Nature of law and the English legal system

What is common law

developed by judicial decisions e.g. murder, developed from ancient custom

What is the aim of criminal law?

to create criminal offences and punish those who commit them

What are the two main theories relating to the nature of law?

- legal positivism - natural law

What three elements did Dicey believe created the rule of law?

1) an absence of arbitrary power on the part of the state: to avoid the state having wide discretionary powers 2) equality before the law: no person must be above the law 3) supremacy of ordinary law

What is a White Paper?

A document issued by the government stating its decisions as to how it is going to reform the law; this is information not consultation

What is a jury?

A group of people who would hear a case a decide on whether a person is guilty or innocent

If the claimed amount is £100,000 or less which court will the case go to?

County Court

Private law

Creates rights enforceable between individuals; they are mainly substantive in nature

Which tribunal still operates separately from the First-tier Tribunal?

Employment Tribunal which hears claims on maters such as unfair dismissal.

What is the role of Justices of the Supreme Court?

Hear about 100 cases each year, these are appeals in either civil or criminal. Majority are civil appeals. A case can only be appealed to the Supreme Court if there's a point of law involved. Any decision in the Supreme Court on a point of law becomes precedent for all lower courts to follow.

What is the difference between the Magistrates' Court means testing and the Crown Court means testing?

No upper limit on disposable income, most defendants can receive legal aid. Free for those on lower incomes and those on higher have to pay a contribution.

Which type of law does rules of evidence go under (substantive, procedural, private, public)

Procedural

What are the divisions in the High Court?

Queen's Bench Divison Chancery Division Family division

What is a ratio decidendi

The reason for the decision. This forms precedent for future cases.

Where does the appeal go if the case was originally heard by a District Judge in a County Court? (civil)

To a Circuit Judge in the same County Court.

Where does the appeal go if the case was originally heard by a Circuit Judge? (civil)

To a High Court Judge.

What is reparation?

Where an offender compensates the victim or society for the offending behaviour

What does distinguish mean?

a method by which a judge avoids having to follow what would otherwise be a binding precedent.

Which type of law is more likely to involve the police?

criminal law

Who is the prosecutor?

the legal term for the person or organisation bringing a criminal charge against the defendant

What is the definition of mediation?

using a neutral person in a dispute to help the parties come to a compromise solution.

Is there a reduction in sentence for a guilty plea?

yes, particularly if they plead guilty early on. There will be a reduction of up to a third.

What is a stare decisis

"stand by what has been decided and do not unsettle the established". It is the foundation of judicial precedent.

What are the two types of precedent?

- Binding precedent - Persuasive precedent

Advantages of judicial precedent

- Certainty - Consistency - Faireness - Precision - Flexibility - Time-saving - Details can be added to statutory provisions - Law evolves

What is the literal rule and an example of it used

- Considering the literal and grammatically correct meaning regardless of how absurd the result - Lord Reid "We are seeking not what parliament meant but the true meaning of the words they used" - e.g. Whiteley v Chappel (1868) A statute made it an offence 'to impersonate any person entitled to vote.' The defendant used the vote of a dead man. The statute relating to voting rights required a person to be living in order to be entitled to vote.

Which courts are the lay people involved with?

- Magistrates' Court - Youth Court - Family Court - Appeals in Crown Court

What are some key areas of substantive and procedural law

- Nuisance - Bail - Treatment of suspects by Police - Criminal trail process

What are the four tasks that the Law Commission undergoes?

- Reform - Codification - Consolidation - Repeal

An act without fault is a ...

Accident

Explain the impact of directives as a secondary source of legislation and give a case example.

Directives are the main way in which harmonisation of laws within Member States occurs. As with regulations, it is Article 288 TFEU that gives the power to the Union to issue directives. There is however a difference from regulations in that Article 288 says such directives 'bind any Member State to which they are addressed as to the result to be achieved, while leaving to domestic agencies a competence as to form and means'. This means that Member States will pass their own laws to bring directives into effect. And such laws have to be brought in within a time limit set by the European Commission. The usual methods of implementing directives in the United Kingdom is by statutory instruments. Directives can also be implemented by other methods like Acts of Parliament. e.g. the Consumer Protection Act 1987. They may also be implemented by an order in Council made by the Privy Council.

What is the small claims track?

For disputes under £10,000 except for personal injury where the limit of £1,000 (however there are proposals to increase the limit to £5,000). These cases are usually heard in an ordinary court.

What is absolute liability

Full legal responsibility for damages or for an injury, without the need for proof and regardless of the degree of negligence or fault (don't require proof of any mens rea element)

Public law

Governs relationship between state and citizens

Which court will a claim of over £100,000 go?

High Court or County Court

Which court will a personal injury claim of £50,000 or more go?

High Court or County Court

What is justice?

Justice is the idea that the law is "fair" in how it seeks to punish wrongs

What is a challenge for the prosecution right to stand by jurors?

Only the prosecution has this right. It allows the juror who has been stood to be put to the end of the list of potential jurors, so that they will not be used on the jury unless there are not enough other jurors. The prosecution doesn't have to give a reason for "standing by" but the Attorney-General's guidelines make it clear it should be used sparingly.

What are the three types of delegated legislation

Orders in council, Statutory instruments and By-laws

What are the courts of first instance?

Refers to any court where the original trial of the case is held. Appellate courts do not hear the original trial. These courts are: - High Court - Inferior Courts: Crown Court, County Court and Magistrates' Court

Who does parliament delegate its powers to?

Secondary body

What is the role of Lord Justices of the Appeal?

Sit in both the civil and criminal divisions in the Court of Appeal. Usually sit in a panel of three to hear cases.

Which type of law does theft go under (substantive, procedural, private, public)

Substantive

How is the UK a constitutional monarchy?

The Queen is bound to exercise powers and authority only within the limits prescribed to the law

What is the case R v Registrar-General, ex parte Smith (1990)

The court provided that Smith (S) was a convicted murderer. As a result, S's application to obtain a birth certificate was rejected. Furthermore, the court refused S's access to judicial review. However, S believed that this was a harsh decision and appealed against the refusal. S claimed that he was entitled to the information under s.51 of the Adoption Act 1976. the court dismissed S's appeal and held that the legislation enabled the court to prevent a serious crime from being committed in the future. The court stated that there was a real risk to the life of S's natural mother. Therefore, S was unsuccessful.

What is legal aid?

The government help funding in a case.

What standard must the defendant must have fallen below?

The standards of a "reasonable person"

What are fast track cases?

Trial is heard by a Circuit Judge and can take place in an open court with a more formal procedure than the small claims. The hearing is limited to a maximum of one day.

What is the Court of Justice of the European Union?

Until the UK leaves the EU, the highest court affecting our legal system is the Court of Justice of the European Union. Points of EU law can be referred to it by the courts in England and Wales.

Where appeals from he High Court usually go?

Usually goes to the Court of Appeal (Civil Division). In rare cases it may do a "leap frog" appeal to the Supreme Court. Since 2015, such an appeal must involve an issue of national importance or raise issues of significant importance to warrant the leap frog. The Supreme Court must give permission for this. They must also give permission for an appeal from the Court of Appeal (Civil Division).

What was the first case to be referred to the Court of Justice of the European Union?

Van Duyn v Home Office (1974)

What is the Contracts (Rights of Third Parties) Act 1999?

We have seen a shift in law as stated bye judges with respect to third party rights in contract. From the approach in Tweddle v Atkinson (1861) where the claim failed be cause the claimant was not a party to the contract and therefore had no legal interest in the case. This strict rule had been modified by the 1999 Act but this Act had little practical effect as many contracts excluded its effect as there had not been any test off reasonableness.

What is a direct effect?

Where Member States have not implemented a directive within the time laid down, the Court of Justice of the European Union has developed the concept "direct effect".

What is a rule?

defined by Twining and Miers in Holw to Do Things with Rules (2014) as a "general norm mandating guiding conduct".

Where must either the prosecution of defence get permission from to appeal further to the Supreme Court?

from either the Supreme Court or from the Court of Appeal

What is a deterrence?

giving a punishment aimed at putting off the defendant from re-offending because of fear of punishment or preventing other offenders from committing similar crimes

What must be provided for the crown to prosecute the defendant

guilty as long as there's no reasonable doubt

What is substantive justice?

the content of the law itself must be just e.g. R v Iglis (2010)

What does rehabilitate mean?

trying to alter the defendant's behaviour so that they will not conform to community norms and not offend in the future.

In 2010, Lord Bingham published The Rule of Law, in which he identified the core principle of the rule of law being:

"...that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of the laws publicly and prospectively promulgated and publicly administered in the courts."

Using the three questions (in the previous flashcard), consider the balance of competing interests in contract law.

- "what interests can be identified?": the two parties in the contract are the obvious interests. However the two parties rarely act as equals. This is recognised by the Consumer Rights Act 2015. The state also wants to ensure that the different interests are served by law and that regulations ensure protection and encourage a thriving economy. Third parties also have a potential interest in a contract which may benefit them. - "what is the conflict between these interests?": conflict arises from a stronger party to dictate the terms of a contract. A conflict also arises from the principle that only a party to a contract can take legal action against it. - "what is the legal mechanism by which the conflict its mediated?": the law addresses these conflicts in a number of ways: 1. by implying terms in contracts between traders and consumers through the Consumer Rights Act 2015 2. by regulating the legal effectiveness of exclusion clauses in contracts not covered by the Consumer Rights Act 2015 3. through the Contracts (Rights of Third Parties) Act 1999 4. through judicial creativity with respect to remedies

What is an example of pressure group influence on parliament?

- 2007 laws against smoking in public places were introduced of because of public and medical opinion

Who is in the Law Commission

- A Chair (high court judge) - Four Law Commissioners - Support and research staff

What is binding precedent?

- A decision in an earlier case from a higher court which must be followed in later cases

Explain the doctrine of parliamentary supremacy (sovereignty).

- A.V. Dicey "The principle of parliamentary sovereignty means ... that Parliament ... has the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament" - meaning that Parliament can't control the actions of its future self, and the courts have no power to question the legality of an Act of Parliament e.g. BRITISH RAILWAYS BOARD v PICKIN (1974) - A private Act of Parliament from 1836 said that if a railway line was abandoned, the land beneath the tracks should become the property of the owners of the adjoining lands. Another private Act in 1845 followed the same pattern. The railway lines in question later became the property of the British Railways Board who promoted another private Act, the British Railways Act 1968. The latter Act cancelled the 1836 Act and put the lands beneath the abandoned track in the hands of the Board. Pickin purchased land adjoining the land where the abandoned track lay. Pickin sued the Board claiming that, based on the 1836 Act, part of the land beneath the abandoned track was lawfully his. The Board in turn argued that the 1968 Act - which in fact was promoted by the Board - invalidated the 1836 Act and that the land in question thus belonged to the Board The three main points given by Dicey: 1. Parliament can legislate on any subject matter 2. No Parliament can be bound by any previous Parliament, nor can a Parliament pass any Act that will bind a later Parliament 3. No other body has the right to override or set aside an Act of Parliament

What is the golden rule and an example of it used?

- An extension of the literal rule. Words will be given their literal meaning unless they produce an absurd result, either with wide (modify the words) or narrow approach (choose between possible meanings of word) - e.g. Re Sigworth (1935) A son murdered his mother. She had not made a will. Under the statute setting the law on intestacy he was her sole issue and stood to inherit her entire estate. The court applied the Golden rule holding that an application of the literal rule would lead to a repugnant result. He was thus entitled to nothing.

What are the advantages of tribunals?

- Cheapness, as applicants represent themselves without lawyers - Quick hearings, dealt with in a day - Informality, most cases are heard in private - Expertise, in some two non-lawyers sit to hear the case of the tribunal judge. These members of the panel are experts in the type of case being heard.

Comparison of juries with lay magistrates

- Cross-section from society: both involve members of the community making decisions in criminal cases. Juries are from wider range of background. - Local knowledge: both have local knowledge but jurors come from broader areas. - Cost: unpaid lay magistrates are cheap and the cost of replacing them with paid judges is around £100 million a year. For juries there is also a judge present and no saving of cost. - Training: lay magistrates have training and aren't complete amateurs

How is a jury selected?

