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Law Sem 1, Yr1 > Legal Systems > Flashcards

Legal Systems Flashcards

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1
Q

Jurisdiction

A

Geographic boundaries where a law operates

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2
Q

Our jurisdiction

A

England and Wales

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3
Q

GB

A

England
Scotland
Wales

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4
Q

UK

A

Scotland
Wales
England
Northern Ireland

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5
Q

British Isles

A

Scotland
England
Wales
Northern Ireland
R of Ireland

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6
Q

Statute

A

Law created by government and acted by government

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7
Q

Every statute has

A

Extent (provision)
Short title

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8
Q

What are the 3 pillars of the legal system

A

Legal method (all the ways the law works)
Institutions (organisations and agencies that administer the law, e.g. Parliament, courts, etc)
Personnel (dif roles within system, e.g. judges, barristers, police, etc)

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9
Q

What law system do we have

A

Common law - combines legislation passed by Parliament with the creation of precedents through case law.

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10
Q

What does the law enable in terms of human behaviour

A

To act with certainty and consistency

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11
Q

What forms of relative is the law

A

Culturally and temporally

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12
Q

Civil Law

A

Regulates interactions between individuals

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13
Q

Why law exists

A

Without humans would not behave in a way that maximises society’s potential

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14
Q

Evolution of law

A

Problem – triggers a new for a change in the law
New law – introduced to deal with the problem
Courts – interpret the law and work out how it applies
New problems – emerge as gaps in the law are identified

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15
Q

Law constantly changes to increase application satisfaction to what societal changes

A

Technology evolves
Campaigns
Media coverage highlighting issues
Unexpected events
Sometimes things change or just the way we look at/think about them

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16
Q

Example of reactive law

A

Voyeurism wasn’t new but gained momentum as an issue due to media coverage of calls by victims of up skirting for new law, which was the impetus for change and the creation of a law

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17
Q

Example of proactive law

A

Technology and other new developments drive the need for new law; there was no need for any law on driverless cars until the technology existed to make that possible

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18
Q

Common law

A

Adversarial system
Not codified
Judicial precedents are binding
Main source is judicial precedents or case law
Judges make rulings, set a precedent, and moderate between the conflicting parties

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19
Q

Civil law

A

Inquisitorial system
Codified set of laws
Judicial precedents are not binding
Statutes and other subsidiary legislations are the main sources
Judge’s role is to establish the facts of the case and apply the applicable code’s provision

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20
Q

Adversarial system

A

2 sides to a dispute, and a judge decides who wins

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21
Q

Inquisitorial system

A

Judge looks for the truth

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22
Q

Private law

A

Dispute between individualsWithin civil justice system
Only individuals concerned are affected
Purpose is to restore the wronged party
Parties are claimant and respondent
Initiated and funded by wronged party
Balance of probabilities

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23
Q

Public law

A

Dispute between state and an individual
Within criminal justice system
Society in general is affected
Purpose is to punish the wrongdoer
Parties are the prosecution and the defendant
Initiated and funded by the State
Beyond reasonable doubt

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24
Q

Consequences of criminal liability

A

Stigma of conviction
Financial penalty
Community penalty
Imprisonment

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25
Q

Consequences of civil liability

A

Restitution
Damages
Specific performance
Prohibitive order

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26
Q

Judges’ role in law-making process

A

Apply and develop the law
Make case law in cases in court
Case law is subordinate to statue law
Changes every day

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27
Q

Parliament role in law-making process

A

Makes statute law
At top of hierarchy
Developed by case law
Introduced/amended infrequently

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28
Q

Anatomy of a statute

A

Short title
Chapter number
Long title
Enacting phase
Divided into parts and sections

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29
Q

How long is a term of Parliament

A

10 months

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30
Q

Why is statute the bare bones of law

A

Needs to be fleshed out with secondary legislation (aka delegated legislation) to fill in detail of the law and its application

