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Law paper 1 > Paper 1 ELS > Flashcards

Paper 1 ELS Flashcards

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1
Q

what courts do criminal law use

A

Supreme court
Court of appeal
Queen’s Bench Divisional court
Crown court
Magistrates’ court

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2
Q

How must criminal cases be proved

A

beyond all reasonable doubt

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3
Q

What does ‘Stare decisis’ mean?

A

‘let what has been deciding stand’ the essence of the precedent

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4
Q

what does ‘ratio decidendi’ mean?

A

‘the reason for deciding’ binding part of the judgement

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5
Q

what does ‘obiter dicta’ mean?

A

‘sayings by the way’ extra things leading to s final decision

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6
Q

what are the 3 types of precedent?

A

binding, persuasive, avoiding

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7
Q

what is binding precedent?

A

must be followed if it is made by a court higher than you
appeal courts generally bind themselves

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8
Q

what is persuasive precedent?

A

principles could be considered but don’t have to be
anyone can follow anyone
can be from courts in other countries

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9
Q

what is avoiding precedent?

A

a higher court overrules a decision made by a lower court
court decides that an earlier case is wrong / not fitting

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10
Q

when did the supreme court precedent (practice statement) change?

A

1966

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11
Q

what was the practice statement 1966?

A
  • supreme court changed their rules of precedent changing from ‘never’ to ‘when it appears right to do so’
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12
Q

court of appeal precedent rules

A

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

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13
Q

judicial precedent advantages

A

1 - certainty
2 - consistency and fairness
3 - precision
4 - flexibility
5 - time saving

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14
Q

judicial precedent disvantages

A

1 - rigidity
2 - complexity
3 - illogical distinctions
4 - slowness of growth

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15
Q

what is a statute?

A

Acts of parliament passed into law
written document which will become legislation (law)

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16
Q

what is statutory interpretation?

A

when a judge defines words on page within an act of parliament

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17
Q

what is the literal rule (SI)

A

judges reading a statute as a plain, ordinary, literal meaning
traditional approach

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18
Q

what is the golden rule? (SI)

A

used when the literal rule creates absurd results

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19
Q

what is the mischief rule? (SI)

A

judges filling in the gaps and looking at context to decide whether a law should be changed

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20
Q

rules to consider with mischief rule

A

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

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21
Q

examples of internal aid

A
  • 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
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22
Q

What is internal aid?

A

things to help judges understand what parliament meant when they wrote statues
things from inside the statute written down

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23
Q

What is external aid?

A

help that can be found outside of a statute

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24
Q

examples of external aid

A
  • previous acts of parliament on the same topic
  • historical setting
  • earlier case law
  • dictionaries of the time
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25
Q

things to consider when giving a caution

A

Victim’s view.
Any attempt by the offender to offer compensation.
Seriousness of offence.
Have they ever been cautioned before.

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26
Q

some reasons people may not be granted bail

A
  • they would fail to surrender
  • would commit another offence
  • must be kept in custody for their own or another’s safety
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27
Q

rules applied to bail

A
  • live at particular address
  • don’t contact certain people
  • hand in passport
  • report to police station weekly
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28
Q

what is remand?

A

if a person is cared with a serious crime, instead of bail, they are put in prison until first hearing

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29
Q

what is CPS and why was it needed?

A

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

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30
Q

2 criteria to decide if CPS will take a case

A

1 - if there is sufficient admissible evidence
2 - would prosecution be in public interests? e.g. crime happened too long ago

31
Q

what are the 3 classification offences?

A

1 - summary offence
2 - triable-either-way
3 - indictable

32
Q

explain features of summary offences

A
  • least serious offences e.g. shoplifting under £200
  • mostly driving offences
  • held in magistrates’ court
  • punishments are max 6 months
33
Q

explain features of triable-either-way offences

A
  • held in magistrates’ court or crown court
  • theft, assault causing ABH
  • punishments - imprisonment up to 12 month’s or fine
34
Q

explain features of indictable offences

A

-most serious e.gg. murder, manslaughter, rape, robbery
- held in crown court
- punishment can be any jail time depending on crime

35
Q

what is burden of proof?

