LEGAL SYSTEM

Question 1

SOURCES OF LAW

Answer 1

1.statue
2.satutory instrument
3.international Treaty
4.case law
5.works of authority
6.convention
Conventions are a by-product of the uncodified parts of the l JK Constitution. They are simply the way things are done in the UK and are given weight throu ugh acknowledgment of their exis- tence, even though they are, strictly speaking, non-binding.

Question 2

statutory interpretation
rules of interpretation

Answer 2

1. literal rule
   Under the Literal Rule, if the words of a statute have clear meaning, a court will apply the words as written. However, if there is some ambiguity, the court will give words their ordinary meaning. This is the case, even if it yields an absurd result.

Exam Tip
lf the words in the statute are clear, they must be ap- plied in the way they are written, even though the inten- tion of the legislator may have differed from the literal meaning or the judgment is harsh or undesirable.
2. golden rule
sometimes, using the ordinary meaning of a word would give an absurd result. In such cases, to avoid the absurdity, courts may use a different meaning of a word. This is known as the Golden Rule. The Golden Rule exists to smooth out the edg- es of the Literal Rule.
3. mischief rule
The Mischief Rule works backwards; it looks at what problem the statute was designed to remedy and adapts the words of the statute to achieve this result.
4. purposive rule
The Purposive Rule functions as an accompaniment to the Mischief Rule but it looks at the why-why the statute exists, as well as what it hopes to achieve. To do this, judges may look at things extraneous to the legislation, like the content of debates on the Bill in Hansard and Commons brief- ing papers. It should be noted that these things, including Explanatory Notes that have been available since 1999, are guidelines, not railway tracks’.(Cusack v London Borough of Harrow)

Question 3

Rules of Languages used in interpretation

The words in the law are not looked at in isolation but rather as a whole. Therefore, there are other maxims judges look to in making their decisions.

Answer 3

1. Expressio Unius est Exclusio Alterius
2. Noscitura Sociis
3. In Pari Materia
4. Ejusdem Generis

Question 4

Expressio Unius est Exclusio Alterius

Answer 4

expres- sion of one thing is the exclusion of another.’ Under this legal maxim if one or more things of a class are expressly men- tioned in a statute, the things not mentioned are excluded.

Question 5

Noscitura Sociis

Answer 5

Noscitur a sociis stands for the doctrine that a word is inter- preted by the company it keeps. That is, when interpreting a statute, courts consider the context in which a word is used, thereby using words in the same section of the statute to interpret the word in dispute.

Question 6

In Pari Materia

Answer 6

In pari materia roughly means ‘upon the same matter or sub- ject’. It can be applied where other statutes may assist with interpreting an ambiguity in the statute concerned.

Question 7

Ejusdem Generis

Answer 7

Ejusdem generis means ‘of the same type’. lt is used to inter- pret general words, meaning if a general word follows two(or more) specific words, the general word will only apply to items that are like the specific words used.

Question 8

4

presumptions used when interpreting law

Answer 8

1. A presumption against allowing statutes to alter the common law.
2. A presumption against removing the court’s jurisdiction.
3. A presumption that ambiguity in a criminal case will fall in favour of the defendant.
4. A presumption that statutes cannot be retrospectively applie

Question 9

aids to interpretation

Answer 9

1. intrinsic
   The statute itself is the primary source of information.As a result, therefore, the statute must be read as a whole-with every word being considered-before looking outside of the statute.
   The most common intrinsic aids are the Short Title, Long Title,Preamble,Marginal Notes, Punctu- ation, Example, and Schedules.
2. extrinsic
   .The most prominent extrinsic aids are dictionaries, explanatory notes, and Hansard (that is, the official report of Parliamenta- ry debates).

Question 10

civil court structure

Answer 10

1. county court
2. High court

Question 11

county court

Answer 11

County Court generally handles claims in which the claimant is not expected to receive more than £100,000 ( £50,000 in personal injury cases). These courts are generally pre- sided over by circuit judges or more senior** district judges.** County Court cases are put into one of three sub-divisions:
Small Claims Track,
Fast Track, or
Multi-Track.
Each track is discussed in detail in your Dispute Resolution materials, but briefly:
* Cases involving not more than £10,000 (£1,000 in person- al injury cases) are assigned to the Small Claims Track;
* Cases involving not more than £25,000 (£10,000 in per- sonal injury cases) are assigned to the Fast Track; and
* Cases involving more than £25,000 or that are too com- plex for the Fast Track are assigned to the Multi-Track. Proceedings may not be started in the High Court unless the total value of the claim is more than £100,000. None- theless, claims for more than £100,000 may be started in the County Court. This threshold is £50,000 in personal injury cases.

Question 12

High Court

Answer 12

1. The High Court acts both as a civil court of first instance
   (for complex Multi-Track cases and for cases involving more than £50,000) and as an appellate court for lower value cases (as well as for criminal case appeals).
2. , the High Court is divided into three divisions:King’s Bench, Chan- cery, and Family.