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31
Q

Statute empowers Ministers to

A

Make statutory instruments – fill in detail of law and how it is to operate (most common form of secondary legislation)

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32
Q

House of Commons

A

Elected Members of Parliament usually aligned to a particular political party
Party with the majority form a government
Green ribbon

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33
Q

House of Lords

A

A mix of life peers, hereditary peers and peers appointed by virtue of their office (bishops and senior members of the judiciary)
Red ribbon

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34
Q

Legislature

A

Law-making body of the State
Comprised of the House of Commons, the House of Lords and the Monarch

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35
Q

How many MPs from gov are selected to be in PM’s cabinet

A

22

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36
Q

Every Act starts as a

A

Bill

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37
Q

Bill

A

Proposed legislation

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38
Q

Private Bill

A

Affects only a particular organisation or geographic area

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39
Q

Public Bill

A

Affects whole of legislative area
Most Bills are Public Bills

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40
Q

Hybrid Bill

A

Affects general public with significant impact on a particular area giving them a private element

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41
Q

King’s Speech

A

Where government’s legislative agenda for each Parliamentary session is set out at the State Opening of Parliament

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42
Q

Private Members’ Bill

A

Type of public bill that can be introduced by either members of the House of Commons or House of Lords who are not Ministers

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43
Q

3 ways of introducing a PMB

A

Ballot
Ten-minute rule
Presentation

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44
Q

Ballot

A

Offers the best chance of success for private members who wish to introduce legislation
Literally a lottery
Random draw for 20 opportunities to introduce legislation
In practice, only the first seven or eight MPs drawn from the ballot are guaranteed time to debate their Bill

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45
Q

Ten-minute rule

A

Allows an MP to propose legislation other than by being drawn in the ballot
MP must be first through the door of the Public Bills Office on Tuesday or Wednesday at least 15 days before the Bill is to be read
Bills introduced in this way are not debated
MP has 10 minutes to speak and the Bill will either go ahead or be blocked by any MP who wishes to oppose it
Rarely a successful way of introducing new law and is often used to raise awareness of the issue

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46
Q

Presentation

A

Allows any MP to present a Bill on a Friday if there is time after the Ballot Bills are discussed
No debate or discussion
The Bill is just put before the House
They are rarely successful

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47
Q

General passage of a BIll in both Houses

A

First reading
Second reading
Committee stage
Report stage
Third reading
Royal Assent

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48
Q

Consideration of Amendments of a Bill

A

Amendments introduced in the House of Lords can be altered but Bill will then finds its way back to HoL
Called the ‘ping-pong’ process as the Bill passes backwards and forwards between the 2 Houses until agreement is reached

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49
Q

Filibustering

A

Political procedure in which one or more members of a legislative body prolong debate on proposed legislation so as to delay or entirely prevent a decision

50
Q

Appeal Courts

A

Higher hierarchy than first-instance courts
About points of law
Hear cases once a first instance hearing has been concluded
Don’t, in general, re-hear the evidence as the facts of the case have been determined by the first instance court
Instead, hear points of appeal based upon the interpretation of the law and its application to the facts that have been established earlier in proceeding

51
Q

First-instance Courts

A

Focus on establishing the facts
Do this by hearing evidence presented on behalf of both parties to proceedings with the objective of determining whether the claimant has established their claim on the balance of probabilities or whether the prosecution has proved their case beyond reasonable doubt

52
Q

First-instance Courts for civil

A

Claimants arriving at County Court or High Court to commence proceedings

53
Q

First-instance Courts for criminal

A

Defendants attending magistrates’ court or Crown Court

54
Q

Who can be a magistrate

A

Anyone
Does not need legal background/training to become one
Are not legally qualified because they are making decisions about facts
Have a clerk that advises them on the legal framework of their decision

55
Q

Magistrates role

A

Hear cases relating to financial matters such as non-payment of council tax as well as matters relating to children following divorce
Sit as a youth court in criminal proceedings
Deal with licensing matters and grant order requested by the police such as search warrants and football banning orders
Are lay people who make determinations of fact

