English Legal System Week 1 Flashcards
Nature of Law - Civil and Criminal Courts
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
Nature of Law - Claimant and Defendant
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
Nature of Law - Prosecution and Defence
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
Nature of Law - Appellant and Respondent
Used in both civil and criminal cases
Appellant is appealing against the decision of the court where the respondent won the case
Nature of Law - Common Law
Normally shorthand for case law or judge made law
Nature of Law - Principles of Equity
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
Where does the law come from?
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
How law is made - Parliament
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
How the Law is made - Stage 1
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:
First Reading
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
Second Reading
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
Committee Stage
Bill is examined and discussed in detail by a committee by house of commons
Report Stage
Committee reports back to the house and any proposed amendments are debated and voted upon
Third Reading
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
Transfer of bill to House of Lords
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
Royal Assent
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
Law doesn’t start straight away
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
What’s the stages of the law being made?
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
How the Law is made - Delegated Legislation
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
Advantages of Delegated Legislation
Advantages are mainly practical
1) Saves Time
2) Specialist Knowledge
3) Flexibility
4) Parliament doesn’t sit all year round
5) Amendments and repeals
Disadvantages of Delegated Legislation
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
The Common Law/ Case Law
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
Case Law/Common Law
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
Aids to help the process of interpreting words of statute
1) Intrinsic Aids
2) External Aids
3) Judicial Principles of Statutory Interpretations
4) Judicial Presumptions
Intrinsic Aids
Aids to interpretation that are in the statute
For example, Consumer Rights Act 2015, includes definitions of trader, consumer and digital content
External Aids
Interpretation Act 197, Report of Law Commission or Government Inquiry, Parliamentary reports
Hansard is a record of everything said in parliament
Judicial Principles
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
Judicial Presumptions
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
Law of Binding Precedent
Judges are bound by the law of binding precedent
Rule states judges are required to follow decisions of previous cases
Two Considerations
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
Why do we need laws and what’s the purpose of law?
Law organises the way we live and makes life easier and safer if everyone’s following the same rules