- Crown Court official summons citizens to be jurors. - Randomly selects them from the electoral register for the area the court covers. - More than 12 are initially summoned by post. - Expected to attend for two weeks. - Prosecution and defence have the right to see and challenge the list of potential jurors. - The jury are also vetted.

What is an example of media influences on Parliament

- Dunblane massacre (1996) meant private ownership of handguns was banned

What are some other views on the rule of law?

- F.A. von Hayek agreed with Dicey that the key component for the rule of law is the absence of arbitrary power on the part of the state. He also thought the rule of law became weaker because provided actions of the state were authorised by legislation, any act in accordance with legislation is lawful. He also said that the modern state is directly involved in regulating economic activity and this conflicts the rule of law. - Joseph Raz set out a number of principles from this wider area: 1. there should be clear rules and procedures for making laws 2. the independence of the judiciary must be guaranteed 3. the principles of natural justice should be observed; these require an open and fair hearing with all parties being given the opportunity to put their case 4. the courts should have the power to review the way in which other principles are implemented to ensure they are being operated as demanded by the rule of law

What are the four aims of the Law Commission

- Fair - Modern - Simple - Cost-effective

What options do judges have when faced with a precedent set in an earlier case

- Followed (judge applied same principle of law) - Overruled (Court in later case states that decision from earlier case is wrong) - Distinguish (avoid following precedent is the facts of current case are sufficiently different)

What are the types of sources of legal advice?

- Help lines: e.g. Civil Legal Advice (CLA) is a government-funded scheme for providing advice. - Citizens Advice Bureaux: give free general advice on social-welfare issues e.g. entitlement to benefits. - Law Centres: free, non-means-tested legal service with many disadvantaged clients. They struggle to secure funding due to local authority cuts (some have closed). - Trade Unions: offer members free legal advice for all work-related problems. - Schemes run by lawyers: some solicitors run free half-hour first interview. The Bar Pro Bono Unit is run by volunteer barristers to give free advice to those who cannot afford to pay or get legal aid. - Advice in criminal cases: anyone held as suspect at a police station has the right to free legal advice.

What civil courts are juries used in?

- High Court for e.g. defamation - County Court (8 jurors instead of 12*) - or inquest by coroners court e.g. for Princess Diana's death

What is an example of Political influences on Parliament

- Hunting Act (2004) - Followed the promise by Labour party to outlaw fox hunting if elected

What are the two kinds of "aid" that judges can use for statutory interpretation?

- Internal / intrinsic aids - External / extrinsic aids

Give key facts about philosophers concerned with social justice.

- John Rawls described justice as fairness and he argued that two basic principles of justice would be evident in society - Robert Nozik's book Anarchy, State and Utopia is where he developed an entitlement theory of justice which consisted of three principles: 1) a principle of justice in acquisition, dealing with how property is initially acquired 2) a principle of justice in transfer, dealing with how property can change hands 3) a principle of rectification of injustice, dealing with injustices arising from the acquisition or transfer of property under two principles above. This contrasts with Rawls who argued that inequalities exist only where they benefit the most disadvantaged members of society

What are the advantages of law making in Parliament?

- Made by elected-representatives, this means it is democratic. There is a general election at least once every five years. - Acts of Parliament can reform whole areas of law in one Act. e.g. in the criminal law with the Fraud Act 2006, which abolished all the old offences of deception and fraud and created a new and simpler structure of offences. - Acts of Parliament can also set broad policies and give the power to others to make detailed regulations (delegated legislation). This is an advantage because the general structure is laid down by Parliament. - Law made by Parliament is certain and cannot be challenged, under the doctrine of parliamentary supremacy. - Before a Bill is presented to Parliament there will have been a consultation period on the proposed change to the law.

What are the moral values in contract law?

- Much of the law of equity was historically founded on principles of conscience, with maxims such as "equity will not allow a statute to be used as a cloak for fraud" and "he who comes to equity must come with clean hands" - Historically, certain contracts can be declared void because of their association with immorality e.g. Pearce v Brooks (1866) - a cab owner failed to enforce a contract with a prostitute who used his cabs for trade because the courts were not prepared to allow contracts for immortal purposes - In Otkrite International Investment Management Ltd v Urumov (2013) the court made a connection between morality and the law when it said "Public policy requires that the courts will not lend their aid to a man who founds his actions upon an immoral or illegal act. The action will not be founded upon an immoral or illegal effect, if it can be pleaded and proved without reliance upon such an act." - Economic duress - for their to be economic duress, the illegitimate pressure must come from beyond the tough commercial world. - When exclusion clauses are oppressive the law protects the consumer with the Consumer Rights Act 2015 or under the Unfair Contract Terms Act 1977. These Acts have aurally swung the balance too far the other way and the decision in e.g. L'Estrange v Graucob (1934) are unlikely to be replicated if the cases were to be heard today.

What is the Mischief rule and an example of it used

- Originating from Heydon's case (1584), this rule looks back to the gap in the previous law and interprets the Act to cover gap - e.g. Smith v Hughes (1960) The defendants were prostitutes who had been charged under the Street Offences Act 1959 which made it an offence to solicit in a public place. The prostitutes were soliciting from private premises in windows or on balconies so could be seen by the public.

What are the private sources of funding?

- Own resources: anyone who can afford it can pay for a solicitor and/or a barrister to deal with a legal matter. - Insurance - Conditional fee agreements: cannot be used in criminal cases. The solicitor and client agree the fee that would normally be charged for such a case. The agreement will also set out what the solicitor's success fee will be if they win the case. If the case is won, the client pays the normal fee plus the success fee.

What are disadvantages of law making in Parliament?

- Parliament doesn't always have the time to deal with all the proposed reforms e.g. law on assaults. - Even when a Bill is introduced by government the process of becoming an Act can take several months. - The government is in control of the parliamentary timetable and allows very little time for private members' Bills. Even when the private members' Bill is introduced it can be voted out by the government, so very few become law. - Acts of Parliament are often very long and complex, this makes them difficult to understand. -Delay in dealing with issues - the whole process can take years, alternatively 'knee jerk' legislation may be rushed through to deal with perceived problems e.g. Dangerous Dogs Act, - debates, especially in House of Commons, can take political approach rather than genuine consideration of new legislation', - House of Lords is non-democratic; MPs may represent only a small percentage of their constituency, - complexity - legislation is often written in complex language; there is often piecemeal development of laws; no codification or consolidation of legislation requiring the need to refer to more than one document; the need for subsequent statutory interpretation, - legislation may be a compromise between Commons and Lords, rather than making laws in the most workable format.

What are some examples of internal aids

- Preamble (introductory text) which may include some clues that will help with the Mischief rule or purposive approach - Explanatory notes - Key glossary of terms in some Acts

Disadvantages of judicial precedent

- Rigidity - Complexity - Illogical distinctions - Slowness of growth - A previous bad precedent needs an Act of Parliament to correct it - Not a democratic source of law

Who is the secondary body in statutory instruments and what is the reason for its use

- Secondary body: Government ministers - Reason: over 3,000 SIs made a year, parliament can't cope with volume or complexity e.g. Building Regulations 2010 made by Department for Communities and Local Government under the Building Act 1984

Who is the secondary body in Orders in Council and what is the reason for its use

- Secondary body: Privy Council - For quick response in emergency situations e.g. Constitutional reform Act (2005) allows the Privy Council to alter the number of judges in the Supreme Court

In what ways are judges in the English legal system thought as independant?

- Security of tenure of superior judges: they cannot be dismissed by the government. This originated from the Act of Settlement 1701. They can only be removed by a monarch following a petition from both Houses of Parliament, giving superior judges protection from political whims. - Tenure of inferior judges: Lord Chancellor with the consent of Lord Chief Justice has the power to dismiss inferior judges for incapacity or misbehaviour. - Immunity from suit: given immunity from prosecution for any acts they carry out in performance of their judicial function. They also have immunity for being sued in a civil case for actions taken or decisions made in the course of their judicial duties. Confirmed in Sirros v Moore (1975) when a judge in the Crown Court wrongly ordered someone's detention and no action could br taken against the judge as he acted in good faith. - Independence of the executive: superior judges cannot be dismissed by the government (they are truly independent from the government). They can make decisions that may displease the government without the threat of dismissal. Judicial independence is guaranteed under s 3 of the Constitutional Reform Act 2005. - Independence from case: judges must not try to answer a case where they have an interest in the issue involved.

What two kind of offences do not require fault

- Strict liability offences - Absolute liability offences

How can legal personnel be regulated?

- The General Council of the Bar: represents barristers in England and Wales. Promotes fair access to justice for all with the highest standards of ethics, equality and diversity. Also responsible for disciplining barristers who have breached the Code of Practice. - Bar Standards Board: the body which regulates the profession of barristers. It sets training and entry standards. It also sets out the Code of Conduct for barristers to comply with. The Board investigates any alleged breach and if serious it will be referred to a Disciplinary Tribunal arranged by an independent Bar Tribunals and Adjudication service. It can impose the following: - reprimand the barrister (formal warning) - make the barrister complete further professional development training - order the barrister to pay a fine up to £50,000 - suspend the barrister for up to 12 months - disbar the barrister (strike off, only in extreme cases) - The Law Society: governs the body of solicitors - Solicitors Regulatory Authority: deals with complaints about professional misconduct of solicitors - Chartered Institute of Legal Executives: (CILEx) provides education, training and development of skills for legal executives - CILEx Regulation Board: regulator of members of CILEx and investigates complaints about legal representatives. It will refer serious matters to the Disciplinary Tribunal which has the power to: exclude a person from membership or reprimand or warn the member. - Legal Ombudsman: deals with complaints against legal profession (deals with complaints against the handling of complaints by the Bar Standards Board, the Solicitors Regulatory Board and CILEx Regulatory Board. It can order a professional to: - apologise to client - give back any documents the client may need - put things right - refund legal fees - pay compensation (up to £30,000)

What are some examples of external aids

- The historical context of Act - Dictionaries and text books - Pervious commercial practise - Treaties with international law - The interpretation Act (1998) for statutory guidance

Why do parliament delegate legislation?

- Time - Expertise

Why don't the County court, Crown Court and Magistrates' Courts not create precedents?

- Too many cases going through them - They do not publish judgements

What is the prosecution allowed to appeal against?

- against a judges ruling: a right given by the Criminal Justice Act 2003. - against acquittal: only allowed in two limited situations. First is where the acquittal was the result of the jury being nobbled/being threatened or bribed. The Criminal Procedure and Investigations Act 1996 allows the prosecution to appeal. Second is where there is a new and compelling evidence of the acquitted person's guilt and it is in the public's interest for them to be retried. This power is given by the Criminal Justice Act 2003 and is available for serious offences. - referring a point of law: where the judge may have made an error in explaining the law to the jury. Under section 36 of the Criminal Justice Act 1972. - against sentence: under section 36 of the Criminal Justice Act 1988 the Attorney-General can apply for eave to refer an unduly lenient sentence to the Court of Appeal for re-sentencing.

What are the main areas of jurisdiction in the County Court?

- all contract and tort claims - all cases for the recovery of land - disputes over equitable matters such as trusts

What can the Court of Appeal do if they think the conviction is unsafe?

- allow the defendant's appeal and quash the conviction - vary the conviction to that of a lesser offence of which the jury could have convicted the defendant - if the appeal is against the sentence, the court can decrease the sentence but cannot increase it on appeal The Court of Appeal also has the power to order a retrial of the case in front of a new jury. If the Court of Appeal thinks the conviction is safe they can dismiss the appeal.

The present system of civil justice started in 1999 and is based on reforms recommended by Lord Wolf. What did he state the civil justice system should do?

- be just in the results it delivers - be fair with the way it treats litigants - offer appropriate procedures at reasonable costs - deal with cases at reasonable speed - be understandable to those who use it The reforms brought in the three-track system and gave judges more responsibility for managing cases. The reforms also led to a simplifying of documents and having a single set of procedures in both the High Court and the County Court. Lord Wolf also wanted more use of information technology and greater use of ADRs.