56
Q

Crown Court

A

First instance court for extreme criminal cases, e.g. murders, rapists, serious violence, terrorism, etc
More serious criminal cases are heard here as the Crown Court has greater sentencing powers than Magistrates’ court
Trial is heard before a judge and a jury

57
Q

County Court

A

Cases heard by Circuit Judges or District Judges depending on the complexity and value of the case
Workload of civil courts is constant problem, which is managed by the allocation of cases based upon their value
Up to £10k – small claims track
£10-25k – fast track
£25k+ - multi track
Claims over £100k start in High Court and will be allocated to specialist division
Applicable to £50k+ personal injury cases

58
Q

High Court

A

Both a first instance court (for complex, high value or specialist cases) and an appeal court
3 divisions
Deals with civil cases that are too complex or high-value to start in the County Court

59
Q

High Court divisions

A

Family
Chancery
King’s Bench Division

60
Q

Family Court

A

First instance court for most cases with the Family Division of the High Court
Mostly exercising appellate jurisdiction (reversing decisions) but also acting as a court of first instance for international child abduction cases due to the complex jurisdictional issues involved

61
Q

Business and property Courts

A

Based in the Rolls Building which is the largest specialist centre for financial and business litigation in the world
Falls within the Chancery Division but also covers some of the and Kings Bench jurisdiction
Deals with complex commercial disputes and has specialist courts within it to deal with matter such as intellectual property, insolvency, revenue, trusts and probate, competition law

62
Q

What do Appeal Courts question

A

Application of law in trial
Procedural flaws

63
Q

Divisions of Appeal Courts

A

Civil
Criminal

64
Q

Civil Courts of Appeal

A

Hears appeals from all three divisions of the High Court, the county court and the family court
Also hears appeals from certain appeal tribunals or upper tribunals
Does everything but criminal cases

65
Q

Criminal Courts of Appeal

A

Hears appeals from Crown Court against sentence and/or conviction
Also deals with applications made by the Attorney-General where there is concern that a person’s sentence was too lenient

66
Q

Supreme Court

A

Highest court in England and Wales
Hears appeal from the Court of Appeal on points of public importance
It’s judgments are followed by all other courts
Need permission to put an appeal here
Only hear really significant points of interpretation
Are collection of best lawyers

67
Q

Appeals numbers heard by CoA against SC

A

Courts of Appeal hear hundreds of appeals a year
Supreme Court only about 50

68
Q

Important to know about ‘V’ use

A

Private
- Davies V Johnson
- V stands for ‘and’

Public
- R V Davies
- R stands for the Crown
- V stands for against

69
Q

Case citation based on 3 things as of 2001

A

The year the case was heard
A code for the court in which it was heard
The sequence number in that court that year that it was heard (e.g. first or last)

70
Q

What happens to every word a judge says

A

Written down
Published
Is now a source of law

71
Q

Case citations

A

All appeal cases (also called reported cases or authorities) has a unique case citation
Means that everyone is clear about what case is being used in court

72
Q

What is alternative dispute resolution

A

Settling legal disputes outside the courtroom
Burden of proof is on claimant; is your job to balance the probabilities
Respondent (other party) needs to rebut evidence to not be found liable for claims (not about truth, but about proof)

73
Q

What are the 4 types of legal procedures (in order or least to most control to the parties)

A

Negotiation
Mediation
Arbitration
Litigation

74
Q

Order of courts

A

First instance courts (county or high court)
Appeal courts (supreme or court of appeal)

75
Q

Allocation of cases in county courts based on their value

A

Up to £10k – small claims track
£10-25k – fast track
£25k+ - multi track
Claims over £100k start in High Court and will be allocated to specialist division (also applicable to personal injury claims over £50k)

