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Law > Intro To English Legal System > Flashcards

Intro To English Legal System Flashcards

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1
Q

What is ‘judicial precedence’?

A

Judgement reached in earlier cases should be followed in later cases unless there are sound reasons why they shouldn’t be.

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2
Q

What is ‘Stare decisis’

A

Standing by a decision

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3
Q

What is meant by ‘ratio decedendi’

A

The reason for the decision
The binding part
Stare decisis is created through ratio decedendip

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4
Q

What is meant by ‘Obiter dicta’

A

Other things said. Which is binding on future courts

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5
Q

What is the role of a judge?

A

In a court case a judge has to make a decision as to which of the parties in a dispute wins.
Except in criminal trials in the Crown Court where the jury decides.

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6
Q

What are the 2 types of precedent?

A

1) Binding precedent - The court have no choice to follow the decision where material facts are similar
2) Persuasive precedent: it is not binding but courts can decides to follow

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7
Q

What is the meaning of equity?

A

Fairness and being impartial

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8
Q

What is injunction? (Equitable remedies)

A

An equitable remedy in the form of a court order that compels a party to do or refrain from specific acts

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9
Q

What is specific performance (equitable remedies)

A

An order of a court which requires a party to perform a specific act usually what is stated in a contract

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10
Q

What is ‘rescission’ (equitable remedies)

A

Is the act

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11
Q

What is rectification?

A

A remedy whereby a court orders a change in a written document to reflect what it ought to have said in the first.

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12
Q

The Supreme Court

A

The final court of appeal for all UK civil cases and criminal cases from England, Wales, and Northern Ireland

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13
Q

Court Of Appeal

A

1) Criminal Division - deals with appeals from the Crown Court
2) Civil Division - deals with appeals from the High Court, tribunals and certain cases from the county courts.

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14
Q

High Court (1)

A

1) Queen’s Bench Division - contract and tort etc
Commercial Court
Admiralty Court

2) Administrative Court - supervisory and appellate jurisdiction overseeing the legality of decisions and actions of inferior courts, tribunals, local authorities, Ministers of the Crown and other public bodies and officials.

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15
Q

High Court (2)

A

Family Division

Divisional Court - Appeals from the magistrate’ courts. Appeals from the county courts on bankruptcy and land.

Chancery Division - Equity and trusts, contentious, probate, tax partnerships, bankruptcy; and Companies Court and Patent Court.

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16
Q

Crown Court

A

Trials of indictable offences, appeals from magistrate courts, cases for sentence

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17
Q

Magistrates Court

A

Trials of summary offences, committals to the Crown Court, family proceedings courts and youth courts

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18
Q

Tribunals

A

Hear appeals from decisions on:

Immigration, social security, child support, pensions, tax and lands.

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19
Q

The Hierachy Of Courts

A

1) European Court Of Justice
2) Supreme Court
3) Court Of Appeal
4) High Court/Division Courts

        ^                                ^  5) Crown Court             6)Court Court
   (3)

7) Magistrates Courts 8) Tribunals

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20
Q

Elements of the U.K. Constitution

A

1) The legislature (Parliament)
2) The executive (the government)
3) The Judiciary (judges)

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21
Q

Parliament (1)

House Of Commons

A

All the MP’s elected by UK citizens in the general election.

Each represent their own constituency.

22
Q

Parliament (2) - House Of Lords

A

All of the Peers.
They are unelected.
They are nominated experts in their fields.
The Prime Minister has a large say in who becomes a Peer.

23
Q

Parliament (3) - The Monarch

A

The King or Queen at the time.

They have less power now but still have the final sign off on laws and on Peerages.

24
Q

What is The Doctrine Of Parliamentary Sovereignty?

A

A funded entail principle of UK constitution.

It states that parliament has absolute power and no parliament may make any law which limits the law-making powers of future parliaments.

Commentators argue that the principles has been breached by the Human Rights Act 1998 and the membership of the EU.

25
Q

Definition of ‘Parliamentary Sovereignty’

A

‘The right to make or unmake any law whatsoever and further that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament.

26
Q

The Legislative (1): Parliament

A

Responsible for approving and changing the country’s laws.

To pass a new law both the House Of Commons and the House Of Lords must agree it is a good idea.

27
Q

Roles of parliament (1)

A

Holding the government to account.

  • Checking what departments are doing and how they are spending public money.
  • they do this by asking questions in the House Of Comminw and working on committees which run investigations and make recommendations to the government.
28
Q

Roles of Parliament (2)

A

Making and Amending Laws

  • Most of the draft laws going through parliament (bills) will be government bills but everyone in Parliament can debate about them and vote on them.
29
Q

Roles Of Parliament (3)

A

Representing UK citizens

  • all MP’s are voted for and it is their job to support and represent their citizens.
  • MP’s often help with issues that people may not be able to get their local council to help them with.
30
Q

The Executive (1) Government

A

Government is in charge of managing the country and deciding how our taxes are spent.

Prime Minister and the Cabinet introduce Bills into Parliament which become law in the form of Acts Of Parliament, if approved.

