paper 1 law - english legal system Flashcards
Explain legal rules
Rules are imposed and enforced by the state. Courts apply and enforce these. Law can change instantly, we must obey them, they can be enforced by the courts, they are obligatory and apply to everyone.
Describe the difference between criminal and civil law
The purpose of criminal is to maintain law and order and to protect society. The case starts with the prosecution (CPS) which is the prosecutor. They are heard in the magistrates or crown court and the burden of proof is beyond reasonable doubt. In the magistrates court the magistrate decide guilt, in the crown court its a judge and jury. It is guilt or not guilt and individuals can be given prison sentences, fines, community orders on bans.
The purpose of civil courts is to uphold rights of individuals ands starts with the individual whose rights were affected - the claimant. They are heard in the county or high court and burden of proof is on the balance of probabilities. They are heard by a judge and its decided as liable or not liable. They can give damages, injunction or specific performance of contract.
Describe sources of law
Custom - is a rule of behaviour developed in community without being deliberately invented. Its historically important in the basis of our common law.
Common - case/ judge made law. Made by judges and are unwritten e.g. murder.
Statute - act of parliament. Creates new laws or brings together all existing law in one area.
European union law - treaties automatically get made law in member states, individuals can rely on it and apply it directly. Regulations are ‘binding and directly applicable in all member states’ making them law so its uniform across states. Directives are the main way of harmonisation of laws across member states. member has to make own law to bring in directives.
Explain and evaluate the literal rule
Courts give words their plain, ordinary or literal meaning even if the result may not be sensible. Lord Esher 1892 expressed this idea. It is used as a starting point for any legislation. ‘Whiteley v Chappell’ not guilty of identity theft as dead people aren’t entitled to vote’ - shows this can lead to absurd rulings or harsh rulings in ‘London & North Eastern Railway Co v Berriman’ (widow didn’t get comp when the husband died, as he wasn’t literally relaying or repairing). Advantage - follows words that parliament has used so applies them exactly as they are written, also makes the law more certain as it’s interpreted as it is written so it easier for people to know what law is and how the judges will apply it.
Disadvantage - words can have more than one meaning so the act can be unclear so following words directly can lead to unjust decisions, also it assumes that acts are all perfectly drafted which they often aren’t.
Explain and evaluate the golden rule
This is a modification of the literal rule and is there to avoid absurd results from literal interpretations. There are two views on how it should be used, narrow (Lord Reid in Jones v DPP) or more wide.
The narrow version means courts can only choose between possible meanings of a word and if there’s only one meaning then it must be taken. ‘Adler v George’ - obstructed in a prohibited place, the law said in the vicinity of but found guilty as it would be absurd that in the vicinity of wouldn’t include in the actual place.
The wider version is where a word has only one meaning, but it could lead to a repugnant situation. These are situations where using a clear meaning would give a result not allowed. This allows courts to modify the words in a statute to avoid this sort of problem. ‘Re Sigworth’ - man murdered his mum who didnt have a will so property etc would go to next of kin (son) so didnt use literal as it would be repugnant for it to go to the murderer.
Advantage - respects the exact words of parliament and allows judges to pick the most sensible meaning so provides sensible decisions in cases where the literal rule would lead to a repugnant one.
Disadvantage - very limited in its use and is only used on rare occasions and its not possible to predict when courts will use the golden rule.
Explain and evaluate the mischief rule
Gives more discretion than the other two rules. Definition from Heydon’s case 1854. Said four points the court should consider - the court should look at what law was before the act to discover the gap or ‘mischief’ the act intended to cover. Then should interpret the Act to make sure the gap is covered. ‘Smith v Hughes’ - prostitutes weren’t actually on the street but were attracting attention through open windows doors etc so found guilty as the Act aimed to clean up streets and allow lack of solicitation. ‘Royal College of Nursing v DHS’ - even though seocond part of abortion wasnt done by doctor it was still lawful as it prevented the mischief of illegal abortions.
Advantage - promotes the purpose of the law as it allows judges to look back at the gap in the law that the act should have covered. Its also more likely to produce a just result as judges interpret the law in the way parliament wanted it to work.
Disadvantage - risk of judicial law making as judges trying to fill gaps in law with their own views on how the law should remedy the gap, it can also lead to uncertainty in the law as impossible to know when judge will use the rules or what result it may lead to.
Explain and evaluate the purposive approach
Goes beyond the mischief rule as judges are looking to see what they thought Parliament meant to achieve. ‘R v Registrar General, ex parte Smith’ - murdered wanted to find biological mother, not allowed as decided law couldn’t have intended to promote serious crimes.
Advantage - leads to justice in individual cases as its a broad approach which allows law to cover more situations than if the applied words literally. Also allows for developments in law surrounding technology. And avoids absurd situations that could occur if literal rule was used.
Disadvantage - judges refuse to follow clear words of parliament, how do the judges know parliaments intentions. It also allows unelected judges to make laws and can lead to uncertainty where we dont know when judges may use this approach so difficulty for lawyers to advise clients.
Explain judicial precedent
Judicial precedent is where past judges have created law for future judges to follow (case law). We have a doctrine of precedent where we have to follow decisions of previous cases (stare decisive - standing by a decision).
Original precedent - a point of law hasnt been discussed before so the judges decision creates new precedent for future cases.
Binding precedent - facts of a case are similar a judge has to follow a previous decision even if they dont agree with the legal principle.
