Summative Flashcards
1
Q
What sources of law does the English Legal System rely on?
A
Statutes and case law
2
Q
What is substantive law?
A
General principles and detailed rules defining legal rights and duties
3
Q
What is procedural law?
A
General principles and detailed rules that define the methods of administering the substantive law. Governs how we have to do things.
4
Q
What is legislation?
A
- Passed by Parliament
- Primary legislation - Statutes / Acts of Parliament
- Secondary/Delegated legislation - statutory instruments and regulations
5
Q
Can statutes be overruled by judges?
A
No, we live in a democracy and we voted parliament in so they have supreme power
6
Q
What are cases?
A
- Decided by judges in court
- Decisions reported in Law Reports
- Sole source of law on areas with no legislation called common law areas
- Interpret existing case law under the doctrine of precedent
- Interpret legislation
7
Q
What is a common law offence?
A
Murder (no legislation about murder, the definition of murder was created by judges not parliament
8
Q
What is Civil Law?
A
Resolves disputes known as actions not involving a crime to assess liability
Private Law: disputes between citizens or companies
Public law: disputes between a citizen and the state
9
Q
What is Criminal Law?
A
Regulates behaviour that ‘the state’ considers wrong by creating offences
10
Q
What is Burden of proof?
A
Who has the responsibility to prove their case to the court
11
Q
What is Standard of proof?
A
How convincing the evidence must be
12
Q
What is the hierarchy of courts?
A
- UK Supreme Court
- Court of Appeal
- High Court
- Crown Court
- Magistrates’ Court
- County Court
- Family Court
13
Q
What is the system of precedent?
A
- Decisions of higher courts binding on lower courts
- General equitable principle that should be treated alike
14
Q
What is a first instance court?
A
First court to decide or rule on the case (sometimes called the “trial court”)
15
Q
What is an Appellate?
A
Hearing appeals on the decisions made at first instance in lower courts
16
Q
What is the UK Supreme Court?
A
- Appellate Court (never first instance)
- Headed by the President of the Supreme Court (Lord Reed)
- Final civil and criminal court of appeal for England, Wales and NI
- Final civil court of appeal for Scotland
- Uneven number of judges sit here
17
Q
What was the UK Supreme Court previosuly?
A
Appellate Committee of the House of Lords
- Headed by Lord Chancellor
- Uneven number of judges sat on cases
18
Q
What is the Court of Appeal?
A
Divided into two divisions: civil and criminal
Appellate function
Usually 3 judges sit on any one appeal
19
Q
What is the High Court?
A
- Three divisions:
- King’s Bench Division
- Chancery Division
- Family Division
- Appellate and original jurisdiction (can be court of first instance)
- One judge sits
20
Q
Where will the civil case go if it is complicated or over £25K or claiming compensation over £50K?
A
High Court
21
Q
Where will the civil case go if it is between £25-50K?
A
High Court or County Courts
22
Q
Where will a civil case go if it is a claim under £10K?
A
Small claims court
23
Q
What is the King’s Bench Division of the High Court?
A
- First instance jurisdiction over high value, high importance contract and tort claims
- Divisional (appeal) court is called Administrative court and hears: applications for judicial review, some appeals from County Court, criminal appeals by way of case stated from Magistrates
24
Q
What is the Chancery Division of the High Court?
A
- Deals with first instance cases relating to land, the administration of estates, trusts and bankruptcy
- Deals with contentious probate - arguments between money when someone has died ie dispute
- Divisional Court hears appeals from County Court
25
What is the Family Division of the High Court?
- Following creation of Single Family Court, has reduced original jurisdiction: wardship, vulnerable/mentally incapacitated adults, international cases
- Divisional court hears appeals from Single Family Court
- High Court judges may sit on complex cases within the Single Family Court
26
What is the Crown Court?
- Criminal jurisdiction
- At first instance tires cases "on indictment" before a judge and jury
- Appellate jurisdiction over appeals on matters of fact or sentence from magistrates
- Can sentence those tried in magistrates court - triable either way offence sent from Magistrates to Crown if they think offender deserves harsher sentence
27
What is the Single Family Court?
- Under section 17 of the Crime and Courts Act 2013 a new Single Family Court was created
- This abolishes the former Family Proceedings Court
- It takes over the Family law jurisdiction of the County Court
- Cases allocated according to complexity and locality
28
What is the County Court?
