Paper 1 ELS Flashcards
what courts do criminal law use
Supreme court
Court of appeal
Queen’s Bench Divisional court
Crown court
Magistrates’ court
How must criminal cases be proved
beyond all reasonable doubt
What does ‘Stare decisis’ mean?
‘let what has been deciding stand’ the essence of the precedent
what does ‘ratio decidendi’ mean?
‘the reason for deciding’ binding part of the judgement
what does ‘obiter dicta’ mean?
‘sayings by the way’ extra things leading to s final decision
what are the 3 types of precedent?
binding, persuasive, avoiding
what is binding precedent?
must be followed if it is made by a court higher than you
appeal courts generally bind themselves
what is persuasive precedent?
principles could be considered but don’t have to be
anyone can follow anyone
can be from courts in other countries
what is avoiding precedent?
a higher court overrules a decision made by a lower court
court decides that an earlier case is wrong / not fitting
when did the supreme court precedent (practice statement) change?
1966
what was the practice statement 1966?
- supreme court changed their rules of precedent changing from ‘never’ to ‘when it appears right to do so’
court of appeal precedent rules
1 - court can chose between 2 of their previous cases if they are similar
2 - must follow supreme court’s decision if any have been made
3 - where the decision was made per incuriam - by mistake or carelessly, it can be changed
judicial precedent advantages
1 - certainty
2 - consistency and fairness
3 - precision
4 - flexibility
5 - time saving
judicial precedent disvantages
1 - rigidity
2 - complexity
3 - illogical distinctions
4 - slowness of growth
what is a statute?
Acts of parliament passed into law
written document which will become legislation (law)
what is statutory interpretation?
when a judge defines words on page within an act of parliament
what is the literal rule (SI)
judges reading a statute as a plain, ordinary, literal meaning
traditional approach
what is the golden rule? (SI)
used when the literal rule creates absurd results
what is the mischief rule? (SI)
judges filling in the gaps and looking at context to decide whether a law should be changed
rules to consider with mischief rule
1 - what was the common law before?
2 - what was the mischief that the law didn’t provide for?
3 - what was the remedy parliament enacted?
4 - judges should then interpret the act to ensure mischief is solved
examples of internal aid
- long/short title
- preamble (little paragraph introduction to the statute) helps understand parliaments initial intentions
- marginal notes - explaining different sections but don’t always give intentions
What is internal aid?
things to help judges understand what parliament meant when they wrote statues
things from inside the statute written down
What is external aid?
help that can be found outside of a statute
examples of external aid
- previous acts of parliament on the same topic
- historical setting
- earlier case law
- dictionaries of the time
things to consider when giving a caution
Victim’s view.
Any attempt by the offender to offer compensation.
Seriousness of offence.
Have they ever been cautioned before.
some reasons people may not be granted bail
- they would fail to surrender
- would commit another offence
- must be kept in custody for their own or another’s safety
rules applied to bail
- live at particular address
- don’t contact certain people
- hand in passport
- report to police station weekly
what is remand?
if a person is cared with a serious crime, instead of bail, they are put in prison until first hearing
what is CPS and why was it needed?
Crown Prosecution Service - takes over criminal prosecution on behalf of the police
why?
- officers may be too attached to case
- too much variation between police forces
- police officers are not well versed in law
2 criteria to decide if CPS will take a case
1 - if there is sufficient admissible evidence
2 - would prosecution be in public interests? e.g. crime happened too long ago
what are the 3 classification offences?
1 - summary offence
2 - triable-either-way
3 - indictable
explain features of summary offences
- least serious offences e.g. shoplifting under £200
- mostly driving offences
- held in magistrates’ court
- punishments are max 6 months
explain features of triable-either-way offences
- held in magistrates’ court or crown court
- theft, assault causing ABH
- punishments - imprisonment up to 12 month’s or fine
explain features of indictable offences
-most serious e.gg. murder, manslaughter, rape, robbery
- held in crown court
- punishment can be any jail time depending on crime
what is burden of proof?
have to prove that defendant is guilty
where are jury’s used?
crown court - criminal
who cant be a jury?
- people who have been in prison for more that 5 years
- people on bail
- anyone who’s been in jail within the last 10 years
- mental disorders
- lack of capacity e.g. don’t have good English
- deaf people - need a translator and cant interpret tone of voice
how to be excused of jury duty?
- too ill
- disability
- a mother with a young baby
- exams
- pre booked holiday
- business appointment
what is vetting?
checking jury are allowed to be on panel e.g. police and background checks
what are the two examples of challenging the juror?
