English legal system and EU law

Question 1

What is the “Stare decisis” principle?

Answer 1

In short, it is the doctrine of precedent. Courts cite to “stare decisis” when an issue has been previously brought to the court and a ruling already issued. The body of precedent is called common law. If the facts and legal issues before the court are fundamentally distinct from all previous cases (called a “matter of first impression”, judges have the authority and duty to make laws. Common law is subject to acts of parliament.

Question 2

What is equity?

Answer 2

Set of legal principles in English law that seek to achieve justice where the application of strict rules of law would be overly harsh or unfair.

Question 3

Tell me more about Acts of Parliament

Answer 3

Also referred to as statue law and are are primary instruments in which laws are made.

Question 4

What is the principle of Parliamentary sovereignty?

Answer 4

Parliament is the ultimate law making body in the United Kingdom, to which no other body (in theory) is superior.

Question 5

Describe “statutory instruments”. They can also be referred to as delegated or subordinate legislation

Answer 5

Parliament may delegate power to another authority to make rules and regulations to give practical effect.

Question 6

What’s the main principle of the Van Gend En Loos case

Answer 6

EU law is superior to law and legal systems of member states.

Question 7

What is the “ponsonby Rule”?

Answer 7

For International treaties, it is constitutional convention under the Ponsonby Rule that draft treaties should be laid before parliament for 21 days. The Ponsonby Rule is placed on a statutory footing and requiring international treaties to be subject of approval through Act of Parliament.

Question 8

What’s a convention?

Answer 8

For part of the constitution, but are neither codified nor legally binding. Have authority and affect over customary adherence over time. Many English constitutional conventions relate to the exercise of the Crown, the government, Parliament and the judiciary of their functions.

Question 9

Whats “works of authority”?

Answer 9

These refer to treatises that are sometimes cited as interpretations of aspects of the UK constitution. Most are written by early 19th century constitutionals.

Question 10

Which jurisdictions does Asylum and Immigration Tribunal and the special Immigration Appeals Commission cover?

Answer 10

It governs England and Wales, Scotland and Northern Ireland. This is an exemption since courts in the United Kingdom cover distinct legal jurisdictions. There is no UK judicial system.

Question 11

Which courts does HM Court & Tribunals Service administrate?

Answer 11

It is an executive agency of the Ministry of Justice:

1. The court of appeal
2. High court
3. Crown court
4. Magistrates courts
5. County courts

Question 12

What is the party who instigates the complaint in civil and criminal cases called?

Answer 12

Civil: claimant
Criminal: prosecutor (the state)

Question 13

How does the standard burden of proof differ between civil and criminal cases?

Answer 13

Civil: the claimant is required to prove his case on the the balance of probabilities.

Criminal: the prosecutor must prove the case beyond reasonable doubt.

Question 14

Name the first instance courts?

Answer 14

1. Crown court
2. Country Court
3. Magistrates’ Courts.

Question 15

Which cases should be tried in the Magistrates’ Courts and how can they be appealed?

Answer 15

Virtually all criminal court cases start in a magistrates’ court, and more than 90 per cent will be completed there. The more serious offences are passed on to the Crown Court, either for sentencing after the defendant has been found guilty in a magistrates’ court, or for full trial with a judge and jury

Magistrates deal with three kinds of cases:

1. Summary offences - These are less serious cases, such as motoring offences and minor assaults, where the defendant is not usually entitled to trial by jury. They are generally disposed of in magistrates’ courts.
2. Either-way offences - As the name implies, these can be dealt with either by magistrates or before a judge and jury at the Crown Court. Such offences include theft and handling stolen goods. A defendant can insist on their right to trial in the Crown Court. Magistrates can also decide that a case is so serious that it should be dealt with in the Crown Court – which can impose tougher sentences if the defendant is found guilty.
3. Family and proceedings court
4. Youth Courts

Can appeal to the Crown Court or Administrative Court (which is a part of the High court). Then to the Court of Appeal and then to the Supreme Court of the United Kingdom.

Question 16

Which cases should be tried in the Country Courts and how can they be appealed?

Answer 16

The County Court deals exclusively with civil (non-criminal) matters.

If the claimant does not reasonable expect to recover more than:
£50,000 - personal injury/negligence claims
£100,000 - contracts/other torts claims
£350,000 - claims in Equity

must be commenced in the Country Court. For contracts/other torts claims, If worth more, can be started in Country Court or High Court. Should only be started in High Court if also complicated and of public importance.