76
Q

3 divisions of high court

A

Family
Chancery
King’s Bench Division

77
Q

Woolf Report 1999
Issue w civil justice system

A

Cost of civil justice was too high with cost of bringing in a case exceeding its value in 40% of cases
Process so complex that lawyers were needed
System was slow
Tactical strategies used to disadvantage weaker litigants
Too great emphasis on oral evidence
Led to new Civil Procedural Rules

78
Q

Jackson review 2010
Addressing cost of civil litigation

A

Scale of costs in civil justice cases were still not appropriate
Cost should be proportionate to the value of the claim
Cost should not deter a claimant from bringing a case
Parties were not complying with pre-action protocols
System was too tolerant of delays

79
Q

Briggs review 2016
Structural changes that could reduce cost of litigation

A

Was still inadequate access to justice caused by the scale of the cost of bringing a case and the risk of costs being awarded
Procedural formality and ‘lawyerish’ behaviour makes litigation without a lawyer impractical
Unrepresented party was intimidated by represented party
Cheaper alternative
Settle disputes before stage 3 (without court)
Are not legally qualified people as litigants therefore will be cheaper
Avoids intimidation of legal representation against unrepresented parties

80
Q

More issues

A

Civil justice remains expensive for the State and for the individual
A costly process impacts most on those who cannot afford it.
The complexity of the system means that litigants in person are disadvantaged.
The availability of legal aid is both too limited but can also be too expansive in relation to unnecessary representation.
Access to justice is still, despite extensive reform, dependant on wealth.
The system is still overloaded and overworked.
There are still issues with vexatious litigants.
Once a civil restraint order is issued, a vexatious litigant cannot receive legal aid and will not be permitted to commence legal proceedings without permission from the High Court

81
Q

Criminal justice order

A

Police
CPS
Courts
Probation service and prisons

82
Q

What is blackstone’s ratio

A

“[B]etter that ten guilty persons escape than that one innocent suffer”

83
Q

What is the adversarial deficit

A

All the resources and expertise lie with organs of the state which places the defendant at a significant disadvantage
So, the criminal justice system is built around processes that aim to redress the balance

84
Q

Disadvantages the defendant may encounter

A

Legal representation
Access to evidence
Expert witnesses
Negotiation power
Understanding of the legal system
Psychological pressure
Pretrial detention
Public perception

85
Q

Least to most serious criminal cases

A

Summary offences
Either way offences
Indictable offences

86
Q

Juries Act 1974

A

Enlists rules jurors must follow, including not to research outside courtroom, to not discuss deliberations, etc

87
Q

Why does the jury do not give any reasons for their decision, nor do they have to justify their verdict

A

Protects them from pressure to explain their decision
Also means that it is never possible to determine how the verdict was reached unless one of the jurors themselves discloses this information to the judge, but the courts have shown themselves unwilling to entertain discussions about how a decision was reached

88
Q

For jury secrecy

A

Need for jurors to have open and frank discussions in the jury room without fear of future scrutiny or exposure of their views
Are free to make unpopular decisions
Could jeopardise the safety of jurors if their deliberations were recorded and published
Jury decisions would be more vulnerable to appeal if their deliberations were available for scrutiny and so justice would be less final
If deliberations were published, jurors would feel pressured to explain their reason
Risk that jurors will acquit defendants that they would like to convict because it is a way to avoid having their reasoning dissected

89
Q

Against jury secrecy

A

If jurors are not accountable, they can disregard the evidence and reach decisions for reasons that are nothing to do with the law or the facts of the case
Awareness of scrutiny would ensure that jurors did not behave improperly
Can be a shield for unfairness, bias and prejudice
Secrecy precludes accountability and there is transparency in other areas of the judicial system
Defendants should be able to understand why they were convicted

90
Q

What is the Doctrine of Precedent

A

It means that courts are bound to follow the decisions of higher courts in similar cases to ensure consistency and predictability in the law

91
Q

Binding precedent

A

Must be followed by lower courts within the same jurisdiction

92
Q

Persuasive precedent

A

May influence a court’s decision but is not mandatory to follow; this can come from decisions made in other jurisdictions or lower courts