Question 13

2

King’s Bench division

high court

Answer 13

1.The King’s Bench Division generally deals with** Multi-Track claims for all common civil law actions. Cases that are des- ignated to the King’s Bench Division are those in which the claim value exceeds £50,000 for personal injury claims and clinical negligence, and £100,000 for other types of claim. **
2.The King’s Bench Division also contains within it the Admin- istrative Court which, among other things, deals with appli- cations for judicial review against decisions made by the government on legal grounds

Question 14

chancery division

high court

Answer 14

The Chancery Division deals with land contracts, trusts, and wills.

Question 15

family division

high court

Answer 15

The Family Division deals with cases concerning family pro- ceedings. Some of the key areas the Family Division handles are adoption, complex divorce, nullity of marriage, and disso- lution of civil partnerships.

Question 16

alternatives to civil courts

Answer 16

1. mediation
   Mediation involves use of a third party (called a ‘mediator’) to guide the parties in the dispute to resolve the situation themselves. In mediation, the parties make the decision how to resolve their dispute-the mediator does not issue a ruling.
2. arbitration
   In arbitration, the parties appoint a third party (called an‘arbitrator’) to decide their dispute.
   The arbitrator will discuss the case individually with each party and then make a laws decision (called a ‘final order’) which is enforceable in the courts.
3. negotiated settlement
   Negotiated settlements do not involve use of a third party. As the name implies, the parties negotiate with each other and agree how to settle their dispute.

Question 17

criminal court structure

Answer 17

1. magistrate’s court
2. crown court

Although all criminal cases begin in the Magistrates’Court, where a criminal case ultimately will be tried depends in part on the severity of the offence involved. Less severe‘summary offences’which are tried without a jury are heard in the Magistrates’Court. More severe** ‘indictable offenc- es’** are tried in the Crown Court. ‘Either way offences’are tried in the Magistrates’Court if the defendant agrees to be tried without a jury; otherwise, trial wil**l be transferred to the Crown Court.

Question 18

Magistrates’Court

Answer 18

Magistrates’ Courts are comprised of three lay magistrates, meaning people who are not legally qualified, or the courts are made up of full-time district judges. The maximum sen- tence that a Magistrates’ Court can impose is** six months** and/ or a fine of any amount.

Question 19

Crown Court

Answer 19

High Court judges and circuit judges preside over Crown Courts, although simpler cases may be presided over by re- corders (barristers or solicitors in private practice who serve as part-time judges).

Question 20

Rights of Adience

Answer 20

In England and Wales, solicitors automatically have the right to appear (that is, they have a right of audience) before the lower courts, such as the Magistrates’ Court, the County Court, and Family Court. However, solicitors have no auto- matic right to appear before the Crown Court, the High Court, the Court of Appeal, or the Supreme Court. A solicitor can gain the right to appear in these superior courts by complet- ing additional advocacy assessments and applying for higher rights of audience with the Solicitors Regulation Authority.

Question 21

Appeals-civil cases

Answer 21

The routes for appeal are set out in the Access to Justice(Destination of Appeals) Order 2000. Under that Order, two factors are pertinent in deciding where an appeal will be heard:
1. The seniority of the judge presiding over the original case; and
2. The court in which the judge sat when reaching the deci- sion that is being appealed.

Question 22

sequence of appeal (civil case_

Answer 22

1. If a case starts in the County Court, cases heard by a dis- trict judge (on the Small Claims Track) will be heard againat the County Court, this time by a more senior circuit judge. They can then go on to the High Court, then on to the Court of Appeal.
2. Other cases will go straight to the High Court for appeal, then on to the Court of Appeal (although very occasional- ly they can go straight to the Court of Appeal).
3. If a case starts in the High Court, it will move to the Court of Appeal, from which a further appeal can be made to the Supreme Court.
   Occasionally, if there is public significance, meaning an issue of statutory interpretation, the case can be sent from the High Court to the Supreme Court and thus by- pass the Court of Appeal.

Question 23

Permission to appeal

Answer 23

Permission to appeal must be sought from the court that made the initial judgment. If the court refuses to grant per- mission to appeal, an application can be made to the court to which the case will be appealed. An appeal will be granted only if:
1. The claim looks to have a real prospect of success; or
2. There is another pressing reason to hear the case.

1.

