Lecture 1: The History of the Common Law; The Structure and Function of Courts

Question 1

Where is Common Law found?

Answer 1

Legal system in England and Wales, America, Australia, Canada

Question 2

What is Common Law?

Answer 2

Judge-made law. Law that comes from the courts thus is contrasted with statute + equity

Question 3

Features of Common Law:

Answer 3

• Reliant on cases
• Comes from courts
• Courts interpretation = laws kept up to date
• Doesn’t come from government
• Judicial

Question 4

History of the Common Law:

Answer 4

The History of the common law can be traced back to the Norman invasion of 1066

Question 5

The ‘English’ Legal System: Pre-1066

Answer 5

• “a mass of ordinary customary rules”
• law was written down
• no form of centralised legal system
• ‘Tradition expressed in action’

Question 6

Institutionalising the Common Law: Post 1154

Answer 6

– “Creating a unified court system”
_ Henry II created a unified court system ‘common’ ‘Bringing the King’s justice to every citizen’
_ Institutes a jury system
_ Judges referred to past decisions to inform the decision of each case
_ Represents the law of the courts expressed through the decisions of the judges

Question 7

Problems with Common Law:

Answer 7

• Could not compel anyone to or not to do something, largely based on damages
• At times did not seem fair, such as mortgages being enforced and landowners losing their land

Question 8

Development of Equity:

Answer 8

• The King’s Conscience
• Where claimants were unsatisfied with the harsh rulings of the common law
• Natural Justice and fairness
• More the King’s Chancellor with the volume of claimants
• Development of Court of Chancery 1474

Question 9

Developing the Common Law:

Answer 9

• Stare decisis and the Doctrine of Precedent

Question 10

What was the ‘Doctrine of Precedent’:

Answer 10

Foundation of the common law

Question 11

Three essential elements of the Doctrine of Precedent:

Answer 11

1. Hierarchy of the Courts
2. ‘Binding Precedent’
3. Accurate law reporting

Question 12

Principles of Common Law:

Answer 12

• Based on historic English legal system
• Case based; pragmatic; discretionary
• Adversarial – active role of parties, judicial discretion

Question 13

Principles of Civil Law:

Answer 13

• European continental system, based on Ancient Roman Law and Germanic Tradition
• Codified, general principles
• Inquisitional – lesser role for parties and active judge

Question 14

Function of Criminal Courts:

Answer 14

To determine the guilt or innocence of defendants according to the criminal law and punish convicted offenders

Question 15

Function of Civil Courts:

Answer 15

To deal with resolution of disputes between individuals and award remedies to successful claimants. Normally in the form of monetary damages

Question 16

Function of Trial Courts:

Answer 16

To hear cases at ‘first instance’ matters of fact and law to make a ruling

Question 17

Function of Appellate Courts:

Answer 17

Application of legal principles to a case already heard at first instance

Question 18

Superior Courts:

Answer 18

Not bound by geography or costs, can hear cases nationwide, important cases of precedent

Question 19

Inferior Courts:

Answer 19

Hear the majority of the cases and are geographically and cost bound

Question 20

The Court Hierarchy in England + Wales:

Answer 20

The Court of Justice of the European Union (the European Court of Justice) – interpretation of EU legislation, disputes between member states

Supreme Court of the United Kingdom

Judicial Committee of the Privy Council

Courts below this level are divided between civil and criminal cases

Question 21

Supreme Court of the United Kingdom:

Answer 21

• 12 ‘Justices of the Supreme Court’
• Final court of appeal for all civil cases in UK, all criminal cases except for Scotland
• 5 or sometimes 7 or 9 sit to hear appeals – why odd number?
• Holders of ‘high judicial office’
• About 85 appeals per year,
• Bound by the Court of Justice of the European Union (currently)
• Opinions (judgments) binding on all lower courts
• Practice Statement 1966 – the Supreme Court is not bound by previous decisions
• Set up by the Constitutional Reform Act 2005
• Appellate Committee of the House of Lords abolished

Question 22

Who are the Justices of the Supreme Court?

