Legal Studies

Question 1

Origin of Common Law:

Answer 1

Legal system in England and Wales, America, Australia and Canada

Question 2

What is Common Law?

Answer 2

Judge-made law - law that comes from the courts

Question 3

What contrasts with Common Law:

Answer 3

Statue and Equity

Question 4

Who makes statue?

Answer 4

Government

Question 5

Factors of Common Law:

Answer 5

• Reliant on cases
• Comes from courts
• Courts interpretation = laws
• Kept up to date
• Doesn’t come from government
• Judicial

Question 6

Development of the Common Law:

Answer 6

Case Law - how statues are interpreted

Equity -

Custom -

Question 7

The ‘English’ Legal System - Pre-1066:

Answer 7

“a mass of oral customary rules”

Law was written down

No form of centralised legal system

‘Tradition expressed in action’

Question 8

Institutionalising the Common Law - Post 1154:

Answer 8

1154: Henry II created a unified court system - ‘common’ - bringing the kings justice to every citizen
- institutes a jury system
- judges referred to past decisions

Question 9

Reasons for the development of Equity:

Answer 9

• Kings conscience
• Claimants were unsatisfied with the harsh rulings of the common law
• Natural justice and fairness
• Development of court and Chancery

Question 10

What is the ‘Doctrine of Precedent’?

Answer 10

Foundation of the Common Law

Question 11

Three Essential Elements of the Doctrine of Precedent:

Answer 11

1. Hierarchy of Courts
2. ‘Binding Precedent’
3. Accurate law reporting

Question 12

Characteristics of Common law:

Answer 12

Based on historic English legal system

Case based and pragmatic

Adversarial - active role of parties

Question 13

Characteristics of Civil law:

Answer 13

European Continental system, based on Ancient Roman Law and Germanic tradition

Codified, general principles

Inquisitional - lesser roles for parties and active judge

Question 14

What are Criminal Courts?

Answer 14

Determine the guilt or innocence of defendants according to the criminal law and punish convicted offenders

Question 15

What are Civil Courts?

Answer 15

Deal with the resolution of disputes between individuals and award remedies to successful claimants. Normally in the form of monetary damages

Question 16

What are Trial Courts?

Answer 16

Hear cases at ‘first instance’ - matters of fact and law to make a ruling

Question 17

What are Appellate Courts?

Answer 17

Application of legal principle to a case already heard at first instance

Question 18

What are Superior Courts?

Answer 18

Not bound by geography or costs, can hear cases nation wide, important cases of precedent

Question 19

What are Inferior Courts?

Answer 19

Hear the majority of the cases and are geographically and cost bound

Question 20

The Court Hierarchy in England and Wales:

Answer 20

The Court of Justice of the European Union (the European Court of Justice) - interpretation of EU Legislation, disputes between member states

Supreme Court of the United Kingdom

Judicial Committee of the Privy Council

Courts below this level are divided between civil and criminal

Question 21

Supreme Court of the United Kingdom:

Answer 21

12 ‘Justices of the Supreme Court’

Final Court of Appeal for all civil cases in UK

Holders of ‘high judicial office’

About 85 appeals per year

Set up by the Constitutional Reform Act 2005

Opinions binding on all lower courts

Question 22

The Court of Appeal:

Answer 22

Doesn’t decide questions of fact but of law

Distinction between civil and criminal divisions

Binds all lower courts

Binds itself with exceptions

Question 23

2 Court of Appeals:

Answer 23

Court of Appeal (Criminal)

Court of Appeal (Civil)

Question 24

Court of Appeal (Criminal Division):

Answer 24

Entirely appellate from the Crown Court against conviction, sentence, or finding of fact

Question 25

Court of Appeal (Civil Division):

Answer 25

Deals with appeals from the 3 divisions of the High Court, and Tribunals (.e. the Upper Tribunal and the Employment Appeal Tribunal)

Question 26

Parts of the High Court:

Answer 26

Queen’s Bench Division Family Division Chancery Division

Question 27

What is the Queens Bench Division?

Answer 27

Criminal - appeals by way of ‘case stated’ (clarification on the law) from Magistrate’s Courts and appeals from Crown Courts sitting without a jury Civil - court at first instance and appeals from County Court

Question 28

What is the Family Division?