If the case is heard by Circuit Judges/Recorders, you appeal to the High Court. If the case is head by a District judge, it is can be appealed to the Circuit Judge. (District Judges has jurisdiction to hear cases valued less than £25.000)

Note that if a Circuit Judge’s decision was an appeal from a District Judge’s decision, then the decision is not appealed to the High Court, but directly to the Court of Appeal.

Question 17

Explain the track allocation in the County Court and High Court.

Answer 17

1. Small claims
   Value less than £10,000 (or personal injury claims or landlords/tenants claims less than £1,000). Simpler and faster with legal fees capped. Usually each party bear his own cost. Most cases in County Court. Allocation to this track is at the discretion of a District Judge who takes into account the value and complexity of the claim.

Note that a claim for remedies for harassment or unlawful eviction to a residential premises should not be allocated to this track whatever the financial value of the claim. a case regarding a disputed claim of dishonesty, will usually not be suitable for this tack.

Most common cases:
consumer rights, compensation for faulty gods or services, disputes between landlords and tenets, wages owed.

2. Fast-track
   Value between £10,000-£25,000. Can exceed the higher value if all other conditions are met and straight forward. Trial won’t last more than one day and expert evidence in no more than two areas. Quicker for a case to come to trial and come costs are caped. Most cases in County Court.
3. Multi-Track
   Value in excess of £25,000 or complicated cases with multiple witnesses or cases of real public importance. Costs not capped. The County Court has jurisdiction to hear Multi-track cases. Cases in the High Court exclusively follows the Multi-Track.

Question 18

When should a case be handled in the High Court?

Answer 18

Both a civil court of first instance (if certain conditions are met) and a civil and criminal appellant court from cases from lower court.

1. Claims for money, only commenced in HC if financial value exceeds £100,000.
2. Personal injuries, only commenced in HC if financial value exceeds £50,000

The money does not matter if the case raises a real point of public importance.

Question 19

Which are the three divisions of High Court?

Answer 19

The division are not separate courts, but have separate procedures hearing particular types of cases.

1. Queen’s Bench
2. Chancery
3. Family

Question 20

Describe the Queen’s Bench Division (QBD) of the High Court and how decisions are appealed.

Answer 20

Biggest and busiest division. Has both a criminal and civil jurisdiction. Judges who hear civil cases in the Queen’s Bench Division deal with ‘common law’ business – actions relating to contract, except those specifically allocated to the Chancery Division. They also hear civil wrongs, known as tort. Judges of the Queen’s Bench Division hear the most important criminal cases in the Crown Court, and will travel around the country to do so.

The QBD is further divided in to:

1. Administrative courts - hear judicial review applications, where certain government decisions are challenged on legal grounds. It also exercises supervisory jurisdiction over inferior tribunals, courts, ministers and bodies excising public law functions.
2. Commercial Court
3. Admiralty Court
4. Technology and Construction Court

Decisions from the High Court in Civil matters (subject to leave) are appealed to the Court of Appeal Civil Division. However, if question of law is of general importance there is a direct right of appeal to the Supreme Court via the leap frogging procedure.

For criminal matters (subject to leave), is made directly to the Supreme Court.

Question 21

Describe the Chancery Division of the High Court

Answer 21

Hears cases:

1. Contracts arising form land
2. Matters relating to trusts and admin of estates
3. Bankruptcies
4. Mortgages
5. Charities
6. IP
7. Taxation appeals
8. Appeals from County Court on bankruptcies and land

Question 22

Describe the Family Division of the High Court

Answer 22

Family matters and non-contentious probate matters

Question 23

Describe the leap frogging procedure in the QBP

Answer 23

Where a point of law is of general importance is involved, there is a direct right of appeal from the High Court to the Supreme Court.

Question 24

The Supreme Court is the Highest Court in England, Wales and Northern Ireland. Does it also include Scotland.

Answer 24

Not for criminal cases. There Scotland has their own Supreme Court. However, it is for Civil cases.

Not all cases are tried. Needs to be of great public importance. You seek permission in the court below. Only where the court below has refused the right right of appeal to the Supreme Court, can you send in an application to the Supreme Court directly (Note the leap frog exemption). Application must be filed within 28 days, otherwise the lower court’s decision stands.

Question 25

Name the alternative dispute resolution options

Answer 25

1. Negotiated settlement
2. Mediation
3. Arbitration

Question 26

Where does the prosecutor persecute in criminal cases and how are decisions appealed?

