English Legal System Week 1

Question 1

Nature of Law - Civil and Criminal Courts

Answer 1

Distinction between civil and criminal liability is fundamental to English Law

Courts are divided into civil courts and criminal courts and the two sets of courts have different purposes

Purpose of civil court = compensate people who have been caused loss or injury by thr wrongful acts of other people

Purpose of the criminal courts = punish people who have committed a criminal offence

Question 2

Nature of Law - Claimant and Defendant

Answer 2

Claimant and Defendant = used in civil actions.

Claimant sues (brings case against) the defendant - Smith v Jones

Claimant = Party who brings a civil action
Defendant = Person against who criminal or civil proceedings are brought

Question 3

Nature of Law - Prosecution and Defence

Answer 3

Prosecution and Defence = used in criminal cases.

Defence is defendant or accused

Prosecution is called the Crown to reflect that criminal cases are brought by the state in the name of the crown - R v Jones

Defence = Person being prosecuted in a criminal trial/ legal representative

Accused =Person being prosecuted in a criminal trial

Prosecution/Crown = Prosecutor in criminal proceedings

Question 4

Nature of Law - Appellant and Respondent

Answer 4

Used in both civil and criminal cases

Appellant is appealing against the decision of the court where the respondent won the case

Question 5

Nature of Law - Common Law

Answer 5

Normally shorthand for case law or judge made law

Question 6

Nature of Law - Principles of Equity

Answer 6

Law of equity was created to correct wrongs in law

The law of equity is designed to remedy any injustice that may be in the law

Law of equity protects the vulnerable

Question 7

Where does the law come from?

Answer 7

Most important source of law = european law, parliaments and courts - judges and common law

A source of law is where the law comes from

Minor source of law = custom

Question 8

How law is made - Parliament

Answer 8

Acts of Parliament = statutes

Most of UK law is made by parliament - predominant method of law making in the UK

Parliament consists of the house of commons, house of lords and the monarch

Direct Legislation (primary legislation) - House of commons, house of lords, royal assent

Indirect Legislation (secondary or delegated legislation) - created by another body under an Enabling Act

Question 9

How the Law is made - Stage 1

Answer 9

Before a bill can become an Act it must pass through five stages in both Houses of Parliament.

A bill will commence in the House of Commons - some can start in house of lords and it undergoes this procedure:

Question 10

First Reading

Answer 10

Title of the bill is red out in the main chamber of the house of commons.

It acts as a notification to MPs and interested MPs get copies of the bill

Question 11

Second Reading

Answer 11

The government minister explains it to the house of and the principles of the bill are debated by the House

End of debate, a vote is taken as to whether the bill should proceed and if majority of the MPs are in favour of the bill, it goes onto the next stage

Question 12

Committee Stage

Answer 12

Bill is examined and discussed in detail by a committee by house of commons

Question 13

Report Stage

Answer 13

Committee reports back to the house and any proposed amendments are debated and voted upon

Question 14

Third Reading

Answer 14

Bill is presented to the house again.

Short debate and minor amendments may be made.

A vote is taken on whether to pass the bill or not

Question 15

Transfer of bill to House of Lords

Answer 15

Bill is transferred to House of Lords and undergoes a similar procedure in the Lords.

If the House of Lords amends the bill, it goes back to the House of Commons for further consideration and approval of amendments.

If house of commons doesn’t agree then the amendments (bill) will go back to the Lords and then passes between the two houses until agreement on the exact wording of the bill is reached

Question 16

Royal Assent

Answer 16

British constitutional law provides that the monarch must give their consent to all the bills before they become laws

Monarch can’t refuse royal assent

Question 17

Law doesn’t start straight away

Answer 17

Act of Parliament doesn’t come into force on the day it receives royal assent

The act itself may state the date it comes into force which may or may not be the date it receives royal assent or the act may state it will come into force on the date to be specified

Question 18

What’s the stages of the law being made?