Answer 28

Inherent jurisdiction of cases of divorce, adoption and wardship, wills probate, domestic violence

Question 29

What is the Chancery Division?

Answer 29

Business and property-related disputes, IP, company law, insolvency

Question 30

High Court, Divisional Court:

Answer 30

This is split into several ‘divisions’, each dealing with separate areas of law: The Divisional Court is bound by Court of Justice of the European Union, Supreme Court and Court of Appeal It is bound by its own earlier decision in civil matters subject to the rules of Young v Bristol Aeroplane Co [1944] 2 All ER 293 (CA) R v Greater Manchester Coroner ex parte Tal [1984] 3 All ER 240 – the court can depart from its own earlier decisions in criminal matters The High Court is bound by the Court of Justice of the European Union, the Supreme Court, the Court of Appeal and the Divisional Courts The High Court is not bound by its own earlier decisions.

Question 31

Administrative Court - Judicial Review:

Answer 31

Determination whether a public body has acted lawfully Applicant must have standing Illegality, irrationality and procedural impropriety (Council for Civil Service Unions v Minister for Civil Service [1985] 1 AC 374 (HL) Proportionality – Human Rights – a breach of the European Convention on Human Rights 1998 s.6

Question 32

The Lower Courts:

Answer 32

County Court – all but the most complicated of civil cases (debt, personal injury, breach of contract, wills, housing) Crown Court – trials on indictment (by jury); anything that is outside the sentencing remit of magistrates’ court; no precedent Magistrates’ Court – criminal proceedings, 90% begin and end there, summary offences, applications for bail, youth courts; civil proceedings, highways, bye laws, public health, licencing – Justices of the Peace or District Judge Family Court – came into existence in 22 April 2014 17(2) Crime and Courts Act 2013 - jurisdiction in all family proceedings, national

Question 33

Tribunals:

Answer 33

Specialised tribunals developed over the 20th century to make it easier and cheaper to resolve complaints disputes e.g. Employment, rent, immigration, Mental Health Review Tribunal Tribunals, Courts and Enforcement Act 2007 – functions of most tribunals transferred to First-Tier Tribunal Upper Tribunal – appeals from the First-Tier Tribunal on a point of law

Question 34

The differences between the criminal and civil justice systems

Answer 34

Purpose: The civil justice system seeks compensation for a wrong committed; The criminal justice system seeks to convict those guilty of committing criminal offences. Terminology: Criminal case names - R v Smith; Civil case names - Smith v Jones; Prosecution; Claimant/Plaintiff; Defendant The role of the judge and jury: Judge – the law; jury – the fact (criminal) Jones v The National Coal Board [1957] 2 QB 55 (CA) (civil) Burden of Proof: Prosecution in criminal trials Does the defendant in a criminal trial ever have the burden of proof? (R v Carr-Briant [1943] KB 607 (CA)) Claimants in civil trials – “he who asserts must prove” Standard of Proof: Beyond reasonable doubt – criminal cases On the balance of probabilities – civil case

Question 35

Court Abbreviations:

Answer 35

EWCA Civ - Court of Appeal Civil Division EWCA Crim - Court of Appeal Criminal Division EWHC (Admin) - High Court (Administrative Court) EWHC (Ch) - High Court (Chancery Division) EWHC (QB) - High Court ( Queen's Bench Division) EWHC (Comm) - High Court (Commercial Division) EWHC (Admlty) - High Court (Admiralty) EWHC (Fam) - High Court (Family Division) EWHC (Pat) - High Court (Patents Court) EWHC (TCC) - High Court (Technology & Construction Court) UKHL - House of Lords UKPC - Privy Council SC – Supreme Court

Question 36

Judicial Committee of the Privy Council:

Answer 36

Hears appeals from Commonwealth countries Ecclesiastical appeals Not strictly bound by its own earlier decisions Not bound by the Supreme Court on matters of the law of those countries from which it is the final Court of Appeal (due to the fact that the common law is different the world over) Final for the Queen in Counsel or the Judicial Committee Not binding on any domestic court