Legal System Of England & Wales Flashcards
1
Q
What legal system do we have in England and Wales?
A
Common Law System
2
Q
What are the key features of a Common Law System?
A
Decisions are made considering statute and previous court judgements.
3
Q
What form of system is the common law system?
A
Adversarial
4
Q
What is an adversarial system?
A
Opposing parties offer legal arguments supporting their case and the judge serves as an umpire.
5
Q
What is a non-adversarial system?
A
Judge obtains facts from witnesses and enforces a codified statute giving a binding answer
6
Q
Where uses the non-adversarial system?
A
Much of Europe.
7
Q
What are the 6 sources of law?
A
- Statute
- Statutory Instruments
- International Treaty
- Case Law
- Works of Authority
- Contention
8
Q
What is a statute?
A
Acts of Parliament passed by Parliament
9
Q
What are the structure to an Act of Parliament?
A
- The Short Title
- Citation
- The Long Title
- The date of Royal Assent
- The Preamble
- Parts
- Sections and Subsections
- Extent Provisions
- Enabling Provisions
10
Q
What are Statutory Instruments?
A
Provisions allowing another body to give practical effect to an Act by implementing regulations
11
Q
What is another name for Statutory Instruments?
A
Secondary Legislation
12
Q
Can the executive enter into an intention treaty without the consent of parliament?
A
Yes, Royal Prerogative allows the executive the bind the UK in international treaties
13
Q
How is case law created?
A
Once a point of law has been determined at a binding level, the determination because part of common law.
14
Q
What extra powers does the element of case law bring to judges?
A
Law-making roles outside of the direct control of Parliament.
15
Q
What are Works of Authority?
A
An aid to interpretation (secondary legislation) - e.g. textbooks
16
Q
What is Convention?
A
Rules that are followed as this is how they have always been done. Not to follow them would lead to intense scrutiny
17
Q
What is the Doctrine of Parliamentary Sovereignty?
A
Our Parliament are our supreme law. No one can amend the law except Parliament.
18
Q
Why is secondary legislation required?
A
Parliament cannot conceive every possible situation that might occur so this provides a fall back
19
Q
What is the golden rule?
A
Court uses something other than the words ordinary meaning to avoid an absurd result
20
Q
What is the purposive rule?
A
Court looks at documents extraneous to the statute to determine why the statute was passedn
21
Q
What is the mischief rule?
A
Court looks to the problem the statute was designed to remedy
22
Q
What is the literal rule?
A
Court applies the ordinary meaning of the words in the statute
23
Q
What are the 4 Approaches to/Rule of Interpretation?
A
- the Literal Rule
- the Golden Rule
- the Mischief Rule
- the Purposive Rule
24
Q
Who would use the 4 rules of interpretation?
A
The court to determine the meaning of an Act of Parliament
25
What is the rule of Expressio unius est exclusion alterius?
If a statutory section lists specific items of a class without a general catch all, other items of the class are excluded
26
What is the rule of Noscitur a Sociis?
Ambiguous words in a statutory section should be interpreted by the company they keep
27
What is the rule of In Pari Materia?
Ambiguous words in statutory sections interpreted consistently with the same words in statute touching the same subject matter
28
What is the rule of Ejusdem Generis?
Ambiguous general words in a statutory section which follow specific words should be interpreted as referring to things of the same type as specific words
29
What are the 2 different types of aids in interpretation and provide an example for each? §
```
Intrinsic = statutes, marginal notes
Extrinsic = dictionaries, Hansard, explanatory notes
```
30
What are the two main courts in the Civil System?
1. The County Court
| 2. The High Court
31
What does the County Court deal with?
Lower value claims
32
What are the 3 tracks for County Court?
1. Small Claims Track
2. Fast Track
3. Multi-Track
33
What is the limit for Fast Track claims?
Between £10,000 and £25,000
34
What is the cost requirements for Multi-Track cases?
Over £25,000
35
What is the limit of claims to be held in the Small Claims Track?