31
Q

The Executive (2) Government

A

All Ministers are expected to vote for government Bills and support government policy more generally.

if a minister is not willing to do so, he/she is expected to resign under the doctrine of collective ministerial responsibility.

32
Q

The Judiciary (1)

A

Apply the law although some may say they make the law through the doctrine of judicial precedent and common law and equity.

The Role of judges in the UK constitution is to apply the law to decide the cases brought before them in their courts.

33
Q

The Judiciary (2)

A

Judges decide in cases and use legal reasoning to justify decisions use judicial precedent.

34
Q

What is ‘judicial review’

A

judges have the power to review decisions of government ministers and other decision makers to check that they have acted within their legal powers.

35
Q

Becoming an Act Of Parliament

A

A Bill must pass through both the House Of Commons and House Of Lords and it must receive Royal assent

36
Q

What Courts can the Crown Court bind on and what are the effects of its earlier decisions on its own cases

A

Bind on - NONE

Effect - MAY BE PERSUASIVE

37
Q

What Courts can the High Court bind on and what are the effects of its earlier decisions on its own cases

A

Bind on: County Court

Effect: Strongly persuasive

38
Q

What Courts can the Court of Appeal bind on and what are the effects of its earlier decisions on its own cases

A

Bind on: Magistrates Court, County Court, High Court, Divisional Court of the High Court, Family Court.

Effect - Civil Division - subject to exceptions
Criminal - strongly persuasive

39
Q

What is ‘Ejusdem generis’

A

‘Of the same kind’

general words following particular words are of the same class: (for example, ‘tradesman, workman, labourer or other person whatsoever’ will only cover person of a similar type).

40
Q

What is ‘Noscitur a socis’

A

(known by the company it keeps)

words derive their meaning from the other words surrounding them (which means words are generally interpreted in the context of the Section and the Act as a whole).

41
Q

What is ‘Expression unius est’

A

the expression of one excludes others)

the express reference of one member of a class may exclude other members of the class not so expressed (for example the express reference to ‘coal mines’ may exclude reference to other types of mine.)

42
Q

What is the Literal Rule

A

•Words must be given their plain ordinary and literal meaning. Because if statute is clear then apply as they are presented.

  • The literal rule involves the judge applying it even if it results in absurdity
  • This rule respects parliamentary supremacy
43
Q

What is the Golden Rule?

A

This is an extension of the Literal Rule and used if the Literal rule produces and absurd outcome. The words are then given a more appropriate meaning. There are two approaches-

  • Narrow approach: Used when words have a dual meaning and the better meaning is chosen
  • Broader approach: When words have only one meaning but judges do not want to apply it for policy reasons.
44
Q

What is the Mischief Rule

A

It requires an examination of the former law to try to deduce parliaments intention.

  1. What was the common Law before the Act
  2. What was the mischief which the common law did not provide for
  3. What remedy did parliament propose to remedy this mischief
  4. What was the true reason for the remedy.
45
Q

Intrinsic Aids (1) Short Title

A

The short title is the formal name by which a piece of primary legislation may by law be cited in the Uk

46
Q

Intrinsic Aids (2) Long Title

A

is the formal title appearing at the head of a statute (such as an Act of Parliament) or other legislative instrument.

47
Q

Intrinsic Aids (3) Preamble

A

A preamble is an introductory and expressionary statement in a document that explains the document’s purpose and underlying philosophy

48
Q

Extrinsic Aids

A

•Extrinsic aids are those found outside the statue. Some of these are very helpful but their use is controversial. They include dictionaries, historical context, other similar Acts. More controversially Law Commission reports and Hansard (record of parlia

49
Q

What is the ‘Purposive Approach’

A

The purposive approach takes a broader approach than the mischief rule in that the court is not just looking to see what the gap was in the old law.

The judges are deciding what they believe Parliament is trying to achieve – what is the purpose of the Act.

Judges are required to consider the context in which the law was created – what were the concerns of government and Parliament at the time the Act was created?

50
Q

What is the Purposive Approach’s impact on Europe?

A

A judge in the European Court of Justice will always reach a decision after considering certain basic principles.

  • proportionality
  • equality
  • legal certainty
  • human rights
51
Q

Advantages of The Purposive Approach

A

It is a flexible approach which allows judges to develop the law in line with Parliament’s intention

It allows judges to cope with situations unforeseen by Parliament

It allows the law to develop to cover advances in medical science

It allows the courts to give effect to EU Directives.

Allowing reference to Hansard makes it easier for the courts to discover Parliament’s intention

52
Q

Disadvantages of the Purposive Approach

A

Judges are given too much power to develop the law and usurping the power of Parliament

Judges become law makers infringing the Separation of Powers.

There is scope for judicial bias in deciding what Parliament intended

It assumes Parliament has one intention and ignores the fact that Parliament is divided on party lines
Allowing reference to Hansard may lead to prolonged examination of irrelevant material by lawyers which adds to the cost and length of litigation.

Law (1 decks)

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