Question 24

Criminal Appeal

Answer 24

1. the Crown court
   The Crown Court hears both appeals against sentence
   and appeals against verdict. However, if the defendant has already pled guilty, only the sentence can be appealed.
2. High Court
   Either party (the Crown or the defendant) can apply to the High Court to hear appeal on the ground that a Magistrate has incorrectly applied procedure, such as denying admissi- ble evidence. A panel of three judges will review the judg- ment, which may be affirmed, amended, or returned to the Magistrates’Court for revaluation.
3. Administrative Court (Division of the High Court)
   Either party can appeal to the Administrative Court if they feel that the process of the judgment was incorrect and, in being incorrect, the court acted ultra vires (that is, beyond the scope of its powers).
4. Court of AppeL
   Only the convicted party can appeal to the Court of Appeal- either the conviction or the sentence. This should be done within 28 days of conviction or sentencing (depending on the ground for appeal), but it is possible to submit an out of time appeal, or where there is fresh evidence, to submit an appeal to the Criminal Cases Review Commission (‘CCRC’) to have the case reheard.
5. Supreme Court
   Where permission has been given and the point of law at issue is of public importance, a case can be sent from the Court of Appeal to the Supreme Court.

Question 25

system of precedents

Answer 25

1. vertical
2. horizontal

Question 26

vertical system of precedents

Answer 26

Rulings of higher courts bind the lower courts, broadly as shown in the illustration below, with decisions of the Supreme Court and Court of Appeal binding the courts below them, and decisions of the High Court and Crown

Question 27

5

horizontal system of precedents

Answer 27

Horizontal binding concerns courts of the same level binding themselves by their decisions.
1. The Supreme Court does not bind itself in its decision making (that is, the Supreme Court is not forced to follow a prior holding of the Supreme Court). Otherwise, the law would be too rigid, depriving common law of its flexibility.

2. Court of Appeal decisions generally are treated as bind- ing in future Court of Appeal cases in the civil division.
3. In the criminal division, the Court of Appeal has discretion to depart from its own decisions if it is convinced the de- cision was wrong and following the decision would cause hardship
4. High Court decisions are binding in future High Court cases if the decision was rendered in a case in which the High Court was acting as an appellate court.High Court decisions made in cases in which the High Court is acting as a court of** first instance **are not binding on the High Court in future cases.
5. Lower First instance court
   No binding effect.

Question 28

elements of judicial decision

Answer 28

1. ratio decidendi
   facts,laws, and interpretation of laws on which the court based its ruling-is referred to as the ratio decidendi (or simply ‘the ratio’). That is the part of the case which is binding.
2. obiter dictum
   Obiter dictum is other statements a judge may make in their summation-items included within the case discussion which are not actually essential to reaching the conclusion that was reached.Obiter dictum is not binding precedent, but because it is informative of how the court might rule in other circumstances, it may be used as persuasive authority.

Question 29

Adversarial System

Answer 29

The E/W common law system is adversarial-the opposing parties offer legal arguments supporting their case and the judge serves as an umpire between them ensuring that each follows the procedural rules. This is distinct from civil law sys- tems in which the judge serves as an inquisitor to draw out the facts from witnesses, and legal counsel act as umpires to ensure the judge follows the procedural rules.

Question 30

components of statute

Answer 30

1.short title
The short title of an Act is, as this term implies, a short name given to the Act which is most commonly used to refer to it-for example, Offensive Weapons Act(2019).

2.Citation: UK Public General Acts are Chapter Acts and are given a chapter number-this forms the method of citation. For example, the Offensive Weapons Act (2019) has been given the chapter number 17. Therefore, the citation for the Act is 2019 c.17.

3. Long Title: The long title of an Act usually describes its purpose and can be an aid to interpretation (see below). For example, the long title of the Offensive Weapons Act(2019) is: ‘An Act to make provision for, and in connection with, offences relating to offensive weapons’.
4. Date of Royal Assent: The date of Royal Assent is the date the Act received Royal Assent and became an Act rather than a Bill. (When drafted and being voted on, proposed legislation is called a Bill.) For the Offensive Weapons Act(2019), the date of Royal Assent is16 May 2019.
5. Preamble
   The preamble is a fixed block of text, confer- ring the authority of the Crown upon the Act, making it law, and reads as follows:
   BE IT ENACTED by the [Monarch’s] most Excel- lent Majesty, by and with the advice and consent
   of the Lords Spiritual and Temporal, and Com- mons, in this present Parliament assembled, and are by the authority of the same, as follows:
6. Part: An Act can be (but is not always) divided into parts, to
   an deal with subcategories. For example, Part 1 of the Offen- sive Weapons Act is ‘Corrosive Products and Substances’.
7. Section: Sections are individual provisions of an Act
8. Marginal Notes: Marginal notes are short notations which may appear above or alongside each section of an Act and which give insight into what the provision is about. By definition, marginal notes are internal aids.
9. subsection
10. Marginal Notes: Marginal notes are short notations which may appear above or alongside each section of an Act and which give insight into what the provision is about. By definition, marginal notes are internal aids.
    10.Extent Provisions: Extent provisions define the situations in which a law applies.
    11.Enabling Provisions:Sometimes an Act’s provisions are deferred from being in force until the relevant minister produces regulations giving that provision effect