Answer 22

• Lady Hale
• Lord Mance
• Lord Kerr
• Lord Wilson
• Lord Sumption
• Lord Reed
• Lord Carnwath
• Lord Hughes
• Lord Hodge

Question 23

The Court of Appeal:

Answer 23

• Doesn’t decide questions of fact but of law
• Distinctions between civil and criminal division
• Binds all lower courts
• Binds itself with exceptions

Question 24

Court of Appeal (Criminal Division):

Answer 24

Entirely appellate from the Crown Court against conviction, sentence, or finding of fact

Question 25

Court of Appeal (Civil Division):

Answer 25

Deals with appeals from the 3 divisions of the High Court, and Tribunals (i.e. the Upper Tribunal and the Employment Appeal Tribunal)

Question 26

Branches of the High Court:

Answer 26

Queens Bench Division

Family Division

Chancery Division

Question 27

Queens Bench Division: Criminal Cases

Answer 27

Appeals by way of ‘case stated’ (clarification on the law) from Magistrate’s Courts and appeals from Crown Courts sitting without a jury

Question 28

Queens Bench Division: Civil Cases

Answer 28

Tort at first instance and appeals from County Court

Question 29

Family Division:

Answer 29

Inherent jurisdiction of cases of divorce, adoption and wardship, wills probate, domestic violence

Question 30

Chancery Division:

Answer 30

Business and property-related disputes, IP, company law, insolvency

Question 31

High Court, Divisional Court:

Answer 31

• This is split into several ‘divisions’, each dealing with separate areas of law:
• The Divisional Court is bound by Court of Justice of the European Union, Supreme Court and Court of Appeal
• It is bound by its own earlier decision in civil matters subject to the rules of Young v Bristol Aeroplane Co [1944] 2 All ER 293 (CA)
• R v Greater Manchester Coroner ex parte Tal [1984] 3 All ER 240 – the court can depart from its own earlier decisions in criminal matters

Question 32

Administrative Court - Judicial Review:

Answer 32

• Determination whether a public body has acted lawfully
• Applicant must have standing
• Illegality, irrationality and procedural impropriety
• (Council for Civil Service Unions v Minister for Civil Service [1985] 1 AC 374 (HL)
• Proportionality – Human Rights – a breach of the European Convention on Human Rights 1998 s.6

Question 33

The Lower Courts: County Court

Answer 33

All but the most complicated of civil cases (debt, personal injury, breach of contract, wills, housing)

Question 34

The Lower Courts: Crown Court

Answer 34

Trials on indictment (by jury); anything that is outside the sentencing remit of magistrates’ court; no precedent

Question 35

The Lower Courts: Magistrates’ Court

Answer 35

Criminal proceedings, 90% begin and end there, summary offences, applications for bail, youth courts; civil proceedings, highways, bye laws, public health, licencing – Justices of the Peace or District Judge

Question 36

The Lower Courts: Family Court

Answer 36

Came into existence in 22 April 2014 17(2) Crime and Courts Act 2013 - jurisdiction in all family proceedings, national

Question 37

Tribunals:

Answer 37

• Specialised tribunals developed over the 20th century to make it easier and cheaper to resolve complaints disputes e.g. Employment, rent, immigration, Mental Health Review Tribunal
• Tribunals, Courts and Enforcement Act 2007 – functions of most tribunals transferred to First-Tier Tribunal
• Upper Tribunal – appeals from the First-Tier Tribunal on a point of law

Question 38

Purpose of the Civil justice system:

Answer 38

The civil justice system seeks compensation for a wrong committed

Question 39

Purpose of the Criminal Justice system:

Answer 39

The criminal justice system seeks to convict those guilty of committing criminal offences.

Question 40

Terminology: Criminal case names

Answer 40

R v Smith

Question 41

Terminology: Civil case names

Answer 41

Smith v Jones;

Prosecution; Claimant/Plaintiff; Defendant

Question 42

The role of the judge =

Answer 42

The law

Question 43

The role of the jury =

Answer 43

The fact (criminal)

Question 44

Who has the Burden of Proof in criminal trials?

Answer 44

Prosecution in criminal trials

Question 45

Who has the Burden of Proof in civil trials?

Answer 45

Claimants in civil trials – “he who asserts must prove”

Question 46

Standard of Proof: Criminal Cases

Answer 46

Beyond reasonable doubt

Question 47

Standard of Proof: Civil Cases

Answer 47

On the balance of probabilities

Question 48

Judicial Committee of the Privy Council:

Answer 48

• Hears appeals from Commonwealth countries
• Ecclesiastical appeals
• Not strictly bound by its own earlier decisions
• Not bound by the Supreme Court on matters of the law of those countries from which it is the final Court of Appeal (due to the fact that the common law is different the world over)
• Final for the Queen in Counsel or the Judicial Committee
• Not binding on any domestic court