Michaela Parkin Flashcards
Types of law with descriptions and examples
- Statute Law:
Acts of Parliament. Superior law that cannot be challenged by the courts (save the European Courts where an Act may conflict with European legislation). An Act must go through the full process of debate, be approved by both houses of Parliament and receive the Royal assent. - Common Law:
Laws made by judges from judicial precedent. E.g murder is an offence under common law, no statute required.
Hunting Act 2004 example
House of Lords did not approve, the speaker at the time invoked the Parliament Acts 1911 and 1949 allowing the commons the overrule Lords as no agreement could be reached
R v R 1991 example
1958 Sexual Offences Act did not eliminate previous judicial precedent that if married then cannot be rape R was found guilty of attempted rape of his wife and appealed. Both court of appeal and House of Lords upheld the rape conviction -> common law changed. In 2000s Sexual Offences Act amended so also in statute law.
Criminal Court System
- Magistrates Courts: minor crimes, either-way cases or if the case is indictable-only, the magistrates’ court will generally decide whether to grant bail, consider other legal issues such as reporting restrictions, and then pass the case on to the Crown Court
- Crown Court: (indictable crimes such as rape, murder, robbery)
It deals with serious criminal cases which include:
Cases sent for trial by magistrates’ courts because the offences are ‘indictable only’ (i.e. those which can only be heard by the Crown Court), ‘either way’ offences (which can be heard in a magistrates’ court, but can also be sent to the Crown Court if the defendant chooses a jury trial), defendants convicted in magistrates’ courts, but sent to the Crown Court for sentencing due to the seriousness of the offence, appeals against decisions of magistrates’ courts. - High court : divisional court of the Queen’s bench division.
- Court of Appeal: the highest court within the Senior Courts of England and Wales, and deals only with appeals from other courts or tribunals.
- Supreme Court: the court of last resort and the highest appellate court in the United Kingdom, although the High Court of Justiciary remains the court of last resort for criminal law in Scotland. The Supreme Court also has jurisdiction to resolve disputes relating to devolution in the United Kingdom and concerning the legal powers of the three devolved governments (in Scotland, Wales and Northern Ireland) or laws made by the devolved legislatures.
Civil Court System
- County court (including small claims court): only below £25,000 sue. Unlike criminal cases – in which the state prosecutes an individual – civil court cases arise where an individual or a business believes their rights have been infringed.
- High court (Queen’s bench division, Chancery division, family division):
- Court of appeal (civil division)
- Supreme court
Criminal law description
- State v Individual
- Regina (Queen) v Defendant (accused)
purpose to punish - Burden of proof is on the Crown prosecution service
- Standard of proof: beyond a reasonable doubt meaning that the defendant doesn’t have to prove they didn’t do anything, crown prosecution service has to prove that they did
Civil law description
- Individual v Individual
- Claimant v Defendant
purpose to compensate - Burden of proof is on the claimant
- Standard of proof: on a balance of probabilities meaning the judge will decide who has the better evidence, both have to make their own cases as to whether something happened or not.
Jury
18-75 from the electoral register, 12 members, decide questions of fact and reach a verdict. More representative, more people to convince can be positive, judged by peers.
Magistrates
Undergo training, paid expenses only, not legally trained, decide the facts, sentence or commit to crown court. Limited sentencing powers max 6 months for a single offence (12 months in total) max £5000 in fines.
Clerks to the justices who are legally trained advise the magistrates.
Judges
Practicing barrister or solicitor of at least 5 years. Appointed by judicial appointments commission. Supervises the conduct of the trial/case. Interpret and apply statute and common law.
- Civil: questions of fact and law, reaches a verdict and awards a remedy. More powerful in these courts as can decide whether guilty or not.
- Criminal: sums of the evidence to the jury, directs them as to the law and passes a sentence
Who are superior and inferior judges?
Superior:
- supreme court
- Lord justices of appeal that sit in the court of appeal
- high court judges
Inferior:
- circuit judges, full time and sit in the county or crown courts
- district judges sit in the county or magistrates courts
- recorders are part time judges that usually sit in the county court and crown court
What are barristers and solicitors?