Persuasive precedent - decision doesn’t need to be followed but may decide to follow a decision from a lower court.
There is a court hieracrchy deciding who has to follow what decision with county following all higher and supreme only following the european courts.
The practice statement 1966 said although the supreme court normally follows their own case decisions, it allows a change if they believe an earlier decision was wrong (R v Shivpuri).
Court of Appeal is bound by its own decsions unless three excpetions as stated in ‘Young’ - conflicting past decisions, a HoL or supreme decision overrules CoA or the decision was made in error.
Ratio decidendi is the reason behind the decision and obiter dicta is evrything else.
Distinguishing is avoiding a previosu decision as facts are different (Balfour v Balfour) and overruling is where a decison says the legal rule in an earlier case is wrong (Pepper v Hart).
Evaluate judicial precedent
Advantages -
certainty as following past decisions so we know law and its application so lawyers can advise on outcomes
consistency and fairness as its just that similar cases have a similar decision
flexibility as allows room for the law to change e.g. the practice statement in the supreme court and distinguishing gives freedom to avoid decisions
time saving as principle already decided so a lengthy litigation process is unliekly
Disadvantages -
rigidity as lower courts have to follow higher courts decision so bad decisions can continue
complexity as lots of case so hard to find the relevant ones also judgements can be long so the ratio decidendi is hard to find
illogical decisions as distinguishing to avoid past decisions can equal hair-splitting so areas of law can be complex and differences between cases can be small and illogical
slowness of growth as judges are aware areas need changing but cant make a decision unless cases come needing a decision
Explain the types of criminal offences
Summary offences are the least serious. Heard in magistrates by a judge and are crimes with damages up to £5000 or theft upto £200.
Triable either way are middle range offences heard in the magistrates by a judge or the crown court by a jury e.g. theft/ assault. If you plead guilty it goes to the magistrates, plead not guilty then crown court.
Indictable is the highest crime and is heard in the crown court by a judge and jury e.g. murder.
Explain the criminal appeal routes for the magistrates court
This is an automatic right to appeal. The defence can appeal to the crown court if they pled guilty in the magistrates and can only appeal against sentence. If they pled not guilty and are convicted they can appeal conviction and sentence. In the crown court the case is fully reheard by 2 magistrates and a judge - they can get the same decision, reverse it or vary it and find them guilty of a lesser offence. If the appeal was against a sentence they can confirm, reduce or increase it. If a point of law needs to be decided they can go further to a ‘case stated’ appeal to the administrative court. A case stated appeal can be used by prosecution and defence from the magistrate court or after the crown court. Defence uses it against conviction and prosecution against acquittal so if they think its was a wrong decision and there was a mistake on the law. The previous court states the case and sets out their findings of fact and decision and the appeal is argued on the basis of law on those facts. The case can be heard in the Kings Bench Divisional Court (KBDC) who can confirm, reverse or vary the decision. You can go further to the Supreme court if the point of law has public importance of it the point should be considered by the Supreme Court.
Explain the criminal appeal routes for the crown court
The crown court has a judge to decide the point of law and sentence if needed and a jury of 12 to decide guilt. An appeal from the magistrates uses a judge and 2 magistrates. Appeals from the crown court from the defendant can be on conviction or sentence and they need ‘leave to appeal’ for the CoA by the trial judge. They can appeal conviction if think its unsafe so the CoA can dismiss any other appeal. They can quash it, move it to a lesser sentence or dismiss it if they think its safe.
An appeal from the prosecution is against the ruling so a point of law that stops the case against the d so the error in the law doesnt lead to an acquittal. They can appeal the acquittal is theres evidence of jury nobbling so they can get a retrial or if new/ compelling evidence of the acquitted guilt and its in public interest for a retrial (normally only in most serious cases). They can refer to a point of law so if the judge made a mistake explaining the law to the jury or against the sentence if it was too lenient and ask for increase. Possibiity of further appeals to supreme if the case has a point of law on public importance.
What are the roles and powers of magistrates?
Magistrates are unpaid part time judges with no legal qualifications. They try summary or triable wither way offences and if the defendant pleads not guilty they can decide on guilt. If guilty they can decide sentence and the power to imprison for 6 months for one offence or 12 months for two. They can make community orders, fines or conditional and absolute discharges. They are also used in youth, family and appeals (in crown). They can transfer indictable cases to the crown court and are assisted on points of law by a clerk with legal qualifications.
What is the role of juries?
Juries are used in the crown court for not guilty please to decide guilt or not guilt. They are independent decision makers (McKenna) and weigh up the evidence to decide true facts on a case. There is 12 jurors with a maximum majority of 10:2.
Evaluate the role of juries
Advantages -
public confidence as the right to trial of our peers is part of the democratic society and as jurys are very old the public has confidence in its impartiality and fairness.
jury equity is where the jurors arent legal experts so arent bound by precedent or acts so they dont need to give reasons for their verdict (Pontings)
impartiality as jurors arent connected to the case and the random selection should lead to a cross section of society and impartial as should cancel out biases so no one individual is responsible.
Disadvantages -
perverse decisions as theyre able to ignore unjust laws which can lead to convictions in clear cut cases (randle and pottle).
secrecy jurors dont give reasons for their decisions so theres no way to know if understood case and got a decision for the right reasons.
media influence especially in high-profile cases can influence jurys thoughts especially if there were lots on police investigations pre trial (Taylor and Taylor)
