Ls1528 English Legal System: Analysis Assessment Answers

You have gained work as a paralegal in a national law firm. As part of their Corporate Social Responsibility (CSR) programme, the organisation is very active in the local community.

As part of your induction to the organisation, you have been asked to help out at a local school. You have been given two areas of work. One involves the careers guidance in the school which is very keen to improve the advice and guidance for young people hoping to enter the legal profession. The careers centre manager plans to update all their materials as well as run a series of workshops titled ‘Introduction to Law’. You have been asked to prepare materials for him. You will produce presentation materials, supporting notes and handouts.

The second area of work involves the Student Support Team. Young people come to them if they are worried about getting ‘into trouble with the law’. The team need some background information to help them answer the questions which are asked by the young people.

Task 1 –Key principles of English law

The careers centre has asked for a PowerPoint presentation with separate notes which will help students to understand some of the important topics they would learn if they chose to study law. You should:

• explain the different methods by which laws are made. Make sure you include statutes, case law and EU law
• differentiate between criminal and civil law
• differentiate between public law and private law.

Task 2 – Statutory interpretation

The students need to understand some of the detail which is required by legal professionals. Produce 2 information sheets for distribution at the workshops which:

1. explain the traditional techniques of statutory interpretation and how they are used.
2. describe intrinsic and extrinsic aids

Task 3 –Support materials on the English courts

The school is building up materials for the library on careers in Law.

Answer:

Introduction 

Law can be defined as such a system of rules which is created and is enforced through different government o social institutes for regulating the behaviour. English law is the common law legal system which comprises of civil and criminal law and governs in jurisdiction of England and Wales. The English law does not have a formal codification and covers different unique aspects. In the following parts, these different aspects of the English law have been highlighted so that the young people, who hope to enter the legal profession, can be aptly guided and be given some background information which can help them in their daily lives.

Key principles of English law

There are four key sources of making law under the English common law system, and these include the laws made by parliament, the ones made by courts, one by European Union law, and by European convention.

The law which is made by the parliament is known as the statutory law and deemed as the Act of the Parliament. Under the English law, the parliament has two chambers, i.e., the House of Lords and House of Commons. These two chambers, along with Monarch, have the responsibility of making the statutes. The House of Lords is made of Life Peers, senior Bishops of Church of England and Hereditary Peers. And the House of Commons consists of Members of Parliament who is elected by UK citizens.

The law which is made by the courts is referred to as case law or the common law and is based on the decisions of the judges in different cases, and these decisions are later on used by the other courts as precedent. Though, for the precedent to be applied, the decision has to be given by a court which is higher in the hierarchy level or on the same level.  

The European Union law is the law which is formulated by the Court of Justice, European Commission and the Council of Ministers of the EU. The laws of EU continue to influence the laws of UK. The EU laws are based on the treaties which are ratified by the member states of EU. The European Convention on Human Rights also plays a crucial role in the rulemaking of UK. This convention is related to different human rights, which forms as a base for the different human right related legislations in the nation.

Criminal law v Civil law

Civil law is such law which deals with the disputes which take place between the companies, the individuals or in between them, where the victim is awarded compensation. The criminal law, on other hand, is that body of law which deals with the crime and punishes for the offence. The purpose of civil law is to solve the disputes which crop up and effectively compensate the injured party. The purpose of criminal law is to maintain peace in state and punish the offenders who deter the condition of peace. The latter also requires a unanimous decision before the person is punished and also has to have the “mens rea”. For convicting under the criminal law, the crime has to be proved without any reasonable doubt; though, for civil law, the evidence has to be provided beyond the balance of probability. Private parties file cases under civil law and the government files the criminal law cases. The burden of proof under the former is on the claimant and in case of criminal law, it is on the prosecution.

Public law v Private law

Private law governs the relationship between people for instance, the tort law or the contract law. The public law governs the relationship between the state and the individuals. The subdivision of private law include labour law, competition law, commercial law, civil law; and the ones of public law include criminal, constitution and administrative.