What are the disadvantages of using the courts?

- cost: taking the case to court often costs more than the amount claimed. In the HC the cost can be hundreds of thousands of pounds. - delay: may preliminary stages that you need to go through. Usually there is a wait of a year. - complicated process: many compulsory steps e.g. setting up pre-action protocols. - uncertainty: no guarantee of winning the case

What are the different categories of sentences available to adults?

- custodial sentences - community orders (such as curfew or unpaid work) - fines - discharges (either conditional or absolute)

If a declaration of incompatibility is made, the Government has the choice of:

- doing nothing - changing the offending law or practice - making a remedial order; this can include amending an Act or a piece of secondary legislation, and under section 10 of the Human Rights Act 1998 a piece of legislation can be repealed by ministerial order. Such a declaration should only be made as a last resort and s 3 requires the courts to do all they can to achieve compatibility.

What is the role of legal executives?

- handle various legal aspects of property transfer - assist in the formation of a company - draft wills - advise people on matrimonial problems

What three factors did sociologist Emilie Durkheim identify as contributions to common morality?

- increasing specialisation of labour - growing ethnic diversity within society - fading influence of religious belief

What are the two kinds of deterence?

- individual: prison sentence, heavy fine, suspended sentence. However custodial sentences see over 70% of young offenders re-offend - general: warns other potential offenders of the type of punishment they face e.g. rioting of summer 2011.

What are the disadvantages of tribunals?

- lack of funding: legal aid funding is not available for most tribunals, which may put the applicant at a disadvantage if the other side uses a lawyer. Legal aid is available for human rights cases. - more formal than ADR: the place is unfamiliar and the procedure can be confusing - delay: the large number of cases dealt with by tribunal means there can be delays in getting a hearing.

What are some factors that are taken into account with the mitigation of sentencing?

- mental illness of the defendant - physical illness of the defendant - no previous convictions - evidence of genuine remorse

What are the three types of strict liability torts?

- nuisance: an action to stop unreasonable use of neighbouring land - Rylands v Fletcher: an action for damage to land caused by material escaping from neighbouring land - vicarious liability: where an employee commits a tort in the course of their employment

What are the disadvantages of jury trial?

- perverse decisions: e.g. R v Randle and Pottle (1991) - the defendants were charged with helping spy, George Blake, escape from prison. The prosecution didn't occur util 25 years after and the jury acquitted them. - Secrecy: no way of knowing if the jury understood the case and if they came to their decision for the right reasons. e.g. R v Mirza (2004) - the defendant was a Pakistani who settled in the UK in 1988. He had an interpreter to help in trial. He was convicted on a 10:2 majority. Six days after the jury verdict, one juror wrote to the defendant's counsel alleging that there had been a theory that the interpreter was a "ploy". The juror also said she had been shouted down when she objected to the theory. - Exceptions: first is where there there has been a complete repudiation of the oath taken by the jurors to try the case according to the evidence. e.g. R v Young (Stephen) (1995) - D was charged with murder of two people. Overnight the jurors used a ouija board to try and contact the dead victims and ask who had killed them. The next day the jury returned a guilty verdict. The Court of Appeal quashed the conviction and ordered a retrial. - Jurors and the internet: judges direct the jurors not to look at the internet for information. the Criminal Justice and Courts Act 2015 makes it illegal for a juror to search the internet intentionally for relevant case information. - Racial bias: may have prejudices which affect the verdict. - Media influence: especially on high profile cases e.g. R v Taylor and Taylor (1993) two sisters charged with murder. - Lack of understanding - Fraud trials: complex - Jury tampering: e.g. R v Twomey and others (2009) - defendants were charged with various offences connected to a large robbery from a warehouse at Heathrow. Three previous trials had collapsed and there had been a "serious attempt at jury tampering" in the last of these. The Court of Appeal ordered that the trial should take place without a jury. - High acquittal rates - Compulsory nature makes it unpopular

What is included in the criminal justice service

- police - Crown Prosecution Service - criminal courts - Her Majesty's Prison Service - National Offender Management Service

What are some aggravating factors that are taken into account for sentencing? (set out in s 143 (1) of the Criminal Justice Act 2003)

- previous convictions for similar offences - if D was on bail when the offences was committed - racial or religious hostility - hostility to disability or sexual orientation

What are the advantages of a jury trial?

- public confidence: tried by one's peers - jury equity: not bound to follow precedent or even Acts of parliament and don't need to give reasons for their verdicts. They will decide cases on their idea of "fairness". e.g. Ponting's case (1984) - a civil servant was charged under section 2 of the Official Secrets Act 1911. He had leaked information on the sinking ship, the General Belgrano, in the Falklands war to an MP. At his trial he pleaded not guilty and claimed his actions were public interest. The jury refused to convict him even though there was no defence, this prompted the government to amend section 2. - open system of justice: makes the process more public. - secrecy of the jury room: free from pressure and protected from outside influence when deciding the verdict. - impartiality: not connected to anyone in the case.

What is the purposive approach and an example of it used

- recommended by the law commission and the EU, judges look to see what the purpose of the law is. An extension of the Mischief rule. - e.g. R v Registrar-General, ex parte Smith (1990)

What is the role of juries in civil cases?

- sole arbiter of fact - listen to evidence presented in court by claimant and defendant - case is summed up by judge - one juror appointed as foreman - jurors retire and deliberate in secret - unanimous verdict - majority verdict accepted after 2 hrs (11-1 or 12-0) - D either liable or not liable and if liable, the jury decides the amount of damages - standard of proof is on the balance of probabilities

What are the three categories of criminal offences?

- summary offences - triable-either-way offences - indictable offences

What are the two types of judges?

- superior judges: Justices of the Supreme Court, Lord Justices of Appeal in the Court of Appeal, High Court Judges - inferior judges: Circuit Judges who sit in both the Crown Court and the County Court, recorders who are part-time judges who usually sit in the Crown Court, District Judges who hear small claims, District Judges in Magistrates' Court, tribunal judges

What are the two proposals that Lord Briggs put forward in 2016?

- that there should be an out-of-hours private mediation service in the County Court and - that an online court should be set up

What are the two courts where civil cases are tried?

- the County Court - the High Court

What are the advantages of using the courts to resolve a dispute area?

- the process is fair in that everyone is treated alike and the judge is impartial - the trial is conducted by a legal expert with the decision being made by a judge who is an experienced and qualified lawyer - enforcement of the court's decision is easier as any decision made by a court can be enforced through the courts - there is an appeal process with specific appeal routes, so if the claimant isn't happy with the decision it is usually possible to appeal - it may be possible to get legal aid (though for civil cases this has been greatly reduced).

Lord Bingham set out the rule of law through eight principles which society, the state and the judiciary must embrace. His principles are these:

- the state must abide by both domestic and international law. This means that no government has the ability to act tag whim. - people should only be punished for crimes set out by law. - questions on the infringement of rights should be subject to the application of law, not discretion. - the law should be accessible, clear, precise and open to public scrutiny. - all people should be treated equally. - there must be respect for human rights. - courts must be accessible, affordable and cases should be heard without excessive delay. - the means must be provided for resolving , without prohibited cost or inordinate delay, bonafide disputes which the parties themselves are unable to resolve.

In 2009 the Treaty of Lisbon restructured the European Union. There are now two treaties setting out its rules. What are they?

- the treaty of the European Union (TEU) - the Treaty of the Functioning of the European Union (TFEU)

Lord Bingham's 8i principles result in a role of law in society, what is this?

- to protect people from harm - typically by the mechanisms of the criminal law - to ensure a common good - by providing facilities for all such as education and healthcare - to settle arguments and disputes

Where can appeals from the Magistrates' Court go?

- to the Crown Court - to the Administrative Court in the Queen's Bench Division

Once the court clerk has selected the jury of 12, both the prosecution and defence have rights to challenge one or more of the jurors (before they're sworn in), these are:

- to the array - for cause - prosecution to stand by (put to one side) jurors

What are the alternatives to jury trial?

- trial by a single judge: majority of civil cases and produces a fair result but have less public confidence - a panel of judges: allows for balance of views but this is expensive and there's not enough judges - a judge plus lay assessors: - a mini jury

When considering the balancing of interests, what three questions do we consider?

- what interests can be identified? - what is the conflict between these interests? - what is the legal mechanism by which the conflict is mediated?

What is the role of solicitors?

- writing letters on behalf of clients - drafting contracts - drawing up wills - dealing with conveyance (legal side of buying and selling flats, houses...)

What are the Parliamentary controls on delegated legislation?

1) Affirmative resolutions: a small number of SIs will not become law unless specifically approved by Parliament. The need for an affirmative resolution will be included in the enabling Act. One disadvantage of this procedure is that Parliament cannot amend the SI but it can only be approved, annulled or withdrawn. 2) Negative resolution: most SIs are subject to a negative resolution, which means that the relevant statutory instrument will be law unless rejected by Parliament within 40 days. The problem with this is that very few of the SIs will be looked at. 3) Questioning of government ministers: individual ministers will be questioned by MPs in Parliament on the work of their departments, this can include questions about proposed regulations 4) Scrutiny Committee: a more effective check is the Joint Select Committee on Statutory Instruments, usually called the Scrutiny Committee. This committee reviews all SIs and will draw the attention of both Houses of Parliament on areas which need further attention. The main grounds for referring a SI back to Parliament are that: - it imposes a tax or charge (only an elected body has this right) - it appears to have a retrospective effect which wasn't provided for in the enabling Act - it appears to have gone beyond the powers granted by the enabling Act - it makes some unusual or unexpected use of those powers - it is unclear or defective in some way *and the enabling Act controls the limits within which delegated legislation will be made.

Where could the persuasive precedent come from?

1) Courts lower in the hierarchy: e.g. R v R (1991) where the House of Lords agreed agreed with and followed the same reasoning as the Court of Appeal in deciding that a man could be guilty of raping his wife. 2) Decisions by the Judicial Committee of the Privy Council: this court is not part of the hierarchy in England and Wales so its decisions are not binding. However many judges are also members of the Supreme Court, so its judgements are treated with respect and may be followed. e.g. Wagon Mound (1961) 3) Statements made from the obiter dicta: statements made in a judgement that were not part in the point of law deciding the case. e.g. R v Howe (1987) ruled that duress couldn't be used as a defence to a charge of murder. Later in R v Gotts (1992) a defendant charged with attempted murder tried to argue duress but failed. 4) A dissenting judgement: a judgement given by a judge who disagrees with the reasoning of the majority of judges in the case. 5) Decisions of courts in other countries: especially when the other country uses the same ideas of common law to our system, (commonwealth).

What are the advantages of delegated legislation?

1) Granting law making powers saves parliamentary time 2) Access to technical expertise: experts can be consulted. 3) Allows consultation: ministers have the benefit of further consultation before regulations are drawn up. 4) Easy to amend: delegated legislation can be easily amended or revoked when necessary so that the law can be kept up to date. Ministers can also respond to unforeseen situations by amending regulations made through a statutory instrument.

What are the disadvantages of delegated legislation?

1) Lacks publicity, over 3,000 SIs a year but public aren't aware 2) Parliamentary controls aren't always effective and the Scrutiny Committee can't scrutinise all of them 3) Danger of delegated bodies sub-delegating 4) The doctrine of parliamentary sovereignty is eroded as judges can use ultra vires to void delegated legislation 5) Delegated legislation is not a democratic source of law as it is often made by people who are not democratically elected 6) Difficult wording from Acts of Parliament

What are the four ways judges can interpret rules (in order)

1) Literal rule 2) Golden rule 3) Mischief rule 4) Purposive approach

What are the reasons for using delegated legislation?