Answer 26

Magistrates’ Courts are made up of either 3 magistrates (known as justices and are not legally qualified) or full-time district judges. Usually only hear cases that arises in their area and they deal with cases where the defendant is not entitled to a jury trial or if the defendant has the right but chooses to try the case in the Magistrates Court.

If entitled to a jury trail the case will start in the Crown Court. The Crown Court deal with serious criminal offences, Magistrates’ appeals and serious punishments.

Question 27

When do you have the right to a jury trial in Civil cases?

Answer 27

When it involves:

1. a charge of fraud
2. malicious prosecution
3. false imprisonment
4. libel and/or slander (subject to court’s approval)

Question 28

When do you have the right to a jury trial in Civil cases?

Answer 28

When it involves:

1. a charge of fraud
2. malicious prosecution
3. false imprisonment
4. libel and/or slander (subject to court’s approval)

Question 29

How many jurors are there in the County Court?

Answer 29

There are 8 jurors

Question 30

How many jurors are there in the High Court?

Answer 30

There are 12 jurors

Question 31

How many jurors are there in the Coroners Court?

Answer 31

There are 7 - 11 jurors

Question 32

How are jurors selected and how is a defendant convicted?

Answer 32

In civil cases, they are selected by ballot and may be challenged and stand down only for course such as proven bias. Verdicts should be unanimous, unless the jury cannot agree. In such case a majority verdicts 7 to 1 is acceptable in the County Court and a majority of 10 to 2 will be accepted in the High Court

Question 33

Which are the tree most common ways of challenging a jury?

Answer 33

1. the prosecutor can use: “stand down for the crown” which means that the person needs to be manifestly unsuitable.
2. both the defense and prosecutor can use: “Challenge for course” which means that a juror has made a racially offensive remark. You apply the “real danger test”
3. both the defense and the prosecutor can use: “challenge to the array” which means that you challenge the whole jury e.g. because all of them live on the same street.

The judge has discretionary powers to remove a juror.

Question 34

In regards to statutory interpretation, what is the literal/plain meaning rule?

Answer 34

Words are given their ‘ordinary and clear’ meaning. If the words of an act is clear, the court must follow them, even if it leads to a manifest absurdity. Judge subservient to will of Parliament.

Question 35

In regards to statutory interpretation, what is the “golden rule”?

Answer 35

The grammatical and ordinary sense of the words in their context and according to the appropriate linguistic register may be modified, to avoid “manifest absurdity”.

e.g. a son had killed his mother and according to the law, he could inherit. However, applying the “golden rule”, it was deemed absurd so he couldn’t in the end.

Question 36

In regards to statutory interpretation, what is the “mischief rule”?

Answer 36

Focuses on the mischief the law/Parliament intended to deal with by the law.

case law “Haydens case” stated that 4 factors needs to be considered:

1. What the common law was before the statute was passed,
2. What the mischief and defect was that was not remedied by the common law,
3. The remedy of the present statue,
4. The true reason for the remedy

Question 37

Describe the case “Smith v. Hughes” in regards to the mischief rule.

Answer 37

The defendant claimed that the balcony was not on the street, and so their solicitation for sexual favors could not constitute breach of the Street Offences Act. The court applying the mischief rule, held that the street Offences Ac’ts purpose was to prevent harassment, and that this was still occurring as a result of the defendants’ acts.

Question 38

What is the “purposive approach”?

Answer 38

The purposive approach involved judged trying to decide what they believe Parliament intended to achieve by the legislation ON TOP OF simply identifying and remedying the gaps whiting the previous law. (Note that this is not applied in penal or revenue matters)

The mischief rule, judges consider what the law was before the particular legislation was introduced with the aim of ascertaining what gap or mischief the legislation was supposed to address.

Question 39

What was established in the Pepper v Hart case?

Answer 39

.. the courts now adopt a purposive approach which seems to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears on the background against which the legislation was enacted.

Takes a wider social and economic view.

Question 40

When interpreting the law, what are the “intrinsic aids”?

Answer 40

Within the act itself:

1. preambles
2. headings
3. punctuation
4. definition section
5. marginal notes (indication only)

Question 41

When interpreting the law, what are the “extrinsic aids”?

Answer 41

1. Parliamentary debates
2. dictionaries
3. other statues “in pari materia”
4. interpretation acts
5. the prior state of the law
6. other legislative history materials

Question 42

What is the “Ejusdem Generis” rule?

