Legal System of England and Wales - FLK 1

Question 1

What is the judicial hierarchy for ranking Judges by power?

Answer 1

Senior Judges
Superior Judges
Inferior Judges

Question 2

What are the powers of Senior Judges?

Answer 2

Senior ranking due to their combined functions in a judicial capacity and administrative and leadership roles. Their powers are not restricted by statute.

Question 2

What are the powers of Superior Judges?

Answer 2

Have unlimited jurisdiction, and are not limited by statute.

Question 3

What are the powers of Inferior Judges?

Answer 3

Do not exercise unlimited jurisdiction and their powers are defined by statute.

Question 4

What is the court hierarchy and what do the courts deal with?

Answer 4

Supreme Court - appeals only (point of law)
Court of Appeal - appeals only (question of law)
High Court, County Court and Family Court - civil cases
Crown Court and Magistrates’ Court, Youth Court - criminal cases

Question 5

What are the 3 divisions of the High Court?

Answer 5

1. King’s bench division - complex contract and tort cases and high value cases
2. Chancery division - complex business or property cases and high value cases.
3. Family division - complex family cases and international child abduction cases.

Question 6

When should a civil case be commenced in the county court?

Answer 6

Less than 100,000 in value or less than 50,00 for PI cases.

Cases of more than 100,000, the claimant can choose between the three divisions of the High Court.

Question 7

When should a civil case be commenced in the High Court?

Answer 7

Cases of more than 100,000, the claimant can choose between the three divisions of the High Court.

Cases with complex facts or of public interest.

Question 8

What is the route of appeal in Mags Court - criminal case?

Answer 8

A defendant can appeal against the conviction and/or the sentence.

Appeal will be considered by Crown Court and will be a rehearing of the entire case.

If defendant pled guilty, they can only appeal the sentence.

Crown court can confirm verdict and or sentence, or replace with their own.

Crown court can increase the sentence, and the prosecution cannot appeal to CC.

Question 9

What is the route of appeal in Crown Court - criminal case?

Answer 9

A defendant can appeal against the conviction and/or the sentence.

Defendant has to apply for leave to appeal.

Appeal will be considered by CoA.

Dismissed Appeal - verdict and sentence remain.

Successful Appeal - verdict can be confirmed or overturned, or sentence can be reduced.

Question 10

What is an Appeal By Way of Case Stated in proceedings?

Answer 10

Based on the decision being wrong in law or made in excess of the court’s jurisdiction.

Either party may appeal against the Mags decision by way of case stated.

This appeal can be made of a CC case if it is an appeal from the Mags Court.

Question 11

What is an Appeal For Judicial Review of proceedings?

Answer 11

A party can make an appeal for judicial review where it is believed the lower court has acted unreasonably, ultra vires, or irrationally.

Question 12

What is an appeal referred by the criminal cases review commission?

Answer 12

Cases referred where there may have been a miscarriage of justice to the CC (if tried in Mags Court) or CoA (if tried in CC).

This can be requested or the Commission may do it on their own initiative provided there is a ‘real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made’.

Question 13

What are the rules to appeals in civil cases?

Answer 13

Permission can be given if there is a realistic prospect of success or if there is a compelling reason why the appeal should be heard.

Permission can be given from the court of first instance or the relevant appellate court.

Appeals will be considered by the next level of judge in the judicial hierarchy and do not need to be considered by a different court.

Generally, there is only one level of appeal and no further opportunity to appeal.

Question 14

What appeals can only be heard by the CoA and the Supreme Court?

Answer 14

Appeals that involve an important point of principle or practice. These include:
1. Appeals from the High court to the CoA
2. Appeals from the High court to the supreme court (‘Leap Frog Procedure’)
3. Appeals from the CoA to the supreme court

Question 15

What is a right of audience and who can exercise it?

Answer 15

The right to appear in court on behalf of a client in legal proceedings.

Barristers have the right of audience in all courts.

Solicitors have the right of audience in lower courts, and only in higher courts if they have achieved ‘higher rights of audience’.

Question 16

What are the four principle of operation of judicial precedent?

Answer 16

1. Courts are bound by superior courts
2. Courts are not bound by inferior courts
3. Courts are bound by their own previous decisions, but superior courts may overrule an existing precedent where it considers it right to do so.
4. Courts below the High Court do not create binding precedents and must follow binding precedents set by higher courts.

A court may decide to distinguish a precedent based on material differences between the relevant cases.

Question 17

What is the different between ‘reversing’ a decision and ‘overruling’?

Answer 17

On appeal a higher court may reverse a lower court’s decision where it determines it to be wrong.

This is different from a higher court ‘overruling’ a precedent where the previous precedent was wrong or no longer an accurate representation of the law.

Question 18

What courts can set precedent?

Answer 18

Supreme Court - highest court
CoA - bound by Supreme court
High court - only in appeals, and is bound by the supreme court and CoA.

Question 19

What is the difference between primary and secondary legislation?

Answer 19

Primary legislation is an Act of Parliament (statutes), it is the most authoritative and if it conflicts with common law, the statute will prevail.

Secondary legislation is law created by government ministers by virtue of powers given to them by an Act of Parliament, e.g. statutory instruments.

Question 20

What is a Bill and the 3 types of Bills?

Answer 20

A Bill is a draft of proposal for a piece of legislation

Types of Bills:
1. Public bills
2. Private bills
3. Hybrid bills

Question 21

Where is a Bill introduced?

Answer 21

Either House of Commons or House of Lords.

Must proceeds through each stage of the process in both Houses of Parliaments

Question 22

What are the four rules of statutory interpretation?

Answer 22

1. The Literal Rule
2. The Golden Rule
3. The Mischief Rule
4. The Purposive Approach

Question 23

What is the Literal Rule?

Answer 23

Court give the words used in statute their plain, ordinary or literal meaning.

Question 24

What is the Golden Rule?

Answer 24

Court may depart from the literal rule interpretation of a statute in order to avoid an absurd outcome.

Question 25

What is the Mischief Rule?

Answer 25

Court interpret the meaning of a provision within a statute in the light of the ‘mischief’ (the wrong/harm) that the Act aimed to address.

Question 26

What is the Purposive Approach?

Answer 26

Courts consider the purpose of the Act when interpreting the meaning of a provision within a statute. It is wider than the mischief rule.

Question 27

What are the main presumptions when interpreting statutory legislation?

Answer 27

• statute does not affect common law unless stated in statute
• statutes do not bind the Crown
• statutes do not operate retrospectively unless stated in statute
• mens rea is a requirement for all statutory criminal offences unless a strict liability offence.