1) Need for detailed law: Parliament doesn't have the time to deal with all the detail needed. Using delegated legislation means that Parliament has control, through use of the enabling Acts, of what regulations are passed. 2) Need for expert knowledge: it is thought to be better for Parliament to debate the main principles thoroughly but to leave the detail to be filled by those with expert knowledge. 3) Need for local knowledge: for local by-laws, the local council knows their areas well to decide regulations on e.g. parking. 4) Need for consultation: consultation is important for rules on technical matters. By creating law through delegated legislation, ministers can have the benefit of consultation before having regulations drawn up. Some enabling Acts set out that there must be consultation before regulations are created. e.g. before any new or revised police Code of Practice under the Police and Criminal Evidence Act 1984 is issued, there must be consultation with a range of people including: - persons representing the interest of police authority - the General Council of the Bar - The Law Society

Compare legal and moral rules under the following headings: their origins, date of commencement, enforcement, ease of change, certainty of content, application of rules

1) Origins: law is original from common law and today statutes are a large source of law with delegated legislation. EU law is another major source. Moral rules are hard to trace back too an origin but could be e.g. Bible or Koran 2) Date of commencement: legal rules generally have a start date and precedents operate from the date of the decision although it can be argued they have a retrospective effect e.g. R v R (1991) Moral rules often don't have a date as they are gradual e.g. change n attitude to pre-marital sex over the last 100 years. 3) Their enforcement: legal rules are enforced by the courts following a designated procedure with appropriate sanctions. Sanctions may also be available to those who breach moral codes e.g. using offensive language. However moral codes are usually enforced by public disapproval. 4) Ease of change: legal rules are relatively easy to change as Parliament has the authority to pass a law whenever it wants but in practice this is slow. Moral rules tend to change gradually and it is often only in hindsight that we are aware of the change. 5) Certainty of content: normally possible to discover content through published statutes, delegated legislation and law reports . Moral rules may also be clear however knowledge of the rules can only be acquired informally through exposure. 6) Application of rules: legal rules apply to everyone the only difference is the person's ability to access the law. Moral rules range in application and different views are taken by individuals.

What are the three tracks in UK courts?

1) The small claims track 2) The fast track 3) The multi-track

How is the operation of the Court of Justice of the European Union different to English courts?

1) There is an emphasis on presenting cases "on paper". Lawyers are required to present their arguments in written form and there is less reliance on oral presentation of a case. This is of course partly due to the language barrier. This is now being used in some areas of the English legal system. 2) The use of Advocate General. This independent lawyer is not used in the English system. However, in the Court of Justice of the European Union the Advocate General who was assigned to the case will present their findings on the law after the parties have made their submission. 3) The deliberations of judges are secret and where necessary the decision will be made by a majority vote. This strongly contrasts to the English system where a dissenting judge makes it known that they agree/disagree with the majority and usually delivers a judgement to explain their reasoning. 4) The Court of Justice of the European Union isn't bound by past decisions and it prefers the purposive approach to interpretation.

Who are some key theorists for Positivism?

1. Aristotle - "Law should be reason free from passion" 2. Jeremy Bentham - "Natural law theory is nonsense upon stilts"

What is the process for how a Bill becomes an Act of Parliament?

1. Bill is drafted: law being proposed by Cabinet (minsters and the Prime Minister) and drafted by Parliamentary Counsel. The Government sets out its ideas in a discussion document (known as a Green Paper). Consultative bodies (connected to the Bill's subject area) are asked to comment. Civil servants gather together the opinions. The government department may then produce firm proposals (known as White Paper). 2. First reading in House of Commons: title is read out 3. Second reading in House of Commons: general principles are discussed. The Bill can be thrown out at this stage. 4. Committee stage: specialists in the subject area look at the Bill clause by clause in small groups (known as Standing Committees). 5. Report stage: Chairman of select committee reports findings to the House and further consideration and changes are then made by the whole House. 6. Third reading in House of Commons: only minor amendments are allowed 7. House of Lords: follows same process(no report stage), if they alter the Bill they have to send it back to House of Commons and so on (ping-pong procedure) ... If the Commons do not agree they bypass the Lords after 12 months (under Parliament Act) and an example of when this occurred was the Hunting Act 2004. 8. Royal Assent: queen either signs Letters Patent or signs Commission. She has no power to alter the proposed legislation.

Role of the Court of Justice of the European Union and give each role a case example.

1. Decides whether Member State has failed in its obligation Article 258 (TFEU) e.g. Tachographs case 2. Hears preliminary rulings Article 267 (TFEU) e.g. Van Duyn v Home Office

What are the two differing philosophies in legal debate to decide whether law should be enforced by moral values

1. Positivism 2. Natural law theory

What are the advantages of reform through the Law Commission?

1. Saves Parliamentary time - over 3,000 Acts have found to be redundant and repealed 2. Law is researched by legal experts - where practical recommendations are made (chair is a high court judge) 3. There is consultation before drawing up proposals - all interested parties get a say 4. Whole areas of law are considered - the impact of any new law on areas is explored 5. It can bring the law on one topic together in an Act - more accessible (Criminal Courts sentencing Bill) 6. Simplifies and modernises law - easier to understand and more accessible to all

Who are some key theorists for natural law theory?

1. St Thomas Aquinas - Natural law theory is a "dictate of the right reason" 2. James Fitzjames-Stephens - "The immorality of an action is good reason for it to be a crime and the law should be a persecution of the grosser forms of vice"

What are some disadvantages of reform via the Law Commission?

1. The government is slow to implement reforms - (offences against the person No. 218) 2. Some reforms may never be implemented - which wastes time and public money (Liability for Psychiatric illness No. 249) 3. Lack of Parliamentary time to discuss proposed reforms - Coroners and justice Act 2009 cherry picked elements of Law, Parliament didn't thoroughly scrutinise 4. Parliament may make changes to the proposed reforms without the benefit of legal expertise

When was the EU formed and when did the UK join

1957 1973

When was the Law Commission set up?

1965 by Law Commission Act 1965

What is the maximum prison sentence a Magistrate can give?

6 months for one offence or 12 months for two offences

What is a challenge to the array?

A challenge to the whole jury on the basis that it has been chosen in an unrepresentative way. This right to challenge is given by section 5 of the Juries Act 1974. This challenge was used successfully against the "Romford" jury at the Old Bailey (1993) and in R v Ford (1989) it was held that if the jury was chosen in a random manner it could not be challenged because it was not multiracial.

What is a Green Paper?

A consultative document issued by the government putting forward proposals for reform of the law and often inviting suggestions from consultative bodied (that are connected to the Bill's subject area).

What is persuasive precedent?

A decision which doesn't have to be followed in later cases but the judge may decide to follow:

What is the public funding in criminal cases? And explain the "interests of justice" test.

A defendant will only get help with legal funding if they can show at least one of the "interest of justice factors": - Whether, if any matter arising in the proceedings is decided against them, the individual would be likely to lose their liberty or livelihood or suffer serious damage to their reputation. - The case will likely involve consideration of a point of law. - The individual is unable to understand the proceedings in court or to state their own case. - The case is may involve tracing, interviewing or expert cross examination of witnesses. -It is in the interest of the other person that the individual be represented (e.g. rape case).

What are criminal law examples of liability depending upon fault?

A person should not be held liable for an offence unless she or he is blameworthy or at fault. This underpins the concept of mens rea in a criminal offence. The actus reus must be voluntary, case of Hill v Baxter (1958). However fault can also occur when the defendant omits of fails to do something when a duty has been imposed e.g. R v Dytham (1979) and R v Miller (1983) The partial defences to a charge of murder recognise that not all killings are equally blameworthy and that the level fault perceived may result in a conviction of lesser offence.

What is the "rule of law"? And list the three rights that the government are bound to uphold.

A symbolic idea with a main principle that all people are subject to and accountable to law that is fairly implied and enforced. Also, the process by which the laws of the country are enacted, administered and enforced must be fair. The rights are: - no person shall be sanctioned except in accordance with the law (in both civil and criminal) - there is equality before the law (no discrimination on any grounds) - there must be fairness and clarity of the law

What structure for tribunals was introduced by the Tribunals, Courts and Enforcement Act 2007?

A unified structure with a First-tier Tribunal to hear cases at first instance and an Upper Tribunal to hear appeals.

What are advantages and disadvantages of political influences on Parliament

ADV: Each political party already has proposals formed and a government majority means most of the Bills will be passed DISADV: Easy for a party to make a promise in its manifesto but hard to fulfil, especially without overall majority If a different party is elected in the next general election, they may decide to repeal or alter some of the laws the previous government made.

What are advantages and disadvantages of pressure group influences on Parliament?

ADV: Often bring important discoveries to government's attention DISADV: Occasions when two pressure groups have conflicting interests

What are advantages and disadvantages of media influences on Parliament?

ADV: The Uk's free press is able to criticise government policy or bring any other issue to the attention of the government using public opinion DISADV: Responding too quickly leads to poorly drafted law e.g. Dangerous Dogs Act (1991) Media companies can manipulate news to create public opinion.

What are the limitations on parliamentary supremacy?

Acts that allow a declaration of incompatibility: 1. Effect of the Human Rights Act 1998: States that all Acts of Parliament have to be compatible with the European Convention on Human Rights. It is possible to challenge an Act on the ground that it doesn't comply with the Convention. e.g. H v Mental Health Review Tribunal (2001) - a patient was making an application to be released, the Mental Health Act 1983 placed the burden of proof on the patient to show that they should be released. 2. Devolution: The Scotland Act 1998 and the Wales Act 1998 have devolved (handed down) certain powers to the Scottish Parliament and to the Welsh Parliament. As a result, they can make laws on some matters for their own countries without Parliament's approval. 3. EU membership: in 1973 Britain became a member of the European Union. While Britain is a member of the EU, there are limitations on parliamentary supremacy. EU law takes priority over British law. e.g. Merchant Shipping Act (1998) - set down rules for who could own and manage fishing boats registered in Britain. The Act was meant to protect British fishing stocks, however The Court of Justice ruled that this was contrary to EU law so the Act could not be enforced.

Discuss the advantages and disadvantages of parliamentary law making

Advantages : democratic, open discussion/scrutiny/amendment of proposals at several stages - especially second reading and committee stage in Commons and throughout Lords stages, introduction of proposed law after detailed inquiry/ Law Commission report, giving effect to election manifesto commitments, the supremacy of Parliamentary law, flexibility e.g. speed where required or introduction in either House. Disadvantages: delay in dealing with issues - the whole process can take years, alternatively 'knee jerk' legislation may be rushed through to deal with perceived problems e.g. Dangerous Dogs Act, debates, especially in House of Commons, can take political approach rather than genuine consideration of new legislation', House of Lords is non-democratic; MPs may represent only a small percentage of their constituency, complexity - legislation is often written in complex language; there is often piecemeal development of laws; no codification or consolidation of legislation requiring the need to refer to more than one document; the need for subsequent statutory interpretation, legislation may be a compromise between Commons and Lords, rather than making laws in the most workable format.

Briefly discuss advantages and disadvantages of the literal rule.

Advantages: that judges are applying the will of Parliament; it is democratic as unelected judges are not making law, merely applying law passed by Parliament, it is predictable - the same meaning is given every time a word is used in an Act, the result is certain - lawyers can advise their clients on the likely outcome, simplicity - only dictionary is required, speed. Disadvantages: rigidity - judges have no discretion, so if a bad precedent or absurd result is made, then judges cannot provide justice in individual cases, e.g. Berriman, Cheeseman, the rule cannot be used if words to be interpreted are not in an Act or if the words can have more than one meaning, the rule assumes that the Act is perfectly written e.g. Fisher v Bell, a possible need for Parliament to rectify error following case, e.g. Fisher v Bell, there is an assumption that Parliament meant the result which the rule achieves.

What does repeal mean in terms of Law Commission

An act will cease to be law. Only parliament can repeal an Act of Parliament. But the Law Commission can advise Parliament on which Acts need appealing e.g. the Statute of Marlborough 1267

What is a case stated appeal?

An appeal on a point of law that goes to the Administrative Court. Both the prosecution and the defence can use this appeal route. The appeal can be made direct from the Magistrates' Court of following the appeal to the Crown Court. This route is used by the defendant against a conviction or by the prosecution against an acquittal (where they claim the Magistrates came to the wrong decision). Although the appeal is made to the Administrative Court, the case can be sent to be heard by a panel of High Court Judges. This court is then known as the Queen's Bench Divisional Court.

