Intro To English Legal System

Question 1

What is ‘judicial precedence’?

Answer 1

Judgement reached in earlier cases should be followed in later cases unless there are sound reasons why they shouldn’t be.

Question 2

What is ‘Stare decisis’

Answer 2

Standing by a decision

Question 3

What is meant by ‘ratio decedendi’

Answer 3

The reason for the decision
The binding part
Stare decisis is created through ratio decedendip

Question 4

What is meant by ‘Obiter dicta’

Answer 4

Other things said. Which is binding on future courts

Question 5

What is the role of a judge?

Answer 5

In a court case a judge has to make a decision as to which of the parties in a dispute wins.
Except in criminal trials in the Crown Court where the jury decides.

Question 6

What are the 2 types of precedent?

Answer 6

1) Binding precedent - The court have no choice to follow the decision where material facts are similar
2) Persuasive precedent: it is not binding but courts can decides to follow

Question 7

What is the meaning of equity?

Answer 7

Fairness and being impartial

Question 8

What is injunction? (Equitable remedies)

Answer 8

An equitable remedy in the form of a court order that compels a party to do or refrain from specific acts

Question 9

What is specific performance (equitable remedies)

Answer 9

An order of a court which requires a party to perform a specific act usually what is stated in a contract

Question 10

What is ‘rescission’ (equitable remedies)

Answer 10

Is the act

Question 11

What is rectification?

Answer 11

A remedy whereby a court orders a change in a written document to reflect what it ought to have said in the first.

Question 12

The Supreme Court

Answer 12

The final court of appeal for all UK civil cases and criminal cases from England, Wales, and Northern Ireland

Question 13

Court Of Appeal

Answer 13

1) Criminal Division - deals with appeals from the Crown Court
2) Civil Division - deals with appeals from the High Court, tribunals and certain cases from the county courts.

Question 14

High Court (1)

Answer 14

1) Queen’s Bench Division - contract and tort etc
Commercial Court
Admiralty Court

2) Administrative Court - supervisory and appellate jurisdiction overseeing the legality of decisions and actions of inferior courts, tribunals, local authorities, Ministers of the Crown and other public bodies and officials.

Question 15

High Court (2)

Answer 15

Family Division

Divisional Court - Appeals from the magistrate’ courts. Appeals from the county courts on bankruptcy and land.

Chancery Division - Equity and trusts, contentious, probate, tax partnerships, bankruptcy; and Companies Court and Patent Court.

Question 16

Crown Court

Answer 16

Trials of indictable offences, appeals from magistrate courts, cases for sentence

Question 17

Magistrates Court

Answer 17

Trials of summary offences, committals to the Crown Court, family proceedings courts and youth courts

Question 18

Tribunals

Answer 18

Hear appeals from decisions on:

Immigration, social security, child support, pensions, tax and lands.

Question 19

The Hierachy Of Courts

Answer 19

1) European Court Of Justice
2) Supreme Court
3) Court Of Appeal
4) High Court/Division Courts

        ^                                ^  5) Crown Court             6)Court Court
   (3)

7) Magistrates Courts 8) Tribunals

Question 20

Elements of the U.K. Constitution

Answer 20

1) The legislature (Parliament)
2) The executive (the government)
3) The Judiciary (judges)

Question 21

Parliament (1)

House Of Commons

Answer 21

All the MP’s elected by UK citizens in the general election.

Each represent their own constituency.

Question 22

Parliament (2) - House Of Lords

Answer 22

All of the Peers.
They are unelected.
They are nominated experts in their fields.
The Prime Minister has a large say in who becomes a Peer.

Question 23

Parliament (3) - The Monarch

Answer 23

The King or Queen at the time.

They have less power now but still have the final sign off on laws and on Peerages.

Question 24

What is The Doctrine Of Parliamentary Sovereignty?

Answer 24

A funded entail principle of UK constitution.

It states that parliament has absolute power and no parliament may make any law which limits the law-making powers of future parliaments.

Commentators argue that the principles has been breached by the Human Rights Act 1998 and the membership of the EU.

Question 25

Definition of 'Parliamentary Sovereignty'

Answer 25

'The right to make or unmake any law whatsoever and further that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament.

Question 26

The Legislative (1): Parliament

Answer 26

Responsible for approving and changing the country's laws. To pass a new law both the House Of Commons and the House Of Lords must agree it is a good idea.

Question 27

Roles of parliament (1)

Answer 27

Holding the government to account. - Checking what departments are doing and how they are spending public money. - they do this by asking questions in the House Of Comminw and working on committees which run investigations and make recommendations to the government.

Question 28

Roles of Parliament (2)

Answer 28

Making and Amending Laws - Most of the draft laws going through parliament (bills) will be government bills but everyone in Parliament can debate about them and vote on them.

Question 29

Roles Of Parliament (3)

Answer 29

Representing UK citizens - all MP's are voted for and it is their job to support and represent their citizens. - MP's often help with issues that people may not be able to get their local council to help them with.

Question 30

The Executive (1) Government

Answer 30

Government is in charge of managing the country and deciding how our taxes are spent. Prime Minister and the Cabinet introduce Bills into Parliament which become law in the form of Acts Of Parliament, if approved.