Less than £10,000 and claims for PLSA no more than £1,000
36
What does the High Court deal with?
Civil court in the first instance and as an appellate court for lower value cases.
37
What cases are usually heard in the Queens Bench?
Multi-track cases over £50,000 for PI or £100,000
38
What cases are usually heard in the Chancery Bench?
Land contracts, trusts and wills
39
What cases are usually heard in the family bench?
Family cases such as adoption, complex divorce, nullity of marriage and dissolution of civil partnerships
40
What are the three divisions of the High Court?
1. Queens Bench
2. Chancery
3. Family
41
What is the alternative to Civil Courts?
Alternative Dispute Resolution (ADR)
42
What are examples of forms of ADR?
Mediation, arbitration and negotiated settlement.
43
What is the most comment form of ADR?
Mediation.
44
What is the process of mediation?
Use of a third party 'mediator' to guide the parties in the dispute to resolve the situation themselves.
45
What is arbitration?
The parties appoint a third-party 'arbitrator' to decide their dispute.
46
What is negotiated settlements?
The parties negotiate with each other and agree how to settle the dispute.
47
What are the 2 types of Criminal Courts?
1. Magistrates Court
| 2. Crown Court
48
Where do all criminal cases begin?
Magistrates Court
49
How is it decided on which court a criminal case will be heard?
Depending on the severity of the of the offence involved.
50
Who would usually hear a case in a magistrates court?
3 lay magistrates or full-time judges
51
What is the maximum sentence that can be given in a magistrates court?
6 months for single offences
12 months for multiple offences
or £5,000 fine
52
What criminal cases are typically heard in the Magistrates Court?
Less severe 'summary offences' which are tried without a jury and 'either way offences'.
53
When would an 'either way offence' not be tried in the Magistrates Court?
Where the defendant agrees to be tried without a jury.
54
What criminal cases are typically heard in the Crown Court?
More severe 'indictable offences'.
55
What is the Right to an Audience?
Solicitors automatically have the right to appear before the lower courts such as Magistrates Court, County Court and Family Court.
56
What courts does the Right to an Audience not apply to?
Crown Court, High Court, Court of Appeal, Supreme Court.
57
How can a solicitor gain the Right to an Audience to the superior courts?
Completing additional advocacy assessments and applying for higher rights of audience with the Solicitors Regulation Authority.
58
Who would hear a case in the Crown Court?
High Court and circuit judges
59
Where would a jury preside and who makes up a jury?
In a Crown Court case and they are made up of 18-75 years olds from the electoral register
60
What are the two factors when deciding where an appeal with be heard?
1. Seniority of the judge presiding over the original case
| 2. The court in which the judge sat when reaching the decision.
61
What is required before being allowed to appeal?
Permission from the court that made the initial judgement.
62
If the Court reject to give permission to appeal in a civil case, what else can be done to appeal?
An application can be made to the Court of Appeal - not granted in all cases.
63
What is the order of courts for appeal?
1. Crown Court
2. High Court
3. Administrative Court (Division of the High Court)
4. Court of Appeal
5. Supreme Court
64
What appeals does the Crown Court hear?
Appeals against sentence and appeals against verdict.
65
What can be appealed in the Crown Court if the defendant has already pled guilty?
Only the sentence.
66
What does an appeal to the Crown Court involve?
A full rehearing of the case.
67
Who can apply to the High Court for an appeal?
The Crown or defendant.
68
What would be appealed to the High Court?
That a Magistrate has incorrectly applied the procedure.
69
Who can apply to the Administrative Court for an appeal?
The Crown or the Defendant.
70
What would be appealed to the Administrative Court?
The process of the judgement was incorrect and being incorrect the court acted ultra vires (beyond the scope of its powers).
71
Translate: ultra vires
Beyond the scope of its powers.
72
Who can apply to the Court of Appeal?
Only the convicted party.
73
What can be appealed in the Court of Appeal?