What must be made to allow parliament to delegate its power?

An enabling or parent Act. They are regarded as primary legislation.

What are triable-either-way offences?

An offence that can be tried at either the Magistrates' Court or the Crown Court. Include wide range such as theft and assault causing actual bodily harm. If D is pleading guilty the case is heard by the Magistrates' and if they're pleading not guilty D has the right to ask for the case to be tried at the Crown Court by a jury.

What are summary offences

An offence that can only be tried in the Magistrates' Court. These are the least serious offences and are alway tried in the Magistrates' Court. They include nearly all driving offences, criminal damage of less than £5,000 and shop lifting of value less than £200.

What are indictable offences?

An offence that has to be tried at the Crown Court. The most serious crimes and can include murder, manslaughter and rape. The first preliminary hearing for an offence will be heard at the Magistrates' Court but then the case is transferred to the Crown Court. All indictable offences must be tried at the Crown Court by a judge and jury.

What is the further appeal from the Queen's Bench Divisional Court?

Appeal to the Supreme Court. Such appeal can only be made if: - the Divisional Court certifies that a point of law of general public importance is involved - the Divisional Court or the Supreme Court gives permission to appeal

As well as having to qualify under the "interests of justice" test, there is a strict means test in the Magistrates' Court. Explain this.

Applicants are either: - eligible for full legal aid (because they pass the initial or full means test) - ineligible (because they fail the initial or full means test) and are therefore expected to pay for legal representation privately Those on income support, defendants under the age of 16, those 18 and in full time education automatically pass the means test. For the rest, the first stage is calculating gross annual income, if below a certain level they will qualify.

What are the moral values in human rights law?

Assumption is that each person is moral and rational and deserves to be treated with dignity. The ECHR contains 14 articles setting out different individual rights which are mainly civil and political in nature. Absolute rights are based on morality and qualified rights find a balance between law and morality. Examples under Articles 5 and 8 ECHR - Mengesha v Commissioner of Police of the Metropolis (2013) - On 30 November 2011, amongst those attending a public sector trade union march was the claimant, acting, with others, as a legal observer. She is a law graduate and was a member of the "Bar in the Community" scheme at the Bar Pro Bono Unit. - In the afternoon, the police authorised containment of 100 people (among whom was the claimant). Containment is only lawful if preventing an imminent breach of peace (Article 5) - justified deprivation of liberty for lawful arrest or detention - as kit was a "procedure described by law". As the law then stood, the police could search the detained and organise the release. The Chief decided to film he release and ask for their details. The claimant as held in a separate area ad she attempted to ask, what police power was relied upon authorising the police to firm her and ask for her details. Those questions were not answered and she was told she wouldn't t be released until she answered - breach of Article 8 - the right to respect for private and family life, home and correspondence.

Give case examples that demonstrates the distinguishing process?

Balfour v Balfour [1919] A husband worked overseas and agreed to send maintenance payments to his wife. At the time of the agreement the couple were happily married. The relationship later soured and the husband stopped making the payments. The wife sought to enforce the agreement. Held:The agreement was a purely social and domestic agreement and therefore it was presumed that the parties did not intend to be legally bound. and Merritt v Merritt [1970] A husband left his wife and went to live with another woman. There was £180 left owing on the house which was jointly owned by the couple. The husband signed an agreement whereby he would pay the wife £40 per month to enable her to meet the mortgage payments and if she paid all the charges in connection with the mortgage until it was paid off he would transfer his share of the house to her. When the mortgage was fully paid she brought an action for a declaration that the house belonged to her. Held: The agreement was binding. The Court of Appeal distinguished the case of Balfour v Balfour on the grounds that the parties were separated. Where spouses have separated it is generally considered that they do intend to be bound by their agreements. The written agreement signed was further evidence of an intention to be bound.

Can mentally disordered people sit jury service?

Cannot sit on jury, under Criminal Justice Act 2003

What is a challenge for cause?

Challenging the right of an individual juror to sit on the jury e.g. if they're disqualified.

Explain the influences of law and morality on each other and the importance of morality.

Changing moral views can lead to developments in the law e.g. law relating to marital rape in R v R (1991) Owen J said "I find it hard to believe that it ever was a common law that a husband was in effect entitled to beat his wife into submission of sexual intercourse".

What are civil claims?

Claims made in the civil courts when an individual or a business believes that their rights have been infringed in some way.

What does "codification" mean in terms of the Law Commission?

Codification means reviewing the law on one topic and creating a complete code of law. When the Law Commission was first set up, its aim was to codify (rewrite) all elements of civil law, however the enormity of this task meant the idea was abandoned

What is the Commission and what is its function?

Consists of 28 Commissioners who act independently of their national origin. They are appointed for a five-year term and can only be removed by a vote of censure by the European Parliament. The Commission as a whole has several function as follows: - It puts forward proposals for new laws to be adopted by the Parliament and the Council. - It is the "guardian" of the treaties and ensures that treaty provisions and other measures adopted by the union are implemented. If a Member State has failed to implement Union law within its country, or has infringed a provision in some way, the Commission has a duty to intervene and, if necessary, refer the matter to the Court of Justice of the European Union. - It is responsible for the administration of the Union and has executive powers to implement the Union's budget and supervise how money is spent.

What does consolidation mean in terms of Law Commission?

Consolidation means drawing all the existing provisions in areas of law together into one Act, the law itself is not reviewed or changed

If there is a personal injury claim of £50,000 or less where will it go?

County Court

What is a Private Bill?

Create a law which only affects an individual or a corporation, not a whole community e.g. Faversham Oyster Fishery Company Bill 2016

What is a Hybrid Bill?

Cross between Public and Private Bills. Introduced by the Government but if they become law they will affect a particular person, organisation or place e.g. Crossrail Acts

Which court has unlimited powers in sentencing?

Crown Court, it can pass a custodial sentence up to the maximum length of that particular offence e.g. offence of occasioning ABH is 5 years imprisonment.

What is the Crown Court?

Currently sits about 90 different centres throughout England and Wales. Each year the Crown Court deals with about 80,000 cases. These can be: triable either-way offences, all indictable offences, appeals from the Magistrates' Court. Case is heard by a judge and jury of 12.

What are the 3 sources of law?

Custom, Statute, Common law

What are First-tier Tribunals?

Deals with around 600,000 cases each year and has nearly 200 judges and 3,600 lay members. It operates seven Chambers, these are: - Social Entitlement Chamber e.g. child support, gender recognition - Health, Education and Social Care Chamber - War Pensions and Armed Forces Compensation Chamber - General Regulatory Chamber - Taxation Chamber - Land, Property and Housing Chamber - Asylum and Immigration Chamber

What are the advantages of judicial independence?

Decisions only made on the evidence presented in court. Judiciary are able to protect citizens against unlawful acts of government. Public confidence in the judicial system.

What is negligence in civil law?

Defendant breaching a duty of care owed to the victim

What is a judicial control on delegated legislation?

Delegated legislation can be challenged in the courts on the ground that it is ultra vires. The validity of delegated legislation may be challenged by judicial review procedure. Any delegated legislation which is ruled to be ultra vires is void and not effective. e.g. R v Home Secretary, ex parte Fire Brigades Union (1995) - where changes made by the Home Secretary to the Criminal Injuries Compensation Scheme were held to have gone beyond the power given to him in the Criminal Justice Act 1988. The courts will presume that unless an enabling Act specifically allows it, there is no power to do any of the following: - make unreasonable regulations - in Strickland v Hayes Borough Council a by-law prohibiting the singing or reciting of any obscene song or ballad was held to be unreasonable and therefore ultra vires. - levy taxes - allow sub-delegation It is also possible for the courts to hold that delegated legislation is ultra vires because the correct procedure has not been followed. e.g. Aylesbury Mushroom case (1972) - The Minister of Labour had to consult "any organisation ... appearing to him to be representative of substantial numbers of employers engaging in the activity concerned". His failure to consult with the Mushroom Growers' Association (which represented 85% of all mushroom growers), meant his order establishing a training board was invalid for mushroom growers.

Compare AV Dicey's views on the rule of law to Von Hayek's and Raz's view on the rule of law.

Dicey: absence of arbitrary power on the part of the state, equality before the law, supremacy of ordinary law von Hayek: absence of arbitrary power on the part of the state, rule of law weakened by an increasingly interventionist state, modern state is directly involved in regulating economic activity in the rule of law Raz: clear rules and procedures for making laws, judicial independence must be guaranteed, principles of natural justice should be observed, courts should have the power to review the way in which other principles are implemented

What is the diagram for horizontal direct effect?

Directive ---> State fails to implement directive within the time limit ---> Claim is not against an "arm of state" ---> Individual cannot rely on the directive

What is the diagram to demonstrate vertical direct effect?

Directive ---> State fails to implement directive within the time limit ---> individual can rely on the directive

What is a horizontal direct effect?

Directives which have not been implemented do not, however, give an individual any rights against other people. e.g. Francovich v Italian Republic (1991) - the Italian government failed to implement a directive aimed at protecting wages of employees whose employer became insolvent. The firm for which Francovich worked went into liquidation owing him wages (which he was unable to get). So he sued the state for his financial loss. The Court of Justice of the European Union said he was entitled to compensation.

Discuss advantages of delegated legislation.

Discussion of advantages of delegated legislation• that it saves parliamentary time allowing parliament to focus on major issues;• delegated legislation can be made quickly because it does not have to go through either/both houses and can be used in the case of emergency;• often it is made for technical reasons to fill in the gaps in primary legislation; experts can be consulted for specific detail; • flexibility - different rules can be introduced in different areas (by-laws) as required by local need, or to deal with specific issues; • statutory instruments can complete the detail of a framework Act, or deal with regular amendments, e.g. changes in the annual amounts of the minimum wage; • there is some form of control by either Parliament or the judiciary; • some form of democracy is involved, as by-laws are made by local politicians and statutory instruments are made by, or in the name of, elected ministers.

The effect of EU law on statutory interpretation.

EU prefer the purposive approach, it has been adopted by the European Court of Justice in interpreting European law. This has affected the English courts in two ways. First, they have had to accept that for that law which has been passed as a result of having to conform to European law, the purposive approach is the correct one to use. Second, the fact that the judges have had to use this approach for over 40 years, they have become more accustomed to it, therefore more likely to apply it to English law. If the UK leaves the EU this will no longer apply.

What are multi track cases?

Each case is tried by a judge who will also be expected to manage the case, this includes: - identifying the issues at the early stage - encouraging the parties to use alternative dispute resolutions if appropriate - dealing with any procedural steps without the need for parties to attend court - fixing timetables by which the stages of the case must be completed Case management is aimed at keeping the costs of the case as low as possible and making sure that it is heard reasonably quickly.

What is the impact of European Union law on the law of England and Wales?

European law takes precedence over national law. This was first established in Van Gend en Loos (1963) which involved a conflict of Dutch law and European law on customs duty. The Dutch government argued that the Court of Justice of the European Union had no jurisdiction to decided whether European law should prevail over Dutch law; that was a matter for the Dutch courts to decide. However, the European Court rejected this argument.

Explain the rule of law and the legal system.

Every defendant in a criminal cases must have a fair trial. Trial by jury is seen as an important factor in maintaining fairness and protecting citizens' rights. No person can be imprisoned without a trial. In the civil justice system, people need to be able to resolve disputes in a system free from discrimination. The system should be affordable and accessible.

What is denunciation?

Expressing society's disapproval of an offender's behaviour. Reinforcing moral boundaries.

What is contributory negligence?

Fault that is shared between the two parties

What is vicarious liability?

Fault that is transferred from one person to another

What public funding is available for civil cases? And how would someone qualify for it?

