The nature of law and the English legal system Flashcards
What is the distinction between enforceable legal rules and principles and other rules and norms of behaviour?
Enforceable legal rules and principles are rules that can be enforced by the courts, while other rules and norms of behaviour are social expectations that are not legally enforceable.
What are the differences between criminal law and civil law?
- Purpose
Criminal law: aimed at trying to maintain law and order, to protect society. Civil law: upholds the rights of individuals. - Person starting the case
Criminal cases: usually the state through the Crown Prosecution Service. Civil cases: the individual or business which has suffered as a result of the breach of civil law. - Legal name for that person
Criminal = Prosecutor.
Civil = Claimant. - Courts hearing cases
Criminal: tried in either the Magistrates’ Courts or the Crown Court.
Civil: heard in the High Court and the County Court. - Standard of proof
Criminal = beyond reasonable doubt
Civil = on the balance of probabilities - Person making the decision
Criminal = Magistrates in MC + a judge & jury in CC.
Civil = Judge + very rarely a jury - Decision
Criminal = ‘guilty’ (convicted) or ‘not guilty (acquitted)
Civil = ‘liable’ or ‘not liable’. - Powers of the court
Criminal = prison, community order, fine, driving ban
Civil =an award of damages ( compensation) or injunction.
Source of law
Custom
Statute
Common
Custom law
A rule of behaviour which develops in a community without being deliberately invented historically.
Statute law
Law created by Parliament and creates major new law, can change or revoke any laws.
Common law
Unwritten law that developed from custom and the decisions of the judges.
What is the role of law plays in society?
-Law can be described as a mechanism of social control.
-Comprises rules for keeping order in all societies and to protect
What is the effect of law on enforceable rights?
What is the balance required between competing interests (e.g. public and private)?
What is the meaning and importance of fault in civil and/or criminal law?
What is the distinction between law and morality and the diversity of moral views in a pluralist society?
What is the relationship between law and morality and its importance?
What is the legal enforcement of moral values?
What is the meaning of justice?
What are the theories of justice?
Distributive justice
Concerned with the fair allocation of the benefits and responsibilities of life.
What is Aristotle concerned with distributive justice?
What is Thomas Aquinas concerned with distributive justice?
What is Karl Max concerned with distributive justice?
What is Claim Perelman concerned with distributive justice?
What is the extent to which the law (civil and/or criminal) achieves justice?
What is the rule of law
What are Dicey’s three rules?
The rule of law + law making
The rule of law + the legal system
The rule of law + substantive law
Green paper
White paper
Parliament
What is the role of HOC?
What is the role of HOL?
What is the formal legislative process in parliamentary law making?
- First reading
- Second reading
- Committee stage
- Report stage
- Third reading
- HOL
- Royal Assent
First reading
Second reading
Committee stage
Report stage
Third reading
HOL
Royal Assent
What is a bill?
Government bill
Public bill
Private bill
Private members’ bill
Hybrid bill
Advantages of law making in parliament
DIsadvantages of law making in parliament
What are the influences on parliamentary law making?
How the pressure groups influences on parliamentary law making?
Advantages of pressure groups
Disadvantages of pressure groups
How the political parties influences on parliamentary law making?
Advantages of political parties
Disadvantages of political parties
How public opinion influences on parliamentary law making?
Advantages of public opinion
Disadvantages of public opinion
How the media influences on parliamentary law making?
How the Law Commission influences on parliamentary law making?
Advantages of Law Commission
Disadvantages of Law Commission
What is the doctrine of parliamentary supremacy?
What are the limitations on parliamentary supremacy?
How the effect of the HRA 1998 limited on parliamentary supremacy?
How the devolution limited on parliamentary supremacy?
How the EU membership limited on parliamentary supremacy?
What is delegated legislation?
What are the types of delegated legislation?
- Orders in council
- Statutory instruments
- By-laws
Orders in council
Made by the Queen and Privy council, in time of emergency ( when Parliament is not sitting).
Examples of Orders in council
-Foot and mouth disease breakout in August - law must be passed to kill off diseased cows.
-The Misuse of Drugs Act 1971 (Amendment) Order 2008
Uses of Orders in council
-Transferring responsibility between gov departments.
-Bringing Acts or parts of Act of Parliament into force.
-As a member of the EU, giving legal effect to the European directives.
Statutory instruments
Created by gov ministers in their department; often called ‘regulation.’
Examples of Statutory instruments
- An increase in the maximum penalty for speeding.
-Give way to buses
-Codes of Practice under PACE
Uses of Statutory instruments
-Deals with a different areas of policy
-Can make rules
-Regulations in respect of matters it deals with.
-Can be very short, covering one point such as making the annual change to the minimum wage.
