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Public 1 Flashcards

1
Q

Meaning of common law

A
  • Distinguishes case law from statute
  • Distinguishes King’s Court law from rules of equity (Chancery)
  • Supplanted customary law
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2
Q

Role of Judges

A

Consider the evidence and applicable law -> give a judgment
Apply the law to the facts of the case
Make an order for a remedy to the successful party

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3
Q

Stare decisis: Binding precedent

A
  • earlier case (with the same material facts) was decided in a court that binds it
  • relevant part of the case is binding (not just persuasive)
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4
Q

Structure of judgment

A
  1. Summary of facts
  2. Statements of law-
    Binding: Ratio decidendi: reason for decision (legal principle applied to the material facts, can be narrow (confining rule to OG facts) or wide)
    Sometimes so persuasive it influences future decisions: Obiter dicta: dissenting judgments/statements of law imagined by judge (if not for precedent)
  3. Remedy (only binding on parties in that case(
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5
Q

Avoiding binding precedent

A

Distinguish the earlier case- find a difference in the material facts

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6
Q

Reversing a judgment

A

Case goes to appeal -> higher appeal court disagrees with lower court (doesn’t negate precedent, diff interpretation)

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7
Q

Overruling/overturning a judgment

A

Superior court decides original precedent is wrong (bad law) and sets a new one

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8
Q

Supreme Court: Precedent

A

Binds all inferior courts but
Practice Statement (Judicial Precedent) 1966: Supreme Court allows it to depart from own precedent (allow development of law)

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9
Q

Court of Appeal departing from precedent

A

Binds all inferior courts and itself unless Young v Bristol Aeroplane exceptions:
1. CA had previously conflicting decisions (pick which one to follow)
2. CA’s previous decision overrules expressly/impliedly by Supreme Court or House of Lords -> no need to follow
3. CA’s previous decision made per incuriam (erroneously)

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10
Q

High Court: Precedent

A

Binds all inferior courts. Doesn’t bind itself (only doesn’t where convinced it was wrong decision.

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10
Q

Upper Tribunal: precedent

A

Binds First Tier Tribunal, inferior courts, itself.

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11
Q

First Tier Tribunal: precedent

A

Doesn’t bind other courts but may be persuasive (considered + followed).

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12
Q

Family / County/ Crown/ Magistrates’ Courts : Precedent

A

Do not bind other courts.

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13
Q

Higher court follows a lower court’s decision (similar facts)

A

Higher court’s decision approves the lower decision.
Applying- where some similarities

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14
Q

Where equity and common law conflict, equity should prevail (Earl of Oxford)

A

Judicature Acts 1873-75 abolished division between 3 common law courts and Chancery and created a single High Court and Court of Appeal applying both
Equity supplements- follows the law

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15
Q

Equitable remedies are discretionary (only where damages inadequate)

A

Specific performance
Injunction (now statutory)
Declaration (of law)
Rescission (also common law)(set aside contract)
Rectification (of contract)

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16
Q

Primary Legislation: Acts of Parliament

A

Put before Parliament as Bills (draft legislation), debated, passed (almost always) by both HoC and HoL.
Receive royal assent -> law.
Cannot be quashed by courts
Public acts- general public concern, most acts, lobbied
Private/Personal acts- particular places/people (LA seeking power to build bridge, LA must convince)

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17
Q

Bills dealing with public finances

A

Must start in Commons, can’t be defeated in Lords

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18
Q

Secondary/subordinate legislation

A

Law created by ministers/other under powers given to them by parent Act of Parliament - courts determine if under this power- may quash if not, if yes, equal statutory power as primary
(filling in gaps of primary legislation- practical measures for enforcement)
Not subject to same scrutiny as primary, Parliament (committee of both Houses) approves or rejects statutory instrument but cannot amend it

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19
Q

Public Bills (-> Public Acts)

A
  1. Government Bills (government policy, official parliamentary draftsman, based on ministerial proposals - Green Paper (discussion), White Paper (official policy)
  2. Private Members’ Bill- promoted by MP through Ballot system, often don’t pass
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20
Q

Primary legislative process in each House

A
  1. First reading
  2. Second reading (debating main principles, discuss amendments from other chamber)
  3. Committee stage (legislative committee may amend)
  4. Report stage (debate amendments, vote on committee’s report
  5. Third reading (final debate, vote on Bill, if passed goes to the other House)
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21
Q

Royal assent

A

Not legal rule but convention
AoP takes effect from them on but not into force (Secretary of State in that area issues statutory instrument- secondary legislation)

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22
Q

Structure of Acts of Parliament

A

Short title, Long title
Date enacted
Parts and sections

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23
Q

House of Lord’s powers

A

Review, proposed amendment, delay of legislation.
Cannot outright veto.
Bills can be introduced in either (public finance must be Commons)

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24
Q

By-law (secondary legislation )

A

Local authorities/associations use to create local rules and regulations (under parent act’s powers)

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25
Q

Statutory rule: literal rule

A

Words given their ordinary, plain and natural meaning, in context of whole Act/neighbouring sections of Act.
Courts don’t consider further what Parliament meant.
Linguistic presumptions important.
Overly literal can have unintended consequences so golden rule made.