93
Q

Ratio decidendi

A

This refers to the legal principle or rule that is the basis for a court’s decision and is binding in future cases

94
Q

Obiter dicta

A

Comments made by a judge that are not essential to the decision and are not binding, but may provide guidance

95
Q

Stare decisis

A

Stand by things decided
The principle of law that says that the courts should apply precedents
Once a legal principle has been established (precedent), it should be applied in all future cases with similar fact

96
Q

Precedent

A

The legal rule itself

97
Q

What is the court bound by

A

Court structure
Material facts
Ratio deidendi

98
Q

Limitation Act 1960

A

Provides timescales within which action may be taken for breaches of the law
General claims for breach of contract: 6 years
Tort claims (e.g., negligence): 6 years
Personal injury claims: 3 years from the date of the injury or the date the claimant became aware of the injury
Claims for recovery of land: 12 years

99
Q

Conflicting CoA decisions

A

If today’s Court of Appeal is presented by two previous Court of Appeal decisions which deal with the same point of law but are inconsistent with each other, it can choose which one to follow

100
Q

Inconsistent Supreme Court decisions

A

If there is a previous Court of Appeal decision that has been superseded by a contradictory Supreme Court decision, today’s Court of Appeal does not have to follow the Court of Appeal decision but instead applies the Supreme Court approach

101
Q

Per incuriam

A

This means that the previous decision was made with ‘lack of care’ as it did not consider a previous case that it should have considered, and which would have made a difference to the outcome
In such situations, today’s Court of Appeal does not have to follow the decision

102
Q

Distinguishing/Drawing a distinction

A

It is far more usual for an earlier precedent to be avoided rather than altered and this is done by identifying the material facts of the case and establishing that they are not sufficiently similar to the previous case
If you want to avoid having to apply a previous case of a court at the same or a higher level, you need to distinguish your case by showing that it is different

103
Q

Analogy/Arguing an analogy

A

If you want the precedent to apply to your case, you will argue that the facts are similar so the previous law should apply

104
Q

Basic law of precedent

A

If the facts are the same or similar, you are bound by precedent. If the facts can be distinguished, you are free from precedent

105
Q

Executive

A

Sets legislative priorities

106
Q

Legislature

A

Creates the law

107
Q

Judiciary

A

Applies the law

108
Q

3 canons of statutory interpretation

A

Literal rule
Golden rule
Mischief rule

109
Q

Literal rule

A

Parliament meant for the words to have their literal meaning

110
Q

Golden rule

A

Addresses ambiguity
Parliament would want to avoid ambiguity and absurdity

111
Q

Mischief rule

A

Parliament would want to the objective of the Act to be achieved
Use if not ambiguity but literal meaning would defeat the purpose of the law

112
Q

1976 Abortion Act

A

Illegal for anyone but registered medical practitioner to carry out abortion
Was intended to avoid backstreet abortions not nurses carrying them out
Literal rule

113
Q

Rules of language

A

Ejusdem generis
Expressio unius
Noscitur a sociis

114
Q

Ejusdem generis

A

Of the same kind
When general words follow two or more specific words, the general words should only include things of the same type

115
Q

Expressio unius

A

The expression of one thing is the exclusion of another
When statute includes a finite list of items, the category of things covered is closed

116
Q

Noscitur a sociis

A

A word is known by the company it keeps
If the meaning of a word on a list is unclear, it should be interpreted by reference to the other words on the list

117
Q

IRAC problem-solving technique

A

Issue
Rule
Application
Conclusion

118
Q

Issue

A

Question that can only be answered by using the law
Always refers to the events that have happened

119
Q

Rule

A

The law that is needed to answer the question

120
Q

Application

A

Bringing the law and facts together
It is the part of problem solving that shows understanding
Every slice of law needs to be linked to specific facts

121
Q

Conclusion

A

The answer to the question
There are only ever three options
YES
NO
MAYBE

122
Q
A

Law Sem 1, Yr1 (4 decks)

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