A

have to prove that defendant is guilty

36
Q

where are jury’s used?

A

crown court - criminal

37
Q

who cant be a jury?

A
  • 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
38
Q

how to be excused of jury duty?

A
  • too ill
  • disability
  • a mother with a young baby
  • exams
  • pre booked holiday
  • business appointment
39
Q

what is vetting?

A

checking jury are allowed to be on panel e.g. police and background checks

40
Q

what are the two examples of challenging the juror?

A

1 - challenge for array - asking the jury as a whole
2 - challenge for cause - challenging individuals

41
Q

jury secrecy exceptions

A

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

42
Q

jury trials PROS

A

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

43
Q

jury trials CONS

A

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

44
Q

what must judges have regards to when sentencing?

A

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

45
Q

what is retribution?

A

punishment, criminal law taking revenge on offender, punishment must be proportionate to crime

46
Q

what is a tarriff?

A

level of sentencing

47
Q

what is deterrence?

A

punishment to put off future crime from the same person or others
55% of people reoffend withing 2 years of being released from prison

48
Q

what is general detterence?

A

giving an individual a harsher punishment than usual to prevent others from offending

49
Q

what is reformation?

A

bringing people back to society
favoured for young people
society would be better of physically and financially

50
Q

what is reparation?

A

making up for what they have done
e.g. community service, road works

51
Q

what is denunciation?

A

court expressing strong disapproval for criminal activity
public condemnation

52
Q

examples of aggravating factors

A
  • 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
53
Q

mitigating factors

A
  • cooperate with police
  • mental illness
  • physical illness
  • clean background
  • evidence of genuine remorse
  • fines - financial situation
54
Q

what are the different stages of a guilty plea?

A

at first opportunity - 1/3 deducted
after first opportunity, before trial - 1/4 deducted
trial has started - 1/10 deducted

55
Q

What are the 3 types of custodial sentences?

A

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)

56
Q

give 4 examples of community orders

A

1 - unpaid work requirement
2 - prohibited activity requirement
3 - curfew requirement
4 - supervision requirement

57
Q

what are the 2 types of discharge?

A

1 - absolute discharge
2 - conditional discharge

58
Q

Where are criminal cases held?

A

Magistrates court or crown court

59
Q

How must criminal cases be proved?

A

beyond all reasonable doubt

60
Q

where are civil cases held?

A

high court
county court

61
Q

how must civil cases be proved?

A

on balance of probabilities

62
Q

what is custom law?

A

a rule of behaviour which develops a community without being deliberately invented
- historically important

63
Q

what is common law?

A

unwritten laws based on legal precedent established by the courts e.g. murder
- created by judges
- still important today

64
Q

what is statute law?

A

creating new major laws, made by parliament
helpful for new laws like technology

65
Q

what is rule of law?

A

a durable system of laws, institutions, norms, and community commitment

66
Q

why is the rule of law important?

A

safeguards democracy and keeps democracy accountable
nobody can exert power in an unchecked way

67
Q

Dicey’s view on the rule of law

A

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

68
Q

Von Hayek views on rule of law

A

1 - agrees arbitrary power should be absent
2 - rule of law had become weaker
3 - state involved in regulating economy

69
Q

Joseph Raz views on the rule of law?

A

1 - believed the rule of law controlled discretion rather than preventing it
2 - law must be capable of guiding individual behaviour

70
Q

where do we see the rule of law today?

A

law making
legal system
substantive law (protects people)

71
Q

what is judicial precedent?

A

following the decisions of previous cases

72
Q

3 things for law to work successfully

A

1 - a settled court structure
2 - a ratio decendi
3 - accurate record of the decisions made by superior courts

73
Q

what is ratio decendi?

A

reason for deciding

Law paper 1 (8 decks)

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