Lecture 1: The History of the Common Law; The Structure and Function of Courts Flashcards
Where is Common Law found?
Legal system in England and Wales, America, Australia, Canada
What is Common Law?
Judge-made law. Law that comes from the courts thus is contrasted with statute + equity
Features of Common Law:
- Reliant on cases
- Comes from courts
- Courts interpretation = laws kept up to date
- Doesn’t come from government
- Judicial
History of the Common Law:
The History of the common law can be traced back to the Norman invasion of 1066
The ‘English’ Legal System: Pre-1066
- “a mass of ordinary customary rules”
- law was written down
- no form of centralised legal system
- ‘Tradition expressed in action’
Institutionalising the Common Law: Post 1154
– “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
Problems with Common Law:
- 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
Development of Equity:
- 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
Developing the Common Law:
• Stare decisis and the Doctrine of Precedent
What was the ‘Doctrine of Precedent’:
Foundation of the common law
Three essential elements of the Doctrine of Precedent:
- Hierarchy of the Courts
- ‘Binding Precedent’
- Accurate law reporting
Principles of Common Law:
- Based on historic English legal system
- Case based; pragmatic; discretionary
- Adversarial – active role of parties, judicial discretion
Principles of Civil Law:
- European continental system, based on Ancient Roman Law and Germanic Tradition
- Codified, general principles
- Inquisitional – lesser role for parties and active judge
Function of Criminal Courts:
To determine the guilt or innocence of defendants according to the criminal law and punish convicted offenders
Function of Civil Courts:
To deal with resolution of disputes between individuals and award remedies to successful claimants. Normally in the form of monetary damages
Function of Trial Courts:
To hear cases at ‘first instance’ matters of fact and law to make a ruling
Function of Appellate Courts:
Application of legal principles to a case already heard at first instance
Superior Courts:
Not bound by geography or costs, can hear cases nationwide, important cases of precedent
Inferior Courts:
Hear the majority of the cases and are geographically and cost bound
The Court Hierarchy in England + Wales:
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
Supreme Court of the United Kingdom:
- 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
Who are the Justices of the Supreme Court?
- Lady Hale
- Lord Mance
- Lord Kerr
- Lord Wilson
- Lord Sumption
- Lord Reed
- Lord Carnwath
- Lord Hughes
- Lord Hodge
The Court of Appeal:
- Doesn’t decide questions of fact but of law
- Distinctions between civil and criminal division
- Binds all lower courts
- Binds itself with exceptions
Court of Appeal (Criminal Division):
Entirely appellate from the Crown Court against conviction, sentence, or finding of fact
Court of Appeal (Civil Division):
Deals with appeals from the 3 divisions of the High Court, and Tribunals (i.e. the Upper Tribunal and the Employment Appeal Tribunal)
Branches of the High Court:
Queens Bench Division
Family Division
Chancery Division
Queens Bench Division: Criminal Cases
Appeals by way of ‘case stated’ (clarification on the law) from Magistrate’s Courts and appeals from Crown Courts sitting without a jury
Queens Bench Division: Civil Cases
Tort at first instance and appeals from County Court
Family Division:
Inherent jurisdiction of cases of divorce, adoption and wardship, wills probate, domestic violence
Chancery Division:
Business and property-related disputes, IP, company law, insolvency
High Court, Divisional Court:
- 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
Administrative Court - Judicial Review:
- 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
The Lower Courts: County Court
All but the most complicated of civil cases (debt, personal injury, breach of contract, wills, housing)
The Lower Courts: Crown Court
Trials on indictment (by jury); anything that is outside the sentencing remit of magistrates’ court; no precedent
The Lower Courts: Magistrates’ Court
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
The Lower Courts: Family Court
Came into existence in 22 April 2014 17(2) Crime and Courts Act 2013 - jurisdiction in all family proceedings, national
Tribunals:
- 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
Purpose of the Civil justice system:
The civil justice system seeks compensation for a wrong committed
Purpose of the Criminal Justice system:
The criminal justice system seeks to convict those guilty of committing criminal offences.
Terminology: Criminal case names
R v Smith
Terminology: Civil case names
Smith v Jones;
Prosecution; Claimant/Plaintiff; Defendant
The role of the judge =
The law
The role of the jury =
The fact (criminal)
Who has the Burden of Proof in criminal trials?
Prosecution in criminal trials
Who has the Burden of Proof in civil trials?
Claimants in civil trials – “he who asserts must prove”
Standard of Proof: Criminal Cases
Beyond reasonable doubt
Standard of Proof: Civil Cases
On the balance of probabilities
Judicial Committee of the Privy Council:
- 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