Very bus court with exclusive civil jurisdiction through following creation of Single Family Court no longer hears family matters
Small Claims Court
- Concept of localised justice
- Judges include District Judges, Circuit Judges, Recorders and Assistant Recorders
- Case allocation depends on complexity of case
29
What is the Magistrate's court?
- Starting point for all criminal cases
- Most criminal cases dealt with by Magistrates
- Very limited civil jurisdiction
- Lay citizens (Justices of the Peace)
- District Judges (Magistrate Courts) are professional judges who hear some cases - sit alone
30
What sentences can Magistrates give?
- 6 months imprisonment for 1 offence, 12 months for more than one offence
31
What are tribunals?
- Technically not courts but have a quasi-judicial role in the legal system and decisions can usually be appealed to courts
- First instance/Civil jurisdiction
- Decision made by "members" of the tribunal who will be qualified to decide in the particular field of the tribunal
- Low cost and relatively informal
Example: employment tribunals and social security
32
What does precedent mean?
A previous instance taken as an example or rule by which to be guided in similar cases or circumstances; and example by which comparable subsequent act may be justified
33
What is the doctrine of precedent?
- How cases are affected or influenced by earlier cases
- General principle like should be treated alike but this raises a question mark over how we define "like" e.g., how similar
- Precedents may be avoided in a case which is sufficiently different - this is called distinguishing
- The rule that the case decisions made by precious judgements should be binding onto the reasoning in future cases
34
What are material facts?
Those that are relevant in influencing the outcome of the decision. They are the essential link between the ratio and the decision. If the material facts are sufficiently different then the precedent can be distinguished, crucial to line of reasoning so therefore to the decision
35
What do you need in order to make precedent work?
1. A system of reporting cases - law reports
2. A hierarchy for 'ranking' previous rulings
3. A system of extracting a main binding principle of a case
36
What is ratio decidendi?
The (binding) principle of law in a case
37
What is Obiter dictum?
Other parts of the judgment which are not binding, but may be persuasive - why they have reached a particular decision. Not binding on later courts
38
What is the decision of a case?
The outcome of the case e.g., guilty or not guilty, who won?
39
What is Stare decisis?
System of binding precedent meaning stand by what has been decided
40
What is res judicata?
The ruling of a case is binding on the parties concerned once all avenues of appeal have been exhausted, stand by what has been previously decided, case has been heard and you have exhausted it
41
What are the 'rules' of precedent?
Vertical and Horizontal
42
What is vertical precedent?
A court is 'bound' to follow the legal principles in a previous ruling of a senior court as long as the principle is ratio and the case is sufficiently similar
43
What is horizontal precedent?
Is the Supreme Court bound by its own/HL previous rulings?
Is the Court of Appeal bound by its own previous rulings
44
Is the HoL/UKSC bound by its own previous rulings?
Yes but may depart "when it appears right to do so".
45
Is the Court of Appeal bound by its own previous rulings?
Yes but with three exceptions"
- Conflicting previous decisions
- Previous decision overruled by higher court
- Previous decision decided per incurium
46
What is primary legislation?
- Statutes (Acts) - start off as a Bill
- Made directly by Parliament
47
What is secondary legislation?
- Statutory instruments regulations
- Made by Ministers using powers "delegated" by Parliament
- Used for minor changes to the law by way of statutory instrument
48
How do we explain the law as a 'set of rules'?
- Statutes are essentially rules
- Rules require interpretation or construction
- Statutory interpretation is essentially about trying to put into effect the intention of Parliament
- Interpreting the law, trying to
understand what parliament meant
49
What rules do judges use for statutory interpretation?
Literal, mischief, golden and purposive
50
What is the literal rule?
- More outdated
- Taking the law literally
- Giving words their plain ordinary meaning regardless of whether this appears to lead to an absurd result
51
What is the golden rule?
- Giving words their ordinary signification
- Assumes that Parliament intended that its legislative provision have a wider definition than its literal meaning, and so the grammatical and ordinary sense of a word can be modified to avoid the inconsistency or absurdity created by an application of the literal rule, but no farther.
52
What is the mischief rule?
- Similar to purposive approach
- AKA Heydon's case
- Look at the common law before the Act
- What was the 'mischief' before the Act (what was wrong with the previous law)
- Interpret the statues so as to 'suppress the mischief and advance the remedy'
53
What is the purposive approach?
- More modern
- Similar to mischief rule in looking beyond words of statute to seek intention of Parliament
- Looking at words in context, what were the attitudes of the time, what was the culture at the time?