Funding for legal aid comes from the government's budget. They can't afford to make legal aid available to everyone so there is a strict means test to qualify. The types of cases that allow legal aid are: those involving children's rights, involving the liberty of an individual. Breach of contract cases or small claims cannot get legal aid. A person applying for a government-funded advice or representation must show that they do not have enough money to pay their lawyer. People receiving Income Support or Income-Based Job Seekers' Allowance automatically qualify. If a person's gross income is above a set amount per month, they do not qualify. If the person's gross income is below the set amount per month, then their disposable income has to be calculated by starting with their gross income and taking away: tax and NI, housing costs, childcare costs or maintenance for children, an allowance for themselves. If the amount left is below minimum level, the applicant doesn't have to pay any contribution. Where the disposable income is between the minimum and maximum level, the person will pay a monthly contribution. Disposable capital refers to assets of the person (money in bank, jewellery...). In order to qualify for funding in the court case, the maximum limit for disposable income is £8,000.

What are Upper Tribunals?

Hears appeals. Divided into four chambers: - Administrative Appeals Chamber - Tax and Chancery Chamber - Lands Chamber - Asylum and Immigration Chamber

What does liable mean?

Held legally responsible to the breach of civil law

How do we balance competing interests in human rights law?

Human Rights law balances the individual and their freedom under the European Convention on Human Rights with the law of the state. The balance is between the individual and the state and its organs. It does this in three ways: - All UK law must be interpreted, so far as it is possible to do so, in a way that is compatible with rights under the convention. - If an Act of Parliament breach these rights, the legislation is incompatible with Convention rights. The law remains valid and it is up too Parliament to decide whether to amend the law. - It is unlawful for any public authority to act incompatably with human rights, unless required by a statutory duty to do so. Where an individual's rights have been violated, he or she can bring court proceedings against the public authority.

What is a Private Members' Bill?

Individual (private) MPs introduce a Bill. They can be from any political party and are known as "backbenchers". They can either introduce Bill by ballot or through the ten-minute rule. e.g. Household Waste Recycling Act 2003

What are some problems with Dicey's views on the rule of law?

It conflicts with the fundamental principle of parliamentary supremacy. This concept holds that no other body has the right to override or set aside an Act of Parliament. So under the rule of law there should be no arbitrary power on the part of the state (meaning it must be controlled by law). However under parliamentary supremacy, Parliament has the right to make any laws it wishes and these can include granting arbitrary powers to the state. Another problem is that equality before the law. In Dicey's theory he refers to formal equality but he disregards the difference between people in terms of wealth, power and connections. Real equality can only be achieved if there are ways to address these differences e.g. cost of going to court is very high.

What are the disadvantages of the golden rule?

It is very limited in its use and only used on rare occasions. It isn't always possible to predict when the courts will use the golden rule.

What are the advantages of the purposive approach?

It leads to justice in individual cases. It is a broad approach which allows the law to cover more situations than applying words literally. This approach is especially useful where there is new technology which was unknown when the law was enacted. e.g. R (Quintavalle) v Secretary of State, the embryo case 2003. It also gives judges more discretion other than using the literal meaning of words which may have crested an absurd situation.

What are the disadvantages of the purposive approach?

It may mean that judges refuse to follow the clear words of Parliament. It allows unelected judges to "make" laws. It is also difficult to discover the intention of Parliament. It leads to uncertainty in the law. It is impossible to know when the judges will use this approach or what result it might lead to. Making it difficult for lawyers to advise clients.

What is the Practice Statement 1966?

It was realised that the House of Lords should have more flexibility when it comes to binding to its previous decisions. So in 1966, the Lord Chancellor issued a Practice Statement announcing a change to the rule in London Street Tramways v London County Council (1898) that the House of Lords was completed bound by past decisions. The Practice Statement allowed the House of Lords to change the law if they believed that an earlier case was wrongly decided. e.g. Herrington v British Railways Board (1972).

What is the Court of Justice of the European Union?

Its function is set out in Article 19 of the TEU. This states that the Court must "ensure that in the interpretation and application of the Treaty the law is observed". The Court sits in Luxembourg and has 28 judges, one for each Member State. For a full court 11 judges will sit (for cases of exceptional importance) otherwise there are 5 or 3. Judges are appointed under Article 253 TFEU from those who are eligible for appointment to the highest judicial posts in their own country or who are leading academic lawyers. Each judge is appointed for a term of 6 years and the judges select one of themselves to be President of the Court. The Court is assisted by 11 Advocates General who also hold office for 6 years. Each case is assigned to an Advocate General whose task is under Article 253 is to research all the legal points involved and "to present publicly, with complete impartiality and independence, reasoned conclusions on cases submitted to the Court of Justice with a view of assisting the latter in the performance of duties".

who are the best known legal positivists and what are each of their theories?

Jeremy Bentham: a utilitarian and law reformer who made a distinction on what law is and commenting on its merits or otherwise. He believed that the philosophy old law should be concerned with purely what the law is. He wrote "The existence of law is one thing, its merit or demerit is another. A law which exists is a law, though we happen to dislike it." So as an individual or a group we may find the law offensive but this doesn't affect its validity. Morality is irrelevant to law. John Austin: developed the command theory of law which has three main principles: - laws are commands issued by the uncommanded commander - the sovereign - such commands are enforced by sanctions - a sovereign is one who is obeyed by the majority Austin recognised the sovereign as one whom society obeys habitually, either a single person (like the queen) or a collective sovereign such as Parliament, with a number of individuals each having serious authoritative powers. Sanctions in criminal law are straightforward - disobey the law and suffer punishment. ... modern legal positivists include Kelsen who argues that morality is no part of law and Raz argues that the existence of a legal system may be tested by reference to three elements: efficacy, institutional character, sources. As a legal positivist, Hart insists on the separation of law and morality. His model for law is more sophisticated than Austin's. He argues that there are two categories of rules, primary and secondary: - Primary rules either impose legal obligations or grant powers. Obligations include behaviour that is subject to criminal law and powers that enable an individual to e.g. make a will. - Secondary rules are concerned with the operation of primary rules: i) rule of recognition (sets criteria for identifying primary rules), ii) rules of change (identify how legal rules are formed, amended or repealed), iii) rules of adjudication (enable the courts to settle disputes and interpret the law).

Give key facts about philosophers concerned with utilitarianism.

Jeremy Bentham: developed legal and moral principle of utility : what makes an action right or wrong is the usefulness or value of the consequences it brings. The more an action increases overall happiness, the more valuable it is; and the more it decreases happiness, the more reprehensible. John Stuart Mill: Justice includes respect for people, for property and for rights, as well as the need for good faith and impartiality. All of these are consistent with the principle of utility, since their application brings the greatest happiness to the greatest number.

What are civil law examples of liability depending upon fault?

Law of tort is concerned with civil wrongs and in most areas liability will only be imposed where a party is at fault. The award of damages is compensatory and is intended too restore the claimant to his or her pre-accident position (sol far as money can). Contributory negligence can also apply which splits fault. Vicarious liability can occur without any fault. In the criminal case of Harrow LBC v Shah (1999) it can be argued that the guilty shop owner had not fault but merely responsibility

Procedural Law

Law that establishes the methods of enforcing the rights established by substantive law

What is the definition of EU regulations?

Laws issues by the Eu which are binding on Member States and automatically apply in each member country.

What is statue

Laws passed in Westminster (monarch, House of Commons, House of Lords). The UK parliament can also delegate to e.g. welsh government. An Act of Parliament is a law passed by statute.

Who is the defendant?

Legal term for a person defending of responding to a legal claim

What are the levels of fines given in the Magistrates' Court?

Level one: max £200 Level two: max £500 Level three: max £1,000 Level four: max £2,500 Level five: max unlimited, so the magistrates have to stay within the limit for the offence

What is natural law theory?

Maintains that law should be used to enforce moral values

What is Positivism?

Maintains that laws and morals should be kept separate

What is the role of barristers?

Majority concentrate on advocacy and barristers have the full right of audience.

Why is there a need for statutory interpretation?

Many Acts of Parliamentary passed each year. The meaning of laws in these statutes should be clear and explicit but this isn't always achieved. There could be: - a broad term e.g. Dangerous Dogs Act (1991) uses the word "type" does this mean breed? - ambiguity - a drafting error - Parliamentary Counsel who originally drafted the Bill may have made an error. Also where several old Acts have been brought together in one Act, there may be differences in wording e.g. section 18 and 20 of OAPA, section 18 uses the word "cause" and section 20 uses the word "inflict". - New developments - new technology may mean the old Act doesn't cover the present day situations. e.g. Royal College of Nursing v DHSS (1981) where medical science and methods had changed since the passing of the Abortion Act 1967. - Changes in the use of language - e.g. Cheeseman v DPP (1990).

What is the obiter dicta

Means "other things said". So it is all the rest of the judgement apart from the ratio decidendi. Judges in future cases do not have to follow it.

What does "reform" mean in terms of the Law Commission?

Means to "update" the law The Law Commission can choose areas it wishes to update or areas can be referred by the government via the Lord Chancellor The consultation will invite responses from interested parties and will include the problems with current law, suggestions for reform and and questions for interested parties to consider, as well as examples of how the area of law operates in other countries

What is the effect of European law on the sovereignty of Parliament?

Member States have transferred sovereign rights to the European Union. None of the Member States can rely on their own law when it is in conflict with European Union law. European law has supremacy over national law.

Can the decisions of one division of the Court of Appeal bind another division? Where does this rule come from?

No, however within each division decisions are usually binding (especially for the civil division). Comes from Young v Bristol Aeroplane Co. Ltd (1944) - and the only exceptions allowed by that case are: - where there are conflicting decisions in past Court of Appeal cases, the court will choose which to follow and which to reject. - where there is a decision of the Supreme Court/House of Lords which effectively overrules a Court of Appeal decision, the court must follow the decision of the Supreme Court/House of Lords. - where the decision was made per incuriam, that is carelessly or by mistake because of a relevant Act of Parliament or other regulation has not been considered by the court (only in rare and exceptional cases).

Explain the appeal path from the Magistrates' Court to the Crown Court.

Normal route of appeal that is only available to the defence. If D pleas guilty they can only appeal against the sentence. If D pleas not guilty they can appeal against the conviction and the sentence.

What power does the Magistrates' have for custodial sentences?

Only has the power to send a person to prison for 6 months for one offence or 12 months for two. They cant impose any longer custodial sentences.

What are appeals from the prosecution from the Crown Court?

Originally the prosecution had no right to appeal against either the verdict or the sentence. However some limited rights of appeal have been granted.

What are conscientious objectors?

People who refuse to fight in a war on religious, moral or ethical grounds. e.g. R v Lyons (2011)

How is the potential list of jurors "vetted"?

Police checks: routine police checks are made on prospective jurors e.g. R v Crown Court at Sheffield, ex parte Brownlow (1980) the defendant was a police officer and the defence sought permission to vet the jury panel for convictions. The Court of Appeal said that vetting was unconstitutional and a serious invasion of privacy and not sanctioned by the Juries Act (1974). However in R v Mason (1980) the Court of Appeal approved of this type of vetting. Wider background checks: wider checks made on jurors background and political affiliations.

What are the sources of European Union law?

Primary sources of law: mainly Treaties, the most important is the Treaty of Rome itself and now the Treaty of the European Union. Secondary sources of law: legislation passed by the institutions of the Union under Article 288 TFEU. This secondary legislation is of three types: treaties, regulations and directives.

What is procedural UV?

Procedural UV is when the secondary body has exceeded its powers and failed to follow the procedural instructions in the parent Act - e.g. Agriculture Training Board v Aylesbury Mushrooms Ltd. (1972)

What are the advantages of the mischief rule?

Promotes the purpose of the law as it allows judges to look back at the gap in the law which the Act was designed to cover. This approach is more likely to produce a "just" result. It also means that judges try to interpret the law in the way that Parliament meant it to work.

What is the role of the Council?

Propose laws to the EU Parliament and co-legislate with them. The Council is the principle law-making body of the Union. Voting is in 80% of the decisions, by qualified majority which is reached if two conditions are met: - 55% of member states vote in favour - meaning 16 out if 28 - the proposal is supported by member states representing at least 65% of the total EU population.

What are the reasons for judicial independence?