Either the conviction or the sentence.
74
What would be sent to the Supreme Court?
Permission has been given and the point of law at issue is of public importance.
75
What is precedent?
A system based on the principle of stare decisis (let decisions stand) where court holdings in previous cases dictate the result in later cases involving the same law and similar facts.
76
Translate: stare decisis.
Let decisions stand.
77
What is the vertical Binding Effect?
From the top down. E.g. rulings of higher courts bind the lower courts.
78
What is the Horizontal Binding Effect?
Courts of the same level binding themselves by their decisions. If a judge is sitting in a court of coordinate jurisdiction (a court of the same level that made a decision in a previous case) they should follow that decision unless there are convincing reasons for not doing so.
79
What would be followed if there are conflicting decisions of co-ordinate jurisdiction?
Later decisions should be followed.
80
When is a decision binding?
A prior decision must be relevant to the current case. To be relevant, the decision must involve similar facts and similar laws.
81
What part of a Judicial Decision is binding?
Any part of the case that are essential to the court's decision - the facts, laws and interpretation of laws based on its ruling. This is referred to as the ratio decidendi.
82
What is obiter dictum?
Other statements a judge make in their summation which are not actually essential to reaching the conclusion that has been reached.
83
Is obiter dictum binding?
No.
84
Can an obiter dictum still be persuasive authority?
It is informative as to how the court might rule in other circumstances it may be used as persuasive authority.
85
Would a unanimous judgement be binding?
Yes.
86
If the decision is not unanimous how would this be resolved?
The ratio from the majority opinion is binding in appropriate circumstances.
87
How would an opinion of a judge in the minority be treated?
Not as a binding precedent, but can be treated as obiter dictum and serve as persuasive authority.
88
When did the Common Law Courts and Courts of Chancery merge?
1875
89
Historically what were the two courts in the UK?
Common Law Courts and Courts of Chancery
90
What are the 6 types of law?
1. Public Law
2. Private Law
3. Criminal Law
4. Civil Law
5. Substantive Law
6. Procedural Law
91
What is 'Public Law'?
Functioning of the state and the individuals' relationship with it.
92
What is 'Private Law'?
Governs relationships between individuals (e.g. contract or tort)
93
What is 'Criminal Law'?
The actions of individuals which the state (crown) deems harmful to the state or people in it.
94
What is 'civil law'?
Intervenes in relationships between individuals when they go awry.
95
What is 'substantive law'?
Governs adjudication
96
What is 'Procedural law'?
Governs how the adjudication of disputes operates such as time limits and required paperwork.
97
What is the short title of an Act?
The short name given to an Act.
98
What is the citation to an Act?
Each statute will be numbered in accordance with numbering enacted during that Parliament session e.g. ch54 = 54th Act to be passed that session.
99
What is the Long Title to an Act?
Description and purpose of the Act.
100
What is the Date of Royal Assent in an Act?
The date the Act received Royal Assent and became Act rather than a bill.
101
What is the Preamble in an Act?
How the Act came into force. Fixed block of text conferring the authority of the Crown upon the Act making it law.
102
What are Extent Provision relating to an Act?
Defines when the law applies.
103
What are the Enabling Provisions of an Act?
Provisions can be deferred from being in force until a relevant minister produces regulations giving that provision effect.
104
What is Hansard?
Official report of the debate in the Houses of Parliament.
105
What are the three types of criminal offences?
1. Summary Only
2. Either Way
3. Indictable Only
106
What court would a summary offence be heard?
Magistrates Court
107
What court would an either way offence be heard in?
Magistrates Court or Crown Court
108
What court would a indictable only offence be heard?
Crown Court
109
Can both a sentence and fine be issued at a magistrates court?
Yes.
110
How soon should an appeal to brought to the Court of Appeal?
Within 28 days of sentencing.
111
What is the exception to when a case can be heard in the Court of Appeal after the 28 day deadline?
Where new evidence comes to light.