- Barristers: advocates, legal consultants, junior barristers & Q.C, self-employed but share chambers with other barristers, ‘hired gun’ and private access. Will get documentation from solicitors to use on day of trial, little relationship with client.
- Solicitors: mainly advise clients, draft contracts, wills etc. Can represent clients in lower courts, majority of work non-contentious, judicial opportunities.
What is tort law
Essentially the interference of land, person, belongings and reputation. Tort is a civil wrong which can be sued for (a lot is covered by insurance).
‘ Tortious liability arises from breach of duty imposed by law; and its breach is resourced by an action for unliquidated damages’.
What are:
- breach
- damages
- tortfeasor
- tortious
Breach: broken ones obligation
Damages: compensation/money
Tortfeasor: one who commits a tort
Tortious: having the nature of a tort; wrongful act
Contract Law and Tort Law
Contract: contractual relationship, choice
Tort: duty fixed by law
individual v individual
- burden of proof on claimant
- standard of proof: on a balance of probabilities
(If known guilty, will usually settle out of court to save money and reputation)
Criminal Law and Tort Law
Victim in both cases Criminal: state v defendant (individual) Tort: Victim v defendant (individual v individual) - burden of proof on c.p.s - beyond reasonable doubt
Tort damages and time limits
The aim of tort damages:
So far as possible to place the injured party into the position (financially) they would be if the tort had never been committed
- the common law remedy, as of right, to the successful party
overall claim = time off work, taxis etc
Time limits to bring claims for damages:
- 3 years for personal injuries
- 6 years for all other torts
- claims for equitable remedies have no formal time limits by delay defeats equity, these are alternatives to money and are down to the judges discretion
What is negligence and who could sue pre-20th century?
Failure to exercise reasonable care, thereby causing injury to others or damage to property
Pre-20th century could only sure someone for harm if there existed a pre-defined relationship or contract (so lots of people suffering injuries could not sue).
Donoghue v Stevenson 1932 example and significance
Landmark case which created the modern concept of negligence, by setting out general principles whereby one person would owe a duty of care to another. Lost at county, high and appeal courts. Supreme court (then the house of Lords) ruled in Donoghue’s favour. 3-2 decision that Stevenson owed Donoghue a duty of care. Lord Atkin used the neighbour principle.
What is the neighbour principle?
The principle that one must take reasonable care to avoid acts or omissions which you can reasonably forsee would be likely to injure your neighbour.
Neighbours: persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.
What must a claimant prove in order to establish negligence?
- the defendant owed a duty of care to the claimant
- the defendant breached that duty of care by failure to conform to the required standard of conduct
- the defendant’s breach of duty caused the harm, injury or damage to the claimant
What is the three-stage test?
Established in Caparo Industries v Dickman (1990). Important for novel new ways of causing industry. Under Donoghue v Stevenson, Dickman would have owed Caparo a duty of care but the precedent couldn’t be set that every accountant has a duty of care to investors as they don’t produce their figures for them.
- Forseeability: was the danger or injury to the claimant forseeablr
- Proximity: was the relationship between the claimant and the defendant sufficiently proximate?
- Is it just and reasonable to impose a duty of care?
Forseeability of harm example
Home Office v Dorset Yacht Club (1970)
Court of appeal held that the home office should not be liable for the damages on grounds of public policy, and that the work of prison authorities should not be hampered. Prisoners who have escaped or been released on parole have caused damage but prisons were not responsible. However, the house of lords held that the home office was liable as the neighbour principle was applied with emphasis on forseeability.
Proximity example
Bourhill v Young (1943)
To find a duty of care the claimant must be forseeable or proximate to the scene of the accident. House of Lords denied that Bourhill had been close enough or forseeable to Mr Young. ‘Unable to see how he would reasonably anticipate that his collision with a car would cause noise that would result in physical injury by shock to a person located where Bourhill was’ -> no duty of care