Protects the liberty of the individual from abuse of power of the executive. In judicial reviews, judges often have to decide if if an act or decision by the government is reasonable. So it's important that the judges can carry out this function without fear of the repercussions. Judges should be impartial in their decisions. It is vital each judge is able to decide cases solely on the evidence presented in court.

What are the basic qualifications and disqualifications for jurors?

Qualifications: aged between 18 and 75 inclusive, registered as a parliamentary or local government elector, ordinarily resident in the United Kingdom, Channel Islands or the Isle of Man for at least 5 years since 13th birthday. Disqualifications: imprisonment for life, detention during Her Majesty's pleasure (prison) or during the pleasure of the Secretary State (a young offenders' institute), imprisonment for public protection, an extended sentence, a term of of imprisonment of 5 years or more or a term of detention of 5 years or more.

What is a key case for Positivism and natural law?

R v Wilson (1996) - Defendant branded his initials on his wife's buttocks with a hot knife, at her request. - Her skin became infected so she sought treatment, the doctor reported to police. - The husband was charged with ABH (it was consensual)

Who is the secondary body in by-laws and what is the reason for its use

Secondary body: Local authorities and public corporations for matters within their jurisdiction Reason: Parliament has neither time or local knowledge e.g. drinking ban zone is a Designated Public Place Order put in place by local councils under the Criminal Justice and Police Act 2001

The effect of the Human Rights Act 1998 on statutory interpretation.

Section 3 of the Human Rights Act says that, so far as it is possible to do so, legislation must be read and given effect in a way which is compatible with the rights in the European Convention on Human Rights. This applies to any case where one of the rights is concerned, but doesn't apply when there's no involvement in human rights. e.g. Mendoza v Ghaidan (2002) - The Rent Act applied where the person who had the tenancy of a property died. It allowed unmarried partners to succeed to the tenancy as it stated "a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant". The question was whether same sex partners had the same right. A House of Lords' decision (made before Human Rights Act) had ruled that they do not. The Court of Appeal held that the Rent Act had to be interpreted to conform with the European Convention on Human Rights which forbids discrimination on the ground of gender.

Explain the Bushell's case (1670).

Several jurors refused to convict Quaker activists of unlawful assembly. The trial judge would not accept the not guilty verdict, and ordered the jurors to resume their deliberations without food or drink. When the jurors persisted in their refusal to convict, the court fined them and committed them to prison until the fines were paid. On appeal, the Court of Common Please ordered the release of the jurors, holding that jurors could not be punished for their verdict.

What are preliminary rulings?

Since rulings made by the Court of Justice of the European Union are are then binding on courts in all Member States. This ensures that the law is uniform throughout the European Union. A request for a preliminary ruling is made under Article 267 TFEU. This says that: The Court of Justice shall have jurisdiction to give preliminary rulings concerning: a) the interpretation of treaties b) the validity and interpretation of acts of the institution of the Union c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. Article 267 goes on to state that where there is no appeal from the national court within the national system, then such a court must refer points of the European Law to the Court of Justice of the European Union. Other national courts are allowed to make an Article 267 reference, but as there is still an appeal available within their own system, such courts do not have to do so. They have discretion. Applied to the court structure in England and Wales, this means that, while we remain a member of the EU, the Supreme Court must refer questions of European law, since it is the highest appeal court in our system. However, the Court of Appeal doesn't have to refer questions. It has a choice and may refer or may decide the case without a referral. The same is true of all the lower courts. Even courts at the bottom of hierarchy can refer questions of law under Article 267 if they feel that a preliminary ruling is necessary to enable a judgement to be given.

If there is a personal injury claim of £1,000 or less where will it go?

Small claims track

Which court will a claim of £10,000 or less go?

Small claims track

What is strict liability?

Strict liability is a theory that imposes legal responsibility for damages or injuries even if the person who was found strictly liable did not act with fault or negligence (don't need to prove mens rea for at least one element)

What is Substantive UV?

Substantive UV is when a secondary body has gone beyond the powers granted to it and made more regulations than permitted - e.g. R v Secretary of State for Health ex parte Pfizer Ltd. (1999)

Explain the rule of law and substantive law.

Substantive means the law in different areas. Whatever the area, it's important that the rule recognises that people have key rights and that the laws are not oppressive. - Criminal laws are aimed at protecting people, such as murder or manslaughter. Other offences are aimed at protecting property, such as theft. Other offences can be aimed at preventing disruptive behaviour nor regulatory offences. The courts cannot impose a higher penalty than the maximum penalty. - Many torts are aimed at protecting people and their property and giving the right to claim compensation for damage caused by the breach in the law. Public funding for making claims in tort law is no longer available, so it is difficult for some to claim. - Contract law recognises that, in most cases, people should be free to make the agreements they wish. However there may not be equity before parties so e.g. the Consumer Protection Act 1987 gives consumers wider rights where they are injured or their property is damaged by faulty goods. So if an item is bought as a gift for someone else, the person can claim if there is a fault which causes injury. The Consumer Rights Act 2015 also

Hierarchy of courts for civil cases:

Supreme Court Court of Appeal (Civil Division) Divisional Courts High Court County Court Magistrates' Court

Hierarchy of courts for criminal cases:

Supreme Court Court of Appeal (Criminal Division) Queen's Bench Division Crown Court Magistrates' Court

How did the Criminal Appeal Act 1995 simplify the grounds under which the court can allow an appeal? (appeals by defendant)

The Act states that the Court of Appeal: - shall allow an appeal against conviction if they think that the conviction is unsafe; and - shall dismiss such appeal in any other case

What is the case Royal College of Nursing v DHSS (1981)

The Royal College of Nursing brought an action challenging the legality of the involvement of nurses in carrying out abortions. The Offences Against the Person Act 1861 makes it an offence for any person to carry out an abortion. The Abortion Act 1967 provided that it would be an absolute defence for a medically registered practitioner (ie a doctor) to carry out abortions provided certain conditions were satisfied. Advances in medical science meant surgical abortions were largely replaced with hormonal abortions and it was common for these to be administered by nurses. Held:It was legal for nurses to carry out such abortions. The Act was aimed at doing away with back street abortions where no medical care was available. The actions of the nurses were therefore outside the mischief of the Act of 1861 and within the contemplate defence in the 1967 Act.

What is the Queen's Bench Division?

The biggest of the three divisions. Deals with contract and tort cases where the amount claimed is over £100,000, though it can hear smaller claims where there is an important point of law. Cases are normally tried by a single judge but there is a right to jury for fraud, libel, slander, malicious prosecution and false imprisonemnt cases.

What is the balance of probabilities?

The civil standard of proof which means the claimant must satisfy the court that their version of events is more likely than not

What is ultra vires?

The delegated legislation goes beyond the powers that Parliament granted in the enabling Act. Where any delegated legislation is ultra vires, then it is not valid law.

What are the advantages of the golden rule?

The golden rule respects the exact word from Parliament except in limited situations. Allows the judge to choose the most sensible meaning where there is more than one meaning.

What is the Council of the European Union?

The government of each nation in the Union sends a representative to the Council. The Foreign Minister is usually a country's main representative, but a government can send any minister to the Council's meetings. Usually twice a year government heads meet in the European Council or "Summit" to discuss broad matters of policy. The Member States take it in turn to provide the President of Council, each for six-month period. To assist with the day to day work of the Council there is a committee of permanent representatives. The Council is the principle law-making body of the Union. Voting is in 80% of the decisions, by qualified majority which is reached if two conditions are met: - 55% of member states vote in favour - meaning 16 out if 28 - the proposal is supported by member states representing at least 65% of the total EU population.

What are the disadvantages of the literal rule?

The literal rule assumes every Act will be perfectly drafted. This isn't always possible. e.g. Whitley v Chappell (1868) - A statute made it an offence 'to impersonate any person entitled to vote.' The defendant used the vote of a dead man. The statute relating to voting rights required a person to be living in order to be entitled to vote. Held:The literal rule was applied and the defendant was thus acquitted. Another problem is that a word can have more than one meaning e.g. the word "type" in Dangerous Dogs Act 1991. Following the words exactly can lead to unfair or unjust decisions. e.g. London & North Eastern Railway Co. v Berriman (1946) where a workman's widow was unable to claim compensation when he was killed while maintaining the track. Her claim failed because he was not "relaying or repairing" it.

What is the Chancery Division?

The main business of this division involves disputes of matter such as: insolvency, the enforcement of mortgages, disputes relating to trust property, copyright and patents, intellectual property matters. Cases are heard by a single judge and there are never juries.

What is the European Parliament?

The members of the European Parliament (MEPs) are directly elected by the electorate of the Member States in elections that take places every five years. Within the Parliament, the members operate in political groups with those of the same political allegiance. The Parliament meets once a month for sessions that can last up to a week. It has standing committees which discuss proposals made by the Commission and then report to the Parliament for debate. The Parliament used to only have a consultative role but it can now co-legislate on an equal footing with the Council in most areas. It can improve or reject the legislative proposals made by the Commission, or propose amendments to them. There are some areas, such as competition laws, where the Parliament cannot make law but only has the right to be consulted and put forward its opinion. The Parliament also: - decides on international agreements - decides on whether to admit a new member States - reviews the Commission's work programme and asks to propose legislation.

What are the moral values in tort law?

The neighbour principle in Donoghue v Stevenson (1932) is similar to Good Samaritan rule Duty of care to trespassers was introduced in British Railways Board v Herrington (1972) which brought in the concept of common humanity and the subsequent law commission report led to the Occupiers Liability Act 1984. Rylands v Fletcher - this rule of strict liability reflects a person's moral ability of the consequence of an escape of something brought onto land. Liability was made strict otherwise the necessary proof for negligence or nuisance could be made very difficult (person would be able to evade moral responsibility).

What are the advantages of the literal rule?

The rule follows the words that Parliament used. This prevents unelected judges from making law. Another advantage is that the literal makes the law more certain, as it will be interpreted exactly as it is written. People will know how the judges will apply it.

Explain the rule of law and law making.

The rule of law is very important when it comes to law making. The process must be open and fair. In our legislative system, Acts have to be passed by both Houses of Parliament. Where the House of Lords can exercise checks on the law-making process. One area where the House of Lords has continuously voted against is allowing trials in the Crown Court without a jury. The government can also make regulations through statutory instruments. There are several checks on this delegated legislation: Parliament must make an enabling Act, there are also various powers to scrutinise and check the regulations and finally the regulations can be challenged in court through judicial review.

What are the disadvantages of the mischief rule?

There is a risk of judicial law making. The case of Royal College of Nursing v DHSS (1981) shows that judges do not always agree with the mischief rule. It may lead to uncertainty in the law. It is impossible to know when the judges will use the rule and what result this might lead to. This mischief rule is not as wide as the purposive approach as it is limited to looking back at the gap in the old law. It cannot be used for more general consideration.

What are EU directives?

These are issued by the EU and direct all Member States to bring in the same laws throughout the countries.

What are lay magistrates?

These are unpaid, part-time judges who have no legal qualifications and hear cases in the Magistrates' Courts.

What is a Public Bill?

These involve matters of public policy affecting the whole country (or a large section). Most government Bills are in this category e.g. Legal Aid e.g. Legal Aid, Sentencing and Punishment Act 2012

What is the Family Division?

This division hears family cases where there is a dispute about which country's laws should apply and all international cases concerning family matters under The Hague Convention. Cases are heard by a single judge and juries aren't used.

Who are some natural law theorists and what were their principles?

Thomas Aquinas: combined the philosophy of Aristotle with christian theology, including the bible and the Ten Commandments ad Catholic church tradition. He sets out four new kinds of law: - eternal law where all things have a natural tendency to pursue their own god-given goals because all things are created by god. - natural law which is the moral code that human beings are naturally inclined towards. - positive divine law is the commands of god (10 Commandments) - positive human law must be in accordance with natural law Lon Fuller: he wrote "The Morality of Law" in 1964. he rejected legal positivism and also traditional religious forms of natural law theory. He argued that the law serves the purpose of achieving "social order through subjecting people's conduct to the guidance of general rules by which they may themselves orient their behaviour". Therefore the law must satisfy 8 principles, law should be: - in existence - there must be rules which exist and not rules created for each specific case - promulgated - published as law should be public - prospective - set out in advance - clear and concise - understood and obeyed by everyone - not contradictory in nature - not require the impossible - humans must be capable of fulfilling - constant - can't keep changing rapidly - applied and administered as stated - officials must act in accordance with the law

What are appellate courts?

