English Legal System Flashcards
What is a common criticism of Magistrates and Jurors
They produce amateur decisions, getting too many wrong due to not coming from within the legal system
What are the two principle courts for the criminal justice system
Magistrates and Crown court
Which principle criminal court takes the most cases
Magistrates takes 95% of cases
Who decides the outcomes of cases in the magistrates court
3 Justices of Peace (JP) decide the verdict and sentencing with guidance from a court clerk
Why would a case go straight to the crown court
For serious cases only, verdict decided by Jurors with guidance by judge, sentencing by judge
What are the advantages of a magistrates system (5)
- Allows representatives of the community to set standards in the cast area of criminal law
- Can satisfy an individuals desire for vocation
- Opportunity for member of community to become active in legal system
- Valuable local knowledge (understanding defendants problems)
- Cost effective (JP’s are not paid)
What are the disadvantages of the magistrates system (4)
- Limited legal training
- Non consistent verdicts (Uncertainty of outcomes for lawyers)
- Most people can not apply for JP without financial gain
- Most JP’s are middle class and represent a gap in understanding with some defendants
What are the advantages of the Jury system (5)
- Random selection
- Allows community to set standards
- Allows citizens to play vital role in justice system
- 12 people allows wide scrutiny over facts
- 10 jurors must agree guilty gives defendant advantage
What are the disadvantages of the Jury system (4)
- Lack of legal experience
- Despite guidance from judge some cases are still difficult to understand
- 18 may be too young
- No tests required setting standard
If an appeal lies with the magistrates court where does the case go?
Crown court
If an appeal lies with the crown court where does the case go
Court of appeal (sentencing and facts)
Queens bench of high court (Point of Law)
How can the english legal system be classed
Private and Public law
What divisions of private law are there?
Tort
Family
Company
What divisions of public law are there?
Constitutional
Administrative
Criminal
What are the most important branches of law for matters relating to the environment
Criminal
Tort
What is the objective of criminal law
maintain law and order and to protect society
What is the objective of civil law
uphold the rights of individuals
What is criminal law concerned with
Offences against the state
What is the standard of proof in criminal cases
How is this different to civil cases
Guilt beyond reasonable doubt
For civil cases the standard is lower and is simply liable or not liable
What is mens rea
Guilty mind, usually crimes require proof of this. This concerns the intention or recklessness
knowingly, maliciously, intentionally, willfully, permitting, suffering, recklessly
What is actus reus
The guilty act
the act must be voluntary, that is the person must have control over his/her actions and the act must cause the result.
What is significant about strict liability with regards to mens rea
There is no need to prove mens rea.
Hence it would not be necessary to show negligence or fault
Rylands vs Fletcher (Learn in detail)
What is the law of tort concerned with
situations in which one person has interfered with the rights of another in such a way as to give rise to a right to compensation
What are principle torts
negligence nuisance trespass defamation occupier’s liability
What are two notable environmental cases
- Rylands v Fletcher 1868 for damage to property, crops and harm to human health.
- Cambridge Water Co v Eastern Counties Leather plc 1994 for water pollution by a leather tanning mill (House of Lords).
Another recent case is the claim in 1995 for £15 million in damages by Mr and Mrs Graham for harm to their cattle herd which they attributed to emissions from an incinerator operated by ReChem in Scotland.
Why does statutory law exist
What is it
How is it delegated
How is it monitored
- There is too much legislation (especially EU environmental legislation) for parliament to oversee all of
- Powers are granted to ministers to enable acts of parliament
- It is delegated in the form of Statutory instruments or SI’s
- Monitored by being laid before parliament and scrutinised by a committee to regulate ministers
What is common law
unwritten law that has developed from customs and judicial decisions
What is judicial precedent
source of law whereby past decisions of judges create law for future judges to follow
What does stare decisis mean
stand by what has been decided and do not unsettle the established
What is the idea of stare decisis
It supports the idea of fairness and provides certainty
What does case law rely on
Judgement made at the end of each case
What does ratio decidendi mean
the facts of the case and the principles of law used to make the decision
What does obiter dicta
Other things said by the judge, this does not relate to the precedent and is only for a specific case
It can sometimes be hard to distinguish between ratio decidendi and obiter dicta
What is a binding precedent
It to be followed if the facts of the subsequent case are sufficiently similar to those of the original case
and the original decision was made by a court senior to (or sometimes at the same level) as the later case
What is the most superior court in England and wales
Supreme court
What was the practice statement
A statement that meant the court could overrule precedent if it deemed necessary
Now only the supreme court can do this
What three forms can precedent come in
Binding, Persuasive, original
Binding - Previous case with similar situation leads to outcome
Original - no situation has ever been handled in court
Persuasive - Cases have some differences but can potentially sway the verdict
Outline the case where the original judgement concerning the duty of care act was first described
Donoghue vs Stevenson, 1932
Claimant bought a bottle of ginger beer from cafe
Drank it and poured the rest into a glass and out came the remains of a dead snail
The house of lords rules it was possible to sue successfully because the manufacturer of goods owes a duty of care to the consumer. The duty is to take reasonable care that the goods are safe.
The House of Lords ruled further however that there was a general principle that each of us owes a duty to other people, the duty being to take reasonable care when we are doing something that may affect other people.
