English Legal System Law Revision Notes

Our English Legal System Law Revision Notes summarise the key principles of the English legal system and can be used as an exam revision aid.

MODERN ENGLISH LEGAL SYSTEM

LEGAL

SUBSTANTIVE/PROCEDURAL

PRIVATE/PUBLIC

CIVIL/CRIMINAL

SYSTEM

COMMON LAW SYSTEM- develops from previous cases

CONTINENTAL LAW SYSTEM- based on primacy of written laws.

AN ADVERSERIAL SYSTEM- where adjudication is seen as a contest between 2 or more sides and that it is fought out before a neutral umpire. Judge should ensure that both sides are complying with procedural rules.

Parties call witnesses and not the court. Both parties will gather their evidence, including asking witnesses to give statements.

INQUISITORIAL APPROACH- court becomes the investigator itself.

DOMESTIC SOURCES OF LAW

PARLIAMENTARY MATERIAL

PRIMARY AND SECONDARY SOURCES

PRIMARY- 1. LEGISLATION, measures that come from the legislature (parliament) ‘STATUTORY LAW’ 2. From decisions of courts ‘COMMON LAW’.

SECONDARY SOURCES- Predominantly academic material

STATUTORY LAW

PRIMARY ACTS- can be either public or private

STATUTORY LAW

CREATING AN ACT:

STATUTORY LAW

CONTENT OF A STATUTE

1. Short title
2. Royal Coat of Arms
3. Chapter Number- identifies the order in which legislation was passed. Chapter number is assigned by reference to the calendar year.
4. Long title- serves a description of the purpose of the act.
5. Date of Royal Assent- brings legislation into force.
6. Enacting formula- formal wording that demonstrates that legislation passed the relevant legislative purposes.
7. Part number and heading- provisions grouped together. Long acts are split into parts. Parts can be further divided into chapters.
8. Marginal note
9. Section 1, subsection (1), Paragraph (a), Subparagraph (i).

STATUTORY INTERPRETATION

LITERAL RULE- apply law created by parliament. Simply look at the words and apply them as they are written with a suggestion that Parliament knew what they had written.

GOLDEN RULE- should be used when Parliament intended its provision to have a wider definition and not one restricted to the literal meaning of its words. Applied when a literal rule would lead to absurdity.

MISCHIEF RULE- the importance of words is less important than the underlying reason why Parliament legislated.

HUMAN RIGHTS ACT 1998- s 3- (1) so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with convention rights.

AIDS TO INTERPRETATION

Tools at the disposal of courts to assist them in their interpretation of statutory material. Aids can be classified into either an intrinsic or extrinsic categories.

INTRINSIC AIDS- looking at the content of the statutory material to assist in the interpretation of a provision.

EXTRINSIC AIDS- looking at material outside the act but within contemplation of the legislature.

INTRINSIC AIDS

WORDING OF THE STATUTE

NOSCITUR A SOCIIS- statutory provision should be read in conjunction with neighbouring provisions. 1. Look at similar words. 2. Different words in a statute should bear different meanings.

EJUSDEM GENERIS- ‘of the same kind or nature’. The general words are considered to be a continuation of any list of words preceding them.

EXPRESIO UNIUS EXCLUSIO ALTERIUS- ‘to list one thing is to exclude another’.

EXTRINSIC AIDS

EXPLANATORY NOTES- there to improve clarity for a reader, and to this end may be highly discursive.

PARLIAMENTARY MATERIAL

ACADEMIC WRITING

PRE-parliamentary sources- significant number of documents that were published prior to the bill being introduced. ‘White Paper’ being a statement of policy with a broad indication as to how the government intends to legislate to tackle the mischief. ‘Green Paper’ being a discussion paper issued by the government for assistance in structuring the way in which the mischief should be tackled. Consultation by Law Commission.

EXTRINSIC AIDS

The rule in Pepper v Heart

What was said in Parliament when passing the provision. Debates and written answers in both Houses of Parliament are reported in a series known as Hansard and it is published daily.

Pepper v Heart rule permitted courts to make reference to Hansard so long as 3 rules were met. 1) The legislation in question was ambiguous, obscure or led to absurdity; 2) the material relied on consisted of statements by a Minister (or promoter of the Bill); 3. The statements relied on were clear.

DOMESTIC SOURCES OF LAW

CASE LAW

CASE LAW

Common law system- includes a system of stare decisis ‘let the decision stand’ and is designed to bring certainty to the law. The basic proposition of this doctrine is that a case should normally be dealt with in the same way as previous cases were by the courts and that the law can only be changed according to the hierarchy of courts.

CASE LAW

Qualified lawyers report cases.

HIERARCHY OF COURTS

The system of precedent depends on there being a hierarchy of courts.

1.House of Lords

1. Court of Appeal (civil or criminal division)
2. High Court of Justice (QBD, Ch, Fam)
3. Crown and County courts
4. Magistrates Court.

LEGAL PRINCIPLES

RATIO DECIDENDI- the legal reasoning for the decision and forms the binding precedent.

Goodhart’s test- possible to identify ratio by examining the material facts of the case that set the precedent. Whether something is a ‘material fact’ depends on whether it is essential to the decision of the case. Primarily of assistance in escaping precedent. Concept of distinguishing.

LEGAL PRINCIPLES

OBITER DICTUM- are legal opinions that did not go to the decision but are, in essence, side comments on legal issues.

One way that a judge may seek to alter the ratio to an obiter statement would be to state that the reasoning adopted is restricted to the facts of that case. Obiter comments are persuasive authority.

The operation of precedent

Binding/bound by precedent- when is a court bound to follow the ratio of the case?

House of Lords- its decisions bind all the courts below it. Has power to depart from its own decisions.

Court of Appeal- second in precedence in MELS and is the more usual appellate court. Binds all the courts below it. Bound by its own decisions (Yound v Bristol Aeroplane Co Ltd.

Criminal Division- bound by its own decisions

The High Court- binds all lower courts

No court below the High Court sets precedent for anyone. Decisions not binding.

The Privy Council- not part of MELS, considers its decisions to be persuasive rather than binding.

The operation of precedent

DISTINGUISHING- possible to escape precedent. Where facts of a case would lead to the same ratio being applied. The concept of distinguishing is where a court argues that the material facts of a case are different and accordingly the ratio will not apply but rather a different reasoning must be adopted.

The operation of precedent

OVERRULING- precedent ceases to exist because it is overruled. Maybe because 2 conflicting precedents exist.

NOT FOLLOWING- where 2 or more conflicting precedents are presented the court chooses to follow one and not folow the remainder.

REVERSE- When an appeal succeeds the decision of the lower court in that case is reversed.