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26
Q

Linguistic presumptions

A

expressio unius est exclusio alterius- expressing one thing excludes another- closed lists
esjusdem generis - of the same kind, general ‘other’ after list must be restricted to qualities of those before (house, office, room - other must be indoors)
noscitur a sociis - word known by company it keeps (interests and other annual payments- interests must be annual)

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27
Q

Statutory interpretation: golden rule

A

late 19th C- period of growth in legislation
River Wear Commissioners v Adamson/ Adler v George
Courts assume wider meaning to ordinary meaning where literal rule causes absurdity/inconvenience, but not further.

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28
Q

Statutory interpretation: Mischief rule

A

Now defunct -> purposive approach
Consider original purpose of provision.
Heydon’s:
1. What was common law before the making of the Act?
2. What was the mischief + defect which the common law didn’t provide for?
3. What remedy for the mischief did Parliament intend to provide?
4. What was the true reason for Parliament adopting that remedy?

29
Q

Statutory interpretation : Purposive approach

A

Quintavalle- teleological EU approach, look beyond words at the purpose (legislation is skeleton for judges to flesh out)
e.g. to seek compatibility with ECHR

30
Q

Contemporary approach to statutory interpretation

A

Combination of literal and purposive

31
Q

Constitutional responsibility for interpreting statute rests with

A

Judiciary (not Parliament)
(not mentioned in case law but principles important)

32
Q

Sources of EU Law

A

Primary: Maastricht Treaty (creation of EU), Treaty on the Functioning of the EEU
Secondary: Regulations, Directives, Decisions arts 288 +289 of TFEU, Case law from Court of Justice of EU
Tertiary: regulations, directives, decisions- delegated acts (supplementing), implementing acts (practical)
Case Law
International Agreements/Treaties
Soft law- non binding opinions/recommendations

33
Q

EU Regulations

A

directly applicable in legal systems of Member States (no national legal measures needed)
Direct effect- individuals can rely on (clear + unconditional) regulations in their national courts

34
Q

EU decisions

A

Binding only on parties to whom they are addressed. Can be enforced in national courts to those parties.

35
Q

EU directives

A

Binding on the result to be achieved, but national authorities decide on form/methods.
Member states pass national legislation which individuals rely on.
If not implemented, infringement proceedings on member states by European Commission, until done can be enforced through
1. direct effect
2. indirect effect (domestic courts must interpret domestic law compatibly with EU law
3. State liability

36
Q

EU case law has supremacy over conflicting domestic law (including fundamental rights provided by nation)

A

as per Court of Justice of EU
Van Gend en Loos, Costa v ENEL
National courts make preliminary reference to CJEU who makes ruling on questions, then court decides how to apply (no right of appeal from national to CJEU)

37
Q

UK entered EU through European Communities Act 1972, now repealed by

A

European Union Withdrawal Act 2018 (31 Jan 2020)(retained bulk of EU law) amended by EU Withdrawal Act 2020

38
Q

Transition/implementation period after Brexit

A

Part 40 EU law continued to apply until 31 Dec 2020
All EU derived domestic legislation passed before UK withdrew preserved (e.g. secondary legislation for directives)

39
Q

After end of transition period (31 Dec 2020), UK governed by 2 regimes:

A
  • Some EU law preserved by Withdrawal Agreement-> ss7A (Supremacy of EU law- disapply incompatible domestic) and 7C of EUWA 2018
    (Northern Ireland Protocol maintaining open border + rights of Union citizens)
    EU case law made before end of transition period binding but case law after, courts only have to have due regard, preliminary references can be made on events commenced until 2028
    Parliament retains right to override EU law
  • Rest of EU law converted into domestic UK law (can be amended/repealed by subsequent legislation)
    Retained EU (revocation and reform) Act 2023 (now known as assimilated(
40
Q

Assimilated EU law

A

s2 and 3 of EUWA 2018
EU- derived domestic legislation and direct EU legislation (any EU regulation/decision/tertiary (not directive) which is in force + applicable in domestic law immediately before the end of the transition period) continue to have effect in UK
can be amended by both primary and secondary legislation

41
Q

No more supremacy of EU law

A

at the end of 2023, ceased where assimilated EU law involved (5.A1 EUWA 2018)
courts have interpretative obligation to read + give effect to assimilated direct EU legislation (where incompatible, domestic enactments override-> incompatibility order)

42
Q

Amendment of Assimilated EU law

A

Section 8 EUWA 2018: UK Government ministers can make regulations to fill gaps in assimilated EU law Sections 11 - 14 REULA 2023: English/devolved can make regulations that restate, reproduce, revoke, replace assimilated EU law (expires 23 June 2026
Section 15: English/devolved ministers can make regulations updating assimilated EU law taking account of new science/tech

43
Q

Assimilated EU case law (that existed at end of transition period) still binding

A

Must have due regard to any after.
Preliminary references to Court of Justice can’t be made.
Supreme Court/High Court of Justiciary in Scot./Court of Appeal/Court Martial Appeal Court not bound by retained EU case law (apply same test as when departing from their own case law)
Charter of Fundamental Rights wasn’t during transition period- not binding