Transformation of Bill into Legislation 

Before legislation becomes applicable, it has to go from the journey of bill to legislation. The bill can be introduced in either of chambers, i.e., in House of Lords or House of Chambers. It has to be stated by the Minister introducing the bill that the same is compatible or incompatible with the European Convention of Human Rights, pursuant to section 19 of the Human Rights Act, 1998. The Bill then goes through the different states of first reading, second reading, the committee stage, report stage, third reading, and finally the royal ascent.

Statutory interpretation

Statutory interpretation is a process through which the legislation is interpreted and applied. At times, there are cases where the words of the statute can prove to be very vague or ambiguous and in such situation, they have to be interpreted by the judges to resolve the dispute. There are four cannons of constructions or the rules of statutory interpretations.

The first one is the literal rule, which is to be applied before any other rule. As per this rule, the words of the statute have to be given ordinary or natural meaning and without the judge making any attempt to make sense of the statute. In Whitely v Chappel, the statute made “to impersonate any person entitled to vote” an offence. And so, defendant used the dead man’s vote. The statute required voting by living person. Applying the literal rule of statutory interpretation, the defendant was acquitted.

Under the golden rule of statutory interpretation, the courts can apply secondary meaning, and is to be used when literal rule results in absurdity. Adler v George is an example of application of this rule.

The oldest rule in this regard is the mischief rule, which was given in the case of Heydon's Case. As per this rule, the role of the court is to suppress the mischief under any act and the aim of it is to provide remedy for it.

The last rule, which is used by the European Court of Justice, is the purposive approach whereby the purpose of the legislation looked at before the words are to be interpreted. And the purpose of this approach was given by Lord Simon in Maunsell v Olins.

Intrinsic and Extrinsic Aids

The aids to statutory interpretation help the judges in interpretation of statutes, and can be divided into internal and external aids, or as are otherwise referred to as the intrinsic and extrinsic aids. The internal aids include the long title of an act, the sections and definition sections of the act, and the explanatory notes. The external aids include text books, dictionaries, Hansard, case laws of other jurisdictions, academic writings and the law commission reports. Earlier Hansard was not permitted, as was seen in Davis v Johnson; though, with Pepper (Inspector of Taxes) v Hart, the status was changed.

Support materials on the English courts

The significance of clarifying the hierarchy of courts stems from the fact that it helps in clarifying which court has seniority over the other, particularly for making an appeal from the lower court to a court which is on higher level of hierarchy from it. The seniority of the court helps shows the power held by it regarding the authority of decisions.  It also helps in clarifying the precedent of which court is to be applied on which court. For instance, the ruling of Supreme Court can be used as precedent by Court of Appeals.

The court system under the English law is complicated at times and can also be confusing as it was developed over thousand year back, instead of being designed from very scratch. There are different kinds of cases which are dealt with in the particular courts, for instance, all of the criminal cases are initiated at the magistrate court, but when they cover serious criminal issues, or where they are sent to the Crown Court, the crown court deals with them. The appeals which are made from the crown court then go to the High Court, from where they have the potential of moving to Court of Appeal and even to the Supreme Court.

The tribunals have their own structure for dealing with appeals and cases; though the decision from different chambers of Employment Appeals Tribunal and Upper Tribunal can go to the Court of Appeals.

The civil cases are at times dealt by magistrates, which can reach country court. An appeal from this is made to the High Court and consecutively to Court of Appeal, though these are made to different divisions of these courts.

The court hierarchy which is applicable for both the criminal and civil law can be best summarized through the picture below.

(Source: JustCite, 2011)

Process of Appeals

The appeals can be made from the decision of a lower court to the court which is higher in hierarchy level. So, the civil division of the Court of Appeals deals with the appeals made from the High Court and from the Tribunals which are related to the civil law and family justice, and in some situations, also from the County Courts.

Relationship between English law and European Union law

As has been stated earlier, one of the sources of English law is the European Union law. The areas in which the EU laws are applicable, overrides the conflicting laws of the member nations. Under this, two key ideas are that of supremacy and direct effect. The former denotes the higher status of the laws of EU over the national laws, and the latter denotes that reliance can be made on the laws of EU in court of law.