Answer 18

1) First Reading
2) Second Reading
3) Committee Stage
4) Report Stage
5) Third Reading
6) Transfer of Bill to House of Lords
7) Royal Assent

Question 19

How the Law is made - Delegated Legislation

Answer 19

Legislations made by bodies outside Parliament

1) Orders in Council - Privy council can make law in times of national emergency

2) Statutory Instruments -Food safety and hygiene regulations

3) Byelaws - Parking restrictions made by an airport

Use of other bodies to create legislation is controversial as the bodies that make the law are unelected

Question 20

Advantages of Delegated Legislation

Answer 20

Advantages are mainly practical

1) Saves Time
2) Specialist Knowledge
3) Flexibility
4) Parliament doesn’t sit all year round
5) Amendments and repeals

Question 21

Disadvantages of Delegated Legislation

Answer 21

1) Parliament is removed from the process
2) Difficult to keep track
3) Problems with highly specific, detailed or technical materials
4) Excessive legislation is passed

Question 22

The Common Law/ Case Law

Answer 22

When judges make their decisions, they state and develop common law principles but in order to apply the law, judges interpret statutes made by parliament

When interpreting statute, problems arise. Words have more than one meaning and the meanings can change depending on the context

Question 23

Case Law/Common Law

Answer 23

Law made by courts are known as case law or common law

Case laws develop slowly and are reliant on relevant cases coming before the court.

Not always a efficient law making body

Question 24

Aids to help the process of interpreting words of statute

Answer 24

1) Intrinsic Aids
2) External Aids
3) Judicial Principles of Statutory Interpretations
4) Judicial Presumptions

Question 25

Intrinsic Aids

Answer 25

Aids to interpretation that are in the statute

For example, Consumer Rights Act 2015, includes definitions of trader, consumer and digital content

Question 26

External Aids

Answer 26

Interpretation Act 197, Report of Law Commission or Government Inquiry, Parliamentary reports

Hansard is a record of everything said in parliament

Question 27

Judicial Principles

Answer 27

Judicial Principles = Different approaches have developed

1) Contextual Approach = any words which the court is finding hard to define are placed within the statute as a whole. Word is placed in context

2) Literal Rule = Words are interpreted literally - literal meanings adopted.

Case = Fisher v Bell.
- Flick knife in a shop window wasn’t being offered for sale as goods in shop windows aren’t offers for sale but invitations to treat contract law.

A court won’t look behind or outside the legislation in an attempt to find its meaning. Court will look at what the legislation says instead of what it might mean

3) Golden Rule - Literal rule creates ambiguity then the court will apply the least ridiculous meaning to avoid an absurdity.

Smith v Hughes - A prostitute who encouraged gentlemen from her upstairs window was prosecuted for soliciting in the street. Aim of the act was to prevent a nuisance and it didn’t matter that she wasn’t in the street

4) Mischief Rule - Words of a statute are interpreted to avoid the mischief intended

Woman v Islington (2007) - A motorcycle was parked on a stand hovering above the pavement and was held to be on the pavement within the meaning of the act

Sometimes known as the rule in Heydon’s case (1584), enables judges to interpret statute to provide a remedy for the mischief the statute was enacted to prevent

5) Purposive Approach - Similar to mischief rule as the court can look behind the statute to find general purpose.

Royal College of Nursing v DHSS (1981) - under the act an abortion is only legal if its carried out by a registered medical practitioner.

There was a change after the act which meant most abortions were carried out by nurses and the courts had to decide if this still fell within the law

House of Lords applied a purposive approach meaning the nurses fell within the act

Question 28

Judicial Presumptions

Answer 28

Cover some presumptions that are applied to all statutes

For example, a statute won’t
- Impose strict liability (strict liability is a state that doesn’t require attention)

• Operate retrospectively - all events that occur before an act is passed won’t be an offence under the act
• Change the common law

Question 29

Law of Binding Precedent

Answer 29

Judges are bound by the law of binding precedent

Rule states judges are required to follow decisions of previous cases

Question 30

Two Considerations

Answer 30

1) Inferior courts are bound by the decision of higher courts

2) Do the facts of current case within scope of principle law in previous sections

Question 31

Why do we need laws and what’s the purpose of law?

Answer 31

Law organises the way we live and makes life easier and safer if everyone’s following the same rules