44
Q

General principles of EU law

A

overarching legal principles- aiding interpretation of lawfulness (fundamental rights, proportionality)
binding on UK courts

45
Q

Standard of proof in Criminal Case

A

beyond reasonable doubt
burden is on prosecution

46
Q

Guilty or not guilty

A

Guilty -> court sentences
Can vacate plea if they change their mind
Not Guilty -> trial -> verdict (if guilty -> sentence)

47
Q

Magistrates Court

A

Virtually all cases start/end here.
All summary offences + some either way offences
Unlimited fine and/or 6 months prison for 1 offence
Does not create precedent (bound by Administrative, Court of Appeal, Supreme)

48
Q

Crown Court

A

Indictable only and either way (all transferred from Magistrates then passed on)
Almost always involve juries
Administered by Ministry of Justice/HM Courts and Tribunals Service

49
Q

Grounds for appeal of sentence

A
  • not justified by law
  • based on incorrect evidence
  • irrelevant considerations made when sentencing
  • misapplication/failure of sentencing guidelines
50
Q

Appeals from Magistrates heard in Crown Court de novo

A

Crown Court Judge + 2 Magistrates
Unless Magistrates decision legally flawed -> Administrative Courts (KBD, High Court)(appeal by way of case stated)

51
Q

Privy council

A

Final appeal court for UK overseas territories and Crown dependencies (+ some commonwealth)
Both civil and criminal
Not binding on English courts but highly persuasive

51
Q

D can appeal Crown Court conviction and/or sentence in Criminal Division of Court of Appeal (must gain permission from judge in separate hearing)

A

Not full hearings - papers from both sides
Prosecution can too- quashing order for acquittal of unserious offence
AG can appeal against unduly lenient sentence from Crown Court
CoA can quash conviction and sentence
Binds lower courts

52
Q

Court of Appeal (crim division) appeals to Supreme Court

A

General public importance- R v R marital rape

53
Q

Criminal Cases Review Commission

A

Statutory body which reviews alleged miscarriages of justice.
Can send CoA cases back to them for review.
Can send Magistrates/Youth Court cases to Crown Court for review (re-hearing)
Appeal- must identify new evidence/new legal argument unless exceptional circs.

54
Q

Civil law

A

regulates legal relationships between private individuals
Government body/Crown can be a party

55
Q

Civil court standard of proof

A

On the balance of probabilities (more than 50%)
Burden of proof is on the claimant

56
Q

Most civil claims begin in County Court (track depends on value + complexity) (£100k+ in High Court)

A

Deputy/District Judge (CC) ->
Circuit Judge (CC) ->
High Court ->
Court of Appeal (civil division) ->
Supreme Court

57
Q

Judges in County Court

A

DDJ- fee paid
District Judges - mostly procedural but some final hearings
Circuit Judges (also in Crown)- most complex cases and appeals from DDJ/DJs

58
Q

Tribunals

A

No jurisdiction for criminal, can transfer between civil
First Tier - 7 chambers, appeals from citizens against government bodies decisions (employment and property take private cases)
Upper Tribunal (equivalent to High Court)- hears appeals from First Tier (binds itself, first tier and all lower courts)
4 chambers
1. Administrative Appeals- War/Army comp, Social entitlement, Health+education+social care, general regulatory
2. Tax and Chancery - tax
3. Immigration and asylum- ditto
4. Lands - property

59
Q

Senior President of Tribunals head the tribunals judiciary

A

remit extends to Scotland and NI depending on jurisdiction (Immigration and tax are UK-wide)
Tribunal/Chamber President does day to day
Tribunal judges / lay members (not legally qualified)

60
Q

Coroners are not members of judiciary

A

barristers/solicitors/medical practitioners w/ 5+ years experience outside of being coroner - do inquests, make verdicts (esp. deaths in state custody)

61
Q

Public inquiry- Inquiries Act 2005

A

Given special statutory powers to compel testimony/release of evidence
Nothing to compel government to act on its findings

62
Q

Other public inquiries- diff legislation

A

Town and Country planning decisions (public can challenge evidence as third party)

63
Q

Senior Courts Act 1981

A

Supreme Court (before 2009, HoL)- 12 Judges (hears appeals from all 4 parts of UK)
Court of Appeal- Master of Rolls- Civil, Lord Chief Justice- Criminal (3 judges per case)
High Court - KBD, Chancery, Family (Masters=DDJs, 1st instance heard by High Court Judges)
Crown Court

64
Q

Leapfrog appeal

A

Judgment of High Court appealed directly to Supreme Court

65
Q

Pro bono legal services

A

Citizens Advice
Law Centres
Advocate (Bar’s pro bono)

66
Q

McKenzie friends- litigants in person have non-legally qualified person to help them in court

A

Not regulated
HC judge ruled that should be held to same standard as qualified lawyer
Higher courts more affected by increase of litigants in person

67
Q

LASPO

A

Civil legal aid if area of law in scope + strong claim

68
Q
A

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