cases such as r v random and pottle 1991
Secrecy
-as no reasons have to be given, it is not known if the jury understood the case and came to the decision for the right reasons
Racial bias
-may have prejudices affecting verdict
Media influence
-may influence jurors
Lack of understanding
-worried that jurors don’t understand the case they are trying
Fraud trials
-very complex to comprehend and very long
Jury tampering
-friends of d may try and interfere with jury for example by bribing or threatening
High acquittal rates
-criticised because they acquit too many defendants