Operation of Judicial Precedent

Judicial Precedent refers to the process as per which, the previous decision of the court is followed by another court, which is on the same level or is below the court which made the decision on the hierarchy chart, in another decision, where the facts of the two cases is sufficiently similar.

‘Stare Decisis’, ‘Ratio Decidendi’ and ‘Obiter Dicta’

Stare decisis is Latin for stand by things which have been decided. When a rule becomes a settled law, it has to be followed even though it may result in certain probable inconveniences from the strict observance of the same or even though a satisfactory reason is needed or the policy or the principle could be questioned, it is referred to as stare decisis. This principle is applicable on when the result of departing from the established rule of decision would be to unsettle the transaction which had been attempted to be settled previously.

Obiter Dicta is Latin for remarks in passing. Obiter Dicta refers to the judicial principles, the authority of which is relevant only to the particular subject matter in which it was drawn and their scope is limited to the facts of the particular case. A leading example of obiter dicta was the principle of promissory estoppel which was borne as an obiter statement in the case of Central London Property Trust Ltd v High Trees House Ltd.

Ratio Decidendi is Latin for reason for decision. Ratio Decidendi, of a particular decision, refers to the principle of law, which is formulated by the judges of that case and it is the conclusion which the judges reach, on the basis of the facts presented before them and by excluding the immaterial facts from the material ones. Generally, ratio decidendi has equal force as law; though, as per Professor Good, it cannot be accepted always as it could be either too broad or narrow in actual formulation.

‘Distinguishing’, ‘Reversing’, ‘Binding’ and ‘Overruling’ and their impact 

Distinguishing takes place when the court makes a decision to not apply an existing binding precedent to a particular case which has been brought before the court as they are satisfied that the material facts of the present case is different from the one of precedent and hence, the precedent cannot be applied. This approach is used by the judges when the binding precedent, if permitted to be allowed, would result in an unjust outcomes in the view of the judges. Though, where the losing party opines that not applying the precedent was wrong, they can appeal the same. Where the appeal is proved right, the original decision is reversed and the binding precedent is followed.

Reversing refers to a decision which takes place when the losing party makes an appeal against the original decision of the court. And in that appeal, the claims made under the particular appeal are proved right, which leads to the original decision being reversed. Binding refers to the decision taken in a particular case being binding upon the other cases and being used as a precedent. Donoghue v Stevenson is a leading example of binding decision being used as precedent. Lastly, overruling refers to a previous decision of the court, where a superior court decides not to follow the previous decision given by the lower court.

Courts being bound- Young v Bristol Aeroplane Co Ltd 

The case of Young v Bristol Aeroplane Co Ltd is a noteworthy case in the matter of judicial precedents. The general rule is that the Court of Appeal if bound to follow their own decisions and the ones given the courts of similar jurisdiction. In this case, a classic statement was made to the exception of the self-binding rule. Lord Greene MR identified three different situations in which the Court of Appeal could depart from the previous decision made by them, and these three situations are:

When the earlier decision of the court is conflicting with each other. In such a situation, the Court can make a decision regarding which decision has to be ignored and which one has to be followed.

When the earlier decision is conflicting with a subsequent decision given by Supreme Court. In such a situation, the superior court’s ruling is to be followed.

When the earlier decision seems to have been made per incuriam, i.e., on the basis of lack of care. In such a situation, the previous ruling can be ignored by the court.

Impact of “Res Judicata”

Res Judicata is Latin for a matter which has already being judged, and is also known as claim preclusion. This concept refers to the case which has already attained its final judgement, and it does not have any appeals left. As a result of res judicata, the matter cannot be raised before any authority again, be it in the same court or in a different court and the matter of such case cannot be reconsidered. So, through this doctrine, an injustice to the parties of the case is finished and also, the resources of the court are stopped from being wasted, in terms of the time and money applied.

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