What are disadvantages of case law
Slow
Conflicting decisions leads to confusion
Volume of law makes research difficult
Bad judgements may have to be followed
What are the disadvantages of statutory law
Rushed knee jerk reaction laws
Difficulty interpreting statutes
How is statutory law sometimes referred to as
Parliamentary law
What is the issue with the interpretation of statutory law
Often there is difficulties pinpointing the exact wording of the act
Sometimes the old act does not cover the new
In some cases the meaning of words have changed
How are the problems that come with the interpretation of statutory law overcome
Three rules
Golden
Literal
Mischief
What is the meaning of the literal rule and what is its advantages and disadvantages
The court will follow the exact meaning of the words stated and will only depart from it in times of debatable outcome
The advantage is uniformity and consistency
The disadvantage is that it can lead to absurdity of injustice
What is an example case of an absurd injustice when using literal interpretation
Fisher vs Bell - Knives in windows
Whiteley vs Chappell - impersonating dead person
London and North Eastern Railway v Berriman 1946 - widow from maintenance
When can the golden rule be used
It offers a more flexible interpretation of the law when the judge feels that the literal interpretation will lead to an absurd decision
What two extremes of the golden rule are there
Narrow application - Chooses between possible meanings of words or phrases
Wide application - Words are clear but their literal interpretation would lead to uncertainty
What is an example of the case where the golden rule was applied
Alder vs George - Vicinity of land
What is the mischief rule
It gives the judge more discretion than the other two rules, the rule looks to find out why it was the act was put in place to see if the defendant was partaking in the reason the act was set in place or not.
What is an example of a case where the mischief rule was applied
Smith vs Hughes Prostitutes soliciting
What do these secondary rules mean
Noscitur a sociis
Ejusdem generis
Expressio unius exclusio alterius
Noscitur a sociis - means that a word shall be determined by the context in which it is written. Thus, ‘board’ will have different meaning in ‘starboard’ from ‘board a plane’ or wooden ‘board’
Ejusdem generis - is really the equivalent of etc etc. This is where general words follow specific words. The general words must be relevant to the specific words. For example, if a statute contains the words ‘dogs, cats and other such animals’, then other such animals might mean rabbits, hamsters, etc but not lions and tigers
Expressio unius exclusio alterius - means the mention of one thing is to the exclusion of others. Thus, if a statute refers to pit-bull terriers then it is presumed to refer to them only. It does not matter how similar a dog is to a pit-bull terrier.
What is the purposive approach
asks the court what is it that they consider to be the general purpose of the law in question, and then base the decision accordingly
Coltman v Bibby Tankers, 1987 - faulty hull, should it be classed as equipment
Influences on the legal system
Government policy;
• EU law, including Regulations, Directives and decisions of the European Court of Justice (which strictly is a court superior to the House of Lords);
• Proposals from law reform agencies, commissions and enquiries;
• International expert opinion;
• Case law, based on original, binding and persuasive precedents, as well (originally, but now rarely) on customs;
• Pressure groups; and
• Specific events.
Advantages of SI’s
(i) Government would grind to a halt without SIs.
(ii) SIs offer a faster, cheaper, more efficient process. Much delay is saved in introducing regulations because there is no requirement for SIs to pass through the normal and lengthy Parliamentary process.
(iii) Parliament does not possess all the necessary expert knowledge in environmental matters.
(iv) SIs are more flexible than Acts of Parliament. They allow Ministers to introduce regulations, to modify regulations, and to revoke regulations, as and when deemed necessary.
(v) Parliamentary approval is not needed to be sought for everything that a Ministry does.
(vi) Ministries can act on their own initiatives and react quickly to emergency situations.
What are the disadvantages of SI’s
(i) Law-making is taken away from the democratically-elected Parliament. New legislation can by-pass scrutiny by the democratically-elected body. There are two Houses of Parliament that debate non-delegated legislative proposals.
(ii) The potential exists to lose direct control over policies and issues.
(iii) Central Government could become unaware of what is going on.
(iv) It is too easy to introduce a knee-jerk reaction to issues rather than thinking regulations through carefully.
(v) Delegated legislation is inconsistent with the theory of Separation of Powers. Civil servants make and apply delegated legislation but the regulations are made by the same Department.
What are the possible safeguards of SI’s
(i) SIs are often laid before Parliament so that they can be scrutinised by other MPs; this is not always the case.
(ii) Parliament has a Scrutiny Committee, which has powers to express reservations about SIs, but it does not have the power to overrule them; the main grounds for referral are:
(a) if the SI imposes a tax or charge (only Parliament has this right),
(b) if the SI introduces a retrospective change,
(c) if the SI has gone beyond powers given in parent Act,
(d) if the SI is unclear or defective in some way.
(iii) Courts can set aside SIs (but not Acts of Parliament); the main reasons for setting SIs aside are:
(a) if the regulations are unreasonable,
(b) if the regulations introduce taxes or charges,
(c) if the regulations allow sub-delegation,
(d) if the Secretary of State exceeds his powers (ultra vires).
(iv) Judicial reviews are possible.
What is the acronym that will allow you to define the differences between civil and criminal procedings
P - Purpose of Law P - Person stating the case L - Legal name for that person C - Courts for hearing cases S - Standard of proof P - Person making decision D - Decision P - Powers of the court