Answer 42

Means “of the same kind”. When a series of particular words in followed by general words, the general word must be construed with reference to the particular word.

e.g. house, office, room or other place. What is the definition of “other place”? An outdoor area according to the Ejusdem Generis rule was not such an “other place”

Question 43

Describe “presumptions”

Answer 43

1. Penal statue are construed strictly in favor of the accused.
2. Criminal offences usually require guilty intention (mens rea)
3. Statues are not intended to derogate form common law rights (statute does not alter the existing law, or repeal other statutes.
4. A statute is not retroactive
5. Presumption against deprivation of property or interference with private rights (if deprived of property, he should be compensated.

Question 44

What is “ratio decidendi”?

Answer 44

The principle of law on which a decision is based. In a judgement, the judge outlines those facts which he finds have been proved on the evidence. He then applies those facts to the law and arrives a a decision for which he vies the reason (ratio)

Question 45

What is the “overriding objective” when allocating track?

Answer 45

… is to ensure that cases are dealt with proportionally to the value of the claim and the costs involved and with the parties on an equal footing.

Question 46

What is the Per incuriam?

Answer 46

literally translated as “through lack of care” is a device within the common law system of judicial precedent. A finding of per incuriam means that a previous court judgment has failed to pay attention to relevant statutory provision or precedents.

Question 47

In which ways can a president be avoided?

Answer 47

Overrule: – where an earlier decision made in a lower court is overturned because it is not in agreement with judges in a high court. The previous decision will still stand but just not followed in later cases.

Reversed: – upon successful appeal to a high court, if the lower court wrongly interpreted the law, the higher court could reverse its decision, overruling its statement of law.

Distinguish: – where the facts are significantly different from an early case. The judge distinguishes the two cases and need not follow the earlier one.

Question 48

What is a Mode of trial hearing?

Answer 48

A mode of trial hearing decides in which court a case will be heard, magistrates’ or crown, and is only held in cases where the defendant pleads not guilty or refuses to state a plea

Question 49

What is a Practice direction?

Answer 49

A practice direction is a supplemental protocol to rules of civil and criminal procedure in the courts – “a device to regulate minor procedural matters.

Give practical advice on how to interpret the rules themselves.

Question 50

What is Ministry of Justice (justice minister)?

Answer 50

The Ministry of Justice is responsible for legislation concerning the constitution and general administrative law, civil law, procedural law and criminal law

Question 51

What is a per curiam decision?

Answer 51

In law, a per curiam decision (or opinion) is a ruling issued by an appellate court of multiple judges in which the decision rendered is made by the court (or at least, a majority of the court) acting collectively (and typically, though not necessarily, unanimously)

Question 52

Who is head over the Court of Appeal?

Answer 52

Lord Chief Justice of England and Wales.

The Master of the Rolls and Records of the Chancery of England is the second-most senior judge in England and Wales after the Lord Chief Justice, and serves as President of the Civil Division of the Court of Appeal and Head of Civil Justice.

Question 53

describe the terms ‘Without Prejudice’

Answer 53

The content of any discussions during mediation is confidential between the parties, their advisers and the mediator. This confidentiality is enshrined in any subsequent mediation agreement. The effect is similar to “without prejudice” negotiations or correspondence which means that should the dispute culminate in a court hearing, the content of the discussions cannot be raised before the judge.

Question 54

What is “reading in”, “reading out” and “reading down” in regards to interpret ECHR cases?

Answer 54

“Reading in” refers to adding in words that are not present in the statute so as to ensure compliance with Convention rights, and “reading out” removing words in a statute to do so. “Reading down” involves choosing an interpretation that is compatible, where more than one is strictly possible.

Question 55

What is a concurring judgement?

Answer 55

When there is mote than one judge sitting in a bench of judges. When they agree with the first judge, it is a supporting judgement (or short concurring), when they disagree, it is a dissenting judgement.

Question 56

How may judges hear a civil case in the Supreme Court?

Answer 56

Either 5, 7 or 9. They are 12 judges in total.

Question 57

what is an Explanatory Memorandum?

Answer 57

Explanatory Memoranda (sometimes called explanatory notes, depending on jurisdiction) are documents presented to parliament in the early stages of a bills passage through parliament. An explanatory memorandum seeks to explain what provisions in a particular Bill mean, and what the Bill is attempting to achieve if passed as law.

Explanatory Memoranda can be invaluable tools in terms of understanding why a law was enacted, what it was designed to achieve, and what it actually means.

Question 58

What is an enacting clause, or enacting formula?

Answer 58

An enacting clause, or enacting formula, is a short phrase that introduces the main provisions of a law enacted by a legislature. It usually declares the source from which the law claims to derive its authority