-Can be very long + detailed regulations.
By-laws
Made by local authorities make laws for a local area, may also made by some public corporations.
Examples of by-laws
-TFL enable to pass the law for wearing masks in the transport.
-A law rerouting a public footpath
Uses of by-laws
-Many local by-laws will involve the traffic control, such as parking restrictions.
-Other by-law may be for such matters, e.g. banning drinking in public places.
-Can also made certain companies for matters within their jurisdiction which involves the public.
What are the parliamentary controls on delegated legislation?
What is affirmative resolutions procedure?
What is negative resolutions procedure?
What are the judicial controls on delegated legislation?
Ultra vires
Procedural ultra vires
Substantive ultra vires
Why is delegated legislation used?
Advantages of delegated legislation
Disadvantages of delegated legislation
Why do we need statutory interpretations?
What are the three rules of statutory interpretation?
What is the literal rule?
Advantages of literal rule
Disadvantages of literal rule
What is the golden rule?
Advantages of golden rule
Disadvantages of golden rule
What is the mischief rule?
Advantages of mischief rule
Disadvantages of mischief rule
What is the purposive approach?
Advantages of purposive approach
Disadvantages of purposive approach
What are the internal aids (intrinsic) ?
What are the external aids ( extrinsic) ?
How do the European Union law impact statutory interpretation?
How do the HRA 1998 impact statutory interpretation?
What is the doctrine of judicial precedent?
What is the original precedent?
What is the binding precedent?
What is persuasive precedent?
What is the hierarchy of the courts?
What is stare decisis?
What is ratio decidendi?
What is obiter dicta?
What is law reporting?
What are the reasons for law reporting?
What are the operations of precedent?
What is following?
What is overruling?
What is distinguishing?
Advantages of judicial precedent
Disadvantages of judicial precedent
What is the law commission?
What Act was set up by?
Reform
Codification
Repeal
What are the success rate ( implementation rate) ?
Examples of implementation reformed
Advantages of reform through the law commission
Disadvantages of reform through the law commission
What are the institutions of the European Union?
What are the functions of the Council?
What are the functions of the Commission?
What are the functions of the European Parliament?
What are the functions of the Court of Justice of the European Union?
What are the different sources of European Union law?
Treaties
Regulations
Directives
What is direct effect?
What is horizontal direct effect?
How does European Union law impact the law of England and Wales?
What is civil claims?
What are the civil courts (highest - lowest)?
County Court
High Court
Queen’s Bench Division
Chancery Division
Family Division
How to start a civil court case?
What is the three track system in civil courts?
Small claims track
Fast track cases
Multi track cases
What are the reforms of the civil justice system?
What is effect of the 1999 Lord Woolf’s reforms stated?
What is effect of the Post - Woolf’s reforms ?
What is effect of the Lords Briggs’ proposals for the future?
What is effect of the 1999 Lord Woolf’s reforms stated?
What is the appeal system in civil courts?
What is the appeals from the County Court?
What is the appeals from the High Court?
Advantages of using the court
Disadvantages of using the court
What are the other forms of dispute resolution?
What is the tribunal?
What is the tribunal structure?
What is the role of tribunals?
Advantages of tribunals
Disadvantages of tribunals
What is ADR stands for?
What are the roles of negotiation?
What are the roles of mediation?
Advantages of mediation
Disadvantages of mediation
Advantages of using ADR
How are offences classified? (lowest - highest)
Magistrates’ Courts
What does the Magistrates’ Courts deal with?
Crown Court
What does the Crown Court deal with?
What is the appeals from the Magistrates’ courts?
What is the appeals from the Crown Court?
What Act sets out the purpose of sentencing?
What are the aims of sentencing?
What is retribution / punishment?
What is tariff sentences?
What is deterrence?
What is individual deterrence?
What is general deterrence?
What is rehabilitation？
What is reform?
What is protection of the public?
What is reparation?
What is denunciation?
What are the criminal court powers?
Custodial sentences
Fines
What are the other powers?
What are the sentences available for adult?
What is custodial sentences?
What is mandatory life sentences?
What is discretionary life sentences
What is a fixed term sentences?
What is suspended prison sentences?
What is community orders?
What requirements include in the community orders?
Unpaid work requirement
Prohibited activity requirement
Curfew requirement
Supervision requirement
What are fines?
What are the two discharges?
What is a conditional discharge?
What is an absolute discharge?
What are other powers of the court?
- disqualifying D from driving for a certain length of time
What are the factors in sentencing?
What is aggravating mean?
What is mitigating mean?
What the matters that the court need to consider?
What are the aggravating factors in sentencing?
What are the mitigating factors in sentencing?
What is a reduction in sentence for a guilty plea?