Those that hear appeals. In our legal system these are: - Supreme Court: its decisions bind on all other courts in the English legal system but not bound by its own past decisions. - Court of Appeal: two divisions (civil and criminal) bound to itself (with limited exceptions) and the Supreme Court. - Divisional Courts: Queen's Bench, Chancery, Family. Bound by decisions of Supreme Court and the Court of Appeal and their own past decisions.

What are the key functions of the Court of Justice of the European Union?

To ensure that the law is applied uniformly in all Member States and it does this by performing two key functions. First is that it hears cases to decide whether Member States have failed to fulfil obligations under the Treaties. Such actions are usually initiated by the European Commission, although they can also be started by another Member State. e.g. Re Tachographs: The Commission v United Kingdom (1979) in which the court held that the United Kingdom had to implement a Council regulation on the use of mechanical recording equipment (RE tachographs: The Commission v The UK (1979)) in road vehicles used for the carriage of goods. The second function is that it hears references from national courts for preliminary rulings on points of European law.

What does sue mean?

To take civil legal proceedings against a defendant

Where do second appeals go (civil)? And how common are they?

To the Court of Appeal (Civil Division). However such further appeals are only allowed in exceptional cases as set out in section 55 of the Access to Justice Act 1999 which states: no appeal may be made to the Court of Appeal... unless the Court of Appeal considers that - a) the appeal would raise an important point of principle or practise b) or, there is another compelling reason for the court to hear it.

What is the further possible appeal route from the Upper Tribunal?

To the Court of Appeal and from here a final appeal to the Supreme Court

What is the role of High Court Judges?

To try cases. These are known as cases at first instance because it is the first time they have been heard in court. Judges sit on their own. High Court Judges also hear some appeals mainly from civil cases tried in the County Court.

What is the role of tribunals?

Tribunals enforce rights which have been granted through social and welfare legislation. There are many different rights such as: - the right to a mobility allowance for those too disabled to walk more than a very short distance - the right to a payment if one is made redundant from work - the right to not be discriminated against because of one's race, sex, age or disability these are just a few of the types of rights tribunals deal with.

What do this injured try to do instead of starting a court case?

Try to negotiate an agreed settlement with the person who caused the injuries or damage to their property. Using a method other than going to the courts is called an Alternative Dispute Resolution (ADR).

What is reformation?

Trying to reform the offender's behaviour so that they will not offend in the future.

To what extent should the law seek to enforce any moral views? (covering harm principle)

Two starting points: - the law, as a guardian of public morals, should intervene to ensure the continuation of dominant morality within the state - individuals should be left free to decide their own morality Influence of John Stuart Mill: Book "On Liberty" he developed the harm principle as a test for where society can be permitted to interfere with individual liberty. "The only principle for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant ... Over himself, his own body and mind, the individual is sovereign." under this principle, an individual should be allowed to harm him or herself an d society can only intervene where his or her conduct harms others. Mill recognised problem: - does not apply to those who are not in the maturity of their faculties (children) who must be protected against their own actions too. - not clear what constitutes "harm", physical or otherwise - a logical extension would be that crimes without victims shouldn't be crimes at all

Explain the impact of regulations as a secondary source of legislation and give a case example.

Under Article 288 TFEU the European Union has the power to issue regulations which are "binding in every respect and directly applicable in each Member State". e.g. RE Tachographs: Commission v United Kingdom (1979) - A regulation requiring a mechanical recording equipment to be installed in lorries was issued. The United Kingdom government on the day decided not to implement the regulation, but to leave it to lorry owners to decide whether or not to put in such equipment. When the matter was referred to the Court of Justice of the European Union it was held that Member States had no discretion in the case of regulations. The wording of Article 288 was explicit and meant the regulations were automatically law in all Member States.

How could we compare the courts and alternative dispute resolutions?

Using ADR is much cheaper than going to court However in commercial mediations you may need lawyers involved however there is still money saved. Most forms of ADR have the parties in control. In negotiation and mediation the parties can choose to stop at any time and an agreement is only reached if both sides accept it. The parties will be able to continue business with each other.

What is a vertical direct effect?

Where an individual can claim against the state even when a directive has not been implemented. e.g. Marshall v Southhampton and South West Hampshire Area Health Authority (1986) - Miss Marshall was required to retire at 62 when men in the same job retired at 65. Under the Sex Discrimination Act 1975 in English law this wasn't discriminatory. However she was able to succeed in action for unfair dismissal by relying on the Equal Treatment Directive 76/207. The Court of Justice of the European Union imposed obligations on the Member State. Allowing Miss Marshal to claim against her employers because they were "an arm of the state".

Explain the impact of Treaties as a source of secondary legislation and give a case example.

While the UK is a member of the European Union any Treaties made by the European Union are automatically part of our law. This is a result of the European Communities Act 1972, s 2(1) which states that: "All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom, shall be recognised and available in law and shall be enforced, allowed and followed accordingly." e.g. Macarthys Ltd v Smith (1980) - Wendy Smith's employers paid her less than a male predecessor for the same job. As two people weren't employed at the same time there was no breach of English domestic law. However, Wendy Smith was able to claim that the company which employed her was in breach of Article 157 TFEU over equal pay for men and women and this claim was confirmed by the Court of Justice of the European Union.

How do we keep an accurate record of previous precedents

With law reports - Accuracy is overseen by independent lawyers

Can lawyers and police officers sit on jury?

Yes after the Criminal Justice Act 2003, many people feel this could lead to bias or to juror influencing. This issue was considered in R v Abdroikof, R v Green and R v Williamson (2007)

Who hears the cases in the County Court?

a Circuit Judge or a District Judge and they will rarely sit with a jury of 8 (only in defamation cases or for the torts of malicious prosecution or false imprisonment)

What is original precedent?

a decision on a point of law that has never been de coded before

What is a pluralist society?

a diverse society where the people in it believe all kinds of different things and tolerate each other's beliefs even when they don't match their own

What is pluralism?

a form of society in which the members of minority groups maintain their independent cultural traditions.

What is a society?

a group of people with common territory, interaction, and culture

What are custodial sentences?

a judicial sentence, imposing a punishment consisting of mandatory custody of the convict, either in prison or in some other closed therapeutic or educational institution, such as a reformatory, (maximum security) psychiatry or drug detoxification (especially cold turkey).

What is natural law?

a moral theory or jurisprudence which maintains that law should be based on morality and ethics.

What is the definition of morality?

a particular system of values and principles of conduct, especially one held by a specific person or society

What are cause pressure groups?

a pressure group that exists to promote a particular cause e.g. Greenpeace

What are sectional pressure groups?

a pressure group that represents the interests of a particular group of people e.g. the Law Society

what is procedural justice?

concerned with making and implementing decisions according to fair processes

What is distributive justice?

concerned with the fair allocation of the benefits (e.g. money and family life) and responsibilities (taxes, civic duties) of life. Several philosophers who have expounded this view: - Aristotle: He described justice (similarly to Plato) as referring to individuals in their dealings with each other, and to the state in making and enforcing laws. He often stressed the need for proportionality, and for achieving the middle way - a balance between extremes. - Thomas Aquinas: justice governs our relationships with other people, the willingness to deal with other people as they deserve. The end result of justice is the common good for the individual and society. Distributive justice concerns the fair allocation of goods and responsibility which is done by due proportion. Meaning that people receive what they are due, in accordance with their merit, rank and need. - Karl Marx: "from each according to his ability, to each according his need". This gives two principles of the ideal of communism: i) each will maximise his or her contribution to the common wealth by making full use of his or her abilities ii) each will receive coding to his or her need, irrespective of the personal contribution he or she has made to the production process". Aristotle would've regarded this model unjust as it has the potential to give the greatest awards to the laziest. - Chaim Perelman: In 1944 De la Justice was produced and he concluded that justice cannot be studied logically as each attempt to define it is based on their subjective values.

Is the criminal or civil law standard of proof higher?

criminal (prosecution must provide sufficient evidence for the jury/magistrates to be certain of the defendant's guilt otherwise there is reasonable doubt)

What are the ratios of a majority verdict?

either 10:2 or 11:1

What is justice?

fairness

What is the doctrine of precedent?

following the decisions of previous cases, especially of higher courts

What are tribunals?

forums used instead of a court for deciding certain types of disputes. They are less formal than courts.

What is retribution?

imposing a punishment because the offender deserves punishment

What are appeals from the defendant from the Crown Court?

in all cases the defendant must get leave to appeal from the Court of Appeal or a certificate from the trial judge. This is to filter the cases without merit to save court time.

What is conciliation?

involves a third party that establishes the facts, conducts an inquiry and offers solution.

What is delegated legislation?

law made by some person or body other than Parliament, but with the authority of Parliament

Who is the claimant?

legal term for a person/organisation starting a civil claim in the court

What is corrective justice?

or restorative justice. Law restores the imbalance that has occurred between two individuals or an individual and the state

Which type of law do wills go under (substantive, procedural, private, public)

private and substantive

Which type of law does conventions that dictate how an Act of Parliament should be made go under (substantive, procedural, private, public)

public

What are some examples of alternative dispute resolutions?

range from informal negotiations between parties to a comparatively formal commercial arbitration hearing.

What is the Queen's Counsel?

refers to a set of barristers and solicitors who the monarch appoints to be a part of Her Majesty's Counsel learned in the law. To achieve this status, a barrister must have practiced law for ten years and be recommended by the Lord Chancellor.

What are statutory instruments?

rules and regulations made by government ministers

What is custom?

rules through practise involved in the disproval of the community rather than formal punishment. Some of the rules may harden into rights and be so widely accepted that they become the law.

What are the factors that disqualify you from jury service for ten years?

served a sentence of imprisonment had a suspended sentence passed on them had a community order or other community sentence passed on them

Substantive law

statutory rules passed by legislature that govern how people behave

What categories of law does criminal law fit into

substantive and public

What are barristers referred to as collectively?

the "bar"

What is social justice?

the ability people have to realise their potential in the society where they live. This concept demands that people have equal rights and opportunities.

What is advocacy?

the art of speaking in court on behalf of another; conducting a case in court as the legal representative of another person

Statutory instruments are one form of delegated legislation. Describe how statutory instruments are made and used.

the existence of law made by government ministers with delegated powers under authority of primary legislation (enabling Act), the role of ministers when consulting, drafting and laying before Parliament, completing detail of framework of parent Act, use for updating laws, other uses e.g. commencement orders, implementation of EU directives, allowing experts to be involved, examples of use.

What is utilitarianism?

the idea that the goal of society should be "the greatest happiness for the greatest number" of its citizens

Explain the literal rule and its use by judges.

the literal rule and when it is used - that a judge will give a word or words their ordinary, natural, dictionary meaning, even if it results in an absurdity; the meaning being given from the time the Act was passed; and once the meaning is found, that word is then given the same meaning throughout the Act. the facts from at least one case example to show how the literal rule was used by the judge. Case example could be Fisher v Bell (1961), Whiteley v Chappel (1868)

What is the definition of a Bill?

the name for a draft law going through Parliament before it passes all the parliamentary stages to become an Act of Parliament

What is the definition of a negotiation?

the process of trying to come to an agreement.

What is a right of audience?

the right to present a case in court on behalf of another person

What is legal positivism?

the theory of law that is based on the idea that laws are valid where they are made by the recognised legislative power in the state and do not have to satisfy any higher authority.

What is social control?

the ways in which our behaviour, thoughts and appearance are regulated by the norms, rules, laws and social structures of society

What is the definition of social control?

the ways in which our behaviour, thoughts and appearance are regulated by the norms, rules, was and social structures of society

What is a direct acquittal?

where a judge decides there is insufficient prosecution evidence to allow the case to continue. The jury is directed to find the defendant not guilty.