- Generally more appropriate for modern legislation which may have. abroad positive aim rather than being designed to correct a particular defect in the law
54
What are some problems with the literal rule?
- Words may have more than one meaning
- Does not account for situations where words may be genuinely ambiguous
- Assumes rules are capable of being expressed so as to exactly reflect intention
- Assumes drafters don't make mistakes
- May lead to an absurdity
55
What are some problems with the golden rule?
- Gives 'excuse' to judges to depart from literal rule for unclear reasons
- Not very clear what the alternative is, can be subjective, what one person observes may not be observed int eh same way as another
56
What are some problems with the mischief rule and the purposive approach?
- Doubts over when it should be used (Generally? Or when the literal rule would result in ambiguity or absurdity?)
- Constitutional implication of judges "making law"
- Difficulty of finding the purpose/mischief
- What is this broad/holistic approach?
57
What are primary sources?
Immediate, first-hand accounts of a topic, from people who have or had a direct connection with it
58
What are secondary sources?
One step removed from primary, though they often quote or use primary sources. Can cover the same topic but add interpretation, analysis or commentary
59
What are some primary sources?
The Law
Legislation: statutes, statutory instruments
Cases: law reports
60
What are some secondary sources?
Commentary, analysis, evaluation and opinion
- Textbooks
- Journal articles
- Official publications
- Law commission reports
- Other sources
- Websites, newspapers, 'soft law'
61
How can you research effectively?
- Use synonyms
- Use Lexis
- Use Westlaw
- Use HeinOnline
- Use Google Scholar
62
What is Halsbury's Laws
A secondary source of law
- An encyclopaedia of the laws of England and Wales
- Short summary paragraphs with links to case law and legislation
63
What are the types of malpractice?
- Plagiarism
- Collusion
- Fabrication/falsification of results
- Exam malpractice
- Contract cheating
- Anything else leading to unearned or undeserved credit
63
What is plagiarism?
Presentation, intentionally or unwittingly, of the ideas, work or words of other people without proper, clear and unambiguous acknowledgement
-Includes any type of material
- Includes self-plagiarism
- Includes use of essay banks
64
What is collusion?
Permitting or condoning another student or students, to share a piece of work subject to assessment in order to gain a mark or grade to which they are not entitled
- Includes copying, provider and copier penalised
- Includes sharing work/ideas/plans physically/electronically/via social media
65
What is Fabrication/falsification?
Presentation or inclusion in a piece of work of figures or any data (quantitative or qualitative) which have been made up or altered and which have no basis in verifiable sources
66
What is exam malpractice?
Intentionally or unwittingly contravening set exam conditions, whether or not there was a benefit from the malpractice or the input was pertinent
- Includes unauthorised materials
- Includes copying questions and sharing exam questions/answers/information/discussions
- Applies to online and in person exams
67
What is contract cheating?
Commissioning a piece of work by a third party (beyond basic proofreading)
- Includes essay mills and crowdsourcing using social media
- Includes websites and services often presented as tutoring and study support services
68
What are the penalties for malpractice?
Academic malpractice is a very serious offence and there is a sliding scale of penalties depending on circumstances:
- Marks may be capped
- A mark of 0 may be given for an assessment
- A mark of 0 may be given for a course unit
- A lower class of degree may be awarded
- You may be excluded from the programme
69
What does OSCOLA stand for?
Oxford University Standard for citation of legal authorities
70
What are the sources of law?
- Legislation
- Customs and Practices
- Case law
- Constitutional Conventions
- International Influences
71
Who are the officers of the law?
- Attorney General for England and Wales
- Solicitor-General for England and Wales
72
Who are the personnel involved in the law?
- Legal professionals
- Court staff
- Laypersons
- Jury
- Justice Secretary
- Solicitor General
- Attorney General
- Legal Executives
- Paralegals
- Solicitors
- Barristers
- Magistrates
73
What is the role of the judicary?
Judges act within the law, they interpret laws made by Parliament, develop common law, within sentencing council guidelines decide on sentencing
74
What is the role of the jury?
12 lay people picked randomly from electoral register, hear evidence and decide if the accused is guilty or not guilty
75
What is the role of the justice secretary?
Responsible for oversight of all portfolios and Ministry of Justice strategy
76
What is the role of the Solicitor General?
- Deputises for Attorney General
- Supports Attorney General in overseeing the Government Legal Department, CPS etc.
