English Legal System Flashcards
What is the literal rule?
If words of stature have clear meaning, court will apply words as written. If any ambiguity, court will give ordinary meaning even if results in absurd result.
What is the golden rule?
If use ordinary meaning would lead to absurd result, court may use a different meaning of the word.
What is the mischief rule?
Looks at what problem statute was designed to remedy and adapts the words to achieve this
What is the purpose rule?
Looks at why statute exists. Accompaniment to mischief rule, judges may look at external aids to decide.
External aids eg content of debates on bulk in Hansard and commons briefing papers. These and explanatory notes are guidelines not railway tracks.
What does expression unius est exclusio alterius mean?
Expression of one thing is the exclusion of another. If one or more things are expressly mentioned in statute, things not mentioned are excluded.
What does noscitur a sociis mean?
Word is interpreted by company it keeps. Court will consider context when interpreting word, using words in same section to interpret the word.
What does in pari materia mean?
In the same matter or subjects. Applied where other statues may assist with interpreting ambiguity.
What does ejusdem generis mean?
Of the same type, used to interpret general words. If general word follows 2 or more specific words, general word will only apply to items that are like the specific word used.
What are some presumptions used when the courts are interpreting statues?
- presumption against allowing statutes to alter common law
- presumption against removing courts jurisdiction
- presumption that ambiguity in a criminal case will fall in favour of defendant
- presumption that stature cannot be retrospectively applied
What is an intristic aid to interpretation?
Statute itself, must be read as awhile, with each word being considered:
Examples - short title, long title, preamble, marginal notes, punctuation, examples schedules.
What is an extrinsic aid to interpretation?
Outside of statute.
Examples, directions, explanatory notes, Hansard (official report of parliamentary debates)
What are the divisions of the high court?
Kings bench - PI, negligence, administrative court
Chancery - wills, trusts, land
Family - adoption, divorce etc
Where does a solicitor have right of audience?
Automatic right of audition before Magistrates and County.
No automatic right before Crown, High, CoA or Supreme Court.
Can complete additional advocacy assessments and apply for higher rights
What route do appeals take?
Set out in Access to Justice (Destination of Appeals) Order 2000
Depends on:
1) seniority of judge presiding over original case and
2) court in which judge sat when reaching decision
DJ in County goes to HHJ in County
HHJ in County to High Court Judge
Masters in High Court to High Court Judge
High Court Judge to CoA
CoA to Supreme Court
What must be sought before appeal?
Permission from Court that made initial judgement. If refused, can apply to court that would hear the appeal.
Granted if:
- claim looks to have real prospect of success or
- another pressing reason to hear the case
Where do criminal appeals from the magistrates go?
Defendant has a right to appeal from Mags to Crown.Can appeal conviction and sentence but if pleased guilty can only appeal sentence. Appeal results in full rehearing of case.
Prosecution and defendant can appeal to high court on grounds that decision was wrong in law or in excess of Magistrates jurisdiction. Only legal arguments can be made. No rehearing of evidence.
Convicted party can appeal to CoA either conviction or sentence. Should be done within 28 days of conviction or sentencing but can be done out of time, or where there is fresh evidence can submit an appeal to the criminal cases revise commission to have it reheard
If permission given and point of law is of public importance, can be sent to Supreme Court
What is the grounds for appealing from the the crown court?
Appealing conviction - That the conviction was unsafe.
Appealing of sentence - Wrong in law, wrong in principle or manifestly excessive.
What is vertical binding effect?
Rulings of higher courts bind lower courts.
What is horizontal binding effect?
Courts in same level binding themselves
Supreme Court
- does not bind itself.
Court of Appeal
- decisions treated as binding on future CoA decisions in civil division.
- in criminal division, CoA has discretion to depart from own decisions if convinced decision was wrong and following it would cause hardship
High Court
- binding in future High Court cases if decision made in case where acting as appellate court.
- decisions made where court is first instance, not binding in future cases.
Lower Courts
- no binding effect
If judge sitting in same level, should follow that decision unless convincing reasons not to. If conflicting decisions, latter should be followed.
What part of judicial decision is binding?
Ratio decidendi if binding.
Parts of decision that are essential to judgement.
Obiter dicta is statements made not necessary to decision. May be persuasive authority.