Question 31

The Executive (2) Government

Answer 31

All Ministers are expected to vote for government Bills and support government policy more generally. if a minister is not willing to do so, he/she is expected to resign under the doctrine of collective ministerial responsibility.

Question 32

The Judiciary (1)

Answer 32

Apply the law although some may say they make the law through the doctrine of judicial precedent and common law and equity. The Role of judges in the UK constitution is to apply the law to decide the cases brought before them in their courts.

Question 33

The Judiciary (2)

Answer 33

Judges decide in cases and use legal reasoning to justify decisions use judicial precedent.

Question 34

What is 'judicial review'

Answer 34

judges have the power to review decisions of government ministers and other decision makers to check that they have acted within their legal powers.

Question 35

Becoming an Act Of Parliament

Answer 35

A Bill must pass through both the House Of Commons and House Of Lords and it must receive Royal assent

Question 36

What Courts can the Crown Court bind on and what are the effects of its earlier decisions on its own cases

Answer 36

Bind on - NONE Effect - MAY BE PERSUASIVE

Question 37

What Courts can the High Court bind on and what are the effects of its earlier decisions on its own cases

Answer 37

Bind on: County Court Effect: Strongly persuasive

Question 38

What Courts can the Court of Appeal bind on and what are the effects of its earlier decisions on its own cases

Answer 38

Bind on: Magistrates Court, County Court, High Court, Divisional Court of the High Court, Family Court. Effect - Civil Division - subject to exceptions Criminal - strongly persuasive

Question 39

What is 'Ejusdem generis'

Answer 39

'Of the same kind' general words following particular words are of the same class: (for example, ‘tradesman, workman, labourer or other person whatsoever’ will only cover person of a similar type).

Question 40

What is 'Noscitur a socis'

Answer 40

(known by the company it keeps) words derive their meaning from the other words surrounding them (which means words are generally interpreted in the context of the Section and the Act as a whole).

Question 41

What is 'Expression unius est'

Answer 41

the expression of one excludes others) the express reference of one member of a class may exclude other members of the class not so expressed (for example the express reference to ‘coal mines’ may exclude reference to other types of mine.)

Question 42

What is the Literal Rule

Answer 42

•Words must be given their plain ordinary and literal meaning. Because if statute is clear then apply as they are presented. * The literal rule involves the judge applying it even if it results in absurdity * This rule respects parliamentary supremacy

Question 43

What is the Golden Rule?

Answer 43

This is an extension of the Literal Rule and used if the Literal rule produces and absurd outcome. The words are then given a more appropriate meaning. There are two approaches- * Narrow approach: Used when words have a dual meaning and the better meaning is chosen * Broader approach: When words have only one meaning but judges do not want to apply it for policy reasons.

Question 44

What is the Mischief Rule

Answer 44

It requires an examination of the former law to try to deduce parliaments intention. 1. What was the common Law before the Act 2. What was the mischief which the common law did not provide for 3. What remedy did parliament propose to remedy this mischief 4. What was the true reason for the remedy.

Question 45

Intrinsic Aids (1) Short Title

Answer 45

The short title is the formal name by which a piece of primary legislation may by law be cited in the Uk

Question 46

Intrinsic Aids (2) Long Title

Answer 46

is the formal title appearing at the head of a statute (such as an Act of Parliament) or other legislative instrument.

Question 47

Intrinsic Aids (3) Preamble

Answer 47

A preamble is an introductory and expressionary statement in a document that explains the document's purpose and underlying philosophy

Question 48

Extrinsic Aids

Answer 48

•Extrinsic aids are those found outside the statue. Some of these are very helpful but their use is controversial. They include dictionaries, historical context, other similar Acts. More controversially Law Commission reports and Hansard (record of parlia

Question 49

What is the 'Purposive Approach'

Answer 49

The purposive approach takes a broader approach than the mischief rule in that the court is not just looking to see what the gap was in the old law. The judges are deciding what they believe Parliament is trying to achieve – what is the purpose of the Act. Judges are required to consider the context in which the law was created – what were the concerns of government and Parliament at the time the Act was created?

Question 50

What is the Purposive Approach's impact on Europe?

Answer 50

A judge in the European Court of Justice will always reach a decision after considering certain basic principles. - proportionality - equality - legal certainty - human rights

Question 51

Advantages of The Purposive Approach

Answer 51

It is a flexible approach which allows judges to develop the law in line with Parliament's intention It allows judges to cope with situations unforeseen by Parliament It allows the law to develop to cover advances in medical science It allows the courts to give effect to EU Directives. Allowing reference to Hansard makes it easier for the courts to discover Parliament's intention

Question 52

Disadvantages of the Purposive Approach

Answer 52

Judges are given too much power to develop the law and usurping the power of Parliament Judges become law makers infringing the Separation of Powers. There is scope for judicial bias in deciding what Parliament intended It assumes Parliament has one intention and ignores the fact that Parliament is divided on party lines Allowing reference to Hansard may lead to prolonged examination of irrelevant material by lawyers which adds to the cost and length of litigation.