77
What is the role of the Attorney General?
- The Attorney General is chief legal adviser to the Crown and has a number of independent public interest functions, as well as overseeing the Law Officers' departments.
78
What is the role of legal executives?
- Have qualification
- Type of lawyer who provides legal advice, research cases and legislation, draft legal documents, interact with clients and represent clients in court
79
What is the role of paralegals?
- Don’t have qualification, work with solicitors doing research
- Prepare legal documents, research, admin, provide quotes to clients etc
80
What is the role of solicitors?
- Employed by a firm
- Solicitor advocate: can also do job as barrister
- Provide legal advice
81
What is the role of a barrister?
- Self-employed unless part of CPS
- Represent people in court, make a case for them
- Advocacy and specialist advice
- Cab rank rule
- KCs
- Inns of Court
82
What is the role of Magistrates?
- District judges and lay magistrates (no legal qualification)
- 98% of criminal cases dealt with in magistrate’s court
- Can't make decisions without clerk
- Known as justices of the peace
- Volunteer for at least 13 days a year to hear cases in court
- Over 12,000
- Make fair, impartial and transparent decisions, understanding and appreciate different perspectives
83
What is the hierarchy of judges?
1. Justices of Supreme Court
2. Lord/Lady Justices of Appeal
3. High Court Judges
4. Circuit Judges
5. Recorders
6. District Judges
7. Magistrates
84
What is the role of the justices of the Supreme Court?
○ Comprise final Court of Appeal for all civil cases in England and Wales, Scotland and NI and for criminal appeals in England, Wales and NI.
85
What is the role of the Lord/Lady Justices of Appeal?
Hear appeals from High Court of Justices, the Crown Court and other courts and tribunals
86
What judges are incorporated into the Lord/Lady Justices of Appeal?
Lady Chief Justice, Master of the Rolls and Heads of Division
87
What is the role of the Lady Chief Justice?
- Represents view of judges and magistrates to Parliament and Government
- Welfare, training and guidance of judges and magistrates of England and Wales
- Decide the court areas in which individual judges sit and allocate work to courts
88
What is the role of the Master of the Rolls?
Responsible for organisation and deployment of work of the judges of the division as well as presiding in one of its courts
89
What is the role of Heads of Division?
Member of the Professional Staff appointed to be in charge of one of the organised divisions of a Department
90
What is the role of High Court judges?
○ Often deal with more complex and difficult cases
○ Sit in King's Bench Division, Family Division and Chancery Division
91
What is the role of circuit judges?
Some deal with criminal or civil, while some are authorised to hear public and/or private law family cases, some sit across a range of jurisdictions.
92
What is the role of recorders?
Part-time judges and keep practices as barristers
○ Required to manage cases actively as well as to determine claims at trial
○ Assist parties to prepare for trial
○ Preside over court proceedings and deliver judgments in both applications and contested trials.
93
What is the role of district judges?
○ Work involves wide spectrum of civil and family law cases, widest jurisdiction of any judicial appointment
94
What is the role of tribunal judges?
- Specialist judicial bodies which decide disputes in a particular area of law
- General regulatory, health, education and social care, immigration and asylum, property, social entitlement, tax, war pensions and armed forces compensation
95
Who are the court staff?
- Legal advisors to magistrates
- Court clerks
- Ushers
- Stenographer
- Security officers
96
What is the role of legal advisors?
- Legally qualified person employed in a Magistrates' Court to advise lay justices about points of law and procedure.
97
What is the role of court clerks?
Qualified lawyer who advises magistrates and district judges on the law
98
What is the role of the ushers?
○ Prepare courtroom
○ Greet people entering
○ Check witnesses, defendants and lawyers are present
○ Call defendants and witnesses into court
99
What is the role of the stenographer?
○ Keep detailed notes and transcriptions of depositions, tribunals and cases
100
What is the role of security officers?
○ Search people as they enter court
○ Can refuse people entry
○ Important for criminal court
101
Who are the laypersons in the court system?
Lay magistrates and district judges and Juries
102
What are lay magistrates?
Part time volunteers
103
What are district judges?
Qualified and paid, work full time
104
What is the overriding objective for criminal procedure?
○ The overriding objective of this procedural code is that criminal cases be dealt with justly
105
What is the pre-trial process of criminal proceedings?