What the courts look for the background of the offender?
Previous convinction
Previous conviction
Reports
What is lay magistrates?
What are the six key qualities to be a lay magistrate?
How the appointment work?
What is the training of lay magistrates?
What is the composition of bench?
What is the role and powers of magistrates?
What is the magistrates’ clerk?
What is the history of the jury system?
What case established the independence of the jury?
What Act set out the qualifications of jury?
What are the qualifications to qualify a jury?
What are the disqualifications permanently for a jury?
What are the categories disqualified for 10 years?
What Act defined a mentally disordered person?
What is the definition of a mentally disordered person?
Excusals
What is discretionary excusal?
Selection of the jury
What is vetting?
2 types of vetting
Challenging
What is challenge to the array mean?
What is the role of jury?
How the verdict works?
Advantages of jury trial
Disadvantages of jury trial
What are the alternatives to jury trial?
What are the types of legal personnel?
What are the roles of barristers?
How the barristers get trained?
What is advocacy?
What is rights of audience?
What are the roles of solicitors?
How to become a solicitor (training)?
What is advocacy for solicitor?
What is Queen’s Counsel?
What are the legal executives?
How to become a legal executive?
What are the roles of legal executives?
What is advocacy of legal executives?
What is the representative body for barristers?
The General Council of the Bar
What is the representative body for solicitors?
Law Society
What is the representative body for legal executives?
CLIEx ( Chartered Institute of Legal Executives)
What is the regulatory body for barristers?
Bar Standards Board
What is the regulatory body for solicitors?
Solicitors Regulatory Authority
What is the regulatory body for legal executives?
CLIEx Regulation Board
What is the Legal Ombudsman?
deal with complaints against the legal profession.
Who set up the Legal Ombudsman?
the Office for Legal Complaints
What can the Legal Ombudsman order?
an apology to the client, putting things right, refund or reduce the legal fees / pay compensation of up to £30000
What are the two types of judges?
-Superior judges
-Inferior judges
What are the superior judges?
Those are in the High Court above.
What are the inferior judges?
Judges who sits in Crown Court below.
What type of judges sit in Supreme Court ?
-Justices of the Supreme Court
-Head of the Supreme Court: President of the Family Division
What is their role in Supreme Court?
Hear appeals on points of law in both civil and criminal cases.
What type of judges sit in COA?
-Lord Justice of Appeal
-Criminal Division Head: Lord Chief
-Civil Division: Master of the Rolls
What is their role in COA?
-Hear appeals in criminal cases against conviction and / or sentence.
-Hear appeals in civil cases on finding of liability and/or amount awarded.
What types of judges sit in the High court?
-High court judges (Puisne Judge)
-Head of Chancery division
-Head of Family division
-Head of Queen’s bench division
What is their role in the High court?
-Judges sit in one of three high court divisions.
-Hear large value, first instance civil cases to decide liability and remedy.
-Hear appeals from lower courts in both civil + criminal cases.
What type of judges sit in the Crown court?
-High court judges ( for serious case)
-Recorders (part time)
-Circuit judges
What is their role in the Crown court?
-Hear complex and serious criminal cases
-Hear appeals from Magistrates’ Courts
-Try criminal cases with a jury
-Decide the law
-Assist the jury on points of law
-Sentencing
What type of judge sit in the County Court?
-Circuit judges
-Recorders (part time)
-District judges (small claims court)
What is their role in the County court?
-Hear civil cases
-Decide liability and remedies
What type of judge sit in the Magistrates’ Court?
-District judges (Magistrates’ court)
What is their role in Magistrates’ court?
-Hear summary or triable either way criminal cases
-Decide verdict
-Sentencing
-Hear civil cases = family work, licensing appeals.
What type of judge sit in tribunal?
-Tribunal judges
-Head = Senior president of tribunals
What is their role in the tribunals?
-Hear cases on specific civil issues, such as employment disputes.
What is the independent judiciary?
What are the reasons for judicial independence?
Advantages for judicial independence
What is access to justice mean?
Where a person cannot get the help he or she needs, they are being denied access to justice.
What are the alternative sources of legal advice?
-Help lines
-Citizens Advice Bureaux
-Law centres
-Trade unions
-Schemes run by lawyers
Help lines
CABx
Law centres
Trade union
Schemes run by lawyers
Advice in criminal cases
What are the private funding options for legal cases?
Own resources
Insurance
Conditional fee agreement
How conditional fees work?
What is success fee?
What is insurance premiums?
What is public funding for civil cases?
How does availability of legal aid work?
How does means testing work?
What is disposable income?
What is disposable capital?
What is public funding for criminal cases?
How interests of justice work?
How the Magistrates’ Court means testing work?
How the Crown Court means testing work?