1 - challenge for array - asking the jury as a whole
2 - challenge for cause - challenging individuals
jury secrecy exceptions
1 - there has been a complete repudiation of their oath (using different methods to reach their decision)
2 - when extraneous material has been introduced to the jury room e.g. calls or news info
jury trials PROS
1 - PUBLIC CONFIDENCE - very old fashioned and people support the use of a jury ‘lamp that shows that freedom lives’
2 - IMPARTIALITY - no one has connection to the case and no one individual is responsible for the decision
3 - JURY EQUIDY - not bound to follow any previous precedent and don’t need to give reasoning for decisions. based on fairness not laws
4 - OPEN JUSTICE - justice is carried out as members of the public are involved in a key role of the case
5 - SECRECY OF THE JURY ROOM - free from pressure as jurors are protected from outside influences. not going to be in danger for their individual decision
jury trials CONS
1 - PERVERSE DECISION - jury can ignore laws they consider unjust - can be seen as unjust
2 - SECRECY - no reasons for decision have to be given so no way of knowing the jury fully understood the case
3 - MEDIA INFLUENCES - high profile cases with lots of coverage could persuade the jury’s decision
4 - FRAUD - fraud cases are sometimes hard to understand and are very ling so unjust decisions may be made to cut things short
5 - LACK OF UNDERSTANDING - one case was tried across the country and in total only 31% understood it fully
6 - RACIAL BIAS - may be prejudice
7 - JURY TAMPERING - jury can be bribed or threatened to persuade others on the jury
8 - HIGH AQUITTAL RATES - 60% of people who plead non-guilty are sentenced
9 - COMPULSORY NATURE - some people may be against the whole system and don’t care about the case so reach a rushed decision
10 - STRAIN - lots of cases could be traumatising with graphic evidence
what must judges have regards to when sentencing?
1 - the punishment of offenders
2 - reduction of crime
3 - protection to public
4 - reform and rehabilitate
5 - making of reparation to person affected by crime
what is retribution?
punishment, criminal law taking revenge on offender, punishment must be proportionate to crime
what is a tarriff?
level of sentencing
what is deterrence?
punishment to put off future crime from the same person or others
55% of people reoffend withing 2 years of being released from prison
what is general detterence?
giving an individual a harsher punishment than usual to prevent others from offending
what is reformation?
bringing people back to society
favoured for young people
society would be better of physically and financially
what is reparation?
making up for what they have done
e.g. community service, road works
what is denunciation?
court expressing strong disapproval for criminal activity
public condemnation
examples of aggravating factors
- how serious, of its type, was the offence?
- previous convictions for similar offences
- if they were on bail when it happened
- discriminatory aspects
- hostility to disabled or sexual orientation
mitigating factors
- cooperate with police
- mental illness
- physical illness
- clean background
- evidence of genuine remorse
- fines - financial situation
what are the different stages of a guilty plea?
at first opportunity - 1/3 deducted
after first opportunity, before trial - 1/4 deducted
trial has started - 1/10 deducted
What are the 3 types of custodial sentences?
1 - mandatory (murder sentence)
2 - discretionary (anything other than murder)
3 - fixed term sentence (set number of months, only behind bars for half)
4 - suspended prison sentence (punishment not enforces unless a further crime is committed)
give 4 examples of community orders
1 - unpaid work requirement
2 - prohibited activity requirement
3 - curfew requirement
4 - supervision requirement
what are the 2 types of discharge?
1 - absolute discharge
2 - conditional discharge
Where are criminal cases held?
Magistrates court or crown court
How must criminal cases be proved?
beyond all reasonable doubt
where are civil cases held?
high court
county court
how must civil cases be proved?
on balance of probabilities
what is custom law?
a rule of behaviour which develops a community without being deliberately invented
- historically important
what is common law?
unwritten laws based on legal precedent established by the courts e.g. murder
- created by judges
- still important today
what is statute law?
creating new major laws, made by parliament
helpful for new laws like technology
what is rule of law?
a durable system of laws, institutions, norms, and community commitment
why is the rule of law important?
safeguards democracy and keeps democracy accountable
nobody can exert power in an unchecked way
Dicey’s view on the rule of law
1 - equality becomes before the law
2 - wealth gives better access to the justice system
3 - absence of arbitrary power is evidence of rule of law
4 - supremacy of law
5 - conflicts with parliament supremacy
Von Hayek views on rule of law
1 - agrees arbitrary power should be absent
2 - rule of law had become weaker
3 - state involved in regulating economy
Joseph Raz views on the rule of law?
1 - believed the rule of law controlled discretion rather than preventing it
2 - law must be capable of guiding individual behaviour
where do we see the rule of law today?
law making
legal system
substantive law (protects people)
what is judicial precedent?
following the decisions of previous cases
3 things for law to work successfully
1 - a settled court structure
2 - a ratio decendi
3 - accurate record of the decisions made by superior courts
what is ratio decendi?
reason for deciding