Pre-trial proceedings are a series of hearings and legal steps that happen before a criminal trial begins. They are crucial for allowing both the prosecution and the defence to prepare their cases.
Guilty or not guilty plea
106
What is the trial process for criminal proceedings?
○ Summary - Magistrates
○ Triable either way - Magistrates
○ Indictable - Crown
○ Prosecutor sets out charges and case facts
○ May be eye-witnesses and evidence
○ Decide on guilty or not guilty verdict
107
What is the post-trial process for criminal proceedings?
Judge or magistrate sentences
108
What is the overriding objective for civil procedure?
○ These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
109
What is the pre-litigation process for civil procedure?
○ Important step towards finding a solution without resorting to legal action
○ Attempt to settle dispute without recourse to litigation
110
What is the pre-trial process of civil procedure?
○ A pre-trial conference may be held to identify the issues that will be raised at trial. If it's a personal injury case, the parties might argue on the admissibility of medical records during this phase. Motions may be filed, for instance, to nullify a contract based on a point of law, thereby potentially ending the dispute without a trial.
111
What is the trial process of civil procedure?
○ Vast majority of civil cases determined by judge alone
○ Each party advocates stating their position and calling upon evidence of witnesses and experts
112
What is the post-trial process for civil procedure?
- Offers to settle
- A party who unreasonable refuses and offer to settle a case by reference to ADR may incur cost penalties
113
What is litigation?
The process of taking a dispute to a court of law
114
What are some forms of ADR?
Arbitration, Mediation, Adjudication, Conciliation and Industry codes of conduct
115
What is arbitration?
An independent third party considers the facts and takes a decision that's often binding on one or both parties
116
What is mediation?
An independent third party helps the disputing parties to come to a mutually acceptable outcome
117
What is the 'Cab-Rank' rule?
- Based on the fact that when cabs are in a queue they have to take the person in front of the queue
- Have to take cases in a 'cab rank' ruling
- Avoids discrimination and cherry-picking of cases
118
What are some professional skills?
- Practical research
- Problem-solving
- Oral communication/presentation
- Negotiation
- Writing
- Reflective practice
119
What is the criminal justice system comprised of?
The court estate, the prosecution and the defence
120
What is the court estate?
The number of courts determines the number of cases that can be resolved per year.
121
What is the prosecution?
A combination of the Police Force, Witness Support and the CPS who all work together to prosecute cases
122
How are the police involved in the prosecution of cases?
Investigate cases. They receive complaints from a complainant investigate. Can include taking witness statements, obtaining CCTV, forensic evidence, digital downloads and finally interviewing the suspect. Once they have finalised the interview, they can charge low level cases (decide to prosecute) else pass a file to the CPS to make the decision.
123
How are the CPS involved in the prosecution of cases?
They review cases and decide on whether to prosecute more serious cases or not. They apply charging guidance protocols when making the decision. The decision is mainly based on whether there is a realistic prospect of conviction but also factors in whether its in the public interest to prosecute.
124
How is Witness Support involved in the prosecution of cases?
They liaise with witnesses and tell them when to attend court. They liaise with both the Police and CPS.
125
How are the defence funded?
Defence solicitors are not directly publicly funded usually. They are private firms that hold contracts with the Legal Aid Agency to provide services at fixed rates. They have to make a profit to remain in business (unlike all other aspects of the criminal justice system that are directly funded).
126
Why has there been a decline in criminal legal aid work?
The fee structure means that a lot of solicitors now cherry pick legal aid work.
○ This means a lot of clients that would have been represented in the past now are not.
○ Unrepresented clients can lead to potential miscarriages of justice as they fend for themselves.
1. Those who can afford to pay privately for representation now do so, and from what I have seen get a better service with higher chances of success.
2. Those who can’t afford to pay privately instruct legal aid lawyers. They are limited to solicitors willing to do the work and also barristers that are willing to do so. Barristers are more frequently choosing not to do the work.
3. Then there are a group that either don’t qualify for legal aid, or can’t get representation who can’t afford to pay for representation, who appear in court unrepresented.
127
To what extent is the Court of Appeal bound by its own previous decisions?
The Court of Appeal is bound by its own precious decisions apart from when its own previous decisions conflict, where its previous decision had been implicitly overruled by the House of Lords and where its previous decision was made per incuriam
128
How do you OSCOLA reference?
Authors name, editions, publisher, page number
E.g., HLA Hart, The Concept of Law (2nd edn, Clarendon Press 1994) 135.
